Delhi High Court
Bharati Rathore vs Union Of India And Anr. on 28 May, 2021
Author: J.R. Midha
Bench: J.R. Midha
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 28th May, 2021
+ W.P.(C) 5229/2019 & CM Appl.23128/2019
BHARATI RATHORE ….. Petitioner
Through: Mr. Shivendra Pratap Singh,
Advocate
versus
UNION OF INDIA AND ANR. ….. Respondents
Through: Mr. Chetan Sharma, ASG,
with Mr. Kirtiman Singh,
CGSC, Mr. Waize Ali Noor,
Mr. Taha Yasin, Mr. Amit
Gupta, Mr. Vinay Yadav,
Mr. Akshay Gadeock and
Mr. Sahaj Garg, Advocates
along with Ms. Poonam
Singh, Director, CGPDTM,
Mr. Sachin Dhania, DS,
DPIIT and Mr. Kabindra
Joshi, Director, DOPT.
Mr. A.S. Chandhiok, Senior
Advocate as Amicus Curiae
with Ms. Neelam Deol,
Advocate.
Mr. Nikhil Goel, SPP for CBI
with Vinay Mathew,
Advocate.
Mr. Naresh Kaushik,
Advocate as Amicus Curiae.
CORAM:
HON’BLE MR. JUSTICE J.R. MIDHA
JUDGMENT
1. The petitioner applied for the post of Examiner of Patents and Designs in the stream of Bio-Medical Engineering. The petitioner topped in the Mains Examination by scoring the highest marks in the Mains Examination. However, the petitioner has challenged the result declared by the respondents. The petitioner is seeking the appointment to the post of Examiner of Patents and Designs in the stream of Bio-Medical Engineering. In the alternative, the petitioner is seeking quashing of the entire selection process and the results declared by the respondents.
Relevant Facts
2. In August, 2018, the respondents invited applications for 220 posts of Examiner of Patents & Designs in various subject/disciplines including Bio-Medical Engineering vide Advertisement No. 01/CGPDTM/2018. Out of 220 posts advertised, four posts were allocated to the stream of Bio-Medical Engineering (Two posts for Unreserved Category, one post for SC and one post for OBC).
3. The educational qualification prescribed for Examiner of Patents & Designs in stream of Bio-Medical Engineering is Bachelor’s Degree in Bio-Medical Engineering/Technology.
4. The petitioner is holding a 5-year Dual Degree of B.Tech. & M.Tech. in Cognitive & Neuroscience with 71.84% in B.Tech. and 73.71% in M. Tech. from University of Rajasthan, Jaipur. Cognitive & Neuroscience is a specialized discipline of Bio-Medical Engineering and the University of Rajasthan issued a Certificate to the petitioner to certify that her Degree is equivalent to the Bachelor’s Degree in Bio-Medical Engineering offered by other Institutes and also by some of the foreign universities in Bio-Medical Engineering. The Certificate dated 15th January, 2019 issued by the University of Rajasthan is reproduced hereunder:-
―CENTRE FOR CONVERGING TECHNOLOGIES UNIVERSITY OF RAJASTHAN JAIPUR- 302004 INDIA Ref. No. CCT/2019/1718 Date : 13/01/2019 To whomsoever it may concern Centre for Covering Technologies, University of Rajasthan, Jaipur offers dual degree program B. Tech-M.Tech in Nano-Bio-Info- Cognitive Neurosciences (NBIC). The program is very comprehensive and having advanced topics. The syllabus of ours herewith enclosed for ready reckoner. The present certificate is issued to Ms. Bharati Rathore who graduated in the year 2016 (batch 2010-2015) on her request that the degree broadly matches with the biomedical engineering offered by other Institute like NIT Raipur and also some of the foreign universities in biomedical engineering. Accordingly, it is pertinent to note that the contents of the course are on par with biomedical engineering and nomenclature might be different with our degree which is in Cognitive and Neuroscience. Hence the present request of the candidate is genuine and recommended to the concerned that the degree awarded by University of Rajasthan in Cognitive and Neuroscience may be considered on par with biomedical engineering.‖ (Emphasis supplied)
5. The petitioner submitted the aforesaid Certificate dated 15th January, 2019 along with a comparative table comparing the B.Tech. in Bio-Medical Engineering degree from National Institute of Technology (NIT) Raipur with the petitioner’s Degree, which are at pages 106 to 113 of the petition.
6. The petitioner appeared in the Preliminary Examination on 30th September, 2018 and thereafter, in the Mains Examination on 18th November, 2018.
7. On 10th January, 2019, the respondents declared a provisional list of 12 selected candidates to fill up the four vacancies of Examiner of Patents Designs (Bio-Medical Engineering). The petitioner’s name appeared at Serial No. 5 in the said list of 12 successful candidates.
8. On 20th January, 2019, the petitioner appeared before the Verification Centre in accordance with the Notification No. CGPDTM/Mains/2018/02 dated 10th January, 2019 at Dayal Singh College, Lodi Road, New Delhi for verification of the original degree/certificates and produced the original certificates including the Certificate dated 15th January, 2019 issued by the University of Rajasthan along with a comparative table comparing petitioners’ degree with the B.Tech in Bio-Medical Engineering degree offered by National Institute of Technology (NIT) Raipur.
9. On 12th February, 2019, the list of successful candidates was published by the respondents on their website. However, the petitioner’s name was not there in the list. The petitioner verified her marks from the website and found that she had topped the list of selected candidates by obtaining 108 out of 300 marks in the Mains Examination-I (Scoring Examination).
10. As per the list published on 27th February, 2019, the maximum cut-off marks for the unreserved category in stream of Bio-Medical Engineering was 91 and the minimum was 88.
11. The petitioner had secured 108 marks as per the respondent’s own website i.e. more than the marks of the successful candidates, and the topper amongst the successful candidates had secured 91 marks only.
12. On 05th March, 2019, the petitioner made a representation to the Secretary, Department for Promotion of Industry and Internal Trade (DPIIT), Ministry of Commerce & Industry to which no response was received. The petitioner sent reminders on 19 th March, 2019 and 23rd April, 2019.
13. According to the petitioner, Dual Degree of B.Tech. & M.Tech. in Cognitive & Neuroscience from University of Rajasthan is equivalent to the B.Tech. in Bio-Medical Engineering. The petitioner submitted the Certificate dated 15th January, 2019 issued by the University of Rajasthan along with a comparative table of B.Tech in Bio-Medical Engineering by National Institute of Technology (NIT) Raipur which have not been considered by the respondents. The petitioner submitted various representations dated 05th March, 2019, 19th March, 2019 and 23rd April, 2019 which have neither been considered nor have been responded to by the respondents. The respondents neither afforded an opportunity of hearing to the petitioner nor passed any order in respect thereof.
14. This petition was first taken up on 17th May, 2019 when this Court directed respondent No.1 to file a short affidavit to place on record the procedure followed by them to compare the degree of the petitioner with the degree in B.Tech in Bio-Medical Engineering in pursuance to which the respondents filed an affidavit dated 30th May, 2019. As per the said affidavit, respondent No.2 engaged National Productivity Council (NPC) to conduct the recruitment for 220 posts of Examiner of Patents and Designs in pursuance to which NPC published an advertisement dated 06th August, 2018 inviting online applications. As per the said advertisement, the verification of eligibility conditions with reference to original documents was to be taken up only after the Mains Examination. The Preliminary Examination was conducted on 30th September, 2018 followed by Mains Examination on 18th November, 2018 and the provisional result was declared on 10th January, 2019. NPC conducted the documents verification of 675 candidates on 20 th January, 2019.
Many candidates were holding the degrees other than those specified in the Information Bulletin/Advertisement which was intimated by the NPC to the Department on 23rd January, 2019 by email. Vide O.M. No. P-24017/22/2019/-IPR-I dated 06th February, 2019, the NPC constituted a Committee to examine and decide on the equivalence of degrees other than those specified in the Information Bulletin and advertisement.
15. The Committee recorded its Minutes of Meeting on 07th February, 2019 according to which the petitioner’s degree was not considered equivalent to Bachelor’s degree in Bio-Medical Engineering/Technology. The Minutes of the Meeting dated 07th February, 2019 are Annexure R-5 to the affidavit dated 30th May, 2019. On 12th February, 2019, the respondent declared the result of successful candidates in which the petitioner’s name was not there. Relevant portion of the affidavit of the respondents dated 30 th May, 2019 is reproduced hereunder:
―g. Pursuant to the request received from NPC, the department vide OM No P-24017/22/2019-IPR-I dated 06.02.2019, decided to constitute a Committee comprising of technical members to examine and decide on the issue of equivalence of degrees (other than those specified in the information bulletin/advertisement). The committee comprised of members from All India Council of Technical Education, Delhi Technological University, National Productivity Council, CGPDTM and National Institute of Technology, Delhi. A copy of the Office Memorandum No P-24017/22/2019-IPR-I dated 06.02.2019 is annexed herewith and marked as ANNEXURE R-4.
h. The Committee deliberated on the contents of each of the degrees listed in the Information Bulletin vis-a- vis the degrees identified by NPC in their email dated 23.01.2019, and thereafter identified which degrees could be considered eligible. Minutes of Meeting dated 07.02.2019, clearly indicate at serial number 9-12, the degree (Cognitive and Neuroscience), was not considered to be equivalent to the Bachelor’s degree in Biomedical Engineering/ Technology. A copy of the Minutes of Meeting dated 07.02.2019 is annexed herewith as marked as ANNEXURE R-5.
i. That thereafter, on 12.02.2019, the results were declared and considering the decision of the committee, the degree of the Petitioner was not considered to be eligible for declaration of the results.
4. That the answering Respondents had followed and applied the procedure set out in the information memorandum. All candidates applying through the online procedure were aware and informed of the process which specifically provided that verification is done only prior to declaration of results and post the Main Examination. The Candidates were also informed/ aware that their application is eligible for rejection at the verification stage. Out of the 675 candidates shortlisted provisionally, 14 ineligible candidates were rejected after document verification, including the Petitioner. Also, it is to be noted that while 38 degrees were considered to be eligible, 10 degrees were identified to be not eligible with respect to the essential educational qualification listed in the information bulletin/advertisement.
5. That in light of the aforementioned facts and circumstances that a Committee comprising of technical members has already examined the submissions of petitioner during the document verification stage and has not found the degree in ―Cognitive and Neuroscience‖ eligible as per the requirement and as advertised, it is humbly submitted that the present Writ Petition is liable to be dismissed on account of being devoid of merits.‖
16. During the course of the hearing on 31st May, 2019, the respondent relied on the Minutes of the Meeting of the Committee which examined 48 degrees and found 38 degrees to be equivalent to the prescribed degrees whereas 10 degrees were not found equivalent to the prescribed degrees. The petitioner’s degree was not considered equivalent to Bachelor’s degree in Bio-Medical Engineering by the Committee. This Court was not satisfied with the report of the Committee and, therefore, this Court considered it appropriate to seek an expert’s opinion on the petitioner’s claim as to whether her B.Tech. – M.Tech. Degree in Cognitive & Neuroscience is equivalent to B.Tech. in Bio-Medical Engineering Degree. This Court directed UPSC to provide the names of experts who could give an expert opinion on this aspect. Relevant portion of the order dated 31st May, 2019 is reproduced hereunder:
―1. The petitioner applied for the post of Examiner of Patents and Design in the stream of Bio-medical Engineering. The petitioner cleared the preliminary as well as the main examination. However, the petitioner’s name was not declared in the final result on 12th February, 2019 on the ground that the petitioner qualification is not equivalent to B.Tech in Bio- Medical Engineering.
2. The respondent relies on the report of the Committee of twelve persons appointed by them which examined the 48 degrees and gave a report as to which are the 48 degrees are equivalent to B.Tech in Bio-Medical Engineering. So far as the petitioner is concerned, the petitioner’s has a B.Tech Degree in Cognitive & Neuroscience which was found not to be equivalent to B.Tech in Bio-Medical Engineering.
3. This Court is of the view that it would be appropriate to seek an expert opinion on the petitioner’s claim that her B.Tech Degree in Cognitive & Neuroscience is equivalent to B.Tech in Bio-Medical Engineering degree.
4. Mr. Naresh Kaushik, Advocate is appointed as amicus curiae to assist this Court in this matter. Mr. Naresh Kaushik, submits that the names of the experts who can give expert opinion on the query of this Court can be provided by UPSC, upon being directed by this Court.
5. UPSC is directed to provide the names of the experts who can give expert opinion as to whether the petitioner’s B.Tech degree in Cognitive and Neuroscience is equivalent to B.Tech, Bio-medical Engineering. UPSC shall also provide the names of the experts who are available for giving the expert opinion.
xxx xxx xxx
7. List for considering the response of the UPSC on 03 rd June, 2019.‖ (Emphasis supplied)
17. On 03rd June, 2019, this Court was informed that the Indian Institute of Technology, Delhi has a Centre for Biomedical Engineering and Professor Harpal Singh is the Head of the Centre. Both the parties agreed to the expert opinion being sought from Indian Institute of Technology, Delhi whereupon this Court directed Prof. Harpal Singh, Head of the Centre and two faculty members to examine the matter and submit an expert report after affording an opportunity of hearing to both the parties. Relevant portion of the order dated 03rd June, 2019 is reproduced hereunder:
―1. Mr. Naresh Kaushik, learned amicus curiae submits that he has not yet received instructions from UPSC as the concerned officers are held up in conducting Civil Services exams. Learned counsel submits that he has examined the matter and finds that Indian Institute of Technology, Delhi has got a centre named as Centre for Biomedical Engineering and Professor Harpal Singh is Head of the Centre.
2. Learned counsel has handed over the print out of the Centre for Biomedical Engineering along with photographs and names of their faculty members. Learned counsel submits that this Court may consider seeking an expert opinion from Indian Institute of Technology, Delhi.
3. Learned counsel for both the parties have no objection to this Court seeking an expert opinion from Indian Institute of Technology, Delhi.
4. In the facts and circumstances of this case, the issue as to whether the B. Tech degree in Cognitive and Neuroscience is equivalent to B. Tech in Bio-Medical Engineering, is referred to Centre for Biomedical Engineering, Indian Institute of Technology, Delhi.
5. Professor Harpal Singh, Head of the aforesaid Centre shall nominate two faculty members within two weeks.
6. Professor Harpal Singh and his two faculty members shall examine the matter and shall provide an opportunity of hearing to both parties on a date and time convenient to them.
Professor Harpal Singh shall communicate the date of hearing by email to counsels for both the parties at the following given address which shall be constitute sufficient service on the parties:
i. Mr. S.P. Singh, Advocate Counsel for the petitioner shivendra@theacmeco.com ii. Mr. Ravi Prakash, Advocate Counsel for the respondent raviprakash1066@gmail.com
7. The report be submitted before this Court in a sealed cover.‖ (Emphasis supplied)
18. The Centre for Bio-Medical Engineering, Indian Institute of Technology, Delhi constituted a Committee comprising of Prof. Harpal Singh, Head, Centre for Biomedical Engineering IIT Delhi, Prof. Sandeep Jha, Prof. Dinesh Kalyansundaram and Prof. Deepak Joshi. The Committee heard both the parties and thereafter submitted a Report dated 28th June, 2019 before this Court according to which the petitioner’s degree was considered equivalent to B.Tech in Bio- Medical Engineering. Relevant portion of the report is reproduced hereunder:-
―A four member committee was formed with respect to WRIT petition 5229/2019 in high court of Delhi under Hon’ble Mr. Justice. J.R. Midha to discuss the case of Ms. Bharti Rathore vs Union of India.
The committee at Centre for Biomedical Engineering at IIT Delhi –
Prof. Harpal Singh, Head, Centre for Biomedical Engineering IIT Delhi Prof. Sandeep Jha Prof. Dinesh Kalyansundaram Prof. Deepak Joshi From petitioners side –
Mr. S.P. Singh, Advocate Ms. Bharti Rathore, Petitioner Ms. Pratibha Rathore Dr. B.C. Rathore (Petitoner’s father) From respondent’s side ( Counsel for Department)- Mr. Ravi Prakash Mr. Farman Ali Mr. Aditya Ajay Mr. B.P. Singh, Joint Controller of Patents & Designs Dr. S.S. Singh, Deputy Controller of Patents & Designs, Patent Office Sh. Pritam Singh, Office superintendent, Legal Section, Patent office Mr. D.K. Rahul, Deputy Director, NPC New Delhi Ms. Asmita Raj, Consultant (HRM), NPC, New Delhi Biomedical Engineering is a highly interdisciplinary area and any B.Tech/M.Tech in Biomedical Engineering includes (i) Fundamental and advance knowledge of human biology and its functional aspects at cellular and tissue levels (ii) Knowledge of natural and synthetic materials and engineering principles in electrical/mechanical and chemical engineering to study design and development of products for medical diagnostics, assist devices and instruments, hard and soft tissue implants to replace defective organ or its parts in human body. Therefore any degree which covers all of these aspects should be considered as Biomedical Engineering.
Members from both petitioner and respondent sides presented their views to the committee. The committee also carefully examined the documents provided by the Honourable court. IIT Delhi offers M.Tech. in Biomedical Engineering but does not have a B.Tech program in Biomedical Engineering. The committee went through the syllabus required to complete the B.Tech/M.Tech dual degree in Cognitive and Neurosciences and compared it with Biomedical Engineering B.Tech course offered by VIT Vellore (one of the best engineering colleges for Biomedical Engineering B.Tech degree, also one candidate from VIT Vellore is being offered a position in the present selection list provided by the respondent). Detailed syllabus comparison for Biomedical Engineering degree of both the universities is attached for your reference (Annexure1). On careful examination, it was concluded that there is above 70% matching of the courses of B.Tech/M.Tech dual degree in Cognitive and Neurosciences with B.Tech in Biomedical Engineering from VIT Vellore. Therefore, the committee recommends B.Tech/M.Tech dual degree in Cognitive and Neurosciences may be considered equivalent to B.Tech in Biomedical Engineering.
Sd/- Sd/-
Prof. Harpal Singh Prof. Dinesh Kalyanasundaram
Sd/- Sd/-
Prof. Sandeep Jha Prof. Deepak Joshi‖
(Emphasis supplied)
19. On 05th July, 2019, this Court considered and accepted the Report dated 28th June, 2019 submitted by the Expert Committee appointed by this Court. Relevant portion of the order dated 05th July, 2019 is reproduced hereunder:
―1. The Centre for Biomedical Engineering, Indian Institute of Technology of Delhi has submitted the report according to which B.Tech/M.Tech dual degree in Cognitive and Neurosciences is recommended to be equivalent to B.Tech in Biomedical Engineering. The report is hereby accepted. ‖ (Emphasis supplied)
20. On 09th July, 2019, the respondents sought permission to file an additional affidavit which was allowed. On 09th July, 2019, this Court directed the respondents to keep one post of Examiner of Patents and Designs vacant till further orders.
