In its annual report for the year 2012-13, available on its website, the Intellectual Property Appellate Board (IPAB) has complained about the shortage of human resources, lack of suitable infrastructure, insufficient funds and the unconstitutional appointment procedure currently being followed by the DIPP.
I reproduce the main complaints verbatim below:
“The first and foremost is the inadequacy in human resources: The phenomenal growth of the workload since inception has not been complemented by way of creation of additional posts. Despite the complete utilization of the human resources, the progress of the Board is likely to decelerate due to the shortage of staff.”
· “The second major problem faced by the Board is the lack of a suitable infrastructure for the Board both at the Headquarters and at some of the Circuit Sittings. On the positive side, the Board is likely to get some additional space that has been identified in the existing premises.”
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· “The Chairman, IPAB has filed a report before the Hon’ble Delhi High Court in L.P.A. No.86 of 2013 [Union of India v. Sanjeev Kumar Chaswal) that the constitution of the Search-cum-Selection Committee must be in conformity with the law declared by the Hon’ble Supreme Court in Union of India v. R.Gandhi (2010(3)CTC517), and that the Chairman of IPAB must head the Committee. At present, the Secretary, IPP is the Chairman and the IPAB Chairman is a Member for a Committee which selects the Vice-Chairman and Technical Members of IPAB. This report has also been served on DIPP.”
· “Finally, we must mention the allocation of insufficient funds. Owing to paucity of funds, IPAB had to reduce its circuit sittings in the last quarter of the financial year 2012-13. For the year 2013-14 also, there has been no change in the allocation of funds and the amounts under almost all the heads are similar to the ones found in 2012-13. The funds allocated are clearly insufficient. This becomes a severe handicap to the smooth functioning of the Board in all respects. The Chairman has expressed the grievous hardship that the IPAB will face in holding the circuit hearings. It is hoped that this difficulty will be resolved.”
The litigation over Chaswal’s appointment: In October, last year, we had blogged about a judgment of the Delhi High Court regarding the selection and appointment of Sanjeev Chaswal as a technical member of the IPAB. The reason for that litigation was because the DIPP had shortlisted Chaswal’s name for appointment to the IPAB but declined to forward the same to the Appointment Committee of the Cabinet (ACC) because the IPAB’s Vice-Chairperson had objected to Chaswal’s appointment on the grounds that he was not qualified for the position. She has based her assessment on the application abd supporting documents submitted by Chaswal to the DIPP. The Vice-Chairperson had to be consulted by the DIPP since there was no judicial member on its appointment committee.
Chaswal then sued the Government before the Delhi High Court which ordered the Government to follow its norms and forwarded the shortlisted names to the ACC.
The Government appealed against this order to a Division Bench of the Delhi High Court, which ordered the initial Selection Committee to reconsider Chaswal’s application, from the scratch. (That order can be accessed over here.) In furtherance of the Delhi High Court’s order, the Selection Committee was reconvened to consider Chaswal’s application. Since the IPAB Chairperson is supposed to be a member of this committee, which is headed by the Secretary of the DIPP, Justice Prabha Srideven the Chairperson was invited for sitting of the Committee. She refused to go as a member, claiming that the Supreme Court’s precedents on the point of tribunal appointment required her to be the Chairperson of the Selection Committee considering Chaswal’s appointment. She filed a report to this effect before the Delhi High Court.
Initially the Government, sought time from the Delhi High Court to consider Justice Sridevan’s objection but then just went ahead to consider Chaswal’s appointment, despite the absence of Justice Sridevan on the Committee. When the Delhi High Court was informed of the Selection Committee’s decision to recommend Chaswal’s name for appointment, it didn’t object to the absence of Justice Sridevan on the committee and merely requested the DIPP to consider Justice Sridevan’s report the next time it constituted the Selection Committee. (That order can be accessed over here)
Therefore as things stand today, Chaswal’s appointment has not been positively vetted by anybody from the IPAB and that is an unfortunate state of affairs. If the DIPP continues to treat appointments to the IPAB in such a cavalier manner, it is only going to attract more litigation.