TaxTMI 
TaxTMI 
2023 (7) TMI 471
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....Vigilance Commission (Amendment) Act, 2021, the Delhi Special Police Establishment (Amendment) Act, 2021 and the Fundamental (Amendment) Rules, 2021. 2. 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. 3. 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. 4. 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. 5. Writ Petition (Civil) No. 1374 of 2020 [Common Cause (A Registered Society) v. Union of India & Ors. 2021 SCC OnLine SC 687] was filed on 27th November 2020 by Common Cause (a registered society) before this Court in public interest under Article ....
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....ment) Act, 2021. 13. Challenging the vires of the Amendment Acts and/or the Office Order dated 17th November 2021, Writ Petition (Civil) Nos. 14 of 2022, 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). 14. 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. 15. 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....
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....ever, ignoring those words, extension is being given to the respondent No.2 on the ground of a vague concept of "public interest". 20. 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 another 2021 SCC OnLine SC 463= (2022) 12 SCC 455, 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. 21. Mr. Sankarnayaranan submits that this Court in the cases of Vineet Narain and others v. Union of India and another (1998) 1 SCC 226, Prakash Singh and others v. Union of India and others (Prakash Singh-1) (2006) 8 SCC 1 (Prakash Singh-1), Prakash Singh and others v. Union of India(Prakash....
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....iew Committee. He submits that the said Independent Review Committee was tasked, inter alia, to examine the structure and working of the CBI and the ED and suggest the changes needed to ensure against extraneous pressures, arbitrary withdrawals or transfers of personnel etc. He submits that insofar as the ED is concerned, the Director of Enforcement was to be selected from a panel of persons who were having a minimum tenure of 2 years. 26. The learned Amicus submits that the amendment to the CVC Act, the DSPE Act, and the FR are totally contrary to the spirit of the long line of judgments delivered by this Court. It is submitted that this Court has held that the tenure of the Director of CBI as well as the Director of Enforcement should be a fixed one so that the person holding such an office can act independently, impartially and without any extraneous pressures. He submits that the impugned Amendments now permit for three extensions of one year at a time. It is, therefore, submitted that the Government can use the 'carrot and stick' policy so as to ensure that the said Directors work according to the wishes of the Government. He submits that a Director would always succumb to the....
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.... set up. Learned Amicus submits that the Madras High Court has held that if such extensions are granted as a matter of bounty, then there is every possibility of the officer in service playing to the tunes of those in power totally acting against public interest. 30. Learned Amicus relying on a series of judgments of this Court including the ones in the case of Shri Prithvi Cotton Mills Ltd. and another v. Broach Borough Municipality and others (1969) 2 SCC 283, Bhaktawar Trust and others v. M.D. Narayan and others (2003) 5 SCC 298, Cauvery Water Disputes Tribunal, Re 1993 Supp (1) SCC 96 and Madras Bar Association v. Union of India and another 2021 SCC OnLine SC 463, submits that though it is permissible for the Legislature to change the basis on which a decision is given by the Court and, thus, change the law in general, which will affect a class of persons and events at large, it is not permissible to set aside an individual decision inter partes and affect their rights and liabilities. It is submitted that insofar as the respondent No.2 is concerned, there is a specific mandamus issued by this Court that he shall not be granted further extension. Learned Amicus submits that ....
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....ndia in-charge of the Ministry of Personnel in the Central Government- Member (v) Secretary to the Government of Indiain- charge of the Department of Revenue, Ministry of Finance in the Central Government - Member 35. Learned SG further submits that the Central Vigilance Commissioner and the Vigilance Commissioners, prior to being appointed by the President are required to undergo the process of recommendation by a High-Level Committee consisting of: (a) the Prime Minister - Chairperson (b) the Minister of Home Affairs - Member (c) the Leader of the Opposition in the House of the People - Member 36. Learned SG further submits that the provision for removal of Central Vigilance Commissioner and Vigilance Commissioners are very stringent. It is submitted that they can be removed from the office only by an order of the President on the ground of proved misbehaviour or incapacity or after this Court, on a reference made to it by the President, has, on inquiry, reported that the Central Vigilance Commissioner or any Vigilance Commissioner, as the case may be, ought to be removed on such ground. It is, therefore, submitted that the Central Vigila....
