vibhor anand vs. uoi.pdf

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


…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



PUBLIC INTEREST PETITION No....2014


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



WRIT PETITION No………………2015

MEMO OF PARTIES


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


3 Chief Secretary


…Respondents

___________________________________________

Petitioner

Through

V.K.Anand

Advocate

3/1, West Patel Nagar,

New Delhi-08

Enrolment

No. HIM-79-A/1985

Mobil 9871499769

vibhor anand vs. uoi.pdf

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