Supreme Court to appoint DERC chairperson on ad-hoc basis by August 4

The bench headed by CJI Chandrachud on Thursday said that it was sad to see the Delhi L-G and the chief minister fighting over selecting a chairperson for the DERC, caring little about the institution

The Supreme Court on Thursday said that it will decide on appointing a chairperson for the Delhi Electricity Regulatory Commission (DERC) on an ad hoc basis by August 4 as a way out to ensure the statutory body, headless for the past six months, becomes functional.

(Representative Photo)

The order comes since the Delhi government and Lieutenant Governor (L-G) failed to arrive at a consensus even as chief minister Arvind Kejriwal and L-G VK Saxena on Wednesday held a meeting in Raj Niwas to decide on the name.

The Supreme Court bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud had on Monday directed the Delhi CM and L-G to “sit together” and agree on a common name for appointment as DERC chairperson.

On June 21, Kejriwal had recommended the name of retired justice Sangeet Lodha as the new DERC chairperson. However, the President, exercising its powers under the Ordinance promulgated by the Centre, appointed a former Allahabad high court judge, justice Umesh Kumar as DERC chairperson which was challenged by the Delhi government in the top court.

“It is sad nobody cares about the institution. Individuals keep on fighting even as the institution remains headless,” said the bench.

“Can’t you pick up a judge?” said an exasperated bench, also comprising justices PS Narasimha and Manoj Misra, after senior advocate Abhishek Manu Singhvi appearing for the Delhi government informed them that despite best efforts and five names being shared, the meeting failed and the stalemate continues.

“It is embarrassing for us. We cannot appoint unless both sides agree,” the bench said.

On Court’s order, senior advocate Harish Salve appearing for the L-G said, “I have taken instructions. We will leave it to the Court. You can name someone and we shall appoint.” He also suggested that the Court allow the present appointee to function as the DERC chairperson since it was an appointment made by the President.

Posting the next hearing for August 4, the bench said, “We make it clear that we will appoint a chairperson pending the disposal of this matter. This will require us to do some homework as we need to consult a few chief justices and talk to retired judges who will be willing to take this assignment for a period of say two to three months.”

Singhvi said it had no objection to the Court nominating someone, but requested that it could share the list of names given to L-G. To this, the bench said, “We will take a call on our own. There will be objection if we take a name from any one side.”

Solicitor General Tushar Mehta appearing for the Centre said it was unfortunate that the Delhi government does not trust the highest court. “It is unfortunate if we don’t trust the highest court on these matters,” Mehta said, adding, “We will leave it to the Court to appoint.”

Before arriving at its decision, the bench mooted the option of allowing the appointment of justice Umesh Kumar, former Allahabad high court judge, whose order of appointment was issued by the President on June 21, to continue as chairperson subject to the final result of the petition.

To this, Singhvi said, “That will be a wrong thing to do. Have this matter heard after deciding on the validity of the Ordinance.”

The petition by the Delhi government challenged justice Kumar’s appointment and also Section 45D of the Government of National Capital Territory of Delhi Ordinance, 2023 as this provision gave overriding powers to the Centre for appointing heads of commissions under the Delhi government.

“The hearing on Ordinance will take two to three months. We are worried about the interregnum. There will be no appointment of DERC chairperson till then,” the bench remarked responding to Singhvi.

Salve opposed the suggestion by Singhvi alleging that the only attempt of the Delhi government is to adjourn and delay the matter.

“Let us put aside the Ordinance to one side. Today, there is a Presidential order appointing a chairperson. There is no stay operating on his appointment. This appointment has got the consent of two chief justices – Delhi and Allahabad high courts. Either the Court grants a rare stay, or the chairperson should continue. I am not in favour of keeping this post in abeyance,” he said.

Singhvi pointed out that since January, the L-G held up the appointment of the DERC chairperson.

Even before the Ordinance, the Delhi government had initiated a proposal to appoint a former Madhya Pradesh high court judge, justice (retd) Rajeev Kumar Srivastava as the DERC chairperson. The L-G had insisted that consultation with Delhi high court chief justice in this matter is necessary against which the Delhi government came to the Supreme Court.

The top court in May held in favour of the Delhi government that since the parent high court of the judge in question is MP high court, it is the chief justice of that high court whose consent is necessary.

Further, the L-G was directed to process the appointment in two weeks. Later, in July justice Srivastava withdrew citing personal reasons and by the time the Delhi government sent another recommendation to appoint a retired Rajasthan high court judge on June 21, the same day by a Presidential order, justice Umesh Kumar was appointed to the post.

Challenging this order, the Delhi government approached the top court which on July 4 issued notice to Centre and L-G and recorded the statement of the Delhi government that it will not proceed with the oath-giving ceremony to the retired judge.

The petition had questioned the Centre’s hurry to bring the Ordinance and issue the notification on June 21 stating that the intention was to block the Aam Aadmi Party (AAP) government’s popular scheme of distributing free power to residents of Delhi.

Under sections 11 and 12 of the Delhi Electricity Reform Act, 2000, the DERC is empowered to determine the electricity tariff in the Capital and also the terms and conditions governing the Delhi government’s payment of compensation to companies affected by power subsidies.