Delhi High Court
Ms. Anvita Singh vs Union Of India & Another on 28 February, 2012
Author: A.K.Sikri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP (C) No.4376/2011
Date of Hearing: 20.01.2012
% Date of Decision: 28.02.2012
Ms. Anvita Singh .....Petitioner
Through: Mr. Maninder Singh,
Senior Advocate with
Ms.Pratibha M. Singh, Mr.Sushant
Singh, Mr. P.C. Arya, Mr. Praveen
and Mr. D. Bhattacharya
Versus
Union of India & Another .....Respondent
Through Mr. A.S. Chandhiok,
Senior Advocate with
Mr.Ruchir Mishra
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
A.K. SIKRI, ACTING CHIEF JUSTICE
1. The petitioner herein is an M.Sc. which degree she has obtained from
the Indian Institute of Technology (IIT), Delhi. The petitioner claims that
she has been remained involved in the work related to patent, drafting,
filing and prosecuting application for grant of patent registration by the
Patent Office under the Patents Act, 1970 (hereinafter referred to as ‗the
Act') and has vast experience. However, she has not been able to get
herself registered as Patent Agent under the Act because her repeated
WP(C) No.4376/2011 Page 1
attempts to pass qualifying examination for Patent Agents have remained
unsuccessful. This qualifying exam is in two parts, namely, written test and
viva voce examination. Though she has exhibited excellent performance in
so far as written test is concerned, as she has not been able to secure
minimum 50% marks in the viva voce examination, which is the
requirement of Rule 110 of the Patents Rules, she is treated as unqualified.
It is for this reason that by way of writ petition the petitioner has challenged
the said provision of Rule 110 of the Patents Rules which mandates
securing minimum 50% marks in viva voce examination.
2. Section 126 of the Act prescribes qualifications for registration as
Patent Agent and reads as under:-
―Section 126 - Qualifications for registration as patent
agents
(1) A person shall be qualified to have his name entered
in the register of patent agents if he fulfils the following
conditions, namely:-
(a) he is a citizen of India;
(b) he has completed the age of 21 years;
(c) he has obtained a1[degree in science, engineering or
technology from any University established under law for
the time being in force] in the territory of India or
possesses such other equivalent qualifications as the
Central Government may specify in this behalf, and, in
addition,-
(ii) has passed the qualifying examination prescribed for
the purpose;
WP(C) No.4376/2011 Page 2
[(iii) has, for a total period of not less than ten years,
functioned either as an examiner or discharged the
functions of the Controller under section 73 or both, but
ceased to hold any such capacity at the time of making
the application for registration;
(d) he has paid such fee as may be prescribed......‖
3. One of the requirements for qualifying for registration as Patent
Agent, thus, is passing the qualifying examination prescribed for the
purpose. This is so prescribed in Rule 110, as indicated above, to have
clearer view of this requirement. We reproduce here under Rule 110 of the
Patent Rules. Written examination is in two papers followed by viva voce.
All three have 100 marks each. Sub-Rule (3), which is the bone of
contention, stipulates that in each of the written papers as well as viva voce
examination a candidate is required to secure minimum 50% marks and
aggregate of all three papers has to be 60%. The petitioner has no quarrel
with the prescription of minimum 50% marks in papers I and II each. She
also does not question the requirement of securing 60% marks in
aggregate. Her grievance is limited to that part of the Rule which
mandates securing 50% marks in viva voce as well. According to the
petitioner, it is too high a prescription and gives arbitrary power to the
interview board to fail a candidate even when he or she has done
extraordinarily well in the written examination. Conversely, a candidate
who has got more than 50% but less than 60% marks in the written test
consisting of aforesaid two papers, can be given very high marks in viva
WP(C) No.4376/2011 Page 3
voce to ensure making overall 60% aggregate in his/her case and thereby
qualifying such candidate. She has tried to demonstrate it by giving her
own example vis-à-vis the cases of some other candidates. In the
examination conducted in January, 2011, the petitioner had secured 61
marks in Paper I and 72 in paper II. Thus, her aggregate percentage in the
written examination was 66.5%. However, she was assigned 40 marks in
viva voce as a result whereof she was declared ‗failed' in totality. As
against this, the petitioner has given following examples where marks of
other candidates whose performance was average, i.e., below 60% in the
written examinations were declared ‗passed' by giving very high marks in
the viva voce. The candidates, who have marginally passed the written
examination but have been declared successful due to abnormally high
viva voce score. For example, candidate with Roll No. M0493 (appearing
at Mumbai) who scored 59 and 50 in papers I and II but 80 in viva voce,
candidate with Roll No. K001 (appearing in Kolkata) who has scored 57.5
and 54 in papers I and II respectively but scored 90 in viva voce.
