Common Cause (A Registered … vs Union Of India on 8 September, 2021


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Supreme Court of India

Common Cause (A Registered … vs Union Of India on 8 September, 2021

Author: L. Nageswara Rao

Bench: L. Nageswara Rao, B.R. Gavai, B.V. Nagarathna

                                                 Non-Reportable


             IN THE SUPREME COURT OF INDIA
              CIVIL ORIGINAL JURISDICTION


          Writ Petition (Civil) No. 1374 of 2020


Common Cause (A Registered Society)
                                                  .... Petitioner

                           Versus

Union of India & Ors.
                                               …. Respondents

                       JUDGMENT

L. NAGESWARA RAO, J.

1. This Writ Petition has been filed in public interest under

Article 32 of the Constitution of India for quashing the order

dated 13.11.2020 issued by Respondent No.1, which

extended the tenure of the Respondent No.2 as Director of

Enforcement in the Directorate of Enforcement and for

consequential direction to Respondent No.1 to appoint the

Director of Enforcement in accordance with the procedure

prescribed under Section 25 of the Central Vigilance

Commission Act, 2003 (for short, ‘CVC Act’).

1 | Page

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

2 | Page
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

3 | Page
General Clauses Act
, 1897 enables the Government to

extend the tenure of the second Respondent.

4. We have heard Mr. Dushyant Dave, learned Senior

Counsel for the Petitioner, Mr. Tushar Mehta, learned Solicitor

General of India and Mr. P.S. Narasimha, learned Senior

Counsel for the third Respondent, the Central Vigilance

Commission. Mr. Dave argued that Section 25 (d) of the CVC

Act provides for continuance of the Director of Enforcement

for a period of not less than two years from the date of his

assumption of the office. The said provision has to be

interpreted on the basis of the law declared by this Court in

Vineet Narain and Ors. v. Union of India & Anr.1.

According to Mr. Dave, the Central Government has

the power to appoint Director of Enforcement on the basis of

recommendations of the committee provided an officer is not

below the rank of Additional Secretary to the Government of

India. The tenure of the office of the Director of

Enforcement is for a minimum period of two years from the

date of assumption of office and the Director cannot be

transferred, except with the consent of the Committee. The

extension or curtailment of service dealt with in Section 25

(f) is applicable to officers other than the Director of

1 (1998) 1 SCC 226

4 | Page
Enforcement. Emphasis was laid by Mr. Dave on

Fundamental Rule 56, according to which there cannot be

any extension of the service of Director of Enforcement.

There is no exception carved out in Fundamental Rule 56 for

appointment, reappointment/extension of officers other than

those who are mentioned in the Rule. Mr. Dave asserted

that the order impugned in the Writ Petition suffers from the

vice of malice in law as it was passed for extraneous

considerations. In support of the said submission, Mr. Dave

relied upon a judgment of this Court in Smt S.R.

Venkataraman v. Union of India and Anr 2. He further

stated that Section 21 of the General Clauses Act has no

application to Section 25 of the CVC Act by relying upon the

judgments of this Court in Strawboard Manufacturing

Co., Ltd. v. Gutta Mill Workers’ Union 3, State of

Madhya Pradesh v. Ajay Singh & Ors.4, Kazi Lhendup

Dorji v. Central Bureau of Investigation & Ors. 5 and

State of Bihar v. D.N. Ganguly & Ors. 6. Mr. Dave also

placed reliance upon a judgment of this Court in Prakash

Singh & Ors. v. Union of India & Ors. 7 and the later

2 (1979) 2 SCC 491
3 (1953) 4 SCR 439
4 (1993) 1 SCC 302
5 1994 Suppl. (2) SCC 116
6 1959 SCR 1191
7 (2006) 8 SCC 1

5 | Page
orders passed in Prakash Singh & Ors. v. Union of India

& Ors. reported in (2019) 4 SCC 1 and (2019) 4 SCC 13. Mr.

Dave emphatically argued that there is no power conferred

on the Union of India to extend the tenure of Director of

Enforcement and the Union of India cannot take refuge under

the plea that important investigations are pending for which

reason the tenure of the Director of Enforcement can be

extended. There are several competent officers who are

eligible for consideration of appointment to the post of

Director of Enforcement and they should not be deprived of

the opportunity to be appointed in accordance with the

procedure prescribed under the CVC Act. Even assuming

without conceding that the tenure of Respondent No.2 can be

extended, it cannot be for a period of one year when the

original appointment was made for a period of two years.

