Dismissing a petition challenging the termination of a person from the post of Secretary of the Delhi Legislative Assembly, the Delhi High Court has said that services under the National Capital Territory of Delhi are necessarily the services of the Centre.
Justice Chandra Dhari Singh observed that there was evidently no State Public Service Commission in Delhi and under the Constitution, a post can be created in the city legislative assembly with the approval of the Lieutenant Governor (LG) who is the competent authority for this purpose.
“The services under the NCT of Delhi are necessarily the services of the Union and they are expressly covered only by Entry 70 of List I (of the Constitution). The Legislative Assembly of NCT of Delhi has no legislative competence to legislate in respect of any subjects covered under Entries 1, 2 and 18 of State List and Entry 70 of the Union List,” said the court in its order dated December 23.
“In view of Section 41 of the Government of National Capital Territory of Delhi Act, 1991, the Lt. Governor is required to act in his discretion in respect of these matters and not on the aid and advice of the Council of Ministers,” the court stated.
The petitioner, who was appointed as the Secretary, DLA in December 2002 consequent to the approval of then Speaker, was terminated from services by the Services Department, Delhi Government in May 2010.
The court held that the appointments to the position of Secretary, DLA fall outside the purview of the office of Speaker, Delhi Legislative Assembly (DLA) as the appropriate appointing authority was the LG and the appointment of the petitioner was “vitiated by fraud and is void ab initio”.
It further observed that in the instant case, there was also no consultation with the UPSC at the time of appointment by way of absorption of the petitioner to the post of joint secretary and then promotion to the post of secretary, which was contrary to law.
“As such, it is clear that the National Capital Territory of Delhi does not have its own State Public Services. Hence, it is well established that the matters connected with 'Services', especially as applicable in the instant matter to the position of Secretary, DLA are relatable to Entry 41 of List-II of the Constitution and fall outside the purview of the Legislative Assembly of NCT of Delhi,” the court said.
“The facts, thus, reveal that the deputation of the petitioner was made on the non-existent post of OSD, after completion of probation period as OSD, he was immediately absorbed on the post of Joint Secretary and immediately within a year, he was given the charge of Secretary with all upgradation in pay scales. Nowhere the approval was taken from competent authority for such deputation as OSD, absorption to Joint Secretary and promotion to Secretary, the appointment was vitiated by fraud and is void ab initio,” it further said.
The court also observed that Article 187 of the Constitution, which pertains to appointment of separate secretarial staff, cannot be made applicable to the NCT of Delhi which is not a State but is a Union Territory under the Constitution.
“The posts can be created in Legislative Assembly of NCT of Delhi with the approval of Lt. Governor, Delhi, who is the competent authority...DLA has no separate secretarial cadre and as such, either the Speaker or any authority of the DLA has no competence either to create such a post or to make appointments to such post,” the court stated.
Dismissing the petition, the court said the appointment of the petitioner “is in the teeth of law and cannot be saved” and the “termination cannot be termed as illegal”.
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