With the war between L-G Najeeb Jung and Chief Minister Arvind Kejriwal over division of power showing no signs of abating, legal luminaries say in the matter relating to posting of bureaucrats, the L-G can act only on the aid and advice of the state government.
It all started with the appointment of Shakuntala Gamlin as the acting Chief Secretary by L-G Najeeb Jung on May 15. Within a few hours of her taking charge, Mr Kejriwal wrote to the L-G accusing him of bypassing his government. He also removed the Principal Secretary to the Services Department, who had issued the order appointing the acting Chief Secretary. The L-G, however, revoked that order.
On May 19, the Delhi government directed all its officials to apprise the Chief Minister or minister concerned about any oral or written direction from L-G or his office before acting on them. The Centre had on May 21 issued a notification stating that the L-G would have jurisdiction over matters connected with services, public order, police and land. The notification barred the Delhi government from registering any case against officers and political functionaries of the Union government, reiterating the fact that by a July 2014 notification, the Anti-Corruption Branch of Delhi government could file cases against only its officers and not against those of the Union government.
On May 25, when a police officer contested his arrest and sought bail pointing to the July 2014 notification, the Delhi HC had ruled that the Delhi government’s ACB has jurisdiction to arrest police personnel and termed as “suspect” the Centre’s notification barring ACB from acting against union government employees, as it could not exercise executive power over matters falling under the legislative competence of the Delhi government. Aggrieved, the Centre has approached the Supreme Court.
Asserting that the L-G can act only on the aid and advice of the state government, former additional public prosecutor Abudu Kumar says, “In view of the constitutional scheme of things and more importantly the federal structure of governance, which includes the Centre and the democratically elected Delhi government, and in view of Article 239 (A) (A) of the Constitution of India and the National Territory of Delhi Act, it is the prerogative of the state government to post / transfer officers of their choice for the smooth functioning of the government for the people of the state. It is therefore, my considered view that the Lieutenant Governor can act only on the aid and advice of the state government and not independently. Otherwise, the situation will lead to utter chaos and confusion and eventually demoralise the executive and would also result in stalemate in the functioning of the state”.
Advocate A. Sirajudeen, author of several law books, said Article 239 (3) of the Constitution holds the key to resolve the issue. In respect of public order, police and land, the Parliament continues to hold power to enact laws. But, on all other matters, only the Delhi government - which means the council of ministers – has the power. As per Article 239 (4) of the Constitution, only when there is a specific provision granting an independent power to the L-G, could the latter do such things independently.
In order to justify the independent exercise of powers by the Lieutenant Governor without consulting the Chief Minister, the L-G should show a specific provision either in the Constitution or in the “The Government of National Capital Territory of Delhi Act, 1991” enabling him to exercise such powers independently. “Section 41 of the Act specifically enumerates the matters in which the Lieutenant Governor could exercise his powers independently. This section does not say that in the matter of transfer and posting of civil servants of the Delhi government and exercise of administrative control over them, the L-G could exercise powers independently. So, in those matters, only the council of ministers has the power and if any order has to be passed in the name of the L-G, it can be passed only on the aid and advice of the council of ministers headed by the Chief Minister,” Sirajudeen added.
Sirajudeen further said some persons who support the action of the Governor cite Rule 46 of the Delhi, Andaman and Nicobar Islands, Lakshwadeep, Daman and Diu and Dadra and Nagar Haveli (Civil Services Rules) 2003. Rule 46 deals with “conditions of service”, which means matters like age of retirement, code of conduct, salary and other financial benefits. It does not include matters like transfer, posting and the exercise of other administrative control over them. “So, in my opinion, the Lieutenant Governor of Delhi, in the matter of transfer, posting and the exercise of administrative powers over the employees can pass any orders or exercise any powers only on the aid and advice of the council of ministers of the Union Territory and not independently,” he added.
