The High Court on Tuesday stayed the government order designating finance department as ‘cadre controlling authority’ of the planning development and monitoring department (PDMD).
The bench of Justice Sanjeev Kumar stayed the order issued by the government vide its no. 407-FD of 2018 dated 20.09.2018 after advocate Salih Pirzada on behalf of aggrieved employees of PDMD pleaded that the order is “unconstitutional”.
In terms of the government order, allocation of expenditure, functions and related issues of authorisation, releases, revalidation, and re-appropriation were transferred from the planning development and monitoring department to the finance department.
After hearing the counsel, the court stayed the order till next date subject to the objections from the other side. It also directed the government to file objections to the petition within four weeks.
The petitioners while pleading that the order under challenge passed by the government pursuant to the decision of State Administrative Council (SAC) is “without jurisdiction” said the powers conferred upon the advisors under the Delegation of Powers Act, 2018 are “unconstitutional”.
The petitioners pleaded that the Governor under the Constitution has “no authority to divert the formation of Council of Ministers to any authority under the garb of legislation especially when the Legislative Assembly was in suspended animation rendering the Council of Ministers into dormancy”.
“There is no Constitutional provision giving powers to the Governor for modulating the mechanism devised in furtherance to the powers exercised by the legislation
“The original existence of Council of Ministers is also rendered suspended by the Proclamation. Therefore, the superimposition of the impugned order over the recruitment rules framed under the legislative powers is beyond the peripheries of delegated legislation,” the petition said.
While the petitioners pleaded that in keeping with the Constitution the SAC in no manner could be presumed to fulfill the requirements of Council of Ministers, they submitted that the Governor in absence of any express authority conferred under the Constitution cannot delegate the basic authority of an independent constitutional body to the Advisors.
“The impugned action is against the basic structure doctrine, as such, is liable to be declared ultra vires to the Constitution. In addition what cannot be done directly cannot be achieved with the aid of delegated legislation. Therefore the impugned Delegation of Powers Act, 2018 and the subsequent orders passed by the SAC being illegal are liable to be declared ultra vires to the Constitution” the petitioners plead.
They contended that the “exercise of incidental and consequential powers under clause 1(b) of Section 92 of the Jammu & Kashmir Constitution cannot be extended to unsettle or render the pre-existing legislative actions obsolete”.
“The incidental or consequential action cannot be invoked to change the anatomy of pre-existing rules framed by the legislature but are restricted to objects of proclamation as per Section 92 of the Constitution. The impugned order being beyond the object of proclamation and traversing over the legislative authority of the Government cannot be allowed to sustain,” the petitioners pleaded.
“Governor’s rule is applied in exigent situations only in the state of Jammu and Kashmir. In other states of India, President’s rule is applied; the President has similar powers as that of the Governor. However, if he chooses to pass a legislation, it must be approved by both Houses of the Parliament,” the petitioners plead.
“If such interpretation of Governor’s power under Governor’s rule, is allowed, then the Governor can while acting as an autocrat even bring in a constitutional amendment to take out the restriction of assumption of power of the High Court and resultantly assume that power also,” the petition said.
They pleaded that the basic scheme of the constitution as it stands enacted can never be altered by exercise of unfettered and unbridled power by the Governor.