Hon'ble Mrs. Sangeeta Chandra,J.
1. Heard Sri T.P. Singh, learned Senior Advocate assisted by Sri Sanjay Kumar Om on behalf of the petitioners, Sri Ashok Mehta, learned Additional Solicitor General assisted by Sri Manish Goyal, Sri Shiv Kumar Pal, Sri Satish Kumar Rai and Sri Saurabh Srivastava, learned advocates on behalf of the Railways-respondents no.1 to 8, Sri Ajay Rajendra, learned advocate for the respondent no.9 and Sri Sanjay Kumar Tiwari, learned advocate for the respondent no.10.
2. This petition has been filed by nine advocates practicing in the High Court at Allahabad for challenging the panel of advocates notified by the Ministry of Railway dated 09.11.2016 for representing the Railways before the High Court as well as before the Central Administrative Tribunal (hereinafter referred to as the 'CAT') Bench at Allahabad. The total number of recommendations made are 121. Some of the advocates who have been empanelled under the aforesaid notification have been impleaded by name as respondents no.9 to 20 in representative capacity. Appearance has also been put in on behalf of some of them in the matter as detailed above.
3. It is with the consent of the parties that we proceed to decide the present writ petition finally on the basis of the affidavits which have already been exchanged and the records which have been produced before this Court.
4. The petitioners before this Court claim that they were empanelled for representing the Railways in cases before the Hon'ble High Court as well as the CAT at Allahabad in the year 2010. In the order of empanellment it was mentioned that the term of such engagement will be for three years or till further orders, whichever is earlier. The term of their engagement was extended from time to time. It is their case that at no point of time any complaint against any advocate representing the Railways in the High Court or any advocate representing the Railways in the CAT was ever made with regard to their performance. The last extension granted in favour of the petitioners is dated 28.07.2016 wherein it has been notified that the panels which are in existence would continue till formation of new panels.
5. With the issuance of panel impugned in the present writ petition dated 09.11.2016, the engagement of petitioners as panel lawyers has come to an end. Hence, this petition.
6. Sri T.P. Singh, learned Senior Counsel on behalf of the petitioners contends that the procedure in the matter of selection of panel lawyers by the Railways is laid down under the circular issued by the Ministry of Transport, Department of Railways dated 05.11.1985, a copy whereof is enclosed as Annexure-6 to the writ petition. It is stated that this direction of the Ministry was reiterated by the Ministry of Railways, Government of India vide its letter dated 27.07.2015, copy whereof is enclosed as Annexure-7 to the writ petition. It is the case of the petitioners that there has been gross violation of the procedure so prescribed while preparing the notification of engagement of panel lawyers both senior and junior dated 9.11.2016. Therefore, the entire panel is liable to be set aside.
7. It is explained to the Court that the existing lawyers have a legitimate expectation of their engagement being renewed especially in the circumstance when no adverse report had ever been submitted or received qua their work as panel lawyers and further the Zonal Railways which had actually overseen the work of the panel advocates had made a recommendation for the renewal of their term as panel lawyers. It is, therefore, submitted that there was no material with the Ministry of Railways for not granting such renewal in favour of the petitioners and for notifying a panel after excluding the name of the petitioners.
8. The other limb of the argument advanced before us is that from a simple reading of the procedure which has been prescribed under the circular dated 05.11.1985 as reiterated vide letter dated 27.07.2015, is that the recommendation for empanellment of an advocate for the Railways both senior/junior is to emanate from the Zonal Railways. The Zonal Railways is obliged to recommend names of one and a half times the total number of advocates required to the Railway Board through legal adviser. The Board has been conferred a discretion to select the requisite number of panel lawyers from the panel so recommended. It is submitted that the Railway Board on its own cannot add any name to the panel so recommended, it can at best not select a candidate recommended for various reasons and if the number of advocates, ultimately found to be suitable for empanellment as per the recommendation of the Zonal Railways is short, viz-a-viz, the number of panel advocates required, then Board is to ask for a fresh panel from the Zonal Railways.
