Supreme Court nod to ED chief extension as govt says various probes in 'crucial stage'

New Delhi: The Supreme Court on Wednesday upheld the Centre's decision to extend the tenure of ED Director Sanjay Kumar Mishra from two years to three years with retrospective effect, taking into account its justification that important investigations were at a crucial stage in trans-border crimes.

However, the top court made it clear that extension to the officers, already superannuated, should only be done in rare and exceptional circumstances.

A bench of Justices L. Nageswara Rao and B.R. Gavai noted: "The justification given by the Union of India for extension of the tenure of Second Respondent (Mishra) is that important investigations are at a crucial stage in trans-border crimes. The decision to extend the tenure of the Second Respondent is pursuant to the recommendation made by the high-powered committee."

"We have upheld the power of the Union of India to extend the tenure of Director of Enforcement beyond the period of two years... we should make it clear that extension of tenure granted to officers who have attained the age of superannuation should be done only in rare and exceptional cases," it said.

The top court observed that reasonable period of extension can 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.

"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," it added.

Dismissing the PIL by NGO Common Cause, which was argued by senior advocate Dushyant Dave, the top court held: "We do not intend to interfere with the extension of tenure of the Second Respondent in the instant case for the reason that his tenure is coming to an end in November 2021. We make it clear that no further extension shall be granted to the Second Respondent."

The Centre had argued that it has the power to extend the tenure of the ED Director by resorting to Section 21 of the General Clauses Act. Dave had emphatically argued that there is no power conferred on the Union of India to extend the tenure of ED Director and it cannot take refuge under the plea that important investigations are pending for which reason for the extension of his tenure.

"Under the guise of pendency of investigations into matters which have cross-border ramifications, the tenure of the Director of Enforcement cannot be extended periodically," Dave had argued.

Upholding the Centre's decision, the top court said: "We, therefore, hold that the initial appointment of second Respondent for a period of two years from November 19, 2018 which extends beyond the date of his superannuation in May 2020, is in accordance with Section 25 of the CVC Act and cannot be said to be illegal."