LG has cleared all 18,000 files from Delhi government since 2017: Solicitor General Tushar Mehta to Supreme Court [Day 2 hearing]

The Central government told the Supreme Court on Wednesday that all the 18,000 files have come to the Lieutenant Governor (LG) from Delhi Government since 2017 have been cleared by the LG [Government of NCT of Delhi vs Union of India]..Solicitor General (SG) Tushar Mehta told a Constitution bench of Chief Justice of India (CJI) DY Chandrachud, and Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha that from 1992 till date, only 7 matters were sent by the LG to the President of India on account of difference of opinion with the Delhi government."You will be shocked. From 1992 till now there are only 7 matters registered by the LG to the president to show difference of opinion. From 2017 till now, 18,000 files have come to the LG from Delhi Govt and all files have been cleared," the SG submitted. The Court was hearing the case between the Central government and Delhi government regarding the administrative control over transfers and postings of civil servants in the national capital..The case arose in 2018, when 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 IndiaThe 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..During the hearing today, Senior Advocate Abhishek Manu Singhvi appearing for the Delhi government, pointed out that there was no separate Act on services in the national capital. However, the power concerning transfers or postings of officers/ civil servants must remain with the elected government which is the Delhi government, he emphasised. "All the services are joint cadre services. It cannot work like State on one side and Centre on another," he said.CJI Chandrachud then said that the bench would need to examine the different cadre rules and relevant statutory provisions on whether Union Territories also had control over postings and transfers. Singhvi argued that he was only asking for a minimalistic power. "Constitutional gearbox is to have services under the NCT (National Capital Territory)."Advocate Shadan Farasat, also appearing for the Delhi government, added that the Union government need not be concerned with the Delhi government's day-to-day functioning. .The SG then began by saying all national capitals have a unique position in law, but here a perception was being created."I agree it is an elected government and collective responsibility principle has to be respected. What is being dealt here is perception and not the Constitution. Perception created is LG is supreme and that officer has allegiance elsewhere. It is not so. This constitutional structure came to being in 1992. Even when Centre and Delhi government parties are different, everything has been working till now smoothly with political maturity. It is the elected body which is in the driving seat."The Chief Minister of Delhi evaluates the performances of civil servants and the LG has always agreed to the government's transfer requests, Mehta said. "The capital belongs to the nation and the national government has a role to play in accordance with a scheme. The scheme has worked perfectly till now ... Standing instructions can be given to officers," he contended..The SG also explained Delhi's unique scenario in terms of power sharing. "Due to strategic location it has to be under the administration of the Union. Constitution framers felt so. Delhi is ultimately an extension of the union since it is a Union Territory," the SG maintained.Read our coverage of day 1 of the hearing here..[Live account of today's hearing below]