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ED: SC upholds govt's decision, cautions against another extension to SK Mishra

By Rakesh Ranjan- 09 Sep 2021
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New Delhi (09.09.2021): The Supreme Court has upheld the central government's power to effect a retrospective change to the tenure of an officer but has also cautioned that this power must be applied in rare cases and shouldn't become a common practice.

Thus, the retrospective change made to the tenure of Enforcement Director Sanjay Kumar Mishra, a 1984-batch IRS officer, becomes valid and he would continue in his post for three years. But he would not get any more extensions.

This has triggered speculations in official circles about who would be Mishra's successor in November 2021.

In the SC order, there is a lesson, too, for the government. The court observed that such extensions can be given only in "rare and exceptional circumstances" to facilitate an ongoing investigation.

A bench of Justices L Nageswara Rao and BR Gavai also directed the government not to give Mishra any more extension, while observing that any extension of tenure during superannuation has to be for a short period and be granted for reasons recorded.

Mishra was scheduled to retire in May 2020. Since the ED chief's tenure is fixed at no less than two years to protect him from political pressure or inducement, there was no problem in his continuation till November 18, 2020, even after his scheduled date of superannuation.

However, the central government on November 13, 2020, retrospectively increased Mishra's tenure to three years from the earlier appointment order of two years.

This unusual move made the NGO Common Cause petition the SC for quashing the Centre’s retrospective order (dated 13.11.2020) on the ground that it violated Section 25 of the Central Vigilance Commission Act 2003.

Section 25C of the Act says that no person below the rank of Additional Secretary to the Govt of India shall be eligible for appointment as a Director of the ED whereas Section 25(d) of the Act underlines that the ED chief shall continue to hold office for a period of not less than two years.

After hearing both sides, both government and the petitioner, the SC bench concluded that, while the government had the right to retrospectively change the tenure of the ED, it advised the government not to make it a common practice.

Readers may recall that Mishra was appointed the ED Chief in November 2018 for a period of two years ending 18 November 2020. But five days before he completed his fixed two-year tenure, the Centre made retrospective changes (order dated 13.11.2020) amending the tenure of Mishra. 

The fixed two-year term and the retrospective changes gave Mishra an extended-term post his retirement i.e. May 2020.

Mishra was earlier Chief Commissioner Income Tax (New Delhi). Initially, he was appointed Principal Special Director, and later he was made the interim Chief of ED vice Karnal Singh for a period of three months. After being empaneled for holding an Additional Secretary rank post in Govt of India, he was on 18 November 2018 appointed as a full-fledged chief of ED.

The retrospective order (13.11.2020) giving him an additional year read: President has modified the 2018 order to the effect that a period of ‘two years’ written in the 2018 order was modified to a period of ‘three years.'

In its petition, the NGO Common Cause argued that the objective of CVC Act 25 (d),  providing a minimum tenure of two years, was 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 the adoption of a circuitous route of modifying the initial appointment order itself," the petition said.

(By Rakesh Ranjan)

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