Supreme Court upholds extension of tenure of ED director SK Mishra

The Supreme Court Wednesday refused to interfere with the extension of service granted to Enforcement Director S K Mishra, stating that the Central Vigilance Commission Act, 2003, which dealt with the appointment to the post, only said that such officers shall hold office for not less than two years which cannot be read to mean not more than two years.

“Prescription of a minimum period of two years is to ensure that the Director of Enforcement is not transferred or shifted from the said post during the course of investigation of serious offences. There is no ambiguity in Section 25 (d) of CVC Act and the words ‘not less than two years’ simply mean a minimum of two years. There is no scope for reading the words to mean ‘not more than two years’,” ruled a bench of Justices L Nageswara Rao and B R Gavai, dismissing a petition filed by NGO Common Cause challenging the appointment.

“The words ‘not less than two years’ cannot be read to mean ‘not more than two years’ and there is no fetter on the power of the Central government in appointing the Director of Enforcement beyond a period of two years,” the court said.

“Reading such a restriction would be contrary to the recommendations of the Independent Review Committee and the judgment of this court in Vineet Narain (wherein it was held that the ED Director shall have a minimum tenure of two years and any premature transfer for any extraneous reason shall be approved by the Selection Committee headed by the Central Vigilance Commissioner).”

The bench said that “curtailment of the tenure of a Director Enforcement would be detrimental to the interests of officers who are appointed to the post and have service of more than two years before they attain the age of superannuation. Therefore, we hold that a Director of Enforcement can be appointed for a period of more than two years by following the procedure prescribed under Section 25 of the CVC Act.”

Mishra who was Principal Special Director in ED was appointed Director on November 19, 2018, for a period of two years. On November 13, 2020, this was extended by one more year.

The NGO contended that the extension was contrary to Section 25 of the CVC Act. It pointed out that he attained the age of superannuation in May, 2020, and therefore was not holding any post equivalent or above the rank of Additional Secretary to the Government of India when his tenure was extended on November 13, 2020.

The government, however, contended that the Act only prescribes the minimum tenure and that the extension was on the basis of a recommendation made by the Committee headed by the Chief Vigilance Commissioner in view of administrative exigencies.

The bench said it did not intend to interfere with the extension of tenure of Mishra “for the reason that his tenure is coming to an end in November, 2021” but made it clear that “no further extension shall be granted to” him beyond that date. We should make it clear that extension of tenure granted to officers who have attained the age of superannuation should be done only in rare and exceptional cases”. “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 (a) of the CVC Act. Any extension of tenure granted to persons holding the post of Director of Enforcement after attaining the age of superannuation should be for a short period.”

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