The Supreme Court on Wednesday observed that extension of tenure granted to government officers who are attaining the age of superannuation, should be done only in ‘exceptional cases’.
A Bench led by Justice L. Nageswara Rao and also comprising Justices B.R. Gavai and B.V. Nagarathna, passed the order on a petition filed by NGO ‘Common Cause,’ challenging the retrospective extension of Director of the Enforcement Directorate (ED) Sanjay Kumar Mishra beyond the period of two years, done recently by the Central government.
“A reasonable period of extension can be granted to facilitate the completion of ongoing investigations, only after reasons are recorded by the committee constituted under Section 25 of the CVC Act,” the apex court held.
“Any extension of tenure granted to persons holding to the post of Directorate of Enforcement after attaining the age of superannuation should be for a short period,” it added.
The bench, while dismissing the writ petition, said,
“We do not intend to interfere with the extension of tenure of the second respondent/Sanjay Mishra in the instant case. For the reason that his (Sanjay Mishra) tenure is coming to end in November, 2021, we make it clear that no further extension shall be granted to him.”
The petition was filed by NGO Common Cause (A Registered Society) seeking a direction to the Central Government to appoint a Director to Enforcement Directorate in a fair and transparent manner. The petitioner had submitted in its plea that at the end of Mishra’s two-year tenure as the ED Director, he would have been ineligible for reappointment by virtue of Section 25 of the CVC Act, 2003.
The petition had further submitted that according to provisions of CVC Act, a Committee recommends the candidate to be appointed as the ED Director not 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.
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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 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.
Senior Advocate Prashant Bhushan, representing the petitioner, contended that the extension of tenure of Mishra is destroying the independence of ED and the agency has become a means for harassment.
He further submitted that there is no provision in CVC Act for extension of service of the Director, Enforcement Directorate nor any enabling provision, which provides for such retrospective modification of appointment orders.
Read order below.
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