TMI Blog2022 (3) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... conceded by Mr. Harpreet Singh that under the CBLR, 2013, a candidate is entitled to appear in oral examination, on two occasions within a span of two years. The petitioners herein did appear in the oral examination, once but had not qualified. The second chance of oral examination in which the petitioners were eligible / entitled to appear, cannot be on different parameters. Otherwise, there would be anomaly, inasmuch as for written examination they were assessed at 50 marks, but for oral examination at 60 marks. Further, the right of consideration on same parameters could not have been taken away. That apart, it is not the case of the respondents that before the petitioners appeared in the oral examination held on May 23/25, 2019 the petitioners were put to notice that their consideration for oral examination would be on the basis of 60 marks. In the absence of such a notice to the petitioners the criteria could not have been changed. Further, it is not the case of the respondents that petitioners have not achieved 50 marks in the oral examination held on May 23, 2019/May 25, 2019, hence, the petitioners having qualified the written examination on the basis of 50 marks, they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013; b) pass appropriate writ, directions or order in the nature of mandamus or any other writ, direction or order of the like nature Mandamus directing the respondents to consider the petitioner as par with other selected candidates for the issuance of License to petitioner to act as a Custom Broker under Customs Brokers Licensing Regulations, 2013 in terms of all the benefits arising out of the License. c) Pass such other and further direction which this Hon'ble Court may deem fit and proper in the facts of the writ petition. W.P.(C) 13132/2019 In view of the facts and circumstances as stated above, it is most respectfully prayed that this Hon'ble Court be pleased to: 1. Issue a writ in the nature of Certiorari or any other appropriate writ or direction quashing the result issued by the respondents, in respect of the petitioner, communicated to the petitioner on 03.10.2019 in reply to the application filed by the petitioner under RTl thereby declaring the petitioner as having failed to clear the oral examination held on 25.05.2019 in her 2nd attempt corresponding to the written examination held on 19.01.2018. 2. Issue a writ in the natur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a change inasmuch as under the CBLR, 2018 only one attempt has been provided. 7. The petitioners received letter dated April 30, 2019 as admit card for second attempt of oral examination to be held under CBLR, 2018. The petitioners appeared in the oral examination but though achieved 50 marks and above but could not achieve 60 marks. 8. It is the submission of the learned counsel for the petitioners that in the oral examination the petitioners secured 54/51/54 marks respectively. They also submit that the CBLR, 2018 does not prescribe the 60 marks for written and oral examination, but the same was fixed vide a communication dated May 03, 2019 of Joint Secretary (Customs) Department of Revenue addressed to the Principal Director General, National Academy of Customs, Indirect Taxes Narcotics (for short NACIN ). 9. Learned counsel for the petitioners would submit no doubt the letter dated April 30, 2019 prescribed the oral examination to be conducted under Regulation 6 of CBLR, 2018 but it was not mentioned in the letter that the cut-off marks for clearing the oral examination is 60. In fact, it is their endeavour to submit that these marks have been prescribed through an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view having qualified written examination held in 2018 under Regulation 6 of the CBLR, 2013. These 116 candidates had appeared in the oral examination in 2018 but failed in that attempt. It is his submission that these 116 candidates who had cleared their written examination in 2018 under CBLR, 2013 were given an opportunity to appear in the oral examination conducted in May, 2019 under the saving provisions contained in Section 159A(c) of the Customs Act, 1962 read with CBLR, 2018. 12. It is also stated that the relief sought by the petitioners under CBLR, 2013 is untenable as the same has already been superseded by CBLR, 2018 under the provision of Section 146 read with Section 151(a) of the Customs Act. Further, CBLR, 2018 are retrospective in nature. Moreover, he stated, the attempt of the petitioner to contend that they are covered by CBLR, 2013 is a misplaced argument as CBLR, 2018 was enforced at the time of oral examination and it is precisely for this reason the respondent has clearly communicated to the petitioners while calling them for the oral examination vide communication dated April 30, 2019 that the oral examination is being conducted under the CBLR, 2018. He al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at an applicant who has already passed the examination referred to in regulation 9 of the Customs House Agents Licensing Regulation, 1984 and regulation 8 of the Customs House Agents Licensing Regulation, 2004 shall not be required to appear for any further examination. (2) The written examination shall be conducted on specified dates in month of January of each year for which intimation shall be sent