21. On 29th July, 2019, the respondents filed an additional affidavit in which it was stated that the Committee of Indian Institute of Technology (IIT) had compared the B.Tech. degree in Bio-
Medical Engineering from VIT, Vellore of 2018-19 with the degree of the petitioner. The respondents deposed in the affidavit that there is no B.Tech degree in Bio-Medical Engineering offered by VIT, Vellore and therefore, the method adopted by the Committee to compare the syllabus of the petitioner’s degree with the degree of VIT, Vellore is erroneous. Relevant portion of the affidavit dated 29th July, 2019 is reproduced hereunder:
―3. That this Hon’ble Court, vide order dated 03.07.2019 had referred the case of the Petitioner to the Committee chaired by Prof. Dr. Harpal Singh of the Centre for Bio-Medical Engineering, Indian Institute of Technology, Delhi to decide upon whether the B.Tech-M.Tech dual degree in Cognitive and Neuroscience is equivalent to B.Tech degree in Bio-Medical Engineering.
4. That the Committee, while comparing the requisite B.Tech-
M.Tech dual degree in Cognitive and Neuroscience, has considered the fact that in the present selection process, a candidate of B.Tech degree in Bio-Medical Engineering from VIT, Vellore(2012 passed out) has been considered. This has weighed with the Committee so as to conclude that B.Tech degree in Bio-Medical Engineering offered by VIT, Vellore is in keeping with the present requirement.
5. At this stage, it is respectfully submitted that at present there is no B.Tech degree in Bio-Medical Engineering offered by VIT, Vellore. Accordingly, it is submitted that the candidate from VIT who was selected in this recruitment examination in Bio-Medical discipline, had indeed completed B.Tech in Bio- Medical Engineering from VIT in 2012 which has however been discontinued presently. Currently VIT offers B.Tech. degree in Electronics and Communication with specialization in Biomedical Engineering- a course substantially different from B.Tech in Bio-Medical Engineering possessed by the selected candidates from VIT Vellore. The method adopted by the committee to compare the syllabus of the Dual Degree B.Tech – M. Tech in Cognitive and Neuro-Science possessed by Ms. Bharti Rathore with the B.Tech degree in Electronics and Communication with specialization in Biomedical Engineering is thus erroneous.
6. That at present, the course which is being offered by VIT, Vellore (B.Tech degree in Electronics and Communication with specialization in Bio-Medical Engineering) will not serve as a bench mark for comparison.
7. That the Committee has compared the course content and syllabus of the Petitioner’s B.Tech-M.Tech dual degree in Cognitive and Neuroscience with the B.Tech degree in Electronics and Communication with specialization in Bio- Medical Engineering, which was not there in 2012.
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8. It is respectfully submitted that as on date there is no B.Tech degree in Bio-Medical Engineering from VIT Vellore and secondly the course with which the comparison is made is somewhat vaguely matched which cannot in any case be treated as equivalent to the degree possessed by the Petitioner and thus, no relief can be granted.‖ (Emphasis supplied)
22. Vide order dated 01st October, 2019, this Court directed the respondents to place on record the curriculum of the degrees mentioned in the Minutes of Meeting dated 07th February, 2019. This Court further directed the respondents to produce the decision taken by the respondents with respect to the report of the Committee dated 07th February, 2019 as well as the report of the IIT Committee, dated 28th June, 2019. Relevant portion of the order dated 01 st October, 2019 is reproduced hereunder :-
―3. The respondent conducted the examination for the post of Examiner of Patents and Designs in the stream of Bio- Medical Engineering. The prescribed eligibility for the said post is Bachelor degree in Bio-Medical Engineering/Technology. The petitioner is holding Dual degree in Master of Technology (B. Tech – M. Tech) in Cognitive and Neuroscience. There were other candidates who were holding different degrees and they all claimed their degrees to be equivalent whereupon the respondent constituted a Committee to compare the degrees.
4. The Committee compared four degrees mentioned at serial No. 9 to 12 of the report dated 07th February, 2019 and opined that the three degrees at serial No. 9, 10 and 12 were not equivalent whereas one degree at serial No. 11 was equivalent. However, the Committee did not give any reasons for their decision.
5. This Court sought the opinion from Centre for Bio-
Medical Engineering, Indian Institute of Technology, Delhi as to whether the petitioner’s degree is equivalent to B. Tech in Bio-Medical Engineering.
6. The Committee appointed by this Court has given the report dated 28th June, 2019 holding that the petitioner’s degree is equivalent to B. Tech in Bio-Medical Engineering.
7. Learned standing counsel for the respondents submits that the report has been examined by the respondent. According to the respondent, the comparison has not been done properly by the Committee constituted by this Court.
8. Before proceeding further, the respondent is directed to place on record the course curriculum of the four degrees mentioned in paras 9 to 12 of the minutes of meeting dated 07th February, 2019 on the next date. The respondent is further directed to place on record on affidavit the comparison of the four degrees mentioned in paras 9 to 12 with the B. Tech in Bio-Medical Engineering on the next date of hearing.
9. The respondent is further directed to place on record the list of the successful candidates and the details of the degrees held by them in the category of Bio-Medical Engineering.
10. The relevant record relating to the decision taken by the respondent with respect to the report of the Committee dated 07th February, 2019 as well as the report of the IIT dated 28th June, 2019 be produced before this Court on the next date of hearing.‖
23. On 02nd November, 2019, respondent no. 1 filed the affidavit dated 21st October, 2019 in compliance with the order dated 01st October, 2019. On 27th November, 2019, the petitioner filed an affidavit in response to the affidavit of respondent no. 1 dated 21st October, 2019. The relevant portion of the affidavit of the petitioner is as under:
―10. The petitioner after carefully considering the Affidavits and documents filed therewith, has discovered the following important facts
(a) On 23.01.2019, the Director of National Productivity Council (NPC), Head of Recruitment in this matter, has submitted by e-
mail two separate lists of degrees (29 selected as well as 26 wait-listed candidates; total 55 degrees) to the Ministry to scrutinize the equivalence/suitability of these degrees, which were different from required degrees. This e-mail is enclosed as ANNEXURE-C (colly).
(b) On 06.02.2019, the Ministry constituted a four membered Committee of experts (without mentioning name of members) vide OM No. P-
24017/22/2019-IPR-I, which abruptly converted overnight into a 12-membered Committee (with names & designation of 12 members), which finally scrutinized 48 degrees within less than 24 working hours and submitted its report on the very next day on 07.02.2019 in a very hasty manner by accepting 38 degrees without any deliberation, cogent reason or comparison but simply marking ‗YES’ & ‗NO’ comments arbitrarily before the degrees as mentioned in the Minutes of meeting submitted by respondents along with their affidavit dated 30.05.2019.
(c) Surprisingly, this 12-membered Committee has also scrutinized such 09 extra degrees those were not mentioned in the lists submitted by the Director, NPC. These 09 extra degrees are mentioned in the Minutes of meeting dated 07.02.2019 as follows:
S.No Discipline/ Requirement of CGPDTM Other degree Decision stream available taken (Yes-
considered/
No- Not
considered
8 Bio-Chemistry Master’s Degree in B.Tech. Bio Yes
Biochemistry Technology,
Ph.d. in
Engg. (Bio-
Technology)
11 Bio-Medical Bachelor Degree in Bio- B.Tech Yes
Engineering Medical Degree in
Engineering/Technology Medical
Electronics
17 Chemistry Master’s Degree in M.Sc. in Yes
Chemistry Chemical
Science
21 M.Sc. in Yes
Physical
Organic
Chemistry
25 Computer Master’s Degree in B.Sc. Degree No
Science/ Computer in Computer
Information Science/Information Science
31 Technology Technology or Bachelor BCA No
Degree in
Engineering/Technology in
Computer Science/
35 Information Technology B.Tech No
Software
Engineering
38 Electronics & Bachelor Degree in B.Tech No
Communication Electronics & Electrical
Communication Engineering
42 Polymer Master’s Degree in B.Sc (basic), Yes
Science Polymer Science or M.Sc. in
Bachelor Degree in Chemistry
Polymer and M.E.
Engineering/Technology Polymer
Technology
(a) Further, it is extremely shocking and mysteriously
surprising as to under what compelling
circumstance or on whose direction the Chairman of said 12-membered Committee, who is a senior most official working on the post of Joint Controller of Patents & Designs, who is also a representative of CGPDTM (Appointing authority; the Respondent no. 2), allowed the Committee to include, consider and examine the equivalence/suitability of such EXTRA NINE (9) DEGREES, which were not mentioned in proposed select-list/wait-list duly submitted by the Director, NPC to the Respondents on 23.01.2019.
(b) It is also pertinent to mention that out of said nine (09) degrees; five (05) degrees were declared equivalent/suitable and recommended for final selection and appointment on the post of Examiners.
(c) It is also respectfully submitted that the
Recruitment Agency namely National
Productivity Council (NPC) is not an independent recruitment agency but on the contrary both the NPC and office of CGPDTM are under the direct control, supervision and command of the same Department i.e. Department for Promotion of Industry and Internal Trade (DPIIT), therefore, the interference of the respondents in the recruitment process cannot be ruled out.
It is noteworthy to emphasize that prior to the year 2000; these recruitments were made through UPSC, which was withdrawn by respondents under the pretext that patent officials hold scientific cadres, which they don’t even enjoy till date.
11. In this recruitment of 220 posts of Examiners of Patents & Designs (Group ‗A’), there was no provision for interview and merely the marks secured in the Main Examination was the sole criteria for final selection and appointment on the posts.
It is astonishing to mention emphatically that a large number of finally selected candidate, those have already been proceeded for training with appointment and have also joined on such Group ‗A’ posts did not even secure the minimum bench mark/passing-marks i.e. 33% marks, which amounts nothing less than mockery of this recruitment process for Group ‗A’ officers in Intellectual Property Office of India. The glaring example of this fact is the Bio-medical Engineering stream, where the only and only petitioner, who has topped the Main Examination, could successfully secure 36% (108/300) marks, whereas other four finally selected candidates, those have already been granted appointment and have also joined on the post, could secure merely 30.3%, 29.3%, 29% & 19% marks as shown in following table:
S.No Roll No. Name of Category Degree Marks Marks Candidate obtained (%) (out of
300)
1. 1101050086 Lakshmi OBC Bachelor of 91 30.3 Narayanan Engineering in Bio-
Medical Engineering from Anna University
2. 1101050090 Sonia GEN B.Tech in Bio-Medical 88 29.3 Sharma Engineering from Maharishi Dayanand University, Rohtak
3. 1304052251 Ashim SC B.Tech in Bio-Medical 87 29 Sarkar Engineering from JIS College of Engineering, West Bengal University of Technology
4. 1202050959 Pradeep OBC Bachelor of 59 19 Kumar Engineering in Bio-
Medical Engineering from VIT University (Emphasis supplied)
24. On 11th December, 2019, the petitioner filed a supplementary affidavit in which it was stated that the respondents had made false averments in the affidavit dated 29th July, 2019. The petitioner deposed that the reply to the email dated 09th December, 2019 which was sent to VIT University, Vellore states that Bio-Medical Engineering is a specialization in Electronics and Communications. The relevant portion of the affidavit dated 11th December, 2019 of the petitioner is reproduced hereunder:-
―1. This Hon’ble Court on 03.06.2019 with the expressed consent of Respondents referred the matter to the Committee constituted under the Chairmanship of Prof. Dr. Harpal Singh, Head of Centre for Bio-Medical Engineering, IIT, Delhi (CBME, IITD), to examine whether the petitioner’s 5- years Dual Degree of B. Tech-M. Tech in Cognitive and Neuroscience is equivalent to B.Tech in Bio-Medical Engineering.
2. That the four membered Expert-committee headed by Prof. Harpal Singh, Head of the Department of CBME and comprising of other members namely Prof. D. Kalyansundaram, Prof. Sandeep Jha and Prof. Deepak Joshi of Centre for Bio-Medical Engineering (CBME), IIT, Delhi submitted its detailed report on 03.07.2019 before Hon’ble Court recommending that Petitioner’s 5-years Dual Degree of B.Tech-M.Tech in Cognitive and Neuroscience is equivalent to B.Tech in Bio-Medical Engineering.
3. In view of the report and recommendation submitted by the Expert Committee, this Hon’ble court accepted the report vide order dated 05.07.2019 and directed the respondent to pass appropriate order in this regard. On 09.07.2019 the respondent submitted a letter stating that one post of Examiner of Patents & Designs shall remain vacant until further orders.
4. That the Respondent denied to accept the said Expert-
committee Report and in their affidavit dated [29.07.2019] sic challenged the said report alleging that the Committee has wrongfully and erroneously compared Petitioner’s degree with the B.Tech Degree in Electronics and Communication Engineering with specialization in Bio-Medical Engineering of VIT, Vellore, which is not a degree of Bio-Medical Engineering.
5. The Respondents in their aforesaid affidavit in para 5 falsely alleged that the VIT, Vellore has discounted the degree in Bio-Medical Engineering, Para 5 of the affidavit is reproduced as follows:
―5. At this stage, it is respectfully submitted that at present there is no B.Tech degree in Bio-Medical Engineering offered by VIT, Vellore. Accordingly, it is submitted that the candidate from VIT who was selected in this recruitment examination in Bio-Medical discipline, had indeed completed B. Tech in Bio- Medical Engineering from VIT in 2012 which has however been discounted presently. Currently VIT offers B.Tech degree in Electronics and Communication with specialization in Biomedical Engineering – a course substantially different from B.Tech in Bio- Medical Engineering possessed by selected candidate from VIT Vellore. The method adopted by the committee to compare the syllabus of Dual Degree B.Tech-M.Tech in Cognitive and Neuroscience possessed by Ms. Bharati Rathore with the B.Tech degree in Electronics and Communication with specialization in Bio-Medical Engineering is thus erroneous.‖ Further, under para 8 of the affidavit dated 29.07.2019 Respondents has submitted as follows:
―8. It is respectfully submitted that as on date there is no B.Tech degree in Bio-Medical Engineering from VIT, Vellore and secondly the course with which the comparison is made is somewhat vaguely matched which cannot in any case be treated as equivalent to the degree possessed by the petitioner and thus, no relief can be granted.‖
6. That on 19.12.2019, Petitioner’s sister, Ms. Pratibha Rathore wrote an email to Dr. Amit B. Mahindrakar, Professor and Director, Students’ Welfare, VIT University, Vellore in order to ascertain the true fact whether the said Institute has discounted the Degree in B.Tech Bio-Medical Engineering.
7. On 10.12.2019, petitioner’s sister Ms. Pratibha Rathore received a reply from Dr. Amit B. Mahindrakar, Professor and Director, Students Welfare, VIT University, Vellore which reads as follows;
―We do have B. Tech Biomedical Engineering as a specialization in Electronics and Communication. This is same as B.Tech Biomedical Engineering. Since, Bio Medical Engineering includes Instrumentation and other communication it is been attached with the School of Electronics and Communication Engineering.‖ With warm regards, Dr. Amit B. Mahindrakar Professor & Director, Students’ Welfare VIT University, Vellore 632014 VIT – Recognized as Institution of Eminence (IoE) by Government of India xxx xxx xxx
9. That, it has been established from email dated 10.12.2019 of Dr. Amit B. Mahindrakar, Professor and Director, Students’ Welfare, VIT University, Vellore that the degree in B.Tech Bio-Medical Engineering offered by VIT Vellore has not been discontinued and the current B.Tech degree in Electronics and Communication Engineering with specialization in Bio-Medical Engineering is SAME as B.Tech degree in Bio-Medical Engineering.
10. It is most respectfully submitted that allegations made by the Respondents in their affidavit dated 29.07.2019 that ―the degree of B.Tech in Bio-Medical Engineering has been discontinued by VIT, Vellore and the comparison made by the Committee duly appointed by the Hon’ble Court is vague and erroneous‖ are absolutely false, and no baseless grounds and therefore, are required to be rejected out-rightly.‖ (Emphasis supplied)
25. On 24th December, 2020, this Court directed the respondents to produce the entire record relating to this case including all decisions taken by the respondents from time to time and more particularly, the decision taken regarding the filing of the affidavit dated 29th July, 2019. This Court further directed the respondents to disclose the names and designations of all the officers involved in taking the decision in this matter.
26. On 28th January, 2021 and 29th January, 2021, the respondents produced the relevant records. The inspection of these records was given to the petitioner on 01st February, 2021. Submissions of the petitioner
27. The petitioner applied for the post of Examiner of Patents & Designs relating to Bio-Medical Engineering on the basis of her qualification of 5 years B.Tech. – M.Tech. Integrated Dual Degree in Cognitive & Neuroscience from University of Rajasthan, Jaipur. Cognitive & Neuroscience is a specialized discipline of Bio-Medical Engineering and the same is a highly interdisciplinary subject.
28. The University of Rajasthan issued a Certificate on 15th January, 2019 certifying that the petitioner`s 5 years B.Tech. – M.Tech. Integrated Dual Degree in Cognitive & Neuroscience is equivalent to the B.Tech. degree in Bio-Medical Engineering and the Certificate was submitted by the petitioner to the respondents.
29. The petitioner obtained the highest score (108) in the written competitive examination (Mains) conducted by the respondents for the final selection on the said post whereas the highest score of selected candidates was 91 marks. Despite having topped the examination, the Petitioner has been deprived from selection by the Respondent.
30. The Respondent vide Office Memorandum dated 06th February, 2019 appointed a Committee to decide on the issue of equivalence of degrees in 48 cases. The Committee appointed on 06th February, 2019 held a meeting, scrutinized the said degrees and in a very hasty manner submitted its report on the very next day i.e. on 07th February, 2019 for 48 degrees. In column 24 of the report, while comparing M. Tech in Chemical Synthesis in Process Technology with Master’s Degree in Chemistry, the Committee considered the certificate issued by Delhi University, whereas in the case of the Petitioner, the Certificate issued by University of Rajasthan was not considered. The aforesaid Committee, in the most arbitrary manner, examined nine extra degrees which were never sought to be compared in the list provided in the emails.
31. Vide order dated 31st May, 2019, this Court appointed Mr. Naresh Kaushik, Advocate as Amicus Curiae and passed a consent order dated 03rd June, 2019 to seek an expert opinion of Prof. Harpal Singh, Head, Centre for Bio-Medical Engineering IIT, Delhi.
32. The Committee appointed by this Court compared the Degree of Petitioner with the B. Tech in Bio-Medical Engineering of VIT, Vellore as one of the candidates from VIT Vellore was in the list of the selected candidates of the respondent. The Committee opined that the degree of the Petitioner is equivalent to B. Tech in Bio-
Medical Engineering. This Court accepted the said Report on 05th July, 2019 and vide order dated 09th July, 2019, directed Respondents to keep one post of Examiner of Patents and Designs vacant till further orders.
33. The Respondent filed an Additional Affidavit dated 29th July, 2019 in which the Respondent stated that there is no B.Tech. degree in Bio-Medical Engineering offered by VIT, Vellore and the same has been discontinued. Thus, the comparison from the degree offered by VIT, Vellore will not serve as a bench mark.
34. Vide order dated 01st October, 2019, this Court directed the Respondent to place on record the course Curriculum of the four degrees mentioned in paras 9 to 12 of the Minutes of the Meeting dated 07th February, 2019 and also to place on record on affidavit the comparison of the said degrees with B.Tech. in Bio-Medical Engineering. It was further ordered to place on record the list of successful candidates and details of degrees held by them. This Court also directed the Respondents to place the relevant record relating to the decision taken by the Respondents with respect to the Report of the Committee dated 07th February, 2019 as well as on the Report of IIT dated 28th June, 2019.
