The Supreme Court on Tuesday deferred the oath taking of Delhi Electricity Regulatory Commission (DERC) chairperson-designate Justice (retd) Umesh Kumar, while deciding to examine the constitutional validity of a provision of the Centre's recent ordinance governing such an appointment.
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, a bench comprising Chief Justice D Y Chandrachud and Justice P S Narasimha observed that it was rather inclined to stay the MHA notification.
The bench said it recorded the submissions of senior lawyer A M Singhvi, appearing for the Delhi government, on deferring the oath taking process to deal with the matter in a 'non-controversial' manner.
"It has been understood 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."
Observing that since the matter involved '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 final disposal at this stage on July 11. Since a pure question of law has been raised, the liberty is given to the parties to file brief written submissions and in the event any counter affidavit is to be filed, a copy shall be served on the petitioner by Monday," it ordered.
The appointment of the DERC chairperson has led to a power tussle between the Delhi government and the office of the LG and it led to filing of a fresh case in the top court.
The government said in its petition that the office of the LG has to act on the aid and advice of the council of ministers.
The ordinance 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 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.
"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.
The solicitor general said that 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 took 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 and 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 that the retired judge recommended by the Delhi Government, Justice Rajeev Kumar Shrivastava, had declined to accept the post citing personal difficulties.
The post of DERC chairperson was vacant after former head of the commission Justice Shabihul Hasnain demitted office on January 09, 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 that 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 Aam Aadmi Party 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 that evening.
The AAP government had moved 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'.
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