vibhor anand vs. uoi.pdf
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MINISTRY OF HOME AFFAIRS
NOTIFICATION
New Delhi, the 21st May, 2015
S.O. 1368(E).—Whereas article 239 of the Constitution
provides that every Union Territory shall be
administered by the President acting, to such extent
as he thinks fit, through an administrator to be
appointed
by him with such designation as he may specify;
And whereas article 239AA inserted by ‘the
Constitution (Sixty-ninth Amendment) Act, 1991’
provides that the Union Territory of Delhi shall be
called the National Capital Territory of Delhi and
the administrator thereof appointed under article 239
shall be designated as the Lieutenant Governor; And
whereas sub-clause (a) of clause (3) of article 239AA
states that the Legislative Assembly shall have power
to make laws for the whole or any part of the
National Capital Territory with respect to any of the
matters enumerated in the State List or in the
Concurrent List in so far as any such matter is
applicable to Union Territories except matters with
respect to Entries 1, 2 and 18 of the State List and
Entries 64, 65 and 66
of that List in so far as they relate to the said
Entries 1, 2 and 18; and whereas Entry 1 relates to
‘Public Order’, Entry 2 relates to ‘Police’ and Entry
18 relates to ‘Land’. And whereas sub-clause (a) of
clause (3) of article 239AA also qualifies the
matters enumerated in
the State List or in the Concurrent List in so far as
any such matter is applicable to Union Territories.
Under this provision, a reference may be made to
Entry 41 of the State List which deals with the State
Public Services, State Public Service Commission
which do not exist in the National Capital Territory
of Delhi. Further, the Union Territories Cadre
consisting of Indian Administrative Service and
Indian Police Service personnel is common to Union
Territories of Delhi, Chandigarh, Andaman and Nicobar
Islands, Lakshadweep, Daman and Diu, Dadra and Nagar
Haveli, Puducherry and States of Arunachal Pradesh,
Goa and Mizoram which is administered by the Central
Government through the Ministry of Home Affairs; and
similarly DANICS and DANIPS are common services
catering to the requirement of the Union Territories
of
Daman & Diu, Dadra Nagar Haveli, Andaman and Nicobar
Islands, Lakshadweep including the National Capital
Territory of Delhi which is also administered by the
Central Government through the Ministry of Home
Affairs. As such, it is clear that the National
Capital Territory of Delhi does not have its own
State Public Services. Thus, ‘Services’ will fall
within this category.
4 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC.
3(ii)]
And whereas it is well established that where there
is no legislative power, there is no executive power
since executive power is co-extensive with
legislative power. And whereas matters relating to
Entries 1, 2 & 18 of the State List being ‘Public
Order’, ‘Police’ and
‘Land’ respectively and Entries 64, 65 & 66 of that
list in so far as they relate to Entries 1, 2 & 18 as
also ‘Services’ fall outside the purview of
Legislative Assembly of the National Capital
Territory of Delhi and consequently the Government of
NCT of Delhi will have no executive power in relation
to the above and
further that power in relation to the aforesaid
subjects vests exclusively in the President or his
delegate i.e. the Lieutenant Governor of Delhi.
Now, therefore, in accordance with the provisions
contained in article 239 and sub-clause (a) of clause
(3) of 239AA, the President hereby directs that -
(i) subject to his control and further orders, the
Lieutenant Governor of the National Capital
Territory of Delhi, shall in respect of matters
connected with ‘Public Order’, ‘Police’, ‘Land’
and ‘Services’ as stated hereinabove, exercise the
powers and discharge the functions of the
Central Government, to the extent delegated to him
from time to time by the President.
Provided that the Lieutenant Governor of the National
Capital Territory of Delhi may, in his
discretion, obtain the views of the Chief Minister of
the National Capital Territory of Delhi in regard to
the matter of ‘Services’ wherever he deems it
appropriate.
2. In the Notification number F. 1/21/92-Home (P)
Estt. 1750 dated 8th November, 1993, as
amended vide notification dated 23rd July, 2014
bearing No. 14036/4/2014-Delhi-I (Pt. File), for
paragraph 2 the following paragraph shall be
substituted, namely:—
“2. This notification shall only apply to officials
and employees of the National Capital
Territory of Delhi subject to the provisions
contained in the article 239AA of the Constitution.”
after paragraph 2 the following paragraph shall be
inserted, namely:—
“3. The Anti-Corruption Branch Police Station shall
not take any cognizance of offences
against Officers, employees and functionaries of the
Central Government”.
3. This Notification supersedes earlier Notification
number S.O. 853(E) [F. No. U-11030/2/98-UTL] dated
24th September, 1998 except as respects things done
or omitted to be done before such supersession.
[F. No. 14036/04/2014-Delhi-I (Part File)]
RAKESH SINGH, Jt. Secy.
Printed by the Manager, Government of India Press,
Ring Road, Mayapuri, New Delhi-110064
and Published by the Controller of Publications,
Delhi-110054.