individually to applicants in advance before the date of examination and the result of the said examination shall be declared by end May each year. (3) The applicant who is declared successful in the written examination shall be called for an oral examination on specified dates in month of June of each 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. (6) An applicant shall be allowed a maximum period of seven years from the date of original a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for handling the customs work shall possess satisfactory knowledge of English and the local language of the Customs Station. Provided that in case of a person deputed to work extensively In the docks, knowledge of English shall not be compulsory. Knowledge of Hindi shall be considered as desirable qualification. xxxx xxxx xxxx CBLR, 2018 xxxx xxxx xxxx 5. Conditions to be fulfilled by the applicants.-(1) The applicant for a license to act as a Customs Broker in a Customs Station, shall before applying to the Principal Commissioner of Customs or Commissioner of Customs, meet the following conditions that: - (a) he is a citizen of India; (b) he is a person of sound mind; (c) he is not adjudicated as insolvent; (d) he holds an Aadhaar number; (e) he holds a valid PAN card; (f) he has not been penalised for any offence under the Act, the Central Excise Act, 1944 (1 of 1944), the Finance Act, 1994(32 of 1994), the Central Goods and Services Act, 2017 (12 of 2017) and Integrated Goods and Services Tax Act, 2017 (13 of 2017); (g) he has neither been convicted by a competent court for an offence nor any criminal proceeding i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which intimation shall be sent individually to applicants in advance before the date of examination and the result of the said examination shall be declared preferably within one month of the date of examination. (3) The applicant who is declared successful in the written examination shall be called for an oral examination on specified dates in the second quarter of the same calendar year, the result of which shall be declared in the month of July of the same calendar year.] (4)The applicant shall be required to clear both the written examination as well as corresponding oral examination. (5) An attempt at the written exam shall be deemed to be an attempt and notwithstanding the disqualification/ cancellation of application, the fact of appearance of the applicant at the examination will count as an attempt. (6) An applicant shall be allowed a maximum of six attempts to clear the examination. (7) The examination may include questions on the following: (a) preparation of various kinds of bills of entry, bills of export, shipping bills, and other clearance documents; (b) arrival entry and clearance of vessels; (c) tariff classification and rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant or in cases where applicant is a firm or company, its partner or Director or authorised employees who may be engaged for handling the customs work shall possess satisfactory knowledge of English and the local language of the Customs Station: Provided that in case of a person deputed to work extensively in the docks, knowledge of English shall not be compulsory and knowledge of Hindi shall be considered as desirable qualification. xxxx xxxx xxxx 14. A perusal of the CBLR, 2013 and 2018, it is clear that nowhere the said regulations prescribe cut-off marks. Case of the petitioner is primarily by relying upon a public notice dated July 01, 2011 wherein (at page 22, W.P.(C) 13132/2019), paragraph 1 reads as under:- The maximum marks for both written and oral test would be hundred and minimum pass marks would be 50 in each test and the candidate would be required to pass separately written and oral test in the said examination. Only those candidates who qualify the written test would be called for the oral test. 15. It is on the basis of this public notice they have been making selection of Custom Brokers that is a candidate has to achieve 50 marks bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d have contested the prescription of 60 marks for those candidates who had participated in the selection process, which was initiated under the CBLR, 2013. 18. It cannot be disputed the selection process with regard to the petitioner had started under CBLR, 2013 and it is also conceded by Mr. Harpreet Singh that under the CBLR, 2013, a candidate is entitled to appear in oral examination, on two occasions within a span of two years. The petitioners herein did appear in the oral examination, once but had not qualified. The second chance of oral examination in which the petitioners were eligible / entitled to appear, cannot be on different parameters. Otherwise, there would be anomaly, inasmuch as for written examination they were assessed at 50 marks, but for oral examination at 60 marks. Further, the right of consideration on same parameters could not have been taken away. 19. That apart, it is not the case of the respondents that before the petitioners appeared in the oral examination held on May 23/25, 2019 the petitioners were put to notice that their consideration for oral examination would be on the basis of 60 marks. In the absence of such a notice to the petitioners the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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