GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA

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applicable to Union Territories” was included to avert such a consequence. A The phrase has extended the legislative power of NCTD to all the entries in List II, which use the word “State”.

61Copy pinpoint61. Any amendment to the State List as well as the Concurrent List, being an amendment to the Seventh Schedule must be in accordance with Article 368 of the Constitution. The proviso to Article 368(2) of the B Constitution stipulates that an amendment to the Seventh Schedule would need a special majority of two-thirds of the members of each House of Parliament present and voting. The amendment would also need to be ratified by the legislatures of not less than one-half of the States. If the phrase “insofar as such matter is applicable to Union Territories” was not included in Article 239AA, Parliament and the Legislature of States C would have been required to amend all entries in the Seventh Schedule where the term “State” is used to “State and Union territories”. This would have required a special majority. It was to avoid this time consuming process that the expansive phrase of “insofar as such matter is applicable to Union Territories” was used in Article 239AA. D

62Copy pinpoint62. Article 239AA expressly excludes entries 1,2, and 18 of List II from the ambit of the legislative competence of the Legislative Assembly of NCTD. Article 239AA also stipulates that the legislative power of NCTD is excluded with respect to entries 64,65, and 66 of List II insofar as they relate to entries 1,2, and 18. Entry 1 deals with public E order, Entry 2 deals with police, and Entry 18 deals with Land. Entry 64 deals with “offences against laws with respect to any of the matters in this List”, Entry 65 states “jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List”, and Entry 66 states “fees in respect of any of the matters in this List, but not including fees taken in any court”. The exclusion of entries 64,65, F and 66 to the extent that it relates to entries 1,2, and 18 from the legislative competence of NCTD indicates that the governance structure envisaged in Article 239AA for NCTD was only to exclude the specific entries 1,2, and 18 from its legislative competence. To read the phrase “insofar as such matter is applicable to the Union Territories” as introducing an G implied exclusion of the legislative powers of NCTD with respect to certain other entries would be contrary to the plain meaning of the provision.

63Copy pinpoint63. Article 239AA establishes a Legislative Assembly for NCTD. The seats in the Assembly are filled by a direct election from the H

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A constituencies of NCTD. The Legislative Assembly of NCTD embodies the constitutional principle of representative democracy similar to the Legislative Assembly of the State. The members of the Legislative Assembly of NCTD are selected by the electorate of Delhi to represent their interests. Article 239AA must be interpreted to further the principle of representative democracy.16 To interpret the phrase “insofar as any B such matter is applicable to Union territories” in a restrictive manner would limit the legislative power of the elected members of the assembly. The members of the Legislative Assembly have been chosen by the electorate to act in their stead. Thus, the legislative competence of NCTD must be interpreted to give full impetus to the will of the electorate.

64Copy pinpoint64. We find that the phrase ‘insofar as any such matter is applicable to Union Territories’ in Article 239AA(3) cannot be read to further exclude the legislative power of NCTD over entries in the State List or Concurrent List, over and above those subjects which have been expressly excluded by the provision. D G. “Subject to the provisions”: A limitation?

65Copy pinpoint65. It has been emphasized by the Union of India that Article 239AA not only restricts the powers of the Legislative Assembly of NCTD through the phrase “insofar as any such matter is applicable to Union Territories” but also through the restrictive phrase of “Subject to E the provisions of this Constitution”.

66Copy pinpoint66. The phrase “Subject to the provisions of this Constitution” is not unique to Article 239AA. It has been used in twenty-two provisions of the Constitution. Notably, the phrase has also been used in the provisions dealing with the legislative power of Parliament and the State F Assemblies (Article 245)17 as well as in the provisions dealing with the executive power of the Union (Article 73(2))18 and of the States (Article 162(3))19. The phrase is used to indicate that the legislative power and 16 See Justice Chandrachud’s opinion in the 2018 Constitution Bench 17

245. Extent of laws made by Parliament and by the Legislatures of States - (1) Subject G to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. […] 18

73. Extent of executive power of the Union - (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend – […]. 19

162. Extent of executive power of State - Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the H Legislature of the State has power to make laws: […]

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competence exercised by a legislature must be within the limits A circumscribed by the Constitution. Those boundaries may differ on a case to case basis. For instance, a law made by a legislature cannot violate the fundamental rights of citizens. Another instance is that Parliament can only enact laws on subjects within its legislative competence. Furthermore, any law made by Parliament or a State B Legislature shall be subject to the power of judicial review under Article 32 or Article 226. A Constitution Bench of this Court in the case of Rajendra Diwan v. Pradeep Kumar Ranibala20 held: “Parliament and the State Legislatures derive their power to make laws from Article 245(1) of the Constitution of India and such power is subject to and/or limited by the provisions of the C Constitution. While Parliament can make law for the whole or any part of the territory of India, the State Legislature can only make laws for the State or any part thereof, subject to the restrictions in the Constitution of India… While Parliament has exclusive power Under Article 246(1) of the Constitution to make laws with respect to the matters enumerated in the Union List, the State Legislature has exclusive power to make laws with respect to matters enumerated in the State List, subject to Clauses (1) and (2) of Article 246. Along with the Union Legislature, the State Legislature is also competent to enact laws in respect of the matters enumerated in the Concurrent List, subject to the provisions of Article 246(1)… While the widest amplitude should be given to the language used in one entry, every attempt has to be made to harmonize its contents with those of other Entries, so that the latter may not be rendered nugatory.” (emphasis supplied) The judgment indicates that the law-making power of even Parliament and State legislatures under Article 245(1) is not absolute. It has to be within the confines of the Constitution. DD Basu, in the G Commentary on the Constitution of India discusses the constitutional limitations upon legislative power:21 20

[2019] 17 SCR 1089

21 Dr DD Basu, Commentary on the Constitution of India, 8th Edn., 2012, Vol. 8, pp. 8749-8753 H

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A “As the opening words of Art. 245(1) say, the legislative powers of both the Union and State Legislatures are subject to the other provisions of the Constitution, even though their powers are plenary within the spheres assigned to them respectively by the Constitution… B Whether a law has transgressed any of these limitations is to be ascertained by the Court and if it is found so to transgress, the Court will declare the law to be void. These limitations fall under various categories: I. The first and foremost is the question of vires or legislative competence… II. Apart from want of legislative competence, a law may be invalid because of contravention of some positive limitation imposed by the Constitution. In such cases, even though the Legislature had the competence to make a law with respect to the subject-matter of the impugned law, it became invalid because of contravention of some specific prohibition or limitation imposed by the Constitution. Such limitations fall under two heads- (i) The Fundamental Rights contained in Part III. The effects of the contravention of a Fundamental Right have been fully discussed under Art. 13. […] (ii) Not merely the provisions included in Part III, but any other provision contained in the Constitution (even though it does not confer any fundamental right) constitutes a limitation upon legislative power on two conditions: (a) That the provision in question is justiciable, that is to say, intended to be and capable of being judicially enforced. (b) That the provision is mandatory, e.g., Arts. 255: 286, 301, 303-4. III. In the case of State legislation, there are further limitations, viz., that (a) its operation cannot extend beyond the boundaries of H

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the State, in the absence of a territorial nexus; Another limitation A on the legislative power or a ground of unconstitutionality is that the Legislature concerned has abdicated its essential legislative function as assigned to it by the Constitution and has made an excessive delegation of that power to some other body. (b) it must be for the purposes of the State.” B The same meaning as referred above has to be applied to the usage of the phrase “Subject to the provisions of this Constitution” in Article 239AA.

67Copy pinpoint67. We therefore hold that the legislative power of NCTD under Article 239AA(3) is to be guidedby the broader principles and provisions C of the Constitution. The said phrase in Article 239AA(3) must be interpreted to give effect to the underlying principles in the Constitution. It is in this backdrop that we shall consider the next submission made by the Union. H. The Constitution is not Unitary D

68Copy pinpoint68. The Union of India has argued that the Indian Constitution is often referred to as a federal Constitution with a strong unitary bias, and as far as Union Territories are concerned, the Constitution is unitary in form and in spirit. It is submitted that the generic concept of federalism, as applicable to States cannot apply to Union Territories. Thus, it is argued E that the phrases “Subject to the provisions of this Constitution” and “in so far as any such matter is applicable to Union territories” are to be interpreted accordingly.

69Copy pinpoint69. To analyse the above argument, it is imperative to understand the concept of federalism as the members of the Constituent Assembly F envisioned. Dr. B.R. Ambedkar in one of his seminal speeches before the Constituent Assembly explained the dual polity federal model established under the Constitution²²: “Dual Polity under the proposed Constitution will consist of the Union at the Centre and the States at the periphery each endowed G with sovereign powers to be exercised in the field assigned to them respectively by the Constitution… the Indian Constitution proposed in the Draft Constitution is not a league of States nor

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A are the States administrative units or agencies of the Union Government.” (emphasis supplied)

70Copy pinpoint70. Further, when Dr. Ambedkar was questioned in the Constituent Assembly on the centralizing tendency of the Constitution, he responded by saying that:23 “The States, under our Constitution, are in no way dependent upon the Centre for their legislative or executive authority. The Centre and the States are co-equal in this matter... It may be that the Constitution assigns to the Centre too large a field for the operation of its legislative and executive authority than is to be found in any other Federal Constitution. It may be that the residuary powers are given to the Centre and not to the States. But these features do not form the essence of federalism. The chief mark of federalism, as I said lies in the partition of the legislative and executive authority between the Centre and the Units by the Constitution. This is the principle embodied in our Constitution.” (emphasis supplied)

71Copy pinpoint71. It emerges from the speeches of Dr Ambedkar in the E Constituent Assembly that India adopted a federal model, in which the Union and the States were meant to operate within their assigned legislative domains. The States are not subservient to the Union. The legislative domain of the States was exclusive, and cannot be interfered with by the Union. This principle has been reiterated in judgments of this F Court.

