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TMI Blog2022 (10) TMI 1087X X X X Extracts X X X X X X X X Extracts X X X X ..... said examination. 2. Learned counsel for the Petitioner states that the Petitioner is currently working as a consultant in the trade industry of import and export and has more than two years of experience in transacting customs broker work as a G-Card holder. He states that the Petitioner is qualified for appearing in Customs Broker's Licensing Examination held by the Department of the Respondent but the Petitioner admittedly failed all six (6) attempts to clear the examination between 2017 to 2022. In the 3rd attempt in the year 2019, for the first and only time the Petitioner cleared the written examination but failed to qualify in the oral examination. He however could not clear the written examination again in the subsequent years i.e., 2020, 2021 and 2022. The Petitioner has filed the present petition being aggrieved by the existing regulations which disentitle him from taking any further examination i.e. the 7th attempt. 3. He states that the Respondent under Section 146(2) of the Customs Act, 1962, ('the Act') is given power to make regulations in respect of the said examination. The said regulations govern issuance of Customs Broker License to the eligible applicants. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aggrieved by the same since he would have wasted the valuable time spent by him in the past six (6) years preparing for the said examination. 8. Learned counsel for the Petitioner states that the Petitioner is desirous of appearing for the exam scheduled in the month of March, 2023, but since it would be his 7th attempt, he is debarred from appearing as per the provisions of the impugned Clause 6 of Regulation No. 6 of CBLR, 2018. Therefore, in these circumstances the Petitioner is seeking a direction to Respondent that he may be permitted to make a 7th attempt. 9. We have heard the submissions made by the learned counsel for the Petitioner. 10. As per Clause 6 of Rule 6 of CBLR, 2013, an applicant was permitted a maximum period of seven (7) years from the date of his/her original application to pass both the written as well as oral examinations. Thus, an applicant was allowed a 'period' for passing his/her written and oral examinations. The said clause makes no reference to 'attempts'. For instance, as per the Notice for Customs Broker Examination, which was to be held on 20th January, 2017, an applicant could've applied for the said examination, at the latest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the vested right could not be taken away while framing the 2018 regulations. Similarly, the petitioner is entitled to two attempts at interview, under the 2013 regulations, which has been curtailed to one attempt under the 2018 regulations. In this respect also, a vested right has been claimed by the petitioner." 13. This Court while deciding the aforesaid case has held as under: "13. The main thrust of the arguments of Mr. Qadri, is premised on a well recognised principle of law that a vested right, which inheres in a party, could not have been taken away. Indeed, the Courts in several judgments have protected the vested rights which accrue in favour of a party, say under a legislation or by way of a promise given by the other party. However, we are completely perplexed as to how the petitioner is claiming that a vested right has accrued in his favour. The contention of the petitioner is completely misplaced, in our understanding. It seems that the petitioner comprehends that merely because under the 2013 regulations, the petitioner was entitled to seven attempts to clear the examination for getting custom broker license, he has a vested right to claim such number of attempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 regulations, if the circumstances and the need so arises, and the same has to be done in accordance with law. The provisions of such regulations cannot be declared to be ultra vires only for the reason that certain clauses which existed prior thereto have been modified. The respondents have the discretion to restrict the number of attempts for clearing the written as well as oral examination. Law is dynamic and the Central Board of Excise Customs is empowered by Sub Section (2) of Section 146 of the Custom Act, 1962 to frame regulations in supersession of the previous ones, having regard to the prevalent circumstances. Thus, reducing the number of attempts to clear the oral examination for the candidates who have passed the written examination, in our view, cannot be said to be arbitrary or violative of Article 14 of the Constitution of India. In absence of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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