"Retrospective extension" of ED Director, Sanjay Kumar Mishra's tenure challenged in Supreme Court

The plea by NGO Common Cause said that the decision is in the teeth of Section 25 of the Central Vigilance Commission Act.
Directorate of Enforcement
Directorate of Enforcement

The decision of the Central government to extend the tenure of Director of Enforcement Directorate, Sanjay Kumar Mishra from two years to three years has been challenged before the Supreme Court.

The petition filed by NGO Common Cause states that the office order issued by the Central government on November 13 extending Mishra's tenure is in the teeth of Section 25 of the Central Vigilance Commission Act, 2003 (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

"As (Respondent No. 2) Sanjay Kumar Mishra has already reached his retirement age in May 2020, therefore, after the end of Respondent No.2’s two-year period on November 19, 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 petition states.

Mishra was appointed ED Director for two years by an order dated November 19, 2018. However, the Central government on November 13, 2020 issued an office order in which it was stated that the President has modified the 2018 order to the effect that a period of ‘two years’ written in the 2018 order dated 19.11.2018 was modified to a period of ‘three years’.

"Thus, by virtue of the impugned Office Order, dated 13.11.2020, the appointment order dated 19.11.2018 has been modified with retrospective effect and the Respondent No.2 herein has been given an additional one year of service as Director of Enforcement in the Enforcement Directorate," the petition highlights.

"The Central government has employed a circuitous route in order to ensure that Sanjay Kumar Mishra gets one more year as Director of Enforcement by way of retrospectively modifying the appointment order dated November 19, 2018 itself. Thus, what could not have been done directly under the Statute has been done indirectly," the plea states.

There is neither any enabling provision in the CVC Act for extension of service of the Director of Enforcement nor any enabling provision which provides for such retrospective modification of appointment orders, it has been contended.

It is the petitioner's case that the purpose behind Section 25 (d) of the Act in providing a minimum tenure of two years, is 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," the petition says.

The petitioner has, therefore, sought a direction to the Central Government to appoint a Director, Enforcement Directorate in a transparent manner and strictly in accordance with the mandate of Section 25 of the CVC Act.

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