72Copy pinpoint72. Justice B.P. Jeevan Reddy, in his separate opinion, in S R Bommai v. Union of India24, where federalism was held to be part of the basic structure, held that, the States were independent and supreme in the sphere allotted to them, even if the Constitution has a centraizing drift: G “276. The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-à-vis the States does not mean that States are mere appendages of the Centre. Within the 23 Constituent Assembly Debates, Vol. 11 at p. 976 (25 November 1949) H 24 (1994) 3 SCC 1

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sphere allotted to them, States are supreme. The Centre cannot A tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States.”

73Copy pinpoint73. In terms of the above discussion in the Constituent Assembly B and the judgment of this Court, it is clear that the Constitution provides States with power to function independently within the area transcribed by the Constitution. The States are a regional entity within the federal model. The States in exercise of their legislative power satisfy the demands of their constituents and the regional aspirations of the people residing in that particular State. In that sense, the principles of federalism and democracy are interlinked and work together in synergy to secure to all citizens justice, liberty, equality and dignity and to promote fraternity among them. The people’s choice of government is linked with the capability of that government to make decisions for their welfare.

74Copy pinpoint74. The principles of democracy and federalism are essential features of our Constitution and form a part of the basic structure.25 Federalism in a multi-cultural, multi-religious, multi-ethnic and multi- linguistic country like India ensures the representation of diverse interests. It is a means to reconcile the desire of commonality along with the desire for autonomy and accommodate diverse needs in a pluralistic society. E Recognizing regional aspirations strengthens the unity of the country and embodies the spirit of democracy. Thus, in any federal Constitution, at a minimum, there is a dual polity, that is, two sets of government operate: one at the level of the national government and the second at the level of the regional federal units. These dual sets of government, elected by “We the People” in two separate electoral processes, is a F dual manifestation of the public will. The priorities of these two sets of governments which manifest in a federal system are not just bound to be different, but are intended to be different.

75Copy pinpoint75. While NCTD is not a full-fledged state, its Legislative Assembly is constitutionally entrusted with the power to legislate upon the subjects G in the State List and Concurrent List. It is not a State under the First Schedule to the Constitution, yet it is conferred with power to legislate upon subjects in Lists II and III to give effect to the aspirations of the

25 SR Bommai v. Union of India, (1994) 3 SCC 1 H

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A people of NCTD. It has a democratically elected government which is accountable to the people of NCTD. Under the constitutional scheme envisaged in Article 239AA(3), NCTD was given legislative power which though limited, in many aspects is similar to States. In that sense, with addition of Article 239AA, the Constitution created a federal model with the Union of India at the centre, and the NCTD at the regional level. B This is the asymmetric federal model adopted for NCTD. While NCTD remains a Union Territory, the unique constitutional status conferred upon it makes it a federal entity for the purpose of understanding the relationship between the Union and NCTD. The majority in the 2018 Constitution Bench judgment held that while NCTD could not be accorded the status C of a State, the concept of federalism would still be applicable to NCTD: “122.We have dealt with the conceptual essentiality of federal cooperation as that has an affirmative role on the sustenance of constitutional philosophy. We may further add that though the authorities referred to hereinabove pertain to the Union D of India and the State Governments in the constitutional sense of the term “State”, yet the concept has applicability to the NCT of Delhi regard being had to its special status and language employed in Article 239AA and other articles.” (emphasis added)

76Copy pinpoint76. Our model of federalism expects a sense of cooperation between the Union at the centre, and the regional constitutionally recognised democratic units. The spirit of cooperative federalism requires the two sets of democratic governments to iron out their differences that arise in the practice of governance and collaborate with each other. F The Union and NCTD need to cooperate in a similar manner to the Union and the States. Our interpretation of the Constitution must enhance the spirit of federalism and democracy together. This approach of interpretation is located in the 2018 Constitution Bench judgment, wherein the opinion of the majority held as follows:

G “284.7. Our Constitution contemplates a meaningful orchestration of federalism and democracy to put in place an egalitarian social order, a classical unity in a contemporaneous diversity and a pluralistic milieu in eventual cohesiveness without losing identity. Sincere attempts should be made to give full-fledged effect to both these concepts” H

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77Copy pinpoint77. In the spirit of cooperative federalism, the Union of India must A exercise its powers within the boundaries created by the Constitution. NCTD, having a sui generis federal model, must be allowed to function in the domain charted for it by the Constitution. The Union and NCTD share a unique federal relationship. It does not mean that NCTD is subsumed in the unit of the Union merely because it is not a “State”. As B the opinion of the majority in 2018 Constitution Bench judgement held: “Such an interpretation would be in consonance with the concepts of pragmatic federalism and federal balance by giving the Government of NCT of Delhi some required degree of independence subject to the limitations imposed by the C Constitution.” The interpretation of Article 239AA(3)(a) in an expansive manner would further the basic structure of federalism. I. Scope of Legislative and Executive Power between the Union and NCTD D

78Copy pinpoint78. Article 239AA(3)(a) indicates that the Legislative Assembly of Delhi shall have the power to make laws for the whole or any part of NCTD with respect to matters in the State List and the Concurrent List, except for entries 1, 2, and 18 of the State List, and entries 64, 65 and 66 insofar as they relate to the entries 1, 2, and 18. Therefore, the legislative power of NCTD is limited to entries it is competent to legislate on.

79Copy pinpoint79. Article 239AA(3)(b) provides that Parliament can “make laws with respect to any matter” for a Union Territory or any part of it. Therefore, the legislative power of Parliament shall extend to all subjects in the State List and the Concurrent List in relation to NCTD, besides of course the Union List. In case of a repugnancy between a law enacted by Parliament and a law made by Legislative Assembly of NCTD, the former shall prevail in terms of Article 239AA(3)(d).

80Copy pinpoint80. The position that emerges from Article 239AA(3) is that NCTD has legislative power over entries in List II with limits (as excluded by the provision) but Parliament’s legislative power extends to subjects in all three lists relation to NCTD. As noted previously, the scope of division of legislative and executive powers between the Union and NCTD fell for the consideration in the 2018 Constitution Bench judgment. Interpreting Article 239AA(4), the 2018 Constitution Bench H

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A judgment held that the executive power of GNCTD was co-extensive with the legislative power of NCTD.

81Copy pinpoint81. Article 73(1) of the Constitution stipulates that the executive power of the Union shall extend to matters with respect to which Parliament has the power to make laws. The proviso to Article 73(1) B provides that the executive power of the Union shall not extend “in any State” to matters with respect to which the Legislature of the State also has power to make laws unless expressly provided in the Constitution or by a law made by Parliament: “Article 73. Extent of executive power of the Union- (1) Subject C to the provisions of this Constitution, the executive power of the Union shall extend- To the matters with respect to which Parliament has power to make laws; [...] D Provided that the executive power referred in sub-clause (a) shall not, save as expressly provided in this Constitution, or in any law made by Parliament, extend to any State to matters with respect to which the Legislature of the State has also power to make laws.” E

82Copy pinpoint82. Article 162 provides that subject to the provisions of the Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has the power to make laws. The proviso stipulates that with respect to matters which both the Legislature of a State and Parliament have legislative competence, F the executive power of the State shall be limited by the Constitution or by any law made by Parliament: “Article 162. Extent of executive power of State.- Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature G of the State has power to make laws. Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made H by Parliament upon the Union or authorities thereof.”

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83Copy pinpoint83. A combined reading of Articles 73 and 162 indicates that the A Union has exclusive executive power over entries in List I. The States have exclusive executive power over entries in List II. With respect to List III, that is, the concurrent list, the Union shall have executive power only if provided by the Constitution or by a law of Parliament. The States shall have executive power over the entries in List III. However, if a B Central legislation or a provision of the Constitution confers executive power to the Union with respect to a List III subject, then the executive power of the State shall be subject to such law or provision. The executive power of the Union “in a State” over matters on which both States and the Union of India can legislate (that is, the concurrent list) is limited to ensure that the governance of States is not taken over by the Union. C This would completely abrogate the federal system of governance and the principle of representative democracy. It is with this objective in mind that the members of the Constituent Assembly thought it fit to limit the executive power of the Union in a State over matters on which the State also has legislative competence. D

84Copy pinpoint84. The principle in Articles 73 and 162 would equally apply to the scope of executive power over matters which are within the legislative competence of both the Union and the GNCTD. This is because the objective of the provisions is to limit the executive power of the Union in the territorial limits where there is an elected government of a federal unit. E

85Copy pinpoint85. Both Parliament and the Legislature of NCTD have legislative competence over List II and List III. For the purposes of NCTD, both List II and List III are “concurrent lists”. Thus, the delimitation of executive power between Parliament and Government of NCTD with respect to entries in List II and List III are guided by these principles. F Both Parliament and the legislature of NCTD have the power to enact laws with respect to List II (subject to the caveat that entries 1,2,and 18; and entries 64,65, and 66 in as much as they relate to entries 1,2, and 18 are carved out of the domain of the Legislative Assembly of GNCTD) and List III. The executive power of NCTD shall extend to all entries in List II and List III, other than the entries expressly excluded in Article G 239AA(3). Such power shall be subject to the executive power of the Union (through the Lieutenant Governor) only when the Union has been granted such power by the Constitution or a law of Parliament. Therefore, the executive power of NCTD, in the absence of a law by Parliament, shall extend to all subjects on which it has power to legislate. H

