Smt. Sunita Gulathi vs Union Of India (Uoi) Through Its ...
2007 Latest Caselaw 1474 Del

JUDGMENT

S. Muralidhar, J.

1. Rule D.B.

2. The Petitioner sat for a written examination conducted by the Director General of Inspection for being licensed as a Custom House Agent in terms of the Customs House Agents Licensing Regulations, 2004 (hereinafter referred to as the Regulations). She sat for the written examination on 14th June, 2004 and was declared successful on 20th April, 2005.

3. In terms of Regulation 8(1) of the Regulations, an examination is to be conducted by the Director General of Inspection twice a year. Regulation 8(2) of the Regulations postulates not only a written examination but also an oral examination. Consequently, on reading of Regulation 8(1) and Regulation 8(2) of the Regulations, the written examination as well as the oral examination is required to be conducted twice a year. Regulation 8(1) and Regulation 8(2) of the Regulations read as follows:

8 Examination of the applicant:- (1) Any applicant whose application is received within the last date specified in the notice or publication, as the case may be, referred to in Regulation 4 and who satisfied the requirements or Regulations 5 and 6 shall be required to appear for the written as well as oral examination conducted by the Director General of Inspection at specified centres and specified dates, twice every year, for which intimation shall be sent individually in advance before the date of examination.

Provided that an applicant who has already passed the examination referred to in Regulation 8 will not be required to appear for any further examination.

(2) The applicants declared successful in written examination shall be called for oral examination.

4. She was called for an oral examination on 19th September, 2006 but was unable to succeed. This was the first time the Petitioner was called in the year 2006 for an oral examination.

5. It may be mentioned here that there was an oral examination held on 17th April, 2006. But for some reason, the Petitioner was not called for the said examination. When the Petitioner represented to the Respondents that she should be given at least two more chances, she was informed by a letter dated 28th September, 2006 that since the matter was subjudice in this Court, the Department would await the judgment to take further action.

6. Our attention has also been drawn to Regulation 8(3), which provides that the applicant has to clear the oral examination within two years of the related written examination irrespective of the number of chances. Regulation 8(3) of the Regulations reads as follows:

(3) It shall be necessary for the applicant to clear written as well as oral examinations separately. An applicant who clears the written examination but fails in the oral examination linked to it, shall have to clear the oral examination within two years of the related written examination irrespective of the number of chances, and if he fails to do so, he shall be treated as having failed in the examination.

7. Despite the above Regulations the Petitioner was called for an oral examination only once in 2006 after she had cleared the written examination on 20th April, 2005. With the rejoinder-affidavit, the Petitioner has placed the documents to show that further oral examination was held on 8th December, 2006 for which again the Petitioner was not called.

8. But be that as it may, the admitted position is, and we say so because the Respondents have in their counter affidavit in paragraph 5 admitted, that the written as well as oral examination is required to be conducted twice a year but for certain administrative reasons it could not be held twice a year.

9. The consequence of the failure of the Respondents to hold the oral examination twice a year means that the Petitioner who could have got 4 chances of appearing in the examination only got one chance of appearing in the oral examination. Since then two years have elapsed after the declaration of her result in the written examination, the Petitioner may not be called again for an oral examination.

10. The consequence of the inaction of the Respondents in calling the Petitioner for only one oral examinations in 2006 means that the Petitioner had lost three chances of appearing in the oral examination thereby depriving her of getting a Custom House Agents license. The Respondents have given no reason why they cannot rectify the prejudice that they have caused to the Petitioner because of their inaction.

11. The Respondents are, of course, trying to justify their failure to hold the written examination and oral examination with the required frequency as postulated by the Regulations on the ground that the Director General of Inspection, Customs and Central Excise requested the Central Board of Excise and Customs that the examination should be conducted by the National Academy of Customs, Excise and Narcotics Control (NACEN) but that request was turned down by the CBEC.

12. This contention, to our mind, is untenable because the result of this is that persons like the Petitioner are deprived of seeking employment. Even if the reason given by the Respondents is tenable, they would be required to somehow or the other comply with the Regulations and make up for the shortfall in the requisite number of examinations.

13. Under these circumstances, we are of the view that the Petitioner has been unfairly treated by denying her the opportunity to appear in three oral examinations each year despite her having passed the written examination in accordance with the Regulations.

15. Consequently, to give the Petitioner her due, we direct the Respondents to call the Petitioner for an oral examination on the next three occasions when such an oral examination is held.

16. We are told that the next oral examination is likely to be held in October, 2007 and we direct the Respondents to call the Petitioner for that oral examination as well as the next two oral examinations whenever they are held, if the Petitioner does not clear the oral examination held in the year 2007.

17. No further orders are required to be passed in this petition.

18. The writ petition is disposed of accordingly.