The Supreme Court Wednesday upheld the Centre's power to extend Sanjay Kumar Mishra's tenure as Director of the Enforcement Directorate (ED) but clarified that extension of officers after the age of superannuation should be done only in rare and exceptional cases. A bench headed by Justice L Nageswara Rao said that a reasonable period of extension can be granted to facilitate the completion of ongoing investigations only after reasons are recorded by the Committee constituted under Section 25 (a) of the CVC Act.
The court also made it clear that no further extension can be given to Mishra. It further stated that an extension of tenure of Director should be for a short period.
"We do not intend to interfere with the extension of tenure of the second Respondent (Mishra) in the instant case for the reason that his tenure is coming to an end in November, 2021… "We make it clear that no further extension shall be granted to the second respondent," said the bench also comprising Justice B R Gavai.
The top court noted that though there is no provision in the CVC Act for extension or reappointment of Director of Enforcement, section 21 of the General Clauses Act, 1897 enables the Government to extend the tenure of Mishra. The apex court said that Mishra's initial appointment cannot be termed to be illegal and that he had a right to continue till November 18, 2020 by virtue of his appointment for a period of two years.
"For all practical purposes, he should be treated as the Director of Enforcement till that particular date he was holding an office which is not below the rank of an Additional Secretary to the Government of India. Therefore, he was eligible for extension of tenure," the bench said. Section 25 (f) of the CVC Act has to be read as the tenure of office of the Director of Enforcement is for a minimum period of two years, the top court said, adding that is not the maximum of two years, and a person can be appointed for a longer term.
It also noted that there is no allegation that the power of extension of tenure was exercised for any unauthorised purpose. The Centre had argued before the court that Section 25 of the CVC Act prescribes the minimum tenure of a Director of Enforcement.
Defending its decision to extend the tenure of the ED director, the Centre had submitted that the extension of Mishra's tenure was done on the basis of a recommendation made by the Committee headed by the Chief Vigilance Commissioner on November 11, 2020 in view of administrative exigencies. The apex court said that material on record indicates that the extension of Mishra's service was pursuant to the recommendations made by the Committee constituted under Section 25 (a) of the CVC Act.
The bench took into account the justification given by the Union of India for extension of Mishra's tenure is that important investigations are at a crucial stage in trans-border crimes and the exercise has been done pursuant to the recommendation made by the high-powered committee. The judgement came on a plea filed by NGO, Common Cause, challenging retrospective change in the 2018 appointment order of Mishra as director of the ED.
It had resulted in extending Mishra's tenure as ED Director from two to three years Mishra, an Indian Revenue Service officer was appointed as the ED Director for two years by an order of November 19, 2018. Later, by an order of November 13, 2020, the appointment letter was modified retrospectively by the central government and his 2-year term was made for three years.
Advocate Prashant Bhushan, appearing for the NGO, had said Mishra could not have been given any extension since he reached the age of 60 years in May 2020 and such an illegal extension may have an impact of "destroying" the independence of the office of the Director. Besides seeking quashing of the Office Order of November 13, 2020 by which the appointment letter of Mishra was amended, the NGO had also sought a direction to the Finance Ministry to appoint a Director, Enforcement Directorate, in a transparent manner and strictly in accordance with the mandate of Section 25 of the Central Vigilance Commission Act, 2003.
The NGO had moved the apex court just after the government had decided to amend the 2018 order and grant the extension of service of one more year to Mishra.
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