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86Copy pinpoint86. It was held in the 2018 Constitution Bench judgment that the Lieutenant Governor is bound by the aid and advice of the Council of Ministers under Article 239AA(4) while exercising executive powers in relation to matters falling within the legislative domain of the legislative assembly of NCTD except where he exercises the limited route provided B under the proviso to Article 239AA(4). This limited discretionary power under the proviso, as the Constitution Bench held, ought to be exercised in a careful manner in rare circumstances such as on matters of national interest and finance. The Lieutenant Governor could not refer every matter to the President.26 After analysing the provisions of Article 239AA(4), Government of NCTD Act 1991 27, and the applicable C Transaction of Business Rules 1993, it was held by the majority that: “284.16. As a natural corollary, the Union of India has exclusive executive power with respect to NCT of Delhi relating to the three matters in the State List in respect of which the power of the Delhi Legislative Assembly has been excluded. In respect of D other matters, the executive power is to be exercised by the Government of NCT of Delhi. This, however, is subject to the proviso to Article 239AA(4) of the Constitution… 284.17. The meaning of “aid and advise” employed in Article 239AA(4) has to be construed to mean that the Lieutenant E Governor of NCT of Delhi is bound by the aid and advice of the Council of Ministers and this position holds true so long as the Lieutenant Governor does not exercise his power under the proviso to clause (4) of Article 239-AA. The Lieutenant Governor has not been entrusted with any independent decision-making power. F He has to either act on the “aid and advice” of Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him. 284.18. The words “any matter” employed in the proviso to clause (4) of Article 239-AA cannot be inferred to mean “every matter”.” G

87Copy pinpoint87. In matters which fall outside the legislative powers of NCTD, the doctrine of “aid and advice” does not apply. In those matters, the 26 Para 284.18 (opinion of the majority); Para 475 (concurring opinion of Justice Chandrachud) 27 H "GNCTD Act”

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GNCTD Act and the Transaction of Business Rules of the Government A of National Capital Territory of Delhi 199328 shall act as a guide for the exercise of power. Under Section 41 of the GNCTD Act, the Lieutenant Governor may be required to act in his discretion in respect of which powers or functions which have been delegated to him by the President under Article 239, or where he is required to act in his discretion under a B specific provision of law or where he exercises judicial or quasi-judicial functions. Section 41, dealing with the discretion of the Lieutenant Governor, provides that: “41. Matters in which Lieutenant Governor to act in his discretion. (1) The Lieutenant Governor shall act in his discretion in a matter— C (i) which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers or functions are entrusted or delegated to him by the President; or (ii) in which he is required by or under any law to act in his D discretion or to exercise any judicial or quasi-judicial functions. (2) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be final. E (3) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is required by any law to exercise any judicial or quasi-judicial functions, the decision of the Lieutenant Governor thereon shall be final.” F

88Copy pinpoint88. Accordingly, the Lieutenant Governor may act in his discretion only in two classes of matters. firstly, where the matter deals with issues which are beyond the powers of the Legislative Assembly and where the President has delegated the powers and functions to the Lieutenant Governor in relation to such matter; and secondly, matters which by law require him to act in his discretion or where he is exercising judicial or G quasi-judicial functions.

89Copy pinpoint89. Section 44 of the GNCTD Act confers the President the power to make rules regarding the allocation of business to Ministers wherein

28 "Transaction of Business Rules” H

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A the Lieutenant Governor is required to act on the aid and advice of his Council of Ministers. It also provides for rules to ensure convenient transaction of business with the Ministers, including the procedure to be adopted in case of a difference of opinion between the Lieutenant Governor and the Council of Ministers or a Minister. In exercise of the power under Section 44, the President framed the Transaction of Business B Rules of the Government of National Capital Territory of Delhi 1993. In his concurring opinion in the 2018 Constitution Bench judgment, Justice Chandrachud held that these Rules provide a mechanism to be followed in matters relating to the executive functions of GNCTD. It was held: “428. A significant aspect of the Rules is that on matters C which fall within the ambit of the executive functions of the Government of NCT, decision-making is by the Government comprised of the Council of Ministers with the Chief Minister at its head… Rule 24 deals with an eventuality when the Lieutenant Governor D may be of the opinion that any further action should be taken or that action should be taken otherwise than in accordance with an order which has been passed by a Minister. In such a case, the Lieutenant Governor does not take his own decision. He has to refer the proposal or matter to the Council of E Minister for consideration… the Lieutenant Governor has not been conferred with the authority to take a decision independent of and at variance with the aid and advice which is tendered to him by the Council of Ministers. If he differs with the aid and advice, the F Lieutenant Governor must refer the matter to the Union Government (after attempts at resolution with the Minister or Council of Ministers have not yielded a solution). After a decision of the President on a matter in difference is communicated, the Lieutenant Governor must abide by that decision. This principle governs those areas which properly lie within the ambit G and purview of the executive functions assigned to the Government of the National Capital Territory.” (emphasis added) The above interpretation indicates that in matters in the executive domain of NCTD, it is the elected government of NCTD which is H

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empowered to take decisions. The Lieutenant Governor may request A the Minister or the Council of Ministers to reconsider its decision. It is only if difference persists even after attempts at resolution that he may refer the matter to the President, and await the decision.

90Copy pinpoint90. Rule 45 of the Transaction of Business Rules also indicates that the Lieutenant Governor must act within the confines of clauses (3) B and (4) of Article 239AA in exercising his executive functions, that is, he shall abide by the “aid and advice” of the Council of Ministers on matters in respect of which NCTD has legislative power. Rule 45 provides: “The Lieutenant Governor, may by standing orders in writing, regulate the transaction and disposal of the business relating to his executive functions: Provided that the standing orders shall be consistent with the provisions of this Chapter, Chapter V and the instructions issued by the Central Government for time to time. Provided further that the Lieutenant Governor shall in respect of matters connected with ‘public order’, ‘police’ and ‘land’ exercise his executive functions to the extent delegated to him by the President in consultation with the Chief Minister, if it is so provided under any order issued by the President under article 239 of the Constitution. E Provided further that ‘standing orders’’ shall not be inconsistent with the rules concerning transaction of business.” (emphasis supplied) F

91Copy pinpoint91. The Rule provides that the Lieutenant Governor may issue standing orders relating to “his executive functions”, which must be consistent with the Rules of Business as a whole. As an exception to the Rule, only “in respect of matters connected with ‘public order’, ‘police’ and ‘land’”, which are matters outside the legislative domain of NCTD under Article 239AA(3)(a), he may “exercise his executive functions to G the extent delegated to him by the President”. The second part of this proviso further indicates that in matters outside the legislative domain of NCTD, the Lieutenant Governor may be required to consult with the Chief Minister, if it is so provided under any order issued by the President under Article 239 of the Constitution. This Rule thus clarifies that the H

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A Lieutenant Governor may exercise his executive function in relation to matters outside the legislative purview of NCTD only “to the extent delegated to him by the President”. As a matter of principle, in the discharge of executive functions within the domain of NCTD, the Lieutenant Governor must abide by the “aid and advice” of the Council of Ministers in the manner indicated in the Rules. Rule 46 thus needs to B be construed accordingly.

92Copy pinpoint92. Rule 46 deals with the power of the Lieutenant Governor with respect to persons serving in connection with the “administration” of NCTD. Rule 46 provides that: C “46. (1) With respect to persons serving in connection with the administration of the National Capital Territory, the Lieutenant Governor shall, exercise such powers and perform such functions as may be entrusted to him under the provisions of the rules and orders regulating the conditions of service of such personsorby any other order D of the President in consultation with the Chief Minister, if it is so provided under any order issued by the President under Article 239 of the Constitution. (2) Notwithstanding anything contained in sub-rule (1) the Lieutenant Governor shall consult the Union Public Service E Commission on all matters on which the Commission is required to be consulted under clause (3) of Article 320 of the Constitution; and in every such case he shall not make any order otherwise than in accordance with the advice of the Union Public Services Commission unless authorised to do so by the Central Government. F (3) All correspondence with Union Public Service Commission and the Central Government regarding recruitment and conditions of service of persons serving in connection with the administration of National Capital Territory shall be conducted by the Chief Secretary or Secretary of the Department concerned under the direction of the Lieutenant Governor.” (emphasis supplied) The Rule provides that the Lieutenant Governor shall exercise such powers and functions with respect to persons serving in the “administration” of NCTD, “as may be entrusted to him under the provisions of the rules and orders regulating the conditions of service of

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such persons or by any other order of the President”. The term A “administration” in this Rule must be considered in the context of Article 239AA(3) and Section 41 of the GNCTD Act. The executive administration by the Lieutenant Governor, in his discretion, can only extend to matters which fall outside the purview of the powers conferred on the Legislative Assembly but it extends to powers or functions B entrusted or delegated to him by the President” or “in which he is required by or under any law to act in his discretion or to exercise any judicial or quasi-judicial functions”. The term “administration” cannot be understood as the entire administration of GNCTD. Otherwise, the purpose of giving powers to a constitutionally recognised and democratically elected government would be diluted. C

93Copy pinpoint93. Therefore, the phrase “persons serving in connection with the administration of the National Capital Territory” in Rule 46 shall refer only to those persons, whose administration is linked with “public order”, “police”, and “land” which are subjects outside the domain of NCTD.