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....ther (2019) 1 SCC 1 submits that the judgment delivered by this Court in the case of Common Cause (2021) was on the basis of the FR and the provisions in Section 25(d) of the CVC Act, as it existed then. However, now the FR as well as the CVC Act has undergone an amendment. It is, therefore, submitted that, by an amendment the very basis on which the judgment was delivered has been taken away. He, therefore, submits that the Legislature, which is undoubtedly competent to pass a legislation, has taken away the basis on which the Common Cause (2021) judgment was rendered upon. 41. The learned SG submits that, the question that will have to be considered by this Court is that, as to whether this Court would have rendered the same judgment which was delivered by it in Common Cause (2021), had it considered the law which has undergone change. Learned SG submits that when the Common Cause (2021) judgment was delivered, the FR did not include the post of Director of Enforcement. Now, the same has been included by way of an amendment and also a provision has been made that an extension could be granted upto a period as provided in the relevant Act. He submits that, since the amended Sec....
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....ndispensable, however, leadership makes a lot of difference. Therefore, it was found that the present assessment should be done under the leadership of the present incumbent. 44. Shri S.V. Raju, learned ASG supplemented the arguments advanced by the learned SG. He submits that in view of the judgment of this Court in the case of M/s Kishan Lal Lakhmi Chand and others v. State of Haryana and others 1993 Supp (4) SCC 461, the Legislature has power even to annul the mandamus issued by the Court. Relying on the judgment of this Court in the case of Welfare Association, A.R.P., Maharashtra and another v. Ranjit P. Gohil and others (2003) 9 SCC 358, he submits that the words "rare" and "exceptional" as found in the case of Common cause (2021) have now been taken away by an Amendment and, as such, no interference would be warranted either with the Amendments to the enactments or to the extensions so granted. 45. Mr. Gopal Sankarnarayanan, in rejoinder, submits that insofar as the Director of Enforcement is concerned, he is under the direct control of the Ministry of Finance and the incremental extension would lead to a situation where the incumbent would act as per the desires of th....
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.... "48. In view of the common perception shared by everyone including the Government of India and the Independent Review Committee (IRC) of the need for insulation of the CBI from extraneous influence of any kind, it is imperative that some action is urgently taken to prevent the continuance of this situation with a view to ensure proper implementation of the rule of law. This is the need of equality guaranteed in the Constitution. The right to equality in a situation like this is that of the Indian polity and not merely of a few individuals. The powers conferred on this Court by the Constitution are ample to remedy this defect and to ensure enforcement of the concept of equality." 50. This Court, therefore, issued following directions: "58. As a result of the aforesaid discussion, we hereby direct as under: I. CENTRAL BUREAU OF INVESTIGATION (CBI) AND CENTRAL VIGILANCE COMMISSION (CVC) 1. The Central Vigilance Commission (CVC) shall be given statutory status. 2. Selection for the post of Central Vigilance Commissioner shall be made by a Committee comprising the Prime Minister, Home Minister and the Leader of the Opposition from a panel of o....
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....y situation, including the need for him to take up a more important assignment, should have the approval of the Selection Committee. 9. The Director, CBI shall have full freedom for allocation of work within the agency as also for constituting teams for investigations. Any change made by the Director, CBI in the Head of an investigative team should be for cogent reasons and for improvement in investigation, the reasons being recorded. 10. Selection/extension of tenure of officers up to the level of Joint Director (JD) shall be decided by a Board comprising the Central Vigilance Commissioner, Home Secretary and Secretary (Personnel) with the Director, CBI providing the necessary inputs. The extension of tenure or premature repatriation of officers up to the level of Joint Director shall be with final approval of this Board. Only cases pertaining to the appointment or extension of tenure of officers of the rank of Joint Director or above shall be referred to the Appointments Committee of the Cabinet (ACC) for decision. 11. Proposals for improvement of infrastructure, methods of investigation, etc. should be decided urgently. In order to strengthen CBI's....
