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
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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
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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 isthe 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
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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
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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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