# GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA

- **Citation:** 2023 INSC 517
- **Court:** Supreme Court of India
- **Decided:** 2023-05-11
- **Case number:** Civil Appeal No. 2357 of 2017
- **Bench:** Dr. Dhananjaya Y Chandrachud, M R Shah, Krishna Murari, Hima Kohli, Pamidighantam Sri Narasimha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/government-of-nct-of-delhi-v-union-of-india-37879
- **Pages:** 90

## Headnote

Constitution of India: Seventh Schedule - List II, Entry 41 -
Art.239AA(3(a)) - NCT Delhi - Control Over Services - Distribution
of Power Between Union and State - IAS (Cadre) Rules, 1954 -
The Indian Administrative Service (Fixation of Cadre Strength)
Regulations, 1955 - r.2(c) - All India Services (Joint Cadre) Rules
1972 - Union Ministry of Home Affairs issued a notification dated
21 May 2015 which provided that the Lieutenant Governor of NCT
Delhi shall exercise control over "services", in addition to "public
order", "police", and "land" - Notification was challenged before
the High Court which in turn upheld the constitutionality of the
notification - High Court declared that "the matters connected with
'Services' fall outside the purview of the Legislative Assembly of
NCT of Delhi" - On appeal being filed, two judge bench of this
court delivered a split verdict - Hence, the question came for
consideration before the Constitution Bench - Held: The references
to "State Government" in relevant Rules of All India Services or
Joint Cadre Services, of which National Capital Territory of Delhi
(NCTD) is a part or which are in relation to NCTD, shall mean the
Government of NCTD - It is evident that the Legislative Assembly
of NCTD does not exercise exclusive legislative powers over all the
entries in the State List - It is only in a demarcated constitutional
sphere that it is able to exercise its legislative power - It is the
responsibility of the government of NCTD to give expression to the
will of the people of Delhi who elected it - Therefore, the ideal
conclusion would be that Government of National Capital Territory
of Delhi (GNCTD) ought to have control over "services", subject
to exclusion of subjects which are out of its legislative domain -
NCTD has already exercised its legislative power relating to Entry
41 of the State List - NCTD has legislative and executive power
[2023] 9 S.C.R. 493 : 2023 INSC 517
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with respect to "services" under Entry 41 - The legislative and
executive power of control of NCTD over Entry 41 shall not extend
over to services related to "public order", "police", and "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 - 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 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 - 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.
Constitution of India: Article 239AA, 239AA(3(b)) &
239AA(7) - Interpretation of phrase "insofar as such matter is
applicable to Union Territories" in Art.239AA - Held: The intent
and purpose of Article 239AA(3(b)) and Article 239AA(7) is to confer
an expanded legislative competence upon Parliament, when it comes
to Government of National Capital Territory of Delhi (GNCTD)
clearly since it is the capital of the country and therefore, must be
dealt with different considerations - To interpret the phrase "insofar
as any such matter is applicable to Union territories" in a restrictive
manner would limit the legislative power of the elected members of
the assembly - Thus, the legislative competence of National Capital
Territory of Delhi (NCTD) must be interpreted to give full impetus
to the will of the electorate - The executive power of NCTD is coextensive with its legislative powe

## Text

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GOVERNMENT OF NCT OF DELHI
v.
