LG can’t thwart Delhi govt in DERC appointment: SC

The appointment to the electricity regulatory panel has been pending since January due to a stalemate between the office of LG and the Delhi government.

The Supreme Court on Friday said that the Delhi’s Lieutenant Governor is not supposed to act on his own discretion while appointing chairperson of Delhi Electricity Regulatory Commission (DERC), and added that the process should be completed within two weeks.

A bench headed by CJI Dhananjaya Y Chandrachud said that the lieutenant governor “cannot stultify an elected government like this”. (ANI)

The appointment has been pending since January due to a stalemate between the office of LG and the Delhi government. The Delhi government had cleared the appointment of justice Rajeev Kumar Srivastava as the head of the power regulator in January, and had consulted the chief justice of the Madhya Pradesh high court. However, the LG had been insisting that the chief justice of Delhi high court should also be consulted for the appointment.

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.

The bench, also comprising justices PS Narasimha and KV Viswanathan said, “The lieutenant governor cannot stultify an elected government like this.”

Testing the logic behind L-G’s suggestion, the bench said, “Suppose a judge of the Madras high court is to be appointed as DERC chairperson, how can consultation be done with the chief justice of the Delhi high court.”

The bench explained that if a sitting judge is to be appointed, it will be the chief justice of the high court where the judge is serving and in case of a former judge, it will be the chief justice of the high court where he last served.

Senior advocate Mukul Rohatgi who represented the LG in court had argued that Article 239AA(4) of the Constitution allows LG to refer a matter to President in case there is a difference of opinion between him and the council of ministers.

The bench, however, said that the court had dealt with the provision in its 2018 judgment which said that LG cannot refer every matter to the President. “The L-G is not to act in his discretion here,” the bench said.

Senior advocate Abhishek Manu Singhvi along with advocate Shadan Farasat appearing for the Delhi government told the court that the process of consultation with chief justice of Madhya Pradesh high court is already over, and justice Srivastava has given his consent.

Farasat said, “The LG has violated the tradition that was followed in the past with regard to DERC chairperson’s appointment.”