Centre moves Supreme Court for extension of tenure of ED director SK Mishra beyond July 31

Satya Prakash

New Delhi, July 26

The Centre on Wednesday moved the Supreme Court seeking an extension of tenure of Directorate of Enforcement chief Sanjay Kumar Mishra, who was ordered to demit office on July 31 following its verdict declaring the extensions given to him as “illegal”.

A Bench led by Justice BR Gavai agreed to take up the Centre’s plea on Thursday at 3.30 pm after Solicitor-General Tushar Mehta mentioned it for urgent hearing and urged it to hear the matter before Friday.

In a setback to the Centre, the Supreme Court had on July 11 set aside the extensions given to Mishra as ED Director, terming it as “illegal” and an attempt to annul its previous directions on the issue.

The top court, however, had allowed Mishra to continue as ED Director till July 31 in view of Financial Action Task Force (FATF) review and to “ensure the transition to be smooth” in the larger public interest. It asked the Centre to appoint his successor in the meantime.

Noting that it had specifically issued a mandamus that no further extension would be granted to Mishra, a three-judge Bench led by Justice Gavai had said the Centre and Mishra were both parties in the proceedings in the 2021 Common Cause case and the order issued in that case was binding on them.

“We, therefore, find that the respondent No.1 could not have issued orders dated 17th November 2021 and 17th November 2022 in breach of the mandamus issued by this Court vide its judgment dated 8th September 2021 in Common Cause (case),” it had said.

The Bench, however, had upheld the amendment made to the CVC Act, the DSPE Act and the relevant rules which allowed the Centre to extend the term of the directors of ED and CBI up to five years.

Noting that the scope of judicial review under legislative action was limited, the Bench had said a law can be set aside only for lack of legislative competence or when it affected fundamental rights, or was manifestly arbitrary.

The order had come on petitions filed by Congress leaders Jaya Thakur and Randeep Singh Surjewala; TMC leaders Saket Gokhale and Mahua Moitra; and Krishna Chander Singh, Vineet Narain and Manoharlal Sharma challenging the third extension of tenure given to Mishra as ED Director.

The Department of Personnel & Training (DoPT) had on November 17 extended Mishra’s tenure as ED Director till November 18, 2023.

Mishra (63) is a 1984-batch Indian Revenue Service (IRS) officer of the Income Tax Department cadre. He was appointed Director of the ED for a period of two years on November 19, 2018. Subsequently, on November 13, 2020, the appointment letter was modified retrospectively by an order and his term of two years was replaced by three years.

In November 2021, the Centre promulgated an ordinance that said the tenure of directors of the ED and the CBI can be extended by up to three years after the mandated tenure of two years. The Centre had on November 17, 2021 extended the tenure of Mishra by a year till November 18, 2022, days after the Centre brought ordinances to allow ED and CBI directors to occupy the office up to five years.

The ordinance and the 2021 extension given to him were already under challenge before the top court.

While upholding the extension given to Mishra and the Centre’s power to grant extension of tenure, the top court had on September 8, 2021 said extension of tenure to officers after the age of superannuation should be done only in rare and exceptional cases.

A 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, it had said, adding that such an extension of tenure of Director should be for a short period.