Supreme Court Issues Notice On Delhi Government’s Petition Challenging LG's Refusal To Approve Appointment Of DERC Chairperson
The Supreme Court, on Friday, issued notice on a writ petition filed by the Government of National Capital Territory of Delhi (GNCTD) against the Delhi Lieutenant Governor's inaction in approving the proposal to appoint retired MP High Court Judge, Justice Rajeev Kumar Shrivastava as the Chairperson of the Delhi Electricity Regulatory Commission (DERC).Senior Advocate Dr Abhishek Manu...
The Supreme Court, on Friday, issued notice on a writ petition filed by the Government of National Capital Territory of Delhi (GNCTD) against the Delhi Lieutenant Governor's inaction in approving the proposal to appoint retired MP High Court Judge, Justice Rajeev Kumar Shrivastava as the Chairperson of the Delhi Electricity Regulatory Commission (DERC).
Senior Advocate Dr Abhishek Manu Singhvi, instructed by Advocate on Record Shadan Farasat, appearing for the GNCTD, told a Bench comprising the CJI DY Chandrachud and Justice PS Narasimha, that four months have passed since the proposal has been sent to the LG. He stated that the LG is delaying decision by saying that he required legal opinion to ascertain if the concurrence of the Chief Justice of the Delhi High Court is required to make the appointment.
Singhvi pointed out that as per Section 84(2) of the Electricity Act, what is required is the consultation with the Chief Justice of the parent High Court of the person sought to be appointed.
CJI Chandrachud also observed that the expression "Chief Justice of that High Court" in the section means the CJ of the High Court where the person was a judge. When CJI asked about the procedure followed in the appointment of the previous Chairperson (Justice Shabihul Hasnain, former judge of Allahabad HC), Singhvi replied that the consultation was made with the CJ of Allahabad High Court.
"Just see the absurd consequence. The DERC is located in Delhi. For every appointee from Kerala or Allahabad, we will have to ask the Delhi High Court Chief Justice!", Singhvi stated.
"How will the Delhi High Court Chief Justice know those names?", CJI observed.
When the bench agreed to issue notice, Singhvi requested for a shorter date, saying that they are apprehending moves by the LG to appoint someone else in the post. "After short circuiting us by keeping silence for four months, they are deliberately seeking to appoint somebody and have sent some file to the learned Chief Justice", he said. The bench then agreed to post the matter next Friday.
The previous Chairperson, retired Allahabad High Court Judge, Justice Shabihul Hasnain demitted office on 09.01.2023 upon attaining the age of 65 years. The plea submits that, consequently, on 04.01.2023, a proposal to appoint retired MP High Court Judge, Justice Rajeev Kumar Shrivastava was placed before the Lieutenant Governor of NCT of Delhi. It is pointed out that ever since the Lieutenant Governor has not taken any action on the proposal made by the Government. Moreover, the DERC has been functioning without a Chairperson for the last 4 months. It is indicated that as per the Election Act, 2003, the consent of the Chief Justice of the Madhya Pradesh High Court has already been obtained for the appointment of Justice Srivastava. It appears that instead of taking any action on the proposal, the Lieutenant Governor has written to the Minister of Law and Justice seeking clarification of the phrase ‘consultation with the chief Justice of that High Court’.
The petition relies on State of Gujarat v. Utility Users’ Welfare Association wherein the Apex Court has held that presence of a judicial officer or one with substantial experience in practise of law and is qualified to be appointed as Judge of High Court or District Court was mandatory to perform adjudicatory function. In view of the same it argues that since no judicial member is present in the DERC it has to abstain from performing any adjudicatory functions.
The petition submits that in the present circumstances, the Lieutenant Governor can either grant consent to the Government’s proposal or refer it to the President. It notes, as the issue does not concern the reserved subjects of public order, police or land, the Lieutenant Governor has no independent decision making power as held by Apex Court in State of NCT of Delhi v. Union of India (2018) 8 SCC 50. The appointment of the Chairperson of the DERC is within the exclusive executive competence of the election government. The petition alleges that inaction on the part of the Lieutenant Governor is also in the teeth of the Transaction of Business Rules which, requires them to record their views on the proposal within a period of seven working days; in case of difference of opinion to settle the issue within fifteen working days beyond which it is to be placed before the Council of Minister that is to decide within ten working days; if difference still persists then the matter is to be referred to the President.
The petition submits -
“...DERC to function without a Chairperson not only negates the mandate of the elected government of Delhi, but also creates a situation of administrative and regulatory morass, with the DERC unable to carry out several critical functions necessary for the effective governance and administration of Delhi.”
[Case Title:Govt of NCT of Delhi v. Office of LG of NCT of Delhi And Anr. WP(C) No. 467/2023]