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2017 DIGILAW 167 (SC)

Uday Babu Khalwadekar v. Union Of India

2017-01-30

JAGDISH SINGH KHEHAR, N.V.RAMANA

body2017
ORDER : 1. We have heard learned counsel for the rival parties. 2. Mr.Mukul Rohatgi, learned Attorney General representing the Union of India states, that the appointment of Shri Karnail Singh, IPS, to the post of Director, Enforcement, has been made vide order dated 27.10.2016, in compliance of and in consonance with the Fundamental Rule 56. 3. Based on the above Rule, it is submitted, that the appointment of Shri Karnail Singh, to the post of Director, Enforcement, could have been made, only till the date of his superannuation in the Indian Police Service. 4. The submission advanced at the hands of the learned Attorney General is vehemently contested, by the learned counsel appearing on behalf of the petitioner. In this behalf, reliance has been placed on Section 25 of the Central Vigilance Commission Act, 2003 (hereinafter referred to as `the Act'), which is extracted hereunder: “25. 4. The submission advanced at the hands of the learned Attorney General is vehemently contested, by the learned counsel appearing on behalf of the petitioner. In this behalf, reliance has been placed on Section 25 of the Central Vigilance Commission Act, 2003 (hereinafter referred to as `the Act'), which is extracted hereunder: “25. Appointments, etc., of officers of Directorate of Enforcement.-Notwithstanding anything contained in the Foreign Exchange Management Act, 1999(42 of 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) xxx xxx xxx (ii) xxx xxx xxx (iii) xxx xxx xxx (iv) xxx xxx xxx (v) xxx xxx xxx (b) While making a recommendation, the Committee shall take into consideration the integrity and experience of the officers eligible for appointment; (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.” (Emphasis is ours) A perusal of Clause(d) of Section 25 reveals, that the appointment of the Director, Enforcement could not be for a period less than two years from the date on which an incumbent assumes his office. 5. We are of the considered view, that a statutory rule can never override a legislative enactment, and as such, the date of superannuation would have no consequence whatsoever with reference to Clause (d), which is explicit and clear. 5. We are of the considered view, that a statutory rule can never override a legislative enactment, and as such, the date of superannuation would have no consequence whatsoever with reference to Clause (d), which is explicit and clear. Additionally, learned counsel are fully justified in pointing out, that Section 25, extracted hereinabove, postulates, that the aforesaid provision would have an overriding effect above “...any other law for the time being in force...”. The aforesaid mandate contained in Section 25 of the Act, leaves no room for any doubt, that even if there had been a legislative enactment to the contrary, the instant provision, mandating a period of not less than 2 years, from the date on which the incumbent assumes office, could not have been varied. 6. In view of the above, the instant petition is disposed of with a direction to the respondent – Union of India to issue a fresh order of appointment, in consonance with, and in compliance of Section 25(d) of the Act, within one week from today. The selected Director, Enforcement shall be issued an order of appointment, allowing him to hold his office for a period of two years, from the date on which he assumes office.