Delhi Govt vs LG : Oath Taking Of LG's Nominee For DERC Chairperson Deferred As Supreme Court Decides To Hear Delhi Govt's Challenge

The Supreme Court on Tuesday agreed to hear a petition filed by the Government of National Capital Territory of Delhi (GNCTD) challenging the Lieutenant Governor's decision to appoint former Allahabad High Court Judge Justice Umesh Kumar as the the Chairperson of the Delhi Electricity Regulatory Commission (DERC). The oath taking of Justice Kumar, scheduled to take place on Thursday, has been deferred. 

The Delhi Government challenged the appointment on the ground that it was unilaterally proposed by the LG without its concurrence.

A bench comprising Chief Justice of India DY Chandrachud and Justice PS Narasimha noted that the petition raises a point of law regarding the validity of Section 45D of the GNCTD Amendment(Ordinance) issued by the Centre, which gives overriding powers to the Lieutenant Governor over the elected government in the matter of appointments to commissions and statutory bodies. The bench issued notice to the Attorney General for India on this point of law and posted the matter next Tuesday for further hearing.

The bench was inclined to stay the notification appointing the former judge as the DERC Chairman. However, it refrained from expressly doing so and recorded the statement that the oath taking ceremony will stand deferred.

"It is understood that administration of oath in pursuance of the notification dated June 21, 2023 to the former judge of the Allahabad High Court shall stand deferred", the bench recorded in the order.

Senior Advocate Dr Abhishek Manu Singhvi, appearing for the Delhi Government, sought for a stay of the notification appointing Justice Kumar, by saying that the oath-taking ceremony is scheduled on Thursday. Singhvi argued that the unilateral action by the LG is against the Supreme Court's Constitution Bench judgment and also the spirit of Article 239AA of the Constitution.

When the Delhi Government pays for the Commission and is accountable to the electorate, Singhvi wondered if it won't get the right to choose the Chairman.

"As a political executive, I give power of 200 units to the poorest of poor in Delhi. It's the most popular scheme in Delhi. Now they want to appoint someone and stop that!", Singhvi exclaimed.

Solicitor General of India Tushar Mehta said that though the President notified the appointment on June 21, the Delhi Government is delaying the administering of oath by giving reasons such as the Electricity Minister is unwell.  He pointed out that the Justice Kumar was appointed after taking the concurrence of the Chief Justice of the Allahabad High Court, as per the law clarified by the Supreme Court on May 19.  At this point, Chief Justice of India DY Chandrachud asked who wrote to the HC Chief Justice seeking his concurrence. "The LG or the Government?", CJI asked. 

"LG", replied the SG. Following this, the bench decided to pass the interim order. SG said that it is the function of the Government to administer the oath, which they have been delaying since June 22 by giving one reason or the another. 

"Please do not give a stamp of approval to the fact that they are already deferring this since June 23.. they have been dodging this on one reason or the other", SG said.

"Then we will stay the notification which we were already inclined to do.. but somehow we wanted to give a different feel to it", CJI said. Senior Advocate Sanjay Jain, appearing for the LG, informed the bench that the retired judge recommended by the Delhi Government, Justice Rajeev Kumar Shrivastava, has declined to accept the post citing personal difficulties.

Background

The issue arose when the previous Chairperson of DERC, retired Allahabad High Court Judge, Justice Shabihul Hasnain demitted office on 09.01.2023 upon attaining the age of 65 years. Consequently, on 04.01.2023, a proposal to appoint retired MP High Court Judge, Justice Rajeev Kumar Shrivastava was placed before the LG of NCT of Delhi. However, no action was taken on the proposal made by the Government and the DERC continued functioning without a Chairperson for around 4 months. The LG took the stand that he needs legal advice on whether the opinion of the Delhi High Court Chief Justice is needed for accepting the Delhi Government's proposal.

In April 2023, the Supreme Court issued notice on a writ petition filed by the GNCTD against the Delhi LG's inaction in approving the proposal to appoint Justice Rajeev Kumar Shrivastava.

On May 19, the Supreme Court clarified that as per the Electricity Act 2003, only the concurrence of the Chief Justice of that High Court from which the recomendee judge retired is required and the concurrence of the Delhi High Court Chief Justice is not required. Clarifying this position, the Supreme Court directed the LG to take follow up action.

Since Justice Shrivastava expressed difficulty in accepting the post, the Delhi Government proposed the name of another person - Justice (retired) Sangeet Lodha of the Rajasthan High Court- on June 21. However, on the same day, the President appointed Justice (Retd.) Shri Umesh Kumar of Allahabad High Court as the DERC Chairman.

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