New Delhi: The Centre`s notification placing bureaucrats under the Lt. Governor`s administrative control has further intensified the turf war between Delhi Chief Minister Arvind Kejriwal and Najeeb Jung, leaving legal eagles divided on the issue.
A section of lawyers felt there was nothing wrong in the government issuing the notification with former Lok Sabha Secretary General Subhash Kashyap saying what the government has done is clarify the constitutional position.
Others feel that it was an exercise of power by the government which may not stand judicial scrutiny.
Holding that the issuance of the notification was "absolutely justified", jurist Shanti Bhushan said, "Only the Lt. Governor (Najeeb Jung) has the power to post and transfer the bureaucrats on the direction of the central government. Delhi government has no power at all (in this regard)."
"He (Kejriwal) should realize that Delhi is a union territory administered by the central government" and the executive powers of Delhi government are limited, said Bhushan who was a union law minister in the post emergency Janata government in 1977.
Agreeing with Shanti Bhushan, former judge of Delhi High court and now a senior counsel in the apex court Rupinder Singh Sodhi said: "I think Lt. Governor was always right and the power of services (posting and transfer of bureaucrats) are always with the President which are delegated to the Lt. Governor."
Sodhi said: "Unlike the states where consultation by the governor with the council of minister is mandatory, in case of union territory it is a discretion which the Lt. Governor may exercise or not."
However, beyond the legalities of the issue, the former judge said the government must function in a mature manner under the constitution and "Delhi government must be run in a gentlemanly way between the two (Lt. Governor and the chief minister).
"Things have to be done cordially instead of taking a confrontationist course," he added.
Taking a contrary view, senior counsels K.K.Venugopal and Rajeev Dhavan disputed the validity of the notification on the grounds of its constitutionality.
While Venugopal termed the central government notification as "unconstitutional and void", Rajeev Dhavan said, " These are unconstitutional. Such a change can only be made by the paraphernalia and not by a notification."
Agreeing with Venugopal and Dhavan, and describing the Thursday notification as "illegal and unconstitutional", former solicitor general and senior counsel Gopal Subramanium in his opinion to the Delhi government said that "It (notification) singularly lacks propriety when the President is seized of the issue."
Advising the Kejriwal government to challenge the validity of the notification in court, Subramanium felt that it is a "fraud on the constitution or a colourable exercise of authority" by the central government.
