Services Under NCT Of Delhi Are Necessarily Services Of Centre & Expressly Covered By Entry 70 Of List 1: Delhi HC
|The Delhi High Court in a civil writ petition filed by the petitioner against the order passed by the National Capital Territory (NCT) of Delhi terminating him from his service held that the services under the NCT of Delhi are necessarily the services of the Centre and are expressly covered only by Entry 70 of List 1 of the Constitution.
A Single Bench of Justice Chandra Dhari Singh stated –
"As provided under Article 309 of the Constitution as well as Entry 70 of List I and Entry 41 of List II, there are only two kinds of services, one of the Union and the other of each State. The appropriate legislature may regulate the recruitment and conditions of service of person so appointed to the public services and posts in connection with the affairs of the Union or any of the State. Therefore, the services under the NCT of Delhi are necessarily the services of the Union and they are expressly covered only by Entry 70 of List I. The Legislative Assembly of NCT of Delhi has no legislative competence to legislate in respect of any subjects covered under Entries 1, 2 and 18 of State List and Entry 70 of the Union List. In view of Section 41 of the Government of National Capital Territory of Delhi Act, 1991, the Lt. Governor is required to act in his discretion in respect of these matters and not on the aid and advice of the Council of Ministers."
Advocate Ravinder K. Yadav appeared for the petitioner while Advocate Yeeshu Jain represented the respondents.
Facts of the Case –
The petitioner was employed as a Publicity Officer with SSB/Central Secretariat, Directorate General of Security, Delhi. In the year 1998, the then Speaker of the Delhi Legislative Assembly (DLA) wrote to Secretary Services, Delhi Government, recommending that the services of the petitioner may be obtained on deputation. Pursuant to this, the petitioner was appointed as Officer on Special Duty (OSD) to the Speaker. The Speaker, vide a letter wrote to the Secretary, Cabinet Secretariat for services of the petitioner on deputation. Accordingly, the Cabinet Secretariat relieved the petitioner to join DLA. The petitioner joined DLA as Joint Secretary, and the terms and conditions of deputation against the post of Joint Secretary were issued upon sanction of Lieutenant Governor (Lt. Governor). Consequently, the pay of the petitioner was fixed by the DLA Secretariat in the pay scale of 12,000-375-16,500.
The Speaker, DLA requested the Prime Minister to transfer the petitioner permanently to DLA. On completion of the deputation period, the petitioner was permanently absorbed in DLA. The name of the petitioner was struck off from his parent cadre with the approval of the Ministry of Home Affairs consequent to his permanent absorption in DLA. Thereafter, the opinion was sought by the Speaker, DLA from Lok Sabha to promote the petitioner to the post of Secretary. The Lok Sabha Secretary General opined that the executives should have no direct control over the recruitment and conditions of service of the employees of the secretariat. However, the letter imposed the discretion on the Speaker to take the final view. The petitioner was promoted to Secretary and was relieved from services. He was terminated from the services and hence, the said order of termination was challenged on the grounds of want of compliance with the Principles of Natural Justice and the lack of competence of the authority.
Following were the issues before the High Court for consideration:
1. Whether the Speaker of the Legislative Assembly of Delhi has any power to recruit OSD, to grant absorption to the post of Joint Secretary, and further to appointment to the post of Secretary in the absence of any Recruitment Rules for the post of Joint Secretary and Secretary in Delhi Legislative Assembly?
2. Whether the appointment of the petitioner was legal?
3. Whether the termination was just and proper in accordance with the law?
The Court while dealing with the first issue noted, "In the instant case, after having analysed the constitutional provisions, it is concluded that appointments to the position of Secretary, DLA fall outside the purview of the office of Speaker, DLA who, to the most, could have a say to the extent of being consulted and even not that of his concurrence. The appropriate Appointing Authority is the Lt. Governor of the NCT of Delhi."
With regard to the second issue, the Court observed that the Lt. Governor did not grant any sanction for settling the terms and conditions of the deputation of the petitioner, and the facts, thus, reveal that the deputation of the petitioner was made on the non-existent post of OSD, after completion of probation period as OSD, he was immediately absorbed on the post of Joint Secretary and immediately within a year, he was given the charge of Secretary with all upgradation in pay scales. The Court further said, "Nowhere the approval was taken from competent authority for such deputation as OSD, absorption to Joint Secretary and promotion to Secretary, the appointment was vitiated by fraud and is void ab initio."
The Court in the context of the third issue held, "The entire saga of the series of appointments, absorption and promotion of the petitioner is tainted with irregularities and illegalities, de-hors the rules or due process of law, without approval by the competent authority and is vitiated. In view of the irregularities and illegalities therein, Show Cause Notices were invoked against him as ordered by the Lt. Governor being the appropriate appointing authority and even the opportunity of being heard was granted to the petitioner. Even after having received the Show Cause Notices about his misconduct, the petitioner neither disputed nor gave any explanation to defend himself. Hence, the service of the petitioner was rightly terminated by the competent authority, i.e., the Lt. Governor."
The Court also stated that the appointment of the petitioner is in the teeth of law and cannot be saved.
The Court therefore concluded, "Still for the sake of argument, even if the termination order is tested on the anvil of violation of Principles of Natural Justice, there are documents on record to establish that the petitioner was granted ample opportunities by way of replying to the Show Cause Notice as well by way of personal hearings granted to him, which he chose to turn a blind eye and a deaf ear to. Therefore, the petitioner's termination cannot be termed as illegal. 114. Hence, in light of the foregoing discussion and analysis, there are no cogent reasons to entertain the petition and allow the prayers sought therein."
Accordingly, the Court dismissed the writ petition.
Cause Title – Siddharth Rao v. The Government of NCT of Delhi & Ors. (Neutral Citation: 2022/DHC/005855)
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