94Copy pinpoint94. However, as noted in the concurring opinion of Justice D Chandrachud in the 2018 Constitution Bench judgment, Section 49 of the GNCTD Act confers an overriding power of general control to the President. According to Section 49, “the Lieutenant Governor and his Council of Ministers shall be under the general control of, and comply with such particular directions, if any, as may from time to time be given E by, the President.” The directions of the President are in accordance with the “aid and advice” of the Council of Ministers of the Union of India.

95Copy pinpoint95. Thus, the scope of the legislative and executive powers of the Union and NCTD that has been discussed under this section is multi- F fold. Under Article 239AA(3)(a), the legislative power of NCTD extends to all subjects under the State List and the Concurrent List, except the excluded entries. As the 2018 Constitution Bench judgment held, the executive power of GNCTD is coextensive with its legislative power. In other words, the executive power of GNCTD extends to all subjects on which its Legislative Assembly has power to legislate. The legislative G power of the Union extends to all entries under the State List and Concurrent List, in addition to the Union List. The executive power of the Union, in the absence of a law upon it executive power relating to any subject in the State List, shall cover only matters relating to the three entries which are excluded from the legislative domain of NCTD. H

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A As a corollary, in the absence of a law or provision of the Constitution, the executive power of the Lieutenant Governor acting on behalf of the Union Government shall extend only to matters related to the three entries mentioned in Article 239AA(3)(a), subject to the limitations in Article

73. Furthermore, if the Lieutenant Governor differs with the Council of Ministers of GNCTD, he shall act in accordance with the procedure laid B down in the Transaction of Business Rules. However, if Parliament enacts a law granting executive power on any subject which is within the domain of NCTD, the executive power of the Lieutenant Governor shall be modified to the extent, as provided in that law. Furthermore, under Section 49 of the GNCTD Act, the Lieutenant Governor and the Council of C Ministers must comply with the particular directions issued by the President on specific occasions.

96Copy pinpoint96. Now, we turn to the present reference before us regarding the scope of the legislative and executive powers of NCTD and the Union over “services” under Entry 41 of the State List. Based on the discussion in this section, NCTD shall have legislative power to make laws on “services”. This is because “services” (that is, Entry 41) is not expressly excluded in Article 239AA(3)(a). As it has legislative power, it shall have executive power to control “services” within NCTD. However, we will need to address the argument of the Union of India that the provisions of the Constitution exclude “services” from the legislative and executive control of NCTD to form a conclusive opinion on the issue. The subsequent sections of this judgment deal with the above questions. J. Triple chain of accountability: Civil Servants in a Cabinet Form of Government F

97Copy pinpoint97. Before discussing the question regarding the applicability of Part XIV to NCTD, it would be appropriate to discuss the principles which will guide our analysis on Part XIV. A discussion on the role of civil services in a Westminster-style Cabinet Form of Government is necessary to understand the issues at stake. G (a) Role of civil services in a modern government

98Copy pinpoint98. Civil services form an integral part of modern government. Professor Herman Finer, in his classic work titled “The Theory and Practice of Modern Governance”, states that “the function of civil service in the modern state is not merely an improvement of government; H

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for without it, indeed, government itself would be necessarily impossible.”29 The efficacy of the State and the system of responsible government to a large part depend upon professionals, who embody the institution of a competent and independent civil service.

99Copy pinpoint99. The policies of the government are implemented not by the people, Parliament, the Cabinet, or even individual ministers, but by civil service officers. Elaborating on the indispensable position of civil services in a parliamentary system of government, DD Basu in his commentary on the Constitution of India states: “A notable feature of the Parliamentary system of government is that while the policy of the administration is determined and laid down by ministers responsible to the Legislature, the policy is carried out and the administration of the country is actually run by a large body of officials who have no concern with politics.”30

100Copy pinpoint100. A Constitution Bench of this Court in Union of India v. Tulsiram Patel31 dwelt on the ubiquitous nature of the civil service and observed: “34. The concept of civil service is not new or of recent origin. Governments — whether monarchial, dictatorial or republican — have to function; and for carrying on the administration and the varied functions of the government age number of persons are required and have always been required, whether they are constituted in the form of a civil service or not.”

101Copy pinpoint101. In the Indian Constitution, an entire Part, Part XIV, is dedicated to ‘services’, indicating the great significance which the members of the Constituent Assembly reposed in the civil service officers. During the F Constituent Assembly Debates, the civil services were referred to as the “soul of administration” and it was said that the “importance of the civil services cannot be gainsaid.”32 Part XIV deals with “Services under the Union and the States”. Chapter I comprising of Articles 308 to 313

29 Herman Finer, The Theory and Practice of Modern Governance (New York: The Dial G Press, 1932) at page 1163 30 Dr DD Basu, Commentary on the Constitution of India, 9th Edn., 2018, Vol. 13, page 13991 31 (1985) 3 SCC 398 32 Muniswamy Pillai and BN Munavalli in Constituent Assembly Debates, Vol. 9 (22 nd August 1949) H

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A deals with services, and Chapter II comprising of Articles 315 to 323 deals with Public Service Commissions for the Union and the States. The effectiveness of the elaborate provisions of Part XIV is to a large extent dependent upon the relationship between the ministers and civil service officers. B (b) Accountability of civil servants in a Westminster parliamentary democracy

102Copy pinpoint102. In a democracy, accountability lies with the people who are the ultimate sovereign. The parliamentary form of government adopted in India essentially requires that Parliament and the government, consisting of elected representatives, to be accountable to the people. The Cabinet consisting of elected representatives is collectively responsible for the proper administration of the country and is answerable to the legislature for its actions. The Constitution confers the legislature the power to enact laws and the government to implement laws. The conduct of the government is periodically assessed by the electorate in elections conducted every five years. The government is formed with the support of a majority of elected members in the legislature. The government responsible to the legislature is assessed daily in the legislature through debates on Bills, or questions raised during Question Hour, resolutions, debates and no-confidence motions. The government is responsible for the decisions and policies of each of the ministers and of their departments. E This creates a multi-linked chain of accountability, where the legislature is accountable to the people who elected them, and the government is collectively responsible to the legislature. This establishes a link between the electorate and the government. The government is collectively responsible for its actions. The Council of Ministers is accountable to F both the legislature and to the electorate. Collective responsibility is an important component of parliamentary democracies.³³

103Copy pinpoint103. Civil servants are required to be politically neutral. The day- to-day decisions of the Council of Ministers are to be implemented by a neutral civil service, under the administrative control of the ministers. In G order to ensure that the functioning of the government reflects the preferences of the elected ministers, and through them the will of the people, it is essential to scrutinize the link of accountability between the civil service professionals and the elected ministers who oversee them. 33 Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1; Amarinder Singh v. Punjab H Vidhan Sabha, (2010) 6 SCC 113; 2018 Constitution Bench judgment.

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Since civil service officers constituting the permanent executive exercise considerable influence in modern welfare state democracies, effective accountability requires two transactions: “one set of officials, such as the bureaucracy, who give an account of their activity, to another set, such as legislators, who take due account and feed their own considered account back into the political system and, through that mechanism, to the people.”34

104Copy pinpoint104. In Secretary, Jaipur Development Authority v. Daulat Mal Jain,35 this Court held that an individual minister is answerable and accountable to people for the acts done by the officials working under him. This Court observed that: C “The Government acts through its bureaucrats, who shape its social, economic and administrative policies to further the social stability and progress socially, economically and politically…The Minister is responsible not only for his actions but also for the job of the bureaucrats who work or have worked under him. He owes the responsibility to the electors for all his actions taken in the D name of the Governor in relation to the Department of which he is the head… he bears not only moral responsibility but also in relation to all the actions of the bureaucrats who work under him bearing actual responsibility in the working of the department under his ministerial responsibility.” E

105Copy pinpoint105. In the concurring opinion in the 2018 Constitution Bench decision, Justice Chandrachud highlighted the intrinsic link between government accountability and the principle of collective responsibility. The judgment underscored the responsibility of an individual minister to the legislature for any and every action undertaken by public officials in the department which the minister oversees: “327. Collective responsibility also exists in practice in situations where ministers have no knowledge of the actions taken by the subordinate officers of their respective departments…

343. … Modern government, with its attendant complexities, comprises of several components and constituent elements. They include Ministers who are also elected as members of the 34 Adam Przeworski, Susan C. Stokes, Bernard Manin, Democracy, Accountability, and Representation (Cambridge University Press 2012), at page 298. 35 (1997) 1 SCC 35 H

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A legislature and unelected public officials who work on issues of daily governance... All Ministers are bound by a decision taken by one of them or their departments. “

106Copy pinpoint106. Civil service officers thus are accountable to the ministers of the elected government, under whom they function. Ministers are in B turn accountable to Parliament or, as the case may be. the state legislatures. Under the Westminster parliamentary democracy, civil services constitute an important component of a triple chain of command that ensures democratic accountability. The triple chain of command is as follows: C a. Civil service officers are accountable to Ministers; b. Ministers are accountable to Parliament/Legislature; and c. Parliament/Legislature is accountable to the electorate.

