NEW DELHI: The Supreme Court on Thursday said it will appoint ad hoc chairperson of Delhi Electricity Regulatory Commission (DERC) after the Delhi LG and the chief minister informed the court through their counsels that they had failed to reach a consensus on the issue.
“Since the issue will require a detailed hearing, pending adjudication we will appoint an ad hoc chairperson,” said the SC bench comprising CJI D Y Chandrachud and Justices P S Narasimha and Manoj Misra.
The top court expressed anguish over the deadlock between the two constitutional functionaries. “It is sad that nobody cares what happens to the institution. Individually, you keep fighting with each other … That institution is headless,” the bench said.
Senior advocate Abhishek Manu Singhvi, appearing for the Delhi government told the bench that the discussions between chief minister and the LG did not yield any results.
Harish Salve, appearing for Delhi LG V K Saxena, said the top court can suggest names for appointment of DERC chairperson and he or she will be appointed.
Solicitor General Tushar Mehta, who represented the Centre, said the institution can’t remain headless and the bench can appoint the DERC chairperson.
The bench asked the parties to give names of three or five retired judges of the Delhi high court so that the court could pick one of them for appointment as DERC chairperson.
During the last hearing in the case, the apex court had asked the LG V K Saxena and chief minister Arvind Kejriwal 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. The appointment of DERC chairperson has been the latest flashpoint between the two constitutional authorities.
Earlier during the hearing, the counsels informed the top court that they have failed to reach a consensus on the issue. The court reacted to this and said “Can you both not pick up one judge for appointment as DERC chairperson.”
The Delhi government had 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.
Seeking a stay of the notification appointing Justice Kumar, the Delhi government had said that 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.
Earlier, chief minister Arvind Kejriwal approved Justice (retd.) Rajeev Shrivastava for the DERC chairman and the file was put up by former deputy chief minister 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.
However, Justice Shrivastava later ‘expressed his inability to accept the appointment’ due to ‘family commitments and requirements’.
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 at his own discretion on such appointments, and directed the government to appoint the DERC chairperson within two weeks.

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