Retired Civil Servants Move Supreme Court Challenging Central Vigilance Commission (Amendment) Ordinance, 2021 Extending Tenure Of Director, ED

The Ordinance has now extended the earlier two year tenure to a term of 5 years by inserting a proviso to Section 25 of the Central Vigilance Commission Act, 2003 which reads:

"Provided that the period for which the Director of Enforcement holds the office on his initial appointment may, in public interest, on the recommendation of the Committee under clause (a) and for the reasons to be recorded in writing, be extended up to one year at a time:

Provided further that no such extension shall be granted after the completion of a period of five years in total including the period mentioned in the initial appointment;".

The Petitioners have contended that the ordinance aims to legislatively override the judgment of the Apex Court in Common Cause v. Union of India [W.P. (C) No. 1374 of 2020] whereby the tenure of the incumbent Director ED, Mr. Sanjay Kumar Mishra was set to expire in November, 2021 without any further extension. Another judgment that the Petitioners rely on is Vineet Narain And Ors. v. Union of India And Ors. (1998) 1 SCC 226, wherein the Supreme Court had emphasised on the need to fix tenure for the CBI Director.

The Petitioners have noted that Mr. Sanjay Kumar Mishra, Director ED was due for superannuation on 171.11.2021 and an extension was granted to the tenure of the Director ED by the impugned office order. As per the Petition, the extension of his tenure which has been made 3 days prior to his superannuation is a blatant violation and discard to various statutory provisions, including Fundamental Rule 56 which lays down that there cannot be any extension of service of Director, ED, other than the exceptions mentioned in the said Rule.

The Petitioners cited Prakash Singh And Ors vs. Union of India And Ors. (2006) 8 SCC 1, wherein the Apex Court had issued directions to the Central Government, State Governments and Union Territories for compliance of its order laying down the Selection and Minimum Tenure of Director General of Police (DGP), till the framing of appropriate legislations. Placing reliance on Prakash Singh And Ors. v. Union of India And Ors. (2019) 4 SCC 13, the Petitioners argued that the extended term beyond the date of superannuation ought to be reasonable. It is highlighted that in Prakash Singh (supra) the Apex Court had discouraged the States to appoint the DGP on the last date of retirement because permitting the person to continue for two years after his date of superannuation would go against the spirit of the order. It had further held that at least six months of service should be remaining before retirement for the person who is appointed to the post of DGP. It is the argument of the Petitioners that ED Director's appointment being at par with DGP, the non-compliance of the ratio in Prakash Singh (supra) would amount to blatant disregard of the directions of the Top Court.

Considering the position of a Director, ED is a critical one, it should be able to discharge its duties without being subjected to the fear that their appointments and extensions are at the whims and fancies of the Government. The Petitioners contend:

"That key appointments such as that of the Director, ED ought to be made in compliance with various statutory provisions and in a manner that aligns to our Constitutional Machinery. In fact, as in the case of the Director, CBI the final appointment ought to be made by a Committee consisting of the Prime Minister, the Leader of Opposition in the Lok Sabha and the Hon'ble Chief Justice of India or his nominee. The Enforcement Directorate is a powerful investigative agency with a nation-wide jurisdiction just like the Central Bureau of Investigation and, as such, the same protection ought to be afforded to the Enforcement Directorate as it exists for the Central Bureau of Investigation."

It is stated that the order of extension passed does not show satisfaction of the Committee. It goes on to argue:

"It shows no application of mind especially in the arena of institutional integrity. Such orders of extension ought, it is humbly submitted, to be non- est in law. In terms of there being no recording of the satisfaction of the Committee as envisaged even by the Ordinance under challenge, this extension cannot stand."

The Petitioners have further questioned the hasty and arbitrary manner in which the Ordinance has been passed, when the Parliament was to be in session within two weeks -

"...the manner and haste with which the tenure of the Respondent No. 4 (Director, ED) has been extended suggests that the extension has been made for extraneous reasons and has not been made keeping public interest as the paramount consideration.

[...]

...it is in national interest that the extension of tenure of officers appointed to critical posts is conducted in a transparent manner and in accordance with Rule of Law and that such appointments are insulated from partisan purposes and political patronage."

[Case Title: Chaman Lal And Ors. v. Union of India And Ors.]

[AOR: Aakarsh Kamra]

[Petitioners: Chaman Lal, M.G. Devasahayam, Aditi Mehta]

[Respondents: Union of India, Ministry of Law and Justice, Department of Personnel and Training, Directorate of Enforcement]

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