The President of India is pleased to appoint Justice (Retd.) Manmohan Singh, Chairman, Appellate Tribunal for Forfeited Property to the post of Chairman, in the Intellectual Property Appellate Board (IPAB), Chennai, in the scale of pay as prescribed in the Tribunal, Appellate Tribunals and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017, for a period of three years with effect from the date of assumption of charge to the post, or until further orders, whichever is the earlier.
(B.S. Nayak) Under Secretary to the Govt. of India Tel: 23061257”
18.The order of appointment – as Chairperson of the Board – was amended on 29.12.2017 by the Central Government. This later order stated that the tenure of his appointment as Chairman of the Board was upto 21.09.2019 or till further orders, whichever was earlier. The later order of 29.12.2017 reads as follows:
“No. P-24017/44/2017-IPR-I
Government of India Ministry of Commerce & Industry Department of Industrial Policy & Promotion (IPR – Establishment Section) *** Udyog Bhavan, New Delhi-110 011, Dated 29th December, 2017 ORDER In supersession of this Department’s earlier order dated 20th July, 2017, the President of India is pleased to entrust the additional charge of the post of Chairman, Intellectual Property Appellate Board (IPAB) to Justice (Retd.) Manmohan Singh, Chairman, Appellate Tribunal for Forfeited Property (ATFP) in addition to his current duties from the date of assumption of charge of the post up to 21.09.2019 i.e. till his tenure on the post of chairmen, ATFP or until further orders, whichever is earlier.”
(B.S. Nayak) Under Secretary to the Govt. of India Tel: 23061257”
19.The judgment in Rojer Mathew by the five judge Constitution Bench was delivered on 13.11.2019. That judgment pronounced upon the validity of the 2017 Rules and quashed them. However, before the 2017 Rules were declared unconstitutional, the tenure of the incumbent to the office of the Chairperson of the Board ended on 21.09.2019. This Court recollects that the operation of the 2017 Rules had not been suspended during the pendency of the petitions challenging them (i.e. Rojer Mathew batch of cases). During the pendency of the said batch of petitions, this court had occasion to issue a series of interim orders. The order dated 20.03.2018 clarified a previous order (dated 09.02.2018 (in Kudrat Sandhu v. Union of India WP 279/2017) as follows: “(iii) The tenure of the Chairperson and the Judicial/Administrative/Expert/Technical Members of all the Tribunals shall be for a period of five years or the maximum age that was fixed/determined under the old Acts and Rules;”
20.On 16.07.20183, the following directions in regard to the age of the superannuation of Member of the Income Tax Appellate Tribunal (ITAT)were made: “At this juncture, we may note that there is some confusion with regard to the Income Tax Appellate Tribunal (ITAT) as regards the age of superannuation. We make it clear that the person selected as Member of the ITAT will continue till the age of 62 years and the person holding the post of President, shall continue till the age of 65 years.”
21.In the same petition, the court had occasion to again clarify the previous orders, in the context of the President and Members of the Customs Excise and Service Tax Appellate Tribunal (CESTAT). It was expressly stated that the tenure of members would be upto their attaining the age of 62 and, in the case of the President (of CESTAT) the tenure age limit would be 65 years.4
22.Given these circumstances, the arguments advanced on behalf of the applicant that the incumbent chairperson continued to remain in office in view of the declaration of law by Rojer Mathew, is insubstantial and cannot be countenanced. The other reason for not accepting this contention is that if, for a moment it were to be assumed that in terms of the interim arrangement directed by the majority judgment in Rojer Mathew (in para 224 extracted above), the appointments to Tribunals/Appellate Tribunals were to be “in terms of the respective statutes before the enactment of the Finance Bill, 2017..”, the amendments brought about through Sections 184, in terms of the maximum age up to which any Member or Chairperson can hold office in a Tribunal could not apply in the case of the Board. This is because 3Reported as Kudrat Sandhu v Union of India 2018 SCC Online 1335 (SC) 4This order is reported as Kudrat Sandhu v Union of India 2018 (18) SCC 796 the Rules of 2017 had fixed the tenure limits of chairpersons and members of tribunals, including that of the chairperson of the board.5 In terms of those Rules, (i.e., the rules of 2017) the tenure of the present incumbent ended on 21.09.2019. As noticed earlier, the rules were ultimately struck down only on 13.11.2019. At that time, the only order prevailing, which had directed status quo with respect to tenure and age limits for members and chairpersons of various tribunals, were the interim orders and clarifications in Kudrat Sandhu, dated 09.02.2018; 20.03.2018; 16.07.2018 and 21.08.2018. These had stated that the maximum tenure of such members or chairpersons would be as stipulated in the parent enactments, before the coming into force of the Finance Act, 2017, or were expressed to be for a maximum of 3 years, in the case of chairpersons. The period had ended, so far as the applicant is concerned, on 21.09.2019.
