Chief Secretary Must Follow Delhi Government’s Directions: Supreme Court

The actions or inactions of a chief secretary must not put the elected government at a “standstill”, the Supreme Court has said while holding that the Centre’s decision to extend the services of the top-most bureaucrat in the Delhi government for six months cannot be construed as violative of law.

“The chief secretary performs functions which fall both within and outside the executive competence of the GNCTD (The government of national capital territory of Delhi). The chief secretary though appointed by the central government, must comply with the directions of the elected government over matters on which their executive competence extends,” a bench headed by Chief Justice D Y Chandrachud said.

The bench, also comprising Justices J B Pardiwala and Manoj Misra, had delivered the verdict on November 29 and it was uploaded on the Supreme court website later.

The Supreme court verdict came on a plea filed by the Delhi government against any move by the Centre to appoint, without any consultation with it, a new chief secretary or extend the tenure of the incumbent top civil servant Naresh Kumar, who was set to demit office on November 30.

In its 28-page verdict, the bench referred to a 1973 judgement of the Supreme court and said it was observed that the chief secretary’s post was a “post of great confidence- a lynchpin in the administration”.

The Supreme court referred to the May 11 judgement of a five-judge constitution bench this year which held that the Delhi government has legislative and executive powers over administration of services except for public order, police and land. The verdict was touted as a big victory for the AAP government.

The bench also noted the subsequent developments such as promulgation of an ordinance by the Centre that took back full control over services, and the passage of the Government of NCT of Delhi (Amendment) Act 2023 in Parliament.

“This court in the 2023 constitution bench judgment observed that civil servants are required to be politically neutral and must abide by the directions of the elected arm to give effect to the principle underlying the triple-chain of collective responsibility. The post of a chief secretary is uniquely placed,” the bench said.

“The actions (or inactions) of the chief secretary must not put the elected government at a standstill,” the bench said.

It further said, “…we have come to the conclusion that at this stage, bearing in mind the principles which have been enumerated in the judgment of this court in 2023 constitution bench judgment, and the subsequent developments which have taken place resulting in the enactment of the amendment to the GNCTD Act 1991, the decision of the Union Government to extend the services of the incumbent chief secretary for a period of six months cannot be construed to be violative of law.” The bench clarified that the analysis in its current order was confined to the evaluation of the case at the present stage without entering into any conclusive determination of the issues which are pending adjudication before the constitution bench.

It held, prima facie, the Centre has the power to appoint and extend the tenure of the chief secretary of the national capital territory of Delhi as the officer deals with the entire administration including police, public order and land, which fall beyond the legislative and executive powers of the Delhi government.

“Once it emerges that the chief secretary performs important functions, among other things, in relation to the excluded subjects as well, it would be farfetched to postulate that the Central Government is divested of the power to appoint the chief secretary,” the bench noted.

The bid to extend the tenure of the present chief secretary was the latest bone of contention between the Arvind Kejriwal government and Lieutenant Governor (LG) V K Saxena, who have been involved in a series of run-ins over various issues.

Significantly, the current chief secretary, whose tenure has been extended, is reportedly not on good terms with the Delhi government owing to allegations against his son in a case related to acquisition of 19 acres by the National Highways Authority of India in 2018 for construction of the Dwarka Expressway.

The Supreme court noted that the operation of the amended GNCTD Act, whose validity is under challenge before a constitution bench, has not been stayed and hence, the Centre has the power to appoint a new chief secretary or extend the tenure of the incumbent officer.