Case: Common Cause (A Registered Society) Vs. Union of India &amp; Ors

2. On 19.11.2018, the second Respondent who was working as Principal Special Director in the Directorate of Enforcement 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 is earlier. By an office order dated 13.11.2020, the President of India approved the modification of the order dated 19.11.2018, by amending the period of appointment from two years to three years. The grievance of the Petitioner is that the extension of tenure of the second Respondent to three years is contrary to Section 25 of the CVC Act. It has been averred in the Writ Petition that Respondent No.2 attained the age of superannuation in May, 2020. The initial tenure of two years came to an end on 19.11.2020. In the meanwhile, on 13.11.2020, the tenure of the second Respondent was extended from two years to three years. As the second Respondent attained the age of superannuation in May, 2020, the second Respondent was not holding any post equivalent or above the rank of Additional Secretary to the Government of India on 13.11.2020 when his tenure was extended. Therefore, he was not eligible to be considered for extension of service as Director of Enforcement. It was further stated in the Writ Petition that the modification of the order of appointment could not have been retrospectively made. It was also alleged that when a procedure is prescribed by the Statute, it has to be strictly followed and whatever could not be done directly cannot be achieved by indirect methods.3. The contentions raised in the Writ Petition were refuted by the Union of India in its counter affidavit by stating that Section 25 of the CVC Act prescribes the minimum tenure of a Director of Enforcement. 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 on 11.11.2020 in view of administrative exigencies. The initial order of appointment of the second Respondent was for a period of two years, strictly in accordance with Section 25 of the CVC Act. For all purposes, the second Respondent is deemed to be in service till 19.11.2020. The second Respondent who was working as Director of Enforcement was holding the office and post not below to that of the post of Additional Secretary to the Government of India and it cannot be said that he was ineligible for extension of his tenure on 13.11.2020. Though there is 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.

Reasoning: 7. As we propose to deal with the contentions raised by the Petitioner on their merits, we are not inclined to adjudicate the preliminary objection taken by the learned Solicitor General regarding maintainability of the Writ Petition at the behest of the Petitioner.8. The statement of objects and reasons of the CVC Act refers to an independent Committee constituted by the Government in September, 1997 comprising Sh. B. G. Deshmukh, Sh. S.V. Giri and Sh. N. N. Vohra to suggest measures for strengthening the agencies involved in anti- corruption activities, inter alia, as part of its efforts against corruption. The report of the Committee was circulated by the Union of India, according to which the Director of Enforcement shall have a minimum tenure of two years. In case of pre-mature transfer of the Director of Enforcement, the Selection Committee headed by the Central Vigilance Commissioner shall make suitable recommendations to Appointments Committee of the Cabinet. The statement of objects and reasons further refers to a judgment of this Court in Vineet Narain (supra) by which a recommendation of the Independent Review Committee relating to the minimum tenure of two years for Director of Enforcement was approved. It was held in Vineet Narain that the Director of Enforcement shall have a minimum tenure of two years and that premature transfer for any extraneous reason shall be approved by the Selection Committee headed by the Central Vigilance Commissioner.It is no doubt true, as contended on behalf of the Petitioner, that extension or curtailment of tenure is provided in Section 25 (f) in respect of officers other than that of the Director of Enforcement. The procedure and other conditions of service mentioned in Section 25 are notwithstanding anything contained in the Foreign Exchange Management Act, 1999 or any other law for the time being in force.11. A perusal of the above Rule makes it clear that every 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.The contention of the Petitioner is that all Government servants are governed by Fundamental Rule 56 and except those holding posts for which an extension beyond 60 years is permissible, other Government servants cannot continue beyond the age of 60 years.The reason behind the recommendation of the Independent Review Committee that the Director of Enforcement should be permitted to continue in the post for a minimum period of two years without any external influence, which was accepted in the judgment of Vineet Narain (supra) is because of the important duties he performs. A minimum period of service ensures security of tenure and would reduce chances of external influences and extraneous pressures.12. Prescription of a minimum period of two years is pursuant to the directions issued by this Court in Vineet Narain (supra). The non-obstante clause in Section 25 gives overriding power to the said provision, notwithstanding anything contained in any other law for the time being in force. The minimum period of two years which is provided in Section 25 would operate notwithstanding the provisions contained in Fundamental Rule 56(a). In Uday Babu Khalwadekar v. Union of India & Ors.(WP (C) of 757 of 2016), this Court dealt with the appointment of Shri Karnail Singh to the post of Director of Enforcement in conformity with Fundamental Rule 56 by not fixing his tenure for two years. He was directed to be continued only till the date of his superannuation. A Writ Petition was filed contending that he has a right to continue for a period of not less than two years from the date on which he assumes office. This Court by a judgement dated 30.01.2017 held that Section 25 has overriding effect over any other law for the time being in force. In any event, a statutory rule i.e. Fundamental Rule 56(a) cannot override a legislative enactment. In view thereof, this Court directed the Union of India to issue a fresh order of appointment in compliance of Section 25 (d) of the Act permitting Shri Karnail Singh to continue in office for a period of two years from the date on which he assumes office. We, therefore, hold that the initial appointment of second Respondent for a period of two years from 19.11.2018 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 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. Having examined the report of the independent review committee and the judgement of this Court in Vineet Narains case, it is clear 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. 