IN THE HIGH COURT OF DELHI AT NEW DELHI
ORIGINAL WRIT JURISDICTION
WRIT PETITION No………………2015
IN THE MATTER OF PUBLIC INTEREST LITIGATION
Mr. Vibhor Anand
3/1 West Patel Nagar
Above Indian Bank
New Delhi …Petitioner
VERSUS
1 Union of India
Through Its Secretary
Ministry of Home Affairs
New Delhi
2 Lieutenant Governor
Through its secretary
National Capital Territories of Delhi
3 Govt of NCT
Through Chief Secretary
National Capital Territories of Delhi
…Respondents
PUBLIC INTEREST PETITION UNDER ARTICLE 226/227 OF
CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT, ORDER
OR DIRECTION MORE PARTICULARLY IN THE NATURE OF
WRIT OF DECLARATION DECLARING THAT THE IMPUGNED
NOTIFICATION ISSUED BY RESPONDENT-1 ON DATED
21.05.2015 AS ULTRA VIRES THE PROVISIONS I.E
ARTICLE 239 AA (4) OF CONSTITUTION OF INDIA AND
RESPONDENT-1 DOES NOT HAVE JURISDICTION OVER
MATTERS CONNECTED WITH SERVICES OF BUREAUCRATS TO
BE APPOINTED
FURTHER DECLARE THAT THE APPOINMENT OF RESPONDENT
3 AS ACTING CHIEF SECRETARY BY RESPONDENT-2 IS
ILLEGAL AND LIEUTENANT GOVERNOR DOES NOT HAVE ANY
DISCRETION TO APPOINT THE CHIEF SECRETATY AND
OTHER SUCH POSTS.
FURTHER DECLARE THAT RESPONDENT -2 IS DUTY BOUND
BY THE AID AND ADVICE OF THE COUNCIL OF MINISTER
AND THE CHIEF MINISTER IN ALL MATTERS THAT
CONCERN THE LEGISLATIVE ASSEMBLY AS PER ARTICLE
239 AA (4) OF CONSTITUTION OF INDIA AND SECTION
41 OF GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF
DELHI ACT 1991
CONCERN STATUE
CONSTITUTION OF INDIA
GOVERNMENT OF NATIONAL CAPITAL
TERRITORY OF DELHI ACT 1991
To
Hon’ble Chief Justice and Other Companion Judges of
High Court of Delhi
The Humble petition of above named petitioner
MOST RESPECTFULLY SHOWETH,
1 That the writ petitioner has no personal interest
in the litigation and that the petition is not
guided by self-gain or for gain of any other
person/institution/body and that there is no motive
other than of public interest in filing the writ
petition.
2 That present Public Interest Litigation
Petition has been filed to the benefit of large
citizens/ Delhi voters. It is submitted the intention
of Parliament was to treat the Delhi Government as a
representative government. It would be disrespecting
voters and travesty to grant autocratic powers to the
respondent-2, an authority which does not have a
‘’Democratic Legitimacy ‘’ in the strict sense. A
democracy by design, guarantees that it is the party
voted into power that represents the peoples of
Delhi.
It is submitted Because in E.P. Royappa
(1974) it was held the “ the Post of Chief
Secretary is a highly sensitive post.... ( Chief
Secretary is a ) lynchpin in the administration and
smooth functioning of administration requires that
there should be complete rapport and understanding
between the Chief Secretary and the Chief Minister
It is submitted in Salil Sabhlok (2013) it was held
“ it may be necessary for the Chief Minister of a
State to appoint a ‘ suitable person as a Chief
Secretary or the Director General of Police.....
because both the State Government or the Chief
Minister and the appointee share a similar vision of
the administrative goals and requirements of the
State. The underlying premises also is that the State
Government or the Chief Minister has confidence that
the appointee will deliver the goods, as it were, and
both are administratively quite compatible with each
other, If there is loss of confidence or the
compatibility comes to an end....”
It is submitted aforesaid precedents clarify the
rationale that the , Chief Minister ought to have the
discretion to appoint Chief Secretaries in the
interest of a smooth functioning representative
government
It is submitted Because Delhi is neither a
full State hood nor a Union Territory, so Article
239, which deals with Union Territories does apply to
Delhi , rather Delhi is Governed by Articles 239 AA
and 239 AB Constitution of India, introduced by
Constitutional amendment in 1991.
It is submitted the impugned notification violate the
mandate of Article 239 AA (4) which mandate as under
“ “ There shall be a Council of
Minister..... in the Legislative Assembly , with the
Chief Minister at the head to aid and advice the
Lieutenant Governor in the exercise of his functions
in relation to matters with respect to which the
Legislative assembly has power to make laws, except
in so far as he, by or under any law, required to act
in his discretion ‘’
It is submitted joint reading of Article 239
AA (4) read with section 41 of the GNCT Act ,
respondent-2/the lieutenant Governor does not have
any discretion to appoint the respondent-4 as Chief
Secretary and other such posts , nor is there any
special law granted him this discretion.
It is submitted the pharse ‘’ aid and
advice ‘’ as used in Article 239AA has been
interpreted by the Supreme Court of India in
Constitution Bench Shamsher Singh ( 1974) to mean
that the aid and advice of the council of Ministers
and the Chief Minister is ‘binding’ on the Governor,
it is not just advisory.
