The Supreme Court on Tuesday adjourned hearing on a writ petition related to delay in the appointment of retired MP High Court Judge, Justice Rajeev Kumar Shrivastava, as Chairperson of the Delhi Electricity Regulatory Commission (DERC), to May 19.
The Bench of Chief Justice of India DY Chandrachud, Justice PS Narasimha and Justice JB Pardiwala adjourned the matter after Senior Advocate Mukul Rohatgi, representing Delhi Lieutenant Governor (LG) Vinai Kumar Saxena, sought time to file reply on the plea.
Rohatgi apprised the Apex Court that it was examining the Supreme Court verdict on the administrative control in Delhi and needed time to file a reply over the same. The Senior Counsel said that he would file the reply tomorrow.
Appearing for the Delhi government, Senior Advocate Abhishek Manu Singhvi said that a notice was issued on April 21. It completely covered the recent judgment on the powers of LG. They should have put a counter by now. This post has remained vacant for five months.
The CJI then agreed to take up the matter on Friday and directed that a copy be served to Singhvi.
Earlier on May 10, the Supreme Court had listed the writ petition for hearing on May 16.
Senior Advocate Abhishek Manu Singhvi had mentioned the matter before the CJI, alleging that the Delhi LG has been sitting for more than four months on the file recommending the appointment of Justice Shrivastava as DERC Chairperson.
Representing the Delhi government, the Senior Advocate said 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.
Earlier on April 21, the Bench of CJI Chandrachud and Justice P.S. Narasimha had issued notice on the writ petition filed by the Government of National Capital Territory of Delhi (GNCTD).
Singhvi had then 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.
The Senior Advocate had 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 had 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.
As the issue did 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, noted the Senior Advocate.
He said the appointment of DERC Chairperson was within the exclusive executive competence of the elected government.
The petition alleged that inaction on part of the Lieutenant Governor was also in the teeth of the Transaction of Business Rules, which required them to record their views on the proposal within a period of seven working days.