DERC chairman row: SC orders to defer appointment of Justice (retd) Umesh Kumar till July 11

New Delhi [India], July 4 : The Supreme Court on Tuesday ordered to defer the oath-taking ceremony of the appointment of Justice (retired) Umesh Kumar as the chairperson of Delhi Electricity Regulatory Commission (DERC) till July 11.

A bench of Chief Justice of India DY Chandrachud and Justices PS Narasimha also issued notice on the plea of the Delhi government challenging the appointment and posted the matter for hearing on July 11.

In its order, the bench stated, "It is understood that administration of oath in pursuance of the notification dated... to the former judge of the Allahabad High Court judge shall stand deferred."

The Delhi government moved the Supreme Court challenging the appointment of former Allahabad High Court judge Justice Umesh Kumar as DERC chairperson on the ground that it was unilaterally made by the Lieutenant Governor without its concurrence.

The bench noted that the petition raises a point of law regarding the validity of Section 45D of the GNCTD Act, as amended by the latest Ordinance issued by the Centre, which gives overriding powers to the Lieutenant Governor over the elected government in the matter of appointments.

Senior advocate Abhishek Manu Singhvi, appearing for the Delhi government, sought a stay of the notification appointing Justice Kumar, saying that the oath-taking ceremony is scheduled on Thursday.

Unilateral action by the LG is against the Supreme Court's five-judge Constitution bench judgment and also the spirit of Article 239AA of the Constitution, he said.

Singhvi said that when the Delhi government pays for the DERC and is accountable to the electorate, he asked if it won't get the right to choose the Chairman.

He further contended that the Delhi government gives free power up to 200 units to the poor. It's the most popular scheme in Delhi and by appointing its own chairman, the LG wants to stop free electricity, Singhvi claimed.

"As a political executive, I give power of 200 units to the poorest of poor in Delhi. It's the most popular scheme in Delhi. Now they want to appoint someone and stop that," a senior advocate said.

Solicitor General of India Tushar Mehta said that it is the function of the government to administer the oath, which they have been delaying since June 22 by giving one reason or another.

Delhi power minister Atishi alleged that the recruitment was done by "overlooking" the aid and advice of the elected government, therefore, violating the constitution by appointing someone else for that position.

She said Delhi Chief Minister Arvind Kejriwal on June 21 had recommended Justice (retd.) Sangeet Lodha for the post, however, the same was "wilfully ignored" by the President.

Earlier, Kejriwal approved Justice (retd.) Rajeev Shrivastava for the DERC chairman and the file was put up by former deputy CM Manish Sisodia, who also held the power portfolio. However, the file was returned by Lieutenant Governor Vinai Saxena with a recommendation to also consult with Delhi High Court Chief Justice for the appointment.

Later, the Delhi government approached the Supreme Court on April 12, blaming the LG for delaying the appointment.

On May 19, the top court observed that the LG is not supposed to act on his own discretion on such appointments, and directed the government to appoint the DERC chairperson within two weeks.

However, Justice Shrivastava later 'expressed his inability to accept the appointment' due to 'family commitments and requirements'.

The bench had said while appointing a sitting or a retired judge to the post of a state electricity regulatory commission, the Chief Justice of the High Court, to which the judge concerned belonged, has to be consulted.

Chief Justice of the High Court, under whose jurisdiction the electricity regulatory panel falls, need not be consulted for the appointment if the judge concerned has not served in that High Court, it had added.

The apex court while referring to a 2018 Constitution bench judgement and its judgement on the services row between the Centre and the Delhi government, the bench said it has been made clear that the "LG has to act on the aid and advice of the council of ministers."

Delhi government had filed a plea in the top court alleging inaction by the Lieutenant Governor in appointing the Chairperson of DERC.

The DERC has been functioning without a Chairperson for the last four months after previous Chairperson Justice (Retd) Shabihul Hasnain demitted office on January 9, 2023, upon attaining the age of 65 years.

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