He submitted that the nature of duties exercised by the

Director of Enforcement would involve supervision of very

important investigations. Under the guise of pendency of

investigations into matters which have cross-border

ramifications, the tenure of the Director of Enforcement

cannot be extended periodically.

5. The learned Solicitor General of India raised a preliminary

objection on the maintainability of the Writ Petition in public

6 | Page
interest filed by the Petitioner. He submitted that the issue

essentially relates to a service matter and it is settled law that

Writ Petitions in public interest are not maintainable in regard

to disputes relating to service. He countered the submissions

of Mr. Dave by submitting that the CVC Act was enacted in the

year 2003 to give effect to the recommendations of the

Independent Review Committee and judgment of this Court in

Vineet Narain (supra). The minimum tenure of at least two

years provided in Section 25(d) of the CVC Act is to ensure

uninterrupted term of service so that the incumbent acts

independently without interference from the executive. It is to

insulate the office of Director of Enforcement from extraneous

pressures. It was contended by the learned Solicitor General

that the words ‘not less than two years’ have to be read as ‘not

more than two years’, if the argument of the Petitioner is to be

accepted. He submitted that the rule of literal construction of

a statute has to be followed when there is no ambiguity in the

language of the provisions of the Act. Reliance was placed on

Pakala Narayanaswami v. King-Emperor8, Rananjaya

Singh v Baijnath Singh & Ors. 9 and Nathi Devi v Radha

Devi Gupta10.

8 AIR 1939 PC 47
9 (1955) 1 SCR 671
10 (2005) 2 SCC 271

7 | Page

6. Any interpretation contrary to the plain words of a

statute would result in rewriting the statute which is not

permissible. While accepting that there is no specific

provision for extension of the tenure of the Director of

Enforcement in Section 25, it was contended that the Union

of India has the power to extend the tenure of Director of

Enforcement by resorting to Section 21 of the General

Clauses Act. The learned Solicitor General referred to the

judgment of this Court in State of Punjab v Harnek

Singh11 to submit that it is settled law that the General

Clauses Act is a part of every Central Act and has to be read

in such Act unless specifically excluded. He placed strong

reliance on the judgment in Kamla Prasad Khetan & Anr.

v Union of India 12
to contend that modification of an order

passed earlier extending the tenure of a Director of

Enforcement is permissible subject to the procedure

prescribed under the Act for the original appointment being

followed. The learned Solicitor General defended the order

dated 13.11.2020 as being the result of valid exercise of

power on the basis of a recommendation made by the

Committee which was constituted for appointment to the

post of Director of Enforcement in accordance with the
11 (2002) 3 SCC 481
12 1957 SCR 1052

8 | Page
provisions of Section 25 of the CVC Act. The second

Respondent has been supervising very important

investigations which are at a crucial stage and the

Committee was of the opinion that his continuance for a

period of one more year was crucial. The learned Solicitor

General further submitted that there are no allegations made

against the discharge of duties by Respondent No.2. He

contended that the question of malice in law does not arise

for consideration in this case. The extension of the tenure of

the second Respondent is the result of bona fide exercise of

power for germane considerations. Mr. P. S. Narasimha,

learned Senior Counsel appearing for the Central Vigilance

Commission adopted the arguments of the learned Solicitor

General of India and argued that extension of the tenure of

the second Respondent was not made on the whims and

fancies of an individual but on the recommendations made

by a High Level Committee constituted under the statute.

No motives have been imputed against the members of the

Committee who have taken into account all relevant material

to conclude that the extension of the tenure of the second

Respondent is in public interest.

7. As we propose to deal with the contentions raised by

the Petitioner on their merits, we are not inclined to

9 | Page
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

10 | P a g e
approved by the Selection Committee headed by the Central

Vigilance Commissioner. Section 25 of the CVC Act

pertaining to the appointments of the officers of Directorate

of Enforcement reads as thereunder: –

“25. Notwithstanding anything contained in the Foreign

Exchange Management Act, 1999 or any other law for the

time being in force,—

(a) the Central Government shall appoint a Director of

Enforcement in the Directorate of Enforcement in the

Ministry of Finance on the recommendation of the

Committee consisting of—

(i) the Central Vigilance Commissioner — Chairperson;

(ii) Vigilance Commissioners — Members;

(iii) Secretary to the Government of India in-charge of the

Ministry of Home Affairs in the Central Government —

Member;

