Union govt negates SC judgment on Delhi govt bureaucrat postings by ordinance
In a dramatic turn of events late on Friday, the Union government promulgated an ordinance that created a new body to determine postings and transfers of IAS officers, with the final authority resting with the lieutenant-governor, which negated a Supreme Court Constitution bench’s May 11 order giving primacy on such decisions to the elected government of NCT of Delhi, except for the List II subjects (state subjects) of public order, police and land, which was as per Article 239AA of the Constitution.
Superseding the Supreme Court’s decision giving the Delhi government power over bureaucrat postings except in the departments of public order, police and land, the Union government, in a dramatic move on Friday, brought an ordinance which effectively places the power over postings in the hands of the lieutenant-governor, who is appointed by the Union government.
This the government did by taking advantage of a point in the Supreme Court’s five-judge Constitutional bench’s unanimous ruling on May 11 that despite the government of the National Capital Territory of Delhi’s (NCTD) supremacy over bureaucrat postings, that power “shall be subject to the executive power expressly conferred upon the Union by the Constitution or by a law enacted by Parliament”.
The Government of National Capital of Delhi (Amendment) Ordinance, 2023 has created a National Capital Civil Service Authority (NCCSA) to deal with service conditions, transfers and postings of officers. Although it has the chief minister in it, it also has the chief secretary and principal home secretary of Delhi as ex-officio members with equal say, with the final say resting with the lieutenant-governor.
This ordinance has evoked mixed views from constitutional experts on whether it negates the Supreme Court’s recent judgment.
As per a report in The Print, while some say it does not, as the NCCSA has a government representative in the form of the chief minister, most say it does, as undoing of a court judgment “is an encroachment on judicial power” and can be struck down. They refer to the
The Aam Aadmi Party (AAP) government of Delhi lashed out at the ordinance, with education minister Atishi saying its promulgation was a “clear-cut case of contempt of court”, adding that the ordinance “is a reflection of the Modi government being a graceless loser”.
