In
terms
In terms of MHA notification S.O.1368(E) dated
21.05.2015 and subsequent Delhi High Court Judgment dated August 4, 2016
thereon, the matters connected with 'Services' fall outside the purview of the
Legislative Assembly of NCT of Delhi and thus, are also outside the executive
power of Government of NCTD. The Hon’ble Delhi High in said judgment (vide paras
156, 157, 158) held that there are only two Services under the constitutional
scheme. One is of the Union and the other is of each State. These two subjects
are expressly covered by two Entries in Schedule VII, i.e. Entry 70 (Union
Public Services; All India Services; Union Public Service Commission) of List I
and Entry 41 (State Public Services; State Public Service Commission) of List
II. There is no separate service cadre of any Union Territory. THE SERVICES
OF ALL UNION TERRITORIES INCLUDING NCT OF DELHI ARE SERVICES OF THE UNION. THEREFORE,
THE SERVICES UNDER NCT OF DELHI ARE
NECESSARILY THE SERVICES OF THE UNION. The Part XIV of the Constitution
deals with "Services under the Union and the States". Article 309 in
Part XIV provides that Acts of the appropriate legislature may regulate the
recruitment and conditions of service of persons appointed to public services
and posts in connection with the affairs of the Union or of any State. UNDER
PART XIV, THERE IS NO SEPARATE CATEGORY OF SERVICES OF UNION TERRITORY. Hence,
all services under NCT of Delhi which is a Union Territory are governed by
Entry 70 of List I alone and THUS FALL BEYOND THE LEGISLATIVE COMPETENCE OF
LEGISLATIVE ASSEMBLY OF NCT OF DELHI.
The
said MHA Notification directs that that the Lt. Governor of the NCT of
Delhi shall in respect of matters connected with 'Services' exercise the powers
and discharge the functions of the Central Government to the extent delegated
to him from time to time by the President. Further,
a Lt Governor office order dt 9-8-2016 directs that all services matters,
including transfers/postings of IAS/DANICS officers, with the recommendations
of Civil Services Board, in case of IAS officers, will be placed through Chief
Secretary, Delhi directly before Lt Governor for his consideration and order. It is also pertinent to mention herein that vide order no. 480 dated 29.8.2016, the Lt. Governor of Delhi has notified the "Approving Authority" for transfer/posting of different category of employees working in Government of NCTD and according to which Lt. Governor is "approving authority" qua IAS/DANICS/All India Services Officers/Equivalent Officers of Central Civil Services, Provincial Civil Services, and Chief Secretary is "approving authority" qua Grade-I/II (DASS), Prinicipal Private Secretary & Senior Personal Assistant, and Secretary Service is "approving authority" qua Grade-III/IV (DASS) & Grade- II/III (Stenographer), and Administrative Secretary/Head of the Departments of the department concerned is "approving authority" qua other employees of Cadre/Ex- Cadre with in the department concerned. Meaning thereby, even employees serving in
various departments of the Delhi Administration as well as other statutory
bodies over which the Lt. Governor exercises control are in fact "Central
public servants/Central officers/Central employees".
Moreover, Ministry of Law & Justice (Dept of Legal Affairs) advice (EO
No. 20714/Advice-A/2016) to Ministry of Home Affairs (MHA) on an issue whether
the Legislative Assembly of Delhi has the legal competence to enact “The Code
of Criminal Procedure (Delhi Amendment) Bill, 2015) seeking to amend Section
176 of the Principal Act states on the basis of a Delhi High Court Judgment in
the case of Delhi High Court Bar Association vs Govt of NCTD & Anr
thus:
“Delhi Legislative Assembly has no power to effect
legislation with respect to any subject on which there is an existing Central
Legislation”.
It is noteworthy that Parliament has already passed the
Lokpal and Lokayukta Act, 2013 [under entry 1(criminal law) and entry 2
(criminal procedure) of the List 111- Concurrent List of the Schedule 7 of the
Constitution] and same has been duly notified and enforced and has its
sway over all central employees (including employees serving in various
departments of the Delhi Administration as well as other statutory bodies over
which the Lt. Governor exercises control in terms of forgoing discussion). Going by the above discussion it may conveniently be said that Delhi Legislative Assembly
didn’t have legal competence to pass the Delhi Janlokpal Bill, 2015 (also passed
under entry 1(criminal law) and entry 2 (criminal procedure) of the List 111-
Concurrent List of the Schedule 7 of the Constitution] since a central law
namely the Lokpal and Lokayukta Act, 2013 is already occupying the field. As a
corollary, the Delhi Lokayukta and UpLokayukta Act, 1995 is also
unconstitutional.
NOTE:
Be that as it may, however, moot point remains as to whether
proviso-1 to Article 239AA(3)(c) - enabling the Delhi Legislative Assembly to
pass a law on a subject enumerated in State List or in Concurrent List in
variance with a pre-existing central law on that subject provided that if any such law made by
the legislative assembly has been reserved for the consideration of the
President and has received his assent - has become redundant altogether
for all purposes in the light of above advice of Union Ministry of Law
& Justice purportedly drawing sustenance from a Delhi High Court
Judgment?
Article
239AA(3)(c) is reproduced below in extenso :
If
any provision of a law made by the Legislative Assembly with respect to any
matter is repugnant to any provision of a law made by Parliament with respect
to that matter, whether passed before or after the law made by the Legislative
Assembly, or of an earlier law, other than a law made by the Legislative
Assembly, then, in either case, the law made by Parliament, or , as the case
may be, such earlier law, shall prevail and the law made by the Legislative
Assembly shall, to the extent of the repugnancy, be void;
PROVIDED
THAT IF ANY SUCH LAW MADE BY THE LEGISLATIVE ASSEMBLY HAS BEEN RESERVED FOR THE
CONSIDERATION OF THE PRESIDENT AND HAS RECEIVED HIS ASSENT SUCH LAW SHALL
PREVAIL IN NATIONAL CAPITAL TERRITORY ;
Provided
further that nothing in this sub-clause shall prevent Parliament from enacting
at any time any law with respect to the same matter including a law adding to,
amending, varying or repealing the law so made by the Legislative Assembly.
NOTE:
NOTE:
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