More controversy during appointments to IPAB: Delhi HC rules against DIPP


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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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Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

16 comments.

  1. AvatarAnonymous

    Prashant Reddy;

    Reading last lines of your blog post, firstly, it shows that you are not happy with the judgement,secondly since how many years you Chaswal, as far as I feel your blog post is to inform the readers of the recent development, your job should be restricted to that extent but your comments at last of your post shows some bias against the candidate, which is not good on your part to say on the blog post.

    Reply
  2. AvatarAnonymous

    I think your blog post is not comprehensive as the said judgment has observed certain facts about the appointment of certain members of IPAB like S Usha & Obidur rehman. The court has also indited S Usha for not making due diligence in the merits of the Petitioner’s Case.

    Kindly see the following observations in judgment:

    “15. The learned counsel has further submitted that the respondent has used different yardsticks in appointments of other Member Technical in IPAB. Learned counsel has pointed out that verification of documents submitted by Sh. Obaidur Rehman, who was appointed on the post of Member Technical (Trademarks) in IPAB in the year 2004 relying on false case list thereby claiming to have appeared in a trademark matter in England in the year 1935.

    16. Even bio-data of Ms. S. Usha, selected as Member Technical in IPAB shows that she was working as Associate at the time of her appointment as Member. She herself stated that she was associated with Mr. V. Veeraraghvan, Advocate since 1990 preceding to her
    appointment as Member. The respondents have themselves admitted in their so called official communication dated 18.01.2011, which is annexed with the rejoinder.

    44. But the fact remains that Ms. S. Usha, Vice-Chairman, IPAB did not verity about the experience from Anup Singh and Co. nor verified the list of cases pending or otherwise in High Court or District Court submitted by the petitioner as she has opined that no opposition case has been filed.”

    Hence it raises serious questions about the competency of the Board Members & The appointments of DIPP which has no procedure but done on bias.

    Reply
  3. AvatarPrashant Reddy

    Hi Anon,

    Paragraphs 15 & 16 are mere repetitions of the petitioners submissions and not a finding by the Court.

    As for para 44, it is a poorly researched conclusion by the Court.

    I read Usha’s letters, as reproduced in the judgment and I think she has come to a fair conclusion based on the facts. Clearly, an advocate applying for an adjudicatory position on the IPAB is expected to have some experience in contentious trademark cases. The petitioner was able to provide only one judgement on which his name appeared and was not able to identify a single opposition case in which he participated.

    Merely filing trademark applications does not in anyway demonstrate the skills required by a Technical Member on the IPAB.

    Prashant

    Reply
  4. AvatarAnonymous

    prashant

    After reading your many posts so far, one thing came up in my mind that invariably you have been dissecting the judgments of various High Courts and through your blogging exposure, you have many years experience with you, may i know, when did you passed out your LLB and when you have registered as advocate with Bar Council of India, can you further inform me through this blog that how many IPR cases you have filed and litigated independently in High Courts so far.

    Reply
  5. AvatarAnonymous

    Exactly so did USHA verify records court held no; USHA herself did only 1 Case as a lawyer in her Bio Data so then what is the Criteria;

    What kind of Report it is when u dont verify the facts, the PANDA judgment & Records of HC state that Petitioner appeared in These cases and to say he did not appear is like saying i am blind;

    Then USHA did not verify FACTS with Anoop Singh Co, Stalwarts in IPR then i guess there are lobbies & govt pressure at work to stop the petitioner.

    Read the Full Judgment why court has quashed USHA’s Opinion ! Your comment reflects poorly on ur knowledge or may be you dont want to see the other side.

    Reply
  6. AvatarAnonymous

    I submit that PETITIONER has various judgments reported in PTC, filed various APPLICATIONS, OPPOSITIONS, & appeared in Many Trademark Matters ! Check the Facts before you dismiss his candidature;

    All the record, recommendation letters were put before court so dont assume that even court was wrong.

    Ms USHA & OBIDUR REHMAN’s BIO DATA reveals what lies & wrong facts have been stated before court. The said bio data was procured through RTI, if you are so enquisitive plz verify urself. Dont speculate as USHA’s BIODATA says appeared in 1 Case only then how come she is Eligible;

    Obidur Reham says i did cases even before i am BORN;

    I personally have seen the bio data put in court & seen arguements. The court was zapped.

    Further there was an APPLICATION of CrPC alleging that Ministry delibrately hid the remarks of Oficials on USHA’s Opinion. The Court has observed it.

