Supreme Court Issues Notice To Centre On Retrospective Extension of ED Director's tenure

Supreme Court Issues Notice To Centre On Retrospective Extension of ED Director's tenure

The Plea was filed by an NGO wherein it was stated that illegalities in the appointment of the Director of Enforcement will shake the confidence of citizens in the institution of Enforcement Directorate (ED).

The Supreme Court of India (SC) on 15 February 2021 issued notice to the Central government, Director of Enforcement Directorate (ED), Sanjay Kumar Mishra, and Central Vigilance Commission (CVC). The notice was issued by the SC on a plea wherein it challenged the retrospective change in appointment order of Mishra through which his tenure was increased from two years to three years.

The SC Bench comprising Justices L Nageswara Rao and Ravindra Bhat heard a plea by NGO Common Cause that sought quashing of 13 November 2020 order of the ED amending the tenure of Mishra. It was claimed by the NGO that it was in violation of Section 25 of the Central Vigilance Commission Act, 2003 (Act).

Advocate Prashant Bhushan represented the petitioner organization. The advocate submitted before the Apex Court, "According to the scheme of the Act, he shall have a minimum tenure of two years. However, he was given a one-year extension." He further added, "This is destroying the independence of ED, it has become means for harassment."

It was contended that Section 25(c) of the Act specifically provides that no person below the rank of Additional Secretary to the Government of India shall be eligible for appointment as a Director of Enforcement.

It further stated that Section 25(d) of the Act provides that a Director of Enforcement shall continue to hold office for a period of not less than two years from the date on which he assumes office.

Mishra was appointed as Director of Enforcement vide order dated November 2018 in the ED for a period of two years from the date of assumption of charge of the post or until further orders, whichever fell earlier. The said two-year tenure ended in November last year. Mishra had already reached the retirement age of 60 years in May 2020.

On 13 November 2020, the Central Government issued an office order wherein it was stated that the President has modified the 2018 order to the effect that a period of 'two years' written in the 2018 order was modified to a period of 'three years'.

The petition highlighted that "Thus, by virtue of the impugned Office Order, dated 13.11.2020, the appointment order dated 19.11.2018 has been modified with retrospective effect and the Respondent No. 2 herein has been given an additional one year of service as Director of Enforcement in the Enforcement Directorate."

The plea added, "However, the said purpose gets defeated if on the verge of his two-year tenure and much after his retirement age, the Director of Enforcement is given a de facto extension in service by adoption of a circuitous route of modifying the initial appointment order itself."

Such illegalities in the appointment of the Director of Enforcement will shake the confidence of citizens in the institution of Enforcement Directorate, it was contended.

The NGO in its petition referred to the judgment of the Top Court in the case of Vineet Narain v. Union of India, (1998) 1 SCC 226 and stated, "Such an action will be totally against the laudable principles highlighting the need of impeccable integrity of persons holding high public offices and the consequent need for insulating the said offices from extraneous influences."