We Appreciate Good Work Of ED Director; But Question Is Whether His Tenure Can Be Extended : Supreme Court

"In these last 2 years, apart from part heard matters, a total of Rs 9,000 crores of rupees stands deposited only from 3 major cases that are going (Mallya, Nirav Modi & Mehul Choksi). Statutory tenures cannot be tested upon some ordinary misuse. This is a minimum tenure to exercise your powers but for good reasons if the govt finds that some matters are held up, it can extend",  SG argued.

The SG further submitted that the judgment in Vineet Narayan case directs for a minimum tenure of 2 years and does not limit the maximum term.

Highlighting the minutes of the meeting of the Committee that decided to grant the extension, the SG submitted that these decisions were not taken on the whims of the Government and that they were not arbitrary or irrational. In order to substantiate his contention, Solicitor General while referring to Committee's note submitted that :

"The committee headed by CVC met. The committee went through the agenda & the committee noted that he was appointed from 19.11.2018 till 19.11.2020. The committee did take note of his tenure. Committee went through the performance appraisal of the last 10 years & noted that all 10 are outstanding. Last 10 years, they were outstanding. This is required to show that such decisions can never be at the whims & fancies. The ACR's cannot be wrong for 9 years. In addition, during the last 2 years, several cases of PMLA were identified, & required continuity by the incumbent."

It was also his contention that Mishra's appointment as Director of ED was not an appointment but a modification of order by extending his tenure. The SG traced the source of the power to issue the order to Section 21 of the General Clauses Act, 1897.

Upon Solicitor's submission Justice Rao posed a question, "If you see in light of Vineet Narayan, what was sought to be secured was a period of 2 years. Those words that are used in not less than 2 years, can that be read as minimum 2 years & also more? We're not here in extension but INTERPRETATION. The word NOT LESS THAN 2 YEARS, we want you to deal with that in light of Vineet Narayan."

Answering to the question posed by Justice Rao, Solicitor General submitted that if the Central Government had the power, it could be exercised to increase the tenure of 2 years to 3 years.

He also argued that the Top Court's judgment in Vineet Narayan and Ors v. Union of India & Ors and Prakash Singh v. Union of India could not be read as a statute but only its spirit could be taken into account.

On the point of distinction between the two judgments, the Solicitor General submitted that, "Vineet's case dealt with statutory positions. Director's position is a sui generis position. It not only has country-wide ramifications but also cross-border ramifications. Prakash Singh's judgement dealt with DGP of State".

In addition to this, Solicitor contended that, "We're dealing with an officer that should have a wide schedule to complete his duties. I'm only showing how this sui generis officer should not have a maximum tenure. The Director of ED is a statutory authority. Even for DGP, Prakash Singh's judgment says that the minimum tenure should be for 2 years.Statute also is very clear that there is minimum tenure of 2 years."

With regards to the non obstante clause under section 25 of the Central Vigilance Commission Act, 2003, the Solicitor General submitted that Senior Counsel Dushyant Dave's argument that non obstante clause u/s 25 of CVC Act, 2003 was only applicable for the first 2 years of initial appointment and not for extension is a "fallacy".

The Solicitor General also questioned the locus of the petitioner NGO 'Common Cause' in filing the PIL and argued that service matters cannot be adjudicated in a public interest litigation. The hearing will continue tomorrow afternoon.

Earlier, Senior Advocate Dushyant Dave had concluded the arguments for the petitioner(Report about that may be read here).

Background

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.

This extension was challenged in a writ petition filed by the NGO 'Common Cause'.

Case Title: Common Cause v. Union of India