107Copy pinpoint107. An unaccountable and a non-responsive civil service may D pose a serious problem of governance in a democracy. It creates a possibility that the permanent executive, consisting of unelected civil service officers, who play a decisive role in the implementation of government policy, may act in ways that disregard the will of the electorate. (c) Accountability of Civil Service Officers in a Federal Polity E

108Copy pinpoint108. Our Constitution is federal in character. In a federal polity, a fundamental question which arises is which would be the more appropriate authority to whom the civil service officers would be accountable.

109Copy pinpoint109. As discussed before, a paramount feature of a federal F Constitution is the distribution of legislative and executive powers between the Union and the regional units. The essential character of Indian federalism is to place the nation as a whole under the control of a Union Government, while the regional or federal units are allowed to exercise their exclusive power within their legislative and co-extensive executive and administrative spheres.36 G

110Copy pinpoint110. In a democratic form of Government, the real power of administration must reside in the elected arm of the State, subject to the confines of the Constitution. 37 A constitutionally entrenched and 36 SR Bommai v. Union of India, (1994) 3 SCC 1 H 37 2018 Constitution Bench

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democratically elected government needs to have control over its administration. The administration comprises of several public officers, who are posted in the services of a particular government, irrespective of whether or not that government was involved in their recruitment. For instance, an officer recruited by a particular government may serve on deputation with another government. If a democratically elected government is not provided with the power to control the officers posted within its domain, then the principle underlying the triple-chain of collective responsibility would become redundant. That is to say, if the government is not able to control and hold to account the officers posted in its service, then its responsibility towards the legislature as well as the public is diluted. The principle of collective responsibility extends to the responsibility of officers, who in turn report to the ministers. If the officers stop reporting to the ministers or do not abide by their directions, the entire principle of collective responsibility is affected. A democratically elected government can perform, only when there is an awareness on the part of officers of the consequences which may ensue if they do not perform. If the officers feel that they are insulated from the control of the elected government which they are serving, then they become unaccountable or may not show commitment towards their performance.

111Copy pinpoint111. We have already held that the relationship between the Union and NCTD resembles an asymmetric federal model, where the latter exercises its legislative and executive control in specified areas of the E State List and the Concurrent List. Article 239AA, which conferred a special status to NCTD and constitutionally entrenched a representative form of government, was incorporated in the Constitution in the spirit of federalism, with the aim that the residents of the capital city must have a voice in how they are to be governed. It is the responsibility of the F government of NCTD to give expression to the will of the people of Delhi who elected it. Therefore, the ideal conclusion would be that GNCTD ought to have control over “services”, subject to exclusion of subjects which are out of its legislative domain. If services are excluded from its legislative and executive domain, the ministers and the executive who are charged with formulating policies in the territory of NCTD G would be excluded from controlling the civil service officers who implement such executive decisions.

112Copy pinpoint112. In the backdrop of the above discussion on the necessity to provide the control of “services” to GNCTD, we consider the next H

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A argument of the Union of India that Part XIV does not envisage “services” for Union Territories. K. Balakrishnan Committee Report

113Copy pinpoint113. The Union of India relied on the report of the Balakrishnan Committee which led to the 1991 Constitution Amendment and the B insertion of Article 239AA to argue that “services” are not available to Union territories. The Statement of Objects and Reasons of the Amending Act referred to the Committee’s Report: “Statement of Objects and Reasons

C The question of reorganisation of the administrative set-up in the Union Territory of Delhi has been under the consideration of the Government for some time. The Government of India appointed on 24-12-1987 a Committee [Balakrishnan Committee] to go into the various issues connected with the administration of Delhi and to recommend measures inter alia for the streamlining of the administrative set-up. The Committee went into the matter in great detail and considered the issues after holding discussions with various individuals, associations, political parties and other experts and taking into account the arrangements in the National Capitals of other countries with a federal set-up and also the debates in the Constituent Assembly as also the reports by earlier Committees and Commissions. After such detailed inquiry and examination, it recommended that Delhi should continue to be a Union Territory and provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man. The F Committee also recommended that with a view to ensure stability and permanence the arrangements should be incorporated in the Constitution to give the National Capital a special status among the Union Territories.

2. The Bill seeks to give effect to the above proposals.” G

114Copy pinpoint114. The Balakrishnan Committee specifically dealt with Entry 41 (relating to services) of the State List. Its report notes that Entry 41 is not available to the Union Territories, as (i) the Entry only mentions ‘State’ and not ‘Union Territory’; (ii) Part XIV of the Constitution only refers to services in connection with the affairs of the State and services H in connection with the affairs of the Union; and (iii) administration of the

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Union Territories is the responsibility of the Union and thus it falls within A the purview of ‘affairs of the Union’. The Report stated: “8.1 PUBLIC SERVICES IN THE DELHI ADMINISTRATION 8.1.2. Entry 41 of the State List mentions “State Public Services: State Public Services Commission”. Obviously, this Entry is not applicable to Union territories because it mentions only “State” B and not “Union territories”. This view is reinforced by the fact that the Constitution divides public services in India into two categories, namely, services in connection with the affairs of the Union and services in connection with the affairs of the State as is clear from the various provisions in Part XIV of the Constitution. C There is no third category of services covering the services of the Union territories. The obvious reason is that the administration of the Union territory is the constitutional responsibility of the Union under Article 239 and as such comes under “affairs of the Union”. Consequently, the public services for the administration of any Union territory should form part of the public services in connection D with the affairs of the Union.”

115Copy pinpoint115. The Balakrishnan Committee opined that the setting up of a Legislative Assembly with a Council of Ministers will not disturb the position discussed above. According to the Report: E “Services 9.3.4. By virtue of the provisions in the Constitution, services in connection with the administration of the Union Territory of Delhi will be part of the services of the Union even after the setting up of a Legislative Assembly with a Council of Ministers. This F constitutional position is unexceptionable and should not be disturbed. There should, however, be adequate delegation of powers to the Lt. Governor in respect of specified categories of services or posts. In performing his functions under such delegated powers the Lt. Governor will have to act in his discretion but there should be a convention of consultation, whenever possible, G with the Chief Minister.”

116Copy pinpoint116. The extracts from the Balakrishnan Committee Report were relied upon by Justice Bhushan in his 2019 split judgment to hold that the Legislative Assembly of NCTD does not have the power to make laws under Entry 41 of List II. H

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117Copy pinpoint117. We do not agree with the reliance on the Balakrishnan Committee Report to rule out the scope of legislative power of NCTD over Entry 41 (services). We reiterate the view expressed in the opinion of the majority in the 2018 Constitution Bench that there is no necessity to refer to the Report to interpret Article 239AA because the judgment authoritatively dealt with the scope of the said Article. It was held: B “277. There can be no quarrel about the proposition that the reports of the Committee enacting a legislation can serve as an external aid for construing or understanding the statute. However, in the instant case, as we have elaborately dealt with the meaning to be conferred on the constitutional provision that calls for interpretation, there is no necessity to be guided by the report of the Committee.” (emphasis supplied)

118Copy pinpoint118. Contrary to the suggestion in the report, the 2018 Constitution Bench judgment provided that NCTD shall have legislative power over all subjects in List II, except the excluded subjects provided in Article 239AA(3)(c).

119Copy pinpoint119. The report of the Balakrishnan Committee was referred to in the Statement of Objects and Reasons of 1991 Constitution Amendment. The Statement of Objects and Reasons can only be referred to the limited extent of understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the amendment, and the purpose of the amendment.38 In RS Nayak v. AR Antulay39, a Constitution Bench of this Court held that the reports of a committee which preceded the enactment of a legislation, reports of joint parliamentary committees, a report of a commission set up for collecting information leading to the enactment are permissible external aids to construction. Thus, the report of the Balakrishnan Committee can be relied on by this Court to understand the intent behind the introduction of Article 239AA. However, this Court is not bound by the report of a committee to construe specific phrases. It is for this reason that the 2018 Constitution Bench construed the text of Article 239AA contextually with reference to the constitutional structure envisaged for NCTD without relying on the Report of the Balakrishnan Committee. 38 State of West Bengal v. Subodh Gopal Bose, AIR 1954 SC 92; Bhaiji v. Sub-divisional Officer Thandla, (2003) 1 SCC 692 H 39 (1984) 2 SCC 183

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120Copy pinpoint120. Moreover, the arguments made in the Balakrishnan Committee A Report against the inclusion of “services” for NCTD have been rejected by this Court. The argument in the Balakrishnan Committee Report that the use of the word ‘State’ in an Entry leads by itself to that Entry not being available to the legislature of a Union Territory has been specifically rejected in the concurring opinion of Justice Chandrachud in the 2018 B Constitution Bench in the following terms: “461. […] The expression “insofar as any such matter is applicable to Union Territories” cannot be construed to mean that the Legislative Assembly of NCT would have no power to legislate on any subject in the State or Concurrent Lists, merely by the use of the expression “State” in that particular entry. This is not a C correct reading of the above words of Article 239-AA(3)(a).” The concurring opinion refers to Entries 38 and 40 of List II which read thus: “38. Salaries and allowances of Members of the legislature of D the State, of the Speaker and Deputy Speaker of the Legislative Assembly and, if there is a Legislative Council, of the Chairman and Deputy Chairman thereof. […]

40. Salaries and allowances of Ministers for the State.” E (emphasis supplied) Referring to the provisions of the GNCTD Act which deal with these entries, Justice D.Y Chandrachud in his concurring opinion observed that even Parliament did not construe the use of the word ‘State’ in an F Entry to mean that it was not available to Union Territories, as it acknowledged the power of the Legislative Assembly of GNCTD to deal with said issues. We agree with the above observations. The mere use of the word ‘state’ in the entries will not exclude the legislative competence of NCTD. By that logic, all the entries in List II would be impliedly excluded from the legislative competence of NCTD because G list II of the Seventh Schedule is titled ‘State list’.