It is submitted as per Article 239 AA (4) the
respondent-4 /lieutenant Governor will have to take
decisions based only on the ‘’ aid and advice’’ of
Chief Minister in exercise of all matters on which
the Legislative Assembly has power to make laws.
3 That as respondent-2-3 failed to perform their
constitutionally duties and respondent-1 issued
impugned notification in violation of Article 239 AA
(4) of Constitution of India and powered respondent-
2 with the jurisdiction over matters connected with
services of bureaucrats and also allowing the
respondent to use discretionary powers to seek the
opinion of chief Minister.
It is submitted section 41 of GNCT Act deals with the
discretionary powers of the respondent-2. It is
submitted as per section 41 of the GNCT Act 1991 ,
respondent-2/the lieutenant Governor does not have
any discretion to appoint the respondent-4 as Chief
Secretary and other such posts , nor is there any
special law granted him this discretion.
It is submitted the unconstitutional act of
respondent-1-2 has far reaching consequences and has
public importance , the present Public Interest
Litigation Petition has been filed and in case this
Hon’ble Court grant relief as claimed , respondent-4
shall be affected by the orders and respondent-4 has
been impleaded as respondent 4
It is submitted as per the knowledge of the
petitioner no other Persons/bodies/institutions are
likely to be affected by the orders sought in the
writ petition.
4 That the petitioner is a public spirited 26
years second year old law student, having its E.Mail
i.e Vibhor.anand 836 @ g.mail.Com, having phone no.
9873420555, doing part time consultancy work with
approximately 2,50,000.00 ( Two Lakhs fifty thousand
only
annual income, having PAN No ANHPA 2936 K and
Addhar Card no. 2361 7196 4286 (Photocopies of
Handicaped certificate, PAN Card,Addhar Card
annexed as Annexure P-1 )
It is submitted the petitioner in his individual
capacity has filed Public Interest Litigation
petition in the High Court of Delhi bearing no,
2400/2015 titled as Vibhor Anand Vs. Union of India &
others,in which this Hon’ble Court has directed to
examine the records of respondents, besides this the
petitioner has also file Public Interest Litigation
bearing Writ Petition no. 282/2015 titled as Vibhor
Anand Vs. Registrar General of High Court of Delhi
which is likely to be listed on 1st July 2015 before
the Hon’ble Supreme Court of India , besides this
petitioner has also filed Public Interest Litigation
in the Supreme Court of India bearing Writ petition (
Civil) D No. 30535 of 2014, challenging the
appointment of Attorney general of India and as per
the communication of registry of Supreme Court of
India same shall be listed before the Hon’ble Judge
in Chamber on 10th day of July 2015.
It is submitted the petitioner has actively
worked under the able guidance of his father Sh. V.K.
Anand, Advocate and has assisted his father in a
number of high profile cases like the December 16
Gang Rape Case and the PIL against the Shahi Imam of
Jama Masjid which is pending before Hon’ble High
Court of Delhi bearing WP No 7990 of 2014
It is submitted by way of this writ petition
petitioner wishes to seek declaration that the
impugned notification issued by respondent-1 on dated
21.05.2015 As ultra vires the provisions i.e article
239 AA (4) of constitution of india and respondent-1
does not have jurisdiction over matters connected
with services of bureaucrats to be appointed
Further declare that the appointment of respondent 4
as acting chief secretary by respondent-2 is illegal
and lieutenant governor does not have any discretion
to appoint the chief secretary and other such posts
Further declare that respondent -2 is duty bound by
the aid and advice of the council of minister and the
chief minister in all matters that concern the
legislative assembly as per article 239 aa (4) of
constitution of india and section 41 of government of
national capital territory of delhi act 1991
5. It is submitted that the petitioner has the means
to pay the costs, if any, imposed by the Court and
petitioner hereby undertake to pay the cost to the
cost, if any, in this respect
6 It is submitted as entire factual position are
within the knowledge of the respondents and the acts
of respondents are unconstitutional and impugned
notification has been issued in gross violation of
provision of constitution of India and every day
matter is being published in print, electronics media
as well as on social media, hence there is no need to
sent any representation being violation of
constitution of India
FACTS OF THE CASE:
.
That the present petition is maintainable as
fundamental rights of petitioner as well as public at
large has been affected as are 22. That the petitioner
has not filed any similar petition before any other
court including Supreme Court of India.
G R O U N D S OF I N T E R F E R E N CE
(a) Because the tussle between the respondents
raises several constitutional and legal issues
on the scope and extent of their powers in the
National Capital Territory ( NCT) of Delhi over
control of key bureaucratic appointment
particularly was sparked by respondent-2’s
appointment respondent-3 as Acting Chief
Secretary/ IAS officer Ms. Shakuntala Gamlin as
acting Chief Secretary
It is submitted Appointment of
respondent-3 was opposed by Mr. Arvind
Kejriwal, Delhi Chief Minister, on the grounds
that it fell beyond the scope of the Lieutenant
Governor’s powers to do so without the aid and
advice of the Ministers.
