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DERC chairman appointed, Delhi govt terms decision ‘illegal’
The post has been vacant since January 10, when (retd) justice Shabihul Husnain stepped down after reaching superannuation
The Centre on Wednesday appointed justice (retired) Umesh Kumar of the Allahabad high court as the chairperson of Delhi Electricity Regulatory Commission (DERC) even as the Delhi government termed the posting “illegal and unconstitutional” and said that it will challenge the decision in the Supreme Court.
The appointment of the DERC chairperson is crucial to effectively regulate the electricity sector in the Capital. The post has been vacant since January 10, when (retd) justice Shabihul Husnain stepped down after reaching superannuation. The three-member panel currently has only one member.
“The Supreme Court has repeatedly stated that on all subjects (apart from land, public order and police) the aid and advice of the elected government is binding. Electricity is a transferred subject falling under the jurisdiction of the elected government,” Delhi power minister Atishi said in a statement.
Referring to the gazette notification issued on Wednesday evening, Atishi said, “On June 21, the chief minister sent a recommendation of the name of justice (retd) Sangeet Lodha for the post of DERC chairperson. The President wilfully ignored and overlooked the aid and advise of the elected government on a transferred subject and appointed someone else for this post. This unconstitutional and illegal decision is extremely unfortunate and the Delhi government shall challenge this in the Supreme Court.”
It was not immediately clear if the appointment was done the same day as the new recommendation sent by the chief minister.
Earlier in January, Kejriwal approved the appointment of justice Srivastava as the DERC chairperson on a file put up by the then deputy CM Manish Sisodia, who held the power portfolio. Subsequently, the chief justice of the Madhya Pradesh high court gave his consent for the appointment. However, the LG returned the file, insisting that the government also consult the Delhi high court chief justice for the appointment.
The Delhi government approached the Supreme Court on April 12, blaming the LG for delaying the appointment.
On May 19, the Supreme Court asked the government to appoint the DERC chairperson within two weeks, and said the LG is not supposed to act on his own discretion while appointing someone to that post.
Resolving the impasse by interpreting Section 84(2) of the Electricity Act that governs the appointment of chairperson and members of DERC, a bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud said that under this provision, it is the chief justice of that high court from which the judge is drawn who is to be consulted.
According to senior government officials, justice (retired) Rajeev Kumar Shrivastava of the Madhya Pradesh high court, who was approved for the post by Delhi chief minister Arvind Kejriwal, “expressed his inability to accept the appointment” in a communication to the Delhi lieutenant governor on June 15, in which the former judge cited “family commitments and requirements”.
The DERC was constituted in 1999 to discharge a range of activities while working as the electricity regulatory in the Capital. The body’s duties include determining power tariffs, regulating the power purchase and procurement process of transmission utilities and distribution utilities, and promoting competition, efficiency and economy in the activities of the electricity industry, among others.