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....te handling sensitive assignments shall be provided adequate security to enable them to discharge their functions fearlessly. 5. Extensions of tenure up to the level of Joint Director in the Enforcement Directorate should be decided by the said Committee headed by the Central Vigilance Commissioner. 6. There shall be no premature media publicity by the CBI/Enforcement Directorate. 7. Adjudication/commencement of prosecution shall be made by the Enforcement Directorate within a period of one year. 8. The Director, Enforcement Directorate shall monitor and ensure speedy completion of investigations/adjudications and launching of prosecutions. Revenue Secretary must review their progress regularly. 9. For speedy conduct of investigations abroad, the procedure to approve filing of applications for Letters Rogatory shall be streamlined and, if necessary, Revenue Secretary authorised to grant the approval. 10. A comprehensive circular shall be published by the Directorate to inform the public about the procedures/systems of its functioning for the sake of transparency. 11. In-house legal advice mechanism shall be strengthened....
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....ction (3), the Central Vigilance Commissioner or any Vigilance Commissioner shall be removed from his office only by order of the President on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the President, has, on inquiry, reported that the Central Vigilance Commissioner or any Vigilance Commissioner, as the case may be, ought on such ground be removed. (2) The President may suspend from office, and if deem necessary prohibit also from attending the office during inquiry, the Central Vigilance Commissioner or any Vigilance Commissioner in respect of whom a reference has been made to the Supreme Court under sub-section (1) until the President has passed orders on receipt of the report of the Supreme Court on such reference. (3) Notwithstanding anything contained in sub-section (1), the President may by order remove from office the Central Vigilance Commissioner or any Vigilance Commissioner if the Central Vigilance Commissioner or such Vigilance Commissioner, as the case may be,- (a) is adjudged an insolvent; or (b) has been convicted of an offence which, in the opinion of the Central Governmen....
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....ssumes 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." 56. Similarly, by an amendment to DSPE Act by Act No. 45 of 2003 (CVC Act), a provision was made for a Committee for appointment of the Director of CBI, which reads thus: "4-A. Committee for appointment of Director.-(1) The Central Government shall appoint the Director on the recommendation of the Committee consisting of- (a) The Central Vigilance Commissioner - Chairperson; (b) Vigilance Commissioners - Members; (c) Secretary to the Government of India in charge of the Ministry of Home Affairs in the C....
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....al including the period mentioned in the initial appointment." 61. Similarly, by the Delhi Special Police Establishment (Amendment) Act, 2021, in sub-section (1) of Section 4B of the DSPE Act, the following provisos have been inserted: "Provided that the period for which the Director holds the office on his initial appointment may, in public interest, on the recommendation of the Committee under sub-section (1) of section 4A and for the reasons to be recorded in writing, be extended up to one year at a time: Provided further that no such extension shall be granted after the completion of a period of five years in total including the period mentioned in the initial appointment." 62. Similarly, in clause (d) of rule 56 of the Fundamental Rules, 1922, the fifth proviso has also been substituted, which is as under: "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 of Intelligence Bureau, Secretary of Research and Analysis Wing and Director of Central Bureau of Investigation appointed under the Delhi Special Police Establishme....
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....ures by the Government is sought to be wiped by the impugned Amendments. 66. For considering the issue with regard to validity of the Amendments, it will be apposite to refer to some of the judgments of this Court delineating the scope of the judicial review in examining the legislative functions of the Legislature. 67. A bench of three learned Judges of this Court in the case of Asif Hameed and others v. State of Jammu and Kashmir and others 1989 Supp (2) SCC 364 observed thus: "17. Before adverting to the controversy directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity but the Constitution makers have meticulously defined the functions of various organs of the State. legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the proce....