(b) Because respondent-1 issued impugned
notification which is ultra vires Article 239
AA (4) the provisions of Constitution of India
and also against the provision of section 41 of
the GNCT Act and as it tilts the balance more
in favour of respondent-2, indirectly expanding
its own powers in the region contrary to the
constitutional provisions while it conflates
Delhi as a Union Territory to suit its own
interest.
It is submitted the crucial
constitutional provision relevant to the issue
is Article 239 AA (4) of Constitution of India
which says
“ There shall be a Council of
Minister..... in the Legislative Assembly ,
with the Chief Minister at the head to aid and
advice the Lieutenant Governor in the exercise
of his functions in relation to matters with
respect to which the Legislative assembly has
power to make laws, except in so far as he, by
or under any law, required to act in his
discretion
It is submitted joint reading of Article
239 AA (4) read with section 41 of the GNCT Act
, the lieutenant Governor does not have any
discretion to appoint the Chief Secretary and
other such posts , nor is there any special law
granted him this discretion.
It is submitted the respondent-1 by issuing
the notification treated the Delhi as Union
Territory , but factual and legal position is
Delhi is a peculiar case neither being a State,
nor a Union Territory, so Article 239 of
Constitution of India does not apply as claimed
by the respondent-1
It is submitted Delhi is governed by Article
239 AA and 239 AB of the Constitution of India,
relevant provisions are as under
PART VIII
THE UNION TERRITORIES
239. Administration of Union territories.
(1) Save as otherwise provided by Parliament by
law, every Union territory shall be administered by
the President acting, to such extent as he thinks
fit, through an administrator to be appointed by him
with such designation as he may specify.
(2) Notwithstanding anything contained in Part VI,
the President may appoint the Governor of a State as
the administrator of an adjoining Union territory,
and where a Governor is so appointed, he shall
exercise his functions as such administrator
independently of his Council of Ministers.
239A. Creation of local Legislatures or Council of
Ministers or both for certain Union territories.—
(1) Parliament may by law create for the Union
territory of Puducherry—
(a) a body, whether elected or partly nominated and
partly elected, to function as a Legislature for the
Union territory, or
(b) a Council of Ministers,
or both with such constitution, powers and functions,
in each case, as may be specified in the law.
(2) Any such law as is referred to in clause (1)
shall not be deemed to be an amendment of this
Constitution for the purposes of article 368
notwithstanding that it contains any provision which
amends or has the effect of amending this
Constitution.
239AA. Special provisions with respect to Delhi.—(1)
As from the date of commencement of the Constitution
(Sixty-ninth Amendment) Act, 1991, the Union
territory of Delhi shall be called the National
Capital Territory of Delhi (hereafter in this Part
referred to as the National Capital Territory) and
the administrator thereof appointed under article 239
shall be designated as the Lieutenant Governor.
(2)(a) There shall be a Legislative Assembly for the
National Capital Territory and the seats in such
Assembly shall be filled by members chosen by direct
election from territorial constituencies in the
National Capital Territory.
(b) The total number of seats in the Legislative
Assembly, the number of seats reserved for Scheduled
Castes, the division of the National Capital
Territory into territorial constituencies (including
the basis for such division) and all other matters
relating to the functioning of the Legislative
Assembly shall be regulated by law made by
Parliament.
100 THE CONSTITUTION OF INDIA 101
(c) The provisions of articles 324 to 327 and 329
shall apply in relation to the National Capital
Territory, the Legislative Assembly of the National
Capital Territory and the members thereof as they
apply, in relation to a State, the Legislative
Assembly of a State and the members thereof
respectively; and any reference in articles 326 and
329 to “appropriate Legislature” shall be deemed to
be a reference to Parliament.
(3) (a) Subject to the provisions of this
Constitution, the Legislative Assembly shall have
power to make laws for the whole or any part of the
National Capital Territory with respect to any of the
matters enumerated in the State List or in the
Concurrent List in so far as any such matter is
applicable to Union territories except matters with
respect to Entries 1, 2 and 18 of the State List and
Entries 64, 65 and 66 of that List in so far as they
relate to the said Entries 1, 2 and 18.
(b) Nothing in sub-clause (a) shall derogate from the
powers of Parliament under this Constitution to make
laws with respect to any matter for a Union territory
or any part thereof.
(c) If any provision of a law made by the Legislative
Assembly with respect to any matter is repugnant to
any provision of a law made by Parliament with
respect to that matter, whether passed before or
after the law made by the Legislative Assembly, or of
an earlier law, other than a law made by the
Legislative Assembly, then, in either case, the law
made by Parliament, or, as the case may be, such
earlier law, shall prevail and the law made by the
Legislative Assembly shall, to the extent of the
repugnancy, be void:
Provided that if any such law made by the
Legislative Assembly has been reserved for the
consideration of the President and has received his
assent, such law shall prevail in the National
Capital Territory:
Provided further that nothing in this sub-clause
shall prevent Parliament from enacting at any time
any law with respect to the same matter including a
law adding to, amending, varying or repealing the law
so made by the Legislative Assembly.
