IMPORTANT POINT
Technical Members can function as Chairperson of Intellectual Property Appellate Board.

JUDGMENT :

S. RAVINDRA BHAT, J.

1. This judgment will dispose of an application by which directions are sought that till a new chairperson of the Intellectual Property Appellate Board (hereafter referred to as “the board” or “IPAB”), is appointed, the incumbent (whose tenure had been extended by interim orders of this court, up to 31.12.2020) should continue to function as Chairperson.

2. The applicant (the International Association for Protection of Intellectual Property [India Group]) had preferred a Writ Petition (WP(C) 1431/2019), which was disposed of by this court by a judgment along with a batch of other petitions and applications on 27th November 2020, in the judgment reported as Madras Bar Association v Union of India, (2020) SCC OnLine SC 962. The applicant seeks extension of the term of the incumbent Chairperson of the board stating that his appointment was made under section 89A of the Trademarks Act, 1999 (“TM Act” hereafter). The applicant urges that Section 184 of the Finance Act, 2017, prescribes the term of office and the conditions of service of Chairperson and members of various tribunals including that of the Board. Section 161 of the Finance Act inserted Section 89A to the TM Act-which stipulates that the term of office of appointments to the board after the date of commencement of the Finance Act would be governed by the provisions of the Section 184 of the said Finance Act. The outer limit prescribing the age limit of the chairperson of the board is 70 years, in terms of Section 184.

3. It is contended that in the judgment in Rojer Mathew [Rojer Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1.] this court had directed that appointments made to the board preceding the rules framed in 2020 under the Finance Act within (hereafter the 2020 Rules) were governed by the parent enactment. Reliance is placed on the relevant extract of the main judgment of this court in this regard (para 53 [xv]). It is stated that the parent Act in this case is the Trademarks Act (hereafter the ‘TM Act’). In this context, it is contended that since the outer limit of the tenure of the chairperson is 70 years under the parent Act, i.e. the TM Act, the age of 65 years contemplated under Section 86 of that Act no longer applies.

4. Learned counsel contrasts Section 86 and Section 89 of the TM Act and contends that though Section 86 on the one hand prescribes the outer age limit (for the tenure of chairperson) as 65 years, that is over borne by the provisions of section 89A, which states that the terms and conditions hitherto applicable would no longer be so and that in matters of conditions of service and tenure of appointment, the provisions of section 184 of the Finance Act would apply. It is contended by senior counsel that the Rules were originally framed with effect from 01.06.2017, under which the present incumbent was appointed. These rules were set aside by Rojer Mathew, in which all sitting members and chairpersons of various tribunals were protected, till new rules were framed. The Rules framed in 2020, have now been substantially read down or quashed. The clarification that the present incumbent, in fact, would continue to hold office in spite of attaining the age of 65 years, logically flows from the ruling in Madras Bar Association (supra). A clarification of this is essential, given that in law, the outer limit has now been extended to 70 years. The attention of this court is also drawn to para 53 (ix) of the judgment of this court dated 27th November 2020.

5. Learned counsel relied upon the said judgment. It was argued that the orders made by this court during the pendency of that case, till final judgment, i.e. dated 27th of November, 2020 protected the tenures of all incumbent tribunal members and their chairpersons. Specific reliance was placed upon the order dated 16th September 2020, which had extended the tenure of office of all incumbent members of all tribunals, to 31st December, 2020. The applicant also urged that