35. The Respondent filed an affidavit dated 21st October, 2019 in which though stated in Paragraph 8 that relevant records related to the decision taken by Respondent relating to report dated 07th February, 2019 and 28th June, 2019 are being made available, but no such records have so far been made available. Thus, the Respondent has not complied with the Order of this Court. The affidavit suffers from fabrication of order passed by this Court apparent from a perusal of Paragraph 2 of the said affidavit where Para 10 of the order dated 01st October, 2019 has been reproduced in wrong manner by Respondent. Furthermore, it was shocking to note that in Annexure-A, Para 9 of the affidavit, B.Tech. in Bio-Chemical Engineering derived from the Marksheets of one Ms. Yogita Meena, who even did not qualify Mains Examination, thus cannot be compared. Serious question arises, from where the Respondents procured the marks-sheet of Ms. Yogita Meena for the said comparison purposes particularly when Ms. Yogita Meena did not even qualify the Main Examination.
36. The Petitioner, in order to ascertain as to whether, VIT, Vellore discontinued B. Tech in Bio Medical Engineering, wrote an email through her sister to the Director, Students Welfare, VIT, Vellore, who replied that VIT, Vellore has not discontinued the course B. Tech. in Bio-Medical Engineering and stated that ―We do have B. Tech. in Biomedical Engineering as a specialization in Electronics and Communications. This is same as B. Tech. in Biomedical Engineering. Since Bio-Medical Engineering includes Instrumentation and other communication, it is been attached with the School of Electronics and Communications Engineering.‖ Thus, it is a wrong assertion on the part of the Respondent that VIT, Vellore has discontinued B.Tech. in Bio-Medical Engineering.
37. It has been averred by Respondent that it is the prerogative of the employer as to which degree is equivalent. It is submitted, in all the relied cases, there is an exception of arbitrariness. In the present case, it is clear that the acts on the part of the Respondent have been arbitrary and malafide, who deliberately do not want to appoint the Petitioner despite the fact that she had topped the examination and even after her degree being held equivalent to the required degree of Bio-Medical Engineering by the most renowned institute of India, IIT, Delhi.
38. Reliance is placed on East Coast Railway v. Mahadev Appa Rao, (2010) 7 SCC 678; Union of India v. Ram Lakhan Sharma, (2018) 7 SCC 670; Dinesh Kumar Kashyap v. South East Central Railway, (2019) 12 SCC 798; Sangita Rani Arora v. Union of India, 246 (2018) DLT 92 and Senthil v. The Chairman (Teacher’s Recruitment Board, 2017 SCC OnLine Mad 29594.
Submissions of the respondents
39. The Department carried the document verification on 20th January, 2019. The NPC, vide email dated 23rd January, 2019, wrote to the Department stating that the verification for 675 candidates was done. However, there were some degrees other than those specified in the Information Bulletin/Advertisement that required the department to take a decision before considering the eligibility of such candidates.
40. Pursuant to the request received from NPC, the Department vide OM No. P-24017/22/2019-IPR-I dated 06th February, 2019, decided to constitute a Committee comprising of technical members to examine and decide on the issue of equivalence of degrees (other than those specified in the information bulletin/ advertisement). The Committee comprised of members from All India Council of Technical Education, Delhi Technological University, National Productivity Council, CGPDTM and National Institute of Technology, Delhi.
41. The Committee deliberated on the contents of each of the degrees listed in the Information Bulletin vis-a-vis the degrees indentified by NPC in their email dated 23rd January, 2019, and thereafter, identified which degrees could be considered eligible. Minutes of Meeting dated 07th February, 2019, clearly indicate at serial number 9-12 that the degree of Cognitive and Neuroscience, was not considered to be equivalent to the Bachelor’s degree in Bio – Medical Engineering/Technology.
42. On 12th February, 2019, the results were declared and considering the decision of the Committee, the Petitioner was not considered to be eligible for the subject post.
43. The respondents have followed and applied the procedure set out in the information memorandum/Information Bulletin. All the candidates were aware and informed of the process which specifically provided that verification would be done only after the declaration of the results and post the Mains Examination. The candidates were also informed that their application was liable for rejection at the verification stage. Out of the 675 candidates shortlisted provisionally, 14 ineligible candidates were rejected after document verification, including the Petitioner. 38 degrees were considered to be eligible whereas 10 degrees were identified to be not eligible with respect to the essential educational qualification.
44. The course curriculum of four degrees mentioned at paras 9 to 12 of the Minutes of the Meeting dated 07th February, 2019, have been compiled from the available degree/records of the candidates belonging to the said discipline provided by the recruiting agency i.e. National Productivity Council (NPC).
45. The comparison of four degrees indicated at paras 9 to 12 with the B.Tech. in Bio-Medical Engineering issued by Maharishi Dayanand University, Rohtak has been carried out by a team of officers of Bio-Medical Engineering group (One Controller and one examiner) of respondent No.2.
46. The course curriculum of Bachelor of Technology in Bio- Medical Engineering issued by Maharishi Dayanand University (MDU), Rohtak has been attached with the Additional Affidavit dated 01st October, 2019. This information is compiled from the available degree/records of Ms. Sonia Sharma, a successful candidate belonging to the said discipline and as provided by the recruiting agency i.e. National Productivity Council (NPC).
47. Reliance is placed on State of Rajasthan v. Lata Arun, (2002) 6 SCC 252; Bihar Public Service Commission v. Kamini, (2007) 5 SCC 519; Basic Education Board, U.P. v. Upendra Rai, (2008) 3 SCC 432; Chandigarh Administration v. Usha Kheterpal Waie, (2011) 9 SCC 645 and Zahoor Ahmad Rather v. Sheikh Imtiyaz Ahmad, (2019) 2 SCC 404.
Petitioner’s response to the judgments cited by the respondents
48. The procedure adopted by the Respondents is arbitrary and therefore, the cases relied upon by the Respondents are not at all applicable to the present case.
49. In State of Rajasthan v. Lata Arun, (2002) 6 SCC 252, the issue which arose for consideration was whether the respondent had the eligibility qualification for admission in nursing course in the year 1990. The minimum prescribed qualification prescribed by the notification was that the candidates should have passed first year of Three Years’ Degree course (TDC) or 10+2; and that the candidates with science subjects (Biology, Chemistry, Physics) will be given preference. Furthermore, the Indian Nursing Council prescribed minimum educational qualification for all candidates was 12th class pass or its equivalent preferably with science subjects. Respondent possessed a Madhyama Certificate issued by the Hindi Sahitya Sammelan, Allahabad in 1984 which was recognized as equivalent to a degree in Hindi. The said recognition was withdrawn with effect from 01st April, 1985. The respondent was given provisional admission in the nursing course which was subsequently cancelled as she did not have the educational qualification prescribed for the course. The first writ filed by her was disposed of with the direction to Nursing Council to consider the matter sympathetically. Subsequently, Nursing Council took the decision that the respondent was not eligible for admission to the General Nursing Course since she had no background in Biology and she did not possess the requisite educational qualification. A second writ was filed and was allowed and same was upheld by the Division Bench on the ground that the order passed by the High Court in the first writ petition filed by the respondent, the Nursing Council should have decided the matter granting relief to the respondent. The Supreme Court observed that there were two issues; one relating to the prescription of minimum educational qualification for admission to the course and the other relating to recognition of the Madhyama Certificate issued by the Hindi Sahitya Sammelan, Allahabad as equivalent to or higher than 10 +2 or 1st year of TDC for the purpose of admission.
In these facts, the Supreme Court held that both these points relate to matters in the realm of policy decision to be taken by the State Government or the authority vested with power under any statute. It was further held that it is not for the Court to decide the equivalence. However, in the present case the rejection of the petitioner’s claim of equivalence suffer from non-application of mind arbitrariness as well as non-consideration of the certificate of equivalence issued by Rajasthan University. Moreover, this Court appointed an Expert Committee with the consent of both the parties to opine on the petitioner’s claim of equivalence.
50. In Bihar Public Service Commission v. Kamini, (2007) 5 SCC 519, the candidate applied for the post of District Fisheries Officer for which the prescribed qualification B.Sc. Zoology with a 2 years Diploma in Fisheries Science from Central Institute of Fisheries Education, Mumbai or a Graduate Degree in Fisheries Science (B.F.S.C.) from a recognized University or M.Sc. (Inland Fisheries Administration & Management) with Zoology from the Central Institute of Fisheries Education, Mumbai. The candidate was holding the degree of B.Sc. Hons. (Chemistry) with Zoology and Botany in First Class and her candidature was rejected by the Expert Committee. The candidate challenged the decision of the Expert Committee was dismissed by the Single Bench of the High Court but was allowed by the Division Bench. The Division Bench observed that the ‗litmus test’ was the admission granted to the respondent by the Central Institute of Fisheries Education, Mumbai and if the respondent did not possess Bachelor of Science Degree with Zoology, the Institute would not have admitted her to the said course. The Division Bench further observed that the respondent was admitted to the said course, she had passed it with flying colors. Upon challenge, the Supreme Court held that the Division Bench was not right in applying the ‗litmus test’ of admission of the first respondent by Central Institute of Fisheries Education, Mumbai. The Supreme Court observed that the controversy was whether the first respondent was eligible for the post of District Fisheries Officer. The correct test, therefore, was not admission by Mumbai Institution. If the requirement was of Honours in B.Sc. with Zoology and if respondent had cleared B.Sc. Honours with Chemistry only, it could not be said that she was eligible to the post having requisite educational qualifications. In light of these facts, the Supreme Court held that the decision of the Expert Committee cannot be termed as arbitrary or otherwise objectionable. The Supreme Court further observed that the Court is not an expert and therefore, the decision in respect thereof should be left to the Educational Institution. This judgment does not support the respondent because the Supreme Court disagreed with the reasoning of the Division Bench of High Court and found that the decision of the Expert Committee was not arbitrary meaning thereby that in case of arbitrary action, the Courts can interfere in the matter.
51. In Basic Education Board, U.P. v. Upendra Rai, (2008) 3 SCC 432, the candidate applied for the post of Assistant Master in Junior Basic Schools in U.P. for which the essential academic qualification prescribed was mentioned in Rule 8 of the U.P. Basic Education (Teachers) Service Rules, 1981 framed under the U.P. Basic Education Act, 1972. Rule 8 prescribed essential academic qualification which was Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or any other qualification recognized by the Government as equivalent thereto together with training qualification consisting of a Basic Teacher Certificate (BTC), Hindustani Teacher Certificate, Junior Teacher Certificate, Certificate of teaching or any other training course recognized by the Government as equivalent thereto. The candidate was holding the qualification of Diploma in Education (D.Ed.) and did not hold any of the certificates of training qualification referred to in Rule 8. Furthermore, D.Ed. certificate was earlier recognized as equivalent to BTC of U.P. but the same was rescinded by the U.P. Government Circular dated 11th August, 1997. The relevant date for appointment of respondent was after the Circular dated 11 th August, 1997 and the same was binding on him. The candidature of the candidate was rejected on the ground that he did not possess the qualification mentioned in the said Circular. The Supreme Court held that the D.Ed. Certificate was no longer regarded as equivalent to BTC after the Circular and the same was a policy decision of the Government, and the Court cannot interfere with policy decisions of the Government unless it is in violation of some statutory or constitutional provision. Hence, the respondent was not entitled to be appointed as Assistant Master of a Junior Basic School in U.P. This judgment does not support the respondent because the Diploma in Education (D.Ed.) was declared to be non-equivalent by the government prior to the appointment and same is distinguishable on facts.
52. In Chandigarh Administration v. Usha Kheterpal Waie, (2011) 9 SCC 645, the eligibility criteria of Ph.D. prescribed for the post of Principal was challenged before Central Administrative Tribunal. The Tribunal allowed the challenge holding that in the absence of any Recruitment Rules prescribing such qualification, PhD degree was not an eligibility requirement for the post of Principal and same was upheld by the High Court. The Supreme Court held that the Court cannot prescribe the qualifications or entrench upon the power of the authority to prescribe the qualifications. This judgment has no relevance to the facts of present case as the eligibility criteria is not an issue before this Court.
53. In Zahoor Ahmad Rather v. Sheikh Imtiyaz Ahmad, (2019) 2 SCC 404, the issue related to the appointment of Technician III in Power Development Department, State of Jammu and Kashmir. The qualification prescribed was Matriculation with ITI in Electrical Trade. Some of appellants held diploma in Electrical Engineering and some in Electronics and Communication who had applied for the post. However, none of them possessed the ITI certification. It was noted that in some District Centers their interviews were also conducted. The Selection Board held a meeting that only ITI is relevant for the trade in question and rest of the candidates were not eligible. The Single Bench of High Court allowed the challenge by the unsuccessful candidates on the ground that the SSSB cannot exclude the appellants after the process of selection was in motion as they had been subjected to a written test as well as an interview. In the view of the Single Bench of High Court, the rules could not have been changed after the selection process had been initiated, particularly since the list of disqualified candidates did not include them. A candidate possessing a Diploma-Electrical is entitled to appointment to the post of Junior Engineer which ranks higher than the post of Technician III. In this line of reasoning, if the appellants were eligible to hold a higher post, their qualification was adequate for the post of Technician III and a Diploma in Electrical Engineering presupposes the acquisition of the lower qualification of Matric with ITI. This was overruled by the Division Bench of the High Court on the ground having higher qualification presupposes the acquisition of lower qualification and same was challenged before the Supreme Court. The Supreme Court held that Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596, which was followed by the Division Bench turned on the provisions of Rule 10(a)(ii) of the Kerala State and Subordinate Services Rules, 1958 stipulated that higher qualifications which presuppose the acquisition of the lower qualification prescribed for the post shall also be sufficient for the post was not applicable to this case as there was no such rule applicable to present candidates. This judgment does not support the respondent because it concerned the interpretation of Jyoti K.K. (supra) and Rule 10(a)(ii) of the Kerala State and Subordinate Services Rules, 1958 and same is distinguishable on facts.
Discussion and Findings
54. According to the petitioner, the degree of B.Tech. & M.Tech. in Cognitive & Neuroscience is equivalent to B.Tech. in Bio-Medical Engineering. The petitioner relies upon (i) Certificate dated 15th January, 2019 issued by the University of Rajasthan reproduced in para 4 above, and (ii) Comparative table of B.Tech in Bio-Medical Engineering of National Institute of Technology (NIT), Raipur with the petitioner’s degree which is at pages 106 to 113 of the petition. Both these documents were neither considered by the respondents nor by the 12 Member Committee of the respondents.
55. According to the respondents, the petitioner’s degree is not equivalent to B.Tech. in Bio-Medical Engineering. The respondents rely upon the Expert Committee constituted on 06th February, 2019 which examined 48 degrees to compare their equivalence including the petitioner’s degree. According to the respondents, the Committee deliberated upon the contents of each of the degrees and took a decision which is contained in the Minutes of the Meeting dated 07th February, 2019. The Minutes of the Meeting dated 07th February, 2019 have been placed on record as Annexure 5 to the affidavit dated 30th May, 2019.
56. Vide order dated 24th December, 2020, this Court directed the respondents to produce the entire record, whereupon the respondents produced the record with respect to the Committee appointed by the respondents on 06th February, 2019 to compare the degrees. The Committee was constituted on 06th February, 2019 and the email was sent on 06th February, 2019 to the 12 members of the Committee to attend the meeting of the Committee on 07th February, 2019. The Committee met on 07th February, 2019 at National Productivity Council (NPC), Sameeksha Hall, Lodi Road, New Delhi.
57. The record produced by the respondents do not reflect that the course curriculum of any degree was circulated to the members of the Expert Committee or was shown to the members of the Committee at the time of meeting. The record does not reflect whether B.Tech. in Bio-Medical Engineering of any particular Institute was taken as a benchmark for comparison with the petitioner’s degree. There is no material on record to show that the members of the Committee deliberated on any of the course curriculum of any degree or followed any established procedure/guidelines for deciding the equivalence of the degree. This Court also notes that there was no expert of Bio-Medical Engineering in the Committee.
58. The Report of the Committee appointed by the respondents on 06th February, 2019 which considered 48 degrees including the petitioner’s degree smacks of complete arbitrariness as the respondents neither placed the course curriculum of 48 degrees nor the course curriculum of any degree treated as bench mark for comparison before the Committee. The Report of the Committee is a mere eyewash and is rejected. The respondents have made a false statement in para 6 of their affidavit dated 30 th May, 2019 that the Committee deliberated on the contents of each of the degrees.
59. The petitioner submitted a Certificate dated 15 th January, 2019 issued by the University of Rajasthan before the respondents, according to which, the petitioner’s degree is equivalent to B.Tech. in Bio-Medical Engineering. The petitioner also submitted a comparative table comparing the course of the petitioner’s degree and B.Tech. in Bio-Medical Engineering by NIT, Raipur. The respondents neither considered the Certificate/comparative table nor produced it before the Committee appointed by it. However, while comparing the degree of a different candidate who had a M. Tech in Chemical Synthesis in Process Technology with Master’s Degree in Chemistry, the Committee considered the certificate issued by Delhi University and accepted the degree of M. Tech in Chemical Synthesis in Process Technology to be equivalent to the Master’s Degree in Chemistry a candidate. The relevant portion of the Minutes of the Meeting is at page 356 of the Court record.
60. On 31st May, 2019, this Court considered the Minutes of the Meeting of the Committee dated 07th February, 2019. This Court was not satisfied with the Committee’s Minutes dated 07th February, 2019. On 03rd June, 2019, this Court was informed that Indian Institute of Technology, Delhi has a Centre named Centre for Biomedical Engineering and Professor Harpal Singh is the Head of the Centre. With the consent of both the parties vide order dated 03rd June, 2019, this Court sought the expert opinion from Indian Institute of Technology by directing Professor Harpal Singh and faculty members to examine the matter and submit a report after affording an opportunity of hearing to both the parties.
61. The Committee appointed by this Court with the consent of both the parties submitted the Report dated 28th June, 2019, according to which the petitioner’s degree is equivalent to Bio- Medical Engineering. The Committee compared the B.Tech. in Bio- Medical Engineering of VIT, Vellore with the petitioner’s degree whereupon the Committee compared the syllabus and found that the syllabus of both the courses matched more than 70%. The Report of the Committee is reproduced in para 18 above. This Court considered and accepted the Report on 05th July, 2019.
62. On 29th July, 2019, the respondents filed an additional affidavit in which it was stated that B.Tech. in Bio-Medical Engineering has been discontinued by VIT, Vellore and therefore, the method adopted by the Committee is erroneous. Relevant portion of the additional affidavit dated 29th July, 2019 is reproduced in para 21 above.
63. On 11th December, 2019, the petitioner filed a supplementary affidavit, in which it was stated that the respondents made false averments in the affidavit dated 29th July, 2019. The petitioner deposed that VIT, Vellore has confirmed in their email dated 09 th December, 2019 that Bio-Medical Engineering is a specialization of Electronics and Communication. Relevant portion of the affidavit dated 11th December, 2019 is reproduced in para 24 above.