(4) There shall be a Council of Ministers consisting
of not more than ten per cent. of the total number of
members in the Legislative Assembly, with the Chief
Minister at the head to aid and advise the Lieutenant
Governor in the exercise of his functions in relation
to matters with respect to which the Legislative
Assembly has power to make laws, except in so far as
he is, by or under any law, required to act in his
discretion:
Provided that in the case of difference of opinion
between the Lieutenant Governor and his Ministers on
any matter, the Lieutenant Governor shall refer it to
the President for decision and act according to the
decision given thereon by the President and pending
such decision it shall be competent for the
Lieutenant Governor in any case where the matter, in
his opinion, is so urgent that it is necessary for
him to take immediate action, to take such action or
to give such direction in the matter as he deems
necessary.
(5) The Chief Minister shall be appointed by the
President and other Ministers shall be appointed by
the President on the advice of the Chief Minister and
the Ministers shall hold office during the pleasure
of the President.
(6) The Council of Ministers shall be collectively
responsible to the Legislative Assembly.
(7) (a) Parliament may, by law, make provisions for
giving effect to, or supplementing the provisions
contained in the foregoing clauses and for all
matters incidental or consequential thereto.
(b) Any such law as is referred to in sub-clause
(a) shall not be deemed to be an amendment of this
Constitution for the purposes of article 368
notwithstanding that it contains any provision which
amends or has the effect of amending, this
Constitution.
(8) The provisions of article 239B shall, so far as
may be, apply in relation to the National Capital
Territory, the Lieutenant Governor and the
Legislative Assembly, as they apply in relation to
the Union territory of Puducherry, the administrator
and its Legislature, respectively; and any reference
in that article to “clause (1) of article 239A” shall
be deemed to be a reference to this article or
article 239AB, as the case may be.
239AB. Provision in case of failure of
constitutional machinery.—If the President, on
receipt of a report from the Lieutenant Governor or
otherwise, is satisfied—
(a) that a situation has arisen in which the
administration of the National Capital Territory
cannot be carried on in accordance with the
provisions of article 239AA or of any law made in
pursuance of that article; or
(b) that for the proper administration of the
National Capital Territory it is necessary or
expedient so to do, the President may by order
suspend the operation of any provision of article
239AA or of all or any of the provisions of any law
made in pursuance of that article for such period
and subject to such conditions as may be specified
in such law and make such incidental and
consequential provisions as may appear to him to be
necessary or expedient for administering the
National Capital Territory in accordance with the
provisions of article 239 and article 239AA.
THE GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI
ACT, 1991
No. 1 of 1992
(2nd January, 1992)
An Act of supplement the provisions of the
Constitution relating to the Legislative Assembly and
a Council of Ministers for the National Capital
Territory of Delhi and for matters connected
therewith or incidental thereto.
BE it enacted by Parliament in the Forty-second year
of the Republic of India as follows :-
PART – IV
CERTAIN PROVISIONS RELATING TO LIEUTENANT GOVERNOR
AND MINISTERS
41. Matters in which Lieutenant Governor to act
in his discretion:
(1) The Lieutenant Governor shall act in his
discretion in a matter: -
(i) which falls outside the purview of
the powers conferred on the
Legislative Assembly but in respect
of which powers or functions are
entrusted or delegated to him by the
President ; or
(ii) in which he is required by or under
any law to act in his discretion or
to exercise any judicial functions.
(2) If any question arises as to whether
any matter is or is not a matter as
respects with the Lieutenant Governor
is by or under any law required to
act in his discretion, the decision
of the Lieutenant Governor thereon
shall be final.
(3) If any questions arises as to
whether any matter is or is not a
matter as respects with the
Lieutenant Governor is by or under
any law required by any law to
exercise any judicial or quasi-
judicial functions, the decision of
the Lieutenant Governor thereon
shall be final.
44. Conduct of business :
(1) The President shall make rules :
(a) for the allocation of business to the
Ministers in so far as it is business
with respect to which the Lieutenant
Governor is required to act on the
aid and advice of his Council of
Ministers; and
(b) for the more convenient transaction
of business with the ministers,
including the procedure to be adopted
in the case of a difference of
opinion between the Lieutenant
Governor and the Council of Ministers
or a Minister.
(2) Save as otherwise provided
in this Act, all executive action of
Lieutenant Governor whether taken on
the advise of his Ministers or
otherwise shall be expressed to be
taken in the name of the Lieutenant
Governor.
(3) Orders and other
instruments made and executed in the
name of the Lieutenant Governor
shall be authenticated in such
manner as may be specified in rules
to be made by the Lieutenant
Governor and the validity of an
order or instrument wich is so
authenticated shall not be called in
question on the ground that it is
not an order or instrument made or
executed by the Lieutenant Governor.
45. Duties of Chief Minister as respects
the furnishing of information to the
Lieutenant Governor, etc. :
It shall be the duty of the Chief
Minister –
(a) to communicate to the
Lieutenant Governor all decisions
of the Council of Ministers
relating to the administration of
the affairs of the Capital and
proposals for legislation;
(b) to furnish such information
relating to the administration of
the affairs of the Capital and
proposals for legislation as
Lieutenant Governor may call for,
and
(c) if the Lieutenant Governor
so requires, to submit for the
consideration of the Council of
Ministers any matter on which a
decision has been taken by a
Minister but which has not been
considered by the Council.
