SC refuses to stay Centre's services ordinance, to hear matter on July 17

The Supreme Court on Monday refused to grant an interim stay on the Centre's recent ordinance on control over services in Delhi, while it agreed to consider the Aam Aadmi Party government's submissions on July 17 on a decision by the lieutenant governor to fire 437 independent consultants hired by the Arvind Kejriwal dispensation.

Issuing a notice to the Centre on the Delhi government's plea challenging the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, a bench of Chief Justice DY Chandrachud and Justice P S Narasimha asked senior advocate Abhishek Singhvi, appearing for the AAP government, to amend its petition and include the lieutenant governor as a party to the case.

"This is an ordinance. We we will have to hear the matter," the bench said and posted the matter for hearing on July 17.

At the outset, Singhvi sought a "qualified" stay, saying the ordinance takes away the powers of elected representatives.

He said the 437 independent consultants engaged by the Municipal Corporation of Delhi have been fired by the LG.

"There are a number of instances where the Supreme Court had stayed an Act of Parliament, leave aside an ordinance... Can your lordships imagine a meeting where a chief minister sits in a minority and two bureaucrats say that we believe prima facie this proposal is illegal. First, those two will outvote the CM. They will then refer it to the LG who is the super CM," Singhvi said, mounting a challenge to the ordinance.

In its plea, the AAP government has called the ordinance an "unconstitutional exercise of executive fiat" that attempts to "override" the top court and the basic structure of the Constitution.

Besides quashing the ordinance, the Delhi government has sought an interim stay on it.

The Centre had on May 19 promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 to create an authority for transfer and posting of Group-A officers in Delhi.

The Aam Aadmi Party government has termed it a "deception" with the Supreme Court verdict on control of services.

The ordinance, which came a week after the Supreme Court handed over the control of services in Delhi excluding police, public order and land to the elected government, seeks to set up a National Capital Civil Service Authority for transfer of and disciplinary proceedings against Group-A officers from the Delhi, Andaman & Nicobar, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil) Services cadre.

The chief minister is one of the three members of the Authority, while two others are bureaucrats. The decisions by the Authority are to be taken by a majority and, in the event of a dispute, the matter will be referred to the LG whose decision will be final.

Transfer and postings of all officers of the Delhi government were under the executive control of the LG before the May 11 top court verdict.

The senor lawyer said this is a serious issue and therefore, the apex court may consider stay or as a first step, staying the para of the order by which 437 independent consultants were fired by the LG.

Solicitor General Tushar Mehta, appearing for the Centre, said there are "some shocking facts".

"One of the persons removed is the wife of a sitting MLA. There are several party workers who were appointed without following the due process. I will have to place it on record," Mehta said, adding the affected persons could always approach the high court.

A five-judge constitution bench headed by Chief Justice DY Chandrachud, in a unanimous verdict, had sought to put an end to the eight-year-old dispute between the Centre and the Delhi government triggered by a 2015 home ministry notification asserting its control over services, holding the National Capital Territory administration is unlike other union territories and has been "accorded a 'sui generis' (unique) status by the Constitution.

Against the backdrop of frequent run-ins between the AAP government and the Centre's point man, the lieutenant governor, the apex court had asserted an elected government needs to have control over bureaucrats, failing which the principle of collective responsibility will be adversely affected.