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2021 (9) TMI 730 - SC - FEMAExtension of tenure of Director of Enforcement - extension of tenure granted to persons holding the post of Director of Enforcement after attaining the age of superannuation - fixing the tenure for a minimum period of two years - procedure prescribed under Section 25 of the Central Vigilance Commission Act, 2003 ( CVC Act ) - Whether there can be extension of tenure of a person who has been appointed as a Director of Enforcement for a period of two years and who has attained the age of superannuation in the interregnum i.e. before the expiry of two years? - HELD THAT - Government servant shall retire on attaining the age of 60 years. Posts for which there can be extension beyond 60 years have been specifically mentioned in the Rule and there is no dispute that the post of Director of Enforcement is not mentioned in the Rule for which extension of service can be given. 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. 1997 (12) TMI 615 - SUPREME COURT - 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. Therefore, we hold that a Director of Enforcement can be appointed for a period of more than two years by following the procedure prescribed under Section 25 of the CVC Act. As held that the initial appointment of the second Respondent cannot be termed to be illegal and that he had a right to continue till 18.11.2020 by virtue of his appointment for a period of two years. For all practical purposes, he should be treated as the Director of Enforcement till that particular date he was holding an office which is not below the rank of an Additional Secretary to the Government of India. Therefore, he was eligible for extension of tenure. The material on record indicates that the extension of service of the second Respondent was pursuant to the recommendations made by the Committee constituted under Section 25 (a) of the CVC Act. One of the conditions of Section 21 is that the power has to be exercised in the like manner and subject to like sanction. Amendment was made to the earlier order of appointment by the Committee after complying with the conditions in Section 21 of the General Clauses Act. Justification given by the Union of India for extension of the tenure of second Respondent 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. Though 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. 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. 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.
Issues Involved:
1. Whether the extension of the tenure of the Director of Enforcement beyond the age of superannuation is valid under Section 25 of the CVC Act. 2. Applicability of Section 21 of the General Clauses Act to the extension of tenure. 3. Allegations of malice in law in the extension of tenure. Analysis: Issue 1: Validity of Extension Beyond Superannuation The petitioner challenged the extension of the tenure of the Director of Enforcement (Respondent No. 2) beyond his superannuation age, arguing it was contrary to Section 25 of the CVC Act. The initial tenure of Respondent No. 2 was for two years starting from 19.11.2018, which was later extended to three years by an order dated 13.11.2020. The petitioner contended that the extension was illegal as Respondent No. 2 had already attained the age of superannuation in May 2020 and was not holding a post equivalent to that of Additional Secretary on the date of extension. The court held that the initial appointment of Respondent No. 2 for a period of two years was in accordance with Section 25 of the CVC Act, which provides a minimum tenure of two years to ensure the independence of the Director of Enforcement. The court also clarified that the term "not less than two years" does not imply a maximum limit of two years, and the Director of Enforcement can be appointed for more than two years following the prescribed procedure. The court concluded that the initial appointment extending beyond superannuation was valid. Issue 2: Applicability of Section 21 of the General Clauses Act The petitioner argued that Section 21 of the General Clauses Act, which allows the government to amend or rescind orders, is not applicable to Section 25 of the CVC Act. The Union of India countered that in the absence of a specific provision for extension in the CVC Act, Section 21 of the General Clauses Act could be invoked. The court examined various precedents and held that Section 21 of the General Clauses Act applies unless explicitly excluded by the statute. The court found no inconsistency between Section 25 of the CVC Act and Section 21 of the General Clauses Act, thereby allowing the extension of the tenure of the Director of Enforcement. The court emphasized that the extension should follow the same manner and conditions as the original appointment, as stipulated by Section 21. Issue 3: Allegations of Malice in Law The petitioner alleged that the extension of Respondent No. 2's tenure was driven by malice in law and extraneous considerations. The court noted that the extension was based on the recommendation of a high-powered committee constituted under Section 25(a) of the CVC Act and found no evidence of unauthorized purposes or extraneous considerations influencing the decision. The court concluded that there was no malice in law in the extension of Respondent No. 2's tenure. The justification provided by the Union of India for the extension, citing the importance of ongoing investigations, was deemed valid. Conclusion: The court upheld the extension of Respondent No. 2's tenure as Director of Enforcement beyond the age of superannuation, finding it consistent with Section 25 of the CVC Act and permissible under Section 21 of the General Clauses Act. The court dismissed the allegations of malice in law, noting that the decision was based on valid recommendations and considerations. The court emphasized that such extensions should be rare, exceptional, and for short periods, with no further extension granted to Respondent No. 2. The writ petition was dismissed.
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