R.K. Sahu vs Union Of India & Others
2009 Latest Caselaw 2855 Del

8.
*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+      W.P.(C) 1675/2008

                                      Date of decision: 27th July, 2009


       R.K.SAHU                                        ..... Petitioner
                          Through Mr. Sumit Bansal, Mr. Manish Paliwal &
                          Mr. Ateev Mathur, Advocates.

                     versus

       UOI & ORS                                   ..... Respondents
                          Through Mr. Rajan Sabharwal, Advocate.


       CORAM:
       HON'BLE MR. JUSTICE SANJIV KHANNA

       1. Whether Reporters of local papers may be
       allowed to see the judgment?
       2. To be referred to the Reporter or not ?
       3. Whether the judgment should be reported
       in the Digest ?

                               O R D E R

%

1. The petitioner, Mr. R.K. Sahu, had appeared in written examination

held under Regulation 8 of the Customs House Agents Licensing

Regulations, 1984 (1984 Regulations, for short). Before the petitioner

could appear in the oral interview, on 23rd February, 2004, 1984

Regulations were repealed and replaced with enactment of Customs House

Agents Licensing Regulations, 2004 (2004 Regulations, for short). The

W.P. (C) No. 1675/2008 Page 1 2004 Regulations prescribed different eligibility requirements and the

written examination required to be cleared had 2/3 new papers including

papers on computer knowledge, etc.

2. In view of the 2004 Regulations, the petitioner was not granted

Customs House Agents Licence on the ground that the petitioner had

cleared the written examination held under 1984 Regulations and not

under 2004 Regulations.

3. Some other persons, who had cleared examination under 1984

Regulations but were denied registration in view of enactment of 2004

Regulations had filed writ petitions in this Court, which were allowed by

learned Single Judge holding, inter alia, that once examination results

were declared under 1984 Regulations, the said applications were required

to be processed under 1984 Regulations within a reasonable time. The

learned Single Judge further went on to conclude that since 1984

Regulations were no longer in force, the licence to be issued to the

successful petitioners therein would be under the 2004 Regulations.

4. Aggrieved, Union of India filed appeals, which were disposed of vide

order dated 20th April, 2009. The operative portion of the said order reads

as under:-

" We find force in the aforesaid contention for the reason that the grievance of the respondents herein was that pursuant to the declaration of their results, their applications were liable to be processed under the 1984 Regulations. This would have been the position W.P. (C) No. 1675/2008 Page 2 had the issuance of licences not been kept in abeyance or if 2004 Regulations had not come into force. The respondents cannot get a larger relief than that because this is their best case. The directions thus to the appellants ought to be to process the case of the respondents for grant of licence under the provisions of the 1984 Regulations and such of the persons who are found eligible be issued the licence under those Regulations. This would imply that those respondents would then be entitled to a continuous licnece as per provisions of 2004 Regulations. However, the other set of respondents who could not have been granted the licence under the 1984 Regulations on account of vacancies as existed till 2004 Regulations were promulgated or any other parameter would have to be governed by the 2004 Regulations. The directions of the learned Single Judge stand modified to that extent.

Learned counsel for the respondents does not assail the aforesaid position but submits that all the respondents have been carrying on their work as Customs House Agent under the impugned order in the meantime. It is thus submitted that great hardship would be caused to the persons who would be obliged to desist from carrying on their business activity under the impugned order as they would have to be governed by 2004 Regulations.

We are of the view that such persons should not be prevented from carrying on their work as Custom House Agent till such time as the next examination is held under 2004 Regulations in which those respondents found not entitled to licence would be free to participate. On their clearing such an examination and meeting the other requirements, those respondents would be entitled to grant of licence under the 2004 Regulations on priority over other participants.

We are issuing these directions in the peculiar facts of the case as those persons had cleared W.P. (C) No. 1675/2008 Page 3 the examination albeit under the 1984 Regulations and have continued to work under the impugned order for almost the last three years. "

5. Learned counsel for the petitioner submitted that the aforesaid

decision should not be made applicable to the present case as the

petitioner has been issued a declaration dated 16th July, 2007 that he has

cleared written examination under Regulation 8 and oral test under the

2004 Regulations. The said contention has no merit. It is admitted that

the petitioner had appeared in the written examination on 12th June, 2003.

On the said date, 1984 Regulations were in operation. The petitioner had

not cleared any written examination held under 2004 Regulations. The

oral test of the petitioner was held on 8th/9th June, 2004 after 2004

Regulations had been enforced, but this does not mean that the petitioner

had impliedly cleared written examination held under the 2004

Regulations. As stated above, the course material and the scope of

written test in the 2004 Regulations are broader, wider and different from

the written papers prescribed under 1984 Regulations. It is apparent that

the declaration dated 16th July, 2007 mentioning that the petitioner had

cleared written and oral examination under 2004 Regulations is wrong and

incorrect. It is a mistake and a mistake cannot confer any right.

6. The petitioner's case will be governed by the decision passed by the

Division Bench and the directions issued therein. The respondents will

pass a speaking order rejecting or accepting the request of the petitioner W.P. (C) No. 1675/2008 Page 4 for grant of the licence in the light of the aforesaid decision within a period

of four weeks from today.

The writ petition is disposed of.

SANJIV KHANNA, J.

       JULY 27, 2009
       VKR




W.P. (C) No. 1675/2008                                                   Page 5