Delhi contests home ministry edicts, HC hearing on Friday

The Arvind Kejriwal government on Thursday moved the Delhi High Court, challenging the union home ministry's May 21 notification that said the lt. governor has discretionary powers for appointments and transfers to key bureaucratic posts in the capital.

The Delhi government said that by way of the notification, the central government has sought to "usurp and arrogate" unto itself, in a "wholly unconstitutional and illegal manner", a wide range of functions which would fall under the subject 'services', effectively the whole gamut of powers to address matters pertaining to the bureaucratic affairs of the Delhi government.

Along with the May 21 notification, it also challenged the July 23, 2014 notification which had limited the Delhi Anti-Corruption Branch's jurisdiction to Delhi government officials only.

The plea was mentioned before a division bench of Justice B.D. Ahmed and Justice Sanjeev Sachdeva which posted it for hearing on Friday along with similar plea filed by a law student.

The petitions, filed within days of a high court order terming the May 21 notification as "suspect", have contended that it was "ultra vires" of constitutional provisions, i.e. article 239 AA (4), and that the central government does not have the jurisdiction over matters connected with services of bureaucrats in the national capital.

Challenging the "constitutional validity" of both notifications, the city government sought their quashing.

It also sought stay on both. The consequence of the May 21 notification is that the "day-to-day functioning and administration of the Delhi government is being hampered and is suffering", said the plea seeking stay on the notification. Work in crucial departments (such as power, water, health etc.) is virtually coming to a standstill, which will directly and prejudicially impact the capital's residents, said the plea filed through its standing counsel Raman Duggal.

It also said that "by virtue of the said notification read with the notification dated July 23, 2014, the powers and jurisdiction of the ACB is attempted to be curtailed/shattered".

It also sought direction to restrain the union home ministry "from issuing any notification or direction or order which would infringe upon the right of the council of ministers or the minister in charge of the government of the National Capital Territory of Delhi (GNCTD) to allocate work and/or assign duties and responsibilities to all officers in the service of the GNCTD, or to direct postings/ transfers of officers".

The proviso to the constitution's article 239-AA (4) gives "equal weightage" to the opinion of the chief minister or other ministers as to the opinion of the lt.governor, said the petition.

In matters which fall within the legislative competence of the Delhi legislative assembly, the lt. governor "is required to act only on the aid and advice of the council of ministers", it said.

It further contended that the May 21 notification is a "retrograde step" which is "anti-democratic" and is violative of the constitution's basic structure. "The devolution of powers is a irreversible process and should not be undone, whimsically or capriciously as has been done in the present case."

The notification, by removing "services" from the state list, amounts to amending the constitution, without actually complying with the detailed procedure laid down for the process under article 368, it argued.

Holding that the notification attempts to "immunize allegedly corrupt officers and employees of the central government from investigations", the plea termed it "discriminatory, protective, and without authority of law".

"A very anomalous situation arises if the state government of GNCTD with a full parliamentary government cannot assign work to or transfer of its employees. If this was followed for the states, the very logic of federal and parliamentary governance would break down. It therefore cannot apply to the GNCTD," said the plea, adding that AAP had become the single largest party in Delhi by winning 67 seats out 70 seats in election.

Law student Vibhor Anand has also filed a PIL against May 21 notification and contended the appointment of senior bureaucrat Shakuntala Gamlin as the acting chief secretary by the lt. governor be declared "illegal".

The turf war between Chief Minister Arvind Kejriwal and Lt. Governor Najeeb Jung over the control of key bureaucratic appointments was sparked by the appointment of Gamlin as acting chief secretary of Delhi by the latter on May 15.