Technical members, in their position at the board can function without a chairperson: Supreme Court of India.

 IN THE CIVIL ORIGINAL JURISDICTION MISCELLANEOUS APPLICATION NO.2219 2020 IN THE INTERNATIONAL ASSOCIATION FOR PROTECTION OF INTELLECTUAL PROPERTY…APPLICANT(S UNION OF INDIA S. RAVINDRA BHAT J This judgement will dispose of an application by which directions are sought that till a new chairperson of the Intellectual Property Appellate Boardis appointed the incumbentshould continue to function as Chairperson The applicant had preferred a Writ Petition1431 2019) which was disposed of by this court by a judgement along with a batch of other petitions and applications on 27th November 2020 in the judgement reported as Madras Bar Association v Union of India1. The applicant seeks extension of the term of the 1(2020) SCC OnLine SC 962 incumbent Chairperson of the board stating that his appointment was made under section 89A of the Trademarks Act 1999were governed by the parent enactment. Reliance is placed on the relevant extract of the main judgement of this court in this regardas 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 2Rojer Mathew v. South Indian Bank Ltd. 6 SCC 1 protected till new rules were framed. The Rules framed in 2020 have now been substantially read down or quashed. The clarification that the present incumbent in fact would continue to hold office in spite of attaining the age of 65 years logically flows from the ruling in Madras Bar Associationof the judgement of this court dated 27th November 2020 Learned counsel relied upon the said judgement. It was argued that the orders made by this court during the pendency of that case till final judgment i.e. dated 27th of November 2020 protected the tenures of all incumbent tribunal members and their chairpersons. Specific reliance was placed upon the order dated 16th September 2020 which had extended the tenure of office of all incumbent members of all tribunals to 31st December 2020. The applicant also urged that it is essential that there is continuity and that taking into consideration the workload of the board it is absolutely essential that it is headed by a properly qualified chairperson. The learned senior counsel for applicant particularly relies on Section 84(2) of the TM Act and urges that there can be no bench without a judicial member. It is submitted that at the moment none of the members of the board are judicial appointees but rather are technical members. It is submitted that the board does not even have a Vice Chairman who can in the absence of the Chairperson officiate as the acting Chairperson. Therefore it is imperative that the clarifications and directions sought should be granted The application was opposed on behalf of certain third parties who urge that this court should not grant the relief which the applicant seeks. In this regard it is pointed out that the tenure of office in terms of the order of appointment of the present incumbent to the office of chairperson of the board clearly stipulated that the tenure for which he could continue to serve on the board was till 21 stSeptember 2019 It is contended in this context that the original appointment was made when the incumbent chairperson of the board was holding another office as chairperson of a quasi judicial body. The order of appointment originally made in 2017 no doubt did not indicate a tenure however according to applicable lawthe 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 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 thenceforthbe 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 rules even if for a moment the applicant’s contentions were to be understood as meaning that the incumbent was appointed first under the old rules of 2017 his term of office nevertheless ended in September 2019. This was before the judgement in Rojer Matthew was delivered. This court in Rojer Matthew specifically stated that as the then existing rules framed in 2017 were held to be unconstitutional a window of continuing in office in terms of the parent enactment was applicable. It is submitted that in the context of the present incumbent of the board the tenure of office obviously could not have been extended since the outer limit under the parent act was By virtue of the provisions of Part XIV of the Finance Act 2017 25central enactments were amended so that from the appointed date firstly provisions relating to terms and conditions of service of the members of those tribunals were substituted with provisions allowing the Central Government to specify the same with rules under the Finance Act. Secondly eight existing tribunals established under different legislations were abolished and their respective jurisdictions and powers were incorporated into seven existing tribunals reducing the number of tribunals from 26 to19. Thirdly under Section 184 of the Finance Act the Central Government was authorized to frame delegated legislation spelling out the eligibility criteria selection process removal salaries and allowances tenure and other terms and conditions of service for the remaining 19 tribunals Rules 2017 Ruleswas considered in a batch of writ petitions and appeals of which judgment was rendered in Rojer Mathew v South Indian Bank Ltd.which were again questioned in the Madras Bar Association case. The Madras Bar Association case is a sequelby which this court considered and pronounced upon the validity of the 2020 Rules and read down several of them 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 Chapter VI of the Finance Act 2017 shall continue to be governed by the provisions of this Act and the rules made thereunder as if the provisions of section 184 of the Finance Act 2017 had not come into force Sections 183 and 184 occur in Part S of the Finance Act 2017 and read as “S.—CONDITIONS OF SERVICE OF CHAIRPERSON AND MEMBERS OF TRIBUNALS APPELLATE TRIBUNALS AND OTHER AUTHORITIES 183. Notwithstanding anything to the contrary contained in the provisions of the Acts specified in columnof the Eighth Schedule on and from the appointed day provisions of section 184 shall apply to the 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 Authorities as specified in columnof the said Schedule: Provided that the provisions of section 184 shall not apply to the Vice Chairman President Vice President Presiding Officer or as the case may be Member holding such office as such immediately before the appointed day. Qualifications terms and conditions of service of Chairperson and Member. Vice Chairperson Chairman Qualifications terms and conditions of service of Chairperson Judicial Member and Expert Member. 