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.... executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an Appellate Authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers." 68. It could thus be seen that the role of the judiciary is to ensure that the aforesaid two organs of the State i.e. the Legislature and the Executive function within the constitutional limits. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The role of this Court is limited to examine as to whether the Legislature or the Executive has acted within the powers and functions assigned under the Constitution. However, while ....
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....nd. ... if an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by sub-clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or the other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom." *** 26. In Mohd. Hanif Quareshi [Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731] , the Constitution Bench further observed that there was always a presumption in favour of constitutionality of an enactment and the burden is upon h....
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....ed the statement of law in Mahant Moti Das [Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942] and the two earlier decisions, namely, Charanjit Lal Chowdhury v. Union of India [Charanjit Lal Chowdhury v. Union of India, 1950 SCC 833 : AIR 1951 SC 41 : 1950 SCR 869] and State of Bombay v. F.N. Balsara [State of Bombay v. F.N. Balsara, 1951 SCC 860 : AIR 1951 SC 318 : (1951) 52 Cri LJ 1361] and reiterated the principle that presumption was always in favour of constitutionality of an enactment. *** 30. A well-known principle that in the field of taxation, the legislature enjoys a greater latitude for classification, has been noted by this Court in a long line of cases. Some of these decisions are Steelworth Ltd. v. State of Assam [Steelworth Ltd. v. State of Assam, 1962 Supp (2) SCR 589] , Gopal Narain v. State of U.P. [Gopal Narain v. State of U.P., AIR 1964 SC 370] , Ganga Sugar Corpn. Ltd. v. State of U.P. [Ganga Sugar Corpn. Ltd. v. State of U.P., (1980) 1 SCC 223 : 1980 SCC (Tax) 90] , R.K. Garg v. Union of India [R.K. Garg v. Union of India, (1981) 4 SCC 675 : 1982 SCC (Tax) 30] and State of W.B. v. E.I.T.A. India Ltd. [State of W.B. v. E.I.T.A. India Ltd., (2003) ....
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....aw made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone viz. (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no third ground. We do not wish to enter into a discussion of the concepts of procedural unreasonableness and substantive unreasonableness-concepts inspired by the decisions of United States Supreme Court. Even in USA, these concepts and in particular the concept of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtailment of this ground (substantive due process). The main criticism against the ground of substantive due process being that it seeks to set up the courts as arbiters of the wisdom of the legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is characterised, the ground of invalidation must fall within the four corners of the two grounds mentioned above. In other words, say, if an enactment is challenged as violative of Article 14, it can be struck down only if....
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....ative law sphere is not fully and finally settled." 81. Another aspect in this context, which needs to be emphasised, is that a legislation cannot be declared unconstitutional on the ground that it is "arbitrary" inasmuch as examining as to whether a particular Act is arbitrary or not implies a value judgment and the courts do not examine the wisdom of legislative choices and, therefore, cannot undertake this exercise. This was so recognised in a recent judgment of this Court Rajbala v. State of Haryana [Rajbala v. State of Haryana, (2016) 2 SCC 445] wherein this Court held as under : (SCC p. 481, paras 64-65) "64. From the above extract from McDowell & Co. case [State of A.P. v. McDowell & Co., (1996) 3 SCC 709] it is clear that the courts in this country do not undertake the task of declaring a piece of legislation unconstitutional on the ground that the legislation is "arbitrary" since such an exercise implies a value judgment and courts do not examine the wisdom of legislative choices unless the legislation is otherwise violative of some specific provision of the Constitution. To undertake such an examination would amount to virtually importing the doctrine of....
