Explained: Grounds taken by Centre for creating Civil Service Authority in Delhi

The Union Government promulgated an Ordinance using the President’s legislative powers under Article 123 of the Indian Constitution, to retain control over services or in other words officers working for the Government of National Capital Territory of Delhi.

Hyderabad:In order to retain control over services or in other words officers working for the Government of National Capital Territory of Delhi, the Union Government promulgated an Ordinance using the President’s legislative powers under Article 123 of the Indian Constitution. Article 123 defines the powers of the President of India to promulgate Ordinances during the recess of Parliament or when Parliament is not in session.

President Droupadi Murmu Friday promulgated the ordinance titled The Government Of National Capital Territory Of Delhi (Amendment) Ordinance, 2023 which will create an authority in Delhi to deal with the issues related to transfer, postings and disciplinary proceedings against the officers working with the Delhi government.

According to the Central government, this ordinance was necessary in view of the Supreme Court’s judgment of May 11 this year with regard to Civil Appeal No. 2357 of 2017 in the matter of Govt. of NCT of Delhi Versus Union of India.

Perhaps, this is for the first time that the Central government has given several reasons justifying the ordinance that will effectively give the control of bureaucrats and officers in the Delhi government to the Union government as Delhi has a unique status of a Union Territory with a Legislature under the Constitution.

The ordinance amended the Government of National Capital Territory of Delhi Act, 1991 to create a specific authority to deal with bureaucrats and officers working for the Delhi government. The language of the Ordinance issued Friday makes it clear that the Centre will not let go of the control of officers in Delhi despite the Supreme Court’s recent interpretation of Article 239AA of the Constitution.

The Ordinances says that Delhi, being the Capital of India, had been administered by the President of India directly and a unique status was, however, conferred upon Delhi whereby it was retained as Union territory but with a legislature.

It said that Article 239AA came to be introduced into the Constitution of India providing for various functional-administrative networked issues balancing the legitimate participation of the Union Government while conferring democratic existence of a legislature and a Council of Ministers having curtailed powers.

This para itself makes it clear that the Centre is determined to retain the unique status of Delhi as a Union Territory as it says that legislature and council of ministers have ‘curtailed powers’ under the Constitution.

Citing the reports of several commissions, the Ordinance said Delhi is the capital city of the nation and the Constitution retained certain exclusive and plenary jurisdiction in the Parliament while incorporating Article 239 AA in general and Article 239AA (3)(b) read with Article 239AA(7) in particular.

Delhi home to President, Parliament and Supreme Court, foreign diplomats

According to the language used in the Ordinance, several important National and international institutions and authorities like the President, the Parliament, the Supreme Court, etc. and various constitutional functionaries, etc., as well as all foreign diplomatic missions, international agencies, etc., are located in Delhi.

Highlighting the importance of Delhi in the diplomacy and conduct of the country’s international relations, the Centre said Delhi is also a place to which high dignitaries from other nations pay official visits frequently and it is in the national interest that the highest possible standards should be maintained in the administration and governance of the national capital.

Reputation of Delhi

In the Ordinance, the Centre said any decision taken or any event in the capital of the nation not only affects the residents of the national capital but also the rest of the country and at the same time has the potential of putting the national reputation, image, credibility and prestige at stake in the international global spectrum.

Delhi belongs to entire nation

The Union Government said that being the national capital, Delhi belongs to the entire nation and the entire nation is vitally interested in the governance of the national capital. “It is in the larger national interest that the people of the entire country have some role in the administration of the national capital through the democratically elected Central Government,” it said.

The Centre said Delhi as the national capital has a unique status and certain distinguishing features and there is a need to promote the national interests without compromising on the democratic aspirations of the residents of Delhi.

President directly administers Union territories

The Union Government said Clause (1) of Article 239 empowers the President to administer every Union territory, to such extent as he thinks fit, acting through an administrator appointed by him with such designation as he may specify.

No specific provision for Delhi related to services in Entry 41 under the State List

According to the Centre, it was necessary to create a specific authority to deal with the matters of transfers and postings of officers working for the Delhi government as there was no Parliamentary law dealing with the subject of services as contained in Entry 41 of List II of the Seventh Schedule in the National Capital Territory of Delhi.

Entry 41 under the second list (state list) under the VIIth schedule of the Constitution deals with state public services and State Public Service Commissions. Referring to the Supreme Court’s judgment of May 11, the Centre said in this matter the top court Supreme Court was required to consider a reference concerning the subject of services in NCTD.

“In the absence of any specific Parliamentary legislation dealing with the subject of services as contained in Entry 41 of List II of the Seventh Schedule specifically and in detail, the Hon'ble Supreme Court was pleased to pass a judgment.

Striking balance between the rights of Centre and Delhi

“In view of its special status as a national capital, a scheme of administration has to be formulated by Parliamentary law, to balance both local and national democratic interests which are at stake, which would reflect the aspirations of the people through joint and collective responsibility of both the Government of India and the Government of National Capital Territory of Delhi,” it said.