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MHA notification: High Court hear on August 5

Delhi high court

New Delhi:  The Delhi High Court today said it will hear on August 5 a PIL challenging the Centre’s recent notification giving the Lt Governor absolute powers in appointing bureaucrats in the national capital.

A bench of Justices Badar Durrez Ahmed and Sanjeev Sachdeva while listing the matter for August 5, said by then either the Supreme Court would decide it on the Centre’s plea or the single judge would take a decision on the issue which has also been raised by the Delhi government.

The Centre has challenged in the apex court a recent judgement of the high court which said the notification was “suspect” and Anti-Corruption Branch (ACB) of the city government can arrest Delhi Police officials in graft cases.

The Delhi government, in turn, has challenged in the high court the constitutional validity of the May 21 notification of Ministry of Home Affairs (MHA).

Today, the division bench of the high court, while hearing the PIL, asked the petitioner law student why he was interfering in the issue when “both the affected parties — the Centre and the state government — are fighting so vehemently”.

The bench also noted that both constitutional authorities are fighting over the issue in the “right way” by going to court.

It also told the petitioner that when two constitutional authorities are fighting over who is right, “let them”.

“They are entitled to fight,” the court said.

During the brief hearing, in which several lawyers of the city government were present, Additional Solicitor General (ASG) Sanjay Jain said there was no meaning in the PIL.

ASG Maninder Singh, who represented MHA, said the order of the Supreme Court, which was hearing the Centre’s appeal for a stay of May 25 high court judgement, has to be seen before any decision was taken.

Delhi government counsel, senior advocate H S Phoolka and advocates Raman Duggal and Rahul Mehra, who were present in court, also said the apex court order has to be seen.

Meanwhile, the Supreme Court, which was hearing the Centre’s plea to stay the high court order, today issued notice to the Delhi government and said, “We are not inclined to go into the issue of stay at this stage and after getting the reply (of the Delhi government), we will look into it”.

The PIL, by Vibhor Anand, was filed a day after the high court termed the May 21 notification as “suspect”.

The Centre’s notification has barred the Delhi government’s ACB from acting against its officers in criminal offences.

The high court had also held that ACB has the jurisdiction to arrest Delhi police personnel involved in criminal offences.

The PIL has also contended that the appointment of senior bureaucrat Shakuntala Gamlin as the acting chief secretary by the Delhi Lt. Governor was “illegal”.

It has contended that the notification was “ultra vires” of the constitutional provisions — Article 239 AA (4), and that the Centre does not have the jurisdiction over matters connected with services of bureaucrats in the national capital.

The PIL said, “Delhi is neither a full state nor a Union territory and Delhi is governed by Articles 239-AA and 239-AB of the Constitution of India (which deals with Union territories) introduced by constitutional amendment in 1991.”

“As per Section 41 of the GNCT Act, 1991, the Lieutenant Governor does not have any discretion to appoint Gamlin as the chief secretary and other such posts, nor any special law granted him this discretion,” it has said.

It has also said that the Lt. Governor is “dutybound by the aid and advice of the council of ministers and the chief minister in all matters that concern the legislative assembly as per Article 239 AA (4) of the Constitution of India and Section 41 of the Government of National Capital Territory of Delhi Act, 1991.”

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