The heated battle between the incumbent Controller General of Patents Designs and Trademarks and the All India Patent Officers’ Welfare Association (AIPOWA) reached the doorsteps of the Supreme Court this summer in the form of a special leave petition. The petition stems from the Delhi High Court’s refusal (pdf) to entertain AIPOWA’s writ challenging the appointment of the incumbent Controller General- Dr. Unnat P Pandit. The association challenged the appointment of Dr. Pandit, alleging him to be ineligible for the post, and questioned the legality of the process through which he was appointed. While the High Court initially refused to entertain the writ petition, stating that a public interest litigation cannot be entertained on any service matters, the Supreme Court has agreed to hear the appeal after the summer vacations (pdf). In this post, we’ll take a closer look at this and understand how the judiciary has treated such disputes in the past.
Allegations Concerning the Appointment of the Controller General
Dr. Pandit was appointed as the Controller General in 2022, succeeding Mr. Rajesh Ratnoo. Challenging Dr. Pandit’s appointment a couple of years later, the association alleged that it was made by the Department for Promotion of Industry and Internal Trade (DPIIT) arbitrarily. The writ petition alleged that Dr. Pandit does not possess the essential requisite of 5 Annual Confidentiality Reports (basically performance reports issued by the central government for their employees), which is necessary for the appointment to the position of the Controller General. We’ll not get into this allegation at this point since there seems to be no formal mandate of 5 ACRs for this position that I could find. The Association’s counsel also conceded before the High Court that this is based on nonbinding recommendations by the Dept. of Personnel and Training.
Opaque Appointment Process
The other grounds of challenge are much more concerning. It was alleged that initially, a Search Committee under the DPIIT recommended appointment through open recruitment for the position of the Controller General. This was later overruled by a Second Search Committee that instead decided that the members themselves would suggest names instead of seeking candidates through advertisement. Following this, on September 23, 2021, a list of three names was considered and shared with the Appointment Committee of the Cabinet (the Committee that appoints the top officers of the Country), from which Dr. Pandit’s name was finalized.
As per the relevant office memoranda (here and here) by Dept. of Personnel and Training, appointments in the central government are to be made based on open advertisement, which is to be followed without fail. Only in cases where advertisement may not result in adequate response, a search committee should be appointed. However, I am not sure if this directive is followed. After going through the rabbit hole of different ministries and depts’ websites, the only documents that I could find were letters seeking nominations from different secretaries for the position of the Controller General in 2020 (pdf here and here). I could not find what should have been the preceding open recruitment notifications. (Admittedly, this doesn’t mean they were not present, though – just that I could not find them anywhere)
Missing Recruitment Rules
Another pressing allegation in the writ petition was that the appointment was made without any Recruitment Rules in place. The Association alleged that the CGPDTM Recruitment Rules 2001 were rescinded in 2005, and thereafter, no rules were formed. From the office’s website, I can see numerous recruitment rules, but all of them pertain to the selection of other officers of the CGPDTM and not the Controller General. Even the 2001 recruitment rules, which are titled the Controller General of Patent Design and Trademark Recruitment Rules, do not talk about the appointment of the Controller General and rather concern the appointment of other officers like the joint and deputy controllers! Are the same rules supposed to apply for the appointment of the Controller General? I am not sure, in case any reader has a better understanding of the application of these rules in the present case, please feel free to drop a comment below!
Previously, we have highlighted how there has been an inconsistency concerning the employment of examiners to the patent office, where, over the years, different offices have adopted different methods to appoint the officers. In a stark coincidence, the case highlights that the same problem can arise for appointing their boss, too! The lack of clarity on the appointment of the Controller General may not only sweep in the apprehension of bias, but also in case the recruitment is found to be void, in that case, what will happen to the numerous orders passed and lakhs of patents granted by the Authority.
Ordinarily, the best way out would have been to look at the concerned legislation and read the process in light of the powers granted to the government thereunder. Unfortunately, doing so in this case doesn’t really offer much help because the Trademarks Act (the concerned legislation in this case) simply states that the appointment will be made by the Central Government by notification in the official gazette, without prescribing any method/ clarity on how the same is to be conducted.
The Delhi High Court’s Decision in AIPOWA v. Union of India and the Limits of Judicial Intervention
The lack of clarity in legislation and rules might especially be concerning because the courts have adopted a very conservative attitude towards intervening in service matters through the PIL route. The Supreme Court in Hari Bansh Lal vs Sahodar Prasad Mahto & Ors. (2010) has limited the Court’s power to intervene in service matters by specifying that only a writ of quo warranto (challenging the authority of the office holder) can be issued in a service matter when the appointment is contrary to statutory rules. But what to do when the statute itself is unclear on the mode of appointment and the concerning recruitment rules are silent on how the officer is appointed!