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.... ultra vires the Constitution. However, while undertaking substantive judicial review, if it is found that the impugned provision appears to be violative of fundamental rights or other constitutional rights, the Court reaches the second stage of review. At this second phase of enquiry, the Court is supposed to undertake the exercise as to whether the impugned provision can still be saved by reading it down so as to bring it in conformity with the constitutional provisions. If that is not achievable then the enquiry enters the third stage. If the offending portion of the statute is severable, it is severed and the Court strikes down the impugned provision declaring the same as unconstitutional. 84. Keeping in view the aforesaid parameters we, at this stage, want to devote some time discussing the arguments of the petitioners based on the concept of "limited Government". xxx xxx xxx xxx xxx xxx 88. Undoubtedly, we are in the era of liberalised democracy. In a democratic society governed by the Constitution, there is a strong trend towards the constitutionalisation of democratic politics, where the actions of democratically elected Government are ju....
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....nd that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt. It has further been held that if two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. It has been held that the Court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing down its scope. 73. It has consistently been held that there is always a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt. It has been held that if the law which is passed is within the scope of the power conferred on a legislature and violates no restrictions on that power, the law must be upheld whatever a court may think of it. 74. It could thus be seen that the challenge to the legislative Act would be sustainable only if it is established that the legislature concerned had no legislative competence to enact on the subject it has enacted. The other ground on which the validity can be challenged is that such an ....
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....on 4 of the CVC Act deals with appointment of Central Vigilance Commissioner and Vigilance Commissioners. The appointment of Central Vigilance Commissioner and Vigilance Commissioners can be made only after a Committee consisting of (a) the Prime Minister (Chairman); (b) the Minister of Home Affairs (Member); and (c) the Leader of the Opposition in the House of the People (Member) recommends for the same. The explanation thereto provides that when no such Leader of the Opposition in the House of the People has been so recognized, the Committee shall include the Leader of the single largest group in opposition of the Government in the House of the People. 81. A perusal of Section 6 of the CVC Act would reveal that a very stringent provision has been made for removal of the Central Vigilance Commissioner and the Vigilance Commissioners. They can be removed from the office only by an order of the President on the ground of proved misbehaviour or incapacity and that too, only after the Supreme Court, on a reference made to it by the President, has, on inquiry, reported that the Central Vigilance Commissioner or any Vigilance Commissioner, as the case may be, ought on such ground be ....
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.... the recommendations were to be made by a Committee headed by the Central Vigilance Commissioner with the Home Secretary and Secretary (Personnel) as Members. However, Section 4A of the DSPE Act provides for a Committee, which is consisting of the Members which are at much higher pedestal. It is to be chaired by the Prime Minister, whereas the Chief Justice of India or his/her nominee and the Leader of Opposition in the House of the People are its Members. Therefore, the appointment of the Director of CBI cannot be made unless it is recommended by the High-Level Committee consisting of the Prime Minister; the Leader of Opposition; and the Chief Justice of India or Judge of the Supreme Court nominated by him/her. 88. It is to be noted that the aforesaid provisions have been made in order to give effect to the directions issued by this Court in the case of Vineet Narain (supra). 89. This Court in the case of Vineet Narain (supra) has issued a specific direction that the Director of CBI as well as the Director of Enforcement shall have a minimum tenure of two years. 90. What has been provided by the impugned Amendments is that the period for which the initial appointment has ....
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....onsider as to whether the extension is required to be given in public interest or not. At the cost of repetition, such Committee is also required to record reasons in writing in support of such recommendations. 94. We are, therefore, unable to accept the arguments that the impugned Amendments grant arbitrary power to the Government to extend the tenure of the Director of ED/CBI and has the effect of wiping out the insulation of these offices from extraneous pressures. 95. Insofar as challenge to the amendment to the fifth proviso to clause (d) of Rule 56 of the Fundamental Rules, 1922 is concerned, it will be relevant to refer to the fifth proviso to clause (d) of Rule 56, which existed prior to the Amendment. It reads thus: "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 D....
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.... before this Court that it was not permissible for the Government to extend the period of tenure beyond two years. In paragraph 15, this Court posed the following question for consideration: "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." 101. In paragraph 20, this Court observed thus: "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....
