On 09.11.2017, hearings continued for the fourth day, before the five judge bench of Chief Justice Dipak Misra, Justices A.M. Khanwilkar, D.Y. Chandrachud, A.K. Sikri and Ashok Bhushan.
Mr P. Chidambaram resumed his arguments and at the outset, he furthered his earlier arguments regarding the notion that the GNCTD Act and the rules framed there under imposed implied limitations on the LG’s authority to take decisions independent of the Council of Ministers. In this limited framework of discretionary authority, the LG could not approve public service appointments without considering the aid and advice of the Council of Ministers.
He contended that in accordance to Entry 41, (State List) while there was no public service commission for the NCT, prior to the High Court Judgment most appointments, including Group A and B, were factually conducted by the State executive and not by the LG. In response, Justice Sikri in response enquired about how recruitment was conducted for Delhi Government schools, seeing that dual governance was manifested here as government schools were under different administrations? Mr. Chidambaram submitted that the practice was for the Government of Delhi to make appointments to Delhi Government schools.
Furthermore, Justice Chandrachud rejected the argument that “statehood” for the NCT could be derived from Art 246 and hence, the power to make laws for the State and Concurrent Lists as granted under Art 239AA(3)(a) to the Delhi Administration could be qualified by (3)(b) [which pronounces the NCT to be a Union Territory and therefore subjects it to parliamentary sovereignty]. Mr. Chidambaram conceded the legislative supremacy of the Union Parliament, but contended that in relation to executive authority, the powers of the Central Government would only be coextensive to a certain extent as determined by the Constitution.
Justice Ashok Bhushan then questioned the counsel on the validity of an executive order from the Union of India under Art 309 of the Constitution, which empowered the Centre in a sphere with no state legislation. Answering the question, Chidambaram asserted that there existed a distinction between possessing an overriding effect and declaring that the NCT did not possess any services in and of itself.
Mr. Chidambaram further contended that the earlier practice was for the notice of appointments was first granted to the Chief Secretary, followed by the Chief Minister who would then send a notice to the LG for his consideration. But following the Union notification on 21.01.2017, the CM was not to be notified of any appointments, and as this new position was a regarded to be a standing order it completed precluded the State Government from exercising any authority on the issue of services.
He concluded his arguments by stipulating that this practise was violative of rules made for the IAS (Cadre) Appointments Rules, and that Art 309 included UTs in its definition of state while, Art 246 did not. He observed that the UT was a separate entity and could not be an arm or a shadow of the Central Government, and hence must be vested with the authority to appoint responsible bureaucrats who would be responsible to the State Executive, facilitating the practice of good governance measures.
The matter will be heard next on 14.11.2017.