The AAP government today told Delhi High Court that Lieutenant Governor (LG) was not the elected government of Delhi and was required to act on the aid and advice of the council of ministers.
The submission was made before a bench of Justice V P Vaish during arguments on Delhi government's plea challenging the Centre's May 21 notification giving LG absolute powers to appoint bureaucrats to various posts in the national capital and barring the Anti Corruption Bureau (ACB) from proceeding against any staff under the Centre's control.
Senior advocate Dayan Krishnan, appearing for the city government, said under the constitutional provisions and transaction of business rules, LG is required to act on the aid and advice of the council of ministers.
"LG is not the elected government in Delhi and this fact is fundamental to the matter. The powers are vested with the elected government with respect to subjects in the state list, barring few exceptions. All we have to do is to only inform the LG about the proposals and he has to act on the aid and advice of the council of ministers," the counsel said.
He said that matters where LG could act on his discretion are those which are not in the purview of the legislature, that is police, land and public order. At the same time, the transaction of business rules says that state government means government of NCT of Delhi, Krishnan added.
The senior counsel said the LG could create new posts and increase the work force in the subjects under his discretion but cannot decide who to be posted and where to be posted.
"LG is confined to the four corners of the Constitution, four corners of presidential rules and four corners of the statute," he said.
Once a bureaucrat is allocated a cadre and comes to the government, the concerned department decides his duties and work and not the LG, he said.
Krishnan further said that the ACB comes directly under Vigilance Department of the government as per the presidential rules and the vigilance secretary heads the department.
Without naming ACB chief M K Meena, Krishnan said the concerned officer was not reporting to the vigilance department or the department secretary.
The arguments remained inconclusive and will be heard on September 2.
The Centre today also filed an additional affidavit, saying any notification issued in exercise of executive powers in relation to Delhi needs prior approval of LG.
"It therefore follows, that if any authority, functionary or person purports to act in the name of or on behalf of LG, in order for such action to be valid, the LG has to approve of the same.
"What follows therefore is that any notification issued in exercise of executive powers in relation to Union Territory, now known as the NCT of Delhi, can only be issued after seeking prior approval of the LG," the affidavit said.
It further said "it cannot be an argument sustainable in law that the LG can be kept in dark or that his consent or approval is not necessary, while taking executive action in his name, whether it be issuing a notification or any other executive function."
Along with the May 21 notification, Delhi government has challenged the July 23, 2014 notification of the Centre which limits ACB's jurisdiction to Delhi government officials only.
The Centre had earlier 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.
It had also claimed that AAP government has a "grudge" against the ACB chief and wanted him out and alleged that the ACB chief was acting in accordance with law and there has been no willful disobedience by him.
The face-off between the LG and Kejriwal's government has resulted in the ACB now having two chiefs.
It all began on June 8, when Joint Commissioner Meena took charge of ACB after he was appointed by LG, superseding Additional Commissioner S S Yadav. Yadav had been hand-picked by the Delhi government for the post.