UNION OF INDIA
(Civil Appeal No. 2357 of 2017)
MAY 11, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI, M R SHAH,
KRISHNA MURARI, HIMA KOHLI AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Constitution of India: Seventh Schedule - List II, Entry 41 -
Art.239AA(3(a)) - NCT Delhi - Control Over Services - Distribution
of Power Between Union and State - IAS (Cadre) Rules, 1954 -
The Indian Administrative Service (Fixation of Cadre Strength)
Regulations, 1955 - r.2(c) - All India Services (Joint Cadre) Rules
1972 - Union Ministry of Home Affairs issued a notification dated
21 May 2015 which provided that the Lieutenant Governor of NCT
Delhi shall exercise control over "services", in addition to "public
order", "police", and "land" - Notification was challenged before
the High Court which in turn upheld the constitutionality of the
notification - High Court declared that "the matters connected with
'Services' fall outside the purview of the Legislative Assembly of
NCT of Delhi" - On appeal being filed, two judge bench of this
court delivered a split verdict - Hence, the question came for
consideration before the Constitution Bench - Held: The references
to "State Government" in relevant Rules of All India Services or
Joint Cadre Services, of which National Capital Territory of Delhi
(NCTD) is a part or which are in relation to NCTD, shall mean the
Government of NCTD - It is evident that the Legislative Assembly
of NCTD does not exercise exclusive legislative powers over all the
entries in the State List - It is only in a demarcated constitutional
sphere that it is able to exercise its legislative power - It is the
responsibility of the government of NCTD to give expression to the
will of the people of Delhi who elected it - Therefore, the ideal
conclusion would be that Government of National Capital Territory
of Delhi (GNCTD) ought to have control over "services", subject
to exclusion of subjects which are out of its legislative domain -
NCTD has already exercised its legislative power relating to Entry
41 of the State List - NCTD has legislative and executive power
[2023] 9 S.C.R. 493 : 2023 INSC 517
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with respect to "services" under Entry 41 - The legislative and
executive power of control of NCTD over Entry 41 shall not extend
over to services related to "public order", "police", and "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 - 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 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 - 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.
Constitution of India: Article 239AA, 239AA(3(b)) &
239AA(7) - Interpretation of phrase "insofar as such matter is
applicable to Union Territories" in Art.239AA - Held: The intent
and purpose of Article 239AA(3(b)) and Article 239AA(7) is to confer
an expanded legislative competence upon Parliament, when it comes
to Government of National Capital Territory of Delhi (GNCTD)
clearly since it is the capital of the country and therefore, must be
dealt with different considerations - To interpret the phrase "insofar
as any such matter is applicable to Union territories" in a restrictive
manner would limit the legislative power of the elected members of
the assembly - Thus, the legislative competence of National Capital
Territory of Delhi (NCTD) must be interpreted to give full impetus
to the will of the electorate - The executive power of NCTD is coextensive with its legislative power, that is, it shall extend to all
matters with respect to which it has the power to legislate - 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
- Union Territories - NCT of Delhi.
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Constitution of India - Art. 239AA - Phrase "Subject to the
provisions of this Constitution" in Article 239AA(3) - Held: With
reference to the phrase "Subject to the provisions of this
Constitution" in Article 239AA(3), the legislative power of National
Capital Territory of Delhi (NCTD) is to be guided, and not just
limited, by the broader principles and provisions of the Constitution.
Constitution of India - Federalism and Democracy -
Cooperative Federalism - Held: Our model of federalism expects a
sense of cooperation between the Union at the centre, and the
regional constitutionally recognised democratic units - The Union
and National Capital Territory of Delhi (NCTD) need to cooperate
in a similar manner to the Union and the States - The interpretation
of the Constitution must enhance the spirit of federalism and
democracy together - In the spirit of cooperative federalism, the
Union of India must 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".
Constitution of India - Interpretation - Held: The design of
the Constitution is such that it accommodates the interests of different
regions - While providing a larger constitutional umbrella to
different states and Union territories, it preserves the local
aspirations of different regions - "Unity in diversity" is not only
used in common parlance, but is also embedded in our constitutional
structure - The interpretation of the Constitution must give
substantive weight to the underlying principles.
Constitution of India: Part XIV - Arts. 308 & 367 - General
Clause Act, 1897 - s.3(58) - Inclusion of Union Territory - In the
Definition of State - Whether Union Territory is a State for the
Purpose of Part XIV of Constitution of India - Held: s.3(58) of the
General Clauses Act, by virtue of Art.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 - There is
nothing in the subject or context of Part XIV of the Constitution
which would exclude its application to Union territories - Rather,
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the application of the inclusive definition of "State" as provided
under Clause 3(58) would render the constitutional scheme
envisaged for Union Territories workable.