64. The validity of the respondent’s decision contained in the Minutes of Meeting dated 07th February, 2019 has to be judged by the reasons stated in the Minutes itself and can’t be supplemented by the fresh reasons later on. The affidavits filed by the respondents can’t be relied upon to improve or supplement an order. The law is well settled that the validity of an order has to be judged by the reasons stated in the order itself and not by anything else, otherwise an order bad in the beginning, by the time it comes to the Court on account of a challenge, gets validated by additional grounds later brought out. Reference be made to the following judgments in this regard:
(i) In Commissioner of Police v. Gordhandas Bhanji, 1952 SCR 135, the Supreme Court held that an administrative order cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Vivian Bose, J., held as under:
―13…public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.‖
(ii) This question again arose before the Constitution Bench of the Supreme Court in Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405 in which Krishna Iyer, J following Gordhandas Bhanji (supra) held as under:-
―8. …………… when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji [Commr. of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16] :
―Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.‖ Orders are not like old wine becoming better as they grow older.‖
(iii) In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences, (2002) 1 SCC 520, the Supreme Court, following Mohinder Singh Gill (supra) again held that an affidavit cannot be relied on to improve or supplement an order. The Supreme Court observed as under:-
―34. That an affidavit cannot be relied on to improve or supplement an order has been held by a Constitution Bench in Mohinder Singh Gill v. Chief Election Commr., New Delhi [(1978) 1 SCC 405 : AIR 1978 SC 851] :
(SCC p. 417, para 8) ―[W]hen a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.‖
35. Equally, an order which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order. This is also what was held in State of U.P. v. Kaushal Kishore Shukla [(1991) 1 SCC 691 : 1991 SCC (L&S) 587 : (1991) 16 ATC 498] : (SCC p. 705, para 13) ―The allegations made against the respondent contained in the counter-affidavit by way of a defence filed on behalf of the appellants also do not change the nature and character of the order of termination.‖
(iv) In East Coast Railway v. Mahadev Appa Rao, (2010) 7 SCC 678, the Supreme Court following the earlier decisions mentioned above again reiterated the law laid down in the aforesaid judgments. Relevant portion of the said judgment is as under:
―9. There is no quarrel with the well-settled proposition of law that an order passed by a public authority exercising administrative/executive or statutory powers must be judged by the reasons stated in the order or any record or file contemporaneously maintained. It follows that the infirmity arising out of the absence of reasons cannot be cured by the authority passing the order stating such reasons in an affidavit filed before the court where the validity of any such order is under challenge. The legal position in this regard is settled by the decision of this Court in Commr. of Police v. Gordhandas Bhanji [AIR 1952 SC 16] wherein this Court observed: (AIR p. 18, para 9) ―9. … public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.‖‖
(v) In Rashmi Metaliks Ltd. v. Kolkata Metropolitan Development Authority, (2013) 10 SCC 95, the Supreme Court following Mohinder Singh Gill (supra) and Gordhandas Bhanji (supra) held as under:-
―14…………..Regardless of the weight, pithiness or sufficiency of the explanation given by the appellant Company in this regard, this issue in its entirety has become irrelevant for our cogitation for the reason that it does not feature as a reason for the impugned rejection. This ground should have been articulated at the very inception itself, and now it is not forensically fair or permissible for the authority or any of the respondents to adopt this ground for the first time in this second salvo of litigation by way of a side wind.
15. The impugned judgment [Rashmi Metaliks Ltd. v.
Kolkata Metropolitan Development Authority, MAT No. 1031 of 2013, decided on 11-7-2013 (Cal)] is indubitably a cryptic one and does not contain the reasons on which the decision is predicated. Since reasons are not contained in the impugned judgment [Rashmi Metaliks Ltd. v. Kolkata Metropolitan Development Authority, MAT No. 1031 of 2013, decided on 11-7-2013 (Cal)] itself, it must be set aside on the short ground that a party cannot be permitted to travel beyond the stand adopted and expressed by it in its earlier decision.‖ (Emphasis supplied)
(vi) In Dipak Babaria v. State of Gujarat, (2014) 3 SCC 502, the Supreme Court following Mohinder Singh Gill (supra) and Gordhandas Bhanji (supra) again held that the Government cannot improve its stand by filing subsequent affidavits. ―64. That apart, it has to be examined whether the Government had given sufficient reasons for the order it passed, at the time of passing such order. The Government must defend its action on the basis of the order that it has passed, and it cannot improve its stand by filing subsequent affidavits as laid down by this Court long back in Commr. of Police v. Gordhandas Bhanji [AIR 1952 SC 16] in the following words: (AIR p. 18, para 9) ―9. … public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.‖ This proposition has been quoted with approval in para 8 by a Constitution Bench in Mohinder Singh Gill v. Chief Election Commr. [(1978) 1 SCC 405] wherein Krishna Iyer, J. has stated as follows: (SCC p. 417)‖ (Emphasis supplied)
(vii) In Kunjumon Thankappan v. Chief Passport Officer, (2012) 2 KLT 25, a passport was impounded on the ground that a criminal case was pending against the passport holder. The impounding order was challenged in appeal on the ground that no criminal case was pending against the person except two cases pending before the Family Court which were also settled. The Kerala High Court held that the proceedings pending before the Family Court do not render a person ineligible for issuance of passport under Section 6(2)(f) and therefore, the impounding order was bad. An additional ground was raised before the High Court that there was a suppression of a material fact by the petitioner. The Kerala High Court relying on Mohinder Singh Gill (supra) held that since the suppression was not a reason relied upon in the impounding order, and therefore, which is ground cannot be raised by the respondents. Relevant portion of the said order is reproduced hereunder:
―9. As far as the suppression alleged against the petitioner is concerned, that is not a ground relied on in Ext. P1 order. It is the settled position of law Mohinder Singh Gill v. Chief Election Commissioner, New Delhi:
AIR 1978 SC 851 that the validity of an order has to be judged based on the reasons stated in the order itself and not by anything else. Therefore, since suppression alleged is not a reason relied on in Ext. P1, I am not inclined to entertain the submission now made by the learned counsel for the respondents……………‖ (Emphasis supplied)
65. According to the respondents, this Court cannot interfere with the minimum qualifications prescribed by the respondents. The respondents further contend that this Court cannot interfere in the decision taken by the respondents that the petitioner’s degree is not equivalent to the prescribed qualification as this Court does not have the requisite expertise. It is not in issue that the Court cannot interfere with the minimum qualifications prescribed by the employing authority. In the present case, this Court is not in any manner interfering with the minimum qualifications prescribed for the post of Examiner of Patents and Designs. appointed an Expert Committee to examine the matter. The Expert Committee of IIT, Delhi has submitted the Report which has been accepted by this Court. The respondents, instead of gracefully accepting the Expert Report, have resorted to filing false affidavit to frustrate this petition and overreach this Court. In East Coast Railway (supra), the Supreme Court explained the arbitrary action as under:
―23. Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non- application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable.‖ (Emphasis Supplied)
66. In Sangita Rani Arora v. Union of India, 246 (2018) DLT 92, the petitioner therein applied for the post of Specialist Officer [(Marketing Officer) (Scale-I)] with Canara Bank and was selected for the post. However, the Canara Bank later cancelled the provisional appointment on the ground that the petitioner’s degree of Master in Marketing Management was not equivalent to MBA (Marketing). The petitioner filed the writ petition before this Court.
The petitioner relied upon a notification of UGC by which the degree of Master in Marketing Management was restructured as MBA/M.Com (Marketing Management). In terms of the notification of the UGC, Savitribai Phule Pune University, from which the petitioner had acquired Master in Marketing Management, issued a circular changing the nomenclature of Master in Marketing Management to MBA (Marketing Management). This Court held the petitioner’s degree to be equivalent to MBA (Marketing) Management. The Court relied upon the Bombay High Court judgment in Neelam Rama Kamble v. Union of India, in W.P.(C) 5283/2016. Relevant portion of the judgment is reproduced hereunder:-
―11. Having heard the learned counsel for the parties, the only issue which arises for consideration is whether the qualification of Master in Marketing Management possessed by the petitioner is the same or equivalent to the qualification of MBA (Marketing) as required by the advertisement dated November 16, 2015 issued by the respondent no.2 for appointment to the post of Marketing Officer in the respondent Bank.
12. It is noted pursuant to the notification of the UGC of March, 2014 (notified on July 05, 2014) wherein the Degree of Master in Marketing Management has been restructured as MBA (Marketing Management), the University from which the petitioner had acquired his Master in Marketing Management, i.e., University of Pune later named as Savitribai Phule Pune University has vide its circular dated June 22, 2015, has changed the nomenclature of the Degree of Master in Marketing Management as MBA (Marketing Management), which is the requirement in terms of the advertisement dated November 16, 2015. So, the plea of the respondent no.3 Canara Bank in their pleadings that the petitioner no.13 herein does have the prescribed qualification in terms of the advertisement dated November 16, 2015 is not sustainable. I find, despite the petitioner filing an application being CM. No. 12337/2017 wherein the petitioner had relied upon the notification of the UGC of March, 2014 (as notified on July 5, 2014), no attempt has been made by the Canara Bank to clarify the position which emerges from the notification of March, 2014 (as notified on July 5, 2014) by the UGC, rather they in their affidavit filed on January 30, 2017, they reiterate the position initially taken in their counter-affidavit that the petitioner’s qualification of Master in Marketing Management is not a prescribed qualification in the advertisement dated November 16, 2015.
13. The case of the petitioner is covered by the judgment of the Bombay High in the case of Neelam Rama Kamble v.
Union of India and Ors. in W.P.(C) 5283/2016 inasmuch as in the said case also, the Degree which was acquired by the petitioner was in Food Technology. The said Degree was termed / known as Degree Course in Food Science till 2006- 2007 and thereafter as Food Technology. The appeal of the Canara Bank was dismissed by the Supreme Court…The petitioner is also entitled to the relief as prayed for in the present petition inasmuch the decision of the respondent no.3 dated March 29, 2016 to cancel the provisional allotment of the petitioner for the post of Specialist Officer [(Marketing Officer) (Scale-I)] is set aside and the respondent no.3 Canara Bank is directed to issue appointment letter in favour of the petitioner within four weeks and the appointment of the petitioner shall be treated of the batch for which, the petitioner was allotted the said post.‖
67. In Senthil v. The Chairman, Teacher’s Recruitment Board, (supra), the petitioner therein applied for the post of Assistant Professor (Engineering / Non-Engineering) for Government Engineering College and scored fourth rank in the merit list. However, he was not selected on the ground that his degree M.E.(Computer Integrated Manufacturing Engineering) was not equivalent to M.E.(Manufacturing Engineering) which was a requisite qualification for the post. The petitioner filed a writ petition before the Madras High Court. The petitioner relied upon the Certificate issued by the Anna University that the petitioner’s degree can be considered equivalent to M.E. (Manufacturing Engineering), which was not considered by the respondents. Madras High Court held that the respondents should have considered the Certificate issued by Anna University. Relevant portion of the judgment is reproduced hereunder:
―27. On 22.10.2012, the petitioner sent a representation to the second respondent enclosing the relevant copies of letters, including the aforesaid letter of the Anna University, dated 19.10.2012, requesting to consider M.E. (Computer Integrated Manufacturing) as P.G. course under the Faculty of Mechanical Engineering and to give appointment to him.
Despite receipt of the representation dated 22.10.2012, the second respondent has not considered the same.
28. When the Anna University stated that M.E. degree in Computer Integrated Manufacturing can be considered equivalent to M.E. (Manufacturing Engineering), the respondent authorities ought to have consider the claim of the petitioner.
29. Nothing prevented the Teachers Recruitment Board or Director of Technical Education to wr[i]te a letter to the Anna University to know that whether M.E. degree in Computer Integrated Manufacturing is equivalent to M.E. (Manufacturing Engineering). Admittedly, in the case on hand, the respondents 1 and 2 have not done so. Though, there is a delay in obtaining equivalence letter from the Anna University by the petitioner, the delay cannot put against him. Being a meritorious candidate and having secured 127 marks in the written examination, the claim of the petitioner has to be favourably considered by the respondent authorities.
xxx xxx xxx
31. Though the matter of equivalence was decided by Experts appointed by the Government and the Court does not have expertise in such matters, when competent authority of the University issued a letter of equivalence in favour of the petitioner, the Court cannot shut its eyes to examine the said letter. To disprove the letter dated 19.10.2012 of the Anna University, the respondents 1 and 2 have not produced any material.
32. As stated supra, the petitioner was possessing Degree of Master of Engineering in Computer Integrated Manufacturing under the Faculty of Mechanical Engineering, which shows that he acquired qualification in Mechanical Engineering and the said qualification is to be treated as M.E. in Mechanical Engineering.
33. Considering the first rank in his community and over all fourth rank in the merit list, the claim of the petitioner is to be considered by the respondent authorities sympathetically and if the petitioner was considered in the selection list, no prejudice would be caused to persons already selected since when the writ petition was admitted on 21.12.2012, the learned Single Judge of this Court passed the following order:
―Any selection made to the post of Assistant Professor in Mechanical Engineering Department in Government Engineering College 2011-2012, pursuant to the notification, is subject to the result of the writ petition. Notice.‖ The said interim order has not been vacated so far and the same was in operation.
34. As stated supra, the writ petition was admitted as early as on 21.12.2012 and it is pending for nearly 5 = years, but no steps have been taken by the respondent authorities to ascertain the factual position, if they are having any doubt over the P.G. degree obtained by the petitioner, by getting the same clarified by the Equivalence Committee. No proceedings of the Equivalence Committee to the contrary has been produced to hold that the qualification of M.E. degree in Computer Integrated Manufacturing possessed by the petitioner was not equivalent qualification. In the said circumstances, this Court finds that the petitioner is entitled to succeed.
xxx xxx xxx
36. For the foregoing discussions, the writ petition is allowed. The respondent authorities are directed to appoint the petitioner as Assistant Professor in Mechanical Engineering in any one of the Government Engineering College by accepting the M.E. certificate (Computer Integrated Manufacturing) under the Faculty of M.E. (Mechanical Engineering) by placing him in the appropriate place of selection list on a par with the impugned selected candidates and give benefits for promotional and pensionary benefits for the period of five years….‖ (Emphasis supplied)
68. The judgments relied upon by the respondent namely, State of Rajasthan v. Lata Arun, (2002) 6 SCC 252; Bihar Public Service Commission v. Kamini, (2007) 5 SCC 519; Basic Education Board, U.P. v. Upendra Rai, (2008) 3 SCC 432; Chandigarh Administration v. Usha Kheterpal Waie, (2011) 9 SCC 645 and Zahoor Ahmad Rather v. Sheikh Imtiyaz Ahmad, (2019) 2 SCC 404 do not help the respondent for the reasons given by the petitioner in paragraphs 49 to 54 which are hereby accepted.
69. The respondents have filed an affidavit dated 29 th July, 2019 containing an averment that the B.Tech degree in Electronics and Communication of VIT Vellore is substantially different from B.Tech in Bio-Technology. This statement is false as VIT Vellore has confirmed in writing that B.Tech in Bio-Medical Engineering is a specialization in Electronics and Communication which is same as B.Tech. in Bio-Medical Engineering. The respondents have made a second false statement in their affidavit dated 29th July, 2019 that the Expert Committee appointed by this Court vaguely matched the petitioner’s degree. The statement is also false as the Committee appointed by this Court has done a detailed comparison and the comparative charts have been attached to the Report (Five pages from page 362 to 364). The false statements made by the respondents in their affidavit dated 29th July, 2019 are reproduced in para 21 above whereas the response of VIT Vellore have been reproduced in para 24 above.
Consequences of filing false affidavit
70. In Dhananjay Sharma v. State of Haryana, (1995) 3 SCC 757, the Supreme Court held as under:-
―38…The swearing of false affidavits in judicial proceedings not only has the tendency of causing obstruction in the due course of judicial proceedings but has also the tendency to impede, obstruct and interfere with the administration of justice. The filing of false affidavits in judicial proceedings in any court of law exposes the intention of the party concerned in perverting the course of justice. The due process of law cannot be permitted to be slighted nor the majesty of law be made a mockery of by such acts or conduct on the part of the parties to the litigation or even while appearing as witnesses. Anyone who makes an attempt to impede or undermine or obstruct the free flow of the unsoiled stream of justice by resorting to the filing of false evidence, commits criminal contempt of the court and renders himself liable to be dealt with in accordance with the Act. Filing of false affidavits or making false statement on oath in courts aims at striking a blow at the rule of law and no court can ignore such conduct which has the tendency to shake public confidence in the judicial institutions because the very structure of an ordered life is put at stake. It would be a great public disaster if the fountain of justice is allowed to be poisoned by anyone resorting to filing of false affidavits or giving of false statements and fabricating false evidence in a court of law. The stream of justice has to be kept clear and pure and anyone soiling its purity must be dealt with sternly so that the message percolates loud and clear that no one can be permitted to undermine the dignity of the court and interfere with the due course of judicial proceedings or the administration of justice.‖ (Emphasis supplied)
71. In Murray & Co. v. Ashok Kr. Newatia, (2000) 2 SCC 367, the Supreme Court held as under:-
―17. …While it is true that the statement made in the affidavit has been introduced as and by way of a denial but the fact remains that such a statement has in fact been made in an affidavit before this Court. The litigant public ought to be extremely careful and cautious in the matter of making statements before courts of law. Whether, however, the respondent has obtained a definite advantage or not is wholly immaterial in the matter of commission of offence under the Act, though the same would be a relevant factor in the context of punishment to be imposed against a contemner…‖ (Emphasis supplied)
72. In Nidhi Kaushik v. Union of India, (2014) 212 DLT 5 (DB), the respondents resorted to filing false affidavits before this Court. Relevant portion of the said judgment is reproduced hereunder:-
―26.2. Next question arises as to what action should be taken against the respondents with respect to the false statements made on oath and refusal to follow the well settled law by the Apex Court and this Court. It cannot be gainsaid that the judgments mentioned above are binding on the respondents who could not have bypassed or disregarded them except at the peril of contempt of this Court. This cannot be said to be a mere lapse. It is a fit case for ordering inquiry or initiating proceedings for contempt of court. However, before taking further action in this matter, this Court would like the Secretary, Ministry of Heavy Industries & Public Enterprises and the CMD of BHEL to look into this matter and consider the implication of the respondents’ refusal to follow the well-settled law, making false statements on oath, making wrong submissions on facts and misleading this Court. The learned ASG is requested to assist this Court in this matter.
27. List on 30th May, 2014 for response from the Secretary, Ministry of Heavy Industries & Public Enterprises and CMD of BHEL. A senior officer from the office of Secretary, Ministry of Heavy Industries & Public Enterprises shall remain present with complete instructions. The CMD of BHEL shall take an independent view in the matter without the aid and advice of the officers involved in taking decision of the cancellation of the appellant’s appointment/rejection of the appeal and shall depute a senior officer with complete instructions to attend the Court.
28. The Executive Director (HR & CC) of BHEL, who has filed the affidavits containing false and misleading statements shall remain personally present in Court on 30th May, 2014 to show cause why action be not taken against him. He shall also disclose the names of other officers responsible for the lapses.