9. From the letter of the legal adviser to the Board dated 29.12.2016 as was produced before the Court by the Railway authorities itself, it is apparent that the panel which had been notified was based on the assessment during personal interaction and recommendation of the Legal Adviser along with other officers of the Railways. This interaction had taken place on 19.08.2015, 20.05.2015 and 21.08.2015 at Allahabad between 10.00 hrs to 17.00 hrs each day and six hundred and odds advocates are stated to have interacted with by the Legal Adviser, Railway Board along with the Deputy Legal Adviser, Senior Law Officer of various Zonal Railways along with Deputy CLO of Court.
10. Responding to the case set up by the petitioners, Sri Ashok Mehta, learned Additional Solicitor General and Sri Manish Goyal, learned Counsel on behalf of the Union of India and Ministry of Railways submitted before us that under the letter of Ministry of Railways dated 27.07.2015 after reiterating that there should be compliance of paragraphs (3) v, vi, viii and ix of the instructions dated 05.11.1985 referred to above, the legal department may follow procedure for short listing by way of personal interaction or otherwise. It is therefore, submitted that under the letter dated 27.07.2015, interaction is permissible for the purposes of empanellment of advocates for Railways. Therefore, preparation of panel based on the interaction which had taken place on 19.08.2015, 20.05.2015 and 21.08.2015 cannot be faulted with. It is then submitted that the Railways has selected suitable candidates in its best interest to ensure that it is suitably represented in cases before the High Court as well as before the CAT at Allahabad. According to the Counsel for the Railways and the Union of India, there is no complaint of any uncalled favoritism in favour of selected candidates or there being any arbitrary selection of the candidates. The engagement is of a professional to represent the Railways and therefore, this Court must permit some moments in joints in the matter of selection/emapenallment of the advocates.
11. On behalf of the Railways, it is further pointed out that from the distribution of work among the advocates who were earlier empanelled for the Railways, enclosed at page 98 of the paper book, it will be seen that there has been unfair distribution of work among the panel lawyers while some have been provided hundred of cases in a particular year while others have not been allotted even a single case. It is, therefore, submitted that the recommendation made by the Zonal Railways on the basis of such arbitrary distribution of work cannot be acted upon and cannot be said to be the true assessment of the earlier panel lawyers so as to consider their case for renewal. It is submitted that the Railways has therefore, decided not to accept the recommendation made by the Zonal Railways and has proceeded to notify a new panel altogether. However, from the records, it is noticed that one Sri Rajnish Kumar Rai and Sri S.K. Mishra have been empanelled again but their empanellment is also based on interaction and not their performance in the previous years.
12. On behalf of the Railways, it is also contended by Sri Mehta that although the petitioners have prayed for quashing of the panel, there is no prayer for them being continued as panel lawyers, therefore, no effective relief has been prayed for by the petitioners. They will not gain anything even if the notified panel is set aside by this Court.
13. So far as the private respondents are concerned, on their behalf it is contended that the petitioners had participated in the interaction without any protest and therefore, they cannot be permitted to invoke the writ jurisdiction on being unsuccessful inasmuch as having taken their chance and having lost, it is not open to them to question the very process of interaction. This writ petition, is therefore, liable to be dismissed at the threshold.
14. It is then contended that the petitioners had interacted with the legal adviser and other officials who had visited Allahabad on 19.08.2015, 20.08.2015 and 21.08.2015. They have not been found suitable for the purposes of empanellment in preference to the respondents by the legal adviser and other officials present. It is with reference to such consideration that the new panel has now been notified. It is explained that the petitioners had been earlier empanelled at the whims and fancies of the authorities concerned and their term had been extended without evaluation of their actual performance in the court cases. Any order from this Court interfering with the panel now notified would result in restoration of the earlier illegal panel. It is therefore, submitted that this Court may not exercise discretion in favour of such petitioners. It is submitted that renewal is not a right. The recommendation made by the Zonal Railways is not statutory and it is always open to the Railway Board to disagree with the recommendation made by the Zonal Railways and to take its own decision.