Similarly, candidate with Roll No. C0304 (appearing at Chennai) who has
scored 54 and 50 in papers I and II respectively but scored 80 in viva voce.
Failed candidates have also been awarded abnormally high marks in viva
voce. For example, candidate with Roll No.M0507 (at Mumbai) scored 59
and 25 in papers I and II but 85 in viva voce, candidate with Roll No.
M0006 (Mumbai) scored 40 and 36 in papers I and II but 80 in viva voce.
WP(C) No.4376/2011 Page 4
Further, 18 out of 34 candidates declared pass in Chennai have scored
marginal marks in the written examination but have passed purely due to
high marks awarded in viva voce. Similarly, 22 out of 72 candidates
declared pass in Delhi have scored marginal marks in the written
examination but have passed purely due to high marks awarded in viva
voce. Similarly, 1 out of 6 candidates declared pass in Kolkata has scored
marginal marks in the written examination but has passed purely due to
high marks awarded in viva voce. Similarly, 14 out of 89 candidates
declared pass in Mumbai have scored marginal marks in the written
examination but have passed purely due to high marks awarded in viva
voce.
4. It is her submission that the aforesaid provision stipulating minimum
50% marks in the viva voce is discriminatory, arbitrary and violative of
Articles 14, 16 and 19(1)(g) of the Constitution. Mr. Maninder Singh,
learned senior counsel, who argued for the petitioner paraphrased his
propositions of law focusing the aforesaid aspect as follows:-
―This Court in its judgments in:-
Dr. A.M.V.R. Narendra v. UOI & Anr., dated 22.1.2003 in WP (C)
No.3951/2002 and AIIMS v. Dr. A.M.V.R. Narendra dated 11.6.2004 in
W.A. No.127/2003 has, inter alia¸ held that any minimum stipulation for
weightage for viva voce in any evaluation/selection process is not
WP(C) No.4376/2011 Page 5
permissible and specially when such minimum stipulation virtually
amounts to 100% weightage to be given to viva voce and the same is not
permissible under law and would be unsustainable. Weightage to viva
voce in admissions in educational courses etc. beyond 15% would not be
permissible. Similarly, even in the case of employment, higher weightage
to viva voce would not be permissible and in any case, it would indeed be
unsustainable in all those cases where the weightage to viva voce virtually
becomes the only determinative factor in any selection process undertaken
by any authority. He also referred to judgment in this Court the case of
L.R. Nath v. Delhi University, AIR 2002 Delhi 393, wherein this Court
had held that the action of Delhi University in completely eliminating any
weightage to the viva voce was rejected by this Court.
5. It is further submitted that the weightage to viva voce which
otherwise appears to be 33% has virtually become the sole / only
determinative factor inasmuch as it is only on the basis of the marks given
in the viva voce that the petitioner despite having obtained more than 60%
marks in the written examination has been declared to be unsuccessful. In
other words, the weightage to viva voce, in the present case has virtually
become 100% and the only determinative factor in relation to the result of
the entire process.
WP(C) No.4376/2011 Page 6
6. According to the learned counsel, such a situation has been held to
be unsustainable in law in view of the law laid down in L.R. Nath v. Delhi
University (supra) in the following manner:-
―8A. in the present instance, the University of Delhi has
reached the conclusion that the interview test can be
dispensed with for a super speciality course such as
D.M./M.Ch. The same cannot be called arbitrary or
irrational. The University authorities have also
produced the results of entrance examination held by
them for the year 2000. From a perusal of the results
produced, it is seen that the maximum marks for written
test were 240 and 60 for the interview.A perusal of the
results as produced reveal that a topper in the written
examination due to poor marks in the interview/viva
voce may not even make the grade fro admission as the
number of seats for M.CH. and D.M. Course being
limited. For instance a candidate secured 136 marks out
of 240 in the written test but was awarded 48 marks out
of 60 in the viva voce/interview making it a total of 184
marks. As against this, the topper in the written
examination got 155 marks but was awarded only 14 in
the viva voce/interview thus making a total of 169 in
all. This brings into focus, the possible abuse,
arbitrariness and subjectivity of selection by interview.
Instances of a favorable pre-disposition of those
conducting the interview towards candidates known to
them or associated with them during the latters pursuit
of MBBS/MD Courses are not uncommon. While utility
of the interview/viva voce test as an aid in assessment
of the candidates, practical expertise and clinical
assessment has to be recognised at the same time a
system has to be developed with appropriate safeguards
so as to eliminate abuse or reduce to minimal factors,
such as, favorable dispositions, favoritism, nepotism
during the interviews or viva voce tests. The results as
produced tend to show that the marks obtained in the
viva voce test/interview could be a determinative factor,
especially when there is tough competition in the
written examination.
