Observing that the lieutenant governor has to act on the aid and advice of the council of ministers, the Supreme Court on Friday ordered that the Chairperson of the Delhi Electricity Regulatory Commission (DERC) be appointed within two weeks.
Referring to Section 84 of the Electricity Act, a bench headed by Chief Justice D Y Chandrachud 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.
It said the 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.
The top court said Section 84 of the Electricity Act, 2003 provides for appointment of chairperson and members of state commission and the substantive part indicates that state government may appoint any person from among persons "who is or has been judge of HC".
"However, appointment is to be made after consulting Chief Justice of that HC. The expression makes it clear that consultation has to be made with the Chief justice of the high court from which the judge is drawn. Where a sitting judge is to be appointed, the CJ consulted will be one who the judge is serving.
"Where it is a former judge. CJ of the HC where the judge has previously served. In view of clear provisions, the appointment of chairperson shall be made in two weeks," the bench, also comprising Justices P S Narasimha and K V Vishwanathan said.
Referring to a 2018 constitution bench judgement and the one the Supreme Court recently pronounced 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." A tug of war between the AAP government and LG V K Saxena was going on for the last five months, with the latter's office insisting that the view of the Delhi high court chief justice was needed for appointing Justice (Retd) Rajeev Shrivastava, who had served in the Madhya Pradesh high court, as DERC chairperson.
"Delhi government sent a proposal to the LG for the appointment of a retired Madhya Pradesh high court judge as DERC chairperson before the post fell vacant. But no decision has been forthcoming," senior lawyer Abhishek Singhvi, who represented the Delhi government, had submitted.
Referring to Section 84(2) of the Electricity Act, Singhvi said consultation with the chief justice of the parent high court of the person sought to be appointed is required.
He had also submitted that when former Allahabad high court's justice Shabihul Hasnain was appointed DERC chairperson in 2021, the government consulted the then chief justice of the Allahabad high court and not the Delhi high court.
On January 10, the then deputy chief minister Manish Sisodia had written to Saxena, requesting him to urgently clear the appointment of the DERC chairman amid continued tussle with the LG's office.
Chief Minister Arvind Kejriwal had approved the appointment of Justice (Retd) Rajeev Shrivastava as the next DERC chairperson.
The tenure of incumbent DERC Chairman Justice (Retd) Shabihul Hasnain has lapsed and yet the Lt Governor has not cleared the appointment of the recommended office-bearer, Sisodia had said in the letter.
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