Lawyers empanelled By Banks were not entitled for reservation under Article 16 for their Appointment

K. Marimuthu Vs Secretary to Government (Madras High Court)

Conclusion: Lawyers empanelled by the banks to represent them in cases did not hold a civil post and thus the laws of reservation would not be attracted during their appointment. In the absence of any constitutional or statutory mandate providing for reservation, it would not be possible for the courts to issue writs directing the banks to provide for reservation and/or representation to the members of SC/ST/OBC communities in empanelment of lawyers. The prevailing procedures being adopted by the Banks for empanelment of Lawyers were not in consonance with the established principles to be followed for appointments / empanelments. Thus, the respondents were directed to review the existing procedure of their respective Banks for empanelment of Lawyers and suitably alter / amend / frame new rules / procedures in consonance and in compliance with the Constitutional mandates and based on the established principles to be adopted for appointment / empanelment.

Held: Assessee in person instituted the present writ petition on the ground that he was deprived of his opportunity to be empanelled as Advocate in Banks despite his applications to the respondent / Banks. He with reference to the respondents / Banks filed applications and obtained information under the Right to Information Act (RTI) regarding the empanelment of Advocates by the Banks. Assessee had narrated the information provided by each respondents / Banks regarding the procedures being adopted for empanelment of Advocates for conducting litigations and for rendering legal opinions. Since none of the procedures adopted are in compliance with the Reserve Bank of India (RBI) circular, which were prevailing for empanelment of Advocates, assessee filed the writ petition to quash the withdrawal of those circular issued by the Reserve Bank of India (RBI) for the purpose of empanelment of Lawyers in Nationalised Banks and Public Sector Banks. The reasons stated by the Reserve Bank of India (RBI) for withdrawal of their common circulars, issued to all the Banks for empanelment of Lawyers revealed that due to the changes that has been taken place in the banking scenario and to provide autonomy to such Nationalised Banks and Public Sector Banks, the Reserve Bank of India (RBI) withdrew 41 circulars issued by them in consultation with the Government of India. RBI never intended to withdraw the entire circulars by scrapping the contents in those circulars. The idea was to give autonomous to the Banks enabling them to empanel Advocates by following the procedures. The Reserve Bank of India (RBI) unambiguously not intended to give free hand to choose the Lawyers of their choice but intended to follow the procedures and certain relevant procedures prevailing in the withdrawn circulars also may be adopted suitably, while empanelment of Advocates. It was held that it is necessary for the Nationalised Banks and Public Sector Banks to reform their system of selection and empanelment of Lawyers to the Banks for conducting litigations, to give legal opinion and to deal with the legal matters to make the empanelment more transparent, fair and objective.  Right to participate in the selection process is the Fundamental Right of a citizen. Thus, Banks are bound to review and reform their system of selection and empanelment of Lawyers either for contractual engagement, permanent engagement or otherwise. However, special engagements for a particular case for engaging designated Senior Counsel or expert counsel may be done by exercise of discretion of the Competent Authorities in the public interest and to protect the interest of the Banks. Such special appointments may be made without reference to the procedures for empanelment of Lawyers for conducting litigations on regular basis. The prevailing procedures being adopted by the Banks for empanelment of Lawyers were not in consonance with the established principles to be followed for appointments / empanelments. The procedures to be adopted must be transparent and must provide equal opportunity without compromising the merits and the interest of the Bank. Thus, the respondents were directed to review the existing procedure of their respective Banks for empanelment of Lawyers and suitably alter / amend / frame new rules / procedures in consonance and in compliance with the Constitutional mandates and based on the established principles to be adopted for appointment / empanelment. The said exercise was directed to be completed within a period of four (4) months from the date of receipt of a copy of this order.

FULL TEXT OF THE JUDGMENT/ORDER OF MADRAS HIGH COURT

The Writ of Certiorified Mandamus has been instituted questioning the validity of the withdrawal of the circular issued by the Reserve Bank of India (RBI) in the matter of appointment of the Panel Advocates for the Nationalised Banks in All India Level / State Level / Regional Level / Zone Level. Further directions are sought for to empanel the Advocates by following the established principles of law and to provide adequate representations to the candidates belongs to SC/ST/OBC Communities.

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