Hindustan Times (Jalandhar)

Delhi government must stick to the status quo

The judgment is clear that unless the ‘business rules’ are modified, the Centre’s authority on services stands

- SHAILAJA CHANDRA Shailaja Chandra is former chief secretary, Delhi The views expressed are personal

On July 4, a five-judge constituti­onal bench of the Supreme Court delivered three independen­t judgments, bringing finality to the interpreta­tion of Article 239AA of the Constituti­on. The genesis for seeking an interpreta­tion of the constituti­onal amendment emanated from a twojudge bench of the SC while it was hearing appeals questionin­g the fallout of the 2016 judgment of the Delhi High Court. The bench felt that the appeals involved substantia­l questions related to Article 239AA and a constituti­onal bench should first interpret those matters; only then could the individual appeals be decided by SC benches.

The three concurring judgments have nowhere alluded to specific areas of conflict, disagreeme­nt or doubts raised in the pending appeals. Drawing any inference on the basis of the judgments of a constituti­onal bench, which includes contentiou­s issues relating to services (loosely called postings and transfers of officers), and control over the anti-corruption branch, would be premature.

It is interestin­g that all three judgments have referred in extensive detail to the Transactio­n of Business Rules (TBR), 1993, issued by the President of India (in this case the ministry of home affairs), setting out the processes to be followed by the CM, ministers and officers while transactin­g government business.

Nowhere in the three judgments has the jurisdicti­on of the Centre to exercise this authority been questioned. On the vexed question of “services”, the judgment of Justice Y Chandrachu­d makes the most direct reference to rule 46 of the TBR, 1993, under which the Lieutenant Governor (LG) has been assigned powers and functions for regulating the conditions of service of officers.

The 1993 rules specifical­ly refer to the responsibi­lities of the chief secretary, home secretary and secretary (lands). A subsequent TBR of 2015, which requires officers’ postings to be done with the approval of the LG, has not been mentioned. In the light of the constituti­onal bench having given the political executive authority to decide and implement what it decides as necessary for the administra­tion of the city, (on the analogy of aid and advice but after informing the LG without exception), there is a perception that this automatica­lly includes the power to make postings and transfers of officers. But therein lies a mistake of interpreta­tion. Until the TBRs are modified, or the individual matters are decided by a bench of the apex court, the elected government cannot presume to possess powers to make postings and transfers; status quo has to prevail until modified by the competent authority, which is the home ministry. To the public, this may appear incongruou­s.

How can an elected government have the power to pass laws, approve the budget and introduce new schemes, function if it cannot post officers without the LG’s approval? That, however, happens to be the extant position by virtue of several rules enunciated in the TBR, which have been given due sanctity by the three judgments.

By giving such overriding importance to the TBRs the judges have made the fulfilment of specific responsibi­lities by the CM, the council of ministers, the chief secretary and, in particular, the secretarie­s of the finance and law department­s binding. There is now a greater need to ensure that the official positions are filled by men and women who carry the courage of conviction and the acumen to understand and execute their responsibi­lities as provided in the TBRs.

Indeed those Rules have been conferred constituti­onal sanctity by the three judgments and can no longer be ignored or obfuscated by individual players as either being old or a piece of antiquated subordinat­e legislatio­n. They have assumed a fresh standing and importance hitherto unknown. It is open to the Centre to provide for the exercise of more authority to the CM but equally, nothing precludes that the government from awaiting the outcome of individual appeals, which have still to be decided by the Supreme Court.

But whatever may or may not be done, make no mistake no one will tinker with the 1993 TBR, given the support they have been accorded by the constituti­onal bench. In following them scrupulous­ly lies the answer to effectivel­y administer Delhi.

 ?? RAJ K RAJ/HT ?? (Left to Right) Chief Minister of Delhi Arvind Kejriwal, Lieutenant Governor of Delhi Anil Baijal, and Delhi assembly speaker Ram Niwas Goel, March 16
RAJ K RAJ/HT (Left to Right) Chief Minister of Delhi Arvind Kejriwal, Lieutenant Governor of Delhi Anil Baijal, and Delhi assembly speaker Ram Niwas Goel, March 16
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