Common Cause Moves Supreme Court Against Retrospective Extension Of ED Director Sanjay Kumar Mishra's 's Tenure Beyond 2 Yrs

The plea filed by Common Cause through Advocate Prashant Bhushan seeks that the ED Director be appointed strictly in accordance with the mandate of Section 25 of the Central Vigilance Commission Act, 2003.

The said provisions prescribes a Committee that 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.

The plea also seeks to a direction for quashing of an Office Order dated November 13 which retrospectively amended the tenure of the present ED Director, Sanjay Kumar Mishra.

It may be noted that 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 has come to an end on November 18, this year.

However, his tenure has been extended for one more year by the impugned Office Order dated November 13, whereby the 2018 amendment Order for appointment has 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.

"The impugned Office Order, dated 13.11.2020, issued by the Respondent No.1 is in the teeth of Section 25 of the CVC Act as the said Section provides that a person has to be above the rank of Additional Secretary to the Government of India to be eligible for appointment as a Director of Enforcement. Thus, as the Respondent No.2 has already reached his retirement age in May 2020, therefore, after the end of Respondent No.2's two-year period on 19.11.2020, the Respondent No.2, by virtue of not holding any post above the rank of Additional Secretary, would have been ineligible for appointment as a Director of Enforcement again," the plea states.

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,

"what could not have been done directly under the Statute has been done indirectly by the Respondent No.1 herein [which is against the principle enunciated by this Hon'ble Court in Jagir Singh vs Ranbir Singh And Anr. [(1979) 1 SCC 560]]."

It is urged that the intention behind Section 25 (d) in providing a minimum tenure of two years to the ED only to insulate the Director of Enforcement from all kinds of influences and pressures. Reliance is placed on Prakash Singh & Ors. v. Union of India & Ors., WP (C) No. 310/1996.

"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," the NGO has submitted.