121Copy pinpoint121. Furthermore, the conclusion of the Balakrishnan Report that Entry 41 of the State List of the Seventh Schedule is not available to Union Territories because the Constitution does not envisage a third category of services covering the services of Union territories is contrary H

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A to the judgment of this Court in Prem Kumar Jain (supra), which had upheld services for NCTD. The judgment in Prem Kumar Jain (supra) was rendered prior to the Balakrishnan Committee Report of December

1989. The Balakrishnan Committee did not refer to the said judgment. Thus, the report of the Balakrishnan Committee cannot be relied upon determine if “Services” is available to NCTD. B L. Applicability of Part XIV to Union Territories

122Copy pinpoint122. The Union of India has submitted that NCTD does not have legislative competence over Entry 41 of List II because Part XIV of the Constitution does not contemplate any services for Union Territories. It C has been argued that the legislative power of NCTD can be restricted if Part XIV does not contemplate services to Union Territories since Article 239AA begins with the phrase “Subject to the provisions of the Constitution”. (a) Meaning of “State” for the purpose of Part XIV of the D Constitution

123Copy pinpoint123. It needs to be seen if the phrase “State” in Part XIV of the Constitution includes Union Territory. Article 308 provides the definition of ‘State’ for Part XIV of the Constitution. Article 308 as it stood prior to the Constitution (Seventh amendment) Act 195640 provides as follows: E “308.In this part, unless the context otherwise requires the expression ‘State’ means a State specified in Part A or Part B of the First Schedule.”

124Copy pinpoint124. The States Reorganization Act 1956 and the consequential 1956 amendment altered the provisions of the First Schedule. Prior to F the amendment in 1956, States were divided into three categories as specified in Parts A, B and C of the First Schedule of the Constitution. By the seventh amendment, Article 308 was amended and State for the purposes of Part XIV was defined as follows: “308. In this Part, unless the context otherwise requires, the G expression “State” does not include the State of Jammu and Kashmir.”

125Copy pinpoint125. In terms of unamended Article 308, the definition of ‘State’ included Part A and Part B states of the First Schedule and did not

H 40 “1956 amendment”

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include Part C States, since they were administered by the Union. After A the 1956 Constitutional Amendment, Article 308 provides an exclusionary definition of ‘State’ by only excluding the State of Jammu and Kashmir. Article 308 does not provide any clarity on whether “State” includes Union Territories for the purposes of Part XIV.

126Copy pinpoint126. Article 366 defines “State” with reference to Articles 246- B A,268, 269-A and Article 279-A to include a Union Territory with Legislature. Article 366 does not apply for the interpretation of any of the provisions in Part XIV of the Constitution. Thus, we must fall back on Article 367. Article 367 stipulates that unless the context otherwise requires, the General Clauses Act shall apply for the interpretation of the Constitution. Section 3(58) of the General Clauses Act defines “State” C to mean a State specified in the First Schedule and includes a Union Territory.

127Copy pinpoint127. GNCTD contends that this Court in Prem Kumar Jain (supra) has expressly sanctified the existence of services of a Union Territory by holding that the definition of “State” would include Union D territories for the purpose of Article 312 of the Constitution. The Union has argued that the decision in Prem Kumar Jain was limited for the purpose of the IAS (Cadre) Rules 195441 read with the All-India Services Act 1951. Furthermore, it was argued that the reference to Article 312 made therein has been made without any reference to the import of E Article 308. It is the contention of the Union that interpreting the ratio of Prem Kumar Jain in a broad sense would cause violence to the machinery envisaged in Part XIV of the Constitution.

128Copy pinpoint128. In Prem Kumar Jain, the judgment of the High Court of Delhi setting aside the establishment of a joint cadre exclusively for the F Union Territories in the IAS was challenged. Article 312 stipulates that Parliament may by law create “All India Services” common to the Union and the States. A joint cadre of all the Union Territories was created under Rule 3(1) of the Indian Administrative Service (Cadre) Rules 1954.42 The creation of a new joint cadre was challenged before the High Court on the ground that it was contrary to Article 312 of the G Constitution and the All-India Services Act 1951. It was argued that Article 312 does not contemplate an all-India service common to Union

41 1954 Cadre Rules 42 “1954 Cadre Rules” H

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A territories because the term “State” in the provision does not include Union territories. The definition of “State” under Rule 2(c) of the 1954 Cadre Rules, which provides that a State means a “State specified in the First Schedule to the Constitution and includes a Union Territory” was also challenged.

129Copy pinpoint129. In that context, the High Court held that Union territories could not be said to be “States”, and held the definition of “State” under Rule 2(c) of the Cadre Rules to be ultra vires the Constitution and the All India Services Act 1951. The High Court held that the Union Territories were not “States” for the purpose of Part XIV of the Constitution, in view of the definition of “State” in Article 308, which did not include C Part C states before its amendment. The High Court reasoned that Union territories are successors of Part C States, and accordingly Union Territories were excluded from the definition of ‘State’ in Part XIV. The High Court declined to place any reliance on the definition of the word ‘State’ in Section 3(58)(b) of the General Clauses Act, as amended in

D 1956. The High Court reasoned that only the adaptations made in the General Clauses Act under Article 372(2) applied to the interpretation of the Constitution in view of Article 367(1), and accordingly the adaptations made later, by Article 372A, were inapplicable. The High Court observed that: E ‘(7) The next question, therefore, is whether the Union Territories are “State” for the purpose of Article 312(1). Article 312 is a part of Chapter XIV of the Constitution, which is significantly entitled ‘’Services under the Union and the States”. Part XIV does not create an All India Service. [...] The key to the meaning of the word “State” used in Part XIV including F Articles 309 and 312(1) is provided by the interpretation clause in Article 308. Before the Constitution (VII Amendment) Act, 1956 Article 308 was as follows: “IN this part. unless the context otherwise requires the expression “State” means a State specified in Part A or Part B G of the I Schedule”. This definition, thus, made it clear that the word “State” in Part XIV was not to include part C States. Union Territories are the successors of the Part C States. It follows, therefore, that they are also expressly excluded from the definition of H

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“State” in Part XIV. There is nothing particular in the context of A Article 313 which would require the word “State” therein to include a Union Territory. … Article 367(1) of the Constitution applies to the interpretation of the Constitution the provision of the B General Clauses Act as adapted under Article 372(2) of the Constitution. In view of Article 372(2)(a) such an adaptation had to be made within three years from the commencement of the Constitution. The definition of a “State” in section 3(58) of the General Clauses Act as adapted by the C Adaptation of laws Order, 1950 issued under Article 372(2) of the Constitution [...]” (emphasis supplied)

130Copy pinpoint130. In appeal, this Court set aside the judgment of the High Court of Delhi. Firstly, this Court held that in view of the amended definition of the expression “State” under Section 3(58) of the General Clauses Act, as adapted by the Adaptation of Laws Order 1956, there was nothing repugnant to the subject or context to make that definition inapplicable to Part XIV of the Constitution. This Court reasoned that Article 372A was incorporated in the Constitution since Parliament felt the necessity of giving a power akin to Article 372 to the President for the purpose of bringing the provisions of any law in force immediately before the commencement of the 1956 Constitution Amendment in accordance with the provisions of the Constitution, as amended by the 1956 Constitution Amendment. This Court relied on Advance Insurance (supra) to hold that Article 372-A gave a fresh power to the President which was equal and analogous to the power under Article 372(2). This Court held that: “8. It follows therefore that, as and from November 1, 1956, when the Constitution (Seventh Amendment) Act, 1956, came into force, the President had the power to adapt the laws for the purpose of bringing the provisions of any law in force in India into accord with the provisions of the Constitution. It was under that power that the President issued the Adaptation of Laws (No. 1) Order, 1956, which, as has been shown, substituted a new clause (58) in Section 3 of the General clauses Act providing, inter alia, that the expression “State” shall, as H

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A respects any period after the commencement of the Constitution (Seventh Amendment) Act, 1956, mean “a State specified in the First Schedule to the Constitution and shall include a Union Territory”. It cannot be said with any justification that there was anything repugnant in the subject or context to make that definition inapplicable. By B virtue of Article 372A(1) of the Constitution, it was that definition of the expression “State” which had effect from the first day of November, 1956, and the Constitution expressly provided that it could “not be questioned in any court of law”. The High Court therefore went wrong in taking a contrary view and in holding that “Union territories are not ‘States’ for purposes of Article 312(1) of the Constitution and the preamble to the Act of 1951". That was why the High Court erred in holding that the definition of “State” in the Cadre Rules was ultra vires the All India Services Act, 1951 and the Constitution, and that the Union territories cadre of the service was “not common to the Union and the States” within the meaning of Article 312(1) of the Constitution, and that the Central Government could not make the Indian Administrative Service (Cadre) Rules, 1954 in consultation with the State Governments as there were no such governments in the Union territories.” E (emphasis supplied)

131Copy pinpoint131. In Prem Kumar Jain (supra),this Court did not find anything repugnant to the subject or context of Part XIV of the Constitution or Article 312 specifically to make the definition of ‘State’ in terms of amended Section 3(58)(b) of the General Clauses Act inapplicable. F Hence, the expression ‘State’ as occurring in Part XIV was held to include Union Territories. In the preceding section of this judgment, we have approved the decision in Advance Insurance (supra) and held that the definition of “State” in Section 3(58) of the General Clauses Act as amended by Adaptation of Laws (No. 1) Order, 1956 must be applied for the interpretation of the Constitution unless the context otherwise requires.