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.We have already 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.19. In Kamla Prasad Khetan (supra), this Court was concerned with a notification that amended the period of authorization to take over the management of a sugar mill from a period of one year to two years. It was held that the power to issue an order under the Central Act includes the power to amend an order, as provided by Section 21 of the General Clauses Act. However, the power is subject to the verification of a very important qualification that it is exercisable in the like manner and subject to the like sanction and conditions, if any. This Court observed that Section 21 of the General Clauses Act embodies a rule of construction and that rule must have reference to the context and subject-matter of the particular statute to which it is being applied. An earlier judgment in Strawboard Manufacturing Co. v. Gutta Mill Workers Union (supra) which was relied upon by the Petitioners was distinguished by the Constitution Bench in Kamla Prasad Khetans case as not being applicable to the facts of the case. It is necessary at this stage, to examine the judgement of this Court in Strawboard Manufacturing Co. v. Gutta Mill Workers Union (supra). An industrial dispute was referred by the State Government to the Labour Commissioner on 18.02.1950 directing that the award should be submitted before 05.04.1950. The award was made on 13.04.1950. The Government by a notification dated 26.04.1950 extended the time for making the award till 30.04.1950. This Court in Strawboard Manufacturing Co. (supra) held that the State Government did not have authority to extend the time as the adjudicator became functus officio on the expiry of the time fixed in the original order of reference and, therefore, the award passed was without jurisdiction and a nullity. It was observed in the said judgement that Section 21 of the UP General Clauses Act cannot have retrospective operation. The learned Senior Counsel for the Petitioner relied upon the judgement in State of Madhya Pradesh v. Ajay Singh & Ors. (supra). The question that arose for consideration in the said case is regarding replacement or substitution of the existing Member for the purpose of reconstitution of a Commission under the Commissions of Inquiry Act, 1952 by invoking power under Section 21 of the General Clauses Act. Section 3 of the Commissions of Inquiry Act gives power to fill a vacancy in the office of a Member of the Commission. As the manner of filling up the office of a Member of the Commission is expressly provided by Section 3, power under Section 21 of the General Clauses Act cannot be invoked to enlarge the governments power to reconstitute the commission in a manner other than that provided in the Commissions of Inquiry Act. In the said background, this Court held that the rule of construction embodied in Section 21 of the General Clauses Act cannot apply to the provisions of the Commissions of Inquiry Act relating to reconstitution of a Commission constituted thereunder since the subject- matter, context and effect of such provisions are inconsistent with such application. This Court examined the applicability of Section 21 of the General Clauses Act to Section 10 (1) of the Industrial Disputes Act, 1947 in State of Bihar v. D. N. Ganguly & Ors. (supra). It was held therein that there is no power conferred on the appropriate Government by Section 10 (1) of the Industrial Disputes Act to cancel or supersede a reference in relation to an Industrial Dispute pending adjudication by the Tribunal. It was held that Section 21 of the General Clauses Act cannot vest such power by necessary implication. This Court was of the view that the rule of construction embodied in Section 21 of the General Clauses Act can apply to the provision of a statute only where the subject matter, context and effect of such provisions are in no way inconsistent with such application. The learned Senior Counsel for the Petitioner relied upon the judgment in Kazi Lhendup Dorji v. Central Bureau of Investigation & Ors. (supra) in support of his submission that Section 21 of the General Clauses Act is not applicable to Section 25 of the CVC Act. The permissibility of withdrawal of the consent given by the State Government under Section 6 of the Delhi Special Police Establishment Act, 1946 was the subject matter of dispute in the said case. This Court was of the opinion that Section 21 of the General Clauses Act does not give the power to issue an order having retrospective operation. It was observed therein that an order revoking an earlier order giving consent under the Delhi Police Special Establishment Act can only have prospective operation and would not affect matters in which action has been initiated prior to the issuance of the order of revocation. It is relevant to point out that this Court was of the view that it was not necessary to decide the question whether Section 21 of the General Clauses Act can be invoked in relation to consent given under Section 6 of the Delhi Police Special Establishment Act.20. We have already held that Section 25 (f) of the CVC Act has to be read as the tenure of office of the Director of Enforcement is for a minimum period of two years. There is no proscription on the Government to appoint a Director of Enforcement beyond a period of two years. The reasons for fixing the tenure for a minimum period of two years have been discussed in the earlier paragraphs. We are not in agreement with the submissions made by the learned Senior Counsel for the Petitioner that extension of tenure for officers above the rank of Deputy Director of Enforcement provided in sub-Section (f) of Section 25 has 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. Following the dictum of this Court in State of Punjab v. Harnek Singh (supra) in which it was held that General Clauses Act has to be read into all Central Acts unless specifically excluded, we are of the considered view that the rule of construction embodied in Section 21 of the General Clauses Act has reference to the context and subject matter of Section 25 of the CVC Act. The judgement of the Constitution Bench of this Court in Kamla Prasad Khetan (supra) is applicable to the facts of this case and the judgements relied upon by the Petitioner which are referred to above do not have any application to the facts of this case.In the said judgement, it was held by this Court that any exercise of discretionary power for an unauthorised purpose would be an abuse of power. It is relevant to note that there is no allegation that the power of extension of tenure was exercised for any unauthorised purpose. We are not in agreement with the learned Senior Counsel for the Petitioner that there is malice in law.22. 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.23. The 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.