TMI Blog2021 (2) TMI 771X X X X Extracts X X X X X X X X Extracts X X X X ..... or-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 reveal 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 qualifications (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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant extract of the main judgement of this court in this regard (para 53 [xv]). It is stated that the parent Act in this case is the Trademarks Act (hereafter the TM Act ). In this context, it is contended that since the outer limit of the tenure of the chairperson is 70 years under the parent Act, i.e. the TM Act, the age of 65 years contemplated under Section 86 of that Act no longer applies. 4. Learned counsel contrasts Section 86 and Section 89 of the TM Act and contends that though Section 86 on the one hand prescribes the outer age limit (for the tenure of chairperson) as 65 years, that is over borne by the provisions of section 89A, which states that the terms and conditions hitherto applicable would no longer be so and that in matters of conditions of service and tenure of appointment, the provisions of section 184 of the Finance Act would apply. It is contended by senior counsel that the Rules were originally framed with effect from 01.06.2017, under which the present incumbent was appointed. These rules were set aside by Rojer Mathew, in which all sitting members and chairpersons of various tribunals were protected, till new rules were framed. The Rules framed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law (i.e. the Rules of 2017) the maximum tenure was 3 years. However, that order was amended to specifically read that the order that the appointment would cease upon completion of a specific date, i.e. 21.09.2019. 8. The third-party objectors also opposed the interpretation given to Section 86 and 89A. It was contended that the change brought about by section 89A was merely to indicate that the tenure of office of the chairperson and members would thenceforth (i.e. after the enactment and coming into force of the Finance Act of 2017) be in accordance with Section 184 of the Finance Act. It is urged in this context that Section 184 does not ipso facto prescribe or indicate any term of appointment or tenure, except to enumerate outer limits of tenure terms and maximum age for members or chairpersons of tribunals to hold office. The legislation leaves the matter to the rules that were to be framed under the said Finance Act. It is submitted in other words that, the Act per se does not prescribe any terms, but rather indicates outer limits. Since the entire conditions of service, including the indicative tenure of office was to be prescribed in respect of each tribunal by the rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Association case. The Madras Bar Association case is a sequel (to Rojer Mathew), by which this court considered and pronounced upon the validity of the 2020 Rules, and read down several of them. 10. The relevant provisions of the Finance Act, 2017 are as follows: Section 161. In the Trade Marks Act, 1999- (a) for the word Chairman or Vice-Chairman , wherever it occurs, the word Chairperson or Vice-Chairperson shall be substituted; (b) in section 83, after the words under this Act , the words and figures and under the Copyright Act, 1957 shall be inserted; (c) after section 89, the following section shall be inserted, namely: - 89A. Notwithstanding anything in this Act, the qualifications, appointment, term of office, salaries and allowances, resignation, removal and other terms and conditions of service of the Chairperson, Vice-Chairperson and other Members of the Appellate Board appointed after the commencement of Part XIV of Chapter VI of the Finance Act, 2017, shall be governed by the provisions of section 184 of that Act: Provided that the Chairperson, Vice-Chairperson and other Members appointed before the commencement of Part XIV of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rules made by the Central Government which shall not exceed- (a) in the case of Chairperson, Chairman or President, the age of seventy years; (b) in the case of Vice-Chairperson, Vice-Chairman, Vice-President, Presiding Officer or any other Member, the age of sixty-seven years: (2) Neither the salary and allowances nor the other terms and conditions of service of Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authority may be varied to his disadvantage after his appointment 12. In Rojer Mathew after pronouncing that the 2017 Rules were unsustainable, and quashing them, with a direction to the Central Government to frame new Rules, this court also directed as follows: Interim relief 224. As the Tribunal, Appellate Tribunal and Other Authorities (Qualification, Experience and Other Conditions of Service of Members) Rules, 2017 have been struck down and several directions have been issued vide the majority judgment for framing of fresh set of rules, we, as an interim order, direct that appointments to the Tribunal/Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the age of sixty-two years, whichever is earlier. 87. Vice-Chairperson] or senior-most Member to act as 1 [Chairperson] or discharge his functions in certain circumstances- (1) In the event of or any vacancy in the office of the Chairperson by reasons of his death, resignation or otherwise, the Vice-Chairperson and in his absence the senior-most Member shall act as Chairperson until the date on which a new 1 Chairperson, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office. (2) When the Chairperson is unable to discharge his functions owing to his absence, illness or any other cause, the Vice-Chairperson and in his absence the senior-most Member shall discharge the functions of the Chairperson until the date on which the Chairperson resumes his duty. 16. Section 89A of the TM Act reads as follows: 89A. Qualifications, terms and conditions of service of Chairperson, Vice-Chairperson and Member.- Notwithstanding anything in this Act, the qualifications, appointment, term of office, salaries and allowances, resignation, removal and other terms and conditions of service of the Chairperson, Vice-Chairperson and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d office in a Tribunal could not apply in the case of the Board. This is because the Rules of 2017 had fixed the tenure limits of chairpersons and members of tribunals, including that of the chairperson of the board 1 . 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
