Madras High Court: In a writ petition filed 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 directing to empanel the Advocates by following the established principles of law and to provide adequate representations to the candidates belonging to Scheduled Caste /Scheduled Tribe/Other Backward Class Communities, S.M. Subramaniam, J. said that right to be considered for appointment/ empanelment in a Bank is a Fundamental Right of a citizen, and held that the prevailing procedures are depriving the rightful candidates to participate in the process of empanelment of lawyers in the Nationalised Banks and Public Sector Banks.
Further, directed the Banks to review the existing procedure of their respective Banks for empanelment of lawyers and suitably amend and frame new rules / procedures in consonance and in compliance with the Constitutional mandates within a period of four months from the date of this order.
In the present matter, the petitioners have prayed to quash a circular for being arbitrary, irrelevant, unreasonable, and violative of Articles 14, 15 and Clause (1), (4), (4-A) of Article 16 of the Constitution of India and to direct the Nationalised and Public Sector Banks to conduct survey on available panel of advocates of their Bank and report the SC/ST/OBC advocates out of the available strength at present, with its percentage of each category wise advocates according to their administrative structure. Further, to direct the Nationalised and Public Sector Banks to take special endeavor to made to encourage advocates belonging to the SC/ST/OBC by enrolling them in the panel.
The Court noted that there was no uniform procedure prescribed for empanelment of Advocates to the Government of India and RBI. No sufficient opportunity and adequate representations were provided to the SC/ST/OBC category advocates in the matter of empanelment of advocates in the Nationalised and Public Sector Banks. Thus, on the advice of the Government, the RBI has issued a circular with directions and guidelines in 1991. Later, the RBI withdrew this circular to give autonomy to the Banks, enabling them to empanel Advocates by following their procedures.
The issue in the present matter was, whether the empanelment of lawyers in the Nationalised Banks and Public Sector Banks are done in compliance with the mandates of the Constitution of India?
Going through the procedures being adopted by the Banks, the Court opined that equal opportunity for empanelment has been denied to the eligible and meritorious candidates. The procedures though seem to be transparent but are not in compliance with the equality clause given under the Constitution of India. Equal opportunity in public employment is the Constitutional mandate.
It further said that, though empanelment of Lawyer cannot be construed as an appointment into the service of the Nationalised Banks and Public Sector Banks and lawyers are engaged on contract basis for a particular tenure on terms and conditions and by fixing remuneration. However, the Nationalised Banks and Public Sector Banks are public institutions and are ‘State’ within the meaning of Article 12 of the Constitution. Therefore, they cannot avoid their responsibility from complying with the mandatory principles of equal opportunity enunciated under the Constitution.
The Court said that the empanelled lawyers, who all are representing the Nationalised Banks and Public Sector Banks and are performing the public duties for all purposes. Thus, whether it is a contractual employment, temporary engagements or otherwise, the procedure to be adopted by such Banks must be transparent and in compliance with the mandates of the Constitution.
Going through the procedures now prevailing for the empanelment of the lawyers in the Banks, the Court said that the Banks are not in compliance with the Constitutional mandates and the empanelment of lawyers are now being done mostly based on the choices of the authorities of the Bank. This is not only unconstitutional but infringing the Fundamental Rights of the citizen, who all are the legal practitioners.
The Court said that when large number of litigations are being conducted by the Nationalised Banks and Public Sector Banks, empanelment is expected to be done by selecting competent lawyers and by providing due opportunity to the SC/ST/OBC candidates. However, the procedures now being adopted paves way for empanelment of the lawyers at the whims and fancies of the authorities of the Banks. Undoubtedly, the situation would lead to corrupt practices, favouritism and nepotism, which is unconstitutional.
Further, the Court said that violation of Article 14 if affects any matter of public employment, it also violates Article 16. Therefore, Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and inequality of treatment.
The Court after referring various Supreme Court decisions, said 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, to make it more transparent, fair and objective. Necessary procedures must be introduced or the available procedures should be amended, to ensure equal opportunity for all eligible lawyers to participate in the process of empanelment, which is their Fundamental Right ensured under the Constitution.
Thus, it was held that the prevailing procedures being adopted by the Banks for empanelment of lawyers are not in consonance with the established principles to be followed for appointments . Further, adequate representations must be provided to SC/ST/OBC candidates without compromising the merits.
[K. Marimuthu v Secretary to Government, 2023 SCC OnLine Mad 1987, decided on 31-03-2023]
Advocates who appeared in this case :
For Petitioner: No Appearance;
For Respondents: Senior Panel Counsel M. Arvind Kumar, Advocate T. Poornam, Advocate V. Kalyana Raman, Advocate G. Sasee Dhevi, Advocate F.B. Benjamin George, Advocate S. Pramila, Advocate. S. Kesavan, Advocate Mohandas, Advocate Sethuraman, Advocate T. Thirupura Sundari, Advocate Y. Jyothish Chander, Advocate T. Hemalatha, Senior Counsel Srinath Sridevan, Advocate M. Muthuperiyasamy, Advocate P.S. Ramesh, Advocate R. Imayavaramban, K Advocate .Balamurali, Advocate A. Ilangovan.