Reevaluation of Patent Agent Examination answer sheet not permissible in terms of policy adopted by CGPDTM – High Court

Reevaluation of Patent Agent Examination answer sheet not permissible as policy adopted by CGPDTM prohibited reevaluation/reassessment -High Court

ABCAUS Case Law Citation:
ABCAUS 2518 (2018) 09 HC

Important Case Laws Cited/relied upon by the parties:
Ran Vijay Singh & Ors. v. State of Uttar Pradesh & Ors.: (2018) 2 SCC 357
Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission, Patna & Ors.: (2004) 6 SCC 714

The petitioner had appeared for the Patent Agent Examination conducted by . The petitioner failed to make the cut in the qualifying list declared.

The petitioner filed an application under the Right to Information Act, 2005 seeking the copies of her answers sheets of the Examination. The concerned Central Public Information Officer (CPIO) supplied the same to the petitioner. On perusal of the said answer sheets, the petitioner found that she was awarded “Zero marks” in one question in a Paper.

Aggrieved, the petitioner wrote an e-mail to the Examiner of Patents & Designs on guidance of reassessment of the marks. The petitioner received a reply stating that revaluation will not be done as per the policy but an unevaluated answer will be open for consideration.

Thereafter, the petitioner received a reply which stated that the representation made by the petitioner had been considered and it was clear that the said “question was evaluated”. It was further stated that revaluation will not be considered.

The petitioner sent a letter requesting that matter be considered afresh for allocation of marks against the answer to the involved Question. But the petitioner did not receive any response to the said letter.

Aggrieved by the denial of request, the petitioner had filed the present petition.

The Hon’ble High Court noted that Rule 110 of the Patent Rules 2003 (Rules) does not contain any provisions as to how the exam would be conducted. The Patent Rules do not provide for; the structure of the papers; the frequency of the exams; the method of marking; and whether the exams would be objective or subjective etc. All such details as to how the qualifying exam is to be conducted are plainly at the discretion of the Executive Agency – The Controller General of Patents Designs and Trade Marks (CGPDTM).

It was observed that as per the Minutes of the Meeting held by the CGPDMT officials, apart from  deliberation upon the holding of the Examination and finalized a tentative timeline for holding such examination etc., they further determined the structure of Papers, the difficulty level, and the policy for checking of answer sheets. A Board was also constituted for rendering advice in connection with the conduct of the Examination.

The Hon’ble High Court observed that from the above said minutes and the decision taken at the meeting of the Board, it could not be disputed that the Patent Office had adopted a policy not to permit reassessment of the answer sheets.  The Hon’ble High Court did not find merit on the contention that the said minutes and the policy were of no relevance.

The Hon’ble High Court noted that section 126(1)(c)(ii) of the Patent Act expressly provides that for a person to qualify as a Patent Agent, he / she should have passed a qualifying examination prescribed for the said purpose. Not framing of procedure for conducting the Examination and evaluating the answers does not mean that the decision of the CGPDTM in this regard was of no relevance. Clearly, it was not feasible for the Patent Rules to prescribe all details. It is trite law that the executive can always fill up the gaps in legislation. In the present case, the Executing Agency (CGPDTM) would have full discretion to adopt a procedure in conformity with the Patent Rules for conduct of the Examination in question.

The Hon’ble High Court opined that the contention that such policy was of no relevance and must be ignored was, thus, fundamentally flawed.

The Hon’ble High Court opined that in view of the specific policy of the respondents not to permit re-evaluation, the petitioner‘s request to the aforesaid effect cannot be acceded to. The Supreme Court had authoritatively held that in absence of any provision for re-evaluation of the answer sheets, an examinee would have no right to seek re-evaluation of his/her marks.

As per law laid down by the Hon’ble Supreme Court, in certain cases, the court may permit reevaluation or scrutiny of an answer sheet. However, this is permissible only in rare and exceptional cases and only where the Statute, Rules and Regulations do not prohibit it, said the Court.

In vuew of the policy adopted by the CGPDTM for conduct of the Examination, which clearly prohibited reevaluation / reassessment of answer sheets, the Court expressed its inability to accede to the relief sought for by the petitioner.

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