SC reserves order on plea against 'retrospective' extension of ED Director Sanjay Kumar's tenure

On Wednesday, the Apex Court reserved its judgement on a plea challenging a decision of the Central Govt to "retrospectively extend" the tenure of Sanjay Kumar Mishra as the Director of the Enforcement Directorate (ED).

A Bench headed by Justice Nageswara Rao after hearing arguments from the counsels appearing for the petitioner, the Centre & the Central Vigilance Commission (CVC) reserved the judgement & asked them to file written submissions.

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Senior Lawyer Dushyant Dave appearing for the petitioner NGO Common Cause submitted that Mishra could not have been given any extension since he had already been superannuated & such illegal extensions have an effect of destroying the supposed independence of the office of ED Director.

The plea, filed by NGO Common Cause, sought the quashing of the Office Order dated Nov 13, 2020, issued by the Centre retrospectively amending the tenure of Mishra & further sought a direction to the Central government to appoint a Director of ED in a transparent manner & strictly in accordance with the mandate of Section 25 of the Central Vigilance Commission (CVC) Act, 2003.

Solicitor General Tushar Mehta appearing for the Centre justified the extension of the ED Director's tenure saying the extension was given for good reasons recorded in writing.

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Mehta submitted that these decisions were not taken on the whims of the government & that they were not arbitrary or irrational.
Mishra was appointed Director of ED 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 was modified to a period of 3 years.

"Thus, by virtue of the impugned Office Order, dated November 13, 2020, the appointment order dated November 19, 2018, has been modified with retrospective effect and Sanjay Kumar Mishra herein has been given an additional one year of service as Director of Enforcement in the Enforcement Directorate," the plea said.

It further said that "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".

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The NGO has contended that after the end of Mishra's 2-year tenure as Director, ED, he would have been ineligible for appointment to the said post again by virtue of Section 25 of the CVC Act.

It contended that what could not have been done directly under the CVC Act has been done indirectly by the Central Govt, which the NGO said is nothing but illegal.

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