184.The Central Government may by notification make rules to provide for qualifications appointment term of office salaries and allowances resignation removal and the other terms and conditions of service of the 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 Authorities as specified in columnof the Eighth Schedule: Provided that the Chairperson Vice Chairperson Chairman Vice Chairman President Vice President Presiding Officer or Member of the Tribunal Appellate Tribunal or other Authority shall hold office 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 and shall be eligible for reappointment: Provided further that no Chairperson Vice Chairperson Chairman Vice Chairman President Vice President Presiding Officer or Member shall hold office as such after he has attained such age as specified in the rules made by the Central Government which shall not 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 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 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 Appellate Tribunal and the terms and conditions of appointment shall be in terms of the respective statutes before the enactment of the Finance Bill 2017. However liberty is granted to the Union of India to seek modification of this order after they have framed fresh rules in accordance with the majority judgment However in case any additional benefits concerning the salaries and emoluments have been granted under the Finance Act they shall not be withdrawn and will be continued. These would equally apply to all The board has been set up by Section 83 of the TM Act to exercise the jurisdiction powers and authority conferred on it by or under that enactment. Section 84 prescribes the composition of the board which consists of a chairperson a vice chairperson “and such number of other Members as the Central Government may deem fit and subject to the other provisions of this Act the jurisdiction powers and authority of the Appellate Board may be exercised by Benches thereof.” Sections 84andare of some relevance in the present context they read “(2) Subject to the other provisions of this Act a Bench shall consist of one Judicial Member and one Technical Member and shall sit at such place as the Central Government may by notification in the Official Gazette specify. 3) Notwithstanding anything contained in sub section the 2 a) 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 b) may transfer a Member from one Bench to another Bench c) may authorise the Vice Chairperson the Judicial Member or the Technical Member appointed to one Bench to discharge also the functions of the Judicial Member or the Technical Member as the case may be of another Bench Sections 86 and 87 read as follows “86. Term of office of Chairperson Vice Chairperson and other Members.—The Chairperson Vice Chairperson or other Members shall hold office as such for a term of five years from the date on which he enters upon his office or until he attains — in the case of Chairperson and Vice Chairperson the age of sixty five years and b) in the case of a Member the age of sixty two years whichever is 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 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 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 other Members of the Appellate Board appointed after the commencement of Part XIV of Chapter VI of the Finance Act 2017shall 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 Chapter VI of the Finance Act 2017shall continue to be governed by the provisions of this Act and the rules made thereunder as if the provisions of section 184 of the Finance Act 2017 had not come into The present incumbent to the office of Chairperson of the Board was appointed as the Chairman Appellate Tribunal for Forfeited PropertyChennai 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. Under Secretary to the Govt. of India 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 to Justice Manmohan Singh Chairman Appellate Tribunal for Forfeited Property 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.” Under Secretary to the Govt. of India 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 orderas follows The tenure 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 ” the Chairperson and Members of 20. On 16.07.20183 the following directions in regard to the age of the superannuation of Member of the Income Tax Appellate Tribunalas 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 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 Tribunalthe 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 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 1335SCC 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 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 Associationthat 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 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 sectionA 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 3A 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. three years or 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 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 1958or 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=2and 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 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. [L. NAGESWARA RAO [HEMANT GUPTA [S. RAVINDRA BHAT New Delhi February 12 2021

Summary: The technical members, in their position at the board, can function without a chairperson.  The Section 85 of TM Act 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. This assertion was made by the Supreme Court of India presided by J. S. RAVINDRA BHAT, J. HEMANT GUPTA and J. L. NAGESWARA RAO in the case of THE INTERNATIONAL ASSOCIATION FOR PROTECTION OF INTELLECTUAL PROPERTY (INDIA GROUP) vs. UNION OF INDIA [W.P.(C) NO.1431/2019]. In the present case, the applicant (the International Association for Protection of Intellectual Property) had preferred a Writ Petition, which was disposed of by this court along with a batch of other petitions and applications on 27th November 2020, in the judgment reported as Madras Bar Association v Union of India. The applicant seeked extension of the term of the incumbent Chairperson of the board stating that his appointment was made under section 89A of the Trademarks Act, 1999. The applicant urged that Section 184 of the Finance Act, 2017, prescribed the term of office and the conditions of service of Chairperson and members of various tribunals including that of the Board. Section 161 of the Finance Act inserted Section 89A to the TM Act which stipulates that the term of office of appointments to the board after the date of commencement of the Finance Act would be governed by the provisions of the Section 184 of the said Finance Act. The outer limit prescribing the age limit of the chairperson of the board is 70 years, in terms of Section 184. The applicant contend that he was that the Finance Act, 2017 had inserted Section 89A of the TM 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. The last contention which this court had to deal with was 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. The honorable court observed, “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 occasions 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 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”.