15. In rejoinder affidavit, Sri T.P. Singh, learned Senior Counsel reiterated the submission made earlier and pointed out that the petitioners were asked to appear for interaction with the legal adviser and other officials but the procedure for selection cannot be different from the one which has been provided for under the letter of Ministry of 1985 which has been reiterated in 2015. It is stated that at no point of time, the petitioners were informed that the selection for empanellment would depend upon their performance during their interaction with the legal adviser and other officials. It is only when this Court examined the original records then it has been disclosed that the empanellment has been done based on the performance assessed through interaction. It is, therefore, submitted that the contention raised on behalf of the private respondents has no substance.
16. Sri T.P. Singh before closing his submission made certain recommendation which may be directed to be adopted by the Railways in the overall interest of an institution for being represented by competent independent lawyers selected after following a transparent procedure and for that purpose, he has referred to the decision of the Apex Court reported in (2016) 6 SCC 1, State of Punjab and Another Vs Brijeshwar Singh Chahal and Another.
17. We have heard Counsel for the parties and examined the records.
18. We may, at the very outset refer to the judgment of the Apex Court in the case of State of Punjab and Another Vs Brijeshwar Singh Chahal and Another reported in (2016) 6 SCC 1 wherein the legal propositions have been summarized in paragraph 41, which reads as under:-
"41. To sum up, the following propositions are legally unexceptionable:
41.1. The Government and so also all public bodies are trustees of the power vested in them.
41.2. Discharge of the trust reposed in them in the best possible manner is their primary duty.
41.3. The power to engage, employ or recruit servants, agents, advisors and representatives must like any other power be exercised in a fair, reasonable, non-discriminatory and objective manner.
41.4. The duty to act in a fair, reasonable, non-discriminatory and objective manner is a facet of the Rule of Law in a constitutional democracy like ours.
41.5. An action that is arbitrary has no place in a polity governed by Rule of Law apart from being offensive to the equality clause guaranteed by Article 14 of the Constitution of India.
41.6. Appointment of Government counsel at the district level and equally so at the High Court level, is not just a professional engagement, but such appointments have a "public element" attached to them.
41.7. Appointment of Government Counsel must like the discharge of any other function by the Government and public bodies, be only in public interest unaffected by any political or other extraneous considerations.
41.8. The government and public bodies are under an obligation to engage the most competent of the lawyers to represent them in the Courts for it is only when those appointed are professionally competent that public interest can be protected in the Courts.
41.9. The Government and public bodies are free to choose the method for selecting the best lawyers but any such selection and appointment process must demonstrate that a search for the meritorious was undertaken and that the process was unaffected by any extraneous considerations.
41.10. No lawyer has a right to be appointed as a State/Government counsel or as Public Prosecutor at any level, nor is there any vested right to claim an extension in the term for which he/she is initially appointed. But all such candidates can offer themselves for appointment, re-appointment or extension in which event their claims can and ought to be considered on their merit, uninfluenced by any political or other extraneous considerations.
41.11. Appointments made in an arbitrary fashion, without any transparent method of selection or for political considerations will be amenable to judicial review and liable to be quashed.
41.12.Judicial review of any such appointments will, however, be limited to examining whether the process is affected by any illegality, irregularity or perversity/irrationality. The Court exercising the power of judicial review will not sit in appeal to reassess the merit of the candidates, so long as the method of appointment adopted by the competent authority does not suffer from any infirmity. "
19. From the aforesaid legal propositions laid down by the Apex Court, it is now well established that the engagement of lawyers for representing the Government/Institutions like Railways, is not just a professional engagement, such appointments have a 'public element' attached to them and that Government and Public Bodies are under legal obligation to engage the most competent of the lawyers to represent them in the courts for it is only when those appointed are professionally competent that public interest can be protected in the courts. The Apex Court has further clarified that the Government/public Bodies can frame a procedure for selection of lawyers but the procedure must reflect that there is a search for the meritorious and the process is unaffected by any other extraneous considerations. Lastly, it has been held that the appointments must be made through a transparent method of selection and in absence thereof, it would be amenable to judicial review and liable to be quashed.
