W.P. (C) 1374/2020
Petition challenging re-appointment of the Director, ED

Summary :

Common Cause challenged the Centre's re-appointment of Sanjay Kumar Mishra as the Director of Enforcement Directorate, seeking to quash the order extending his tenure. This move is an indirect attempt to achieve what is specifically prohibited in law. 

To ensure legitimate & transparent appointment of the Director of Enforcement Directorate, in accordance with Section 25 of the Central Vigilance Commission Act, 2003, Common Cause has approached the Supreme Court through an instant writ petition in the public interest under Article 32 of the Constitution of India.   

Mishra was appointed as the Director on November 19, 2018, for a period of two years (or until further orders to the contrary), which ended on November 18, 2020. An office order, dated November 13, 2020, modifies the order appointing him to the effect that the period of "two years" in the 2018 order shall be altered to a period of "three years". Additionally, as of May 2020, he has reached the retirement age i.e. 60 years, yet his tenure has been extended by a year. This act is violating the provisions of the Central Vigilance Commission Act, 2003.

On August 18, 2021, the arguments were concluded and judgment was reserved. The bench comprising Justice L Nageswara Rao and Justice Aniruddha Bose directed written submission(s), if any, to be filed within three days.

On September 8, 2021, the bench comprising Justice L Nageswara Rao and Justice BR Gavai disposed of the matter. The bench said:

We have already held that Section 25 (f) of the CVC Act has to be read as the tenure of office of the Director of Enforcement is for a minimum period of two years. There is no proscription on the Government to appoint a Director of Enforcement beyond a period of two years. The reasons for fixing the tenure for a minimum period of two years have been discussed in the earlier paragraphs. We are not in agreement with the submissions made by the learned Senior Counsel for the Petitioner that extension of tenure for officers above the rank of Deputy Director of Enforcement provided in sub-Section (f) of Section 25 has to be read as a bar on the power of the Government to extend tenure of the Director of Enforcement. As the tenure of appointment of Director of Enforcement is not a maximum period of two years, a person can be appointed as Director of Enforcement for a period of more than two years.

Notably, while the bench upheld the power of the Union of India to extend the tenure of Director of Enforcement beyond the period of two years, it was clarified that extension of tenure granted to officers who have attained the age of superannuation should be done only in rare and exceptional cases. 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. A reasonable period of extension may 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.

In view of the crucial ongoing investigations on the trans-border crimes as well as the recommendation made by the high-powered committee for the extension of the Director's tenure, which ends in November 2021, the Apex Court decided to not interfere in the matter. It however directed that no further extension shall be granted.