In a small advantage to the central government, the Supreme Court on Friday described as "tentative" the Delhi High Court's observation that its May 21 order giving Delhi's lt. governor the final say in posting and transfers of bureaucrats was "suspect", even as it issued notice to the city government on the issue.
The vacation bench of Justices A.K. Sikri and Uday Umesh Lalit issued the notice on a central government petition seeking stay of observations made by the high court in three paragraphs of its May 25 judgement wherein it had said that notification was "suspect" and that the Delhi's Anti-Corruption Branch (ACB) had the jurisdiction to entertain complaint and act against Delhi police officers under the Prevention of Corruption Act.
The court, in its order, noted that the notification described as "suspect" was issued on May 21 - a day after the high court had reserved verdict on May 20 on Delhi Police head constable Anil Kumar's bail plea - and neither the central government was party to the case nor was there any occasion for any hearing on the notification.
Noting that the notification has now been challenged by Delhi government before the high court, the apex court order said: "We, therefore, clarify that the observations were only tentative in nature and it would be open to the high court to deal a petition (by Delhi government) independently without being influenced by any observations made in para 66, or for that matter in other paragraphs of the impugned order."
In respect of other paragraphs, the apex court said it will take a call only after receiving the Delhi government's reply.
It further said that the high court, while deciding Delhi government's writ petition challenging the May 21 notification, will decide the same "independently" without being influenced by the observations contained in the high court's May 25 judgement which was sought to be stayed by the central government in their plea before the apex court.
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At the outset of the hearing as Solicitor General Ranjit Kumar raised the issue of observations it sought to be stayed, senior counsel Parag Tripathi, appearing for Delhi government, said that the high court had itself said that it was not going the larger issue of the jurisdiction of the ACB and only deciding the bail application by Anil Kumar.
The court told Tripathi that Delhi government could not read this para of high court verdict before it and read other paras containing observations before the high court in its attempt to nail the May 21 notification.
The observations in three paragraphs that the central government wanted to be stayed relate to the high court observing that the central government could not have issued July 23, 2014, notification restricting Delhi government to proceed against its own officials only under the Prevention of Corruption Act.
It had further said that the central government could not have exercised its executive powers to impose sanction on the matters falling in the legislative domain of Delhi assembly as per GNCTD Act read with article 239 AA of the constitution.
The other observation that troubled the central government was the court holding "suspect" the May 21 notification by which the ACB was excluded from taking "any cognizance of the offences against officers, employees and functionaries of the central government".
It had also sought the stay of the high court holding that the Delhi ACB has the "executive power/authority to enforce criminal law (which includes the anti-corruption act), within the NCT".
The central government has contested the high court verdict on 10 counts of law including that it could not have rendered adverse finding of May 21 notification being "suspect" without giving it an opportunity of stating its position on the issue.
It also assailed the high court judgment saying that the court was wrong in holding that there were "no fetters" on the Delhi assembly's legislative powers for enacting laws on subjects in the concurrent list.
"The constitutional status of the NCTD is not the same as that of a state; it is a centrally- administered territory of the union" and its "legislative and executive powers are restricted constitutionally," it contended.