132Copy pinpoint132. The definition provided in the definition clause article should be applied and given effect to for the purposes of the relevant Part of the Constitution. However, when the definition clause is preceded by the phrase ‘unless the context otherwise requires’, there may be a need

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to depart from the normal rule if there is something in the context in which such expression occurs to show that the definition should not be applied.43 Section 3(58) of the General Clauses Act, by virtue of Article 367(1) of the Constitution, applies to the construction of the expression ‘State’ in the Constitution, unless there is something repugnant in the subject or context of a particular provision of the Constitution. The burden is on the party opposing the application of the definition under the General Clauses Act to the interpretation of a constitutional provision to prove that the context requires otherwise. The Union of India has been unable to suggest that the context of Part XIV suggests otherwise. There is nothing in the subject or context of Part XIV of the Constitution which would exclude its application to Union territories. Rather, the application of the inclusive definition of “State” as provided under Clause 3(58) would render the constitutional scheme envisaged for Union Territories workable. (b) Omission in Part XIV by the 1956 Constitution Amendment

133Copy pinpoint133. The Union of India has argued that services for a Union D Territory are not contemplated in Part XIV of the Constitution because of the conscious omissions by the 1956 Constitution Amendment in Part XIV. There are two prongs to this argument: (i) the words “Part A States” and “Part B States” in Article 308 were substituted by the word “State”, simpliciter, instead of States and Union territories; and (ii) while the E term ‘Raj Pramukh’ was omitted in different Articles in Part XIV, the term ‘Administrator’ was not added.

134Copy pinpoint134. Under erstwhile Article 239, the President occupied in regard to Part C States, a position analogous to that of a Governor in Part A States and of a Rajpramukh in Part B States. Unamended Article 239 F envisaged the administration of Part C States by the President through a Chief Commissioner or a Lieutenant Governor to be appointed by them or through the Government of a neighbouring State.

135Copy pinpoint135. The 1956 Constitution amendment was adopted to implement the provisions of the States Re-organization Act 1956. The Seventh G Amendment abrogated the constitutional distinction between Part A, B and C States, and abolished the institution of the Rajpramukh on the

43 SK Gupta v. KP Jain, (1979) 3 SCC 54; Ichchapur Industrial Coop. Society Ltd. v. Competent Authority, Oil & Natural Gas Commission, (1997) 2 SCC 42; Ratnaprova Devi v. State of Orissa, (1964) 6 SCR 301 H

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A abrogation of Part B States. In terms of Section 29 of the 1956 Constitution amendment, Parliament provided for “consequential and minor amendments and repeals in the Constitution’’ as directed in the Schedule. One of the amendments made in terms of the Schedule was to omit the phrase “Part A or Part B of the First Schedule ‘’, and “Rajpramukh”, as occurring in the Constitution. It is necessary to note that the expressions B “Part A”, “Part B” and “Rajpramukh” were not necessarily substituted by another expression by Parliament.

136Copy pinpoint136. Article 239 as it was amended by the 1956 Constitution Amendment states that subject to any law enacted by Parliament every Union Territory shall be administered by the President acting through an C Administrator appointed by them with such designation as they may specify. It is relevant to note that the term ‘administrator’, at the time of the amendment was not added to any provision of the Constitution other than Article 239. Even within Article 239, the provision did not use the term ‘administrator’ as a designation. Instead, Article 239 provides that: D “239. Administration of Union Territories (1) Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify. E (2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the administrator of an adjoining Union territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers.” F

137Copy pinpoint137. Furthermore, it is important to note that Articles 239A and 239AA were inserted much later after the 1956 Constitution Amendment. In 1962, Article 239A was inserted through the Constitution(Fourteenth Amendment) Act 1962, which gives discretion to Parliament to create by law, local legislatures or a Council of Ministers or both for certain G Union Territories. In 1991, Article 239AA was inserted through the 1991 Constitution Amendment to accord NCTD a sui generis status from the other Union Territories, including the Union Territories to which Article 239A applies. Parliament could not have envisaged when the 1956 Constitution Amendment was adopted that Union Territories would have been accorded diverse governance models. Therefore, the argument of H

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the Union on legislative intent by drawing upon the omissions in the A Seventh Amendment is not persuasive. (c) Existence of power and exercise of power

138Copy pinpoint138. It is not in contention that presently, a Public Service Commission for NCTD does not exist. However, the existence of power and the exercise of the power are two different conceptions, and should B not be conflated. It is settled law that whether a power exists cannot be derived from whether and how often it has been exercised.

139Copy pinpoint139. In State of Bihar v. Maharajadhiraja Sir Kameshwar Singh,44 the Constitution Bench of this Court rejected the argument that the power to enact a law under Entry 42 of the Concurrent List was a C power coupled with a duty. It was held that the Legislature does not have an obligation to enact a law in exercise of its power under the Seventh Schedule: “19. It was further contended that the power to make a law under entry 42 of List III was a power coupled with a duty, because such law was obviously intended for the benefit of the expropriated owners, and where the Legislature has authorised such expropriation, it was also bound to exercise the power of making a law laying down the principles on which such owners should be compensated for their loss. …While certain powers may be granted in order to be exercised in favour of certain persons who are intended to be benefited by their exercise, and on that account may well be regarded as coupled with a duty to exercise them when an appropriate occasion for their exercise arises, the power granted to a legislature to make a law with respect to any matter cannot be brought under that category, It cannot possibly have been intended that the legislature should be under an obligation to make a law in exercise of that power, for no obligation of that kind can be enforced by the court against a legislative body.” (emphasis supplied) G

140Copy pinpoint140. Similarly, in Stateof Haryana v. Chanan Mal,45 while upholding the constitutional validity of the Haryana Minerals (Vesting of Rights) Act, 1973, after noticing the declaration made in Section 2 of the 44 1952 SCR 889 45 (1977) 1 SCC 340 H

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A Mines and Minerals (Regulation and Development) Act, 1957, as envisaged by Entry 54 of the Union List, it was held that exercise and existence of power cannot be conflated: “24. In the two cases discussed above no provision of the Central Act 67 of 1957 was under consideration by this Court. Moreover, B power to acquire for purposes of development and regulation has not been exercised by Act 67 of 1957. The existence of power of Parliament to legislate on this topic as an incident of exercise of legislative power on another subject is one thing. Its actual exercise is another. It is difficult to see how the field of acquisition could become occupied by a Central Act in the same way as it had been in the West Bengal case even before Parliament legislates to acquire land in a State. Atleast until Parliament has so legislated as it was shewn to have done by the statute considered by this Court in the case from West Bengal, the field is free for State legislation falling under the express provisions of entry 42 of List III.” (emphasis supplied)

141Copy pinpoint141. Article 309 of the Constitution provides for recruitment and conditions of service of persons serving the Union or a State. In terms of Article 309, subject to the provisions of the Constitution, an appropriate legislature may enact a legislation to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with affairs of the Union or any State. The legislative field indicated in this provision is the same as indicated in Entry 71 the Union List or Entry 41 of the State List of the Seventh Schedule . In terms of the proviso to Article 309, the President for the Union of India or the F Governor of the State respectively or such person as they may direct, have the power to make similar rules as a stopgap arrangement until provisions in that behalf are made by the appropriate legislature. The proviso to Article 309 is only a transitional provision46, as the power under the proviso can be exercised only so long as the appropriate G legislature does not enact a legislation for recruitment to public posts and other conditions of service relating to that post. If an appropriate legislature has enacted a law under Article 309, the rules framed under the proviso would be subject to that Act.47 Article 309 provides that: 46 A.B. Krishna v. State of Karnataka, (1998) 3 SCC 495 H 47 B.S. Vadera v. Union of India, (1968) 3 SCR 575

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“309. Recruitment and conditions of service of persons A serving the Union or a State Subject to the provisions of this Constitution, 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: B Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor 2 *** of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules C regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.” D

142Copy pinpoint142. The rule-making function under the proviso to Article 309 is transitional. The President with respect to the posts in connection with the affairs of the Union, and the Governor in connection with the affairs of State shall have the power to make rules under the proviso only until a statute is enacted in this connection. Any rule that is made by the President or the Governor shall be “Subject to the provisions of any such E Act” made by the appropriate legislature. The exercise of power by the President and the Governor under Article 309 does not in any way restrict the power that is otherwise available under Article 309. The exercise of rule making power by the President under Article 309 does not substitute the legislative power granted. F

143Copy pinpoint143. In Tulsiram Patel (supra), a Constitution Bench of this Court held that the appropriate legislature, to enact laws under Article 309, would depend upon the provisions of the Constitution with respect to legislative competence and the division of powers. This Court further held that the rules framed by the President or the Governor under Article G 309 must conform with a statute enacted in exercise of power under Entry 70 of List I and Entry 41 of List II: “51. Which would be the appropriate Legislature to enact laws or the appropriate authority to frame rules would depend upon the provisions of the Constitution with respect H

