SC upholds retrospective extension of ED SK Mishra’s tenure; says should be done in ‘rarest of rare cases’

The Supreme Court on Wednesday upheld the decision of the Central government to make retrospective changes to the appointment order of Director of Enforcement Directorate (ED), Sanjay Kumar Mishra by which his tenure was increased from two years to three years.

The Bench of Justices L Nageswara Rao and BR Gavai held that the Central government has powers to make retrospective changes but it should be done in the rarest of rare cases.

"We have upheld the power of the UOI to extend tenure of ED director. We have made it clear that such extension during superannuation should be done in rarest of rare cases," Justice Rao said reading out the verdict, Bar & Bench reported.

The judgment was delivered on a plea by NGO Common Cause seeking to quash the November 13, 2020 order of the ED amending the tenure of Mishra which the NGO claimed was in violation of Section 25 of the Central Vigilance Commission Act, 2003.

Section 25(c) of the Act provides that no person below the rank of Additional Secretary to the Government of India shall be eligible for appointment as a Director of Enforcement and Section 25(d) of the Act provides that a Director of Enforcement shall continue to hold office for a period of not less than two years from the date on which he assumes office.

Mishra, vide order dated November, 2018, was appointed as Director of Enforcement in the ED for a period of two years from the date of assumption of charge of the post or until further orders, whichever fell earlier.

The said two-year tenure ended in November last year.

Mishra had already reached the retirement age of 60 years in May, 2020.

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 was modified to a period of ‘three years’.

The plea said 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 said.

Such illegalities in appointment of the Director of Enforcement will shake the confidence of citizens in the institution of Enforcement Directorate, it was contended.