DR. JAYA THAKUR v. UNION OF INDIA & Ors.

Tushar Mehta, Solicitor General, Suryaprakash V. Raju, A.S.G., Gopal Sankarnarayanan, Dr. Abishek Manu Singhvi, Sr. Advs., Mukesh Kumar Maroria, Udai Khanna, Mayank Pandey, Zoheb Hussain, Kanu Agarwal, Adit Khorana, Aniruddha Bhatt, Arvind Kumar Sharma, Shrutanjaya Bhardwaj, Ms. Tanya Srivastava, Ms. Nupur Kumar, Muhammad Ali Khan, Omar Hoda, Abishek Jebaraj, Ms. Eesha Bakshi, Ms. Aashima Chauhan, Uday Bhatia, Ms. A. Reyna Shruti, Shashank A B C D E F G H 538 SUPREME COURT REPORTS [2023] 10 S.C.R. A B C D E F G Ratnoo, Varun Thakur, Brajesh Pandey, Varinder Kumar Sharma, Randhir Kumar Ojha, Prashant Bhushan, Pranav Sachdeva, J S Sinha, Vikas Malhotra, Braj Kishore Mishra, Abhishek Yadav, Aakarsh Kamra, Ms. Vanshaja Shukla, Advs. for the appearing parties. The Judgment of the Court was delivered by B. R. GAVAI, J.

This batch of writ petitions seeks a writ, order or directions in the nature of certiorari for quashing of order dated 17th November 2021 passed by the respondent No.1 for further extension of tenure of the respondent No.2. In Writ Petition (Civil) No.1106 of 2022, a further extension granted to respondent No.2 vide order dated 17th November 2022 has also been challenged. All these petitions also challenge the validity of Central Vigilance Commission (Amendment) Act, 2021, the Delhi Special Police Establishment (Amendment) Act, 2021 and the Fundamental (Amendment) Rules, 2021.

The facts, in brief, giving rise to the present writ petitions are as under. The reference hereinafter to the parties would be made as found in the cause-title of Writ Petition (Civil) No.456 of 2022.

The respondent No.2-Sanjay Kumar Mishra in Writ Petition (Civil) No. 456 of 2022, who was working as Principal Special Director in the Directorate of Enforcement (“ED” for short) 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 was earlier, vide order dated 19th November 2018.

Vide order dated 13th November 2020, the President of India approved the modification of the order dated 19th November 2018 by amending the period of appointment from two years to three years.

Writ Petition (Civil) No. 1374 of 2020 [Common Cause (A Registered Society) v. Union of India & Ors.1] was filed on 27th November 2020 by Common Cause (a registered society) before this Court in public interest under Article 32 of the Constitution of India praying for quashing of the order dated 13th November 2020 and for a consequential direction to the 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 (hereinafter referred to as “the CVC Act”). H 1 2021 SCC OnLine SC 687 DR. JAYA THAKUR v. UNION OF INDIA & ORS. [B. R. GAVAI, J.] 539

This Court though dismissed the said Writ Petition (Civil) No. 1374 of 2020 [Common Cause (A Registered Society) v. Union of India & Ors.] vide judgment and order dated 8th September 2021 [hereinafter referred to as “Common Cause (2021)”], yet directed that no further extension shall be granted to the respondent No.2.

On 14th November 2021, since Parliament was not in session, the President of India promulgated the Central Vigilance Commission (Amendment) Ordinance, 2021, thereby inserting two new provisos to Section 25(d) of the CVC Act. Simultaneously, the President of India also promulgated the Delhi Special Police Establishment (Amendment) Ordinance 2021, thereby inserting two new provisos to Section 4B(1) of the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as “the DSPE Act”).

On 15th November 2021, the Fundamental Rules, 1922 was amended by the Fundamental (Amendment) Rules, 2021, whereby the fifth proviso to F.R. 56(d) was substituted by a new proviso.

On 15th November 2021 itself, a meeting of the Committee headed by the Central Vigilance Commissioner was held to consider the proposal for extension of the tenure of the respondent No.2. The Committee decided to extend the tenure of the respondent No.2 as Director of Enforcement for a period of one year i.e. upto 18th November 2022 in public interest.

Vide Office Order No.238 of 2021 dated 17th November 2021, the tenure of the respondent No.2 was extended for a period of one year beyond 18th November 2021 i.e. upto 18th November 2022 or until further orders, whichever was earlier.

Challenging the vires of the Amendment Ordinances and/or the Fundamental (Amendment) Rules, 2021 and/or the said Office Order dated 17th November 2021, Writ Petition (Civil) Nos. 1307 of 2021, 1272 of 2021, 1274 of 2021, 1330 of 2021 and 1271 of 2021 came to be filed before this Court.

