AAP govt's claim that Jung didn't consult them before appointing Gamlin misplaced: MHA tells HC

New Delhi: The Centre has told the Delhi High Court that the city government’s claim that LG Najeeb Jung did not consult Chief Minister Arvind Kejriwal in the matter of assigning charge of officiating Chief Secretary in Shakuntala Gamlin, was “misplaced”.

The Union Home Ministry has said the factual status was that the Lt Governor (LG) had on 13 May taken a reasoned decision on Kejriwal’s proposal, of the same day, to choose from amongst Shakuntala Gamlin and Parimal Rai for the charge of officiating Chief Secretary.

The Home Ministry said that while Kejriwal had indicated his preference for Rai, the LG after due consideration of material on record, had approved the name of Gamlin.

However, as the LG’s decision was not implemented until 16 May, the said order was conveyed by the Secretary to the LG for implementation, the ministry said in an affidavit.

With regard to appointment of bureaucrats, the Home Ministry said since Delhi government does not have its own public services or public services commission, it has no legislative or executive powers with respect to services like IAS and IPS.

The Home Ministry also said that Delhi government’s Anti-Corruption Branch (ACB) does not have the power to proceed under Prevention of Corruption Act (PCA) against any staff under the Centre’s control even if the offence was committed within the National Capital Territory (NCT) as law and order and police are “outside” scope of its legislative and executive powers.

ACB can only initiate action under PCA against officers of Delhi Administration, the Home Ministry said.

“The power to initiate action against the officers of the central government has not been conferred upon ACB, Delhi, and definitely cannot be implied on account of the principles of territorial jurisdiction, i.e. alleged offences having been committed in the territory of NCT,” it has said.

The submissions have been made by the Home Ministry in reply to Delhi government’s plea challenging the Centre’s 21 May notification which gave the LG absolute powers to appoint bureaucrats to various posts in the national capital and barred ACB from proceeding against any staff under the Centre’s control.

The Home Ministry also said in its affidavit that Delhi government was under a “misconception” that the Constitution has given it powers similar to that of a state as it is only a Union Territory (UT) with a legislative assembly.

“That notification of May 21, 2015 has been impugned under a misconception that Article 239AA conferred upon the Government of National Capital Territory of Delhi (GNCTD) powers similar to that of state. It is submitted that the NCT of Delhi is a Union Territory with a Legislative Assembly,” the Home Ministry affidavit said.

It also said that “the question of referring a matter involving difference of opinion to the President would arise only in such matters where the Council of Ministers was constitutionally empowered to aid and advice the Lt Governor of Delhi.

“It is stated that in matters which fall outside the purview of the advice by Council of Ministers, such a situation would not arise.”

Delhi government, in its petition, has said that in a democratic set-up there cannot be two reporting authorities - the Lieutenant Governor and the Chief Minister.

It has said that by way of the notification, the Centre 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 Delhi government.

In response, the Home Ministry said “since admittedly there is no state public services or state public services commission in so far as the NCT of Delhi is concerned, the petitioner cannot seek to impugn the notification of May 21, 2015 on the ground that inclusion of “services” in the said notification is ultra-vires the Constitution of India.”

“It is denied the impugned notification amounts to a revision of the Constitutional and legislative scheme,” it said.

The petitions, filed within days of a high court order terming the notification as “suspect”, have contended it was “ultra vires” of constitutional provisions under Article 239 AA (4), and that the Centre does not have the jurisdiction over matters connected with services of bureaucrats in Delhi.

The court had on 29 May directed the LG to “deliberate” on the city government’s proposals on appointment of senior bureaucrats to key posts.

The city government had, thereafter, on 29 June moved an application alleging that current ACB chief MK Meena has been “misusing his powers to browbeat and threaten officials of ACB and the Vigilance Department”, after AAP government-nominated ACB chief SS Yadav accused Meena of threatening and pressuring him.

The city government has also sought directions restraining Meena from entering the ACB office.

The court, however, refused to pass any interim orders except to direct Meena to act in accordance with the law.

Thereafter, on 28 July, the AAP government moved a plea for initiation of contempt proceedings against Meena for allegedly violating the court’s order by removing an SHO of the anti-graft body.

The court had on 29 July issued show a cause notice to Meena asking him why contempt proceedings be not initiated against him on AAP government’s plea.

PTI