In a relief to the central government, Delhi High Court on Friday refused to stay the union home ministry's May 21 notification holding that the Delhi lt. governor has discretionary powers for appointments and transfers to key bureaucratic posts in the capital.
Justice Rajiv Shakdher declined to change the primacy of the lt. governor in the administrative mechanism of the capital, while issuing notice to the central government and asking it to file an affidavit indicating the practice followed in past on posting officers in Delhi and other union territories.
"What was happening in the past? Was the earlier government (Delhi government) allowed to move officers? I want factual data as to how it has been carried in the past in Delhi and other union territories," the court said and posted the matter for August 11.
The court also said that as an interim measure, the two orders of postings made by the Delhi government should be placed before Lt. Governor Najeeb Jung for deliberation and if he wants any clarification regarding the proposal, then he may ask for it from the council of ministers.
A battery of lawyers, including senior advocates Indira Jaising, H.S. Phoolka, Dayan Krishnan, Rahul Mehra and Raman Duggal, appeared for the Arvind Kejriwal-led Delhi government in the case.
During the hearing, Jaising challenged the "constitutional validity" of May 21 notifications and urged the court to stay it, saying its consequence is that the "day-to-day functioning and administration of the Delhi government is being hampered and is suffering".
"The curbs on the elected government's powers were affecting work in crucial departments such as power, water and health was virtually coming to a standstill," she said.
She contended that notification issued by Centre was "ultra vires" of constitutional provisions, i.e. article 239 AA (4), and that it does not have the jurisdiction over matters connected with services of bureaucrats in the national capital.
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, she argued.
"By what authority of law can this notification be issued? There is no authority," she argued.
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, she further argued.
Jaising also said that administration by lt.governor can't mean allocation of portfolio to civil servants and "centre can allot officers to administer Delhi but can't tell us what post to give".
"You (centre) allot any officer to me that is not a problem, but its upto me to decide which department to be allotted to the officer," she contended.
Appearing for the central government, Additional Solicitor General Sanjay Jain, however, opposed the AAP government's contention, saying that cadre controlling authority is with central government and it is up to the government to post which officer to which union territory and in which department.
"Delhi is a union territory, it is not a state. Whatever allocation have to be done with regard to posting it has to be done by us (centre). Why are you (Delhi government) trying to change it? Its for us and cadre controlling authority to decide which officer will be in which department," he said.
When the officers are posted by the central government, how can the Delhi government "tinker" with that, he said.
The power struggle between Kejriwal and Jung is rooted in Delhi's unique position as a union territory functioning as the capital, with the state government having no say over several important departments and agencies that function under the lt. governor, who reports to the central government.