20. The Apex Court has further explained with regards to the right of the existing panel lawyers to seek extension/renewal of their term in paragraphs 48, 49, 49.1 and 49.2 which are quoted below:-
"48. We have while dealing with Question (i) held that no lawyer has a right to be appointed as State Government counsel or as public prosecutor at any level nor does he have a vested right to claim extension in the term for which he/she is initially appointed. We have also held that all candidates who are eligible for any such appointment can offer themselves for re-appointment or extension in which event their claims can and ought to be considered on their merit uninfluenced by any political or other extraneous consideration. It follows that even the writ-petitioners cannot claim appointment or extension as a matter of right. They can at best claim consideration for any such appointment or extension upon expiry of their respective terms. Such consideration shall, however, have to be in accordance with the norms settled for such appointments and on the basis of their inter se merit, suitability and performance if they have already worked as State Counsel. To that extent, therefore, there is no difficulty.
49. The question is what should be the mechanism for such consideration. There are in that regard two major aspects that need to be kept in mind.
49.1. The first is the need for assessment and requirement of the State Governments having regard to the workload in different courts. As noticed earlier, appointments appear to have been made without any realistic assessment of the need for State Counsel at different levels. Absence of a proper assessment of the requirement for State Counsel leads to situations that have been adversely commented upon by the CAG in his report to which we have made a reference in the earlier part of this judgment. The problem gets compounded by those in power adding to the strength of Government Advocates not because they are required but because such appointments serve the object of appeasement or private benevolence shown to those who qualify for the same. The CAG has in that view rightly observed that there ought to be a proper assessment of the need before such appointments are made.
49.2. The second aspect is about the process of selection and assessment of merit of the candidates by a credible process. This process can be primarily left to the State Government who can appoint a Committee of officers to carry out the same. It will be useful if the Committee of officers has the Secretary to Government, Law Department, who is generally a judicial officer on deputation with the Government as its Member- Secretary. The Committee can even invite applications from eligible candidates for different positions. The conditions of eligibility for appointment can be left to the Government or the Committee depending upon the nature and the extent of work which the appointees may be effected to handle. The process and selection of appointment would be fair and reasonable, transparent and credible if the Government or the Committee as the case may be also stipulates the norms for assessment of merit and suitability."
21. We may also emphasize that in paragraph 49.2 the Supreme Court has held that, if required, applications can be invited from eligible candidates for different categories.
22. Viewed in the aforesaid legal background, we find that the Railways, as early as in the year 1985 had laid down a procedure in the matter of selection of advocates for representing the Railways in various courts including the High Court and the CAT. It would be worthwhile to reproduce the circular dated 05.11.1985 in its extenso:-
"GOVERNMENT OF INDIA (BHARAT SARKAR) MINISTRY OF TRANSPORT (PARIWAHAN MANTRALAYA) DEPARMENT OF RAILWAYS (RAIL VIBHAG) (RAIL BOARD) No. 81/LC/14/N/1 Rail Bhavan New Delhi 01, Dated 5th November 1985 To, The General Managers All India Railways, C.L.W, D.L.M & I.C.F The Director General R.D.S.O Lucknow Subject: Appointment of Railway Advocate in various Courts.
The procedure to be followed for engagement of railway advocates for various High Court and subordinate courts circulars dated22.03.1985, has been further reviewed and it has been decided by the board that hereafter the following procedure should be followed for appointment of new advocates or renewal of the tenure of the existing advocates.
I. In respect of High Court :
VIII. The Zonal railways should forward their recommendation to the legal adviser of the Board who will scrutinize them, before, the case is submitted to the Board and T.M for approval. IX. The Zonal railways shall make appointment out of the eligible only.
II. In respect of suborning to Court.
The zonal Railways should select advocate for inclusion in the panel for railway advocate in subordinate courts on the basis of independent inquires made by them. The names of advocate whom they wish to consider for appointment will have to be cross checked with the District Judge, or the senior most available Judge and or the government advocate. The Final authority for appointment of advocate in the Subordinate Court will be the General Manager.
Please acknowledge receipt.
(Hindi version will follow) (Dr.P.C.Rao) Legal Advisor Copy to Law Officers, All Indian Railway & I.C.E with five spares."
