SC upholds 'retrospective' extension of ED director Sanjay Kumar's tenure

New Delhi [India], September 8 : The Supreme Court on Wednesday upheld the Central government's decision to retrospectively extend the tenure of Sanjay Kumar Mishra as the Director of the Enforcement Directorate (ED) but said that no further extension be granted to him.
A Bench headed by Justice Nageswara Rao said that extension during superannuation should be done in rare and exceptional cases and any extension of tenure during superannuation should be for a short period.
"We have upheld the power of the Union of India to extend the tenure of Direction of Enforcement Directorate beyond two years. We have made it clear that such extension during superannuation should be done in rare and exceptional cases. It can be given to facilitate an ongoing investigation. Any extension of tenure during superannuation should be for short period," the Bench held.
Mishra's tenure is coming to an end in November this year.
Upholding the Centre's decision to retrospectively extend the tenure of Mishra by one year, the apex court dismissed the plea of the NGO, Common Cause, challenging the decision of the Central government to "retrospectively extend" the tenure of Mishra as the Director of the ED.
Mishra was appointed as the 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 three years.
Mishra had already reached the retirement age of 60 years in May, 2020.
Common Cause had submitted that Mishra could not have been given any extension since he had already superannuated and such illegal extensions have an effect of destroying the supposed independence of the office of ED Director.
The NGO had sought the quashing the Office Order dated November 13, 2020, issued by Centre retrospectively amending the tenure of Mishra and had further sought a direction to the Central government to appoint a Director of Enforcement Directorate in a transparent manner and strictly in accordance with the mandate of Section 25 of the Central Vigilance Commission (CVC) Act, 2003.
The Centre had justified the extension of the ED Director's tenure saying the extension was given for good reasons recorded in writing. It was added that these decisions were not taken on the whims of the government and that they were not arbitrary or irrational.
The plea had submitted, "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."
It had said that there is neither any enabling provision in the Central Vigilance Commission (CVC) Act for extension of service of the Director of Enforcement nor any enabling provision which provides for such retrospective modification of appointment orders.
The NGO had contended that after the end of Mishra's two-year tenure as Director, Enforcement Directorate, he would have been ineligible for appointment to the said post again by virtue of Section 25 of the CVC Act.
It had contended that what could not have been done directly under the CVC Act has been done indirectly by the Central Government, which the NGO said is nothing but illegal.