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....th 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." [emphasis supplied] 103. As such, it is clear that this Court issued a specific mandamus that no further extension shall be granted to the second respondent. Undisputedly, the Union of India as well as the respondent No.2- Sanjay Kumar Mishra in Writ Petition (Civil) No. 456 of 2022 herein were parties to the said proceedings. 104. A Constitution Bench of learned Seven Judges of this Court in the case of Madan Mohan Pathak and another v. Union of India and others (1978) 2 SCC 50 was considering the question of constitutional validity of the Life Insurance Corporation (Modification of Settlement) Act, 1976. In exercise of power vested under Section 49 of the Life Insurance Corporation Act, 1956, right from 1959, various settlements were arrived at between the Life Insurance Corporation ("LIC" for short) and its employees from time to time in regard to various matters relating to terms and conditions of service of Class III and Class IV e....
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.... 226 of the Constitution itself. These could not be touched by an ordinary act of Parliament. Even if Section 3 of the Act seeks to take away the basis of the judgment of the Calcutta High Court, without mentioning it, by enacting what may appear to be a law, yet, I think that, where the rights of the citizen against the State are concerned, we should adopt an interpretation which upholds those rights. Therefore, according to the interpretation I prefer to adopt the rights which had passed into those embodied in a judgment and became the basis of a mandamus from the High Court could not be taken away in this indirect fashion." 108. It could thus be clearly seen that the Constitution Bench of learned Seven Judges of this Court clearly held that by a subsequent enactment, the writ of mandamus issued by the Calcutta High Court crystalizing the rights and liabilities between the parties cannot be annulled. 109. It will also be apposite to refer to the following observation of the Constitution Bench of this Court in the case of Cauvery Water Disputes Tribunal, Re. (supra), which reads thus: "76. The principle which emerges from these authorities is that the legislature ca....
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....ntry should be in accordance with the principles laid down by this Court in the aforementioned as well as other judgments, which have been culled out as under: 50.1. The effect of the judgments of the Court can be nullified by a legislative act removing the basis of the judgment. Such law can be retrospective. Retrospective amendment should be reasonable and not arbitrary and must not be violative of the fundamental rights guaranteed under the Constitution. [Lohia Machines Ltd. v. Union of India, (1985) 2 SCC 197 : 1985 SCC (Tax) 245] 50.2. The test for determining the validity of a validating legislation is that the judgment pointing out the defect would not have been passed, if the altered position as sought to be brought in by the validating statute existed before the Court at the time of rendering its judgment. In other words, the defect pointed out should have been cured such that the basis of the judgment pointing out the defect is removed. 50.3. Nullification of mandamus by an enactment would be impermissible legislative exercise (see : S.R. Bhagwat [S.R. Bhagwat v. State of Mysore, (1995) 6 SCC 16 : 1995 SCC (L&S) 1334] ). Even interim directions ....
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....on is clarified, the challenge to which, we have found to be unsustainable. As such, the contention that the very foundation on which judgment of this Court in the case of Common Cause (2021) was based is taken away is without substance. 116. As already discussed herein above, this Court has specifically issued a mandamus that no further extension shall be granted to the second respondent. The Union of India and the respondent No.2 were both parties in the proceedings before this Court in Writ Petition (Civil) No. 1374 of 2020 [Common Cause (2021)]. The mandamus issued to be parties was binding on them. We, therefore, find that the respondent No.1 could not have issued orders dated 17th November 2021 and 17th November 2022 in breach of the mandamus issued by this Court vide its judgment dated 8th September 2021 in Common Cause (2021). 117. Insofar as the reliance placed by Shri Raju on the judgment of this Court in the case of M/s Kishan Lal Lakhmi Chand and others (supra) is concerned, the said judgment would be of no assistance to the case of the respondents. It would be relevant to refer to the following observations of this Court: "8. ......However, to a query pu....