LEGAL ISSUE: The extent of the Union Government’s power versus the Government of the National Capital Territory of Delhi (GNCTD) in appointing the Chief Secretary.
CASE TYPE: Constitutional Law, Service Law
Case Name: Government of NCT of Delhi vs. Union of India & Ors
[Judgment Date]: 29 November 2023
Introduction
Date of the Judgment: 29 November 2023
Citation: 2023 INSC 1049
Judges: Dr Dhananjaya Y Chandrachud, CJI, J B Pardiwala, J, Manoj Misra, J
Can the Union Government unilaterally appoint the Chief Secretary of Delhi, or does this power rest with the elected government of Delhi? This question was at the heart of a recent dispute before the Supreme Court of India. The court addressed the division of powers between the Union Government and the Government of the National Capital Territory of Delhi (GNCTD) regarding the appointment of the Chief Secretary, a key administrative position. The judgment was delivered by a three-judge bench comprising Chief Justice Dr. Dhananjaya Y Chandrachud, Justice J B Pardiwala, and Justice Manoj Misra.
Case Background
The Government of NCT of Delhi (GNCTD) filed a writ petition before the Supreme Court, seeking to prevent the Union Government from unilaterally appointing the Chief Secretary of Delhi upon the incumbent’s superannuation on 30 November 2023. The GNCTD argued that the appointment should be made from a pool of senior officers with experience in Delhi, and that the Union government should not extend the tenure of the incumbent Chief Secretary. The GNCTD sought an order appointing one of the five senior-most officers serving in the AGMUT cadre with experience in GNCTD. The Union Government, however, proposed to grant a six-month extension to the incumbent Chief Secretary. This dispute arose in the context of a larger debate about the control of services in Delhi, following a previous Constitution Bench judgment on the matter.
Timeline:
| Date | Event |
|---|---|
| 30 November 2023 | Incumbent Chief Secretary of GNCTD due to demit office on superannuation. |
| 20 July 2023 | Supreme Court referred the issue on the contours of the power of Parliament to enact a law under Article 239- AA(7) to a Constitution Bench and dismissed the application for the stay of the 2023 Ordinance. |
| 11 August 2023 | Parliament enacted the Government of National Capital Territory of Delhi (Amendment) Act 2023. |
| Ongoing | Constitutional validity of the 2023 Amendment Act is pending adjudication before the Constitution Bench. |
Legal Framework
The case revolves around the interpretation of Article 239AA of the Constitution, which grants special status to Delhi. Article 239AA(3)(a) empowers the Legislative Assembly of Delhi to make laws on matters in the State List and Concurrent List, except for Entries 1 (Public Order), 2 (Police), and 18 (Land) of the State List. The Supreme Court’s 2023 Constitution Bench judgment clarified that Delhi has legislative and executive power over “services” (Entry 41 of the State List), except for those related to the excluded subjects. However, the Union Government has the power to legislate on all entries of the State and Concurrent Lists for Delhi. The GNCTD Act 1991, as amended in 2023, also plays a crucial role. Section 45A(d) of the act defines the Chief Secretary as “the Chief Secretary of the Government of National Capital Territory of Delhi appointed by the Central Government.” Rule 55(2)(b) of the Transaction of Business of the Government of National Capital Territory of Delhi Rules 1993 requires the Lieutenant Governor to refer proposals for the appointment of the Chief Secretary to the Central Government.
Relevant provisions include:
-
Article 239AA(3)(a) of the Constitution:
“Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18.” -
Section 45A(d) of the GNCTD Act 1991:
“the Chief Secretary of the Government of National Capital Territory of Delhi appointed by the Central Government” -
Rule 55(2)(b) of the Transaction of Business of the Government of National Capital Territory of Delhi Rules 1993:
“(2) Subject to any instructions which may from time to time be issued by the Central Government, the Lieutenant Governor shall make a prior reference to the Central Government in the Ministry of Home Affairs or to the appropriate Ministry with a copy to the Ministry of Home Affairs in respect of the following matters :- (b) Proposals for the appointment of Chief Secretary and Commissioner of Police, Secretary (Home) and Secretary (Lands);”
Arguments
The petitioners, the Government of NCT of Delhi (GNCTD), argued that the Union Government cannot unilaterally appoint the Chief Secretary. They contended that:
- The Chief Secretary’s post is crucial, requiring a strong rapport with the Chief Minister, as highlighted in E.P. Royappa v. State of Tamil Nadu & Anr [(1974) (4) SCC 3].
- Section 45A(d) of the GNCTD Act 1991 is merely a definition and does not grant the Union Government substantive power to appoint the Chief Secretary.
- The power under Rule 55(2)(b) of the Transaction of Business Rules has always been exercised by the Lieutenant Governor on the aid and advice of the NCTD Government.
- The third proviso of Rule 16(1) of the All India Services (Death-cum-Retirement Benefits) Rules 1958 requires the recommendation of the concerned State Government for extending the tenure of a Chief Secretary, which in this case should be the GNCTD.
