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In a decision dated 3rd October, 2012 the Delhi High Court in a judgment by Justice Suresh Kait has ordered the Department of Industrial Policy & Promotion (DIPP) to forward to the Appointment Committee of Cabinets (ACC) the final recommendations of the Selection Committee which had interviewed applicants for the position of Technical Member at the Intellectual Property Appellate Board (IPAB). The judgment can be accessed over here.
The Selection Committee, constituted by the DIPP, had initially interviewed eight applicants for the position of Technical Member and had selected two of the applicants. The first person on the final list was V. Ravi, a former Registrar at the Trade Marks Registry. The second person on the final list, and the petitioner in the present case, was Mr. Sanjeev Kumar Chaswal, an advocate and trademark agent. The Selection Committee had placed Mr. Chaswal’s name on the final panel subject to his qualification and experience as a trademark lawyer being verified by Ms. S. Usha, the Vice Chairperson of the IPAB. After verifying Mr. Chaswal’s experience, Ms. S. Usha, who was also on the Selection Committee, sent a letter to the DIPP disagreeing with Mr. Chaswal’s appointment. In pertinent part she stated:
“I am of the opinion that Shri Sanjeev KR Chaswal is not qualified for appointment as Technical Member as contemplated under the provisions of the Act.
5. I, therefore, do not approve the candidature of Shri Sanjeev KR Chaswal as he does not fulfil the eligibility conditions as prescribed under section 85(4) (b) of the Trade Marks Act, 1999.”
She had come to the above conclusions based on Mr. Chaswal’s work experience which was submitted as a part of his application. The DIPP accepted her recommendation and did not forward Mr. Chaswal’s name the Appointment Committee of Cabinet (ACC), the final authority for all such appointments to tribunals. Instead the DIPP put out a fresh call for applications for the post. Thereafter, Chaswal filed a writ petition before the Delhi High Court challenging the DIPP’s decision to drop him from the panel which was forwarded to the ACC.
In pertinent part, Mr. Chaswal cited a circular of the government which prohibited Departments from scrapping the final panels of Selection Panels. The circular required all panels to be forwarded to the ACC for final decisions. Citing this circular as authority, the Court directed the DIPP to follow procedure and forward to the ACC the name of Mr. Chaswal for the post of Technical Member. In pertinent part the Court held that the very same Selection Committee could not reject the name of a person that it had selected by itself. In pertinent part it stated “The case of the petitioner was also not sent before the ACC. The Selection Committee first selected the petitioner thereafter itself rejected the same.” Further, it also set aside the opinion of S. Usha and the subsequent actions. “Consequently, the opinion given by Ms. S. Usha, Vice Chairman, IPAB vide D.O.Dy. No.9369/2010 and subsequent action taken is set aside.”
The ball is now in the ACC’s court. The ACC still has the liberty to reject Mr. Chaswal’s name for the post of Technical Member. In the past the ACC has known to send back names when it was not satisfied with the panels forwarded by Selection Committee.
Hatip: Shivprasad Wanwe
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