On 18th December 2021, Parliament enacted the Central Vigilance Commission (Amendment) Act, 2021 and the Delhi Special Police Establishment (Amendment) Act, 2021.

Challenging the vires of the Amendment Acts and/or the Office Order dated 17th November 2021, Writ Petition (Civil) Nos. 14 of 2022, A B C D E F G H 540 SUPREME COURT REPORTS [2023] 10 S.C.R. A B C D E F G H 274 of 2022 and 456 of 2022 came to be filed before this Court. In some of the petitions, a challenge has also been made to the amendment to the DSPE Act insofar it provides for extension of the tenure of the Director of Central Bureau of Investigation (“CBI” for short).

That during the pendency of the said writ petitions, vide order dated 17th November 2022, passed by the respondent No.1, the term of the respondent No.2 was further extended for a period of one year i.e. from 18th November 2022 to 18th November 2023. Being aggrieved thereby, Writ Petition (Civil) No. 1106 of 2022 has been filed before this Court.

We have heard Mr. K.V. Viswanathan, learned Amicus Curiae. We have also heard Mr. Anoop G. Choudhary, Mr. Gopal Sankarnarayanan, Dr. Abhishek Manu Singhvi, learned Senior Counsel, Mr. Prashant Bhushan, Mr. J.S. Sinha, and Mr. Sharangowda, learned counsel appearing on behalf of the petitioners and Mr. Tushar Mehta, learned Solicitor General and Mr. S.V. Raju, learned Additional Solicitor General, appearing on behalf of the respondent-Union of India, and Ms. Vanshaja Shukla, learned counsel appearing on behalf of the respondent No.3 in M.A. No.1756 of 2022.

Mr. Anoop G. Choudhary, learned Senior Counsel appearing on behalf of the petitioner in Writ Petition (Civil) No. 456 of 2022 and Writ Petition (Civil) No.1106 of 2022 submits that any action which nullifies the effect of the order of this Court dated 8th September 2021 is not permissible in law.

Mr. Choudhary further submits that the respondent No.2 was also a party to the judgment of this Court in the case of Common Cause (2021). He submits that, as such, the direction of this Court that no further extension should be granted to the respondent No.2 is binding on him as well as the Union of India. Learned counsel submits that the stand taken by the respondent No.1 that the basis on which the direction was issued by this Court was that the officer concerned had attained the age of superannuation and on account of amendment to the Fundamental Rules (hereinafter referred to as “FR”), the extension to the term of the Director of Enforcement is permissible and as such, the basis of the judgment of this Court in the case of Common Cause (2021) is taken away by amending the FR, is wholly without substance.

Mr. Gopal Sankarnarayanan submits that this Court in paragraph 23 of the judgment in the case of Common Cause (2021), DR. JAYA THAKUR v. UNION OF INDIA & ORS. [B. R. GAVAI, J.] 541 though has upheld the power of the Union of India to extend the tenure of Director of Enforcement beyond the period of two years, it has made 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. He submits that this Court has specifically stated that 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. It is submitted that all these directions issued by this Court have been annulled by the respondent No.1-Union of India. He submits that though the respondent No.2 was initially appointed for a period of 2 years, by virtue of extensions granted, he will continue for a period of 5 years.

Mr. Sankarnarayanan further submits that the words that have been used by this Court are, “to facilitate the completion of on-going investigations” and “in rare and exceptional cases”. However, ignoring those words, extension is being given to the respondent No.2 on the ground of a vague concept of “public interest”.

Mr. Sankarnarayanan further submits that in view of the judgment of this Court in the case of Madras Bar Association v. Union of India and another2, the effect of the judgments of the Court can be nullified by a legislative act of removing the basis of the judgment. Such law can be retrospective. However, retrospective amendment should be reasonable and not arbitrary and must not be violative of the fundamental rights guaranteed under the Constitution. He further submits that nullification of mandamus by an enactment is also an impermissible legislative exercise. Since there is a specific mandamus that the respondent No.2 should not be granted further extension, nullification of such a mandamus cannot be permitted.

Mr. Sankarnayaranan submits that this Court in the cases of Vineet Narain and others v. Union of India and another3, Prakash Singh and others v. Union of India and others (Prakash Singh-1)4, Prakash Singh and others v. Union of India(Prakash Singh-2)5and Prakash Singh and others v. Union of India and others (Prakash Singh-3)6 has consistently held that the tenure of the high-ranking officials