DERC chairman row: SC asks LG, CM to sit together to decide Chairperson’s name

NEW DELHI: The Supreme Court on Monday asked Lieutenant Governor VK Saxena and Delhi’s Chief Minister to sit together and decide on the name of Chairperson of delhi-electricity-regulatory-commission">Delhi Electricity Regulatory Commission (DERC) and they have to “rise above bickering”.

A bench of Chief Justice of India DY Chandrachud and Justices PS Narasimha and Manoj Misra said they both are constitutional functionaries and they have to rise above political bickering.

It asked, “Does everything run through modalities of the Supreme Court? They both are constitutional functionaries. Can’t the LG and Chief Minister sit and come with a name on which both agree.”

“So much of the work of government happens away from public eye. We are not so much concerned about DERC Chairperson appointment which will be done. We are on the larger issue. You both can sit together and sort out some issues,” it said while posting the matter of DERC Chairperson appointment for hearing on Thursday.

During the hearing, CJI said that there are many ways, one way is that one functionary gives a list of three names and the other functionary accepts one name. “We don't want to step into this. We want you both to sit down and do this,” the bench added.

The top court was hearing a petition filed by Delhi government relating to the appointment of delhi-electricity-regulatory-commission">Delhi Electricity Regulatory Commission (DERC) Chairperson.

The apex court on July 4 had ordered to defer the oath taking ceremony of the appointment of Justice (retired) Umesh Kumar as the chairperson of delhi-electricity-regulatory-commission">Delhi Electricity Regulatory Commission (DERC) till July 11.

The Delhi government moved the Supreme Court challenging the appointment of former Allahabad High Court judge Justice Umesh Kumar as DERC chairperson on the ground that it was unilaterally made by the Lieutenant Governor without its concurrence.

The bench had noted that the petition raises a point of law regarding the validity of Section 45D of the GNCTD Act, as amended by the latest Ordinance issued by the Centre, which gives overriding powers to the Lieutenant Governor over the elected government in the matter of appointments.

Senior advocate Abhishek Manu Singhvi, appearing for the Delhi government, had sought stay of the notification appointing Justice Kumar.

Unilateral action by the LG is against the Supreme Court's five-judge Constitution bench judgment and also the spirit of Article 239AA of the Constitution, he had said.

Delhi power minsiter Atishi alleged that the recruitment was done by “overlooking” the aid and advice of the elected government, therefore, violating the constitution by appointing someone else for that position.

She had said Delhi Chief Minister Arvind Kejriwal on June 21 had recommended Justice (retd.) Sangeet Lodha for the post, however, the same was “wilfully ignored” by the President.

Earlier, Kejriwal approved Justice (retd.) Rajeev Shrivastava for the DERC chairman, and the file was put up by former deputy Chief Minister Manish Sisodia, who also held the power portfolio. However, the file was returned by Lieutenant Governor Vinai Saxena with a recommendation to also consult with Delhi High Court Chief Justice for the appointment.

Later, the Delhi government approached the Supreme Court on April 12, blaming the LG for delaying the appointment.

On May 19, the top court observed that the LG is not supposed to act on his own discretion on such appointments, and directed the government to appoint the DERC chairperson within two weeks.

However, Justice Shrivastava later ‘expressed his inability to accept the appointment’ due to ‘family commitments and requirements’.

The bench had said while appointing a sitting or a retired judge to the post of a state electricity regulatory commission, the Chief Justice of the High Court, to which the judge concerned belonged, has to be consulted.

Chief Justice of the High Court, under whose jurisdiction the electricity regulatory panel falls, need not be consulted for the appointment if the judge concerned has not served in that High Court, it had added.

The apex court while referring to a 2018 Constitution bench judgement and its judgement on the services row between the Centre and the Delhi government, the bench said it has been made clear that the "LG has to act on the aid and advice of the council of ministers."

Delhi government had filed a plea in the top court alleging inaction by Lieutenant Governor in appointing the Chairperson of DERC.

The DERC has been functioning without a Chairperson for the last four months after previous Chairperson Justice (Retd) Shabihul Hasnain demitted office on January 9, 2023 upon attaining the age of 65 years.