23.Another argument urged by the applicant was that the Finance Act, 2017 had inserted Section 89A of the TM Act, (introduced by Section 161 of the former Act) which states that the tenure of office and maximum age of retirement would be governed by the terms of the said Finance Act and, consequently, the pre-existing tenure and age limits did not apply. Undoubtedly, the purport of Section 89A was to overbear or supersede the pre-existing age and tenure limits (the existing tenure and age limits have been indicated in Section 86 of the TM Act). However, the Finance Act merely stipulates the potential maximum age limits and tenure limits. In the case of Chairpersons, the maximum age limit prescribed was seventy years (by virtue of second proviso to Section 184 [1]). However, by virtue of the first proviso to Section 184 (1), members or chairpersons could be appointed “for such term as specified in the rules made by the Central Government but not exceeding five years from the date on which he enters upon his office”. Thus, the outer limit of the tenure was five years. As noticed earlier, the Central Government had fixed the tenure of chairperson of the board to be three years. By the time this rule was held unconstitutional, the tenure of 5By S. No.12, Column 5 had fixed the tenure of Chairperson, Vice Chairman/Judicial Members of the Board at 3 years and indicated that the outer limit for the tenure of Chairperson would be 67 years whereas that of the Vice Chairman and Members would be 65 years. the incumbent holding office of chairperson, of the board ended, on 21.09.2019. The final judgment in Rojer Mathew, could not have per se been applied to the facts of this case. The applicant’s contentions in this regard are of no avail; it is after the judgment in Madras Bar Association (supra) that the tenure has been mandated to be five years. It is to be noticed that even the 2020 Rules did not prescribe the maximum tenure; it rather confined the tenure to four years. In the facts of this case, even if that were to be applied – assuming such a course to be available, the four-year period too ended on 21.09.2020. It is important to notice that the changes brought about in the tenure and age limits were not only through the Schedule to the Finance Act, 2017, but also through its substantive provisions - Sections 156 to 182.6 These provisions introduced changes relating to tenure and age limits for members and chairpersons of 19 tribunals (including the Income Tax Appellate Tribunal; Securities Appellate Tribunal, Competition Commission of India, CESTAT, Railway Claims Tribunal, Central Administrative Tribunal, Debt Recovery Tribunal, Debt Recoveries Appellate Tribunals, the IPAB -i.e. the Board, in this case, etc.). All these provisions, much like Section 89A of the TM Act, aligned Parliamentary intention to legislate uniform tenure limits and maximum age for members and chairpersons. Therefore, Section 89A is only part of the entire legislative design. However, that has no bearing on the circumstances of the present case.
24.The last contention which this court has to deal with is the applicant’s position that the Board cannot function without a judicial member, and that at present, only the incumbent Chairperson is a judicial member, and that if his tenure is not extended by a judicial order, the Board would be unable to function. Subsidiary to this argument is that no member can function as a Chairperson, as none of the existing members are judicial members, but are technical members.
6In a part entitled PART XIV AMENDMENTS TO CERTAIN ACTS TO PROVIDE FOR MERGER OF TRIBUNALS AND OTHER AUTHORITIES AND CONDITIONS OF SERVICE OF CHAIRPERSONS, MEMBERS, ETC.
25.The submissions of the applicant, in the opinion of this court, are meritless. Section 84 (2) of the TM Act no doubt states that a bench of the board shall consist of a judicial and a technical member. However, it is “subject to other provisions” of the TM Act. Section 84(3) commences with a non obstante clause and stipulates, by Section 84(3)(a) that a chairperson may, “in addition to discharging the functions of the Judicial Member or Technical Member of the Bench to which he is appointed, discharge the functions of the Judicial Member or, as the case may be, the Technical Member, of any other Bench.” Thus, in the absence of any member, the chairperson may, if the occasion so arises, act as technical or judicial member. Section 87 enables a vice-chairperson, or as the case may be the senior-most member of the board to act as chairperson in the event of a vacancy to that position, or in the event of the incumbent’s inability to function in the post. Furthermore, significantly, Section 85 inter alia stipulates the qualifications for the post of chairperson or vice-chairperson. The relevant provisions of this section (extracted below)7reveal that there is no bar for a technical member to be appointed as a regular chairperson, provided she or he has for “at least two years, held the office of a Vice-Chairperson”. In fact, the incumbent five technical members all hold legal qualifications8 (three of them holding masters in law, including one who holds a post-doctoral qualification). Four of these incumbent members were practising advocates in specialized fields of
785.Qualifications for appointment as Chairperson, Vice-Chairperson, or other Members.— (1) A person shall not be qualified for appointment as the Chairperson unless he— (a) is, or has been, a Judge of a High Court; or (b) has, for at least two years, held the office of a 3 [Vice-Chairperson. (2) A person shall not be qualified for appointment as the Vice-Chairperson, unless he— (a) has, for at least two years, held the office of a Judicial Member or a Technical Member; or (b) has been a Member of the Indian Legal Service and has held a post in Grade I of that Service or any higher post for at least five years. (3) A person shall not be qualified for appointment as a Judicial Member, unless he— (a) has been a member of the Indian Legal Service and has held the post in Grade I of that Service for at least three years; or (b) has, for at least ten years, held a civil judicial office. (4) A person shall not be qualified for appointment as a Technical Member, unless he— (a) has, for at least ten years, exercised functions of a tribunal under this Act or under the Trade and Merchandise Marks Act, 1958 (43 of 1958), or both, and has held a post not lower than the post of a Joint Registrar for at least five years; or (b) has, for at least ten years, been an advocate of a proven specialised experience in trade mark law. 8These particulars are available at the website of the Intellectual Property Appellate Board website https://www.ipab.gov.in/technical_members_page.php?id=2 (accessed at 23:35 hours on 04.02.2021) intellectual property (trademarks, and copyright) and one technical member (patents) had experience in the Patent Office. These members had practical legal experience of ten to fifteen years. The fact that they were appointed as technical members cannot obfuscate the fact that they are legally trained and qualified. Therefore, the argument that the technical members, in their position at the board as of now, cannot function without a chairperson, is unsustainable.
26.In view of the above conclusions, this court holds that the applicant cannot be granted any relief. The application is accordingly dismissed; there shall, however, be no order on costs.
New Delhi, February 12, 2021.