The Supreme Court has issued notice on a writ petition, which alleged that the Lieutenant Governor has been sitting for four months on the file recommending appointment of retired MP High Court Judge, Justice Rajeev Kumar Shrivastava, as Chairperson of the Delhi Electricity Regulatory Commission (DERC).
The Bench of Chief Justice of India DY Chandrachud and Justice PS Narasimha issued notice on the plea filed by the Government of National Capital Territory of Delhi (GNCTD) and listed the matter for further hearing on April 28.
Representing the Delhi government, Senior Advocate Abhishek Manu Singhvi, instructed by Advocate-on-Record Shadan Farasat, alleged that the LG was delaying the decision by saying that he required legal opinion to ascertain if the concurrence of the Chief Justice of the Delhi High Court was required to make the appointment.
Singhvi mentioned Section 84(2) of the Electricity Act, stating that for the appointment of a person as DERC Chairperson, only consultation with the Chief Justice of the parent High Court was required.
The CJI agreed with the expression that “Chief Justice of that High Court” in the section pertained to the CJ of the High Court where the person was a judge.
Asked about the procedure followed in the appointment of the previous Chairperson (Justice Shabihul Hasnain, former judge at Allahabad High Court), Singhvi replied that the consultation was made with the Chief Justice of the Allahabad High Court.
Singhvi contended that it was an absurd consequence. For every appointee from Kerala or Allahabad, the Delhi High Court Chief Justice was to be consulted, since the DERC was located in Delhi.
The CJI then observed that the Delhi High Court Chief Justice would not be knowing their names.
The Senior Counsel alleged that after keeping silent for four months, the LG was deliberately seeking to appoint somebody to the post and had sent a file in this regard to the Delhi High Court Chief Justice.
As per the petition, the previous Chairperson, retired Allahabad High Court Judge, Justice Shabihul Hasnain demitted office on January 9, 2023, after attaining the age of 65 years.
On January 4, 2023, the Delhi government sent a proposal on appointment of retired MP High Court Judge, Justice Rajeev Kumar Shrivastava as DERC Chairperson, to the Lieutenant Governor of Delhi. However, the LG was yet to take any action on the proposal.
It said the DERC has been functioning without a Chairperson for the last four months. As per the Election Act, 2003, the consent of the Chief Justice of the Madhya Pradesh High Court has already been obtained for the appointment of Justice Srivastava.
The petition alleged that instead of taking any action on the proposal, the Lieutenant Governor has written to the Minister of Law and Justice seeking clarification on the phrase ‘consultation with the Chief Justice of that High Court’.
Singhvi contended that since no judicial member was present in DERC, the body had to abstain from performing any adjudicatory functions.The petition submitted that in the present circumstances, the Lieutenant Governor can either grant consent to the Government’s proposal or refer it to the President.
It notes, as the issue does not concern the reserved subjects of public order, police or land, the Lieutenant Governor has no independent decision making power as held by Apex Court in State of NCT of Delhi vs Union of India (2018) 8 SCC 50.
It said the appointment of DERC Chairperson was within the exclusive executive competence of the elected government.
It alleged that inaction on part of the Lieutenant Governor was also in teeth of the Transaction of Business Rules, which required them to record their views on the proposal within a period of seven working days.