Read Judgment: Common Cause (a registered society) vs. Union of India & Ors.

Pankaj Bajpai

New Delhi, September 9, 2021: While stating that Fundamental Rule 56(a) cannot override a legislative enactment, the Supreme Court has ruled that the minimum period of two years which is provided in Section 25 of the Central Vigilance Commission Act would operate notwithstanding the provisions contained in Fundamental Rule 56(a).

The words ‘not less than two years’ under Rule 56 cannot be read to mean ‘not more than two years’ and there is no fetter on the power of the Central Government in appointing the Director of Enforcement beyond a period of two years, added the Court.

The Division Bench of Justice L Nageswara Rao & Justice B.R.Gavai observed that the initial appointment of second Respondent for a period of two years 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.

The dispute arose when the second Respondent who was working as Principal Special Director in the Directorate of Enforcement (ED) was appointed as Director of Enforcement for a period of two years from the date of his assumption of charge of the post or until further orders, whichever was earlier. By an office order, the President of India approved the modification of the order by amending the period of appointment from two years to three years.

Now, the grievance of the petitioner was that the extension of tenure of the second Respondent to three years was contrary to Section 25 of the CVC Act. It was averred that as the second respondent attained the age of superannuation in May, 2020, he was not holding any post equivalent or above the rank of Additional Secretary to the Government of India on date when his tenure was extended.

The Union of India opposed the petition by stating that Section 25 of the CVC Act prescribes the minimum tenure of a Director of Enforcement and the extension of tenure of the second respondent was on the basis of a recommendation made by the Committee headed by the Chief Vigilance Commissioner in view of administrative exigencies.

It was further contended that although there was no provision in the CVC Act for extension or reappointment of Director of Enforcement, section 21 of the General Clauses Act, 1897 enables the Government to extend the tenure of the second respondent.

The Top Court observed that the words ‘not less than two years’ cannot be read to mean ‘not more than two years’ and there is no fetter on the power of the Central Government in appointing the Director of Enforcement beyond a period of two years.

Quoting the judgment of this Court in case of Vineet Narain and Ors. vs. Union of India & Anr, the Division Bench said that the minimum period of two years provided in Section 25 (d) is to prevent extraneous pressure.

Prescription of a minimum period of two years is to ensure that the Director of Enforcement is not transferred or shifted from the said post during the course of investigation of serious offences. There is no ambiguity in Section 25 (d) of CVC Act and the words ‘not less than two years’ simply mean a minimum of two years. There is no scope for reading the words to mean not more than two years. Reading such a restriction would be contrary to the recommendations of the Independent Review Committee and the judgment of this Court in Vineet Narain”, observed the Top Court.

The Division Bench further opined that extension of tenure for officers above the rank of Deputy Director of Enforcement provided in sub-Section (f) of Section 25 cannot to be read as a bar on the power of the Government to extend tenure of the Director of Enforcement.

As the tenure of appointment of Director of Enforcement is not a maximum period of two years, a person can be appointed as Director of Enforcement for a period of more than two years. If the Government has the power to appoint a person as Director of Enforcement for a period of more than two years, Section 25 of the CVC Act cannot be said to be inconsistent with Section 21 of the General Clauses Act, added the Bench.

Therefore, highlighting that the curtailment of the tenure of a Director Enforcement would be detrimental to the interests of officers who are appointed to the post and have service of more than two years before they attain the age of superannuation, the Apex Court concluded that a Director of Enforcement can be appointed for a period of more than two years by following the procedure prescribed u/s 25 of the CVC Act.

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