Union Territories - There does not exist a homogeneous class
of Union Territories with similar governance structures.
Union Territories - Constitution of India - Art. 239AA -
National Capital Territory of Delhi (NCTD) - Held: 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 - The Legislative Assembly of NCTD has competence
over entries in List II and List III except for the expressly 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).
Union Territories - National Capital Territory of Delhi
(NCTD) - Executive power of NCTD - Held: 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
- The Union of India has executive power only over the three entries
in List II over which NCTD does not have legislative competence -
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.
Union Territories - National Capital Territory of Delhi
(NCTD) - Legislative and executive power over "Services" - Held:
NCTD has legislative and executive power over "Services", 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 (ii) The exercise of rulemaking 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 - Constitution of India - Art. 309 and
Seventh Schedule, List II, Entry 41.
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Answering the reference, the Court
HELD: 1.1 The legislative and executive power of NCTD
over Entry 41 shall not extend over to services related to "public
order", "police", and "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.
[Para 160][579-H; 580-A-C]
1.2 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 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." 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 Central
Government to allocate cadre officers to various cadres. In terms
of Rule 5(1), the allocation of cadre officers to the various cadres
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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 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
Service "serving in connection with the affairs of any of the
Constituent 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. It is accordingly held
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. [Para 161][580-C-H; 581-A-B]
1.3 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 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.
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. [Para 162][581-C-D]
2. In view of the discussion above, the conclusions are as
follows: (a) There does not exist a homogeneous class of Union
Territories with similar governance structures; (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
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has competence over entries in List II and List III except for
the expressly 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); (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
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; (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; (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", 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 (ii) The exercise of rulemaking 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. [Para 164][581-E-H; 582-A-F]
Shiv Kirpal Singh v. VV Giri AIR 1970 SC 2097 : [1971]
2 SCR 197 - held per incuriam.
NDMC v. State of Punjab 1997 (7) SCC 339 : [1996]
10 Suppl. SCR 472; SR Bommai v.Union of India (1994)
3 SCC 1 : [1994] 2 SCR 644 - followed.
Advance Insurance Corporation Limited v. Gurudasmal
(1970) 1 SCC 633 : [1970] 3 SCR 881; T.M.Kanniyan
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v. CIT [1968] 2 SCR 103; Rajendra Diwan v. Pradeep
Kumar Ranibala [2019] 17 SCR 1089; RS Nayak v. AR
Antulay (1984) 2 SCC 183 : [1984] 2 SCR 495; Union
of India v. Prem Kumar Jain (1976) 3 SCC 473 : [1976]
Suppl. SCR 166 - relied on.
IK Saksena v. State of Madhya Pradesh (1976) 4 SCC
750 : [1976] 3 SCR 237; Union of India v. Tulsiram
Patel (1985) 3 SCC 398 : [1985] 2 Suppl. SCR 131;
Krishna Kumar Singh v. State of Bihar (2017) 3 SCC 1
: [2017] 5 SCR 160; Amarinder Singh v. Punjab Vidhan
Sabha (2010) 6 SCC 113 : [2010] 4 SCR 1105;
Secretary, Jaipur Development Authority v. Daulat Mal
Jain (1997) 1 SCC 35 : [1996] 6 Suppl. SCR 584; SK
Gupta v. KP Jain (1979) 3 SCC 54 : [1979] 2
SCR 1184; Ichchapur Industrial Coop. Society
Ltd. v. Competent Authority, Oil & Natural Gas
Commission (1997) 2 SCC 42 : [ 1996] 10 Suppl. SCR
416; Ratnaprova Devi v. State of Orissa [1964] 6 SCR
301; State of Bihar v. Maharajadhiraja Sir Kameshwar
Singh [1952] SCR 889; State of Haryana v. Chanan
Mal (1977) 1 SCC 340 : [1976] 3 SCR 688; A.B.
