SC says no further extension of service for ED chief S.K. Mishra

In a judgement that will be perceived as a mixed blessing for the Narendra Modi government, the Supreme Court on Wednesday ruled that Enforcement Directorate Director S.K. Mishra not be given a further extension in service.

The Supreme Court ruling came after it upheld the Modi government's decision last year to extend Mishra's tenure until November this year.

Mishra had been originally appointed to the post of Enforcement Directorate chief in 2018 for a two-year tenure. The extension given to Mishra last year had led to scrutiny as the government modified his order of appointment of 2018. The revised order said his appointment will be for a period of three years from the date of assumption of charge of the post or until further orders, whichever is earlier.

The NGO Common Cause had filed a plea seeking to quash the government order of November last year that extended Mishra's tenure. The NGO had argued the extension given to Mishra was in violation of Section 25 of the Central Vigilance Commission Act, 2003.

According to Bar and Bench, "Section 25(c) of the Act provides that no person below the rank of Additional Secretary to the Government of India shall be eligible for appointment as a Director of Enforcement and Section 25(d) of the Act provides that a Director of Enforcement shall continue to hold office for a period of not less than two years from the date on which he assumes office."

“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,” Hindustan Times reported.

Delivering its judgement, the bench of Justices L. Nageswara Rao and B.R. Gavai noted the Central government had power to make retrospective changes but that should be done in "rarest of rare" cases. The court noted an extension of tenure can be given to facilitate ongoing investigations, but this should be for a short period.

"Since Mishra's appointment is coming to an end in November 2021, no further extension be granted to him, the bench added," Live Law reported.

There had been speculation on whether the government could extend Mishra's tenure as he oversees a number of important probes including cases against Nirav Modi, Vijay Mallya and Mehul Choksi as well as politically sensitive cases.