Bharati Rathore v. Union of India and Anr.

(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

(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

(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 nonspeaking 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 nonpatentable inventions under Section 3 and 4 of the Act. 8.3.[8] The Patent Office has granted the patent to the plaintiffs in undue haste without following the due process of law. 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.‖‖ 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 13th 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 I —Patents Act and Rules 100 Paper II—Drafting and interpretation of patent specifications and other documents 100 Viva Voce 50 (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 nontechnical 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 welleducated 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 above Up to 50 candidates or 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 OBC 45 SC/ST/PH 40 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 particular reference to

(ii) Personal Interview 50% weightage or 50 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 highstandards 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. 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.‖ 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.

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 30th 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