(iv) Secretary to the Government of India in-charge of the

Ministry of Personnel in the Central Government — Member;

(v) Secretary to the Government of India in-charge of the

Department of Revenue, Ministry of Finance in the Central

Government — Member;

(b) while making a recommendation, the Committee shall

take into consideration the integrity and experience of the

officers eligible for appointment;

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(c) no person below the rank of Additional Secretary to the

Government of India shall be eligible for appointment as a

Director of Enforcement;

(d) 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;

(e) a Director of Enforcement shall not be transferred except

with the previous consent of the Committee referred to in

clause (a);

(f) the Committee referred to in clause (a) shall, in

consultation with the Director of Enforcement, recommend

officers for appointment to the posts above the level of the

Deputy Director of Enforcement and also recommend the

extension or curtailment of the tenure of such officers in the

Directorate of Enforcement;

(g) on receipt of the recommendation under clause (f), the

Central Government shall pass such orders as it thinks fit to

give effect to the said recommendation.”

9. In so far as the Director of Enforcement is concerned,

the appointment is on the recommendation of the Committee

constituted by the Central Government. The eligibility for

appointment of Director of Enforcement is that a person shall

be holding at least the rank of Additional Secretary to the

Government of India. Section 25 (d) provides that a Director

12 | P a g e
of Enforcement shall continue to hold office for a period of

not less than two years from the date on which he assumes

the office. According to Section 25 (e), the Director of

Enforcement shall not be transferred except with the

previous consent of the Committee. 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.

10. At this stage, it is relevant to refer to the Fundamental

Rule 56 which has been relied upon by the Petitioner to

buttress the submission that there cannot be any extension

of service after a person holding a civil post under the Union

of India has attained the age of superannuation.

Fundamental Rule 56 reads as follows:-

“Extracts of provisions in Fundamental Rule 56

F.R. 56(a) 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:

13 | P a g e
Provided that a Government servant whose date of birth is

the first of a month shall retire from service on the afternoon

of the last day of the preceding month on attaining the age of

sixty years.

Provided further that a Government servant who has attained

the age of fifty-eight years on or before the first day of May,

1998 and is on extension in service, shall retire from the

service on expiry of his extended period of service.

Or on the expiry of any further extension in service granted

by the Central Government in public interest, provided that

no such extension in service shall be granted beyond the age

of 60 years.

(b) A workman who is governed by these rules shall retire

from service on the afternoon of the last day of the month in

which he attains the age of sixty years.

(bb) The age of superannuation in respect of specialists

included in the Teaching, Non-Teaching and Public Health

Subcadres of Central Health Service shall be 62 years.

” Provided that for the specialists included in the Teaching

sub-cadres of the Central Health Service who are engaged

only in teaching activities and not occupying administrative

positions, the age of superannuation shall be sixty-five years:

Provided further that such specialists of the Teaching sub-

cadres of Central Health Service who are occupying

14 | P a g e
administrative positions shall have the option of seeking

appointment to the teaching positions in case they wish to

continue in service up to sixty-five years.”

(bbb) The age of superannuation in respect of nursing

teaching faculty with M.Sc in Nursing in the Central

Government Nursing Institutions shall be 65 years subject to

the condition that they continue to function as faculty

members after the age of 60 years.

(d) No Government servant shall be granted extension in

service beyond the age of retirement of sixty years:

Provided that a Government servant dealing with budget

work or working as a full-time member of a Committee which

is to be wound up within a short period of time may be

granted extension of service for a period not exceeding three

months in public interest;

Provided further that a specialist in medical or scientific fields

may be granted extension of service up to the age of sixty-

two years, if such extension is in public interest and the

grounds for such extension are recorded in writing:

Provided also that an eminent scientist of international

stature may be granted extension of service up to the age of

64 years, if such extension is in public interest and the

grounds for such extension are recorded in writing.

15 | P a g e
Provided also that notwithstanding anything contained in any

rule, the Central Government may, if considered necessary in

public interest so to do, give extension in service to a Cabinet

Secretary in the Central Government for such period or

periods as it may deem proper subject to the condition that

his total term as such Cabinet Secretary does not exceed four

years.

Provided also that the Central Government may, if it

considers necessary in public interest so to do, give

extension in service to the Defence Secretary, Home

Secretary, Director, Intelligence Bureau, Secretary, Research

and Analysis Wing and Director, Central Bureau of

Investigation in the Central Government for such period or

periods as it may deem proper on a case-to-case basis,

subject to the condition the total term of such Secretaries or

Directors, as the case may be, who are given such extension

in service under this rule, does not exceed two years.