Krishna v. State of Karnataka (1998) 3 SCC 495 :
[1998] 1 SCR 157; B.S. Vadera v. Union of India [1968]
3 SCR 575 and State of Gujarat v. Raman Law Keshav
Lal (1980) 4 SCC 653 : [1981] 1 SCR 144 - referred
to.
Case Law Reference
[1976] Suppl. SCR 166
relied on
Para 8(f)
[1970] 3 SCR 881
relied on
Para 54
[1971] 2 SCR 197
held per incuriam
Para 56
[1968] 2 SCR 103
relied on
Para 59
[1996] 10 Suppl. SCR 472
followed
Para 60
[2019] 17 SCR 1089
relied on
Para 66
[1994] 2 SCR 644
followed
Para 74
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[1985] 2 Suppl. SCR 131
referred to
Para 102
[2017] 5 SCR 160
referred to
Para 102
[2010] 4 SCR 1105
referred to
Para 102
[1996] 6 Suppl. SCR 584
referred to
Para 104
[1984] 2 SCR 495
relied on
Para 119
[1979] 2 SCR 1184
referred to
Para 132
[1996] 10 Suppl. SCR 416
referred to
Para 132
[1964] 6 SCR 301
referred to
Para 132
[1952] SCR 889
referred to
Para 139
[1976] 3 SCR 688
referred to
Para 140
[1998] 1 SCR 157
referred to
Para 141
[1968] 3 SCR 575
referred to
Para 141
[1981] 1 SCR 144
referred to
Para 149
[1976] 3 SCR 237
referred to
Para 158
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2357
of 2017.
From the Judgment and Order dated 04.08.2016 of the High Court
of Delhi at New Delhi in W.P. (C) No. 5888 of 2015.
Dr. A.M. Singhvi, Rahul Mehra, Dr. Abhishek Manu Singhvi, Rahul
Mehra, Sr. Advs., Shadan Farasat, Chirag M. Shroff, Prateek Chaddha,
Chaitanya Gosain, Anand Thumbayil, Shailendra P. Singh, Sushant Mehra,
Shadan Farasat, Prateek Chadha, Amit Bhandari, Gautam Bhatia, Shourya
Dasgupta, Ms. Hrishika Jain, Aman Naqvi, Siddharth Seem, Ms. Ashima,
Ms. Mreganka Kukreja, Shadan Farasat, Advs. for the Appellant.
Tushar Mehta, SG, Sanjay Jain, ASG, R. Balasubramanian, Sr.
Adv., Rajat Nair, Kanu Agarwal, Saurabh Mishra, Rajesh Kumar Singh,
Padmesh Mishra, Arkaj Kumar, Ms. Tanya Aggarwal, Gaurang Bhushan,
Ms. Harshita Sukhija, Shivam Shukla, Nakul Rai, Ms. Ashima Gupta,
Arvind Kumar Sharma, Gagan Gupta, K.R. Sasiprabhu, Advs. for the
Respondent.
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The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, CJI
A.
The Reference ........................................................................ 4*
B.
Submissions.............................................................................11*
C.
Interpretation of Article 239AA: The 2018 Constitution Bench
judgment ................................................................................ 15*
(a)
Delhi: A Sui Generis model.......................................... 15*
(b)
Legislative and executive power of the Legislative Assembly
of NCTD ..................................................................... 19*
(c)
"Insofar as any such matter is applicable to
Union Territories"........................................................ 23*
D.
The 'class' of Union territories.............................................. 30*
E.
Maintaining the balance of local interest and national interest. 35*
F.
Inclusive interpretation of "insofar as any such matter is
applicable to Union territories" .............................................. 38*
G.