WP(C) No.4376/2011 Page 7
9. Moreover, the assessment of personality traits is
critical for recruitment to Civil Services or other
positions where initiative, self confidence, resource
fullness and leadership qualities are an absolute pre-
requisite. While this may not be so, in case of
admissions to Post Doctoral super-specialty Courses,
where aptitude of the candidates towards medicine,
their academic performance and capacity to work hard
stand more or less established during their pursuit of
MBBS and MD. Accordingly, it is not essential to
follow the same pattern as is required in the case of civil
services for assessment of personality traits. In view of
the foregoing discussion, I am of the view that the
decision taken by the University of Delhi to dispense
with interview/viva voce test is a bona fide exercise of
their power and discretion to make the selection process
objective and to remove elements of subjectivity and
arbitrariness to the extent possible.‖
7. Mr. Maninder Singh also placed strong reliance upon the following
dicta laid down in the judgment rendered by a Single Judge of this Court in
Dr. A.M.V.R. Narendra v. Union of India & Another, WP(C)
No.3951/2002 decided on 22.1.2003:-
―13. The pleas of the petitioner and the respondent
No.2 AIIMS are, therefore, required to be considered in
the light of the above finding by me that the admission
sought by the petitioner is to an academic course. It is
thus evident that the tests laid down by the Hon'ble
Supreme Court for an appointment to a post where a
larger interplay in the interview/via voce marks is
permitted, cannot apply. In so far as admission to
academic course are concerned, courts have consistently
restricted the marks allocable for the interview. The
observations of the Hon'ble Supreme Court in Lila
Dhar's case (supra) qua Ajay Hasia's case (supra) being
per incuriam were made only in the context of
appointments to posts. The observations were not made
in any other context. In so far as admission to academic
courses are concerned, there is no departure from the
WP(C) No.4376/2011 Page 8
law laid down by Hon'ble Supreme Court in Ajay
Hasia's case (supra) restricting the impact of viva
voce/interview. Even the decision in Ashok Kumar
Yadav's case (supre) were higher marks in viva voce
tests have been permitted by the Hon'ble Supreme
Court for a higher degree course, cannot apply to the
present case in view of the foregoing discussion. In any
case, Ashok Kumar Yadav's case (supra) while
permitting higher percentage of marks for interview
does not permit that the interview performance can be
the sole determinative factor. In the present case, it is
significant that there is no dispute that the procedure
prescribed and impugned is such that since the marks
obtained at the first stage of written test plus the second
stage of Departmental Clinical Assessment are not
clubbed at all with the interview stage marks, even after
clearing of both the first stage of written exam and
second stage of departmental clinical assessment by the
candidate, the sole determinative factor is the
performance in the interview irrespective of the score in
written and departmental clinical assessment tests
which in my view, therefore, acquires a hundred per
cent weightage. Even in Ashok Kumar Yadav's case
(supra) which was relied upon by respondent, highest
percentage of marks permitted for interview/viva voce
was 25 per cent and that too for ex-servicemen officer.
Furthermore, this was in case an appointment where the
Hon'ble Supreme Court has permitted a larger
weightage for interview and viva voce. Since I have
already found that interview test in the present case has
already acquired 100 per cent weightage, Ashok
Yadav's (supra) case judgment supports the plea of the
petitioner rather than that of the respondent. It is very
clear that whatever be the degree of weightage of
interview for higher degree course, it cannot in any
event exceed the percentage found to be permissible for
appointment by the Hon'ble Supreme Court. No
decision has been cited by the counsel for AIIMS which
has permitted the interview to be the sole determining
factor in selection for an educational institution's
course. In this view of the matter, the procedure
prescribed by the AIIMS in which there is no real
credence given to the written exam as well as the
WP(C) No.4376/2011 Page 9
departmental clinical assessment except to treat them as
qualifying tests, shows that these tests are merely
treated as eligibility/qualifying tests and the
performance in these tests of 90 marks each are totally
irrelevant and inconsequential when it comes to the 20
marks for the interview test contrary to the well settled
position of law. I have no hesitation in holding that the
non-clubbing of the three tests gives a 100 per cent
weightage to the interview test. In fact the overriding
importance given to the interview in the present context
is even more glaring as the candidate for admission to
the course has not only undergone a written test but has
also successfully cleared the departmental clinical
assessment. In such a situation where the petitioner has
successfully cleared a two-tier system of evaluation, to
permit the interview result to be sole determinative
factor is wholly arbitrary and contrary to the position of
law laid down by the Hon'ble Supreme Court,
particularly when the results of written and
departmental assessment are not added to the result. I
have no doubt that if the results of all the three tests
were combined, the procedure prescribed by the AIIMS
would be perfectly legal and valid and in such a
situation, the courts would not interfere with such a
