New Delhi: In his power struggle with Lieutenant Governor Najeeb Jung, Delhi Chief Minister Arvind Kejriwal has received the backing of legal experts. Senior Supreme Court advocate Indira Jaisingh told the Delhi government that the executive is constitutionally empowered to choose its own officers.
"Who will be the chief secretary or any other secretary of the government is a matter in which the governor has to yeild to the will of the political executive which has been democratically elected. In the democratic scheme of Constitution, the political executive is constitutionally empowered to choose its own officers in accordance with the cadre," Indira Jaisingh has told the Kejriwal government.
"These are not matters by any set of imaginations which will fall under the individual discretionary powers of the Lt Governor, even otherwise relying on the provision to the Article 239 AA4, the L-G cannot issue directions to appointed chief secretary," she added.
According to another Supreme Court advocate and constitutional expert Rajiv Dhawan, the right to receive information doesn't give the L-G the right to interfere. The Delhi government has been seeking legal opinion over the appointment of Delhi Chief Secretary Shakuntala Gamlin.
Kejriwal is scheduled to meet President Pranab Mukherjee at 6 pm on Tuesday. The AAP government had on Monday night directed all its officials to apprise the CM or the minister incharge of any oral or written direction by the L-G's office before following them.
"To ensure smooth functioning of day-to-day affairs of our government in accordance with the Constitution of India, the Government of NCT of Delhi Act and Transaction of Business of the Delhi Government it is hereby ordered that any direction or order, whether oral or written, received from Honorable L-G or his office to the Chief Secretary or any administrative Secretary, shall first be submitted by the concerned administrative Secretary/Chief Secretary on the file to the Minister in-charge and the Chief Minister for a decision," the order said.
The order came amid deepening confrontation between Kejriwal and Jung over appointments of top bureaucrats in the Delhi government. Earlier in the day, the AAP government told the L-G that it would not comply with his "unconstitutional" orders.
Citing the rules under which Delhi is administered, the order mentions that it was the collective responsibility of the council of ministers for disposal of all business of the government.
Rule 4 of Transaction of Business Rule (TBR) makes abundantly clear that the minister in-charge of a department shall be primarily responsible for disposal of the business pertaining to that department.
Chapter IV and V of the TBR outlines the method for disposal of business relating to L-G's executive functions and procedure to be followed in case of difference of opinion between L-G and a minister/council of ministers, it said.
Pointing at the L-G bypassing the rule, Kejriwal wrote that none of the three statutes authorise the L-G to issue any order/direction to Chief Secretary or any administrative Secretary bypassing the minister in charge or council of ministers.
"As you are aware the Chief Secretary and the Secretary of the department are severally responsible for the careful observance of the TBR under rule 57. Chief Secretary, Principal Secretary and heads of department are directed to strictly adhere to this order," the order further said.
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