HC observation on MHA notification not binding: SC

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Centre has no intention of running Delhi govt: Rajnath

NEW DELHI: In what appears to be a softening of its stand, the Arvind Kejriwal government on Friday told the Delhi high court that it agreed to send its decisions on the transfer and postings of senior bureaucrats belonging to the central cadres to the Lt Governor for approval.In case of a dispute, the Delhi government said the matter should be referred to the President. Since the President is guided by the advice of the Union government , the new stand of the Delhi government virtually amounts to conceding that the final call on transfers and postings would be with the LG or with the Central government.READ ALSO:With the Delhi government striking this conciliatory tone in regard to the role of the LG — with whom it was engaged in a headlong confrontation — the court directed the LG to "deliberate" upon the government's "proposal", and in case of a disagreement, refer the matter to President of India."Let the LG look at this proposal, refer it to the council of ministers and then to President if needed," Justice Rajiv Shakdher said while issuing notice to Ministry of Home Affairs (MHA) on a Delhi government petition challenging the constitutional validity of the ministry's notification.However, the court refused to stay the notification that gives LG absolute powers to appoint and transfer bureaucrats, saying it needs to hear the Centre's arguments. "The question needs to be considered. There is a logjam and we need to decide one way or the other. You both say you have the power, it needs to be determined," the court observed.It asked the Centre to file an affidavit giving data on procedure followed in Delhi and other UT's on transfer/postings prior to the notification.HC's interim order came after senior advocate Indira Jaising, representing Delhi government, offered to break the "conundrum" by agreeing to send its transfer orders to the LG. Citing the Transaction of Business Rules (TBR), she said in case the LG rejects their choice, he should send it to the President of India as per procedure.The hearing saw heated exchange between state government and the Centre each blaming the other for the current crisis. While Jaising maintained the "Centre can't short circuit the procedure provided under the Rules and the Constitution," Additional Solicitor General (ASG) Sanjay Jain told the court that state government is "inherently ineligible" for "tweaking" with postings of officers allocated to it by the Centre."As per law they don't have the power to even make the proposal," the senior law officer argued, cautioning the court that any interim stay on the notification would "disturb the basic fabric". During the arguments, Jaising submitted that the entire "controversy" arose not because the Delhi government wants to recruit or dismiss officers but because it wants to allocate them work as per its mandate won from the citizens of Delhi.She conceded the state has no control over the officers of the All India Services with respect to their service conditions, but argued that "job allocation is my prerogative. That is governance. One runs a government through its officers, therefore, we need to have the power to allocate them work as per our wish."When HC wondered if the state government can allocate jobs to bureaucrats sent to it by Centre, the latter claimed absolute power, saying the officers are sent with a rank and designation and postings remain its sole preserve. "State government is trying to change work allocation made by us. Centre is cadre controlling authority for IAS/IPS officers and for UT officers. The state government can't interfere," ASG Jain submitted.The court has now posted the matter for further hearing in August. The Delhi government, in its petition, said that in a democratic set-up there cannot be two reporting authorities -- the LG and the CM. It said that by way of the notification, the Centre has sought to "usurp and arrogate unto itself, in a wholly unconstitutional and illegal manner", a wide range of functions which would fall under the subject 'services', effectively the whole gamut of powers to address matters pertaining to the bureaucratic affairs of Delhi government. The consequence of the May 21 notification is that the "day-to-day functioning and administration of the Delhi government is being hampered and is suffering", said the plea seeking stay on the notification.