49. Relation of Lieutenant Governor and his
Ministers to President :
Notwithstanding anything in this Act,
the Lieutenant Governor and his Council of
Ministers shall be under the general control
of, and comply with such particular
directions, if any, as may from time-to-time
be given by the President.
50. Period of Order made under article
239 AB and approval thereof by Parliament :
(1) Every Order made by the President under
article 239 AB shall expire at the end of one
year from the date of issue of the order and
the provisions of clauses (2) and (3) of
article 356 shall , so far as may be apply to
a Proclamation issued under clause (1) of
Article 356.
(2 Notwithstanding anything contained in sub-
section (1) the President may extend the
duration of the aforesaid order for a further
period not exceeding two years from the date
of expiry of the order under sub-section (1)
subject to the condition that every extension
of the said order for any period beyond the
expiration of one year shall be approved by
resolutions of both Houses of Parliament.
53. Power of President to remove
difficulties :
(1) If any difficulty arises in
relation to the transition from the
provisions of any law repealed by this Act or
in giving effect to the provisions of this
Act or in giving effect to the provisions of
this Act and in particular in relation to the
constitution of the Legislative Assembly, the
President may by order do anything not
inconsistent with the provisions of the
Constitution or of this Act which appear to
him to be necessary or expedient for the
purpose of removing the difficulty.
Provided that no order under this sub-section
shall be made after the expiry.
54. Laying of Rules before Legislative
Assembly:
Every rule made by the Lieutenant
Governor under this Act shall be laid, as
soon as it is made, before the Legislative
Assembly.
(c) Because the impugned notification states that
apart from public order, police and land, the
category of “ Services” also falls within the
scope of the Central Government , which is
ultra vires
It is submitted Article 239 AA gives the
Legislative Assembly of Delhi power on all
matters under the State list ,and Entry 41 of
the State List includes State Public Service
Commissions
It is submitted respondent-1 notification by
reiterating that Indian Administrative Service
and Indian Police Services personnel will be
chosen by the Central Government from the Union
Territories Cadre –is to conflate Article 239
and 239 AA, denying the Special status that
Delhi and further denying it the powers under
Entry 41
It is submitted Gazette Notification is
as under
It is submitted as per notification
lieutenant Governor would have Jurisdiction
over matters connected with services, public
orders, police and land and matters pertaining
to services of bureaucrats to be settled by the
lieutenant Governor, allowing him discretionary
powers to seek the opinion of the Chief
Minister as and when lieutenant Governor deemed
it fit.
(d) Because it is very unfortunate that Delhi Chief
Minister and lieutenant Governor of Delhi
rushed to meet the President of India for a
decision on the dispute under Article 239 AA
(4) of the Constitution of India , Although the
Transaction of Business Rules suggest that when
there is a dispute between the Chief Minister
and the lieutenant Governor, there must be an
endeavour to settle it through discussions, and
only then must a referral be made to the
President.
(e) Because the act of respondent-2 cancelling or
staying the orders by the Chief Minister, also
seems to be illegitimate and excessive
It is submitted Rule 23 of the
Transaction of Business Rules states that all
relevant proposal of the Delhi Government “
have to be submitted “ to the lieutenant
Governor through the Chief Secretary , but no
where does it state that the lieutenant
Governor can reject or cancel such orders.
(f) Because although the act of lieutenant Governor
cannot be treated as legitimate , but on the
other hand act of respondent to
(g) Because the Delhi Government and lieutenant
Governor of Delhi have locked horns over the
constitutional validity of each other’s
decisions pertaining to the appointment of a
bureaucrat namely Shakuntala Gamlin as Acting
Chief Secretary.
(h) Because the impasse over Division of Powers in
Delhi created such a atmosphere respondent-3
are crying foul, accusing the respondent-1 of
backstabbing the peoples of the capital and
alleging that the Prime Minister ‘s Office is
trying to run Delhi through the lieutenant
Governor
(i) Because it needs interpretation of law relevant
to understanding the relations between the
lieutenant Governor and the Chief Minister in
Delhi as per Article 329 AA of the Constitution
of India , the Government of National Capital
Territory of Delhi Act, 1991 ( GNCT Act) , the
rules formulated under this Act ( transaction
of Business Rules )
It is submitted it needs to be interpreted
the precise contours of sharing of powers
between the lieutenant Governor and the Delhi
Government , which is a grey area
(j) Whether lieutenant Governor’s powers extend to
the appointment of the Chief Secretary without
the “ aid and advice “ of the Chief Minister
(k) Because the responsnt-1’s notification is ultra
vires of Article 329 AA of the Constitution .
(l) Because in E.P. Royappa (1974) it was held the
“ the Post of Chief Secretary is a highly
sensitive post.... ( Chief Secretary is a )
lynchpin in the administration and smooth
functioning of administration requires that
there should be complete rapport and
understanding between the Chief Secretary and
the Chief Minister
(m) Because It is submitted in Salil Sabhlok (2013)
it was held “ it may be necessary for the
Chief Minister of a State to appoint a ‘
suitable person as a Chief Secretary or the
Director General of Police..... because both
the State Government or the Chief Minister and
the appointee share a similar vision of the
administrative goals and requirements of the
State. The underlying premises also is that the
State Government or the Chief Minister has
confidence that the appointee will deliver the
goods, as it were, and both are
administratively quite compatible with each
other, If there is loss of confidence or the
compatibility comes to an end....”