29. Copy of this judgment be given dasti to the Standing Counsel for Union of India, who shall have the same delivered to the Secretary, Ministry of Heavy Industries & Public Enterprises and CMD of BHEL without any delay. The Standing Counsel shall also send a copy of this judgment to the Secretary (Law & Justice) and U.P.S.C. for considering the suggestions of this Court to incorporate additional questions in the attestation form for appointments in government and statutory bodies.‖
73. In FAO 265/2014 titled Union of India v. Kiran Kanojia, W.P.(C) 7553/2015 titled Hajara v. Government of India and RFA 457/2017 titled Cement Corporation of India Ltd v. Mohan Singh, this Court noted that false statements were made before this Court whereupon this Court initiated action.
Conclusion
74. The petitioner’s degree B.Tech and M.Tech in Cognitive & Neuroscience has been held to be not equivalent to B.Tech in Bio- Medical Engineering by a twelve member Committee on 07th February, 2019 without examining the course curriculum of the petitioner’s degree or comparing it with the course curriculum of B.Tech in Bio-Medical Engineering. There was no expert of Bio- Medical Engineering in the twelve member Committee. The Committee neither considered the Certificate dated 15th January, 2019 issued by University of Rajasthan nor the comparative table of B.Tech in Bio-Medical Engineering of NIT, Raipur and the petitioner’s degree which were submitted by the petitioner. The Committee did not give any reasons for holding petitioner’s degree not equivalent to the B.Tech in Bio-Medical Engineering. The validity of the Committee’s decision dated 07th February, 2019 cannot be supplemented by fresh reasons later on. The Committee’s Minutes dated 07th February, 2019 reflect complete arbitrariness and non-application of mind, and are therefore, rejected.
75. On 03rd June, 2019, this Court, with the consent of both the parties, referred the issue in question for expert opinion to the Centre for Biomedical Engineering, Indian Institute of Technology, Delhi whereupon the Centre for Biomedical Engineering, Indian Institute of Technology, Delhi constituted a Committee comprising of Prof. Harpal Singh, Head, Centre for Biomedical Engineering IIT Delhi, Prof. Sandeep Jha, Prof. Dinesh Kalyansundaram and Prof. Deepak Joshi. The Committee heard both the parties and thereafter submitted a Report dated 28th June, 2019 before this Court according to which the petitioner’s degree was considered equivalent to B.Tech of Bio- Medical Engineering. The Committee has given the reasons for its decision. The Committee observed that Bio-Medical Engineering is a highly interdisciplinary area and any B.Tech/M.Tech in Bio- Medical Engineering includes (i) Fundamental and advance knowledge of human biology and its functional aspects at cellular and tissue levels (ii) Knowledge of natural and synthetic materials and engineering principles in electrical/mechanical and chemical engineering to study design and development of products for medical diagnostics, assist devices and instruments, hard and soft tissue implants to replace defective organ or its parts in human body. Therefore, any degree which covers all of these aspects should be considered as a degree in Bio-Medical Engineering. The Committee found that the petitioner’s degree satisfied the above requirements. On careful consideration of the report dated 28 th June, 2019 of Centre for Biomedical Engineering, Indian Institute of Technology Delhi, this Court is satisfied that the petitioner’s degree is equivalent to B-Tech. in Bio-Medical Engineering. The well reasoned Report of the Centre for Bio-Medical Engineering, Indian Institute of Technology, Delhi is hereby accepted.
76. The petitioner’s degree of B.Tech. & M.Tech. in Cognitive & Neuroscience is equivalent to B.Tech. in Bio-Medical Engineering as opined by the Expert Committee appointed by this Court comprising of the four Professors of Centre for Biomedical Engineering, Indian Institute of Technology (IIT), Delhi in their Report dated 28 th June, 2019.
77. The writ petition is allowed and the petitioner is appointed as an Examiner of Patents and Designs and the respondents are directed to take the joining of the petitioner on 31st May, 2021 at 10.00 A.M. and the appointment of the petitioner shall be treated of the batch for which the petitioner had applied and as per the marks obtained by her in the Main Examination-I. Pending application is disposed of.
78. The respondents have made false statements on oath before this Court in the affidavit dated 29th July, 2019 and have attempted to overreach and mislead this Court by making false and untrue statements. The respondents have attempted to impede, undermine and obstruct the free flow of the holy stream of justice, which has caused serious damage to the institution.
79. The respondents have submitted the relevant records before this Court. Some of the records are in Original whereas other records are photocopies. The Original records be returned back after scanning/retaining copies thereof whereas the photocopies be retained as it is. The office shall carry out the page numbering of the copies of record retained. The digitalized copy of the entire record be furnished to the learned Amici Curiae, Mr. A.S. Chandhiok and Mr. Naresh Kaushik.
Post script (W.P. (C) _____/2021 to be registered as a PIL)
80. The hearing of this case on merits was concluded and judgment was reserved on 01st February, 2021. This Court later noticed from the official website of Controller General of Patents, Designs & Trade Marks (CGPDTM) that Ministry of Commerce and Industry, Department of Industrial Policy & Promotion had constituted a Committee under the chairmanship of Justice Allah Raham (Retd.) on 24th December, 2008 to look into the Recruitment Policy and Structure of Examiners of Patents and Designs in the Patent Office by taking into account the International Best Practices.
81. Justice Allah Raham Committee comprised of the following members:
(i) Justice Shri Allah Raham (Retired) – Chairman
(ii) Secretary, Department of Science & Technology (or his nominee) -Member
(iii) Secretary, Department of Scientific & Industrial Research (or his nominee) – Member
(iv) Secretary, Department of Biotechnology (or his nominee) –
Member
(v) Dr. R.V. Vaidyanatha Ayyar (Former Secretary) – Member
(vi) Dr. Amit Mitra, Secretary General FICCI (or his nominee) –
Member
(vii) Ms. Sarita Nagpal, Dy. Director General ,CII (or his nominee)
– Member
(viii) Shri N. N. Prasad, Joint Secretary, DIPP – Member Shri Gopal Krishna, Joint Secretary, DIPP, has been nominated as Member of the Committee vide Amendment dated 14th July, 2009 in place of Shri N. N. Prasad, ex- Joint Secretary, DIPP who has proceeded to take up a WIPO assignment
(ix) Shri P.H. Kurian, Controller General of Patents, Designs and Trade Marks – Member Secretary (Nominated as a Member Secretary, vide Amendment dated 5th March, 2009).
82. Justice Allah Raham Committee considered the practices of major countries/offices recognized as having strong IP-regime like European Patent Office (EPO), United States Patent & Trade marks Office (USPTO) and Japan Patent Office (JPO) vis-à-vis Indian practices. The Committee reviewed the Indian practices in the light of these international provisions/practices.
83. In the meeting dated 27th March, 2009, the Committee recorded the importance of the interview in the recruitment process. Relevant portion of the Minutes of Meeting of the Committee dated 27th March, 2009 is reproduced hereunder:
(i)‖Smt. Bhanu opined that the mode of recruitment comprising of an interview followed by written test will be desirable as it is the established practice in most of the establishments. She also stated that the interview was required to assess the aptitude test and personality test of a candidate and also for knowing their keenness to work as an Examiner of Patents and Designs.‖
(ii) ―At this point, Shri P.H.Kurian, explained that the posts of Examiners and Controllers are quasi-judicial posts for deciding patent grant. During the process they have to deal face to face with lawyers, professionals and various types of stakeholders and, hence, candidates must have adequate communication skill and presentability.‖
(iii) ―Shri N.N. Prasad supported the viewpoint whereupon the Chairman stated that maximum 25% of the total marks should be attributed to the interview. It was unanimously agreed that marks for the interview can be between 15 to 20%. Further, he emphasized that the written test should have objectivity and should be based on the subject- knowledge and, for this purpose, multiple choice type questions would be ideal.‖
(iv) ―RAB representative further suggested that the question papers set for National Eligibility Test (NET) for recruitment of lecturers and Graduate Aptitude Test for Engineers (GATE) for recruitment of Engineers will be very useful for deciding paper pattern for the written test.‖
(v) ―All members unanimously agreed that candidates called for the interview will not be more than four times of successful candidates in the written test.‖
84. Justice Allah Raham Committee submitted its Report dated 31st August, 2009 in which the Committee observed that Examiner of Patents and Designs is a key entry level post in the Patent Office having quasi-judicial powers in relation to processing of application and grant of a patent. The Committee further observed that the Examiner has to deal with patent stakeholders including legal professionals and patent agents at various stages. The Committee further observed that higher supervisory posts above Examiners viz., Controllers of Patents and Designs are all filled through 100% promotions. The Committee therefore considered it imperative that the candidates are selected by testing their knowledge as well as their communication skills, personality, behavior traits, etc. The observations of the Committee are reproduced hereunder:
―VI. 3. Modalities of Selection.
An Examiner of Patents and Designs is a key entry level post in the Patent Office having quasi judicial powers in relation to processing of application and grant of a patent. They have to deal with patent stake holders including legal professionals and patent agents at various stages and interact with them in an efficient and effective manner. Higher supervisory posts above Examiners viz., Controllers of Patents and Designs are all filled through 100% promotions. Thus, Examiners must have the sound knowledge of their field to keep the examination level at high standards and always maintain the sustained tradition of quality. Professional requirements for the post of Examiner makes it imperative that the candidates to be selected for this post should be tested for their knowledge in the respective subject and also for their communication skills, personality, behavior traits, etc‖ (Emphasis supplied)
85. The Committee examined the issues relating to the modalities to be adopted for selection of Examiners and recommended written tests in two parts followed by interview of 20% marks. The Committee recommended that during the interview, a candidate should be assessed for communication skills, behavior pattern and general awareness of patent system. The recommendations of the Committee in the report are reproduced hereunder:
―The Committee has examined the issues related to modalities to be adopted for selection of Examiners. The Committee is of the opinion that:
The selection procedure should comprise of written test and personal interview.
The written examination can be on the line of NET examination conducted by UGC. Accordingly, the syllabi for examination should be prepared for each discipline of science and engineering / technology The written test should have two parts: (a) objective type questions with multiple choice based on the subject of study along with appropriate number of objective questions of general appraisal type and (b) subjective type of questions in the subject of study.
Merit list of candidates should be prepared on the basis of marks scored in each subject and the same should be used as criteria for calling for interview.
Number of candidates to be called for interview should be about 5 times the number of vacancies.
The Interview Board / Selection Committee should be decided by the Recruitment Agency.
Marks for interview should be 20% of the total marks During the interview, a candidate should be assessed for Communication skills, behavior pattern and general awareness of patent system. Higher academic achievements and achievement in the area of desirable qualification may also be given some weightage.
Merit list of candidates based on the score of marks obtained in the written test and interview should be prepared in each subject and the list of selected candidates in each field with due consideration to statutory reservations should be prepared and communicated to the CGPDTM by the Recruitment Agency.
Along with the main selection list, the waiting list of 50% of the number of selected candidates in each subject and category should be prepared and sent to the CGPDTM by the Recruitment Agency The Office of CGPDTM will complete all the remaining formalities and expedite the procedure so that the selected candidates are in place by the end of 2009-2010.‖ (Emphasis supplied)
86. With respect to the agency for recruitment, the Committee recommended the recruitment to be done by Recruitment and Assessment Board (RAB), CSIR. The relevant portion of the report in this regard is reproduced hereunder:
―VI. 4 . Agency for Recruitment Recruitment of as many as 257 Examiners is itself a challenging task as the number of applicants may be in thousands, spread over among different fields. The actual recruitment procedure will involve multiple stages like advertising of posts, verification of all applications, screening of candidates through written test, earmarking candidates for interview conducting interviews in all the specified fields and preparation of final merit list.
Since the Office of the CGPDTM does not have enough resources to undertake formalities of recruitment procedure, the task should be assigned to the Agency which is specialized in undertaking responsibility of such type of large scale recruitment.
The issue of appointing a suitable Agency for this purpose was discussed in the Committee Meetings. It was agreed in the first meeting that the Recruitment and Assessment Board (RAB), CSIR, which regularly conducts interviews for selection of candidates for various posts in CSIR, should be entrusted with this task. During the second meeting, the RAB representative informed that the HRD group of CSIR conducts written examination for screening of large number of candidates in National Eligibility Test (NET) for recruitment of lecturers in multiple disciplines for educational institutions.
The Committee is of the opinion that the selection procedure should be handled by RAB (CSIR). Interviews of successful candidates should be conducted by RAB through the Selection Committee constituted for the purpose.‖ (Emphasis supplied)
87. In the present case, the recruitment process is not according to the recommendations of Justice Allah Raham Committee inasmuch as no interviews were conducted by the respondents and the recruitment has not been done by RAB, CSIR. This Court therefore directed the respondents to explain the same. Relevant portion of the order dated 12th April, 2021 is reproduced hereunder:
―9. Respondent No.1 is directed to place on affidavit why the recruitment for the post of Examiner of Patents has not been conducted in terms of the recommendations of the Committee. The decision taken in this regard be placed on record in the affidavit. The name/names of the officer/officers who took the decision be disclosed in the affidavit. The original record containing the aforesaid decision be produced before this Court on the next date of hearing.
10. The recruitment process initiated by respondent No.2 does not provide for interviews. The decision so taken along with the name/names of the officer/officers who took the decision be disclosed on affidavit and the original record be produced before this Court on the next date of hearing.
[11. The recruitment process initiated by respondent No.2 reflects that no cut-off marks have been prescribed in the written test and four selected candidates have secured 30.3%, 29.3%, 29% and 19% marks. Respondent No.2 shall disclose on affidavit as to why no cut-off marks have been prescribed. The decision be placed on record on affidavit. The name/names of the officer/officers who took the decision be also disclosed in the affidavit. The original record containing the decision be produced before this Court on the next date of hearing.
12. The affidavit shall also disclose whether the approval of the Department of Personnel & Training, Ministry of Personnel, Public Grievances and Pensions and Ministry of Human Resource Development was taken to conduct the examination in this manner.
13. Mr. Kirtiman Singh, learned Standing Counsel shall take up the matter with the Secretary (Personnel), Department of Personnel & Training, Ministry of Personnel, Public Grievances and Pensions and Secretary, Ministry of Human Resource Development to ascertain whether they were aware of this recruitment process and what is their response to this recruitment process. The competent officer from Department of Personnel & Training/Ministry of Human Resource Development shall remain present in Court on the next date of hearing along with the Government policy for recruitment to the Gazetted Government Posts. The learned Standing Counsel shall produce the Government policy on recruitment and the list of Government jobs in which the recruitment is being done in this manner on the next date of hearing.
14. Mr. Kirtiman Singh, learned Standing Counsel shall send the copy of this order to the Secretary, Ministry of Commerce and Industry for his response. The competent officer from Ministry of Commerce and Industry shall also remain present along with response on the next date of hearing.
15. Mr. Naresh Kaushik, learned amicus curiae shall take up this matter with UPSC and place on record the Government’s policy for recruitment in Government jobs by UPSC as well as by recruitment other than the UPSC before the next date of hearing.
16. Respondent No.2 is also directed to place on record the decision taken to appoint the Committee on 06th February, 2019 to examine the equivalence of degrees. The name/names of the officer/officers who took the decision to form the Committee be also disclosed on the affidavit and the original record containing the decision be produced before this Court on the next date of hearing.‖ (Emphasis supplied)
88. On 20th April, 2021, Mr. Abhindar Joshi, Director of DoPT, Ministry of Personnel, Public Grievances and Pensions submitted before this Court that the Central Government took a decision on 01st January, 2016 to dispense with the interview only in respect to Group B – Non-Gazetted posts and below, meaning thereby that the interview would be mandatory for Group A posts.
89. On 30th April, 2021, the Assistant Controller of Patents and Designs submitted an affidavit to answer the queries raised by this Court in the orders dated 12th April, 2021 and 16th April, 2021. The statements of the respondents in the affidavit are as under:
(i) The respondents conducted the recruitment for the post of Examiner of Patents and Designs for the year 2018-19 by conducting two stage examination i.e. Preliminary Examination and the Mains Examination. The Preliminary Examination was a screening examination whereas the Mains Examination was a two stage examination consisting of two papers, Paper-I was scoring exam and Paper-II was a qualifying exam. Marks obtained in Paper-I would determine candidate’s merit position whereas Paper-II was a qualifying exam necessarily to be cleared to be eligible to be part of the merit list. Candidates around 12-15 times the number of vacancies i.e. 220 vacancies were to be short listed for the Main Examination. 34,112 candidates appeared in the Preliminary Examination out of which 2701 candidates were short listed for the Mains Examination.
(ii) Vide notification dated 06th July, 1999, DoPT exempted the process of Examiner of Patents and Designs from the purview of UPSC.
(iii) In 2008, a Committee was constituted by the DIPP under the Chairmanship of Justice Allah Raham (Retd.) to review the Recruitment Policy and the Structure of the Patent office of CGPTDM especially Examiner of Patents and Designs. The aforesaid Committee submitted the Report dated 31st August, 2009 recommending RAB, CSIR to be the agency for conducting the selection process. The Committee recommended the selection process should be a combination of written test and personal interview with greater weightage to a written test and 20% weightage to the interview. Till 2007-08, recruitment to the post of Examiner of Patents and Designs were done only through interviews.
(iv) DIPP vide Gazette notification dated 15th May, 2009 modified the Recruitment Rules of Examiners of Patents and Designs. The RRs of Examiner of Patents & Designs provide as under:
―recruitment shall be in accordance with the procedure or mechanism approved by Central Government from time to time.‖
(v) The aforesaid RRs empower the Central Government to frame a procedure or mechanism to carry out the recruitment. The procedure for conducting recruitment by written examination was approved by DoPT.
(vi) Vide DO letter no. 2/8/2008-IPR-I dated 28th May, 2009, the then Secretary, DIPP Shri Ajay Shankar requested DG, CSIR to carry out the recruitment of vacant posts of Examiners of Patents and Designs. Para 4 of the DO letter states that:
―Subsequently the matter has again been taken up with DoPT for conducting [recruitment]sic of Examiners of Patents and Designs by written examination through Recruitment and Assessment Board (RAB) of Council of Scientific & Industrial Research (CSIR), Department of Scientific & Industrial Research (DSIR). DoPT have agreed to the proposal‖.
(vii) On 08th October, 2009, a meeting was held between RAB, CSIR and DIPP to discuss the modality of recruitment according to the Recommendations of Justice Allah Raham Committee and a Memorandum of Understating (MoU) was signed between RAB (CSIR) and CGPDTM (DIPP) on 16th April, 2010. The MoU provided the mode of recruitment in two stages namely written Preliminary Examination and Main Examination. The recruitment of 257 Examiners was accordingly completed by CSIR in 2012.
(viii) In 2015, a draft MoU was signed between CSIR and DIPP for recruitment of vacant posts of Examiner of Patents and Designs. DIPP requested CSIR to expedite the approval of the draft MoU but CSIR did not seem interested to go ahead with the recruitment and, therefore, the recruitment work was awarded to NPC who have vast experience in conducting of examination for technical and scientific position. NPC conducted the recruitment for 459 posts of Examiner of Patents and Designs in 2015-16 and 220 posts of Examiners in 2018-19 by written Preliminary Examination and Mains Examination.