23. In the letter dated 27.07.2015, the Ministry of Railways had reiterated that the existing instructions dated 05.11.1985 shall be complied with for the purposes of taking action as per para (3) v, vi, viii and ix for CAT/High Court and thereafter Legal Department may follow a procedure for short listing by way of personal interaction or otherwise. In the other paragraph it has been reiterated that in view of the above, Zonal Railway may send the list/recommendations of existing and fresh advocates before the date of personal interaction.
24. From a simple reading of the circular dated 05.11.1985 along with the circular dated 27.07.2015, it will be seen that the Zonal Railways are under obligation to select advocates for the purposes of inclusion in the panel for Railways for various courts including the High Court and the CAT. The panel to be recommended by the Zonal Railways is to consist of names of advocates one and a half times the total number of advocates required to be empanelled so that the Board may have an opportunity for making selection from among the recommended advocates. Under the circular dated 05.11.1985, there is no provision for any interaction being undertaken in the matter of selection of advocates who had been recommended by the Zonal Railway before framing of the final select panel. By means of the circular dated 27.07.2015, for short listing of the recommended candidates, interaction or otherwise had been made permissible. But on a joint reading of the two circulars, specifically second paragraph of the letter dated 27.07.2015, it is apparent that such interaction can only take place with advocates who have been recommended by the Zonal Railways and nothing beyond that. For the empanellment of the advocate, Zonal Railways is to collect the material under the circular of 05.11.1985 with regard to qualification, age, experience and general reputation and standing as an advocate. In respect of the existing panel lawyers, the Zonal Railways has to make report of their performance as a Railway Advocate. We have, therefore, no hesitation to record that interaction, if any, in terms of the circular dated 27.07.2015 could have been undertaken by the legal adviser along with other officials of Railway only with the advocates who had been recommended by the Zonal Railways and no independent name could have been called for by the legal adviser beyond the names recommended in terms of the circular dated 05.11.1985 by the Zonal Railways.
25. Even if, in a given case, it is found that after consideration of names recommended by the Zonal Railways, the Board is not able to find suitable number of advocates to be empanelled then in the light of the scheme contemplated under the circular dated 05.11.1985 read with circular dated 27.07.2015, the only way open to the Board is to ask for a fresh panel from the Zonal Railways. The Board while sitting at Delhi is not expected to have knowledge of the required information of advocates who have to be appointed at Allahabad High Court as well as the CAT Bench at Allahabad. Therefore, calling of the candidates merely on making of application by the legal adviser for the purposes of empanellment as advocates for the High Court as well as the CAT, in our opinion, runs contrary to the entire scheme as is borne out form the circulars of 1985 and 2015.
26. It is admitted to the parties before us and is also borne out from the records that the Zonal Railways had made recommendation of advocates for the purposes of empanellment both senior/junior in following manner:-
Sr. no.
Zonal Railway High Court (Senior Advocates +Junior Advocates) CAT (Senior Advocates +Junior Advocates) 1 NER 7 9 2 ECR 36 7 3 CORE 16 6 4 NCR 6 6 Note:- Core also recommended 5 special counsels for High Court and 8 special counsels for CAT.
27. It will be seen that against this recommendation only 11 have been empanelled by the Railway Board on the basis of the recommendation, made after interaction which had taken place at Allahabad on 19.08.2015, 20.08.2015 and 21.08.2015. The remaining 110 advocates who have been empanelled are all those who had merely submitted their application. Their names were never recommended by the Zonal Railways and they have been selected only on the basis of the performance during interaction which had taken place with the legal adviser and other officials of the Railways. This, in our opinion is not the process contemplated in the circular referred to above. Out of the 11 persons who have been directed to be appointed on the basis of the panel prepared by the Zonal Railways but in fact the recommendation of the Zonal Railways was in favour of two persons only while nine others have been empanelled/appointed without their being any favourable recommendation of the Zonal Railways.
28. We may reiterate that the interaction as contemplated by the circular of 2015 could be a method for examining as to which of the candidate recommended by the Zonal Railways was suitable to be empanelled for the Railways. It cannot be used as a method for inducting new names, which have not been recommended by the Zonal Railways.