It is submitted aforesaid precedents clarify
the rationale that the , Chief Minister ought
to have the discretion to appoint Chief
Secretaries in the interest of a smooth
functioning representative government
(n) Because Delhi is neither a full State hood nor
a Union Territory, so Article 239, which deals
with Union Territories does apply to Delhi ,
rather Delhi is Governed by Articles 239 AA and
239 AB Constitution of India, introduced by
Constitutional amendment in 1991.
(o) Because the impugned notification violate the
mandate of Article 239 AA (4) which mandate as
under
“ There shall be a Council of
Minister..... in the Legislative Assembly ,
with the Chief Minister at the head to aid and
advice the Lieutenant Governor in the exercise
of his functions in relation to matters with
respect to which the Legislative assembly has
power to make laws, except in so far as he, by
or under any law, required to act in his
discretion
It is submitted joint reading of Article 239
AA (4) read with section 41 of the GNCT Act ,
the lieutenant Governor does not have any
discretion to appoint the Chief Secretary and
other such posts , nor is there any special law
granted him this discretion.
It is submitted the pharse ‘’ aid and
advice ‘’ as used in Article 239AA has been
interpreted by the Supreme Court of India in
Shamsher Singh ( 1974) to mean that the aid and
advice of the council of Ministers and the
Chief Minister is ‘binding’ on the Governor, it
is not just advisory.
(p) Because as per Article 239 AA (4) the
lieutenant Governor will have to take decisions
based only on the ‘’ aid and advice’’ of Chief
Minister in exercise of all matters on which
the Legislative Assembly has power to make
laws.
It is submitted in view of the above
provisions , the Legislative Assemblry of Delhi
has the powers to make laws on all matters in
the State List and the Concurrent list in the
VIIth Schedule of the Constitution., except
enteries related to public order, police and
land as per Article 239 AA (3)
(q) Because Section 41 of GNCT Act deals with
discretionary powers of the lieutenant Governor
, there is no such law granting discretion to
the the lieutenant Governor for making such
appointments like of Ms. Shakuntala Gamlin as
Acting Chief Secretary,
(r) Because the Appointment of Ms. Shakuntala
Gamlin as Acting Chief Secretary, appointed by
respondent-2 is illegal , against the
constitutional provision, hence required to
declare illegal.
(s) Because the respondent-2’s discretionary power
does not extend to the appointment of Chief
Secretary without the ‘ aid and advice ‘ of the
Chief Minister and his Council of Ministers.
(t) Because the act of respondent 1-2 violate the
intention of Parliament in passing the
constitutional amendment introducing Article
239 AA granting special status to Delhi. It is
submitted the population of Delhi is large, and
it is only fair that the people deserve a
representative government serving their
interests, similar to other States, except in
matters concerning land, public order and
police
It is submitted given such an
intention of the law makers, for all practical
purposes, from then on, Delhi has acted and
functioned like other States, which is why the
language used in Article 163 (1) pertaining to
States reads identical to that Article 239 AA
(1) of the Constitution of India pertaining to
Delhi, while that of the provision relating to
Delhi reads different from the provisions
relating to all others Union Territories.
Thefore , just as in all others State, the
Supreme Court has justified that the Chief
Secretary appointment be made at the discretion
of the Chief Minister, in Delhi as well. It is
submitted it is Chief Minister who must have
the powers to appoint the Chief Secretary, by “
aiding and advising ‘’ the lieutenant Governor
(u) Because joint reading of Article 239 AA (4) of
the Constitution of India read with Section 41
of the National Capital Territory of Delhi Act
( GNCT Act ), the lieutenant Governor does not
have any discretion to appoint the Chief
secretary and other such posts, nor is there
any special law granting him this discretion
and the lieutenant Governor is bound by the ‘
aid and advice’ of the council of Ministers and
the Chief Minister in all matters that concern
the Legislative Assembley
SOLE QUESTION BEFORE THE HON’BLE COURT
Whether the actions of Respondent – 2 to Bypass the
Chief Minister and the Council of Ministers is
violative of the settled position of Law alaid down
by the Seven Judges constitution bench of the Supreme
Court in Shamsher Singh & Anr. Vs State of Punjab,
AIR 1975 SC 2192 in which the Supreme Court Held that
‘The President or the Governor acts on the aid and
advice of the Council of Ministers with the
PrimeMinister at the head in the case of the Union
and the Chief Minister at the head
in the case of State in all matters which vests in
the executive whether those functions are executive
or legislative in character. Neither the
President nor the Governor is to exercise the
executive functions personally.
Whether an effective governance can be achieved if
such ego clashes between the Respondent no. 1, 2 & 3
are allowed to continue and the public at large
continues to suffer.