(ix) The Information Bulletin and the MoU signed between NPC and CGPDTM on 20th February, 2018 to carry out recruitment of 220 posts of Examiners of Patents and Designs stipulates that the recruitment shall take place in accordance with the prescribed cut-off and the qualifying criteria prescribed for the examination. The cut- off marks of the examination depend on the difficulty level of the question paper.
(x) The work of Examiner of Patents and Designs primarily requires technical knowledge which can be best assessed by a written test. An interview is basically conducted to assess the interpersonal skills of the candidate. Since the work of Examiner is a desk job not requiring interaction with public, in the respectful submissions of the answering Respondents, an interview for recruiting an Examiner is not necessary.
(xi) The aforementioned procedure for recruitment is a well- known and accepted procedure and there is no illegality whatsoever. Reliance is placed on State of Punjab v. Manjit Singh, (2003) 11 SCC 559 in which the Supreme Court disapproved of the fixation of a cut-off marks for shortlisting of candidates for recruitment.
(xii) The manner and mode of selection is in the exclusive domain of the respondent. Reliance is placed on Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417 in which the Supreme Court held that the competitive examination may be based on the written examination or interview or mixture of both and it is entirely for the Government to decide what kind of competitive examination would be appropriate in the given case and the Court would not venture into the same to discover which method is more appropriate. It is not for the Court to lay down whether interview should be conducted at all and how many marks should be allowed for interview.
(xiii) The questions regarding the legality of selection process have not been raised either during the course of arguments or in the writ petition and, therefore, there is no occasion to adjudicate the same. Submissions of Mr. A.S. Chandhiok, learned Amicus Curiae Process of Selection/Appointment to Public Services
90. The earlier method of appointment to public services was through patronage. The journey from patronage to open competition is a later development and today all the governments of the world profess commitment to selection through open and fair competition based on merit an interview/viva voice has been an integral part of such selection process. In Lila Dhar v. State of Rajasthan, (1981) 4 SCC 159, the Supreme Court observed in para 4 that the object of any process of selection for entry into a public service is to secure the best and the most suitable person for the job, avoiding patronage and favoritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. Thus, open competitive examination has come to be accepted almost universally as the gateway to public services. In Para 5, the Supreme Court put a question to itself as to how should the competitive examination be devised. The Supreme Court noticed the report of Kothari Committee on Recruitment Policy and observed:
―5. …It is now well recognized that while a written examination assesses a candidate’s knowledge and intellectual ability, and interview-test is valuable to assess a candidate’s overall intellectual and personal qualities.‖
91. The Rules of Recruitment framed under Article 309 of the Constitution inter alia are as under:
(i) The Schedule of Group A to the Central Civil Services (Classification Control and Appeal) Rules, 1954 updates upto 2018 provides 45 civil services which are of different categories. Rule 7 of the said Rules is a residuary clause and provides that Central Civil post of any group not included in any other Central Civil Service, shall be deemed to be included in General Civil Service. The post of Patent Examiner is a Group A post
(ii) For the Indian Administrative Services, the Indian Administrative Service (Recruitment) Rules, 1954 existed which provide the method of recruitment to the services through competitive exams.
(iii) The Indian Administrative Service (Appointment by Competitive Exam) Regulations, 1955 provide that examination means a combined competitive examination consisting of a preliminary examination and a main examination, coupled with Viva Voice/Interview.
(iv) The Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training has issued Civil Service Examination Rules, 2021 vide a notification dated 04th March, 2021 bearing F. No. 13018/05/2020-AIS (I).
Appendix I Section I of the said Rules deal with both with written examination and Interview/Personality Test.
92. The object of the Interview/Personality Test as per the Rules is to assess the personal suitability of the candidate for a career in public service by a Board to judge the mental caliber of a candidate. In broad terms this is really an assessment of not only intellectual qualities but also social traits and interest in current affairs. Some of the qualities to be judged are mental alertness, critical powers of assimilation, clear and logical exposition, balance of judgement, variety and depth of interest, ability for social cohesion and leadership, intellectual and moral integrity. The technique of the Interview/Personality Test is not that of a strict cross-examination but of a natural, though directed and purposive conversation which is intended to reveal the mental qualities of the candidate. Need for interview as part of the selection/appointment by competitive examination
93. The need for an Interview or Personality test has been a part of judicial review. In Lila Dhar’s case (supra), the Supreme Court emphasized that a written examination assesses a candidate’s knowledge while an interview assesses the candidate’s overall intellectual quality. In Lila Dhar’s case (supra), the Supreme Court referred to O. Glenn Stahl in his Public Personnel Administration and approved the passage quoted in para 5 including the last sentence that ―The oral test should be confined, then, to the evaluation of relevant traits which cannot be measured by any other way.‖
94. In Lila Dhar’s case, the Supreme Court also relied upon United Nations Handbook on Civil Services Laws and Practice which reiterated that the interview permits an assessment of qualities of character which written papers ignore. Relevant portion of para 5 is as under:
―5. … In the United Nations Handbook on Civil Services Laws and Practice, it is said:
―… the written papers permit an assessment of culture and intellectual competence. This interview permits an assessment of qualities of character which written papers ignore; it attempts to assess the man himself and not his intellectual abilities.‖‖
95. In Mehmood Alam Tariq v. State of Rajasthan, (1988) 3 SCC 241, the Supreme Court examined the importance of viva voice while dealing with cases relating to Rajasthan Administrative Services, Rajasthan Police Services and Rajasthan Forest Services. In Para 17 of the judgement, the Supreme Court observed:
―17. …The ―interview‖ is now an accepted aid to selection and is designed to give the selectors some evidence of the personality and character of the candidates…‖
96. In Mehmood Alam’s case (supra), the Supreme Court relied upon the report of UK Committee which dealt with the value and utility of viva voice in Class I Examinations. The Committee on Class I Examinations in Britain said:
―17. … It is sometimes urged that a candidate, otherwise well qualified, may be prevented by nervousness from doing himself justice viva voce. We are not sure that such lack of nervous control is not in itself a serious defect, nor that the presence of mind and nervous equipoise which enables a candidate to marshall all of his resources in such conditions is not a valuable quality. Further, there are undoubtedly some candidates who can never do themselves justice in written examinations, just as there are others who under the excitement of written competition do better than on ordinary occasions. . . . We consider that the viva voce can be made a test of the candidate’s alertness, intelligence and intellectual outlook, and as such is better than any other. . . .‖
97. In Mehmood Alam’s case, the Supreme Court in para 17 quoted Herman Finer on the promise as well as the limitations of the viva voice, as under:-
―17. …If we really care about the efficiency of the civil service as an instrument of government, rather than as a heaven-sent opportunity to find careers for our brilliant students, these principles should be adopted. The interview should last at least half an hour on each of the two separate occasions. It should be also entirely devoted to a discussion ranging over the academic interests of the candidate as shown in his examination syllabus, and a short verbal report could be required on such a subject, the scope of which would be announced at the interview. As now, the interview should be a supplementary test and not a decisive selective test. The interviewing board should include a business administrator and a university administrator. The interview should come after and not before the written examination, and if this means some inconvenience to candidates and examiners, then they must remember that they are helping to select the government of a great State, and a little inconvenience is not to be weighed against such a public duty…‖
98. The law developed by judicial review with respect to the selection and appointment to public posts especially in relation to Group-A Class I posts necessarily provides that interview is an important tool for proper selection of the right candidate in public service. The reservation if at all there has been is to the weightage of the marks to be given to the interview test. It is evident that if an interview is done effectively, it would enable the interviewing board to evaluate the Applicant’s skill, experience with respect to the job requirements.
99. The role of the Examiner of Patents and Designs is extremely important in the working of the Patents Act, 1970, especially after the Amendment in the act by which international applications are allowed to be filed in India. Thus, a competitive examination not having an interview as a part thereof would be clearly arbitrary and any such decision by the Respondents would fall foul of Article 14 of the Constitution of India.
100. In Mehmood Alam’s case (supra), the Supreme Court noted the changing role of public servants in para 14 as under:-
―14. …The modern state has moved far away from its concept as the ―Leviathan‖ with its traditional role symbolised by the two swords it wielded — one of war and the other of justice. The modern, pluralist, social welfare state with its ever-expanding social and economic roles as wide-ranging as that of an Economic Regulator, Industrial Producer and Manager, Arbitrator, Educationist, Provider of Health and’ Social Welfare services etc., has become a colossal service corporation. The bureaucracy, through which the executive organ of the state gives itself expression, cannot escape both the excitement and the responsibility of this immense social commitment of the Welfare State. Today the bureaucracy in this country carries with it, in a measure never before dreamt of, the privilege and the burden of participation in a great social and economic transformation, in tune with the ethos and promise of the Constitution for the emergence of a new egalitarian and eclectic social and economic order — a national commitment which a sensitive, devoted and professionally competent administrative set up alone can undertake. A cadre comprised of men inducted through patronage, nepotism and corruption cannot, morally, be higher than the methods that produced it and be free from the sins of its own origin. Wrong methods have never produced right results.‖ Patents Act, 1970 and Patents Rules, 1972
101. Intellectual property rights play a major role in industrial, economic, social and cultural growth of a country and India is no exception. Patents have assumed importance as new wealth of nations and are important as an indicator of industrial and technological development as well as facilitator for global trade of goods, services and knowledge and an important instrument for transfer and dissemination of technical knowledge at home or at global level. Patents identify emerging technologies, research areas and business opportunities, thereby lending a hand to industry to improve its existing technology for better products. Patent is, therefore, a vital tool for international trade.
102. The Patents Act, 1970 as well as The Patents Rules, 1972, came into force on 20th April, 1972, replacing the Indian Patents and Designs Act, 1911. Later India became a signatory to many International Conventions with the objective of strengthening its intellectual property regime especially Patent Law and to bring it in league with the modern world. The Trade Related Intellectual Property Rights Agreement commonly called TRIPS Agreement provides, inter alia, that member countries can make patents available for many inventions, whether product or process, in all fields of technology without discrimination, subject to the tests of novelty, inventiveness and industrial applicability. TRIPS also mandate that patents would be available and rights thereunder enjoyable without discrimination as to the place of invention and whether the products are imported or locally produced. A protection of twenty years was provided from the date of filing of patent application. Exceptions are provided in the TRIPS provided they do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the interests of the patent owner.
103. India then acceded to the Paris Convention and the Patent Cooperation Treaty on 07th September, 1998 and acceded to the Budapest Treaty on 17th September, 2001.
104. The Patent Cooperation Treaty commonly called PCT is a multilateral treaty concluded in Washington in 1970 and came into force in 1978. It is administered by International Bureau of the World Intellectual Property Organization (WIPO) and assists any applicant in seeking patent protection internationally of their inventions by filing one international patent application under the PCT. At present there are 153 countries which are part of the PCT.
105. Patent Cooperation Treaty was inserted in the definition of the Patents Act, 1970 by adding Section 2(oa) effective 20th May, 2003. Reference is made to Sections 2(oa), 133 to 136 and Rule 19G of the Patents Rules, 2003.
106. The Act empowers filing of applications to the Indian Patent Office both under the Patent Cooperation Treaty as well as the Paris Convention Treaty. The applicants get benefits of their patents in all countries from the date of filing of the first application.
107. The Patent Cooperation Treaty, the international patent filing system, administered by the World Intellectual Property Organization (WIPO) provides the applicants from member countries, a facility for filing single international application for grant of patent in 152 countries of the world. It helps in obtaining International Search Report (ISR), and International Preliminary Examination Report (IPER) before entering of the national phase in each individual country. The ISR and IPER are established according to high internationally regulated standards, by one of the Patent Offices of the world that are highly experienced in examining patent applications and that have been specially appointed by WIPO to carry out international search and examination.
108. The Indian Patent Office was recognized as an International Searching Authority (ISA) and International Preliminary Examining Authority (IPEA) under the PCT and, accordingly, started functioning from 15th October 2013 as ISA and IPEA. As per requirement for ISA/IPEA IPO has access to the comprehensive collection of patent and non-patent literature to fulfill PCT minimum documentation requirement, integrated search platforms IPATS to enable one click search through the vast collection of information and professionally qualified and skilled Examiners. IPO) has also established a Quality Management System to monitor the ISA/IPEA. Fully electronic processing system ensures speedy disposal and dissemination of information on real time basis.
109. Further, the Patent Office, Delhi performs the functions of the Indian International Searching Authority under the treaty in accordance with an agreement between the Indian Patent Office and the International Bureau. The Searching Authority establishes international search report in respect of international applications, or, as the case may be, declares in accordance with rule 19B (3) that meaningful search cannot be established, in cases where India has been indicated as a competent International Searching Authority.
110. As per Clause 8.4 of the Manual the Searching Authority, on receipt of the search copy, notifies the International Bureau and the applicant about receipt of search copy with identification mark ‘ISA/IN’ along with international application number and its serial number and date of receipt of the search copy. The Searching Authority shall, upon receipt of the search copy, refer the international application, in the order in which the search copy was received, to an examiner or any other officer appointed under sub- section (2) of Section 73 of the Act for preparing an international search report, in accordance with the provisions contained in the Treaty and the regulations under the Treaty, ordinarily within a period of one month but not exceeding two months from the date of such reference.
111. Under Clause 8.13, the Examining Authority refers the international application, in accordance with the provisions contained in the Treaty and the regulations under the Treaty, in the order in which the demand was received in the Examining Authority to an examiner or any other officer appointed under Section 73(2) of the Act for preparing an International Preliminary Examination Report ordinarily within a period of three months but not exceeding four months from the date of such reference.
Role of Examiner under the Patent Act and Rules
112. The Examiner under the Patent Act has a very crucial role to perform. After filing of any application for grant of patent, a request for examination is required to be made for the examination thereof in the Indian Patent Office within 48 months from the date of priority of the application or from the date of the filing thereof.
113. A patent application is published under Section 11-A of the Act above. Thereafter the application is taken up for examination in a chronological manner. The Controller refers the application with all specifications and all other documents relating thereto to the Examiner for its substantive examination and investigation which falls within the specialization domain of the respective Examiner.
114. The role of the Examiner of Patents and Designs is to scrutinize the patent application sent to him/ her for examination as per the Manual of Patent Practice and Process dated 26 th November, 2019.
115. The Patent Office has four examination groups based on broad areas of specialization, namely:
(i) Chemistry and allied subjects
(ii) Biotechnology, microbiology and allied subjects
(iii) Electrical, electronics and related subjects
(iv) Mechanical and other subjects.
116. Once an application is referred to the Examiner, he/she makes a report on the patentability as well as other related matters preferably within one month but not exceeding three months of such reference.
117. While examining the said patent application, the Examiner has to, inter alia, examine the following:
(i) At the outset, the Examiner has to ascertain whether the Applicant has sufficiently disclosed
(a) the specification;
(b) whether the subject matter is fully and particularly described in the specification;
(c) the claim defines the scope of invention;
(d) specifications describing the best methodology of performing and implementing the invention; and
(e) source and geographical origin of the same especially if the invention is related to biological material or biological material is used in the invention.
(ii) Approval obtained from National Biodiversity Authority (NBA) wherever applicable.
(iii) The application discloses a biological material in specification which may not be described and if such material is not available to the public, the material has been deposited with international depository authority und the Budapest treaty.
(iv) Accession Number and date of deposition of the material with the depository authority etc.
(v) Conduct a research in the Indian database starting from 1.1.1912 and all other available databases including patent/non-patent literature.
(vi) To ascertain prior publication, and to examine whether claim is made in the application and the specifications of the invention as claimed is complete or has been published.
118. The Examiner of Patents and Designs has to ascertain:
(a) international patent classification
(b) search strategy
(c) keyword(s) used
(d) prior art findings and analysis regarding patentability.
(e) non clarity of claims or multiplicity of inventions
(f) The Examiner has to also add in his report if there is non-clarity of claims or multiplicity of inventions or any other reasons which is an impediment for a search to be conducted or completed.
119. The Examiner has to ascertain novelty and whether the application is in compliance with Section 13 of the Patents Act.
120. The Examiner has to ascertain whether the Invention is capable of Industrial Application. Industrial Application in relation to patentability means that the invention is capable of being made or used in an Industry and can be utilized for industrial process.
121. The Examiner has to ascertain in every case what constitutes the distinctiveness with regard to the efficacy on any known substance or in product or process.
122. Apart from what is stated above, the Examiner has also to examine lawful grounds of objection and his examination under Section 13 of the Patents Act results in his first report to the Controller.
123. The Examiner also assists the Controller in disposing of the matter by grant or rejection of the patent application.
124. The Public Service and more importantly the Examiner of Patents and Designs are not working in the old bureaucratic manner marked by red-tapeism. The Indian economy has opened up and it is a destination of growing foreign investments by MNCs in all the sectors. This has led to foreign companies applying for patents in India. Examiner of Patents and Designs is not a person who works in vacuum. In present times, the key factor in determining the success of any organization is its ability to use human talent to discover it and develop it. Human talent combined with the capacity of these individuals along with the Will of people to achieve an organization’s goals-is a productive resource like no other.
125. The Examiner of Patents and Designs under Section 13 of the Act also carries out an investigation for the purpose of ascertaining whether the invention so far as claimed in any claim of the complete specification has been anticipated by publication before the date of filing of the applicant’s complete specification in any specification filed in pursuance of an application for a patent made in India; whether the patent is claimed in any claim of any other complete specification published on or after the date of filing of the applicant’s complete specification, being a specification filed in pursuance of an application for a patent made in India and dated before or claiming the priority date earlier than that date.
126. By way of an example, Bio-Technology is the injection of scientific knowledge into manufacturing processes by which marketable goods are made out of biological phenomena. It has been estimated that thousands of patent applications have been made world over in respect of Micro Organisms, plants and for human and animal DNA sequences though ethical considerations and public policy for patenting them has been raised. Presentation of information is ordinarily considered not patentable. It is more appropriate for copyright protection. Under Indian Laws, unlike United States ―a presentation of information is not patentable‖. Section 3(a) of the Patents Act. Similarly, in United States in appropriate cases patent protection is broadly available for computer related inventions. Under the Indian Law ―a computer program per se other than its technical applications to Industry or a combination with hardware is not patentable‖. E-Commerce business has great economic value especially post pandemic/COVID-19. Method and system for placing a Purchase Order via communication network under Indian law is a ‗business method’ and is not patentable subject matter.
127. In Ten XC Wireless Inc. v. Mobi Antenna Technologies (Shenzhen) Co. Ltd., (2012) 187 DLT 632, this Court examined the working of the Patent Office. This Court requisitioned the original record from the Patent Office which reflected the Patent Office registered the patent without conducting any investigation under Sections 12 and 13 of the Patents Act. Relevant portion of the judgment is reproduced hereunder:-
8.3 Vide order dated 2nd February, 2011, the original record of the Patent Office was requisitioned by this Court. The brief summary of the said record is recorded in para 5 above. There is a serious doubt about the validity of the patent which has to be tested in the laboratory of this Court. The prima facie observations of this Court with respect to the record of the patent office are as under:-
8.3.1 The original record of the Patent Office does not reveal any investigation under Sections 12 and 13 of the Act to ascertain the novelty and inventiveness of the claimed invention.
