SC directs DERC chairperson’s appointment in two weeks

The appointment has been hanging fire for nearly five months

The Supreme Court on Friday directed that the appointment of the Delhi Electricity Regulatory Commission (DERC) be made in two weeks, dousing another flashpoint between the AAP government and the Lieutenant-Governor.

The appointment has been hanging fire for nearly five months. Chief Minister Arvind Kejriwal had approved the selection of retired Madhya Pradesh High Court judge, Justice Rajeev Shrivastava, as Chairperson.

The tenure of incumbent DERC Chairman Justice (retd) Shabihul Hasnain had already lapsed. However, Justice Shrivastava’s file had remained pending in the L-G’s office, compelling the Delhi government to approach the apex court.

The L-G’s office had insisted that the Delhi High Court Chief Justice’s view needed to be taken about the appointment, while the Delhi government argued that this was not required.

The government contended that Section 84(2) of the Electricity Act, 2003 only called for taking a view from the Chief Justice of the High Court in which Justice Shrivastava had served, in this case Madhya Pradesh and not Delhi.

Agreeing with the government’s contention, a three-judge Bench headed by Chief Justice of India D.Y. Chandrachud on Friday clarified that the substantive part of Section 84(2) indicated that the State government may appoint any person from persons ‘who is or has been a judge of a High Court’.

Can’t be stultified

However, appointment is to be made after consulting the 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, the Chief Justice of the High Court where the judge had previously served, will be consulted, he added.

The court said the appointments cannot be “stultified like this”.

A Constitution Bench had recently held that the L-G did not have sweeping executive powers in the national capital, and the Centre should be mindful of the unique “asymmetric federal model” of governance adopted for Delhi.

The court, in its judgment, had underscored that the L-G could exercise executive power on behalf of the Centre only in the three areas of public order, police and land in Delhi, as mentioned in Article 239AA(3)(a) of the Constitution.

If the L-G differed with the Council of Ministers of the GNCTD, he should act in accordance with the procedure laid down in the Transaction of Business Rules, the Constitution Bench had observed.