29. What is further bad to note is that we under our order dated 13.12.2016 have required the Counsel for the Union of India to inform the Court as to whether any record in respect of the interaction which had taken place at Allahabad on 19.08.2015, 20.08.2015 and 21.08.2015 has been maintained on the basis whereof a select panel of 121 names has been notified after more than three months of such interaction to be precise on 29.12.2015.
30. We have been informed that no such record exists and therefore, it appears that the panel has been notified only on the basis of memory of the legal adviser and other officials who could retain the performance of 600 candidates for the purposes of finalization for these 3 months. The memory of the legal adviser and the other officials needs to be appreciated. However, in our opinion such is not expected from a common human being. We record that the panel has been made on mere whims and fancies of the legal adviser and not based on any material which could reflect the basis for their selection. Such practice must stop. If any, interaction is to take place, there must be some material on record so reflect as to what has actually been the performance of the candidates concerned and it cannot be left to the memory of the legal adviser or other officials especially when the number of candidates interacted with runs into hundreds.
31. Another issue which needs consideration before us is with regards to the right of the existing panel lawyers in the matter of their re-engagement.
32. The Apex Court in the case of State of Punjab (Supra) held that no panel of lawyers has right to renewal and their right is of consideration only. In the facts of the case, we find that such consideration did take place at the level of Zonal Railways which had actually evaluated the work of Railways in previous so many years and then finally recommended all the petitioners among others for re-engagement/renewal of their term. The recommendation so made by the Zonal Railways is objected to by the Ministry of Railways in the counter affidavit filed by Sri G.S. Yadav, Legal Adviser to the Railways on any ground whatsoever. On the contrary in paragraph 19 of the affidavit it is stated that the performance report of the existing advocates had been prepared by the Zonal Railways on the basis of independent inquiries and performance. It is, therefore, writ large that the Railways has no material with it to take any decision contrary to the recommendation made by the Zonal Railways in the matter of renewal/re-engagement of the earlier advocates based on their performance. It is worthwhile to reproduce paragraph 19 of the counter affidavit of Sri G.S. Yadav, Legal Adviser referred to above:-
"19.That Zonal Railways have made independent enquires in respect of those who have participated in the interaction as provided in the letter no.84/LC/1/N/1 dated 05.11.1985. Performance Report in respect of existing advocates had also been prepared by Zonal Railways. Further, on the basis of independent enquires and performance report, the Zonal Railways had recommended names of Advocates for consideration. While forming the new panel of Railway Advocates for High Court and CAT Bench at Allahabad the Bio-Data of the Advocates received during the personal interaction were also scrutinized."
33. It is also worthwhile to reproduce paragraph 18 of the judgment of the Apex Court in the case of State of Uttar Pradesh and Others Vs Ashok Kumar Nigam reported in (2013) 3 SCC 372, which reads as under:-
"18. The order dated 3-4-2008 is even liable to be quashed on another ground, that it is a non-speaking order also suffering from the vice of non-application of mind. As already discussed, the government has taken an enblock decision, without recording any reason, not to renew the term of any of the Government Counsel. That itself shows that there is no application of mind. In the case of Shrilekha Vidyarthi v. State of U.P., (1991) 1 SCC 212, this Court expressed the opinion that it would be alien to the Constitutional Scheme to accept the argument of exclusion of Article 14 in contractual matters. The arbitrary act of the State cannot be excluded from the ambit of judicial review merely on the ground that it is a contractual matter. The expression "At any time without assigning any cause", can be divided into two portions, one "at any time", which merely means the termination may be made even during the subsistence of the term of appointment and second, "without assigning any cause" which means without communicating any cause to the appointee whose appointment is terminated. However, "without assigning any cause" is not to be equated with "without existence of any cause"."
34. We find that absolutely no material exists on record which could show consideration of the recommendation of the Zonal Railways based on the performance report of the existing lawyers for coming to a conclusion that they had rendered themselves unsuitable for renewal. Following the judgment of State of Uttar Pradesh and others Vs Ashok Kumar Nigam, the decision of the Railways in that regard which is not based on any material, at least no material has been disclosed to Court cannot be legally sustained and has to be set aside.
