Senior advocate Indira Jaising backed the Aam Aadmi Party-led Delhi government in its tussle with the union home ministry that issued a notification giving the edge to the Lt. Governor when it comes to powers, including those to transfer and posting of bureaucrats.
In her legal advice that was sought by the AAP government, Jaising wrote: "Notification dated May 21, 2015 is ultra vires the power of the central government and the president. The government of Delhi has the power to legislate on the matters covered by Entry 41 and hence co-extensive executive powers."
"Allocation of work to the public servants is an administrative and executive function of the government of NCT, Delhi," she said.
"The central government or the president has no power to delegate the exercise of power and discharge of functions in matters relating to services to the Lt. Governor."
She highlighted, "Rule 7(b) read with Rule 3(2) and Rule 2(c) of the IAS (Cadre) Rules empower the government of NCT Delhi to make postings of IAS officers."
"In light of Rule 23(va) of the Transaction of Business Rules, all files sent to the L-G will have to be sent through the chief minister by the chief secretary," Jaising added in her legal advice.
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Earlier, senior counsels K.K. Venugopal and Gopal Subramanium supported the AAP government by calling the MHA notification "illegal and unconstitutional".
The home ministry on Thursday issued a notification saying that public order, land, police and services are under the Lt. Governor.
The notification was issued following an ongoing tussle between the AAP government and Lt Governor Najeeb Jung over the appointment and transfer of bureaucrats. Both had approached the president.