"Subject to the provisions": A limitation? ............................... 47*
H.
The Constitution is not Unitary .............................................. 50*
I.
Scope of Legislative and Executive Power between the Union
and NCTD ............................................................................. 56*
J.
Triple chain of accountability: Civil Servants in a Cabinet Form
of Government....................................................................... 68*
(A)
Role of civil services in a modern government ........... 68*
(b)
Accountability of civil servants in a Westminster
parliamentary democracy ............................................ 69*
(c)
Accountability of Civil Service Officers in a Federal
Polity............................................................................ 73*
K.
Balakrishnan Committee Report ........................................... 75*
L.
Applicability of Part XIV to Union Territories ...................... 80*
(a)
Meaning of "State" for the purpose of Part XIV of the
Constitution .................................................................. 80*
*Ed. Note: Pagination in the Index is as per the original judgment.
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(b)
Omission in Part XIV by the 1956 Constitution
Amendment ................................................................ 87*
(c)
Existence of power and exercise of power ................ 89*
M.
Exercise of Legislative Power by NCTD on Entry 41.......... 93*
N.
"Services" and NCTD .......................................................... 99*
O.
Conclusion ............................................................................103*
A. The Reference
1. This case before us deals with the asymmetric federal model
of governance in India, involving the contest of power between a Union
Territory and the Union Government. The issue is who would have control
over the "services" in the National Capital Territory of Delhi1: the
Government of NCTD2 or the Lieutenant Governor acting on behalf of
the Union Government. The question arose subsequent to a notification3
dated 21 May 2015 issued by the Union Ministry of Home Affairs, which
stated as follows:
"... in accordance with the provisions contained in article 239 and
sub-clause (a) of clause (3) of 239AA, the President hereby directs
that -
subject to his control and further orders, the Lieutenant Governor
of the National Capital Territory of Delhi, shall in respect of matters
connected with 'Public Order', 'Police', 'Land' and 'Services'
as stated hereinabove, exercise the powers and discharge the
functions of the Central Government, to the extent delegated to
him from time to time by the President.
Provided that the Lieutenant Governor of the National Capital
Territory of Delhi may, in his discretion, obtain the views of the
Chief Minister of the National Capital Territory of Delhi in regard
to the matter of 'Services' wherever he deems it appropriate."
The notification provided that the Lieutenant Governor of NCTD
shall exercise control "to the extent delegated to him from time to time
1 "NCTD"
2 "GNCTD"
3 "2015 notification"
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
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by the President" over "services", in addition to "public order", "police",
and "land." The Lieutenant Governor may seek the views of the Chief
Minister of NCTD at his "discretion".
2. "Services" are covered under Entry 41 of the State List of the
Seventh Schedule to the Constitution. The 2015notification excludes Entry
41 of the State List, which has as its subject, "State Public Services;
State Public Services Commission", from the scope of powers of
GNCTD. The notification stipulates that the rationale for excluding
"services" from the ambit of the legislative and executive power of NCTD
is that NCTD does not have its own State public services:
"Further, the Union Territories Cadre consisting of Indian
Administrative Service and Indian Police Service personnel is
common to Union Territories of Delhi, Chandigarh, Andaman and
Nicobar Islands, Lakshadweep, Daman and Diu, Dadra and Nagar
Haveli, Puducherry and States of Arunachal Pradesh, Goa and
Mizoram which is administered by the Central Government through
the Ministry of Home Affairs; and similarly DANICS and DANIPS
are common services catering to the requirement of the Union
Territories of Daman & Diu, Dadra Nagar Haveli, Andaman and
Nicobar Islands, Lakshadweep including the National Capital
Territory of Delhi which is also administered by the Central
Government through the Ministry of Home Affairs. As such, it is
clear that the National Capital Territory of Delhi does not have its
own State Public Services. Thus, 'Services' will fall within this
category.
