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SC upholds Centre’s decision to extend the tenure of ED director till November

By Saima Siddiqui 
Updated Date

New Delhi: The Supreme Court on Wednesday upheld the decision of the Centre to extend the tenure of the director of enforcement, Sanjay Kumar Mishra, till November 2021, making it clear that he will not be entitled to any further extension.

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A bench of justices L Nageswara Rao and BR Gavai said, “For the reason that his (Mishra) tenure is ending in November 2021, we have refused to interfere. However, we make it clear that no further extension is to be granted to him.”

The court decided the issue in a public interest litigation (PIL) filed by NGO Common Cause which challenged the decision of the government to grant a retrospective one-year extension to Mishra on November 13, 2020 after his superannuation in May 2020. He was initially appointed as ED Director for two years beginning November 19, 2018 and by the November 13, 2020 order, his tenure was amended retrospectively to three years.

The bench said, “We have upheld the power of the Centre to extend the tenure of ED director beyond two years. We make it clear that any extension should be only in rare and exceptional cases. Any extension granted to persons beyond superannuation should be for a short tenure.”

Sanjay Kumar Mishra, who is a 1984-batch Indian Revenue Service officer of the Income-tax cadre, was appointed as ED’s director on November 19, 2018.

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The government had cited crucial cases investigated under him and his spectacular performance as a director to continue with his appointment. The petition argued by advocate Prashant Bhushan argued that this arbitrariness would play havoc with the system allowing government a free hand to keep officers of their choice beyond retirement for unreasonable period.

Solicitor General Tushar Mehta, appearing for the government, said that Section 25(d) of Central Vigilance Commission (CVC) Act laying down the tenure of director enforcement to be “not less than two years” gave discretion to the government to fix a tenure beyond two years, notwithstanding the retirement age of 60 years applicable under Rule 56 of All India Service Rules.

He argued that enforcement director occupies an important post probing money laundering crimes having cross-border and trans-national ramifications. “Considering the huge ramifications, if the government feels that in the interest of preserving the pending investigations, the officer must continue, is it necessary that curtains should fall when he crosses the two-year stage?”

The government had informed the court that in the last two years as director, Mishra was instrumental in helping the ED recover a sum of nearly ₹9,000 crore worth proceeds of crime in the investigation of three cases involving Vijay Mallya, Nirav Modi and Mehul Choksi. The bench replied saying, “We appreciate that he is doing good work. But you cannot continue with him till all these cases are over.”

To note, the ED is a central investigative agency that enforces two central laws i.e. the Prevention of Money Laundering Act (PMLA) and the Foreign Exchange Management Act (FEMA). 

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