GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA

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[DR. DHANANJAYA Y CHANDRACHUD, CJI]

N. “Services” and NCTD A

157Copy pinpoint157. Now that we have held that NCTD has legislative and executive power with respect to “services” under Entry 41, a natural question that arises is as to the extent of control of NCTD over “services”. The question becomes pertinent because the three entries (public order, police, land), which are excluded from the scope of NCTD’s legislative B power, also have some relation with “services”. This Court must create a distinction between “services” to be controlled by NCTD and the Union in relation to NCTD. The distinction must be drawn keeping in mind the ambit of legislative and executive power conferred upon NCTD by the Constitution, and the principles of constitutional governance for NCTD laid down in the 2018 Constitution Bench judgment. C

158Copy pinpoint158. This Court has laid down that the scope of an Entry in the Seventh Schedule needs to be read widely. In IK Saksena v. State of Madhya Pradesh51, a four judge Bench of this Court held that the entries in Schedule VII have to be read in their widest possible amplitude. The Bench held that the area of legislative competence defined by Entry D 41 is far more comprehensive than that covered by Article 309: “32. It is well settled that the entries in these legislative lists in Schedule VII are to be construed in their widest possible amplitude, and each general word used in such entries must be held to comprehend ancillary or subsidiary matters. Thus considered, it E is clear that the scope of Entry 41 is wider than the matter of regulating the recruitment and conditions of service of public servants under Article 309. The area of legislative competence defined by Entry 41 is far more comprehensive than that covered by the proviso to Article 309.” F (emphasis added)

159Copy pinpoint159. But, in our context, we may not be able to read Entry 41 in relation to NCTD in the widest possible sense because all entries in List II (including Entry 41) need to be harmonized with the limitation laid down in Article 239AA(3)(a) on NCTD’s legislative and executive power G by excluding matters related to ‘public order’, ‘police’, and ‘land’.

160Copy pinpoint160. The legislative and executive power of NCTD over Entry 41 shall not extend over to services related to “public order”, “police”, and 51 (1976) 4 SCC 750 H

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A “land”. However, legislative and executive power over services such as Indian Administrative Services, or Joint Cadre services, which are relevant for the implementation of policies and vision of NCTD in terms of day-to-day administration of the region shall lie with NCTD. Officers thereunder may be serving in NCTD, even if they were not recruited by NCTD. In such a scenario, it would be relevant to refer, as an example, to some of the Rules, which clearly demarcate the control of All India or Joint-Cadre services between the Union and the States. NCTD, similar to other States, also represents the representative form of government. The involvement of the Union of India in the administration of NCTD is limited by constitutional provisions, and any further expansion would be contrary to the constitutional scheme of governance.

161Copy pinpoint161. We shall take the example of the Indian Administrative Service (Cadre) Rules, 1954, which deal with the posting of IAS Officers. Rule 2(a) defines ‘cadre officer’ to mean a member of IAS. Rule 2(b) defines ‘Cadre post’ as any post specified under item I of each cadre in the schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955. Rule 2(c) defines ‘State’ to mean a State specified in the First Schedule of the Constitution and includes a Union Territory. Rule 2(d) defines ‘State Government concerned’, in relation to a Joint cadre, to mean the Joint Cadre Authority. The constitution and composition of a ‘Joint Cadre Authority’ is understood with reference to the All India E Services (Joint Cadre) Rules 1972. The 1972 Rules apply to a “Joint Cadre constituted for any group of States other than the Joint Cadre of Union Territories.”52 Rule 3 of the IAS (Cadre) Rules 1954 provides for the constitution of cadres for each State or group of States “as a ‘State Cadre’ or, as the case may be, a ‘Joint Cadre’”. Rule 5 empowers the F Central Government to allocate cadre officers to various cadres. In terms of Rule 5(1), the allocation of cadre officers to the various cadres shall be made by the Central Government in consultation with the State Government or the State Government concerned. Rule 7 stipulates that all appointments to cadre posts shall be made “on the recommendation of the Civil Services Board” — by the State Government “in the case of G a state cadre”, and by the State Government concerned, as defined in Rule 2(d), “in the case of a joint cadre”. Under Rule 11A, the “Government of that State” is provided with powers to take decisions under Rule 7 (and other mentioned rules) in relation to the members of the Joint Cadre

52 H Section 1(i), All India Services (Joint Cadre) Rules 1972

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[DR. DHANANJAYA Y CHANDRACHUD, CJI]

Service “serving in connection with the affairs of any of the Constituent A States”. A combined reading of Rules 2, 7, and 11A indicates that the postings within the State Cadre as well as Joint Cadre of a Constituent State shall be made by the “Government of that State”, that is, by the duly elected government. In our case, it shall be the Government of NCTD. We accordingly hold that references to “State Government” in relevant Rules of All India Services or Joint Cadre Services, of which NCTD is a part or which are in relation to NCTD, shall mean the Government of NCTD.

162Copy pinpoint162. We reiterate that in light of Article 239AA and the 2018 Constitution Bench judgment, the Lieutenant Governor is bound by the aid and advice of the Council of Ministers of NCTD in relation to matters within the legislative scope of NCTD. As we have held that NCTD has legislative power over “services” (excluding ‘public order’, ‘police’, and ‘land’) under Entry 41 in List II, the Lieutenant Governor shall be bound by the decisions of GNCTD on services, as explained above. To clarify, any reference to “Lieutenant Governor” over services (excluding services related to ‘public order’, ‘police’ and ‘land’) in relevant Rules shall mean Lieutenant Governor acting on behalf of GNCTD.

163Copy pinpoint163. The division of administrative powers between the Union and the NCTD as explained in this section must be respected. O. Conclusion E

164Copy pinpoint164. In view of the discussion above, the following are our conclusions: a. There does not exist a homogeneous class of Union Territories with similar governance structures; F b. NCTD is not similar to other Union Territories. By virtue of Article 239AA, NCTD is accorded a “sui generis” status, setting it apart from other Union Territories; c. The Legislative Assembly of NCTD has competence over entries in List II and List III except for the expressly G excluded entries of List II. In addition to the Entries in List I, Parliament has legislative competence over all matters in List II and List III in relation to NCTD, including the entries which have been kept out of the legislative domain of NCTD by virtue of Article 239AA(3)(a); H

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A d. The executive power of NCTD is co-extensive with its legislative power, that is, it shall extend to all matters with respect to which it has the power to legislate; e. The Union of India has executive power only over the three entries in List II over which NCTD does not have legislative B competence; f. The executive power of NCTD with respect to entries in List II and List III shall be subject to the executive power expressly conferred upon the Union by the Constitution or by a law enacted by Parliament; C g. 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; D h. With reference to the phrase “Subject to the provisions of this Constitution” in Article 239AA(3), the legislative power of NCTD is to be guided, and not just limited, by the broader principles and provisions of the Constitution; and i. NCTD has legislative and executive power over “Services”, E that is, Entry 41 of List II of the Seventh Schedule because: (I) The definition of State under Section 3(58) of the General Clauses Act 1897 applies to the term “State” in Part XIV of the Constitution. Thus, Part XIV is applicable to Union territories; and F (II) The exercise of rule-making power under the proviso to Article 309 does not oust the legislative power of the appropriate authority to make laws over Entry 41 of the State List.

165Copy pinpoint165. We have answered the issue referred to this Constitution G Bench by the order dated 6 May 2022. The Registry shall place the papers of this appeal before the Regular Bench for disposal after obtaining the directions of the Chief Justice of India on the administrative side.

Bibhuti Bhushan Bose Reference answered. H (Assisted by : Rahul Rathi, LCRA)