procedure. In my view, it is the interpretation put on
the procedure by the respondent No.2, AIIMS by not
giving any credence/weightage in the final assessment
to the marks secured in the written test and the
departmental clinical assessment test which makes it
arbitrary and unreasonable.‖
8. This judgment was upheld by the Division Bench vide its decision
dated 11.6.2004 in Writ Appeal No.127/2002. In para-8 of the judgment
the Court formulated the following question, which arose for
consideration:-
―The principal question which falls for consideration
in these appeals is whether admission to the DM [CH]
course is an admission to a course or it is selection to
a post.‖
WP(C) No.4376/2011 Page 10
9. The method of selection was explained in para 11 as under:-
―11. The method of selection is divided into three
stages. The first stage is the written examination. The
second stage is a departmental clinical assessment,
i.e., practical examination and viva voce, and the third
stage is the interview. All these three stages have
minimum qualifying marks of 50%. The candidate
who secures at least 50% marks in one stage of the
course can move to another stage. The candidate who
clears the first two stages would alone becomes
eligible to appear in the third stage, i.e., the stage of
interview. Any candidate getting even one mark short
then the minimum prescribed marks would be
ineligible for admission. This type of procedure is
designed for admission to a course and not selection to
a post (employment in the service).‖
10. After holding that it was an admission to course and not selection to
a post, the Division Bench adverted to the next question, namely, ―Whether
interview can be sole determining factor for a DM [CH] course?‖ After
referring to various judgments of the Supreme Court the Division Bench
held that it was impermissible. The Division bench first took note of the
fact that with the prescription of minimum qualifying marks in the
interview, for all intent and purposes it had led to 100% weightage being
given to viva voce, which could not be countenanced, ruled the DB, inter
alia, observed as under:-
―The Apex Court in number of cases have clearly
laid down that interview alone ought not to be the
sole determinating factor for selection. We have to
take into consideration pragmatic realities.
Arbitrariness in action for extraneous consideration is
prevalent all over. According to the respondent, to
WP(C) No.4376/2011 Page 11
minimize arbitrariness, favouritism and nepotism it is
absolutely imperative that the interview should never
become sole determinating factor for admission to a
course.
xxxxx
61. On careful scrutiny of the judgments of the
Apex Court it is abundantly clear that for selection to
a post, both written examination and oral interview
are absolutely imperative. The percentage of marks
to be allocated for written test and the interview
should depend on the nature of service, assignment or
the course. This can vary from service to service.
While acknowledging the importance of oral test and
interview in the selection process, in our considered
view, the interview itself cannot be the sole
determinating factor for selection. In other words,
there cannot be 100% weightage to interview in the
selection process. Their Lordships of the Supreme
Court in the case of K. Prabhakar Rao (supra)
observed that even in a case of admission to service
prescription of minimum marks for viva voce was
illegal. In the instant case as held by us DM [CH] is
an admission to a course. Therefore, there cannot be
prescription of minimum marks for viva voce or
interview.‖
11. Mr. Maninder Singh also pointed out that in the present case as well
it could not be called appointment to a post as it was a case of self-
employment. On qualifying the examinations, the respondents were only
granting registration as Patent Agent which could entitle a person to have
his/her practice as Patent Agent as such Patent Agent acquires certain
rights stipulated in Section 127 of the Act, which is to the following
effect:-
WP(C) No.4376/2011 Page 12
―Section 127 - Rights of patent agents
Subject to the provisions contained in this Act and in any
rules made thereunder, every patent agent whose name is
entered in the register shall be entitled--
(a) to practice before the Controller; and
(b) to prepare all documents, transact all business
and discharge such other functions as may be prescribed
in connection with any proceeding before the Controller
under this Act.‖
12. He, thus, submitted that if a person is not good, he will not get work
from the prospective client as the Patent Agent was required to generate
his/her own work depending upon his own efficiency and capability and by
generating faith in his/her client/prospective client. On this basis it was
submitted that the principles laid down in the aforesaid judgment relating
to admission to a course would be applicable and not the principles for
appointment to a post, in so far as viva voce is concerned. He also
submitted that in a large number of developed countries where the
importance and significance of rights in relation to a patent agent are well
recognized for decades, there is no viva voce at all in this evaluation
process for grant of registration at Patent Agents. In other words, the
proficiency of any candidate to be given registration as Patent Agent can
easily and advisedly governed by the performance in the written
examination itself. For example, neither in U.S. nor in Canada, U.K. and
WP(C) No.4376/2011 Page 13
in the European Union office etc. there is no weightage for viva voce for
grant of registration as Patent Agents.
