Appoint a judge as SERC head, SC asks TN

The Supreme Court has advised the Tamil Nadu government to appoint a sitting or retired high court judge as the chairperson of the state electricity regulatory commission (SERC) to perform the panel’s judicial duties.

This could set a precedent and could go a long way in increasing the functional autonomy of SERCs, analysts said.

SERCs, at present, are chaired by retired bureaucrats, many of whom have served the government in the same state. The apex court’s advice comes at a time when the Centre is looking at possible ways to make the appointment process for top jobs in SERCs more transparent.

Even the Shunglu committee set up by the Centre in 2010 to examine the financial health of power distribution companies had voiced concern over the state government’s undue interference with SERCs’ affairs.

The Section 84 of the Electricity Act 2003 , which specifies eligibility criteria for appointment to the top post in the SERCs, does not stipulate that only a high court judge should be considered for the job. However, Section 84 ( 2) empowers the state to select a judge for the post if the latter wants.

?We have been informed that till date no judicial member has been appointed in the TNERC. We are of the opinion that the matter needs to be considered, with some urgency, by the appropriate state authorities about the desirability and feasibility for making appointments, of any person, as the chairperson from among persons who is, or has been, a judge of a High Court,? a Supreme Court bench of Surinder Singh Nijjar and AK Sikri said while disposing of an appeal filed by the Tamil Nadu Generation and Corporation against the electricity tribunal’s ruling in a matter involving a power generating company, PPN Power Generation Company.

Being an advisory, regulatory and recommendatory body, SERCs are mandated to adjudicate disputes relating to these primary functions only.

The court agreed with appellant counsel’s submission that, ?adjudicatory functions generally ought not to be conducted by the SERC in the absence of a judicial member, especially in relation to disputes that are not fairly relative to tariff fixation or the advisory and recommendatory functions of the commission?.

To back its argument, the bench further noted, ?Section 113 of the Act mandates that the chairman of APTEL shall be a person who is or has been a judge of the Supreme Court or the chief justice of a high court. A person can be appointed as the member of the Appellate Tribunal who is or has been or is qualified to be a High Court judge. This would clearly show that the legislature was aware that the functions performed by the SERC as well as the appellate tribunal are judicial in nature.?