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A to legislative competence and the division of legislative powers. Thus, for instance, under Entry 70 in List I of the Seventh Schedule to the Constitution, Union Public Services, all-India Services and Union Public Service Commission are subjects which fall within the exclusive legislative field of Parliament, while under Entry 41 in List II of the Seventh Schedule to the Constitution, B State public services and State Public Service Commission fall within the exclusive legislative field of the State Legislatures. The rules framed by the President or the Governor of a State must also, therefore, conform to these legislative powers.” (emphasis supplied) C

144Copy pinpoint144. The above discussion demonstrates that even if the President has made relevant rules in exercise of his power under the proviso to Article 309, the power of NCTD to legislate on “services” is not excluded. Infact in the next section, we shall be dealing with instances of exercise of legislative power by NCTD under Entry 41 of List II, that is, “services”. D

145Copy pinpoint145. In view of the above reasons, we hold that Part XIV is applicable to Union territories as well. M. Exercise of Legislative Power by NCTD on Entry 41

146Copy pinpoint146. It has been argued on behalf of NCTD that numerous laws E have been enacted by the Legislative Assembly of Delhi relating to creation of posts and terms and conditions of service. Reliance was placed upon different state services, such the Delhi Fire Services under the Delhi Fire Service Act 2007, Delhi Commission for Safai Karamcharis Act, 2006, Delhi Minorities Commission Act, 1999, Delhi Finance F Commission Act, 1994, Delhi Lokayukta and UpaLokayukta Act, 1995, Delhi Commission for Women Act, 1994, and Delhi Electricity Reform Act, 2001. It was argued that these statutes which inter alia, create posts and details of salary, was enacted in exercise of the subject referable to Entry 41 of the State List.

147Copy pinpoint147. However, Justice Ashok Bhushan in the 2019 split verdict G rejected this argument related to Delhi Fire Service Act 2007, as he held that the statute falls under Entry 5 of the State List and not under Entry 41 of the State List. Justice Bhushan held: “208. We may first notice that the word “services” used in the Act has been used in a manner of providing services for fire H

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prevention and fire safety measures. The word “services” has not been used in a sense of constitution of a service. It is to be noted that fire service is a municipal function performed by local authority. Delhi Municipal Council Act, 1957 contains various provisions dealing with prevention of fire etc. Further fire services is a municipal function falling within the domain of municipalities, which has been recognised in the Constitution of India. Article 243(W) of the Constitution deals with functions of the municipalities in relation to matters listed in the 12th Schedule. Entry 7 of the 12th Schedule provides for “Fire Services” as one of the functions of the municipalities. The nature of the enactment and the provisions clearly indicate that Delhi Fire Services Act C falls under Entry 5 of List II and not under Entry 41 of List II.”

148Copy pinpoint148. Article 243W of the Constitution read with Entry 7 of the Twelfth Schedule provides that the legislature of a state may, by law, endow on the municipalities responsibilities with respect to ‘fire services’. Under Entry 5 of List II, an appropriate legislature may enact a law related to ‘local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, districts boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration’.

149Copy pinpoint149. The test to determine whether a legislation creates a service under Entry 41 or not has been laid down by this Court. In the Constitution Bench judgment in State of Gujarat v. Raman Law Keshav Lal,48 while holding that Panchayat Service contemplated under Section 203(1) of the Gujarat Panchayats Act 1961 was a State civil service, it was held that the administration of a service under a State broadly involves the following functions: (i) the organisation of the Civil Service and the determination of the remuneration, conditions of service, expenses and allowances of persons serving in it; (ii) the manner of admitting persons to the civil service; (iii) exercise of disciplinary control over members of the service and power to transfer, suspend, remove or dismiss them in public interest as and when occasion to do so arises. This Court noted: G “21. […] In the instant case, we feel that there is no compelling reason to hold that the Panchayat Service is not a Civil Service under the State. It is seen that further recruitment of candidates

48 (1980) 4 SCC 653 H

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A to the Panchayat Service has to be made by the Gujarat Panchayat Service Selection Board constituted by the State Government. Entry 41 of List II of the Seventh Schedule to the Constitution, as mentioned earlier, also refers to State Public Services suggesting that there can be more than one State Public Service under the State…... We have indeed a B number of such services under a State e.g. police service, educational service, revenue service etc. State Public Services may be constituted or established either by a law made by the State legislature or by rules made under the proviso to Article 309 of the Constitution or even by an executive C order made by the State Government in exercise of its powers under Article 162 of the Constitution. The recruitment and conditions of service of the officers and servants of the State Government may also be regulated by statute, rules or executive orders. The administration of a service under a State involves broadly the following functions: (i) the organisation of the D Civil Service and the determination of the remuneration, conditions of service, expenses and allowances of persons serving in it; (ii) the manner of admitting persons to civil service; (iii) exercise of disciplinary control over members of the service and power to transfer, suspend, remove or dismiss them in the public interest as and when occasion to do so arises. […]” (emphasis supplied)

150Copy pinpoint150. Thus, to determine whether the power to enact a legislation is traceable to Entry 41 of the State List, it is necessary to examine whether that legislation contains provisions regulating the recruitment, conditions of service, and exercise of control including power to transfer, and suspend. It is with this approach in mind that we need to examine the Delhi Fire Service Act 2007.

151Copy pinpoint151. The Delhi Fire Service Act 200749 was enacted by the G Legislative Assembly of NCTD to provide for “maintenance of a fire service and to make more effective provisions for the fire safety prevention and fire safety measures in certain buildings and premises in the National Capital Territory of Delhi and the matters connected

49 H Delhi Fire Service Act 2007, Delhi Act 2 of 2009

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therewith.” The Delhi Fire Service Act 2007 is a comprehensive Act A which replaced three legislations or, as the case may be, rules which operated in NCTD: a. The United Provinces Fire Safety Act 1944, as extended to Delhi. The Act was notified by the Governor of the United Provinces in exercise of the powers assumed by him under B a Proclamation issued under Section 93 of the Government of India Act 1935. The Act was enacted to constitute and maintain a provincial fire service in the United Provinces for staffing and operating the fire brigades; b. The Delhi Fire Service (Subordinate Services) Rules 1945 C framed under Section 241(1)(b) and Section 241(2)(b) of the Government of India Act 193550; and c. The Delhi Fire Prevention and Fire Safety Act 1986. The Act which was enacted by Parliament focused on making effective provisions for fire prevention and fire safety D measures in the Union Territory of Delhi. It did not contain any provision related to maintenance of a ‘fire service’.

152Copy pinpoint152. The purpose of the Delhi Fire Service Act 2007 is to provide for “maintenance of a fire service”. Section 2(l) defines ‘Fire Service’ to mean the Delhi Fire Service constituted under Section 5 of the Act. E Section 5 stipulates the constitution of a fire service. In terms of Section 5(a), the Fire Service shall consist of such numbers in several ranks and have such organization and such powers, functions and duties as the Government may determine. In terms of Section 5(b), the recruitment to, and the pay, allowances and all other conditions of service of the members of the Fire Service shall be such as may be prescribed. Section F 3 stipulates that there would be one fire service for the whole of Delhi and all officers and subordinate ranks of the fire service shall be liable for posting to any branch of the Fire Service. Chapter II of the Act provides for the organization, superintendence, control and maintenance of the fire service. Chapter III provides for the control and discipline of G the fire service.

153Copy pinpoint153. The Delhi Fire Service is constituted under the Delhi Fire Service Act 2007, enacted by the Legislative Assembly of NCTD.

50 Section 65, The Delhi Fire Service Act 2007 H

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A Provisions relating to administration, recruitment and conditions of service have been provided in the framework of the Act. In terms of Section 4, the superintendence of, and control over, the Fire Service vests in the Government, as defined in the Act. Section 6 provides for the classification of posts of the Fire Service into Group A, B, C and D posts. Section 7 stipulates that the Government shall make appointments B to any Group A or Group B posts after consultation with the Union Public Service Commission. Section 8 stipulates the appointment of a Director of the Delhi Fire Service for the direction and supervision of the Fire Service in Delhi. Section 14 stipulates that the Central Civil Services (Conduct) Rules 1964 and the Central Civil Services (Classification, C Control and Appeals) Rules 1965 and the Central Civil Services (Pension) Rules 1972, as amended, shall be extended mutatis mutandis to all employees of the Delhi Fire Service.

154Copy pinpoint154. Furthermore, under the powers conferred by Section 63 of the Act, the Lieutenant Governor has notified the Delhi Fire Service D Rules 2019, regulating the establishment, organization, and management on the Services. Rule 9 provides that the recruitment to various ranks in Fire Service shall be made in accordance with the recruitment rules notified by the Government. Rule 10 provides that the pay and allowances for various ranks in Fire Service shall be in accordance with the recommendations of the Pay Commission or any other authority as may be appointed by the Government.

155Copy pinpoint155. On an analysis of the provisions of the Delhi Fire Service Act 2007 and the Rules of 2019, it is clear that the statute includes posts, their recruitment process, salary and allowance, disciplinary power and control – all of which are constituents of a “service” under Entry 41 of the State List, as held in Raman Law Keshav Lal (supra). Thus, the Delhi Fire Service Act 2007 was enacted by the Legislative Assembly of NCTD in exercise of its power under Entry 41 of the State List.

156Copy pinpoint156. NCTD has already exercised its legislative power relating to Entry 41 of the State List. However, the contours of “services” are very broad, and may be related to even “public order”, “police”, and “land” – which are outside the legislative domain and executive domain of NCTD. The question that then emerges is what “services” are within the domain of NCTD. H