12. Taking cue from the observations of the Division Bench in AIIMS
v. Dr. A.M.V.R. Narendra (supra), Mr. Maninder Singh has gone to the
extent of submitting that directions be given that exercise of evaluation by
means of viva voce should be undertaken by an expert authority such as
UPSC etc. where the experts can be obtained from science background
from other reputed institutes and universities so as to meet the objectives
of the Act. According to Mr. Maninder Singh the Patent Office does not
possess the expertise or wherewithal for undertaking the process of
evaluation/selection of grant of Patent Agents which is resulting into
manifest anomalies as pointed out by him.
13. Learned counsel for the respondent, per contra, argued that Rule 110
of the Patent Rules stipulating minimum qualifying marks in viva voce
was perfectly justified as it was not a case of admission to a course in
university. Highlighting the rights which a qualifying Patent Agent gets as
per Section 127 of the Act, he submitted that theoretical knowledge in the
subject of patents, which is judged by the written examination, was not
sufficient. A Patent Agent was to be judged on other parameters as well,
particularly when he or she is in a position to assist the patent authorities
properly while dealing with the cases of that registration of patents. Such
attributes of a particular candidate could only be judged/evaluated by
WP(C) No.4376/2011 Page 14
means of viva voce examination which was aimed at achieving higher
standards of the practitioners. Therefore, argued the learned counsel,
prescribing minimum 50% marks in all three papers unanimously, was not
bad in law and such matters were to be left to the rule making authorities
and should not be interfered with by the courts. He particularly laid
emphasis on the following discussion contained in the Constitution Bench
judgment of the Supreme Court in Ajay Hasia and Others v. Khalid Mujib
Sehravardi and Others, (1981) 1 SCC 722:-
―The oral interview test is undoubtedly not a very
satisfactory test for assessing and evaluating the capacity
and calibre of candidates, but in the absence of any better
test for measuring personal characteristics and traits, the
oral interview test must, at the present stage, be regarded
as not irrational or irrelevant though it is subjective and
based on first impression, its result is influenced by many
uncertain factors and it is capable of abuse. We would,
however, like to point out that in the matter of admission
to college or even in the matter of public employment,
the oral interview test as presently held should not be
relied upon as an exclusive test, but it may be resorted to
only as an additional or supplementary test and,
moreover, great care must be taken to see that persons
who are appointed to conduct the oral interview test are
men of high integrity, calibre and qualification.‖
14. Learned counsel also relied upon another judgment of the Apex Court
in Madan Lal and Another v. State of J & K and Others, (1995) 3 SCC
486 where similar contention advanced was repelled, namely, those who
secured very good marks in written test had questioned the manner and
method of conducting viva voce test. His submission was that in the
WP(C) No.4376/2011 Page 15
aforesaid case the Court held that after a candidate had taken chance to get
selected at the interview and appeared therein. He/she could not thereafter
question the said method of selection and principle of estoppel would apply.
Even on merits the Court held that the assessment of the interview board
could not be challenged on the ground that same was not proper or justified
as the Courts could not sit over the judgment of the expert committee. He
referred to the following discussion in the said judgment in this behalf:-
―10. Therefore, the result of the interview test on merits
cannot be successfully challenged by a candidate who
takes a chance to get selected at the said interview and
who ultimately finds himself to be unsuccessful. It is
also to be kept in view that in this petition we cannot sit
as a court of appeal and try to reassess the relative merits
of the candidates concerned who had been assessed at the
oral interview nor can the petitioners successfully urge
before us that they were given less marks though their
performance was better. It is for the Interview
Committee which amongst other consisted of a sitting
High Court Judge to judge the relative merits of the
candidates who were orally interviewed, in the light of
the guidelines laid down by the relevant rules governing
such interviews. Therefore, the assessment on merits as
made by such an expert committee cannot be brought in
challenge only on the ground that the assessment was not
proper or justified as that would be the function of an
appellate body and we are certainly not acting as a court
of appeal over the assessment made by such an expert
committee.
xxxx
17. In the light of what is stated above, while dealing
with Contention 1, this contention also must fail. The
petitioners subjectively feel that as they had fared better
in the written test and had got more marks therein as
compared to the selected respondents concerned, they
WP(C) No.4376/2011 Page 16
should have been given more marks also at the oral
interview. But that is in the realm of assessment of
relative merits of candidates concerned by the expert
committee before whom these candidates appeared for
the viva voce test. Merely on the basis of petitioners'
apprehension or suspicion that they were deliberately
given less marks at the oral interview as compared to the
rival candidates, it cannot be said that the process of
assessment was vitiated. This contention is in the realm
of mere suspicion having no factual basis. It has to be
kept in view that there is not even a whisper in the
petition about any personal bias of the Members of the
Interview Committee against the petitioners.‖
15. On estoppel, learned counsel also referred to the judgment of the
Supreme Court in Chander Prakash Tiwari and Others v. Shakuntala
Shukla and Others, (2002) 6 SCC 127.