8.3.2 The Patent Office did not examine whether the invention falls under any of the categories of non-patentable inventions under Sections 3 and 4 of the Act.
8.3.3 This Court is not impressed with the plaintiffs’ contention that the Patent Office has conducted the investigation but the report of the examiner has not been sent to this Court in view of Section 144 of the Act. The result of the invention, if any, has neither been discussed in the original order sheet nor the findings of the Patent Office are based on any such investigation.
8.3.4 There is no valid publication of the plaintiffs’ application under Section 11A of the Act as there was an error in the first publication on 26th September, 2008 whereupon the plaintiffs submitted an application dated 1st October, 2008 for fresh publication but no order was passed on the said application and no fresh publication was carried out. 8.3.5 The plaintiffs amended the application for patent on 4th May, 2010 which was allowed on 9th June, 2010. The amended application was neither published under Section 11A of the Act nor the mandatory examination and investigation was carried out under Sections 12 and 13 of the Act. 8.3.6 The patent was granted on 9th June, 2010 itself by a non-
speaking order. No finding has been recorded in the order dated 9th June, 2010 (reproduced in para 5.12 above) to the effect that the claimed invention is novel and innovative; had not been anticipated by any previous publication or prior claim and that it does not fall in the category of non- patentable inventions under Section 3 and 4 of the Act.
xxx xxx xxx 8.3.8 The Patent Office has granted the patent to the plaintiffs in undue haste without following the due process of law.
xxx xxx xxx 8.3.12 The findings of the ISR and IPRP are not binding on the Indian Patent Office, and cannot override the provisions of the Act especially on issues of novelty and inventiveness. Reference to Sections 13(1) and (2) of the Act indicate that the duties set out therein for the concerned Examiner are mandatory, in view of use of the term ―shall‖ in both provisions. It is therefore inconceivable that the statutory duties of the concerned Examiner to conduct a prior art search can be set aside or circumvented by reliance on the findings of the ISR and IPRP. The Draft Manual of the Patent Practice and Procedure of Indian Patent Office cannot and is not intended to override statutory provisions. The Preface to the Draft Manual of the Patent Practice and Procedure of Indian Patent Office is as under:
―The Manual does not constitute rule making and hence do not have the force and effect of law. Statements made in the Manual are not in themselves an authority for any action by an officer of the Patent Office. While the Manual may be regarded as a handbook, it does not impose any particular line of action and may not be quoted to that end.‖‖ (Emphasis supplied) Recruitment of Examiners of Patents & Designs
128. Till 1999, recruitment of Examiners of Patents and Designs was through the Union Public Service Commission (UPSC) and the Recruitment Rules were as notified on 31st October, 1983 vide G.S.R. No. 856.
129. The recruitment of Examiner of Patents and Design was taken out from UPSC vide Recruitment Rules notified in the Gazette of India Extraordinary Part II Section 3(i) vide G.S.R. 377 dated 13 th July, 2001 to be administered through Department of Industrial Policy and Promotion (DIPP), Ministry of Commerce and Industry.
130. The Patent Office under the CGPDTM has been declared as a Scientific Department vide Office Memorandum dated 12th November, 1987. Thereafter, the Ministry of Commerce and Industry vide Notification Dated 25th April, 2018, in exercise of powers conferred by proviso to Article 309 of the Constitution and in supersession of (i) Controller General of Patents, Designs and Trade Marks Group A Recruitment Rules 2007 and (ii) Ministry of Commerce and Industry patents office (Senior Joint Controller) Recruitment Rules, 2012, framed Ministry of Commerce and Industry, Patent Office (Controllers & Examiners) Recruitment Rules, 2018.
131. Schedule to the Recruitment Rules of 2018 provides that the Recruitment of Examiners of Patent and Design shall be by direct recruitment and the post is classified as General Central Service Group-A ―Gazetted (Non-Ministerial).‖
132. The need for an interview or viva voice is evident from the Patents Rules, 2003. Rule 110 of the Patents Rules reads as under:
―Rule 110 – Particulars of the qualifying examination for patent agents.–
(1) The qualifying examination referred to in clause (c) (ii) of sub-section (1) of section 126 shall consist of a written test and a viva voice examination.
(2) The qualifying examination shall consist of the following papers and marks, namely:
Paper II–Drafting and interpretation of patent specifications (3) A candidate shall be required to secure a minimum of fifty marks in paper I and paper II and shall be declared to have passed the examination only, if he obtains an aggregate of sixty percent of the total marks.‖
133. Prior to 2012, these Rules provided the interview marks to be 50%. The Rules were the subject matter of the Writ Petition before this Court in Anvita Singh v. Union of India, (2012) 129 DRJ 28 (DB). The Division Bench did not strike out Rule 110 to hold that interview was not essential. The Division Bench was of the view that 50% weightage of marks given to viva voice in then existing Rule 110 was arbitrary. Consequently, Rule 110 was amended as quoted above but the essential feature of an interview was maintained.
Though this Rule relates to a patent agent but certainly it provides the guideline to the Respondents that interview is an essential ingredient of selection and appointment to a public service especially in these changing times.
134. The Respondents have not given any explanation as to why the recommendations of the Committee noticed above which recommended both written examination and viva voice as part of the selection process was given a go-by and not adhered to.
135. In Anvita Singh’s case (supra) the Division Bench noticed the importance of viva voice test in the case of Judicial Officers of the Court in para 17 and accepted that it is imperative that candidates with capacity should be selected for judicial as otherwise the standard would get diluted and sub-standard stuff may be getting into the judiciary.
136. Public services starting from Indian Foreign Service, Indian Administrative Service downwards except probably Class IV consequently, needs to have a uniform selection process which in view of the above submissions must have both written examination and interview. In Ashok Kumar Yadav v. State of Haryana (supra), the Supreme Court observed in para 25 that:
―25. …Now if both written examination and viva voce test are accepted as essential features of proper selection in a given case the question may arise as to the weight attached respectively to them…… importance to be attached to the viva voce test in such a case, therefore, necessarily be minimal…‖
137. In Ashok Kumar Yadav’s case relied upon by the respondents, the Supreme Court observed that :
―23. …The Government aided by experts in the field may appropriately decide to a written examination followed by a viva voce test‖
138. The Patents Amendment Act, 2005 attaches great significance to ―economic value‖ factor as it alone could satisfy the test of inventive step. The standard for economic significance is relevant for assessing the industrial applicability then being a qualification for ‗inventive step’. The Examiner of Patents and Designs has to deal with the changing scenario of filing of patent applications and examining the same. Besides, the patentability of the ground of anticipation of prior publication. The amended definition of the inventive step combines the inventive step enquiry with a test of economic significance which raises many practical issues while examining a patent application in India. The Examiner will have to determine if the claimed inventive passes the test of economic significance and then proceed to ascertain if it is not obvious to a person skilled in the art.
139. The above are some of the examples to demonstrate why interview is imperative for selection and appointment of an Examiner of Patents and Designs which admittedly is also the feeder post for the candidate to get promoted as Assistant Controller of Patents and Designs and thereafter right upto the Controller of Patents and Designs. All these traits can be well only by a Board of Experts to see the capacity of the candidate to meet these new exigencies of the economic order.
140. Uniformity of selection and appointment process in public services would also help ‗certainty’ for the candidates. The twin test of written examination and viva voice as part of the uniform policy of recruitment would help the candidates to prepare themselves in the various public services and it would also help the Executive to administer the selection and appointments thereof with a common yardstick.
141. Just by way of reference, it is submitted that establishment of Tribunals as alternative to the existing system of Courts including the High Court has been coming to surface from time to time. Section 184 of the Finance Act, 2017 brought about changes which provide only a Selection Committee for appointment of Chairpersons and Members of Tribunals chaired by the Hon’ble Chief Justice of India. Thus, the selection and appointment are consequently, not based on any written examination but only on a selection process by a Selection Committee which necessarily means an interview.
142. In view of the submissions made above, it is appropriate that guidelines be issued to the Respondents to frame a policy guideline or enact a statute so that entry to public services is based on a policy enshrined within the four corners of the Constitution of India.
Submissions of Mr. Naresh Kaushik, learned Amicus Curiae
143. UPSC conducts the recruitment for Indian Administrative Service (IAS), Indian Police Service (IPS) and Indian Forest Service (IFS) by two written examinations namely preliminary and mains followed by the personal interview. The object of the Interview/Personality Test is to assess the personal suitability of the candidate for a career in public service by a Board of competent and unbiased observers. The Interview/Personality Test is intended to judge the mental caliber of a candidate. Some of the qualities to be judged are mental alertness, critical powers of assimilation, clear and logical exposition, balance of judgment, variety and depth of interest, ability for social cohesion and leadership, intellectual and moral integrity.
Recruitment to IAS Post Independence Kothari Committee Report
144. Before Independence, separate Examinations for the Indian Civil Service were held every year both in England and India. A combined examination was held in India for a number of Central Services–Indian Audit and Accounts Service, Imperial Customs Service, Indian Railway and Accounts Service, Military Accounts Department, Postal Superintendents (Class II) Service and Transportation (Traffic) and Commercial Departments of the Superior Revenue Establishment of State Railways. There was a separate examination for the Indian Police. Prior to 1922, the Indian Civil Service Examination was held only in England by the British Civil Service Commission. From that year the examination was also held in India. Four years later the newly formed Public Service Commission (India), began to conduct the ICS examination in India on behalf of the British Civil Service Commission. This position continued until 1937 when the Public Service Commission (India) was replaced by the Federal Public Service Commission under the Government of India Act 1935. Thereafter, the Indian Civil Service Examination in India was held by the Federal Public Service Commission independent of the British Civil Service Commission. After 1943, recruitment to the Indian Civil Service was suspended. Recruitment was also suspended to the Indian Police and the Indian Audit and Accounts Service and allied services. After Independence, recruitment to the Indian Civil Service and the Indian Police was not resumed but new services known as the Indian Administrative Service and the Indian Police Service were established as All India Services. Another service–Indian Foreign Service– was established to meet country’s requirement for diplomatic personnel. The Commission was re-designated as the Union Public Service Commission in 1950, when the Constitution came into force. A combined examination was introduced in 1947 for recruitment to the Indian Administrative Service, Indian Police Service and non- technical Central Services. However, in the case of the IPS the number of optional subjects required to be offered by candidates were two as against three for candidates competing for the other services. In the following paragraphs, account is given chronologically of the changes which have been effected in the scheme of the examination from time to time.
145. Between the years 1947 and 1950, a combined Competitive examination was held once a year, for recruitment to the IAS, IFS, IPS and non-technical Central Services, eligibility age initially fixed at 21 to 26 years was reduced to 21 to 25 years. In the following years the age range further reduced to 21 to 24 years, except for the Indian Railway Traffic Service for which it continued to be 21 to 25 years. There was no restriction on the number of attempts allowed to a candidate for the examination; candidates were required to take three compulsory subjects, viz. General English, Essay and General Knowledge each carrying 150 marks. Candidates for the IAS, and the Central Services were required to take three optional subjects and those competing for the IPS only two optional subjects. There was one paper carrying 200 marks each subject. Total marks for the written test were 1050 for the IAS, IFS and other Central Services and for the IPS total was 850 marks. Viva Voice carried 300 marks for all the services. Two additional optional subjects, approximating to the Master’s degree standard, were prescribed from 1951 onwards for the IAS and IFS. Also, from the same year, maximum marks for the Viva Voice for these two services were raised to 400. The lower age limit for the IPS was reduced to 20 years in 1951 and the upper age limit for the Indian Railway Traffic Service was reduced to 24 in 1955. The age limits for all other services remained at 21 to 24.
146. In 1952, Viva Voice Test was renamed Personality Test, as it was sought to assess the total personality of the candidates at the interviews. The Public Services (Qualification for Recruitment) Committee, appointed by the Government of India in 1955, observed that the age range of 21 to 24 years for the IAS, IFS and other Central Services permitted candidates to take three chances at this examination. The Committee felt that this was excessive and tended to encourage the entry of mediocre candidates into the services. They recommended that in order to identify the best candidates the number of attempts at the combined examination should be limited to two by reducing the age range to 21 to 23 years. The Government accepted the recommendation regarding restriction of the number of attempts to two, but provided that these were to be counted separately for the following categories of services– Category I– IAS and IFS. Category II–IPS and Police Service Class II of the Union Territories. Category III -Central Services Class I and Class II. Since the restriction on the number of chances was related not to the examination as a whole but to individual categories, theoretically, a candidate could now take as many chances as the age limits would permit.
Changes Post Kothari Committee
147. The Preliminary exams were introduced to keep non-serious aspirants out and reduce the number of aspirants to a manageable number on the recommendations of the Kothari Committee in 1979. When Preliminary exams were introduced, it comprised an optional paper for 300 marks and a General Studies paper for 150 marks. The Satish Chandra Committee of 1989, appointed to review the examination, upheld the pattern but recommended negative marking to reduce the ‗chance element’ negative marking was introduced in 2007. The Alagh Committee of 2000, suggested a revised format for the Preliminary with an optional paper for 300 marks and a CSAT paper for 200 marks. The Second Administrative Reforms committee recommended common papers at the Preliminary. The Union Public Service Commission (UPSC) appointed the Khanna Committee in 2009, which recommended a revised format of the Preliminary with two papers i.e. CSAT and General Studies Paper. This was implemented from 2011.
UPSC/Government’s Policy for Recruitment to Government Jobs
148. The Union Public Service Commission (UPSC) does the selection through Direct Recruitment is by Open Competitive Examinations by the Examination Branch and through Recruitment Tests by the Recruitment Branch. Besides that, induction to Indian Administrative Service (IAS), Indian Police Service (IPS) and Indian Forest Service (IFoS) in the States from State Civil Services and selection from Non-State Civil Servants to the IAS is done by the All India Services Branch.
Selection procedure followed by UPSC Examination Branch:
149. As per the Article 320 of the Constitution, the Commission has been entrusted with the mandate of conducting examinations for appointments to the services/posts of the Union (Government of India). In pursuance of this Constitutional Mandate, the Commission conducts 13 Structured Examinations strictly in accordance with the Rules of the Examinations notified by the Government (Nodal Ministries/Departments) and recommends the candidates of different categories to the Government for appointment keeping in view the category-wise vacancies (viz. SC/ST/OBC/PwBD/Ex-Serviceman) intimated by the Government (Participating Ministries/ Departments). Subsequent to the declaration of results, the Commission forwards the dossiers of the recommended candidates to the Government (Nodal Ministry/Department concerned) for appointment and other formalities.
150. These Examination Rules contain, inter-alia, eligibility conditions viz. age, educational qualification etc.; number of attempts (if applicable), relaxation to various categories, reservation, marks for different stages, preparation of list of qualified candidates for each stage and declaration of result including the final result etc.
151. The Commission issues the Examination Notices for all the said Structured Examinations simultaneously on the date of issue of Notification of Rules by the Government in the Gazette. Through these Notices, the Commission invites the applications from the aspirants through the Online Application Forms released on the Commission’s website. For conduct of these Examinations every year, the Commission publishes the Programme of Examinations/Recruitment Tests (Calendar) about six months in advance for the next year for wide publicity and advance knowledge of the aspirants of different Examinations. The Calendar contains the dates of notifications, last dates of submission of applications and dates of conduct of Examinations. Hence, all these Examinations are conducted annually as per the scheduled indicated in the aforesaid Programme (Calendar).
152. With regard to the Civil Services Examination (CSE), which is the biggest and flagship Examination of the Commission, it is stated that the Nodal Department of the Government for this Examination is Department of Personnel & Training (DoP&T). Rules of the CSE are framed and notified by the DoP&T in the Gazette of India. The Commission conducts the CSE annually for recruitment to IAS, IFS and certain other Services strictly in accordance with the Rules of this Examination. It is a multi-stages Examination, which consists of Preliminary, Main and Personality Test/Interview. Generally, the notification of Civil Services (Preliminary) Examination is released in a year and the final result of the examination is released after completion of all the stages involved herein.
153. The Preliminary Examination Stage always consists of Objective Type Papers and the Main Examination Stage consists of Descriptive Type Papers. Interviews of those candidates are conducted who qualify the Main Examination Stage. These stages vary from Examination to Examination. Result of each Stage of the Examination is released on the Commission’s Website and through the Press Information Bureau. The cut-offs to decide the merit is fixed strictly as per the Rules of Examination. The minimum qualifying standards at Preliminary/ Main Stages including the Interviews and the marks secured by the last recommended candidate at the final stage of CSE and other Structured Examinations of the Commission depend upon several factors such as relative performance of candidates competing in any particular year, minimum qualifying standard in each or all papers of the Examination and the number of vacancies reported by the Government under each category. In case of the Civil Services Examination, the candidates, who obtain such minimum qualifying marks in the General Studies Paper-I of Preliminary Examination as may be fixed by the Commission at its discretion and a minimum of 33% marks in General Studies Paper-II of Preliminary Examination, are declared qualified for the Civil Services (Main) Examination and accordingly they are made eligible for the Main Examination. The candidates, who obtain such minimum qualifying marks in the Main Examination as may be fixed by the Commission at its discretion, shall be invited for Interview/Personality Test. Provided that candidates belonging to the SC/ST/OBC/EWS/PwBD category(ies) may be invited for Interview/Personality Test by the Commission by applying relaxed standards in the General Studies Paper-I of the Preliminary Examination as well as Main Examination if the Commission is of the opinion that sufficient number of candidates belonging to these categories are not likely to be invited for Interview/Personality Test on the basis of the general standard in order to fill up vacancies reserved for them.
Interview/Personality Test
154. The candidates are interviewed by a Board in the Commission who have before them a record of the candidate’s career. The candidate is asked questions on matters of general interest. The object of the Interview/Personality Test is to assess the personal suitability of the candidate for a career in public service by a Board of competent and unbiased observers. The Interview/Personality Test is intended to judge the mental calibre of a candidate. In broad terms, this is really an assessment of not only intellectual qualities but also social traits and interest in current affairs. Some of the qualities to be judged are mental alertness, critical powers of assimilation, clear and logical exposition, balance of judgement, variety and depth of interest, ability for social cohesion and leadership, intellectual and moral integrity.
155. The technique of the Interview/Personality Test is not that of a strict cross-examination but of a natural, though directed and purposive conversation which is intended to reveal the mental qualities of the candidate. The Interview/Personality Test is not intended to be a test either of the specialized or general knowledge of the candidates which has been already tested through their written papers. Candidates are expected to have taken an intelligent interest not only in their special subjects of academic study but also in the events which are happening around them both within and outside their own State or Country as well as in modern currents of thought and in new discoveries which should rouse the curiosity of well- educated youth.
156. After Interview/Personality Test, the candidates are arranged by the Commission in the order of merit as determined by the aggregate marks finally awarded to each candidate in the Examination. Thereafter, the Commission, for the purpose of recommending candidates against unreserved vacancies, fixes a qualifying mark (hereinafter referred to as general qualifying standard) with reference to the number of unreserved vacancies to be filled up. For the purpose of recommending reserved category candidates belonging to SC/ST/OBC/EWS/PwBD categories against reserved vacancies, the Commission may relax the general qualifying standard with reference to number of reserved vacancies to be filled up in each of these categories on the basis of the Examination. Provided that the candidates belonging to the SC/ST/OBC/EWS who have not availed of any of the concessions or relaxations in the eligibility or the selection criteria, at any stage of the examination and who after taking into account the general qualifying standards are found fit for recommendation by the Commission, are not recommended against the vacancies reserved for SC/ST/OBC/EWS, but in the first instance are recommended by the Commission against the unreserved vacancies.