    Surely before opening loud mouth see the petition, docs taken from RTI by petitioner like BIO DATA submitted by USHA etc; Check PTC, Records of the Registrar & HC.

    All the above was looked into by Court so be judgmental or biased in opinion.

    Reply
  7. AvatarAnonymous

    I think we should forward ur Blog Post to the Court Concerned for taking SUO MOTTO contempt against u as u have spiced up ur post at someone’s behest & stated that even court did not Research. Thereby passing remarks on the competancy of the Court.

    Reply
  8. AvatarAnonymous

    Since, when Prashant, you have started job of god man of forecasting fates of people, whom you do not know a bit, the way you have stated your last two lines, it simply transpires that either you are already aware of the outcome or fate of the petitioner appointment in the ACC or you have mentioned these lines deliberately to oust petitioner from the Member Technical post on behalf of someone or you have aired these view solely on the behest of or as mouth piece (His Master’s Voice ) of a person, whose biased report has been quashed by the Hon’ble High Court for the reasons. I do not need to elaborate on this as the judgment is self explanatory.

    As one can clearly see in the Judgment that how DIPP has played a game to oust Mr. Chaswal candidature from Member Technical Post, the DIPP even went to the extent of forging the document and submitted it to the court to get favourable orders, how the former acting chairman joined her hand with DIPP and calculatedly has made a report, under whose guidance and it clearly shows that how she has allowed her conscience to go or get killed in accepting the transcript dictated to her by former bureaucrat worked in the DIPP.

    So, please do not become mouthpiece of any of the person nor allow yourself or your blog to be used as pawn to settle scores through Spicyip posts, whether your last lines in the post are intentional or unintentional but are damaging for the person whose candidature at the stake, it seems, you are simply helping or rubbing the balm to someone at one end and putting the injury to someone, you may not be knowing well, your blog post should have ended at best ” consequently……………………… action taken set aside”

    Further adding spice to the lines shows that you are showing interested that the petitioner joined the job or you want to put his stakes in to limbo or simply out of your love and affection towards DIPP officials and that affection or love has forced you to write in support of DIPP, GOI or maybe you have thought that by airing these lines in support of GOI any one from PMO will read your post and will sent back the file of the petitioner after rejecting it.

    Please do not forecast or air your views, which could damage someone reputation or career, image because someone close to you does not like that person on that particular seat, so please only air or mentioned about solely recent developments in IPR or judicial fora’s without putting spice to it or siding with any of persons or institutions.

    Reply
  9. AvatarAnonymous

    I have been reading the comments being published (see above). I have been practicing IP laws for decades (appearing before District Courts, High Courts, TM Officials and IPAB) . I personally know the petitioner Mr. Sanjeev Kumar Chaswal. He has appeared in a High Court against me while being associated with another leading IP firm in Delhi which he claimed in his petition. Besides he I am appearing in the court of ACMM Delhi in one of the matters filed by Mr. Chaswal on behalf of complainant in a IP matter where the premises of my client (accused) were raided in the year 2006. The case is at the evidence stage and is fixed in Nov., 2012.
    I also have high regards for Prashant and I have been so writing in my comments on the blogs that he has been writing. Similarly with Mr. Shamnad Basheer.
    Having said so, I understand that neither Prashant nor Basheer know Mr. Chaswal personally. This perhaps is the reason that after the passing of the judgment by the Hon’ble High Court on the basis of the material produced before it by Chaswal about his appearances in different cases (see para of the judgment), Basheer and perhaps Prashant also want to see for themselves the documents when Basheer says in the end of his comments “he also pointed to the fact that Shri Usha may have been right in her assessment since you do not appear to have any contentious TM experience. If you do have this, why don’t you supply us the details. Which cases did you appear in? What qualifies you for this plum post? The mere fact that other non eligible candidates made it to the IPAB does not justify another bad appointment.”

    And what I understand is that if Mr. Basher is satisfied from the documents, then he would “appoint” or recommend for appointment of Mr.Chaswal for the post.
    Prashant, yes the contents of para 15 & 16 are arguments on behalf of petitioner, but have you gone through the facts for that? Besides you have referred to para 44. I would first copy paste the said para and then make my comments.
    “44. But the fact remains that Ms. S. Usha, Vice-Chairman, IPAB did not verity about the experience from Anup Singh and Co. nor verified the list of cases pending or otherwise in High Court or District Court submitted by the petitioner as she has opined that no opposition case has been filed.”

