Delhi High Court
Yaspal Singh S/O Mangal Singh vs Union Of India (Uoi) Through Its ... on 14 August, 2007
Author: M B Lokur
Bench: M B Lokur, S Muralidhar
JUDGMENT
Madan B. Lokur, 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). He sat for the written examination on 14th June, 2004 and was declared successful on 15th August, 2004
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. The Petitioner was called for an oral examination on 14th September, 2005 but it appears that he was unable to succeed in the oral examination. This was the first time the Petitioner was called in the year 2005 for an oral examination.
5. Thereafter, the Petitioner was called for an oral examination on 19th May, 2006 and he failed in that oral examination as well.
6. The admitted position is that the oral examination was conducted only once in the year 2005 and once in the year 2006. Learned Counsel for the Petitioner informs us at this stage that in fact the oral examination was conducted in the year 2006 on two occasions but he was called only on one occasion.
7. 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.
8. It is perhaps for this reason that the Petitioner was not called in the second oral examination that was held in 2006.
9. 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.
10. 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 oral examination only got two chances of appearing in the oral examination and by virtue of Regulation 8(3) of the Regulations, since the two years period has elapsed after the declaration of the result in the written examination, the Petitioner may perhaps not even be called again for an oral examination.
11. The consequence of the inaction of the Respondents in calling the Petitioner for two oral examinations in 2005 and two oral examinations in 2006 (while calling him only once in each year) means that the Petitioner had lost two chances of appearing in the oral examination thereby depriving him 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.
12. 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.
13. 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.
14. Under these circumstances, we are of the view that the Petitioner has been unfairly treated by denying him the opportunity to appear in two oral examinations each year despite his having passed a written examination in accordance with the Regulations.
15. Consequently, to give the Petitioner his due, we direct the Respondents to call the Petitioner for an oral examination on the next two 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 oral examination whenever is 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.
