TMI Blog2020 (2) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... have been cut down. His submission that-since under the 2018 regulations, a candidate has to clear the interview in a single attempt, the same violates his fundamental rights enshrined under Article 14, 19(1)(g) and 21 of the Constitution of India is completely untenable. Petitioner cannot question the curb put by the respondents in respect of the number of attempts for clearing the interview. In our considered opinion, the arguments of the petitioner are inherently flawed. The petitioner has concededly not cleared the examination whilst the 2013 regulations were in force. He did make five attempts, but was unsuccessful. Therefore, in that sense of the matter, no right whatsoever, much less vested right can be said to have accrued in favour of the petitioner under the said regulations. Since the petitioner did not clear the examinations whilst the 2013 regulations were in operation, the same cannot be the basis of impugning the fresh regulations, even if the same superseded certain clauses of the 2013 regulations, that enabled the Petitioner better opportunities. The principle of law being pressed into service that a vested right cannot be taken away, is not attracted in the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) dated 14.05.2018, amended by notification No. 08/2019-Customs (N.T.) dated 06.02.2019. 2. The petitioner incorporated his company named Rishishwar Logistics Pvt. Ltd on 09.11.2011; he obtained Certificate of Importer Exporter Code from Zonal Director General of Foreign Trade, Ministry of Commerce and Industry on 13.04.2012; the petitioner received Valuable Association Award for Category (Freight Forwarders) from Container Corporation of India for his excellent performance on 17.10.2016 and also received Certificate of Appreciation from Central Board of Direct Taxes for his excellent performance in bronze category in 2017. 3. The case of the petitioner is that the respondents had earlier framed regulations on the same subject i.e. Customs Brokers Licensing Regulations, 2013 vide notification No. 65/2013-Customs (N.T.) dated 21.06.2013. The petitioner states that impugned regulation i.e. Customs Brokers Licensing Regulations, 2018 was framed vide notification No. 41/2018-Customs (N.T.) dated 14.05.2018, amended by notification No. 08/2019-Customs (N.T.) dated 06.02.2019. Under the said impugned regulation, the written examinations for Customs Brokers License were held on 15.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h year, the result of which shall be declared in the month of July of each year. (4) The applicant shall be required to clear written examination as well as oral examination. (5) An applicant who fails to clear the oral examination within two years from date of declaration of result of the related written examination shall be treated as having failed in the examination. 5. Though, it is not stated so in the writ petition, our attention has been drawn to the representation made by the petitioner on 11.06.2019, which discloses that the petitioner had made five attempts at taking the examinations under the erstwhile 2013 regulations and he appeared for the 6th time after the framing of 2018 regulations on 15.03.2019. 6. Further, the grievance of the petitioner is that under the 2013 regulations, the petitioner was entitled to seven attempts, whereas, under the 2018 regulations, he is entitled to only six attempts to clear the examination. The challenge to the 2018 regulations is premised on the foundation that the petitioner had a vested right to seven attempts, since the petitioner had appeared on five occasions under the 2013 regulations and that the vested right c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessfully challenges the same in the court of law, the legislature cannot render the said right and the relief obtained nugatory by enacting retrospective legislation. 15. Respectfully following the law laid down by this Court in the judgments referred to and quoted above, we are of the view that the retrospective operation of the amended Rule 13 cannot be sustained. We are satisfied that the retrospective amendment of Rule 13 of the Rules takes away the vested rights of Mohanty and other general category candidates senior to Respondents 2 to 9. We, therefore, declare amended Rule 13 to the extent it has been made operative retrospectively to be unreasonable, arbitrary and, as such, violative of Articles 14 and 16 of the Constitution of India. We strike down the retrospective operation of the rule. In the view we have taken on the point it is not necessary to deal with the other contentions raised by Mohanty. He further relies upon paragraph Nos. 24, 25 26 of J.S. Yadav (supra), which reads as follows: 24. The legislature is competent to unilaterally alter the service conditions of the employee and that can be done with retrospective effect also, but the intention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17] and Vishwant Kumar v. Madan Lal Sharma [(2004) 4 SCC 1 : AIR 2004 SC 1887], wherein it has been held that the rights accrued under the Act/Ordinance which stood repealed would continue to exist unless it has specifically or by necessary implication been taken away by the repealing Act. 8. He has also placed reliance on Section 6 (c) of the General Clauses Act, 1897, which provides that where the said act or any central act or regulation, made after the commencement of General Clauses Act, 1897 repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. He, therefore, submits that the right accrued in favour of the petitioner to have seven attempts at the examination under the 2013 regulations, could not be curtailed by the 2018 regulations. Similarly, the right to appear for interview in two years could not be curtailed to one. 9. Having heard the learned counsels and examined the record including regulations of 2013 and 2018, and Section 6 (c) of the General Clauses Act, 1987, we are of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning the limiting of chances of clearing the oral interview under the 2018 regulations. In our view, since the petitioner did not clear the examinations whilst the 2013 regulations were in operation, the same cannot be the basis of impugning the fresh regulations, even if the same superseded certain clauses of the 2013 regulations, that enabled the Petitioner better opportunities. The principle of law being pressed into service that a vested right cannot be taken away, is not attracted in the present case. Merely because 2013 regulations provided for seven opportunities to clear the written examination, and two for oral examination, does not mean that such regulations have to remain effective in perpetuity, and that the respondents cannot introduce fresh regulations. If we were to construe that a right would accrue or vest in favour of a person merely because a particular rule, regulation or a legal provision enables him/her to avail of an opportunity as provided, and that the same cannot be modified or altered, it would amount to holding that no rule or regulation can be superseded or modified under any circumstances. The respondents are at freedom to bring a change in the regulat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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