    Please mark the language used by the HC “submitted by the petitioner”. This presupposes that Ms. Usha was having the list of cases “submitted by the petitioner”.
    It has been stated by the HC in para 47“If the Selection Committee was of the different view, then the petitioner should have been given a chance to put his case before taking final decision.” What I presuppose is that Ms. Usha or the committee has not given chance to Mr. Chaswal “to put his case before taking a final decision” He has been condemned without having even an opportunity. Even Kasab got opportunity to defend himself in a case of terrorism having been caught at the crime spot with gun. Even he would be asked about his last with before he is hanged (if the hanging happens).

    Reply
  10. AvatarAnonymous

    I wonder what has happened to the allegation of Mr. Sanjeev Chaswal which is quoted by me from the judgment itself as below:
    “the respondent had concealed the facts from this Court as the Under Secretary of the respondent office had removed hand written comments of the Secretary, DIPP as well as date from the letter…”
    These comments have been reproduced by the HC in para 14 at page 9 to read as under:
    “It will be impossible to find candidates who are qualified & willing, we may think of amending the RR’s for the future “read” sd/- RP Singh”

    I think this is purgery.

    Reply
  11. AvatarPrashant Reddy

    Hi Anon (8:20AM),

    I don’t think either Shamnad or me have any personal grouse with the petitioner. I’m sure he’s a good lawyer and a great person. The issue over here is whether he has had prior experience in contentious trademark issues and whether he has submitted that information to the DIPP.

    I based my conclusions on the basis of S.Usha’s letter to the DIPP which is quite clear on the fact that the petitioner was unable to submit any judgments which had recorded his appearance on it. She also comments about the petitioner’s experience at Anoop Singh and Co.

    In light of these specific references in her letter, the observations of the Delhi HC really do not make sense to me. It is obvious from the letter that Usha has verified the documents by applying her mind. If the HC thought that her analysis was not up to the mark, the judge should have clearly identified the reasons for the same. The judgment fails to do so and that is my only point.

    Prashant

    Reply
  12. AvatarShamnad Basheer

    Dear Mr Chaswal (and pardon me if my assumption is incorrect):

    Prashant simply stated a point of government practice. This is my understanding as well: that the ACC is at liberty to reject your candidature if they do not find you to possess the requisite qualifications.

    So please refrain from mounting ad hominem attacks against Prashant. If you continue to do so, we will have no option than to moderate out your comments. If you wish to argue on merits and place on record your qualifications and the extent of your TM expertise for this plum post, please do so. Or if you wish, we can discuss the IPAB more generally and whether from a policy perspective, we need to change some of these eligibility criteria. To reiterate, Prashant simply stated what is largely a matter of fact: the ACC is free to reject your candidature if they do not think you worthy of the post. he also pointed to the fact that Shri Usha may have been right in her assessment since you do not appear to have any contentious TM experience. If you do have this, why don’t you supply us the details. Which cases did you appear in? What qualifies you for this plum post? The mere fact that other non eligible candidates made it to the IPAB does not justify another bad appointment.

    Reply
  13. AvatarAnonymous

    Prashant, you have assumed that Mr. Chaswal is a good lawyer. You have not stated whether you know him personally. If you happen to know practicing lawyers of IP in Delhi High Court and District Courts, you could ask them about him and his experience in IP laws. I am surprised when a lawyer (you) says that “it is clear from Usha’s letter that……” Strangely you say that “the observations of the Delhi HC really do not make sense to me”. This way Ms. USHA becomes the final authority to decide the fate of a candidate WITHOUT GIVING ANY OPPORTUNITY OF CLARIFICATION OR SO.
    Shamnad you are wrong. It was not Chaswal himself writing. I spoke to him. He was busy preparing and writing his exam.

    Reply
  14. AvatarPrashant Reddy

    Hi Anon (7:04 PM),

    How does it matter if I know of him personally or not? I have never met him and I don’t think that makes any difference.

    And why should Usha give him a chance for a clarification. Her job was to consider the material that was submitted along with the petitioner’s application. She was under no requirement to re-interview him.

    Prashant

    Reply
  15. AvatarXYZ

    Dear Anonymous: You must stop writing any further and damage Mr. Chaswal’s image. The more you defend him the more damage you are doing to him. It is so obvious from your comments that the discussion has become personal and how you are defending yourself sorry i mean Mr. CHaswal.

    Reply

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