And whereas it is well established that where there is no legislative
power, there is no executive power since executive power is coextensive with legislative power.
And whereas matters relating to Entries 1, 2 & 18 of the State
List being 'Public Order', 'Police' and 'Land' respectively and
Entries 64, 65 & 66 of that list in so far as they relate to Entries 1,
2 & 18 as also 'Services' fall outside the purview of Legislative
Assembly of the National Capital Territory of Delhi and
consequently the Government of NCT of Delhi will have no
executive power in relation to the above and further that power in
relation to the aforesaid subjects vests exclusively in the President
or his delegate i.e. the Lieutenant Governor of Delhi."
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3. The above notification was assailed through a batch of petitions
before the High Court of Delhi. The validity of the notification was upheld
by the High Court as it declared that "the matters connected with
'Services' fall outside the purview of the Legislative Assembly of NCT
of Delhi."4 On appeal, a two-Judge Bench of this Court was of the opinion
that the matter involved a substantial question of law about the
interpretation of Article 239AA, which deals with "Special provisions
with respect to Delhi", and hence referred the issue of interpretation of
Article 239AA to a Constitution Bench on 15 February 2017.
4. Article 239AA provides as under:
"239-AA. Special provisions with respect to Delhi.-
(1) As from the date of commencement of the Constitution
(Sixty-ninth Amendment) Act, 1991, the Union Territory of Delhi
shall be called the National Capital Territory of Delhi (hereafter
in this Part referred to as the National Capital Territory) and
the Administrator thereof appointed under Article 239 shall be
designated as the Lieutenant Governor.
(2)(a) There shall be a Legislative Assembly for the National
Capital Territory and the seats in such Assembly shall be filled
by Members chosen by direct election from territorial
constituencies in the National Capital Territory.
(b) The total number of seats in the Legislative Assembly, the
number of seats reserved for Scheduled Castes, the division
of the National Capital Territory into territorial constituencies
(including the basis for such division) and all other matters
relating to the functioning of the Legislative Assembly shall be
regulated by law made by Parliament.
(c) The provisions of Articles 324 to 327 and 329 shall apply in
relation to the National Capital Territory, the Legislative
Assembly of the National Capital Territory and the Members
thereof as they apply, in relation to a State, the Legislative
Assembly of a State and the Members thereof respectively;
and any reference in Articles 326 and 329 to "appropriate
legislature" shall be deemed to be a reference to Parliament.
4 Government of National Capital Territory of Delhi v. Union of India ("Delhi High
Court judgment"), (2016) 232 DLT 196.
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
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(3)(a) Subject to the provisions of this Constitution, the
Legislative Assembly shall have power to make laws for the
whole or any part of the National Capital Territory with respect
to any of the matters enumerated in the State List or in the
Concurrent List insofar as any such matter is applicable to
Union Territories except matters with respect to Entries 1, 2
and 18 of the State List and Entries 64, 65 and 66 of that List
insofar as they relate to the said Entries 1, 2 and 18.
(b) Nothing in sub-clause (a) shall derogate from the powers
of Parliament under this Constitution to make laws with respect
to any matter for a Union Territory or any part thereof.
(c) If any provision of a law made by the Legislative Assembly
with respect to any matter is repugnant to any provision of a
law made by Parliament with respect to that matter, whether
passed before or after the law made by the Legislative
Assembly, or of an earlier law, other than a law made by the
Legislative Assembly, then, in either case, the law made by
Parliament, or, as the case may be, such earlier law, shall prevail
and the law made by the Legislative Assembly shall, to the
extent of the repugnancy, be void:
Provided that if any such law made by the Legislative Assembly
has been reserved for the consideration of the President and
has received his assent, such law shall prevail in the National
Capital Territory:
Provided further that nothing in this sub-clause shall prevent
Parliament from enacting at any time any law with respect to
the same matter including a law adding to, amending, varying
or repealing the law so made by the Legislative Assembly.