157. After release of final result of an Examination, the meritorious candidates are recommended, the Commission releases the Cut-off Marks for each Stage, Answer Key for the Objective Type Papers, Marks of both recommended and non-recommended candidates on its website.
158. No right to allocation and appointment to a Service is conferred to a candidate declared as successful by the Commission as per the results of the Examination, unless the Government is satisfied after such enquiry as may be considered necessary that the candidate, having regard to character and antecedents and certificates produced during the course of examination for the purpose of eligibility as well as for claiming any kind of benefit for reservation and to the Medical Examination Reports, is suitable in all respects for allocation/appointment to the Service. Recruitment Branch:
159. Recruitment process is initiated by the Commission as and when a requisition for the same is received from the indenting Ministries/Departments. These recruitment requisitions are based on notified Recruitment Rules for the posts concerned framed in consultation with the Commission and notified by the Ministry/Department concerned. The recruitment requisitions contain details inter-alia, with regard to the eligibility conditions for the post concerned including qualification, both Essential Qualification(s) as well as Desirable Qualification(s), experience required, age limit, number of vacancies, reservation position etc. The recruitment advertisements are published by the Commission on the basis of the details contained in the recruitment requisitions.
160. In cases where the number of applications received is large; the Commission adopts short listing criteria to restrict the number of candidates to be called for interview to a reasonable number by any or more of the following methods:
(i) On the basis of Desirable Qualification (DQ) or any one or all of the DQs if more than one DQ is prescribed.
(ii) On the basis of higher educational qualifications than the minimum prescribed in the advertisement.
(iii) On the basis of higher experience in the relevant field than the minimum prescribed in the advertisement.
(iv) By counting experience before or after the acquisition of essential qualifications.
(v) By invoking experience even in cases where there is no experience mentioned either as Essential Qualification (EQ) or as Desirable Qualification (DQ) and
(vi) By holding a Recruitment Test.
161. In order to rationalize the time of the Interview Boards and also to reasonably restrict the number of candidates to be called for interview, a set of norms, which are indicative, is adopted by the Commission as below:
For 1 Post Up to 12 candidates For 2 – 3 Posts Up to 24 candidates For 4 – 6 Posts Up to 36 candidates For 7 – 9 posts Up to 48 candidates For 10 Posts and Up to 50 candidates or above above (5 times the number of posts)
162. In bulk recruitment cases where there is a written test not more than 3 candidates who would be qualified on the basis of written test are called for interview for each post.
163. The above ratio would serve only as a general guideline and in each case, decision is taken by the Commission depending upon the merits of the case.
164. In interviews, marks awarded to candidates on a scale of 100. Whereas the minimum level of suitability in interviews is fixed as 50 marks, relaxation is accorded to candidates belonging to reserved categories as indicated below:
Category Marks
All India Services Branch:
165. The Commission’s role is to convene the Selection Committee Meeting (SCM) to prepare the Select list for induction of State Service Officers to All India Services i.e. IAS/IPS/IFoS under Indian Administrative Service (Appointment by Promotion) Regulations, 1955, Indian Police Service (Appointment by Promotion) Regulations, 1955 and Indian Forest Service (Appointment by Promotion) Regulations, 1966 respectively. As per Promotion Regulations, the number of vacancies against which selection is to be made for a particular recruitment year for promotion (induction) is determined by the respective cadre controlling Authorities in Government of India in consultation with the State Government concerned. Thereafter, the State Government forwards a proposal to the Commission which is examined in the Commission for its completeness before placing it before the Selection Committee for consideration.
166. The State Government submits the proposal which contains the eligibility list, which is in consonance with the seniority list, status of disciplinary proceeding/criminal proceeding/integrity /penalty for last 10 years/court case etc. for consideration for promotion to IAS/IPS/IFoS from respective state services. The criteria for inclusion in the eligibility is:-
The officer should be substantive in the State Civil/Police/Forest Service,
(i) Should have completed not less than 8 years of continuous service (whether officiating or substantive in the post of Deputy Collector/Deputy SP/State Forest Service or posts declared equivalent thereto by the State Government),
(ii) Has not crossed fifty-six years of age as on first January of the year for which the Select List is being prepared.
167. According to the scheme provided under the regulations, the Selection Committee is required to classify the eligible officers as ‗Outstanding’, ‗Very Good’, and ‗Good’ or ‗unfit’, as the case may be, on an overall relative assessment of their Service records.
168. The list shall be prepared by including the required number of names (i.e. equal to the number of vacancies), first from amongst the officers finally classified as ‗Outstanding’ then from amongst those similarly classified as ‗Very Good’ and thereafter from amongst those similarly classified as ‗Good’ and the order of names inter-se within each category shall be in the order of the their seniority in the State Civil Service.
Indian Administrative Service (Appointment by Selection) Regulations, 1997.
169. That for selection of Non-SCS officers for appointment to IAS, assessment is made on the basis scrutiny of records and personal interview in terms of Regulation 5 of the IAS (Appointment by Selection) Regulations 1997. The State Government shall consider the case of a person not belonging to the State Civil Service but serving in connection with the affairs of the State who,
(i) Is of outstanding merit and ability; and
(ii) Holds a Gazetted post in a substantive capacity; and
(iii) Has completed not less than 8 years of continuous service under the State Government on the first day of January of the year in which his case is being considered in any post which has been declared equivalent to the post of Deputy Collector in the State Civil Service and proposed the person for consideration of the Committee. The number of persons proposed for consideration of the Committee shall not exceed five times the number of vacancies proposed to be filled during the year.
The suitability of the officers whose candidature is proposed by the State Government concerned is assessed by the Selection Committee on the basis of scrutiny of their service records and personal interview. For this, guidelines have been framed by the Commission for selection of Non-SCS officers for appointment to the IAS which are applied uniformly in the matter of selection of Non-SCS officers into the IAS. As per the guidelines, out maximum 100 marks, the weightage for each of the components (service records and personal interview) is to be given as follows:
(i) Service records with 50% weightage or 50 marks particular reference to ACRs for the five preceding years
(ii) Personal Interview 50% weightage or 50 marks Total 100 marks
170. A minimum of 50% marks in each of the two components viz. the ACR assessment and the personal interviews must be separately obtained by the Non-SCS officers for qualifying for selection for appointment to the IAS under the Selection Regulations.
171. The suitability of a person for appointment to the service is determined by scrutiny of service records and personal interview i.e. total marks obtained.
Case Law on Suitability for Recruitment to Public Posts
172. In State of Haryana v. Subash Chander Marwaha (1974) 3 SCC 220 the Supreme Court held as under:
―12. …In a case where appointments are made by selection from a number of eligible candidates, it is open to the Government with a view to maintain high- standards of competence to fix a score which is much higher than the one required for mere eligibility. There is nothing arbitrary in fixing the score of 55% for the purpose of selection…‖
173. The above observation of the Supreme Court was also reiterated in Tej Prakash Pathak v. Rajasthan High Court, (2013) 4 SCC 540, lamenting that the said observation was unfortunately not brought to the notice of the court in K. Manjushree v. State of A.P., (2008) 3 SCC 512. The relevant portion from Tej Prakash Pathak’s case (supra) judgment is extracted herein below for ready reference:
―13. This Court in the case of State of Haryana vs. Subash Chander Marwaha and Others [(1974) 3 SCC 220] while dealing with the recruitment of Subordinate Judges of the Punjab Civil Services (Judicial Branch) had to deal with the situation where the relevant rule prescribed minimum qualifying marks. The recruitment was for filling up of 15 vacancies. 40 candidates secured the minimum qualifying marks (45%). Only 7 candidates who secured 55% and above marks were appointed and the remaining vacancies were kept unfilled. The decision of the State Government not to fill up the remaining vacancies in spite of the availability of candidates who secured the minimum qualifying marks was challenged. The State Government defended its decision not to fill up posts on the ground that the decision was taken to maintain the high standards of competence in judicial service. The High Court upheld the challenge and issued a mandamus. In appeal, this Court reversed and opined that the candidates securing minimum qualifying marks at an examination held for the purpose of recruitment into the service of the State have no legal right to be appointed. In the context, it was held:-
―12. … In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high-standards of competence to fix a score which is much higher than the one required for more (sic mere) eligibility.‖
14. Unfortunately, the decision in Subash Chander Marwaha [(1974) 3 SCC 220] does not appear to have been brought to the notice of their Lordships in the case of Manjushree [K. Manjusree v. State of A.P., (2008) 3 SCC 512]… .‖
174. In K. H. Siraj v. High Court of Kerala, (2006) 6 SCC 395, the Supreme Court held that it is imperative that only person with a prescribed minimum of requisite qualities/ capacities should be selected as otherwise the standard of judiciary would get diluted. The Supreme Court further observed that interview may also be best mode of assessing the suitability of a candidate for a particular position as it brings out overall intellectual qualities of the candidate. While the written test will testify candidate’s academic knowledge, the oral test can bring out or disclose overall intellectual and personal qualities like alertness, resourcefulness, dependability, capacity for discussion, ability to take decision, qualities of leadership etc. The relevant portion of the judgment is as under:
― 54. In our opinion, the interview is the best mode of assessing the suitability of a candidate for a particular position. While the written examination will testify the candidate’s academic knowledge, the oral test alone can bring out or disclose his overall intellectual and personal qualities like alertness, resourcefulness, dependability, capability for discussion, ability to take decision, qualities of leadership etc. which are also essential for a judicial officer.
xxx xxx xxx
57.. The qualities which a Judicial Officer would possess are delineated by this Court in Delhi Bar Association v.
Union of India and Ors.[(2002) 10 SCC 159]. A Judicial Officer must, apart from academic knowledge, have the capacity to communicate his thoughts, he must be tactful, he must be diplomatic, he must have a sense of humour, he must have the ability to defuse situations, to control the examination of witnesses and also lengthy irrelevant arguments and the like. Existence of such capacities can be brought out only in an oral interview. It is imperative that only persons with a minimum of such capacities should be selected for the judiciary as otherwise the standards would get diluted and substandard stuff may be getting into the judiciary. Acceptance of the contention of the appellants/petitioners can even lead to a postulate that a candidate who scores high in the written examination but is totally inadequate for the job as evident from the oral interview and gets zero marks may still find a place in the judiciary. It will spell disaster to the standards to be maintained by the subordinate judiciary. It is, therefore, the High Court has set a benchmark for the oral interview, a benchmark which is actually low as it requires 30% for a pass. The total marks for the interview are only 50 out of a total of 450. The prescription is, therefore, kept to the bare minimum and if a candidate fails to secure even this bare minimum, it cannot be postulated that he is suitable for the job of Munsif Magistrate, as assessed by five experienced Judges of the High Court.‖ (Emphasis supplied) Discussions and Analysis
175. Till 2007-08, the recruitment to the post of Examiner of Patents and Designs was being done by the respondents only through interview.
176. On 24th December, 2008, Justice Allah Raham Committee was constituted by the Government to review the Recruitment Policy and Structure of Examiners of Patents and Designs in the Patent Office. The Committee, in its the Report dated 31st August, 2009, recommended the recruitment to be done by two stage written test namely Preliminary and Mains, and interview of 20% marks. The Committee noted the importance of interviews in its Report which is reproduced in para VI.3 of the report which is again reproduced hereunder:
VI. 3. Modalities of Selection.
An Examiner of Patents and Designs is a key entry level post in the Patent Office having quasi judicial powers in relation to processing of application and grant of a patent. They have to deal with patent stake holders including legal professionals and patent agents at various stages and interact with them in an efficient and effective manner. Higher supervisory posts above Examiners viz., Controllers of Patents and Designs are all filled through 100% promotions. Thus, Examiners must have the sound knowledge of their field to keep the examination level at high standards and always maintain the sustained tradition of quality. Professional requirements for the post of Examiner makes it imperative that the candidates to be selected for this post should be tested for their knowledge in the respective subject and also for their communication skills, personality, behavior traits, etc. (Emphasis supplied)
177. The respondents did not conduct the recruitment for the post of Examiner of Patents and Designs according to Justice Allah Raham Committee through CSIR in 2012.
178. In 2015-16 and 2018-19, the respondents did not conduct the recruitment of the Examiner of Patents and Designs according to the recommendations of Justice Allah Raham Committee. As per the affidavit dated 30th April, 2021 filed by the respondents, the recruitment for 459 posts for Examiner of Patents and Designs in 2015-16 and 220 of Examiners in 2018-19 was conducted only by written tests comprising of Preliminary and Mains Examination.
179. According to the respondents, the selection by written examination only has been approved by the Central Government. However, no decision of the Central Government has been placed on record to show that the Government decided to dispense with the interview process recommended by Justice Allah Raham Committee and what are the reasons for doing away with the interview process considered mandatory by Justice Allah Raham Committee.
180. According to the respondents, the work of Examiner of Patents and Designs is a desk work not requiring any interaction with public and the interview of the candidate is not necessary. The stand of the respondents is contrary to the Report of the Justice Allah Raham Committee.
181. Intellectual property rights play a major role in industrial, economic, social and cultural growth of a country and India is no exception. Patents have assumed importance as new wealth of nations and are important as an indicator of industrial and technological development as well as a facilitator for global trade and goods, services and knowledge and an important instrument for transfer and dissemination of technical knowledge at home or at global level. Patents identify emerging technologies, research areas and business opportunities, thereby lending a hand to industry to improve its existing technology for better products. Patent is, therefore, a vital tool for international trade.
182. The role of the Examiner of Patents and Designs is extremely important in the working of the Patents Act, 1970, especially after it has been amended and international applications are allowed to be filed in India. Thus, a competitive examination not having an interview as a part thereof would be clearly arbitrary and any such decision by the Respondents would fall foul of Article 14 of the Constitution of India.
183. Interview is imperative for selection and appointment of an Examiner of Patents and Designs which admittedly is also the feeder post for the candidate to get promoted as Assistant Controller of Patents & Designs and thereafter right upto the Controller of Patents & Designs.
184. In Lila Dhar’s case (supra), the Supreme Court emphasized that while a written examination assesses a candidate’s knowledge and intellectual ability, and interview test is valuable to assess a candidate’s overall intellectual and personal quality.
185. In Mehmood Alam’s case, the Supreme Court observed that the ―Interview‖ is now an accepted aid to selection and is designed to give the selectors some evidence of the personality and character of the candidates.
186. The recruitment process for selection and appointment to public posts especially in relation to Group-A Class I posts necessarily provide that interview is an important tool for proper selection of the right candidate in public service.
187. The object of any process of selection for entry into a public service is to secure the best and the most suitable person for the job, avoiding patronage and favoritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service.
188. The interview enables the assessment of suitability of a candidate for career in public service. Some of the qualities to be judged are mental alertness, critical powers of assimilation, clear and logical exposition, balance of judgement, variety and depth of interest, ability for social cohesion and leadership, intellectual and moral integrity.
189. This interview permits an assessment of qualities of character which written papers ignore; it attempts to assess the person themselves and not just their intellectual abilities.
190. The Respondents have not given any explanation as to why the recommendations of the Justice Allah Raham Committee which recommended both written examination and viva voice as part of the selection process, was given a go-by and not adhered to.
191. Uniformity of selection and appointment process in public services would also help ‗certainty’ for the candidates. The twin test of written examination and viva voice as part of the uniform policy of recruitment would help the candidates to prepare themselves in the various public services and it would also help the executive to administer the selection and appointments thereof with a common yardstick.
192. This Court is of the prima facie view that the recruitment for the post of Examiner of Patents & Designs by written tests alone is not in public interest. An Examiner of Patents and Designs is a key entry level post in the Patent Office having quasi-judicial powers in relation to processing of application and grant of a patent and Justice Allah Raham Committee considered interview necessary to assess the personal suitability and to judge the mental caliber of the candidate. That apart, the recruitment process also appears to be discriminatory as the UPSC is conducting the recruitment process by two stage written tests followed by interview. In order to be constitutionally valid, the recruitment process has to be fair, reasonable and uniform. The uniform recruitment policy for all Group A Class-I posts by two stage written test followed by interview would be in the public interest.
193. The following questions of public interest have arisen for consideration:
I. Whether an Interview is necessary for the post of Examiner of Patents and Designs considering that the Examiner of Patents and Designs is a key entry level post in the Patent Office having quasi-judicial powers in relation to processing of application and grant of a patent; and higher supervisory posts above Examiners viz., Controllers of Patents and Designs are all filled through 100% promotions as recommended by Justice Allah Raham Committee. II. The respondents have deposed in their affidavit dated 30 th April, 2021 that an interview is not necessary for recruiting the Examiner of Patents and Designs because the work of the Examiner primarily requires technical knowledge which can be best assessed by written test and the Examiner has not to interact with the public. This submission is not only incorrect but also misleading considering that the Examiner is the feeder post for Controller of Patents and Designs who exercises quasi-judicial powers and has to interact with the patents stakeholders. Whether any action is warranted against the Officers of the respondents for misleading this Court and taking an incorrect stand contrary to the well settled law?
III. Whether the recruitment of Examiner of Patents and Designs by written test only is discriminatory and violative of Article 14 of the Constitution considering that UPSC is conducting the recruitment for administrative services by two stage written examination followed by interview. On 20th April, 2021, Mr. Abhindar Joshi, Director of DoPT, Ministry of Personnel, Public Grievances and Pensions submitted before this Court that the Central Government took a decision on 01st January, 2016 to dispense with the interview only in respect to Group B – Non- Gazetted posts and below, meaning thereby that the interview would be mandatory for Group A posts.
IV. Whether the directions for uniform recruitment by two stage written test followed by interview for all Group A Class-I posts are warranted?
194. This Court is of the view that the aforesaid questions are in the nature of PIL and, therefore, it would be appropriate to list this matter before the PIL Bench.
195. Subject to the order of the Hon’ble the Chief Justice, list before the PIL Bench on 31st May, 2021.
196. According to the respondents, the Central Government took a decision for recruitment of Examiner of Patents and Designs by written examination only. The original record and the decision have to be seen to consider whether Justice Allah Raham Committee Report was considered by the Central Government at that stage and what are the reasons for not holding the interviews. The Central Government shall produce the original record containing the decision before the Division Bench.
197. It is clarified that the observations made in paras 182 to 192 above are prima facie and be not considered as final expression of this Court on the issues involved.
198. It is further clarified that the questions are of great public interest which have been referred to the PIL Bench for future recruitments since the recruitment process of Examiners of Patents & Designs completed in 2019, the selectees have been employed for sufficiently long period and it may not be in larger public interest to nullify the whole selection process. In that view of the matter, the respondents shall comply with the directions given in para 77 above with respect to the petitioner.
199. This Court appreciates the assistance rendered by Mr.A.S. Chandhiok and Mr. Naresh Kaushik, learned Amici Curiae.
J.R. MIDHA, J.
MAY 28, 2021 ak/ds/dk
