Supreme Court notice on PIL against ED Director's extension

New Delhi: The Supreme Court on Monday sought response from Centre on a PIL by NGO Common Cause challenging the November 13, 2020 order which retrospectively amended the tenure of the present Enforcement Directorate (ED) Director, Sanjay Kumar Mishra.

A bench comprising Justices Nageswara Rao and Justice Ravindra Bhat, after a brief hearing in the matter, issued notice.

Advocate Prashant Bhushan, representing the NGO, submitted that according to the scheme of the act, the present Director shall have maximum tenure of 2 years, but instead, he has been given a one-year extension. Bhushan vehemently argued that this is destroying the independence of the ED and contended that this has become means for harassment.

The bench told Bhushan that it is impressed with his submissions and it will examine the plea.

The plea contended that the Centre has employed a circuitous route in order to ensure Mishra gets one more year as ED Director by way of retrospectively modifying the appointment order dated November 18, 2018, itself. The NGO has made the Department of Revenue (under the Ministry of Finance), the present ED Director, and the Central Vigilance Commission respondents in its plea.

The plea filed by the NGO has sought direction for quashing November 13 order along with a direction to the Centre to appoint the ED Director in a transparent manner and strictly in accordance with the mandate of Section 25 of the Central Vigilance Commission Act, 2003.

"The said two-year tenure has come to an end on November 19, 2020. Pertinently, the Respondent No 2 (Mishra) has already reached the retirement age of 60 years in May 2020," it said.

The NGO said the purpose of the Act is defeated if on the verge of his two-year tenure and much after his retirement age, the ED Director is given a de facto extension in service by adoption of a circuitous route of modifying the initial appointment order itself.

The plea has argued that November 13 order is against Section 25 of the CVC Act as it provides that a person has to be above the rank of Additional Secretary at the Centre to be eligible for appointment as a Director of the ED.

"Thus, as the Respondent No 2 has already reached his retirement age in May 2020, therefore, after the end of Respondent No 2's two-year period on November 19, 2020, the Respondent No 2, by virtue of not holding any post above the rank of Additional Secretary, would have been ineligible for appointment as a Director of Enforcement again," said the plea.

Stressing on transparency, the plea submitted that ED handles a large number of cases involving huge corruption, many of which are politically sensitive in nature and the Director has powers akin to that of the Director of CBI.

The NGO submitted that transparency in the decision-making process for the appointment of a person to the "sensitive post of Director of ED is highly critical and thus, deliberations and reasoning of the CVC Committee (referred to in Section 25(a) of the CVC Act) in recommending a person to be appointed as the Director of Enforcement, should be made available in public domain."