New Delhi, May 20
Former solicitor general Gopal Subramaniam on Wednesday said Delhi's Lt. Governor cannot overrule the state government's decisions as this would "violate the constitutional scheme".

The Supreme Court lawyer submitted his legal opinion to the Aam Aadmi Party (AAP) government over powers of the Delhi government and the Lt. Governor in the appointment and transfer of secretaries.

In his letter, Subramaniam said: "The exercise of powers by the government of Delhi cannot be overruled by the Lt. Governor, as this would violate constitutional scheme."

"In particular, it would be ultra vires Articles 14 and 239AA and would also fall foul of the basic structure of the constitution as it undermines the basic features of democracy and the cabinet form of government."

Among other provisions, Article 239AA states: "Provided that in the case of difference of opinion between the Lt. Governor and his ministers on any matter, the Lt. Governor shall refer it to the president for decision and act according to the decision given thereon by the president and pending such decision... take such action or to give such direction in the matter as he deems necessary."

In his letter sent to AAP government, the former solicitor general said, "Given this position of law, it would be constitutionally unviable for the Lt. Governor to act de hors the aid and advice of the Council of Ministers on any such matter."

"Any such action would be clearly contrary to the provisions of Articles 14 and 239AA, as well as being ultra vires the provisions of the Government of National Capital Territory Act, 1991, and the Transaction of the Business of the Government Rules, 1993."

"For Lt. Governor to act in such a manner would completely undermine the mandate of an elected government," he added.

A tussle between Delhi Chief Minister Arvind Kejriwal and Lt. Governor Najeeb Jung started over the appointment of senior bureaucrat Shakuntala Gamlin as the acting chief secretary.

The chief minister has accused Gamlin of lobbying for power distribution companies.

LG alone competent to approve transfer, posting, says office

Delhi Lt. Governor Najeeb Jung's office on Wednesday issued a statement saying the lt. governor alone was competent to approve transfer and posting of principal secretary or secretary-level officers.

The statement was issued hours after the Jung wrote to Chief Minister Arvind Kejriwal cancelling all transfers and postings by the city government in the past four days.

The statement said the orders and communication sent by the Delhi government to the lt. governor's office have tended to "obfuscate the special position that Delhi has, as the national capital, which is significantly different from other states".

"Delhi is a union territory with a legislative assembly and not a state and therefore has important points of distinction," the statement said.

It said the orders issued by the Delhi government were fundamentally "at variance with the constitution since service matters were assigned to the lt. governor under the powers delegated to him by the president".