Judicial contradiction in Delhi Chief Secretary’s extension 

The provisions related to appointment and removal of the Chief Secretary in India vary slightly between the central government and state governments, but generally follow these principles:

Appointment

• Central Government: The Chief Secretary is appointed by the President, on the recommendation of the Appointments Committee of the Cabinet (ACC) headed by the Prime Minister. The committee considers a panel of candidates shortlisted by the Department of Personnel and Training (DoPT).
• State Government: The Chief Secretary is appointed by the Governor, on the recommendation of the Chief Minister. However, the Chief Minister usually consults with the Union Public Service Commission (UPSC) and the DoPT before making a decision. There may also be a state-specific selection process outlined in the relevant rules or acts.

Eligibility

• Both in the central and state governments, the Chief Secretary must be an officer of the Indian Administrative Service (IAS) with a minimum of 30 years of service.
• The officer should have a good track record and be considered fit for the highest position in the civil service.

Removal

• The Chief Secretary can be removed before the completion of their tenure for the following reasons:
  • Misconduct: This includes corruption, inefficiency, or violation of service rules.
  • Public Interest: If the government believes that removing the Chief Secretary is in the public interest, they may do so without giving any specific reasons.
  • Incapacitation: If the Chief Secretary is no longer able to perform their duties due to illness or other reasons.
• The removal process usually involves an inquiry or investigation, followed by a decision by the President/Governor, usually on the recommendation of the ACC/Chief Minister.

The National Capital Territory of Delhi (Amendment) Act 2023, passed in August 2023, is a highly contentious piece of legislation that has ignited a complex power struggle between the central government and the elected government of Delhi. Understanding the key provisions and ongoing debates surrounding the Act is crucial to grasping the political dynamics in the national capital.

Key Provisions

• National Capital Civil Services Authority (NCCSA): The Act establishes the NCCSA, consisting of the Chief Minister, Chief Secretary, and Principal Home Secretary of Delhi. However, the final say on key decisions like transfers and postings of officials, and disciplinary matters, rests with the Lieutenant Governor (LG), the central government's representative in Delhi.
• LG's Powers: The Act significantly expands the LG's powers by granting him/her sole discretion in crucial matters like summoning, proroguing, and dissolving the Delhi Legislative Assembly.
• Control over Services: The Act seeks to dilute the Delhi government's control over services, despite a Supreme Court verdict in May 2023 upholding the elected government's authority in this area.

• Erosion of Delhi's Autonomy: Critics argue that the Act undermines the democratically elected government of Delhi, effectively reducing it to a puppet under the LG's control. This, they say, is a severe blow to federalism and democratic principles.
• Central Overreach: The Act is seen as an attempt by the central government to exercise undue control over Delhi's administration, infringing upon the powers granted to the elected government by the Constitution.
• Constitutional Validity: The Act's legality itself is under challenge in the Supreme Court, raising concerns about its potential violation of constitutional principles.

4. Passage of the Amendment Act

The Government of National Capital Territory of Delhi (Amendment) Act 2023 faced a challenge from the Delhi government, yet it was not stayed by the courts, assuming constitutionality. This Act aimed to counter specific aspects of the Services judgment from May 11, 2023, which asserted that, under Article 239AA of the Constitution, the elected Delhi government has authority over services in Delhi. The Services judgment, delivered by a five-judge Constitution Bench, explicitly stated that references to the "state government" in the relevant All India Rules (AIR) or Joint Cadre Rules (JCR) related to Delhi would mean the Government of Delhi.

Impact of the Services Judgment

According to the Services judgment, the Delhi government's recommendation was imperative for extending the Chief Secretary's tenure under Rule 16 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958. The ruling maintained that the government's control over services dictated the selection of its prime servant, the Chief Secretary.

Exception for the Chief Secretary

The Supreme Court, however, created an exception for the Chief Secretary of Delhi, asserting that he is uniquely positioned compared to other officers under the AIR or JCR, thus not bound by the Services judgment. This exception suggests that if the government indeed controls services, its preference should prevail in appointing the Chief Secretary.

Despite the Court's prior reasoning and constitutional logic, the order issued on November 29, 2023, allows the Union Government to unilaterally extend the incumbent Delhi Chief Secretary's tenure, disregarding the opposition from the Delhi Government. This decision appears to contradict the Court's earlier stance and raises questions about the consistency of its legal interpretations.

5. Alleged Conflict of Interest

Even if the stringent requirement of a recommendation from the Government of National Capital Territory of Delhi does not strictly bind the Delhi Chief Secretary, considering his control over certain matters reserved for the Union Government, other prerequisites for the extension of his tenure are embedded in the rule. The rule necessitates the extension to be made "with full justification" and "in public interest." Currently under investigation are serious allegations of conflict of interest against the incumbent Chief Secretary, leading the Chief Minister to advocate for his immediate removal. In such a scenario, where the Chief Secretary has lost the confidence of the Government of National Capital Territory of Delhi, questions regarding "full justification" or "public interest" do not even come into play.

Role of Chief Secretary and Royappa Case

The role of a Chief Secretary in the government was initially outlined in the Royappa case by a five-judge Bench decision of the Supreme Court. This ruling, emphasizing the Chief Secretary's significant role as the "lynchpin in the administration" requiring a rapport with the Chief Minister, is notably disregarded in the recent order. The Court, however, avoids a definitive stance on the application of Royappa to the Chief Secretary's matter, stating that this determination will be made when the Court hears the challenge to the constitutional validity of the Government of National Capital Territory of Delhi (Amendment) Act, 2023. Despite sidestepping Royappa on this count, the Court selectively references observations from Royappa, asserting that the Chief Secretary must adhere to the directions of the elected government in matters within their executive competence.

Court's Failure to Acknowledge Flaw in Legal Position

The Court proceeds to decide the matter based on the "position of law as it exists today," yet fails to recognize that the 2023 amendment does not exclude the application of the Royappa case. Royappa, therefore, remains the "position of law as it exists today." This oversight is evident as the Court's order does not rely on the 2023 amendment, as it lacks provisions related to the appointment or extension of the Delhi Chief Secretary's tenure.

6. Delhi Government's Position on Appointment

The Delhi government did not advocate for the complete divestment of the Union Government's power to appoint the Delhi Chief Secretary. Instead, it proposed a collaborative appointment process involving both governments. However, the Supreme Court incorrectly asserted that when making a reference to the Union Government for the Chief Secretary's appointment, the Lt. Governor acts solely at his discretion. While acknowledging the Chief Secretary's involvement in three subjects reserved for the Union Government, the Court overlooked his role in more than 100 other subjects within the competence of the Government of National Capital Territory of Delhi.

Flawed Reasoning on Chief Secretary's Role

Despite the Court's exhaustive explanation in the Services judgment on the necessity of the Delhi government's control over services for proper democratic functioning, it failed to recognize the broader implications. The Chief Secretary, when losing the confidence of the elected government, disrupts the chain of accountability between the people, their representatives, the Council of Ministers, and the bureaucracy. This breakdown is not a one-time occurrence; it perpetuates distrust in all governance matters between the elected government and the bureaucracy.

Challenges to the Court's Stance

In the Services case, the Supreme Court faced a less complex challenge than it encounters today. Every service-related matter the Court now addresses becomes a test of its own stance, reasoning, and convictions laid out in Royappa and Services. The Court's approval of the unilateral extension of Delhi's Chief Secretary's tenure not only deviates from constitutional logic but also contradicts its past wisdom that had bestowed meaning and significant value upon that constitutional interpretation.