Do not send file directly to officers: Sisodia writes to Delhi LG over appointment of DERC chairman

New Delhi [India], January 10 : Delhi Deputy Chief Minister Manish Sisodia urged Lieutenant Governor VK Saxena on Tuesday to clear the appointment of the Delhi Electricity Regulatory Commission (DERC) chairperson urgently.
In his letter, the Deputy CM also urged the LG, not to send the file directly to officers, as he has done in three cases last week, as that is against the "Constitution and various SC judgements".
Sisodia said the tenure of the present DERC Chairman lapses on Tuesday and yet the LG has not cleared the appointment of the recommended office bearer.
In his letter, Manish Sisodia wrote, "CM approved the appointment of Justice (retd) Rajeev Shrivastava of MP High Court as DERC Chairperson on January 4, 2023 to succeed Justice (retd) Shabibul Hasnain after his retirement. Chief Justice of MP High Court has also given his consent as required under the Electricity Act. CM sent the matter to LG on the same day to decide whether he would differ with the decision of the Council of Ministers and whether he would like to invoke provision to Article 239AA(4) of the Constitution."
Sisodia said Justice (retd) Rajeev Shrivastava has been an eminent judge of the MP High Court and has had an outstanding career and impeccable record. "Therefore, I find no reason why you would differ with the decision of the Council of Ministers. On the contrary, I feel you would be pleased to endorse this decision. SC has also said that the proviso to Art 239AA(4) should be rarely invoked," Sisodia wrote.
The Deputy CM further quoted the Supreme Court from the matter State (GNCTD) Union of India Ar, (2018) 8 SCC 581 "Under the said judgement the SC has taken the view that the LG is bound by the aid and advice of the Council of Ministers as long as he does not exercise proviso to Art 239AA(4)."
The judgement further notes that the difference of opinion between the LG and the Council of Ministers should have a sound rationale and there should not be an exposition of the phenomenon of an obstructionist but a reflection of the philosophy of affirmative constructionism and profound sagacity and judiciousness. And that, "In a Cabinet form of Government, the substantive power of decision making vests in the Council of Ministers with the Chief Minister as a head. The aid and advice provision contained in the substantive part of Article 239 AA(4) recognises this principle. When the Lieutenant Governor acts on the basis of the aid and advice of the Council of Ministers, this recognises that real decision-making authority in a democratic form of Government vests in the executive," he said.
Further in the letter, Sisodia said, "However, should you desire to express a difference of opinion, then I wish to remind you to kindly follow the process provided in Rule 49 of TBR. In the last few days, there have been three occasions when you implemented your decision by sending the file directly to the officers bypassing the CM and the Minister and got the officers to issue a notification. When asked, your justification was that since it was written 'Administrator/LG shall appoint in those provisions/Acts', therefore, you directly exercised your powers bypassing the elected government."
"That is an incorrect legal position Sir. On all transferred subjects, unless it is a quasi-judicial or judicial matter where LG has to act in his discretion, on all other matters, LG is bound by the aid and advice of the Council of Ministers. So, kindly do not send the file related to the appointment of the DERC Chairman directly to the officers for the issue of notification. There is a specific judgement of SC on the issue of DERC. In addition to its strong observations in the judgement of the Constitution Bench, the Division Bench of SC has also reiterated the same position," he added.
Quoting the State (GNCTD) Union of India and Anr, on February 14, 2019 judgement in the letter, the Dy CM informed the LG of how the court has noted that in the context of the Constitution Bench judgement, it clearly means that LG has to act on the aid and advice of Council of Ministers, as such function do not come within his discretionary powers when it comes to the DER Act.
"Therefore, despite it being written that government means 'Lieutenant Governor' in Delhi Electricity Reforms Act, SC has said that LG is bound by aid and advice of the Council of Ministers," Sisodia concluded.