Will have to find balance and decide as to who will control services, says Apex Court

Terming “collective responsibility, aid and advice” as “bedrocks” of democracy, the Supreme Court on Wednesday said it will have to find a balance and decide whether the control over services in Delhi should be with Centre or the Delhi government or a median has to be found.

A five-judge Constitution bench headed by Chief Justice DY Chandrachud, while resuming the hearing on the vexatious Centre-Delhi government row over control of services, also inquired about the legal position and asked whether the Aam Aadmi Party government will have the power over the posting of an officer who has been allocated the Union Territory cadre.

Solicitor General Tushar Mehta, appearing for the Centre, commenced the submissions by saying he would try to “disabuse” the perception which has sought to be created that the Lt Governor is “doing everything”, “the officers have allegiance elsewhere” and the Delhi government was “just symbolic”.

“Right from 1992 till date, only seven matters have been referred to the President citing difference between the LG and the Delhi government and ...total 18,000 files came to the LG as per the law and all files were cleared,” the law officer told the bench which also comprised justices Justices M R Shah, Krishna Murari, Hima Kohli and P S Narasimha.

“The hon’ble chief minister writes the ACRs (Annual Confidential Reports) of the officers allocated to the Delhi government (by the Centre),” he said, adding that they have been getting impressive 9 to 9.5 ratings on a scale of 10 from the CM.

“I agree that collective principle must be respected. I must point out is that we are dealing with a matter of perception and not constitutional law,” he contended.

During the day-long hearing, the bench referred to the three entries such as public order, police and land on the State list of subjects where the Delhi government cannot legislate as per Article 239AA

(Special provisions with respect to Delhi).

“Article 239AA preserves collective responsibility, aid and advice - these are bedrocks of democracy. And three subjects (public order, police and land) have been carved out in national interest. So you need to balance both. The question we have to answer is control over public services. Should control on public services lie exclusively with one, or another, or there should be a median,” the bench observed.

It also asked senior lawyer A M Singhvi, appearing for the Delhi government, and the solicitor general about the legal position with regard to power of posting of civil servants after they are allocated a particular cadre, state or UT.

“Once a person has been allocated to a cadre, the state decides where he or she will be posted. Now will this apply to the Union Territory of Delhi?” the bench asked.