Whether joint reading of Article 239 AA (4) of the
Constitution of India read with Section 41 of the
National Capital Territory of Delhi Act ( GNCT Act )
mandate that , the lieutenant Governor of Delhi does
not have any discretion to appoint the Chief
secretary and other such posts, nor is there any
special law granting him this discretion and the
lieutenant Governor is bound by the ‘ aid and advice’
of the council of Ministers and the Chief Minister in
all matters that concern the Legislative Assembley
Whether the intention of the Parliament was to treat
the Delhi Government as a representative government,
it would be disrespecting voters and a travesty to
grant autocratic powers to the lieutenant Governor,
an authority which does not have a ‘’Democratic
Legitimacy ‘’ in the strict sense. It is submitted A
democracy, by design, guarantees that it is the party
voted into power that represents the peoples of
Delhi.
PRAYER
In view of the above mentioned submissions it is
humbly prayed to this Hon’ble Court that:
WRIT, ORDER OR DIRECTIONS MORE PARTICULARLY IN THE
NATURE OF WRIT OF DECLARATION DECLARING THAT THE
IMPUGNED NOTIFICATION ISSUED BY RESPONDENT-1 ON
DATED...... AS ULTRA VIRES THE PROVISIONS I.E ARTICLE
239 AA (4) OF CONSTITUTION OF INDIA AND RESPONDENT-1
DOES NOT HAVE JURISDICTION OVER MATTERS CONNECTED
WITH SERVICES OF BUREAUCRATS TO BE APPOINTED.
FURTHER DECLARE THAT THE APPOINMENT OF RESPONDENT 4
AS ACTING CHIEF SECRETARY BY RESPONDENT-2 IS ILLEGAL
AND LIEUTENANT GOVERNOR DOES NOT HAVE ANY DISCRETION
TO APPOINTTHE CHIEF SECRETATY AND OTHER SUCH POSTS
FURTHER DECLARE THAT RESPONDENT -2 IS DUTY BOUND BY
THE AID AND ADVICE OF THE COUNCIL OF MINISTER AND THE
CHIEF MINISTER IN ALL MATTERS THAT CONCERN THE
LEGISLATIVE ASSEMBLY AS PER ARTICLE 239 AA (4) OF
CONSTITUTION OF INDIA AND SECTION 41 OF GOVERNMENT OF
NATIONAL CAPITAL TERRITORY OF DELHI ACT 1991
FURTHER APPOINTMENT OF RESPONDENT-4 BE DECLARED AS
NULL AND VOID BECAUSE RESPONDENT-4 DOES NOT ENJOY THE
FAITH OF CHIEF MINISTER AND COUNCIL OF MINISTER AS
LAW LAID BY HON’BLE SUPREME COURT IN CASE TITLED AS
SHAMSHER SINGH AND OTHER VS. STATE OF PUNJAB, AIR
1974 SC 2192.
AND FOR THIS ACT OF KINDNESS THE PETITIONER AS DUTY
BOUND SHALL EVER PRAY.
Petitioner
Through
V.K.ANAND
ADVOCATE
PLACE NEW DELHI
IN THE HIGH COURT OF DELHI AT NEW DELHI
ORIGINAL WRIT JURISDICTION
PUBLIC INTEREST PETITION No....2014
IN THE MATTER OF PUBLIC INTEREST LITIGATION
Mr. Vibhor Anand Petitioner
Versus
Union of India and Others Respondents
I N D E X
_______________________________________________
S.N PARTICULARS PAGES C/FEE
1 Notice of Motion A
2 Urgent Application B Rs. 3/-
3 Memo of Parties C
4 List of Events D-E
5 Public Interest
Litigation Writ
Petition along
with supporting
Affidavit
6 Application u/s 151
For operation of stay
of notification and
removal of respondent-4
during the pendency of
writ petition Rs. 3/-
7 Application u/s 151 CPC
for exemption along with
affidavit Rs. 3/-
8 Certificate of Non filing
9 ANNEXURE-A
Photo copy of Notification
along with true typed copy
of the same
10 ANNEXURE–B
Photo Copy of News
Paper Cutting
along with true
typed copy (Colly)
12 Vakalatnama
___________________________________________
Petitioner
Through
V.K.Anand
Advocate
3/1, West Patel Nagar,
New Delhi-08
Enrolment
No. HIM-79-A/1985
Mobil 9871499769
IN THE HIGH COURT OF DELHI AT NEW DELHI
ORIGINAL WRIT JURISDICTION
WRIT PETITION No………………2015
MEMO OF PARTIES
IN THE MATTER OF PUBLIC INTEREST LITIGATION
Mr. Vibhor Anand
3/1 West Patel Nagar
Above Indian Bank
New Delhi …Petitioner
VERSUS
1 Union of India
Through Its Secretary
Ministry of Home Affairs
New Delhi
2 Lieutenant Governor
National Capital Territories of Delhi
3 Chief Secretary
National Capital Territories of Delhi
…Respondents
___________________________________________
Petitioner
Through
V.K.Anand
Advocate
3/1, West Patel Nagar,
New Delhi-08
Enrolment
No. HIM-79-A/1985
Mobil 9871499769
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