SC may hear DERC case at 10.30am; Delhi LG says swear-in chair by 10am

The Delhi govt petition has questioned the DERC head’s appointment by the Centre through a Presidential notification.

High drama preceded the hearing of a crucial petition by Delhi government challenging the appointment of chairperson of Delhi Electricity Regulatory Commission (DERC) in the Supreme Court on Tuesday with the Delhi lieutenant governor VK Saxena asking chief minister Arvind Kejriwal late Monday evening to administer the oath of office to the appointee by 10am, before the court proceeds to decide the fate of the posting.

Although the case is listed at serial number 33 before a bench of Chief Justice of India (CJI) Dhananjaya Y Chandrachud and justice PS Narasimha, the list of business for Tuesday mentions it to be taken up “top of the board” meaning the case is likely to be listed as the first item for hearing. (ANI)

The top court is expected to take up the petition after 10.30am when the court usually assembles to hear matters. Although the case is listed at serial number 33 before a bench of Chief Justice of India (CJI) Dhananjaya Y Chandrachud and justice PS Narasimha, the list of business for Tuesday mentions it to be taken up “top of the board” meaning the case is likely to be listed as the first item for hearing.

In a letter to Kejriwal, the LG on Monday said that if state power minister Atishi or the chief minister or any other minister is not available to administer the oath of office and secrecy to the newly designated DERC head justice (retired) Umesh Kumar, the chief secretary should be permitted to perform the swear-in function.

Last Tuesday, Saxena wrote to Kejriwal flagging “unnecessary delay” in administering oath of office to Kumar, who was appointed to the post by the President on June 21. Minister Atishi was going to administer oath to Kumar on Monday, but she requested the programme to be shifted to July 6, citing health issues.

Calling Kumar’s appointment as unconstitutional, the Delhi government moved the Supreme Court against the decision on July 26.

If the DERC chairperson is administered the oath of office by chief secretary, it may alter the contours of the petition filed by the Delhi government before the top court. Further, it needs to be seen the extent to which the court may interfere once a retired high court judge takes charge as DERC chief.

The petition in its present form has questioned the DERC head’s appointment by the Centre through a Presidential notification. The Delhi government’s petition, filed by advocate Shadan Farasat, questioned the validity of Kumar’s appointment despite the chief minister approving the name of another former judge for the post.

Now, if the chief secretary administers the oath on the LG’s orders, the Delhi government may have to modify the petition to challenge the power of chief secretary to administer oath of office to DERC chairperson.

In his letter, LG said, “It seems bizarre to say the least, that a notification of President of India issued way back on 21st June, 2023 is not being given effect to, on account of unavailability of minister, in today’s digital age.”

“In case the power minister is not able to do so, you or any other minister designated by yourself may administer oath of office and secrecy. In case of unavailability in both the aforesaid situations, chief secretary may administer oath of office and secrecy to Umesh Kumar as Chairperson, DERC,” the LG said.

A Delhi government spokesperson did not comment on LG’s letter.

The appointment to the crucial post, which remained vacant since January this year, was stuck in a stalemate between the Delhi government and the LG office.

In January, Kejriwal approved the appointment of justice (retired) Rajeev Kumar 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.

Following this, 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.

After Shrivastava expressed his inability to accept the post, Kejriwal approved the name of justice (retired) Sangeet Lodha for the post on June 21. However, Kumar was appointed to the post the same day.

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