16. Justifying the minimum marks in viva voce on the ground that
interview was the best mode of assessing the suitability of the candidate, the
learned counsel also referred to the judgment of the Supreme Court in K.H.
Siraj v. High Court of Kerala & Others, AIR 2006 2339. This was a case
of appointment to judicial service wherein selection procedure prescribed,
holding of examination, written as well as oral and further stipulation of
minimum passing marks in both written as well as viva voce tests was
discussed. The Court upheld the prescription of minimum passing marks in
the interview pointing out the importance of viva voce test in the following
manner:-
―54. In our opinion, the interview is the best mode of assessing the
suitability of a candidate for a particular position. While the written
WP(C) No.4376/2011 Page 17
examination will testify the candidate's academic knowledge, oral test
alone can bring out or disclose his overall intellectual and personal qualities
like alertness, resourcefulness, dependability, capacity for discussion,
ability to take decisions, qualities of leadership etc. which are also essential
for a judicial officer.
55. We may usefully refer to a decision of this Court in Sahkari Ganna
Vikas Samiti Ltd. v. Mahabir Sugar Mills (P) Ltd., (1981) 4 SCC 149 in
which this Court observed:
―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 favouritism.
Selection based on merit, tested impartially and
objectively, is the essential foundation of any useful and
efficient public service. So, open competitive
examination has come to be accepted almost universally
as the gateway to public services.
The ideal in recruitment is to do away with unfairness.
...
A system of recruitment almost totally dependent
on assessment of a person's academic knowledge and
skills, as distinct from ability to deal with pressing
problems of economic and social development, with
people, and with novel situations cannot serve the needs
of today, much less of tomorrow...We venture to suggest
that out recruitment procedures should be such that we
can select candidates who cannot only assimilate
knowledge and sift material to understand the
ramifications of a situation or a problem but have the
potential to develop an original or innovative approach to
the solution of problems.
It is now well recognised that while a written
examination assesses a candidate's knowledge and
WP(C) No.4376/2011 Page 18
intellectual ability, an interview test is valuable to assess
a candidate's overall intellectual and personal qualities.
While a written examination has certain distinct
advantage over the interview-test there are yet no written
tests which can evaluate a candidate's initiative, alertness,
resourcefulness, dependableness, cooperativeness,
capacity for clear and logical presentation, effectiveness
in discussion, effectiveness in meeting and dealing with
others, adaptability, judgment, ability to make decision,
ability to lead, intellectual and moral integrity....
While we do feel that the marks allotted for
interview are on the high side and it may be appropriate
for the Government to re-examine the question, we are
unable to uphold the contention that it was not within the
power of the Government to provide such high marks for
interview or that there was any arbitrary exercise of
power.‖
17. The Court thereafter scanned through a number of earlier
pronouncements wherein the importance of viva voce test had been
highlighted and accepting such importance in the case of Judicial Officers
the Court remarked:-
―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 SCC159. 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
WP(C) No.4376/2011 Page 19
oral interview and gets 0 marks may still find it 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 bench mark for the oral
interview, a bench mark 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.‖
18. There cannot be any quarrel about the principles of law which can be
culled out from the judgments cited by the learned counsel for both the
parties as they are crystalised and firmly established in those judgments.
What is to be seen in all these judgments is that while examining the rule
giving weightage to the interview viva voce marks, the courts have made
distinction between those cases which pertain to admission to educational
institutions from the cases which deal with the appointment to a post.
