Manish Sisodia, the deputy chief minister of Delhi, requested Lieutenant Governor VK Saxena on Tuesday to expeditiously approve the nomination of the chairperson of the Delhi Electricity Regulatory Commission (DERC). The Deputy CM further requested in his letter that the LG refrain from sending the file to officers directly, as he did in three cases last week, as this is against the “Constitution and various SC judgements.” According to Manish Sisodia, the LG has still not approved the nomination of the nominated office bearer even though the current DERC Chairman’s term expires on Tuesday.
In his letter, Manish Sisodia penned, “CM approved the appointment of Justice (retd) Rajeev Shrivastava of MP High Court as DERC Chairperson on January 4, 2023 to succeed Justice (retd) Shabibul Hasnain after his retirement. The Chief Justice of the MP High Court has also given his consent as required under the Electricity Act. CM sent the matter to LG on the same day to decide whether he would differ with the decision of the Council of Ministers and whether he would like to invoke provision to Article 239AA(4) of the Constitution.”
Manish Sisodia stated that Justice (retd) Rajeev Shrivastava was a renowned judge of the MP High Court who had an exceptional career and spotless record. “Therefore, I find no reason why you would differ with the decision of the Council of Ministers. On the contrary, I feel you would be pleased to endorse this decision. SC has also said that the proviso to Art 239AA(4) should be rarely invoked,” Sisodia wrote.
The Supreme Court was also quoted by the deputy chief minister in the case State (GNCTD) Union of India Ar, (2018) 8 SCC 581, “Under the said judgement the SC has taken the view that the LG is bound by the aid and advice of the Council of Ministers as long as he does not exercise proviso to Art 239AA(4).”
The judgement also states that the disagreement between the LG and the Council of Ministers should be supported by reason, rather than by an explanation of the obstructionist phenomenon or a reflection of profound sagacity and judiciousness. And that, “In a Cabinet form of Government, the substantive power of decision making vests in the Council of Ministers with the Chief Minister as a head. The aid and advice provision contained in the substantive part of Article 239 AA(4) recognises this principle. When the Lieutenant Governor acts on the basis of the aid and advice of the Council of Ministers, this recognises that real decision-making authority in a democratic form of Government vests in the executive,” he stated.
Further in the letter, Manish Sisodia mentioned, “However, should you desire to express a difference of opinion, then I wish to remind you to kindly follow the process provided in Rule 49 of TBR. In the last few days, there have been three occasions when you implemented your decision by sending the file directly to the officers bypassing the CM and the Minister and got the officers to issue a notification. When asked, your justification was that since it was written ‘Administrator/LG shall appoint in those provisions/Acts’, therefore, you directly exercised your powers bypassing the elected government.”
“That is an incorrect legal position Sir. On all transferred subjects, unless it is a quasi-judicial or judicial matter where LG has to act in his discretion, on all other matters, LG is bound by the aid and advice of the Council of Ministers. So, kindly do not send the file related to the appointment of the DERC Chairman directly to the officers for the issue of notification. There is a specific judgement of SC on the issue of DERC. In addition to its strong observations in the judgement of the Constitution Bench, the Division Bench of SC has also reiterated the same position,” he added.