'Governor Cannot Stultify A Government Like This': Supreme Court Rebukes Delhi LG For Delaying Appointment Of DERC Chairperson

The Supreme Court on Friday came down heavily on the Lieutenant Governor of Delhi for sitting over the proposal made by the Delhi Government for the appointment of the Chairperson of the Delhi Electricity Regulatory Commission for over five months.

Aggrieved by the delay on the part of the LG in approving the proposal to appoint retired MP High Court Judge, Justice Rajeev Kumar Shrivastava as the Chairperson of the DERC, the Delhi Government filed a writ petition in the Supreme Court. A bench comprising Chief Justice of India DY Chandrachud, Justice PS Narasimha, and Justice KV Viswanathan heard the matter.

Senior Advocate Dr Abhishek Manu Singhvi, instructed by Advocate on Record Shadan Farasat, appearing for the GNCTD, informed the bench that five months had passed since the proposal had been sent to the LG. However, the LG had been delaying his decision by stating that he required legal opinion to ascertain if the concurrence of the Chief Justice of the Delhi High Court was required to make the appointment.

In this context, Singhvi pointed out that as per Section 84(2) of the Electricity Act, what was required was the consultation with the Chief Justice of the parent High Court of the person sought to be appointed. The Chief Justice agreeing to the same orally remarked–

"If the person who is being appointed was a judge from Madras High Court, then who will be consulted? It will be the Chief Justice of the Madras HC. Why would it be any other High court?"

Senior Advocate Mukul Rohatgi, appearing for the LG, argued that as per the Supreme Court's judgement, the LG could act independently on matters concerning Entry 1, 2, and 18. He added–

"In other matters, in case there is a difference of opinion, the governor may refer to president. And pending that decision, in urgency, the governor can act on his own."

To this, CJI DY Chandrachud said–

"The governor cannot stultify a government like this...the power to refer is also to be exercised in exceptional cases."

Providing clarity to the provision of Section 84(2) of the Electricity Act 2003, which provides for appointment of chairperson and members of state commission, CJI DY Chandrachud, dictating the order, said–

"The substantive part of this provision indicates that the State Government may appoint any person from persons 'who is and has been judge of High Court'. However, appointment is to be made after consulting Chief Justice of that High Court. Where a sitting judge is to be appointed, the Chief Justice consulted will be one where the judge is drawn from. Likewise, where it is a former judge, Chief Justice of the High Court where the judge had previously served will be consulted. In view of the clear provisions, the appointment of Chairperson of the DERC shall be decided in two weeks."

Background

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 submitted 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 was pointed out that ever since the Lieutenant Governor had not taken any action on the proposal made by the Government. Moreover, the DERC has been functioning without a Chairperson for the last 5 months. It was indicated that as per the Election Act, 2003, the consent of the Chief Justice of the Madhya Pradesh High Court had already been obtained for the appointment of Justice Srivastava. It appears that instead of taking any action on the proposal, the Lieutenant Governor had written to the Minister of Law and Justice seeking clarification of the phrase ‘consultation with the chief Justice of that High Court’.

The petition relied 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 argued that since no judicial member is present in the DERC it had to abstain from performing any adjudicatory functions.

The petition submitted that in the circumstances, the Lieutenant Governor could either grant consent to the Government’s proposal or refer it to the President. It noted, as the issue did not concern the reserved subjects of public order, police or land, the Lieutenant Governor had 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 alleged that inaction on the part of the Lieutenant Governor was 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 submitted -

“...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]

Citation : 2023 LiveLaw (SC) 476

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