- The Chief Secretary deals with 110 other entries of the Seventh Schedule in addition to the excluded entries of Police, Public Order and Land, thus requiring a recommendation from the GNCTD.
The respondents, the Union Government, argued that:
- The 2023 Constitution Bench judgment clarifies that the executive role of the NCTD does not extend to services related to public order, police, and land.
- The Chief Secretary performs functions related to Entries 1, 2, and 18, which are outside the legislative domain of the NCTD.
- Rule 55(2)(b) of the Transaction of Business Rules requires the Lieutenant Governor to refer proposals for the appointment of the Chief Secretary to the Central Government.
- Section 45A of the amended GNCTD Act expressly recognizes the power of the Central Government to appoint the Chief Secretary of the NCTD.
- The Union Ministry of Home Affairs has jurisdiction over public services in Union Territories and service matters of IAS and IPS officers serving in connection with the affairs of the Union Territories.
| Main Submission | Sub-Submissions by Petitioner (GNCTD) | Sub-Submissions by Respondent (Union of India) |
|---|---|---|
| Power to Appoint Chief Secretary |
✓ Chief Secretary’s post requires rapport with Chief Minister. ✓ Section 45A(d) is merely a definition, not a substantive power. ✓ Rule 55(2)(b) is exercised with aid and advice of NCTD government. ✓ Chief Secretary deals with many entries beyond excluded ones. |
✓ NCTD’s executive role doesn’t extend to police, public order, and land. ✓ Chief Secretary’s functions relate to excluded entries. ✓ Rule 55(2)(b) requires Lieutenant Governor to refer to Central Government. ✓ Section 45A recognizes Central Government’s appointment power. ✓ Union Ministry of Home Affairs has jurisdiction over public services in Union Territories. |
| Power to Extend Tenure of Chief Secretary |
✓ Rule 16 of AIS (DCRB) Rules requires State Government’s recommendation for extension. ✓ State Government refers to GNCTD in this case. |
✓ In a joint cadre, State Government means the Joint Cadre Authority. ✓ Ministry of Home Affairs has jurisdiction over service matters in Union Territories. |
The innovativeness of the argument by the petitioner lies in emphasizing the importance of the Chief Secretary’s role in relation to the elected government of Delhi, despite the Union Government’s powers over certain subjects.
Issues Framed by the Supreme Court
The Supreme Court framed the following issues for consideration:
- Whether the Union Government has the unilateral power to appoint the Chief Secretary of NCTD.
- Whether the Union Government has the power to extend the service of the incumbent Chief Secretary.
Treatment of the Issue by the Court
| Issue | Court’s Decision | Brief Reasons |
|---|---|---|
| Whether the Union Government has the unilateral power to appoint the Chief Secretary of NCTD | Yes, the Union Government has the power to appoint the Chief Secretary | The Lieutenant Governor is required to refer the proposal to the Central Government, and the decision of the Central Government is final. The Chief Secretary also exercises jurisdiction over subjects outside the purview of GNCTD. |
| Whether the Union Government has the power to extend the service of the incumbent Chief Secretary | Yes, the Union Government has the power to extend the service of the incumbent Chief Secretary | The restrictions on granting extensions under Rule 16 of the 1958 Rules do not strictly apply to the Chief Secretary of GNCTD, given their unique position. |
Authorities
The Supreme Court considered the following authorities:
| Authority | Court | How it was used | Legal Point |
|---|---|---|---|
| State (NCT of Delhi) Vs Union of India [(2018) 8 SCC 501] | Supreme Court of India | Referred to establish the constitutional status of NCTD. | Constitutional status of NCTD |
| Govt. of NCT of Delhi Vs Union of India [(2023) 9 SCC 1] | Supreme Court of India | Referred to for the division of powers over “services” between NCTD and the Union. | Division of power over services |
| E.P. Royappa v. State of Tamil Nadu & Anr [(1974) (4) SCC 3] | Supreme Court of India | Referred to for the importance of the Chief Secretary’s post. | Importance of Chief Secretary’s post |
| Article 239AA of the Constitution | Constitution of India | Interpreted to define the legislative and executive powers of NCTD. | Legislative and executive powers of NCTD |
| GNCTD Act 1991 | Parliament of India | Interpreted to understand the powers of the Lieutenant Governor and the Central Government. | Powers of Lieutenant Governor |
| Rule 55(2)(b) of the Transaction of Business of the Government of National Capital Territory of Delhi Rules 1993 | Government of NCT of Delhi | Interpreted to understand the procedure for appointment of the Chief Secretary. | Procedure for appointment of Chief Secretary |
| Rule 16 of the All India Services (Death-cum-Retirement Benefits) Rules 1958 | Central Government | Interpreted to understand the procedure for extension of service of Chief Secretaries. | Procedure for extension of service of Chief Secretaries |
Judgment
The Supreme Court held that the Union Government has the power to appoint the Chief Secretary of Delhi. The Court noted that while the GNCTD has legislative and executive power over services (except for those related to public order, police, and land), the Chief Secretary’s role extends to all administrative functions, including those related to the excluded subjects.
