'ED Director Can Be Appointed For A Period Of More Than 2 Years' :Supreme Court Upholds Extension Of ED Director SK Mishra's Tenure

The Supreme Court on Wednesday refused to interfere with the extension of tenure given to the Director of Enforcement Directorate Sanjay Kumar Mishra. The Court refused to interfere with the order passed by the Union Government on November 13, 2020 which retrospectively amended the appointment order of the present ED Director to give him one more year in office. He had attained the age of superannuation in May 2020.Delivering judgment in the case Common Cause(A Registered Society) v. Union of India and others, a bench of Justices LN Rao and BR Gavai upheld the power of the Union of India to extend the tenure of ED Director beyond two years in "rare and exceptional circumstances". Such extension can be given to facilitate the ongoing investigation. The bench said that any extension of tenure during superannuation has to be for a short period and be granted for reasons recorded. The Court also added that the term of SK Mishra should not be extended any further. With the above observations, the Court dismissed the PIL filed by the NGO Common Cause. "We've upheld the power of the Union of India to extend the tenure beyond two 2 years. However we hold that such power has to be extended only in rare circumstances. It can be given to facilitate ongoing investigation. Any extension of tenure during superannuation should be for a short period", Justice Rao read out the operative portion of the judgment.Since Mishra's appointment is coming to an end in November 2021, no further extension be granted to him, the bench added. "The decision to extend the tenure of the second Respondent(Mishra) is pursuant to the recommendation made by the high-powered committee. Though we have upheld the power of the Union of India to extend the tenure of Director of Enforcement beyond the period of two years, we should make it clear that extension of tenure granted to officers who have attained the age of superannuation should be done only in rare and exceptional cases. 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. Any extension of tenure granted to persons holding the post of Director of Enforcement after attaining the age of superannuation should be for a short period", the operative portion of the judgment read.BackgroundMishra was appointed as the Director of ED as per order dated November 19, 2018, and his mandatory two years tenure prescribed under the CVC Act came to an end on November 18, last year. His tenure had however been extended for one more year by the impugned Office Order dated November 13, whereby the 2018 amendment Order for appointment had been amended such that the period of 'two years' written in that order has been modified to a period of 'three years'. Thus, in effect, Mishra had been given an additional one year of service as Director, Enforcement Directorate.This extension was challenged by the NGO Common Cause by filing a writ petition through Advocate Prashant Bhushan in the Supreme Court. A bench of Justices LN Rao and BR Gavai had reserved judgment on August 18, 2021 in the petition filed by Common Cause, which had also sought a direction to the Central Government to appoint a Director to the Enforcement Directorate (ED) in a fair and transparent manner. Senior Advocate Dushyant Dave had appeared for the petitioner and Solicitor General Tushar Mehta had appeared for Union Government.The main arguments raised by the petitioner were :After the end of Mishra's two-year tenure as the ED Director, he would have been ineligible for appointment to the said post again by virtue of Section 25 of the CVC Act. "ED Director must be appointed strictly in accordance with the mandate of Section 25 of the Central Vigilance Commission Act, 2003," petition had stated. The NGO had also averred that there was neither any enabling provision in the CVC Act for extension of service of the Director, Enforcement Directorate nor any enabling provision which provides for such retrospective modification of appointment orders. It was argued that the Government had employed a circuitous route in order to ensure that Mishra got one more year as the ED Director. In this context, the petition had submitted that the intention behind Section 25 (d) was to provide a minimum tenure of two years to the ED only to insulate the Director of Enforcement from all kinds of influences and pressures. "However, the said purpose got defeated if on the verge of his two-year tenure and much after his retirement age, the Director of Enforcement was given a de facto extension in service by adoption of a circuitous route of modifying the initial appointment order itself," petition further stated.Senior Advocate Dushyant Dave argued that the provisions did not contemplate giving an extension to the ED...

'ED Director Can Be Appointed For A Period Of More Than 2 Years' :Supreme Court Upholds Extension Of ED Director SK Mishra's Tenure

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