The Delhi High Court has observed that the Lieutenant Governor is the Competent Authority by virtue of delegation of powers under Article 309 of the Constitution, who has power to create and manage posts in the Delhi Legislative Assembly.
The Single-Judge Bench of Justice Chandra Dhari Singh noted that in view of Section 41 of the Government of National Capital Territory of Delhi Act, 1991, the Lt Governor was required to act in his discretion in respect of these matters and not on the aid and advice of the Council of Ministers.
It said the NCT Legislative Assembly of Delhi had no competence to legislate in respect of any subjects, which come under Entries 1, 2 and 18 of State List and Entry 70 of the Union List.
In other words, the services in Delhi were governed by the Union government and covered only by Entry 70 of List I.
The High Court said that Delhi did not have its own State Public Services, as the matters connected with services were relatable to Entry 41 of List-II of the Constitution, which did not come under the purview of the Delhi Legislative Assembly.
Justice Singh suggested that till the time a provision was made by the legislature, the Lieutenant Governor, with the help of the Speaker, should make rules regarding the recruitment and conditions of service of persons appointed to the secretarial staff.
The High Court noted that the DLA Speaker could not be given powers to make appointments to its Secretariat.
As per Justice Singh, Article 187 of the Constitution of India applied to the States for having separate secretarial staff but the same could not be made applicable to Delhi, since it was a Union Territory.
These observations were made while upholding the termination of Siddharth Rao, former Secretary of the Delhi Legislative Assembly on the grounds that his appointment was not carried out by the appropriate Appointing Authority.
Rejecting the plea, the court took note of the fact that Rao’s deputation was made on a non-existent post of Officer on Special Duty (OSD) to the Speaker.
After completion of the probation period as OSD, he was immediately absorbed into the post of Joint Secretary and within a year, was given the charge of Secretary with all upgradation in pay scales.
The court observed that since no approval was taken from competent authority for deputation as OSD, absorption to Joint Secretary and promotion to Secretary, the appointment was vitiated by fraud and was void ab initio.
The former Secretary had challenged two orders terminating him from service and holding all his appointments as illegal and relieving him from the post of secretary.
Without the approval from the competent authorities, the entire saga of the series of appointments, absorption and promotion of the petitioner was tainted with irregularities and illegalities, de-hors the rules or due process of law was vitiated, added the High Court.
The Bench said that it had proof that Rao did not turn up to reply to the showcause notice issued, therefore, the petitioner’s termination cannot be termed as illegal.
(Case title: Siddharth Rao vs Government of NCT of Delhi & Ors)