(4) There shall be a Council of Ministers consisting of not more
than ten per cent of the total number of Members in the
Legislative Assembly, with the Chief Minister at the head to
aid and advise the Lieutenant Governor in the exercise of his
functions in relation to matters with respect to which the
Legislative Assembly has power to make laws, except insofar
as he is, by or under any law, required to act in his discretion:
Provided that in the case of difference of opinion between the
Lieutenant Governor and his Ministers on any matter, the
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Lieutenant Governor shall refer it to the President for decision
and act according to the decision given thereon by the President
and pending such decision it shall be competent for the
Lieutenant Governor in any case where the matter, in his
opinion, is so urgent that it is necessary for him to take immediate
action, to take such action or to give such direction in the matter
as he deems necessary.
(5) The Chief Minister shall be appointed by the President and
the other Ministers shall be appointed by the President on the
advice of the Chief Minister and the Ministers shall hold office
during the pleasure of the President.
(6) The Council of Ministers shall be collectively responsible
to the Legislative Assembly.
(7)(a) Parliament may, by law, make provisions for giving effect
to, or supplementing the provisions contained in the foregoing
clauses and for all matters incidental or consequential thereto.
(b) Any such law as is referred to in sub-clause (a) shall not be
deemed to be an amendment of this Constitution for the
purposes of Article 368 notwithstanding that it contains any
provision which amends or has the effect of amending, this
Constitution.
(8) The provisions of Article 239-B shall, so far as may be,
apply in relation to the National Capital Territory, the Lieutenant
Governor and the Legislative Assembly, as they apply in relation
to the Union Territory of Puducherry, the Administrator and its
legislature, respectively; and any reference in that Article to
"clause (1) of Article 239-A" shall be deemed to be a reference
to this Article or Article 239-AB, as the case may be."
5. The Constitution Bench pronounced its judgment5 on 4 July
2018. The judgment contained three judicial opinions. The opinion of the
majority was authored by Chief Justice Dipak Misra, in which Justice
A.K. Sikri, and Justice A.M. Khanwilkar joined.6 One of us (Dr. D.Y.
Chandrachud, J.) and Justice Ashok Bhushan delivered separate
concurring opinions. The Constitution Bench dealt with the constitutional
5 "2018 Constitution Bench judgment"; (2018) 8 SCC 501
6 "Judgment of the majority"
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
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status of NCTD and the modalities of its administration based on the
division of powers, functions and responsibilities of the elected government
of NCTD and the Lieutenant Governor, who as the nominee of the
President of India, serves as the representative of the Union Government.
We shall discuss the principles laid down in that judgment in Section C of
this judgment.
6. Upon deciding the interpretation of Article 239AA, the appeals
were directed to be listed before a regular Bench to decide the specific
issues. On 14 February 2019, a two-Judge Bench of Justice A.K. Sikri
and Justice Ashok Bhushan delivered two separate judgments. The judges
differed on whether "services" are excluded in view of Article
239AA(3)(a) from the legislative and executive domain of GNCTD.7
7. The matter fell for consideration before a Bench of three Judges.
There, the Union argued that the 2018 Constitution Bench did not analyze
two crucial phrases in Article 239AA(3)(a): (i) "in so far as any such
matter is applicable to Union Territories"; and (ii) "Subject to the
provisions of this Constitution''. By an order dated 6 May 2022, the
three-judge Bench observed that:
"8. From the reference application moved by the Union of India,
as well as the rival contentions of the parties, the main bone of
contention relates to the interpretation of the phrases: "in so far
as any such matter is applicable to Union Territories" and "Subject
to the provisions of this Constitution" as contained in Article
239AA(3)(a) of the Constitution. On perusing the Constitution
Bench judgment, it appears that all the issues except the one
pending consideration before this bench, have been elaborately
dealt with. Therefore, we do not deem it necessary to revisit the
issues that already stand settled by the previous ConstitutionBench.
