Litigation Management in CBEC - Govt Appoints 251 Standing Counsels - Rescinds 111
BY an order dated 9th June 2016, the President of India was pleased to appoint 251 Senior/Junior Standing Counsels to handle litigation of Indirect Taxes before various High Courts and other fora. Some of them were appointed in 2011 or earlier and their term had ended on 14.10.2014. They were reappointed on 9th June 2016.
Within ten days on 18th June 2016, the CBEC by an Order rescinded the appointment of 111 of those counsels. These are counsels who were already on the panel as on 14.10.2014.
Can the CBEC rescind an order of appointment made by the President of India? These appointments have a long story behind them.
The Department had been assigned the powers by Ministry of Law & Justice to empanel Senior and Junior Standing Counsels to defend the Department at various High Courts, since 2008.
In this regard, Board issued a letter in F.No.278A/43/2007-dated 07.06.2011- Legal alongwith a D.O. letter dated 05.12.2007 of the then Member (L&J). The said D.O. letter specified the procedure of Appointment of Counsel and Renewal of their terms. This letter dated 05.12.2007 also specified the constitution of the Committees of Chief Commissioners for finalizing the nominations received from the Counsels for empanelment. Based on the workload of pendencies and real time work of litigation across various zones; it had been decided to earmark specific number of senior and Junior Standing Counsels to each of the High Courts falling under the jurisdiction of the respective zones.
Accordingly, the Board appointed Counsels on 15.10.2011 whose term ended on 14.10.2014.
In March 2014, the Board asked the Chief Commissioners to urgently initiate appointment of the panels of Standing Counsels for the period from October 2014 to October 2017.
As per the 2007 instructions, the appointment of the existing counsels can be renewed:
Proposals for renewal of terms of the Counsels should be submitted to the Board at least 3 months before the expiry of the existing term. The renewal of a term of a Counsel can be made for a period of three years if his performance is found to be satisfactory. Before making recommendation for renewal of appointment of the Counsel, the Chief Commissioner should necessarily make an evaluation of the performance of the Counsel during the preceding term and forward, it to the Board alongwith the proposal for renewal.
In June 2015, the Board realised that it was all wrong and the process had to be gone through again. The problem was:
Grievances have been expressed by some of the counsels to the effect that in case of fresh appointees interview is prescribed as mandatory requirement whereas in the case of extension of the term of the counsels on panel, the extension is granted on the basis of performance evaluation only without any interview. Thus the fresh applicants do not have fair chance of being empanelled in comparison to those already empanelled. In order to take care of the said grievance, Board has decided that interview shall be mandatory in all the cases whether for recommending an extension or fresh empanelment .
So, the Board asked the Chief Commissioners to undertake afresh the process of constitution of the panel for Senior/Junior Standing Counsels.
It took exactly a year for the Board to appoint 251 counsels on 9th June 2016. And on 18th June 2016, Board has rescinded the appointment of 111 ‘renewed' Counsels. Board worked on a Saturday to rescind the appointments.
CBEC Order in F.No.278A/21/2015-Legal., Dated: June 18, 2016