Provided also that notwithstanding anything contained in the

fifth proviso, the Central Government may, if considers it

necessary, in public interest, so to do, give an extension in

service for a further period not exceeding three months

beyond the said period of two years to the Home Secretary

and the Defence Secretary.

16 | P a g e
Provided also that, the Central Government may, if

considered necessary in public interest so to do, give

extension of service to the Secretary, Department of Space

and the Secretary, Department of Atomic Energy, for such

period or periods as it may deem proper subject to a

maximum age of 66 years.

Provided also that the Appropriate Authority shall have the

right to terminate the extension of service before the expiry

of such extension by giving a notice in writing of not less than

three months in the case of a permanent or a quasi-

permanent Government servant, or, of one month in the case

of a temporary Government servant, or pay and allowances

in lieu of such notice.”

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

17 | P a g e
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.13, 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

13 WP (C) of 757 of 2016

18 | P a g e
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.

13. The Petitioner contended that Section 25 (d) which

postulates a tenure of two years for a Director of

Enforcement cannot be interpreted to confer power on the

Government to extend the tenure beyond two years. The

Petitioner laid stress on Section 25 (f) which provides for

extension or curtailment of the period of tenure of officers

other than the Director of Enforcement and submitted that

19 | P a g e
the legislature did not intend the extension of the tenure of

Director of Enforcement beyond a period of two years.

14. According to the Union of India, the object of Section 25

(d) is to ensure that the Director of Enforcement shall have a

minimum period of two years as recommended by the

Independent Review Committee and as directed by the

judgement of this Court in Vineet Narain’s case. Reliance

was also placed on the word ‘minimum’ which was used in

the report of the Committee and the judgement in Vineet

Narain. 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

Narain’s 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

20 | P a g e
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.

15. The question that remains to be answered is 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. 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

21 | P a g e
the rank of an Additional Secretary to the Government of

India. Therefore, he was eligible for extension of tenure.

16. We proceed to deal with the pivotal point which is the

source of power for extension of the tenure of Respondent

No.2. According to the Union of India, extension can be

ordered by resorting to Section 21 of the General Clauses Act

in the absence of specific provision in the CVC Act. On the

other hand, the contention of the Petitioner is that Section 21

of the General Clauses Act has no application to Section 25 of

the CVC Act.

17. Section 21 of the General Clauses Act reads as

follows:-

“21. Power to issue, to include power to add to, amend, vary

or rescind notifications, orders, rules or bye-laws.— Where,

by any [Central Act] or Regulations a power to [issue

notifications,] orders, rules or bye-laws is conferred, then that

power includes a power, exercisable in the like manner and

subject to the like sanction and conditions (if any), to add to,

amend, vary or rescind any [notifications,] orders, rules or

bye-laws so [issued].”

18. The object of the General Clauses Act is to shorten the

language of Central Acts, to provide as far as possible for

uniformity of expression in Central Acts by giving definitions

22 | P a g e
of a series of terms in common use, to state explicitly certain

convenient rules for the construction and interpretation of

Central Acts and to guard against slips and oversights by

importing into every Act certain common forms and clauses,

which otherwise ought to be inserted expressly in every

Central Act. In other words, the General Clauses Act is a part

of every Central Act and has to be read in such Act unless

specifically excluded14.

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

14 State Of Punjab v. Harnek Singh (supra)

23 | P a g e
Manufacturing Co. v. Gutta Mill Workers’ Union (supra)

which was relied upon by the Petitioners was distinguished

by the Constitution Bench in Kamla Prasad Khetan’s 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

24 | P a g e
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 government’s 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

25 | P a g e
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

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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

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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.

21. The Petitioner contended that the impugned order of

extension of the tenure of the second Respondent is vitiated

by malice in law by relying upon a judgement of this Court in

Smt. S.R. Venkataraman v. Union of India & Anr.

(supra). 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.

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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. 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

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Act. Any extension of tenure granted to persons holding the

post of Director of Enforcement after attaining the age of

superannuation should be for a short period. 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.

24. Subject to the observations made above, the Writ

Petition is dismissed.

……………………………….J.

[ L. NAGESWARA RAO ]

……………………………….J.

[ B. R. GAVAI ]

New Delhi,
September 08, 2021.

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