Writ Petition No. 1374 of 2020
Date of judgement:
08 September 2021
Justice L Nageswara Rao
Justice B R Gavai
Petitioners – Common Cause (A Registered Society)
Respondent – Union of India
Section 25 of the Central Vigilance Commission Act, 2003 must be interpreted as minimum of two years of tenure of the Director of the Enforcement Directorate and not as maximum of two years of tenure, thus conferring the power to the Central Government to extend the same.
- Section 25 of the Central Vigilance Commission, 2003 – Appointments of Officers of Directorate of Enforcement.
- Section 21 of the General Clauses Act 1897 - Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws.
- Fundament Rules 56 - Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years.
- The Writ Petition was filed by the Petitioner herein challenging an order of the 1st Respondent, Union of India, wherein the tenure of the Director of Enforcement Directorate, the 2nd Respondent, was extended by the 3 years by modification approved by the President.
- The contention of the Petitioner was that according to Section 25 of the Central Vigilance Commission Act, 2003, the maximum period of tenure provided for the Director was 2 years and the same is being contravened and no retrospective order can be made modifying existing appointment. It was also pointed out that the 2nd Respondent has attained the age for superannuation and should comply to F.R. 56.
- The Counsel for the Respondent stated that Rule of Literal Construction can be applied where there is no ambiguity regarding the provision of law. The current case in hand seemed contrary to the above-mentioned rule. It was emphasized that the words in Section 25(d) of the CVC Act “for a period not less than two years” should be interpreted as prescribing a period of minimum of two years.
- The Counsel further went on to state the rationale by citing VineetNarain v. Union of India (1998) and the report of the independent review committee. It was stated that the minimum period of 2 years is provided so as to protect the office of Enforcement Directorate from external pressures and influence. It was further added that the extension was modified as the existing Director was an integral part of an ongoing investigation having significant importance. The Counsel also referred to Section 21 of the General Clauses Act which conferred power on the central government to amend or modify notification. Hence, the order was valid.
- This court accepted the directions in Vineet Narain case referred by the Respondent counsel and endorsed the same by reiterating that the 2 year tenure is to protect the officer from external influence and constraints.
- The court further held that there was no ambiguity in Section 25(d) of the CVC Act and the words disputed by the Petitioners mean a minimum of two years. If the interpretation offered by the Petitioner is accepted, it will go against the recommendation of the Review Committee and the directions of the court in the VineetNarain judgement.
- The court, while deciding validity of the source of power of the Central Government to modify the order retrospectively, particularly Section 21 of the General Clauses Act, it held that although the power is conferred, it should be used judiciously and it should be 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.
- Hence, the court after making the above observation it dismissed the Writ Petition finding merits resting with the Union of India.
- Whether Section 25 of the CVC Act limits the tenure or is subject to extension?
- Whether Section 21 of the General Clauses act a valid ground for modifying the order of appointment?
- The Preamble of the CVC Act broadly states that this Act is basically formed to constitute a Central Vigilance Commission to investigate offences committed under the Prevention of Corruption Act, 1988 by certain classes ofPublic Servants. Keeping in view the object of this Act and the nature and scope of work of the office of Enforcement Directorate in mind, Section 25 needs to be read. This observation led the Supreme Court to interpret that the words disputed in Section 25 is the minimum period of tenure to be satisfied by the Director of the Enforcement Directorate.
- In UdayBabu v. Union of India (2016), after the superannuation of the then Director, he was relieved of his duty before completion of the required 2 years. This was challenged via a Writ Petition that he has the right to continue as a director for not less than 2 years. The Court held that Section 25 has overriding effect over any other law for the time being in force. 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).
- With regard to Section 21 of the General Clauses Act, the court held that as the extension under Section 25 of CVC Act is valid, there is no inconsistency between the General Clauses Act and the CVC Act as both the orders under the General Clauses Act and the CVC Act aim to increase the productivity of the office of the Enforcement Directorate.
It is observed that Doctrine of Literal Construction applies to situations wherein there is ambiguity in the wordings of the provision and if there is prima facie clarity on the same, courts need not interpret differently causing confusion. While Section 21 of the General Clauses Act confers power to amend or modify the order, it should be in line with the context and object of the subordinate provision it aims to alter.
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1. If the age of superannuation of the Director precedes the prescribed two year period, should he satisfy the minimum period of 2 years as prescribed by Section 25 of the CVC Act?
2. If the tenure is extended, can the order be challenged under the grounds that this order might hinder other candidates’ opportunity?