When it comes to admission in academic courses in educational institutions,
the law laid down by the Apex Court in Ajay Hasia (supra) is restricting
the marks of viva voce has been consistently followed and the principle
which is laid down is that in such cases, normally the weightage to be
given to the viva voce marks should normally be 15 per cent and should
not be in any case not more than 15 to 20 per cent. However, when it
comes to admission, the higher degree courses, little higher per centage of
marks is permitted. On the other hand, when it comes to appointment to a
WP(C) No.4376/2011 Page 20
post in service, large interplay in the interview/viva voce marks is held
permissible. In such cases, how much weightage is to be given to the
interview marks depends upon the nature of post to which the appointment
is made. In Ashok Kumar Yadav (supra), which was a case of ex-
servicemen officer, 25 per cent marks allotted for interview was held to be
justified. On the other hand, when it comes to appointment to a post which
is of high ranking and/or is of the nature where personal tests are also
important which can be judged only in viva voce test, not only a very high
per centage assigned to the interview is upheld, even when selection to
such post is solely on the basis of interview, even that is held to be
permissible. This was so highlighted by the Supreme Court in K.H. Siraj
(supra). In the cases of selection for entry into public service or such post,
the object is to secure the post and most suitable person for the job
avoiding patronage and favouritism.
19. We, however, feel in the present case neither we can apply the test
applicable for admission to an academic course in an educational institution
nor can we apply, stricto senso, the test laid down by the Supreme Court
giving less weightage to viva voce examination for appointment to a
post/service. The case here is of slightly different nature which does not
fall either in the aforesaid category. It is a case of self employment namely
a person who gets registration as patent agent has to fend for
himself/herself. The registration qualifies such a person to act as patent
WP(C) No.4376/2011 Page 21
agent and gives certain rights stipulated in Section 127 of the Act which
include entitlement to practice before the Controller as well as to prepare
all documents, transact all business and discharge such other functions as
may be prescribed under the Patents Act. It is thus right to practice under
the Patents Act before a particular authority namely the Controller. In that
sense, the concerned patent agent becomes a professional. Whether such a
person is able to generate work and do well in the profession would depend
his/her caliber and other attributes enabling him to generate such
professional work. By making him/her a patent agent no monitory or other
benefits are accorded to that agent by the State or the patent office. At the
same time, the purpose is to lay down the minimum professional standards
for these patent agents so that they are in a position to discharge their
duties effectively and are able to assist the Controller in dealing with and
taking decision on the matters brought before the Controller by the patent
agents. This expectation is legitimate and is necessary for the dispensation
of all statutory duties the Controller is required to discharge. In that limited
position of patent agent can be to that of an Advocate appearing before the
Court and assisting the Court in a meaningful manner.
20. It hardly needs to be emphasised that lawyers play an important role
in the administration of justice. Judges cannot perform their task of
dispensing justice effectively, without the support of lawyers. It is often
WP(C) No.4376/2011 Page 22
said that judges and lawyers are the two sides of the same coin. In perform
his task the advocate is expected to act without fear or favour and to
conduct himself with dignity and decorum showing due respect and
courtesy to the Court. His main concern is to present to the court all that
can be properly said on behalf of his client's case and in so doing he is not
to cater to the opinions and prejudices of the litigant. The better the case is
argued on each side the more likely the judge will reach a correct
conclusion. That is why it is said that a strong bar makes a strong bench. It
is, therefore, by contributing an essential aid to the process of the
administration of justice that the advocate discharges a public duty of the
highest utility.
21. M.C. Desai, former Chief Justice of Allahabad High Court has
observed in one of his writings:
―I always have a great respect for the lawyer's
profession because there is no profession higher
than that of law. It is one of Ruskin'e five great
intellectual professions relating to daily necessities
of life. A Judge and a lawyer both participate in
the administration of justice. A Judge administers
the law and the lawyer guides him in doing it.
They are both set on a common purpose and the
administration of justice is their joint
responsibility, that is why cooperation between
them is essential for the achievement of the
common purpose. Without a strong and
independent Bar it is not easy for the Court to
receive the guidance which is essential in the
administration of justice.‖
WP(C) No.4376/2011 Page 23
With the aforesaid role of an advocate from whom expectations are
much higher, his competence cannot judged merely by any interview or
viva voce. Prescribing this condition with minimum 50% marks for a Patent
Agent appears to be a tall order.
22. For this reason, this provision prescribes minimum educational
qualification which a patent agent is required to possess is contained in
Section 126 (1) (c) of the Act namely the a degree in science, engineering
or technology from any University established under the law for time being
in force or other equivalent qualifications as the Central Government may
specify in this behalf. In addition, the minimum experience of 10 years
either as an examiner or as Controller under Section 73 or both as
prescribed. To top it all, this provision also calls for passing the qualifying
examination as prescribed for the purpose. This qualification as prescribed
under Rule 110 again puts to test the knowledge of prospective agent in
theory which is examined through two written papers.
