SC to appoint DERC ad-hoc chairperson as CM, LG couldn’t agree on name

New Delhi [India], July 20 : The Supreme Court on Thursday said that as Delhi’s Chief Minister and the Lieutenant Governor (LG) could not agree on a name for the appointment of Chairperson of the Delhi Electricity Regulatory Commission (DERC), it will appoint a person for the post as an ad-hoc measure till the issue is finally decided.
A bench headed by Chief Justice of India DY Chandrachud said it will on August 4 appoint an ad-hoc Chairperson of DERC as the LG and Delhi CM failed to reach a consensus, which was suggested by it during the last hearing.
In view of this deadlock, the apex court said it will appoint the retired judge as Chairperson of DERC and made it clear that the appointment will be on a pro-term basis as in an interim arrangement.
The bench said it cannot allow the DERC to remain "headless" as it will affect the public interest and decided to appoint the Chairperson as an interim measure.
Senior advocate Abhishek Manu Singhvi, appearing for the Delhi government told the bench that the discussions between Chief Minister and LG did not yield any results.
On Monday, the apex court asked the LG and Chief Minister to sit together and decide on the name of the Chairperson of DERC and they have to “rise above bickering”.
The CJI had 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 had added.
The top court was hearing a petition filed by the Delhi government relating to the appointment of 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 (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 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.
Seeking a stay of the notification appointing Justice Kumar, the Delhi government had said that 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.
Earlier, Chief Minister Arvind 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 at 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 then 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 the 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.