35. We may record that although the recommendation made by the Zonal Railways are non-statutory as contended by the respondents but the procedure contemplated by the circulars of the Ministry which is binding upon the subordinate authorities contemplates that action has to be taken on the recommendation of the Zonal Railways and to that extent the subordinate authorities cannot act contrary to the procedure which has been prescribed under the circular of the Ministry. Legal proposition in this regard has been settled in the case of B.S. Minhas Vs. Indian Statistical Institute and Ors. reported in 1984 (SC) AIR 363.
36. Under the circular of 1985, the first thing required by the Zonal Railways was to ascertain the number of advocates required for representing the Railways before the High Court as well as the CAT and it is with reference to this number of advocates required, the panel of one and a half times the said number is to be prepared. It is not at the whims and fancies of authorities to empanel any number of advocates he so desires. In the facts of the case nothing has been brought on record to justify as to why as against the existing 44 lawyers representing the Railways, the panel has been increased to the strength of 121.
37. Having recorded our reasons as aforesaid, we are of the considered opinion that the panel notified impugned in the present petition dated 09.11.2016 is wholly illegal and has been prepared in clear violation of the circular dated 05.11.1985 which has since been reiterated vide circular dated 27.07.2015 and therefore, unsustainable in the eyes of law and is hereby quashed.
38. We direct the Railways to prepare a fresh panel of advocates for appearing before the High Court as well as the CAT at Allahabad strictly in accordance with the circular of 1985 read with circular of 2015 and in the light of the observations made by us herein above. This exercise may be undertaken within two months from the date a certified copy of this order is filed before the respondent no.2-Chairman, Railway Board, Rail Bhavan, New Delhi.
39. This takes the Court to the suggestions made by Sri T.P. Singh, Senior Advocate in the matter of adoption of transparent and fair procedure for empanellment of lawyers for the Railways so as to ensure that the best public interest is served and most competent are engaged for representing public bodies/Railways who have bulk of litigation both in the High Court as well as in the CAT. The suggestions made by Sri T.P. Singh, in our opinion need be considered by the highest policy making authority of the Railways. We may enumerate the same as under:-
(a) For attracting best possible talent to represent the Railways, it may resolve to fix a minimum experience of working by the advocates in a particular Court or Tribunal before being considered for empanellment.
(b) For inviting applications from all eligible candidates, Railways may invite the applications through notice to recognized Bar Associations of the Court/Tribunal. It may not be necessary to advertise the same in the newspaper.
(c) The number of applications received must be recorded in a Register to be prepared for the purpose. The Zonal Railways may be asked to make their recommendation in respect of each of the candidates/applicants after such independent enquiry and opinion of the authorities mentioned in the circular dated 05.11.1985, namely, Heads of Branches of the Union Ministry of Law and Justice/the Senior Central Government Counsel/President of the Bar Council/ Bar Association and other eminent, counsel practicing in the High Court. This would serve a laudable purpose of receiving correct and true opinion on the capability and integrity of the advocate willing to be appointed as a panel lawyer.
(d) There must be some record maintained, if any, interaction is held forming basis for empanellment of advocates by the Railway Authorities, so that on a challenge being made before the competent Court of Law at least there may be something to reflect upon the basis on which a particular candidate has been selected while other has been non-suited.
(e) In courts where advocate rolls have been prepared, the Railways must insist upon the applicant concerned to communicate his roll number and his experience of work in the court be counted from the date of enrollment.
40. Since under the National Policy for Litigation one of the recommendations made is that uncalled for appeals are not to be contested and similarly uncalled of appeals are not to be filed by the department, it would be but necessary that the advocate concerned empanelled by the Railways should have the courage of taking such decision prescribing a tenure of panel lawyer will help in a long way.
41. Lastly, in the matter of distribution of work among the panel lawyers a uniformity must be maintained so that the performance of each empanelled advocates can be assessed in true sense. The Zonal Railways may prepare a roster in the matter of allocation of work to its panel lawyers and it be ensured that such distribution is as far as possible is equitable.
42. The writ petition stands allowed.
(Mrs. Sangeeta Chandra,J) (Arun Tandon,J) Order Date :- 17.12.2016 Kirti