23. In this background, we have to examine the appropriateness of the
weightage given to the viva voce which is again of 100 marks, like other
two papers of 100 marks each. There may not even be any dispute of
application of 100 marks each to three papers or securing 60 per cent marks
in aggregate in these papers. The only dispute is on prescribing minimum
50 per cent marks in viva voce and this aspect is to be seen in the aforesaid
WP(C) No.4376/2011 Page 24
background given by us which background we summed up again as
follows.
24. The patent agent is neither an admission to educational institution or
appointment to a post. It is in the nature of self employment and status of
professional attached to such a patent agent, minimum educational
qualification in order to become patent agent, a person has to have the
minimum qualification as well as experience, he has to pass the qualifying
examination wherein he/she is again tested about his/her knowledge in the
subject. When a person is able to meet all the aforesaid test, can such a
candidate be failed only because of failure to secure minimum 50 per cent
marks in viva voce.
25. No doubt, as explained by the learned counsel for the respondent,
theoretical knowledge is not sufficient and a patent agent is to be judged on
other parameters as well. It is to be seen as to whether he/she is in a
position to assist patent authorities appropriately while dealing with the
cases of the registration of patents and some of these attributes, particularly
is/her manner of presentation can be judged at the time of interview. This is
to be balanced with other factors, pointed out above, namely on the
registration as patent agent, the patent agent only gets the right to appear
before the Controller and present certain papers etc. and it is for the patent
agent to generate work for himself/herself. For generating this work, it is
WP(C) No.4376/2011 Page 25
the relationship between the patent agent and the client who needs services
of such a patent agent. It is the confidence which said client reposes in the
patent agent that matters the most. If a particular patent agent is not good
enough, he/she may not get much work. When we examine the matter from
this angle, we are of the view that the aforesaid provision, the minimum 50
per cent marks which acquires 100 percent weightage may not be
appropriate. The rational given by this Court in Dr. A.M.V.R. Narendra
(supra) would clearly be applicable wherein almost similar kinds of
selection process was commented upon to hold that the interview had
become the sole determinative factor for appointment to a course. Here
also even if a particular candidate had done well in his next degree course
(educational qualification) or had extra ordinary experience and had also
performed well in two written qualifying examination, still even with one
mark less than the minimum 50 per cent marks required in interview, he/she
would be treated as disqualified. This, according to us, may result in some
kind of arbitrariness. Some of the examples given by the petitioner in the
present writ petition itself give an impression that such things can happen.
We are, therefore, of the opinion that prescribing minimum 50 per cent
marks in the interview may not be appropriate more so when the rule
mandates securing 60 per cent marks in aggregate in all three papers i.e.
two written and one viva voce test. This rule is therefore arbitrary and
becomes violative of Article 14 of the constitution. To this extent namely
WP(C) No.4376/2011 Page 26
prescribing minimum 50 per cent marks in the viva voce is struck down.
We, however, leave it to the rule making authority to either give less
weightage by prescribing lesser minimum marks which should not be more
than 25 per cent.
26. Having examined the validity of the Rule in the aforesaid manner, we
revert back to the case of the petitioner before us. As already pointed out
above, the petitioner has appeared thrice in the selection process. While in
the selection process in the year 2008, the petitioner secured aggregate of
60.44% but was not selected for failure to secure minimum of 50 marks in
Paper II - in that year, she was awarded 79.33% in the viva-voce; in the
exam held in 2010, she was disqualified for failure to secure 50 marks in
viva-voce; in the last exam though in the two written papers she has secured
61% and 72% marks respectively but was given only 40% in viva-voce.
Thus, though in the last exam she has secured 133 marks out of 200 marks
i.e. 66.5% in the written exam but has still remained unsuccessful for the
reason of not securing 50% marks in the interview. In the given case, we
feel that marks secured by her in the viva voce do not reflect her actual
merit, when adjudged in the light of her performance in the written papers
and her qualifications i.e. post graduation in Science (M.Sc.) from Indian
Institute of Technology, Delhi. We are therefore of the view that the marks
of viva voce be ignored altogether. Once we find that in other papers the
WP(C) No.4376/2011 Page 27
petitioner has secured more than 60% marks, which are the qualifying
marks, she has to be declared pass in the examination and which entitles her
to get registered as the Patent Agent. We may clarify that the aforesaid
approach is restricted to the case of the petitioner in order to find the
solution of the case at hand. What course of action is to be adopted by the
respondents in future would depend on the nature of amendment that shall
be made to the Rule in question.
27. We thus issue mandamus to the respondents to register the petitioner
as the patent agent.
28. This writ petition is allowed in the aforesaid terms.
29. There shall be no order as to costs.
ACTING CHIEF JUSTICE
February 28, 2012 (RAJIV SAHAI ENDLAW)
hp/skb. JUDGE
WP(C) No.4376/2011 Page 28
