Chief Secretary Appointment| Delhi Govt Can Only Propose A Candidate; Decision Of Central Govt On It Final: Supreme Court
The Supreme Court held that the Central Government is the final authority to decide the appointment of the Chief Secretary of the National Capital Territory of Delhi (NCTD).
The Court dismissed the Petition of the State Government and upheld the decision of the Central Government to extend the term of the incumbent Chief Secretary by six months.
The Court emphasized that the Chief Secretary of NCTD holds a special position, as the head of the administration and oversees matters that fall both within and outside the executive domain of NCTD.
The Bench headed by Chief Justice DY Chandrachud and comprising Justice JB Pardiwala and Justice Manoj Misra observed, “The position which emerges from the above analysis is that, unlike other States, the GNCTD only has the power to propose a candidate for the appointment as the Chief Secretary. The Lieutenant Governor is bound to refer the proposal to the Central Government and the decision of the Central Government on the proposal is final”.
Senior Advocate Abhishek Manu Singhvi appeared for the State and Solicitor General Tushar Mehta appeared for the Union.
The Chief Secretary of the Government of the National Capital Territory of Delhi (GNCTD) was due to retire on November 30, 2023. The Petitioner, in this case, believed that the Union of India would unilaterally appoint the next Chief Secretary, rather than following the process of appointing one of the five senior-most officers serving in the AGMUT cadre with the requisite experience of having served in the GNCTD. The Petitioner filed a Writ Petition under Article 32 of the Constitution seeking a direction restraining the Government from making a unilateral appointment of the Chief Secretary of the GNCTD or extending the tenure of the incumbent Chief Secretary.
The Court framed the following issues: “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?”
The Bench noted that Article 239AA(3)(a) grants the NCTD's Legislative Assembly the authority to make laws concerning subjects in the State List or Concurrent List, except for certain excluded matters. These excluded matters include public order, police, and land. Despite the NCTD's legislative power, the Transaction of Business Rules (TBR) mandates the Lieutenant Governor of NCTD to consult with the Central Government before appointment. This arrangement ensures that the Central Government has a say in appointing these officials due to their responsibilities related to the excluded subjects.
The Court observed, “Consequently, in the appointment of the Chief Secretary, as well as in the appointment of the Secretary (Home), Secretary (Land) and Commissioner of Police, the elected Government of NCTD would not have any control; d. After the insertion of Article 239AA, a proposal for the appointment of officers to these four posts was invariably moved by the Lieutenant Government to the Central Government in the Ministry of Home Affairs in terms of Rule 55(2)(b) of the Transaction of Business Rules”.
Furthermore, the Court observed that the power to appoint the Chief Secretary of NCTD is a complex issue that is governed by multiple rules and regulations. The Indian Administrative Service (Cadre) Rules 1954 (Rules, 1954) state that all appointments to cadre posts in a joint cadre shall be made by the State Government concerned.
The Court also concluded that Section 45A(d) of the Government of National Capital Territory of Delhi Act 1991 (Act, 1991), which defines the Chief Secretary as the Chief Secretary of the GNCTD “appointed by the Central Government”, does contain a substantive power of appointment. In contrast to other states, the NCTD merely holds the power to propose a candidate for the Chief Secretary position. The Lieutenant Governor must forward the proposal to the Central Government, whose decision on the matter is final and binding.
Finally, the Court held that the Central Government has the power to extend the service of an incumbent Chief Secretary. This is because Rule 16 of the AIS (DCRB) Rules 1958 (Rules, 1958) allows the Central Government to extend the service of a Chief Secretary with the prior approval of the State Government. In this case, the State Government is the GNCTD.
“For the above reasons, we have come to the conclusion that at this stage, bearing in mind the principles which have been enumerated in the judgment of this Court in 2023 Constitution Bench judgment, and the subsequent developments which have taken place resulting in the enactment of the amendment to the GNCTD Act 1991, the decision of the Union Government to extend the services of the incumbent Chief Secretary for a period of six months cannot be construed to be violative of law”, the Bench observed.
The Court also noted that the Chief Secretary is uniquely placed, as they perform functions that fall both within and outside the executive competence of the GNCTD. The Chief Secretary is appointed by the Central Government, but they must comply with the directions of the elected government over matters on which their executive competence extends.
The Court observed, “We also deem it appropriate to record a few observations on the role of the Chief Secretary. As observed by this Court in Royappa (supra), the post of the Chief Secretary is a “post of great confidence- a lynchpin in the administration.” This Court in the 2023 Constitution Bench judgment observed that civil servants are required to be politically neutral and must abide by the directions of the elected arm to give effect to the principle underlying the triple-chain of collective responsibility. The post of a Chief Secretary is uniquely placed. The Chief Secretary performs functions which fall both within and outside the executive competence of the GNCTD. 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”.
Accordingly, the Court dismissed the Petition.
Cause Title: Government of NCT of Delhi v Union of India & Ors (2023 INSC 1049)
Appearance:
Petitioner: Advocates Shadan Farasat, Amit Bhandari, Aman Sharma, Siddharth Seem, Harshit Anand, Aman Naqvi, Hrishika Jain, Natasha Maheshwari, Mreganka Kukreja
Respondent: Senior Advocate Sanjay Jain with Advocates Kanu Agrawal, Padmesh Mishra, Arkaj Kumar, Arvind Kumar Sharma