The Supreme Court on Friday asked the Centre to suggest names of five senior bureaucrats to be considered for the post of new Delhi chief secretary by 10.30 am on November 28 and said the Delhi government will have to respond the same day to facilitate adjudication on the vexed issue.
The appointment of the chief secretary is the latest bone of contention between Chief Minister Arvind Kejriwal-led Delhi government and Lieutenant Governor (LG) V K Saxena who have been involved in a series of run-ins over various issues.
A bench comprising Chief Justice DY Chandrachud and justices JB Pardiwala and Manoj Misra which was hearing the AAP government's plea asked why the LG and the chief minister cannot meet to amicably decide on names.
Earlier on July 17, the top court had taken note of the differences over the appointment of the new DERC chairperson and asked Kejriwal and the LG to discuss names of former judges who could head the national capital's power regulator, saying the two constitutional functionaries have to rise above "political bickering".
However, the deadlock remained despite the two functionaries meeting and finally the top court appointed the DERC chairperson.
In the brief hearing on Friday, the bench said the names of five senior bureaucrats, to be suggested by the Union Ministry of Home Affairs, for the post of chief secretary will be submitted at 10.30 AM on Tuesday to it.
Senior advocate Abhishek Singhvi, appearing for the Delhi government, said the city dispensation will revert back within a few minutes.
The bench then said it would try to give the orders on the name for appointment of the chief secretary the same day, saying any delay may affect the reputation of senior officers.
The bench was hearing a plea of the Delhi government against any move by the Centre to appoint, without any consultation with it, the new chief secretary or extend the tenure of the current top civil servant Naresh Kumar who, otherwise, is set to demit office on November 30.
The Delhi government has questioned how the Centre could proceed with the appointment of the chief secretary without any consultation with it while the new law is under challenge.
"Why can't the LG and the CM meet? Last time we said that for the appointment of DERC chairperson and they never agreed...," the CJI said.
"So, why doesn't the LG and the Centre propose a panel of names? The ultimate choice will be from a panel made by you. You suggest a panel. Then they (the Delhi government) will pick up one name," the bench proposed.
At the outset, Singhvi said that the law dealing with services is under challenge before the top court and “there cannot be a unilateral exercise of power by the LG”.
Solicitor General Tushar Mehta, appearing for the Centre, said the stand has always been that the chief secretary was appointed by the Union Ministry of Home Affairs. Singhvi said the chief secretary has been appointed on the recommendation of the chief minister.
The top law officer said, “Never. I can put this on the affidavit.”
“We must have a modality in which the government functions. I am sure both of you can give us a way out,” the CJI said.
Senior advocate Harish Salve, appearing for the office of LG, said, “I am very sorry to say that there is a running commentary against the chief secretary and he had to approach the court against scurrilous allegations.”
The bench has now posted the plea for hearing on Tuesday.
The Government of National Capital Territory of Delhi (Amendment) Act, notified in August, gives the Centre control over bureaucracy in the national capital and an authority was created under it for the transfer and posting of Group-A officers.
The plea alleged the 2023 Amendment Act is in violation of the 2023 Constitution Bench Judgment “This renders the government of NCT of Delhi a mere observer in the appointment of the most crucial member of the permanent executive, the Chief Secretary," the Delhi government said in its plea.
For effective and smooth governance, it is the state government, which enjoys the mandate of the local people, that appoints the Chief Secretary, it said.
“Accordingly, the relevant rules and regulations under the All India Services Act, 1951 vest the discretion of appointing officers of State Cadres with the state government.
"Rule 7(2) of the Indian Administrative Service (Cadre) Rules, 1954 clearly stipulates that all appointments to cadre posts in a State Cadre shall be made by the state government. The rationale behind this arrangement has been repeatedly upheld by this court,” the plea said.
