SC orders deferment of oath taking of chairperson designate of DERC

PTI, Jul 4, 2023, 7:52 PM IST

Representative Image (source: PTI )

New Delhi: The Supreme Court Tuesday ordered deferment of the oath-taking of Justice (retd) Umesh Kumar as the chairperson of the DERC and said it will examine the constitutional validity of a provision of the Centre’s recent ordinance governing appointments such as that of the chief of the national capital’s electricity regulatory authority.

It also took on record the Delhi government’s statement about deferring the oath-taking ceremony of Justice Kumar, whose appointment has become yet another flashpoint in the turf war between the city’s AAP government and the Centre.

A bench of Chief Justice D Y Chandrachud and Justice P S Narasimha said it wanted to deal with the plea challenging the Centre’s notification appointing Justice Kumar as the Delhi Electricity Regulatory Commission (DERC) chairperson in a ”non-controversial” manner on July 11 and so the administration of oath to him be deferred.

“Dr Abhishek Manu Singhvi, senior counsel appearing on behalf of the petitioner (Delhi government) states that the administering of oath in pursuance of the notification of the Union Ministry of Home Affairs dated June 21, 2023 to the former Judge of the Allahabad High Court shall stand deferred presently,” the order, uploaded on the apex court’s website, said. The top court also issued notices to the Centre and the office of Lieutenant Governor V K Saxena on the plea of the Delhi government which also challenges the June 21 notification of the Union Ministry of Home Affairs appointing Justice Kumar as the DERC chairperson.

Justice Kumar is a former judge of the Allahabad High Court.

When the counsel for the Centre objected to the deferment of oath taking of the former judge, the bench observed it was rather inclined to stay the MHA notification.

Observing that since the matter involved a “pure question of law”, the bench sought the assistance of Attorney General R Venkataramani and fixed the plea for hearing on July 11.

“Issue notice. Since the constitutional validity of the Section 45 D of the National Capital Territory of Delhi (Amendment) (Ordinance), 2023 has been called into question, a formal notice shall also be served on the Attorney General for India.

“Having regard to the urgency of the matter, the proceedings shall be listed for hearing and final disposal at this stage on 11 July 2023. Since a pure question of law is raised, liberty to the parties to file brief written submissions. In the event that any counter affidavit is to be filed, a copy shall be served on the petitioner by July 10, 2023,” it ordered.

The appointment of the DERC chairperson has led to a fresh power tussle between the Delhi government and the Centre’s pointman, the lieutenant governor, and it led to filing of a fresh case in the top court. The Delhi government said in its petition that the office of the LG has to act on the aid and advice of the council of ministers which he has not.

The Centre’s ordinance on services in the national capital territory gives overriding powers to the lieutenant governor over the elected government in the matter of appointments.

At the outset, Singhvi sought a stay of the notification issued by the Centre appointing Justice Kumar as the DERC chairperson.

The senior lawyer alleged that the unilateral action of the LG was against the spirit of the apex court’s recent judgement on control over services.

”As a political executive, I give free power of 200 units to the poorest of the poor in Delhi. It is the most popular scheme in Delhi. Now they want to appoint someone of their choice to stop this,” he said.

Solicitor General Tushar Mehta said Justice Kumar was appointed after taking the concurrence of the Chief Justice of the Allahabad High Court, as directed by the top court on May 19.

The bench then asked as to who obtained the views of the chief justice of the high court.

The LG, replied the solicitor general, and said, “Please do not give a stamp of approval to the fact that they are already deferring this since June 23. The Delhi government has been dodging this for one reason or the other.” “Then we will better stay the notification which we were inclined to do. But we thought that we will deal with it in a non-controversial manner,” the CJI said.

Additional Solicitor General Sanjay Jain, appearing for the office of the LG, said the retired judge recommended by the Delhi government, Justice Rajeev Kumar Shrivastava, had declined to accept the post citing personal difficulties.

The post of the DERC chairperson was vacant after former head of the commission Justice Shabihul Hasnain demitted office on January 9, 2023.

Later, a proposal to appoint Justice Shrivastava was placed before the LG by the Delhi government.

On May 19, the top court had said the lieutenant governor has to act on the aid and advice of the council of ministers and ordered that the chairperson of the DERC be appointed within two weeks.

The AAP government had recommended the name of former Madhya Pradesh High Court judge Justice Srivastava for the position. However, Justice Srivastava expressed his inability to take charge due to ”family commitments and requirements”.

Later, the government sent the name of Justice (retd) Sangeet Raj Lodha of the Rajasthan High Court on June 21. The central government, however, notified the name of Justice Kumar for the post the same evening, prompting the AAP government to move the top court challenging the notification.

On July 3, the lieutenant governor advised Chief Minister Arvind Kejriwal to complete the oath taking exercise of Justice Kumar through video conferencing, after the event was postponed due to Power Minister Atishi’s ill health.