[Delhi Government v LG] Civil servants not taking calls, attending meetings of AAP ministers: Manish Sisodia to Supreme Court

Bureaucrats in Delhi are not cooperating with the Aam Aadmi party government (AAP government), thereby, paralysing the implementation of policies and projects of the elected government in the national capital, Delhi Deputy Chief Minister Manish Sisodia told the Supreme Court on Wednesday.

In an affidavit filed before the top court, Sisodia said that bureaucrats have stopped attending meetings called by AAP ministers and have stopped answering phone calls by ministers and these issues have become more acute with the appointment of the current Lieutenant Governor of Delhi, Vinai Kumar Saxena.

"Officials have stopped taking calls of ministers...Officials are disobeying orders/ directions of ministers including orders/ directions that are in writing," the affidavit said.

This is a direct consequence of an notification issued by the Central government on May 21, 2021 due to which civil servants are not answerable to the elected government of Delhi but to the Central government currently ruled by BJP.

"The power to assign posts, effect transfers within the Government of NCT of Delhi, and discipline civil servants is exercised by the Central government/ Lieutenant Governor. Given this regime introduced by the impugned notification, it is not surprising that civil servants serving in Government of NCT of Delhi have become indifferent to the elected government," the affidavit said.

It added that any cooperation between the civil servants and the elected government is being penalized and recalcitrance towards the elected government is being encouraged.

The affidavit was filed in the ongoing dispute in Supreme Court between the Central and Delhi governments regarding which government has administrative control over the transfers and postings of officers in Delhi.

The case is slated to be heard by a Constitution bench after a 3-judge bench had in May this year decided to send it to a larger bench on a request by the Central government.

The Deputy CM claimed in his affidavit that there are number of vacancies in different posts in the Government of NCT of Delhi as those responsible for making the appointments are not at all accountable to the public for not making the appointments.

"Frequent transfers of heads of various departments have left large gaps in policy implementation of the government," the affidavit stated.

Despite advance notice, senior civil servants and heads of departments routinely skip meetings with ministers of the elected government and in most cases no explanation for absence or request for rescheduling is conveyed to the office of the minister and instead junior officials are sent to attend the meetings in breach of protocol, it was contended.

As an example, the affidavit pointed out that between between May 5, 2022 and October 13, 2022, twenty meetings were called with the Minister (environment, forests and wildlife), of which only one was attended by the additional chief secretary /principal secretary of the environment and forest department.

Five meetings were convened by the Minister (Development) between June 15 and September 8, out of which only one was attended by the Commissioner (Development). 

It was also submitted that civil servants routinely delay processing of the files pertaining to important projects sort to be undertaken by the elected government, thereby, affecting implementation of the people friendly schemes and projects on the ground.

As a consequence, citizens suffer, it was claimed.

The affidavit by the Deputy Chief Minister clarified that the annual flagship event of the Delhi government called the Dilli ki Diwali 2022, could not be held this year due to the delay caused by the officers of the Central government. 

In 2018, a Constitution Bench of the Supreme Court had interpreted Article 239AA of the Constitution, which contains special provisions with respect to the National Capital Territory. The peculiar status of the NCT and the powers of the Delhi Legislative Assembly and the LG and their interplay were debated in the case.

The Court in that judgment had ruled that the LG cannot act independently without the aid and advice of the Council of Ministers, and has to work harmoniously with the NCT government.

The appeals relating to individual aspects including services were then placed before a regular Bench for adjudication based on the Constitution Bench judgment.

The regular bench had on April 14, 2019, pronounced its verdict on various individual aspects relating to the tussle between the Delhi government and the LG.

However, the two judges on the Bench - Justices AK Sikri and Ashok Bhushan - had differed on the issue of 'services' under Schedule VII, List II, Entry 41 of the Constitution of India

The issue considered by the Court was whether the exclusion of “services” relatable to Entry 41 of List II of the Seventh Schedule from the legislative and executive domain of the NCT of Delhi, vide a notification of the Government of India dated May 21, 2015, is unconstitutional and illegal.

Since the judges on the Bench differed, that aspect was referred to a larger Bench and it came up before a three-judge bench.

The three-judge bench then referred the matter to the Constitution Bench on Centre's request.

The primary basis of the prayer to refer it to a five-judge bench was that the majority judgment of the Constitution Bench did not consider purpose and intent of the expression “insofar as any such matter is applicable to Union Territories” as it occurs in Article 239AA(3) of the Constitution, which is the pivotal and crucial aspect of the said provision.