The Supreme Court on Tuesday took note of the submissions of the Centre seeking a hearing of the contentious issue of who should control administrative services in Delhi to a constitution bench.
The apex court also asked the Centre if the 2018 judgement on the power row had said the assembly was "redundant" and the Lieutenant Governor (LG) can have power over legislative functions.
The top court posed the question while commencing the hearing on the contentious issue, arising out of a split verdict over control of services, with the AAP government alleging that the Centre has been "negating" federalism by taking away its power of transfer and posting.
The Arvind Kejriwal government on Tuesday told the Supreme Court that a democratically elected government should not be left without powers to even transfer officials.
The NCT government's predicament without power over the 'services' has been like that of a "king without a kingdom", said senior advocate Abhishek Manu Singhvi, appearing for the Delhi government.
The situation was such that a "democratic representative government" has to get the approval of the Lieutenant Governor to appoint a Health Secretary or a Commerce Secretary, Singhvi further contended while opening arguments against the Centre in the battle for control over the bureaucracy in the national Capital.
A bench headed by Chief Justice N V Ramana asked Additional Solicitor General (ASG) Sanjay Jain, appearing for the Centre, whether he was "saying the judges (who wrote judgements on Delhi-Centre power row) have said anywhere that the Governor can have the legislative powers of assembly".
"Are you saying, there was no assembly and the assembly is redundant," it asked.
The Centre referred to Article 239AA (which deals with Delhi and its power) and said that it was a "mirror image" of a report which had said that Delhi being the national capital cannot be a full-fledged state and the Lt Governor is a "stakeholder" and this position has not been not "diluted".
The Centre sought the hearing of the dispute about the control over services in the national capital to a constitution bench on several grounds including that the earlier judgements of the five-judge bench did not give "any roadmap" to decide as to whether the union or the Delhi government will have the competence to deal with the subject under dispute.
The central government also sought a joint hearing of two separate petitions of the Delhi government on control over services and challenging the constitutional validity of the amended GNCTD Act, 2021 and the Transaction of Business Rules, which allegedly give more powers to the Lieutenant Governor respectively, saying they are "prima facie correlated".
A bench comprising Chief Justice N V Ramana and Justices Krishna Murari and Hima Kohli asked senior advocate Abhishek Manu Singhvi, appearing for the Delhi government, whether it should pass "an empty order" in the matter related to control over services when in another case, the validity of the amended Act was pending before it.
"See our predicament, what if at all we have to strike down that law (the amended GNCTD Act)...The question is not of conflict. The question is should we entertain a matter to pass an empty decree when the validity of that law is also under question," the bench said.
Singhvi said the question was whether the Delhi government was denuded of its power to effect transfer and posting of public servants under Entry 41 of List II of the Constitution in view of the split verdict where one opinion had said that it did not have the power and the other view had said that it can enjoy the authority concerning the officers below the rank of joint secretaries.
"I take the full risk, the law stands as it stands. The court decides a hundred cases this week, next week you may strike down any of the law ... why should your lordships in anticipation not hear this matter because the validity of other law has to be heard," he said.
The bench took note of the submissions of Solicitor General Tushar Mehta and ASG Jain, appearing for the Centre and Singhvi, and decided to list both the petitions together on April 27 and asked the union government to file its response to the plea against the amended GNCTD Act in 10 days.
The plea arises out of a split verdict of February 14, 2019, in which, a two judge-bench of Justices A K Sikri and Ashok Bhushan, both retired since had recommended to the Chief Justice of India that a three-judge bench be set up to finally decide the issue of control of services in the national capital in view of its split verdict.
Justice Bhushan had ruled the Delhi government has no power at all over administrative services.
Justice Sikri, however, made a distinction. He said the transfer or posting of officers in top echelons of the bureaucracy (joint director and above) can only be done by the Central government and the view of the lieutenant governor would prevail in case of a difference of opinion on matters relating to other bureaucrats.
Singhvi, at the outset, referred to the split verdict in detail and constitutional principles and said that the Centre was "negating federalism by taking away the power of transfer and posting. Federalism is important to my case."
"The government of NCT cannot transfer an officer from one department to another or from say Gokulpuri to South Extension ... How does one run the government," he said.
He termed the issue "urgent and significant" and said, "the long and short of the matter which needed to be decided is whether the power under the Constitution under Entry 41 List II was with the elected government of Delhi".
Delhi is the only union territory in the country which has constitutionally made legislature with full state powers excluding three subjects, Police, land, and public order.
Nobody has disputed Delhi's powers for years. Now, a chief minister of an elected legislature has been reduced to a person who has to be answerable to the office of LG instead of the public through assembly, he said.
The bench asked the ASG as to why he was insisting that the plea related to services be tagged with other matters.
(With inputs from Agencies)
