Centre defends in SC decision leading to extension of ED Director's tenure retrospectively

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New Delhi, Apr 19 (PTI) The Centre has strongly defended in the Supreme Court the decision on retrospective change in the 2018 appointment order of Sanjay Kumar Mishra as Director of Enforcement Directorate (ED) that resulted in extending his tenure from two to three years.

The Ministry of Finance, in its reply to the PIL filed by NGO 'Common Cause', has sought its dismissal, saying filing of such petitions cannot be the “profession” of either an individual or an organization and accused it of attempting to run a “parallel administration”. A bench headed by Justice L Nageswara Rao, in the hearing conducted through video conferencing on Monday, fixed the PIL for hearing on May 12.

The reply affidavit, filed through Rajinder Kumar, Under Secretary in the Revenue Department, said “the present petition is devoid of any merit whatsoever and liable to be dismissed as the contentions made by the petitioner (NGO) herein are incorrect and baseless and inconsistent with the provisions of the CVC Act and the General Clauses Act.” “A weapon of PILs is not intended to be an instrument using which few individuals or organizations would interfere with every decisions of the executive and would attempt to run a parallel administration…,” the affidavit said. The government said the NGO, except for “ritualistic incantation of the words”, has not been able to demonstrate as to how there was violation of fundamental rights of citizens involved in the question of amending the tenure of the incumbent ED Director from two years to three years. The affidavit referred to judgements and facts and said the doctrine of locus in filing PILs was diluted by the top court to ensure that under-privileged people can be represented by public spirited citizens in constitutional courts.

“This has led to sheer abuse and misuse of process of law by certain individuals and organizations who exist with the sole aim, object and purpose of filing PILs selectively,” it said.

“Under the scheme of Indian jurisprudence and even under the diluted concept of locus standi, it is unthinkable that an organization can exist only to file PILs as its only function…,” the affidavit said, adding that filing PILs can ever be a profession itself for an individual or any organization.

The very fact of selective filing of cases by such organizations defeats the very objective for which this court , in its zeal to alleviate injustice everywhere, had diluted the concept of locus standi, it said.

Dealing with the legal provisions, the affidavit said, the NGO has “miserably” failed to show any legal bar in appointing the Director of ED with tenure of more than two years, which could have also been three years to begin with, at the time of the original appointment itself.

“The petitioner is seeking to canvass an unsustainable position that the minimum tenure prescribed in the law of a period of two years should be read as a maximum permissible period of two years which would be wholly impermissible and illogical,” it said.

The Finance Ministry said the appointment made under section 25 of the CVC would prevail over the date of superannuation.

“It is for this reason that even though the ED Director turned 60 years and would have superannuated …, he continued to hold the position of the ED Director even beyond May 31, 2020 by virtue of his appointment under section 25 of the CVC Act (it provides that the Director shall have a minimum tenure of two years),” it said. Earlier, the apex court on February 15 had sought responses from the Centre, the Central Vigilance Commission (CVC) on the PIL challenging retrospective change in the 2018 appointment order of Sanjay Kumar Mishra as Director of Enforcement Directorate (ED).

It had resulted in extending Mishra's tenure as ED Director from two to three years. Mishra, an Indian Revenue Service officer was appointed as the ED Director for a period of two years by an order of November 19, 2018 and later by an order of November 13, 2020, the appointment letter was modified “retrospectively” by the Central government and his term of 'two' years was replaced by 'three' years.

Bhushan had said Mishra could not have been given any extension since he reached the age of 60 years in May 2020 and such an illegal extension may have an impact of “destroying” the independence of the office of the Director.

Besides seeking quashing of the Office Order of November 13, 2020 by which the appointment letter of Mishra was amended, the NGO has also sought a direction to the Union Finance Ministry “to appoint a Director, Enforcement Directorate in a transparent manner and strictly in accordance with the mandate of Section 25 of the Central Vigilance Commission Act, 2003”. The NGO had moved the apex court just after the government had decided to amend the 2018 order and grant the extension of service of one more year to Mishra. PTI SJK RKS RKS