9. The limited issue that has been referred to this Bench, relates
to the scope of legislative and executive powers of the Centre
and NCT Delhi with respect to the term "services". The
Constitution Bench of this Court, while interpreting Article
239AA(3)(a) of the Constitution, did not find any occasion to
specifically interpret the impact of the wordings of the same with
respect to Entry 41 in the State List.
7 "2019 split verdict"
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10. We therefore deem it appropriate to refer the above limited
question, for an authoritative pronouncement by a Constitution
Bench in terms of Article 145(3) of the Constitution."
The above reference forms the subject of adjudication before this
Constitution Bench. The limited issue for the consideration of this
Constitution Bench only relates to the "scope of legislative and executive
powers of the Centre and NCTD with respect to the term "Services."
That is to say, whether the NCTD or the Union government has legislative
and executive control over "services." We will now turn to the arguments
made by counsel on opposing sides.
B. Submissions
8. Dr. AM Singhvi, learned Senior Counsel appearing for the
appellant, made the following submissions:
a.
The Legislative Assembly of NCTD has the power to enact
laws under Entry 41 of List II of the Seventh Schedule.
The power cannot be excluded merely because the entry
uses the term "state public services" and not "Union
Territory public services". Infact, the Delhi Legislative
Assembly has enacted laws that fall within Entry 41;
b.
Even if it is found that the legislature of NCTD has not
exercised legislative power related to Entry 41 of List II, it
does not imply that the power ceases to exist;
c.
NCTD has legislative power and executive power over all
entries in List II other than entries 1,2, and 18 which have
been expressly excluded by Article 239AA;
d.
The phrase "insofar as such matter is applicable to Union
Territories" in Article 239AA is inclusionary and not
exclusionary. Multiple entries in List II and List III use the
term "State." The phrase "insofar as such matter is
applicable to Union Territories" is a facilitative phrase which
permits such entries being made available to the Union
Territory of NCTD without an amendment of the Lists in
the Seventh Schedule. Without the facilitative phrase, NCTD
would not have legislative competence over those entries
in Lists II and III which use the term "State";
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
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e.
NCTD is sui generis. It cannot be brought within the
common class of 'Union Territories';
f.
This Court in Union of India v. Prem Kumar Jain8 has
recognised that the provisions of Part XIV of the Constitution
extend to Union territories;
g.
The report of the Balakrishnan Committee opined against
the inclusion of "services" within the legislative and executive
ambit of NCTD, does not have any relevance because:
(i)
It preceded the inclusion of Article 239AA, by which
three entries from List II have been expressly
excluded from the legislative competence of NCTD;
(ii)
The conclusion that only States (and not Union
territories) can have services is conceptually wrong;
(iii)
The judgment of this Court in Prem Kumar Jain
(supra) was not considered; and
(iv)
The opinion of the majority in the 2018 Constitution
Bench judgment expressly notes that the report of
the Balakrishnan Committee will not be used as an
aid to interpret Article 239AA.
h.
Personnel belonging to All-India Services and Central
Government Services are governed by the Indian
Administrative Service (Cadre) Rules 1954 and the All-India
Services (Joint Cadre) Rules 1972 respectively. In terms
of these rules, while it is the prerogative of the Joint Cadre
Authority to make an officer available to GNCTD, the actual
posting of the officer within the departments of GNCTD is
the prerogative of the latter. Similarly, under DANICS and
DANIPS Rules 2003, once an officer is alloted to NCTD,
it is the Administrator who appoints that officer to a post
within NCTD.
9. Mr. Shadan Farasat, learned counsel appearing for the appellant,
provided an overview of the control of services in national capital
territories across the world. He argued that regardless of the level of
devolution of power in countries across the world, even in countries with
8 (1976) 3 SCC 473
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centralized forms of government, the power to control "services" has
been devolved upon the local government of the National Capital Territory.
10. Mr.