However, KTS Tulsi, senior advocate and Rajya Sabha member, is of the opinion that Land and Police are reserved subjects under Article 239(a)(a) of the Constitution. Only in these two the L-G has jurisdiction. In other matters, including appointment of officers, the parliamentary system of governance prevails. That is the L-G has to abide by aid and advice of the council of ministers.

In an indication that Delhi government may be considering taking the legal recourse over its ongoing tussle with the Lt. Governor and the centre, Senior Supreme Court lawyer, Rajeev Dhavan, submitted a three-page opinion to the Delhi government, stating that “this crisis has been created entirely by the L-G”. He wrote, “It is abundantly clear that the L-G has exceeded his authority and has turned the entire relationship between himself and the council of ministers on its head to jeopardise democracy and the Constitution.”

Quoting the provisions in the Constitution and the National Capital Territory of Delhi Act 1991, Dhavan said the chief minister has a “perfect right” to a chief secretary’s choice. The fact that there has been a lapse of 40 hours is not sufficient reason for the L-G to impose his choice on the CM especially when his urgency powers arise only when a reference is pending before the central government. At best, Dhavan stated, the L-G can advise the CM that it is necessary to appoint a chief secretary forthwith. “It is clearly stated that L-G will act on the aid and advice of the CM in matters within the remit of legislative assembly.”

Senior advocate Indira Jaising supported Dhavan stating, “There is no provision granting the L-G powers to act at his own discretion in the matter of appointment of the Chief Secretary.” Stating that the L-G has no independent discretion in the matter of appointment of Chief Secretary in the democratic scheme of the Constitution, she said “The decision who to appoint the Chief Secretary must be of the Council of Ministers and it is only when the L-G has a difference of opinion on that decision that his role begins, hence there is no question of the L-G taking the decision who to appoint as Chief Secretary without waiting for the decision of the Council of Ministers.”

The stand of the Centre, say home ministry officials, is very clear and it would be conveyed to the AAP government. On matters relating to public order, land and police, the L-G has absolute power to take decisions whereas on matters concerning transfers and posting of officials, the L-G may consult the CM whenever he deems fit. The home ministry has also sought the Attorney General Mukul Rohatagi’s advice on the issue.

Refusing to budge, the L-G wrote to Kejriwal that all appointments made by the government without his approval in the last four days were not valid and said he was the sole authority in deciding transfer and postings of bureaucrats. On the other hand, Deputy Chief Minister Manish Sesodia said the L-G must understand that he doesn’t have the power to give director orders to the officers and officers will have to understand that they can’t take direct orders from the L-G.

Unfortunately, all this happened on an issue, which was otherwise a most routine matter – designating a senior IAS officer as acting chief secretary for 10 days. The regular chief secretary, KK Sharma (who was Kejriwal’s choice), had gone on a leave to attend to some private matters in the USA (May 14-24). Former Delhi chief secretary Shailja Chandra, says this was most routine matter and should not have taken more than five minutes to be sorted out. It’s a settled norm, at least so far, is that the senior most officer in the government, officiates during such leave of absence of the top bureaucrat.

The impasse between Najeeb Jung and Arvind Kejriwal is not the first in Delhi, but previous disagreements between the two top executives have always been resolved through dialogue and, occasionally, the intervention of the president and the home ministry. Former chief minister Sheila Dikshit says she had worked with a BJP-appointed L-G and one appointed by the Congress. “I made it a point to meet the L-G once a week to ensure smooth functioning. Either I would convince the L-G or he would convince me”.

A former L-G, who prefers to remain anonymous, admits that an elected government usually had the upper hand. “Though this is a constitutional post, I had to deal with an elected government. If I had difference of opinion, I would communicate the same and the issue was resolved with dialogue, something that is not visible in the present situation.” (IPA Service)