Delhi govt v. Lt. Governor dispute on control over services involves substantial question of law: Central government to Supreme Court

The dispute between the Central and Delhi governments relating to transfers and postings of officers in Delhi and administrative control over such officers should be decided by a Constitution Bench, Solicitor General (SG) Tushar Mehta told the Supreme Court [Govt of NCT of Delhi vs Union of India]..In an additional written note submitted to the Court, SG Mehta said that a decision on the issue of who has the administrative control over services in the Union Territory under Article 239AA, involves a substantial question of law and therefore, merits reference to a larger bench. "The same involves a substantial question of law, both by way of constitutional significance as well as larger public interest, and the same is not an ancillary or incidental issue, thus, meriting a reference to a Constitution Bench in terms of Article 145(3) of the Constitution," Mehta said in his written note. .The note settled by SG Mehta and Additional Solicitor General Sanjay Jain, also submitted that the significance of the issues raked by Delhi government is much greater in view of the fact that Delhi is the national capital of the country and the model of governance of Delhi would require the Central government to play a central role, even if a Legislative Assembly or a Council of Ministers is introduced..Earlier, a three-judge bench headed by Chief Justice of India NV Ramana had on April 28 reserved the matter for order after stating that it would consider the Central government's request to refer the matter to a 5-judge Constitution Bench.The Centre’s request for referring the matter to 5-judge Constitution Bench was opposed by the Delhi government which said that the attempt by Centre was not to refer but to review and reconsider the July 2018 verdict by a larger bench of 7 judges.Senior Lawyer Dr. Abhishekh Manu Singhvi for the Delhi government had argued that if a State cannot even transfer or manage posting of its own officers then how will it exert control over its workers..The primary basis of the prayer to refer it to a five-judge bench is since the majority judgment of the Constitution Bench, as per the Union, did not consider purpose and intent of the expression “insofar as any such matter is applicable to Union Territories” as it occurs in Article 239AA(3) of the Constitution, which is the pivotal and crucial aspects of the said provision..Singhvi, appearing for Arvind Kejriwal-led Delhi government, had opposed the request of referral and pointed out that the Central Government had already sought adjournment in the matter several times."Existence of a substantial question of law does not weigh on stakes of the case. Here there is a constitution bench judgment already. There has been 6 requests for adjournment and now they want ref to larger bench", Singhvi said..The Delhi government's case is that the elected government of Delhi has been excluded by the Central government from exercising any administrative control over the important bureaucrats and officers and that the officers are continuing to act on the orders of the Centre through the Lieutenant Governor (LG).The Supreme Court had on April 14, 2019, pronounced its verdict on various individual aspects relating to the tussle between the Delhi government and the LG.However, the two judges on the Bench - Justices AK Sikri and Ashok Bhushan - had differed on the issue of 'services' under Schedule VII, List II, Entry 41 of the Constitution of IndiaThe issue considered by the Court was whether the exclusion of “services” relatable to Entry 41 of List II of the Seventh Schedule from the legislative and executive domain of the NCT of Delhi, vide a notification of the Government of India dated May 21, 2015, is unconstitutional and illegal.Since the judges on the Bench differed, that aspect was referred to a larger Bench..Before that, in 2018, a Constitution Bench of the Supreme Court had interpreted Article 239AA of the Constitution, which contains special provisions with respect to the National Capital Territory. The peculiar status of the NCT and the powers of the Delhi Legislative Assembly and the LG and their interplay were debated in the case.The Court in that judgment had ruled that the LG cannot act independently without the aid and advice of the Council of Ministers, and has to work harmoniously with the NCT government.The appeals relating to individual aspects including services were then placed before a regular Bench for adjudication based on the Constitution Bench judgment.The 2019 judgment was delivered by the regular Bench pursuant to that, but the issue of 'services' remained unaddressed due to the difference in opinion between the two judges.