SC Defers Appointment of Justice Umesh Kumar as DERC Chairman until July 11

The Supreme Court on Tuesday passed an order to postpone the oath-taking ceremony for the appointment of Justice (retired) Umesh Kumar as the chairperson of Delhi Electricity Regulatory Commission (DERC) until July 11, 2023.

A bench comprising Chief Justice of India DY Chandrachud and Justice PS Narasimha also issued a notice in response to the plea filed by the Delhi government challenging the appointment.

The matter is scheduled for further hearing on July 11.

The bench stated in its order that the administration of oath, pursuant to the notification, for the former judge of Allahabad High Court shall be deferred.

The Delhi government approached the Supreme Court, contesting the appointment of Justice Umesh Kumar as DERC chairperson, asserting that it was unilaterally made by the Lieutenant Governor without the government’s concurrence.

The bench observed that the petition raises a legal question concerning the validity of Section 45D of the GNCTD Act, as amended by the latest Ordinance issued by the Centre, which grants overriding powers to the Lieutenant Governor over the elected government regarding appointments.

Senior advocate Abhishek Manu Singhvi, representing the Delhi government, requested a stay on the notification appointing Justice Kumar, emphasizing that the oath-taking ceremony is scheduled for Thursday. He argued that the unilateral action by the Lieutenant Governor goes against the Supreme Court’s five-judge Constitution bench judgment and the spirit of Article 239AA of the Constitution.

Singhvi highlighted that the Delhi government provides free power up to 200 units to the underprivileged and accused the Lieutenant Governor of attempting to halt this popular scheme by appointing their own chairman.

The Solicitor General of India, Tushar Mehta, contended that the government is responsible for administering the oath, but it has been delaying the process since June 22 for various reasons.

Delhi power minister Atishi alleged that the appointment was made by disregarding the aid and advice of the elected government, thereby violating the constitution.

The Delhi government had earlier recommended Justice (retd.) Sangeet Lodha for the position, but the President willfully ignored the recommendation. Justice (retd.) Rajeev Shrivastava was also approved for the DERC chairman position but expressed his inability to accept the appointment due to family commitments and requirements.

The apex court emphasized that the Lieutenant Governor is obligated to act on the aid and advice of the council of ministers, as clarified in a 2018 Constitution bench judgment and its judgment on the services row between the Centre and the Delhi government.

The Delhi government filed a plea in the Supreme Court alleging inaction by the Lieutenant Governor in appointing the Chairperson of DERC. The DERC has been operating without a Chairperson for the past four months after the previous Chairperson, Justice (Retd) Shabihul Hasnain, stepped down on January 9, 2023, upon reaching the age of 65 years.