As the Arvind Kejriwal-Najeeb Jung tussle over the power to post bureaucrats reached Rashtrapati Bhavan on Tuesday, Kejriwal government may have selected the wrong cause to possibly make the right point.
On the face of it, the trigger for the latest round of controversy was the appointment of the acting chief secretary, something so routine that in past chief secretaries travelling out of the country have nominated their colleague on their own.
But chief secretary KK Sharma went on leave without nominating anyone and there was no consensus on the acting CS.
The law, and the Constitution is clear on the powers of the chief minister and his cabinet. The power to appoint senior civil servants is not one of them.
Under Article 239AA inserted into the Constitution by Parliament that gave the Capital a legislative assembly in 1991, the elected government in Delhi that he leads does not have the mandate to appoint or post officers.
“The fact is that Delhi may have an elected chief minister but it is still a Union Territory, a centrally administered territory. Full stop,” a senior government official – familiar with the rules governing allocation of powers – said. “And the control over the civil service in union territories is wielded by the home ministry, and the Lt Governor”.
That the rules say the chief minister should be consulted before the appointment of the chief secretary is only a concession granted by the Centre.
But it was former deputy prime minister LK Advani who had stressed that the consultation was not just a formality in 2002 when then chief minister Sheila Dikshit asked Shailaja Chandra be appointed to the top post.
The then Lt Governor Vijai Kapoor had someone else in mind and conveyed his views to the Centre. Home ministry officials processed Kapoor’s nominee and sought Advani’s approval.
A former home ministry official recalled how the veteran politician rejecting the Lt-Governor’s nominee, pointing to officials that an elected chief minister should have the right to select his, or her team of officials.
Tussle is a symptom, not the root cause
Sources in the Kejriwal government, indicate that there had been some discomfort within the elected government at Raj Niwas taking too much of an interest in areas that were the primary responsibility of the elected government. “This is the root cause of the problem,” Delhi government sources said. Kejriwal's letter to the Prime Minister Narendra Modi makes the same point.
Indeed, the power structure in Delhi is complicated at the best of times. The chief minister heads the elected government but it is the Lt-Governor who has the last word. And then, there are union ministries that too have a say.
“The multiplicity of authorities has been a long felt problem in Delhi. And the Kejriwal government would have received public support if it had stood for a point that improved the quality of lives of the people who elected him,” said a retired government official. “Instead, it chose to run down its officers in public and tarnish their reputation,” the official added.
It is a charge the AAP government vehemently denies, arguing that Raj Niwas precipitated the situation when it got acting chief secretary Shakuntala Gamlin, a 1984-batch IAS officer, to send across a formal complaint against the CM's office. Somehow, the letter – written by Gamlin to the Lt-Governor and the Home Ministry – was leaked within hours. "We only acted to defend the government," an official said.
No end in sight
But as the Centre got down to the task of clarifying the legal position on the CM and the Lt-Governor's powers, the tussle continued in Delhi.
In a letter to Prime Minister Narendra Modi, Kejriwal went beyond the dispute over the appointment of the acting chief secretary and complained that the Centre was trying to run the Delhi government "unconstitutionally through the Lt-Governor. Let Delhi government function independently".
listing his constitutional powers in appointment of officers.