SC upholds extension of ED chief’s tenure
The Supreme Court on Wednesday signed off on the extension granted to Enforcement Directorate (ED) chief Sanjay Kumar Mishra, saying that the government has power to appoint the Director of Enforcement for a term beyond two years but that extensions beyond the date of the individual’s superannuation should be rare, in exceptional cases, and for a reasonably short period of time. Mishra’s term comes to an end in November 2021 and the court has said he should not be granted any further extension. Mishra superannuated in May 2020. A bench of Justices L Nageswara Rao and BR Gavai said, “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.”
NEW DELHI: The Supreme Court on Wednesday signed off on the extension granted to Enforcement Directorate (ED) chief Sanjay Kumar Mishra, saying that the government has the power to appoint the Director of Enforcement for a term beyond two years but that extensions beyond the date of the individual’s superannuation should be rare, in exceptional cases, and for a reasonably short period of time.
Mishra’s term comes to an end in November 2021 and the court has said he should not be granted any further extension. Mishra superannuated in May 2020. The decision of the court came on a petition filed by NGO Common Cause which challenged the government’ decision of November 13, 2020 to retrospectively grant an extension to Mishra by converting his original tenure of two years beginning November 19, 2018 into a three-year one. The decision met the approval of the High-powered Committee chaired by Cenofficers
tral Vigilance Commissioner in the interest of supervising some important investigations handled by ED that were at a crucial stage.
A bench of Justices L Nageswara Rao and BR Gavai said, “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 .” The court upheld the power of the central government of India to extend the tenure of Director of Enforcement beyond the period of two years. But ”we should make it clear that extension of tenure granted to
who have attained the age of superannuation should be done only in rare and exceptional cases,” it added .
The court said that a reasonable period of extension could be granted to facilitate the completion of ongoing investigations but “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 High-powered Committee entrusted with appointment of ED Director under the CVC Act has to record reasons for granting such extension, the court held.
The government argued in court that Section 25(d) of CVC Act laying down the tenure of Director Enforcement to be “not less than two years” gave discretion to the Government to fix a tenure beyond two years notwithstanding the retirement age of 60 years applicable under Rule 56 of All India Service Rules.
Solicitor general Tushar Mehta said that the Enforcement Director occupies an important post, probing money laundering crimes having cross-border and trans-national ramifications and that under the present Director, the agency managed to recover a sum of nearly ₹9,000 crore in the investigation of three cases involving Vijay Mallya, Nirav Modi and Mehul Choksi.
The NGO’S petition, argued by senior advocate Dushyant Dave, submitted that this decision of the government would play havoc with the system and give the government a free hand to keep officers of their choice beyond retirement for an unreasonable period. The bench held, “There is no proscription on the government to appoint a Director of Enforcement beyond a period of two years.” On the words ‘not less than two years’ occurring in Section 25(d) of the CVC Act, the bench said, “There is no scope for reading the words to mean not more than two years” and said that a Director of Enforcement can be appointed for a period of more than two years by following the procedure prescribed under Section 25 of the CVC Act.