Jammu and Kashmir High Court has stayed the government order designating finance department as ‘cadre controlling authority’ of the planning development and monitoring department (PDMD).
The petition was filed by 150 employees of the PMDP department in the court of Justice Sanjeev Kumar who stayed the State Administrative Council (SAC) order issued by the government vide its no. 407-FD of 2018 dated 20.09.2018.
Earlier the after advocate Salih Pirzada on behalf of employees of PDMD pleaded that the government order was “unconstitutional”.
In terms of the government order, allocation of expenditure, functions and related issues of authorization, 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”.
“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 petitioners said.
“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.
“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.