Plea Challenging Retrospective Extension Of ED Director's Tenure : Supreme Court To Hear Tomorrow

The Supreme Court on Monday decided to hear tomorrow a plea filed by NGO Common Cause challenging retrospective extension of ED Director Sanjay Kumar Mishra's tenure beyond 2 years.

A Division Bench comprising Justice Nageswara Rao and Justice BR Gavai adjourned the matter to tomorrow after Solicitor General Tushar Mehta was unable to appear during the hearing today.

During the hearing today, a request for a passover was made as the Solicitor General Tushar Mehta was engaged in the Pegasus case

Solicitor General Tushar Mehta was appearing for Union of India before a Bench headed by Justice AM Khanwilkar in pleas regarding issues related to the Prevention Of Money Laundering Act.

Senior Advocate Dushyant Dave however objected to the passover and said that the case involves a very serious issue of appointment beyond 2 years.

Since the Bench was about to rise for the day, the Bench decided to hear the matter tomorrow, on Tuesday.

In response to Mr Dave's request to clarify that the respondents will not be accommodated tomorrow, the Bench asked the Respondent Counsel to ensure that Solicitor General appears for the hearing tomorrow, and in case he cannot appear, someone else should be asked to appear.

The present plea has been filed seeking a direction to the Central Government to appoint a Director to Enforcement Directorate in a fair & transparent manner. According to the plea, the ED Director must be appointed strictly in accordance with the mandate of Section 25 of the Central Vigilance Commission Act, 2003.

A division Bench of Justice Nageswara Rao and Justice Ravindra Bhat had in February this year issued notice on the PIL which also seeks a direction to the Central Government to appoint a Director to the Enforcement Directorate (ED) in a fair and transparent manner.

On a previous occasion. Advocate Prashant Bhushan, appearing for the petitioner had told the Court that according to the scheme of the act, he shall have minimum tenure of 2 years. However, he was given a one-year extension.

"This is destroying independence of ED, it has become means for harassment. " Bhushan had remarked.

"Mr. Bhushan, we are impressed with the point you are making. We will hear you." the Bench had observed.

The petition has stated that according to provisions of the CVC Act, a Committee recommends the candidate to be appointed as the ED Director to the Ministry of Finance. Such Director cannot be below the rank of Additional Secretary to the Central Government and he shall continue to hold office for a period of not less than two years.

Mishra was appointed as the Director of ED vide 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 has been given an additional one year of service as Director, Enforcement Directorate.

The NGO has contended that 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.

It has been further contended that there is 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 is contended that the Government has employed a circuitous route in order to ensure that Mishra gets one more year as the ED Director and it is submitted,

Case Title: Common Cause vs Union of India