Although, the Delhi High Court did not rely on this decision, in a very short order, it refused to entertain the matter, relying on the Supreme Court’s decisions in Duryodhan Sahu v. Jitendra Kumar Mishra (1998) and Seema Dhamdhere v. State of Maharashtra (2007). The Court read these judgements to impose a blanket ban on hearing PILs in service matters. Interestingly, the Supreme Court decision in Hari Bansh Lal (among others) relies on the Duryodhan Sahu decision for its interpretation. However, a closer look at Duryodhan Sahu and Seema Dhamdhere cases would show that such a narrow interpretation might not be accurate. In Duryodhan Sahu, the issue before the Court was whether an Administrative Tribunal can entertain a PIL and thus does not concern the authority of the High Courts to entertain writs or PILs in service matters. The Court’s decision is based on the Administrative Tribunal Act, 1985, wherein it held that a tribunal cannot entertain a PIL. Thus, this in no way means that a PIL cannot be filed against a service matter.
Similarly, Seema Dhamdhere, doesn’t impose a blanket ban on PIL in Service matters. In fact the Supreme Court gave the following guidelines which are to be kept in mind while hearing the PIL against a service matter:-
The scope of entertaining a petition styled as a public interest litigation, locus standi of the petitioner particularly in matters involving service of an employee has been examined by this court in various cases. The Court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interests; (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with imposters and busy bodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect.
The Delhi High Court did not apply any of these criteria and summarily dismissed the petition on a seemingly flawed understanding of the case laws.
The question then comes in: Where is this interpretation coming from? It was perhaps the Supreme Court’s decision in Ashok Kumar Pandey v. State of West Bengal (2003), where the Court read the Duryodhan Sahu judgement narrowly and advised courts to “throw out” the inflow of PILs involving service matters.
Regardless, this understanding might not stay on for a long time. The Supreme Court in Pratap Singh Bisht v. Director, Directorate of Education (2023) raised apprehension on this narrow interpretation. While the dispute in this case was resolved before the matter came to the Supreme Court, the Court nonetheless called the narrow interpretation of Duryodhan Sahu a “debatable issue” and kept the question open to be resolved in an appropriate case. Perhaps this case can be the opportunity the Court was looking for!
The Never-Ending Controversies Surrounding the CGPDTM
Fans of TV series like The Office, Succession, or any other TV show based on the dynamics between a boss and their subordinates would love the drama encompassing the CGPDTM. Over the last two years the CGPDTM has been stuck in a whirlwind of controversies, so much so that the Supreme Court notice only seems to be the tip of the iceberg. To name some of the infamous ones, the mishaps concerning the recruitment of the Patent Examiners, the ensuing fiasco concerning the revalidation of 2-year orders passed by contractual staff of the Trademark Registry, and the uproar over 259 show cause notices issued to the officers in the patent office. Tejaswini has done a fantastic round up of these controversies in her detailed post here.
This trend of controversies seems to continue in 2025. Recently, it has been alleged by AIPOWA that unlawful access has been given to a multinational corporation, Kaizen International, to the CGPDTM database, without the approval of the parent department, DPIIT. Reportedly, the database contains sensitive and unpublished information related to trademarks and patent applications. Surprisingly, the officers of the CGPDTM were asked to cooperate with Kaizen as the exercise was being conducted after approval from the Prime Minister’s Office. However, consequent to an RTI application, AIPOWA alleges that PMO has no communication asking the CGPDTM to seek Kaizen’s assistance. A writ petition was filed before the Supreme Court seeking a court-monitored investigation along with a probe by the Central Bureau of Investigation (CBI). However, the Court refused to entertain the writ but granted the liberty to approach the relevant high court. Consequently, the Association approached the Delhi High Court, where the Court issued notice to the Centre, the Chief Vigilance Commission, and the CBI (pdf).
This feud between AIPOWA and CGPDTM seems far from being over any time soon. As reported by Bhadra Sinha in the Print, the AIPOWA has moved another application before the Supreme Court, alleging that the Controller General is threatening the association members. Filed in the writ challenging the appointment of the Controller General, the application asserts that some of the officers were asked to distance themselves from the writ, failing which they’ll be transferred from their present postings.
Many thanks to Sonisha Srinivasan for her fantastic research on this post!