New Delhi: The Supreme Court said on Thursday it will appoint a DERC chairperson for a brief period on an ad-hoc basis pending a decision on the Delhi government’s plea contesting the lieutenant governor’s power to make such an appointment, while expressing anguish that nobody cares about the “headless” institution.
Amid the deadlock between the Arvind Kejriwal-led Aam Aadmi Party (AAP) government and Delhi Lieutenant Governor (LG) V K Saxena over the appointment of Delhi Electricity Regulatory Commission (DERC) chairperson, the top court said it will do some homework and appoint someone on a “pro tem basis” to the post.
The strong observations came in the wake of submissions that though the LG and the chief minister met, as asked by the apex court, they failed to resolve the issue over the appointment of the chief of the power regulator.
“It is sad that nobody cares what happens to the institution. Individually, you keep fighting with each other…That institution is headless,” a bench comprising Chief Justice D Y Chandrachud and Justices P S Narasimha and Manoj Misra said.
“We will appoint somebody on an ad-hoc basis,” the bench said, while observing that it will have to do little bit of homework, consult people and take their consent for this.
On July 17, the apex court had asked the Delhi chief minister and LG to rise above “political bickering” and discuss who could head the national capital’s power regulator DERC, saying the two constitutional functionaries should get down to “serious work of governance” away from glare of publicity.
“There is so much work of government that has to be done away from the glare of publicity and the glare of public space. I think both the functionaries should get down to serious work of governance and let both of them sit down together tomorrow…
“We are not so much concerned with the appointment of the DERC chairperson which will be done. We are at the larger issue. If both of them sit together, talk to each other as constitutional functionaries, I am sure this can be done. Please share the message to both of them that this is what the Supreme Court expects should be done by them,” the CJI had said.
As the hearing began on Thursday, the apex court was informed that the chief minister and the LG failed to arrive at a consensus on the issue.
“Can you not between all of you pick up one judge for appointment as DERC chairperson?” the bench asked.
Senior advocate Harish Salve, appearing for the LG, said the apex court can name somebody and he or she will be appointed as the DERC chairperson.
“We cannot appoint somebody unless you both sides agree,” the court told Salve.
Senior advocate Abhishek Singhvi, appearing for the Delhi government, said five names were suggested for appointment but none chosen.
Solicitor General Tushar Mehta, representing the Centre, said DERC has several important functions to discharge and so why should the institution remain headless.
He said the apex court may appoint somebody to the post and there cannot be any objection to that.
During the hearing, the bench said, “The other thing which we are going to suggest is, can you not give us, without indicating who has suggested which names, names of say three or five former judges of the Delhi High Court. Just give us random names. We can just pick up one name.”
Singhvi said he would seek instructions on the issue.
“We can appoint somebody on a pro tem basis so that he can continue until the matter is disposed of,” the bench said.
The apex court said it will find a few names and consult former judges of the high court.
Mehta said it is “really unfortunate” that one of the parties says that they won’t trust the highest court of the country unless name from their list is there.
He said one cannot put a condition on the court that “we will agree to your selection only if you select from my list”.
“…we will now make it clear that we will appoint somebody for an ad-hoc period, pending the disposal of the matter. Just give us a little time to do a little bit of homework,” the CJI said, adding, “We will not look at any list. We will take a call.”
The bench has posted the matter for further hearing on August 4.
In a bid to break the ongoing deadlock over naming a retired judge for the DERC post, the apex court had on July 17 suggested that the chief minister and the LG should meet and sit down together on Tuesday and reach a consensus either on one name or may exchange three names each.
The apex court is seized of a plea by the Delhi government on the issue of appointment of the chairperson of DERC.
The Supreme Court had said on July 4 that it will examine the constitutional validity of a provision of the Centre’s recent ordinance governing appointments such as that of the DERC chairperson after the Delhi government informed it that the oath taking of Justice (retd) Umesh Kumar as chief of the national capital’s electricity regulatory authority stands deferred. Justice Kumar is a former judge of the Allahabad High Court.
The appointment of Justice Kumar as the DERC chairperson became yet another flashpoint in the turf war between the city’s AAP government and the Centre.
The top court had earlier issued notices to the Centre and Lieutenant Governor Saxena on the Delhi government’s plea which also challenges the June 21 notification of the Union Ministry of Home Affairs appointing Justice Kumar as the DERC chairperson.
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.
The post of the DERC chairperson fell vacant after Justice Shabihul Hasnain demitted office on January 9, 2023.
The AAP government had recommended the name of former Madhya Pradesh High Court judge Justice Rajeev Srivastava for the position. However, Justice Srivastava expressed his inability to take charge due to “family commitments and requirements”.
