Supreme Court Issues Notice On Plea Challenging Retrospective Extension Of ED Director Sanjay Kumar Mishra's 's Tenure Beyond 2 Yrs

A division Bench of Justice Nageswara Rao and Justice Ravindra Bhat 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.

During the hearing today, Advocate Prashant Bhushan, appearing for the petitioner, submitted 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 remarked.

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

"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,

The plea has submitted 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. 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.