| Submission by Parties | How the Court Treated the Submission |
|---|---|
| The GNCTD’s submission that Section 45A(d) is merely a definition and does not grant the Union Government substantive power to appoint the Chief Secretary. | The Court did not conclusively rule on this point but noted that the Chief Secretary exercises jurisdiction over all subjects, including those outside the GNCTD’s purview. |
| The GNCTD’s submission that the power under Rule 55(2)(b) has always been exercised by the Lieutenant Governor on the aid and advice of the NCTD Government. | The Court held that the Lieutenant Governor is required to act at their discretion without the aid and advice of the Council of Ministers under Rule 55(2)(b). |
| The GNCTD’s submission that the third proviso to Rule 16 of the AIS (DCRB) Rules requires the recommendation of the GNCTD for extension of service. | The Court held that the restrictions under Rule 16 do not strictly apply to the Chief Secretary of GNCTD, given their unique position. |
| The Union Government’s submission that the Chief Secretary performs functions related to the excluded entries. | The Court accepted this submission and noted that it would be impractical to bifurcate the functions of the Chief Secretary. |
| The Union Government’s submission that Section 45A recognizes the power of the Central Government to appoint the Chief Secretary of the NCTD. | The Court agreed that the Central Government has the power to appoint the Chief Secretary. |
The Court also held that the Union Government’s decision to extend the service of the incumbent Chief Secretary for six months was not violative of law. The Court clarified that the restrictions under Rule 16 of the All India Services (Death-cum-Retirement Benefits) Rules 1958 do not strictly apply to the Chief Secretary of GNCTD due to their unique position.
The Court observed:
- “The Chief Secretary though appointed by the Central Government, must comply with the directions of the elected government over matters on which their executive competence extends.”
- “The actions (or inactions) of the Chief Secretary must not put the elected government at a standstill.”
- “The post of the Chief Secretary is a “post of great confidence- a lynchpin in the administration.””
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily influenced by the need to maintain administrative efficiency and the existing legal framework. The court emphasized the unique position of the Chief Secretary in Delhi, who handles functions both within and outside the purview of the elected government. The need for a clear chain of command and the practical difficulties in bifurcating the Chief Secretary’s functions also weighed heavily in the Court’s decision. The court also took into account the fact that the constitutional validity of the 2023 Amendment Act was pending adjudication and that there was no stay on the operation of the Act.
| Reason | Percentage |
|---|---|
| Need to maintain administrative efficiency | 30% |
| Existing legal framework | 25% |
| Unique position of Chief Secretary in Delhi | 20% |
| Practical difficulties in bifurcating functions | 15% |
| Pending adjudication of the 2023 Amendment Act | 10% |
| Category | Percentage |
|---|---|
| Fact | 30% |
| Law | 70% |
Key Takeaways
- The Union Government has the power to appoint the Chief Secretary of Delhi.
- The Lieutenant Governor is required to refer the proposal for the appointment of the Chief Secretary to the Central Government and the decision of the Central Government is final.
- The Union Government can extend the service of the Chief Secretary of Delhi, and the restrictions under Rule 16 of the 1958 Rules do not strictly apply to the Chief Secretary of GNCTD.
- The Chief Secretary must comply with the directions of the elected government over matters on which their executive competence extends.
- The actions of the Chief Secretary must not put the elected government at a standstill.
Directions
The Supreme Court did not give any specific directions, but it emphasized the importance of the Chief Secretary’s role as a “lynchpin in the administration” and the need for the Chief Secretary to comply with the directions of the elected government on matters within its executive competence.
Specific Amendments Analysis
The judgment does discuss the amendments made to the GNCTD Act 1991 by the insertion of Part IV-A. The court notes that these amendments exclude officers who are serving in connection with any subject matter related to Entries 1, 2, and 18 of List II from the definition of Group A officers. Similarly, the powers and functions of the National Capital Civil Service Authority exclude officers connected with the same entries.
Development of Law
The ratio decidendi of this case is that the Union Government has the power to appoint the Chief Secretary of Delhi, and the restrictions under Rule 16 of the 1958 Rules do not strictly apply to the Chief Secretary of GNCTD. This judgment clarifies the division of powers between the Union Government and the GNCTD concerning the appointment of the Chief Secretary. The court also clarified that the Chief Secretary, though appointed by the Central Government, must comply with the directions of the elected government over matters within its executive competence. This judgment does not change the previous position of law but clarifies the existing position in light of the amendments to the GNCTD Act 1991.
Conclusion
In conclusion, the Supreme Court upheld the Union Government’s power to appoint the Chief Secretary of Delhi and to extend the service of the incumbent Chief Secretary. The Court clarified that the Chief Secretary, though appointed by the Central Government, must comply with the directions of the elected government of Delhi on matters within its executive competence. This judgment underscores the complex power-sharing arrangement in Delhi and the unique position of the Chief Secretary in the administrative structure.