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TMI Blog1993 (7) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... sion "Customs House Agent" means a person licensed under the Regulations to act as agent for the transaction of any business relating to the entry or departure of conveyance or the import or export of goods at any customs station. Regulation 4 provides for inviting applications for the grant of a licence to act as a Customs House Agent. It says that the Collector may invite applications in the month of January every year for clearance work within the jurisdiction of the said collectorate. Regulation 5 prescribes the form in which the application shall be made. It is clear from this Regulation that the application can be in the name of an individual, a partnership firm or a company incorporated under the Companies Act. Regulation 6 lays down the conditions to be fulfilled by the applicant. One of the conditions to be satisfied is that the applicant has the experience of work relating to clearance of goods through the customs for a period of not less than one year and is financially viable. That brings us to Regulations 8 & 9 which we extract for ready reference : "8.Grant of temporary licence. - Any applicant whose application is received within the last date specified in Regn. 4 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector may reject the application for the grant of a regular licence to act as Customs House Agent if the holder of the temporary licence fails to qualify in the examination in terms of Regulation 9, or the holder of temporary licence on evaluation of his performance in terms of Regulation 10 is not considered suitable due to any other reason to be stated in the order passed by the Collector. 3.It is crystal clear on a plain reading of the Regulations that any individual firm or company can apply for a licence if the applicant fulfils the conditions laid down in Regulation 6. Under Regulation 8 before a regular licence is issued, a temporary licence may be issued to a person who satisfies the requirements of Regulations 5 & 6 to operate as a Customs House Agent initially for a period of one year. During this period of one year he is required to qualify by passing both the written and oral examinations within two chances but if he has failed to do so and is desirous of availing of a third chance as soon as the next examination is held, the Collector may extend the period by another six months or such period not exceeding one year to enable the applicant to avail of the addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... third chance to appear at the oral examination also. 4.The petitioners before us secured temporary licence on different dates but as they failed to pass the examination as required by Regulations 8 & 9, the temporary licences were terminated and they were refused a regular licence under Regulation 10 of the Regulations. A large number of writ petitions were filed by those who had failed to pass the examination and were refused a regular licence in the High Court of Bombay which came to be disposed of by the judgment impugned before us dated October 16, 1992. A table was produced before the Division Bench which showed the attempts made by each candidate to clear the written as well as oral examinations for securing the regular licence, wherefrom it appeared that certain candidates had passed the written examination and had appeared in three oral examinations but had failed to clear the same. The High Court, therefore, noticed that these candidates had actually availed of three chances under Regulation 9 and had yet failed to clear the examination. Such candidates, the High Court rightly observed, could have no grievance insofar as sufficiency of chances for clearing the examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the circular, the petitioners could not avail of the benefit of the circular which had exhausted itself. Learned counsel for the petitioners did not attempt to contend before us that this conclusion of the High Court was erroneous but submitted that a similar concession could be granted to candidates who did not have the opportunity of three chances to pass the oral examination. 5.From the Regulations it seems clear to us that the Collector is expected to invite applications for the grant of licence in the month of January every year. Such an application has to be made in the prescribed Form A. Regulation 6(a) suggests that the applicant must inter alia prove to the satisfaction of the Collector that he has the experience of work relating to clearance of conveyance and goods through the custom for a period of not less than one year. This means that prior experience is a sine qua non. Regulation 8 provides that an applicant who has applied in response to an advertisement under Regulation 4 and who has satisfied the requirements of Regulations 5 & 6 shall be permitted to operate as a custom house agent initally for a period of one year against a temporary licence granted in pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as made to contend that Regulations 7 & 9 were bad in law, in that, they afford an opportunity to the authorities to eliminate certain candidates with a view to accommodating their favourites. This submission is based on the ratio of the decision in Ajay Hasia (AIR 1981 SC 487) (supra) and Ashok Kumar Yadav v. State of Haryana, 1985 (4) SCC 417 = AIR 1987 SC 454 wherein this court struck down the rule prescribing the high percentage of marks for oral test as offending Article 14 of the Constitution. It is indeed true that the examination, in the instant case, comprises a written paper of 100 marks and an oral test of 100 marks, i.e., 200 marks in all. The passing marks for each test is 50. Thus the oral test of 100 marks out of the aggregate of 200 marks works out to 50 per cent. Counsel for the petitioners, therefore, contended that the marks reserved for clearing the oral test were excessive thereby affording the examiners an opportunity to arbitrarily eliminate candidates and accommodate their favourites. Now licence to act as a Customs House Agent in a custom station requires special knowledge relating to the clearance of conveyance and goods through customs. This becomes immed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain matters who might have come to their knowledge during the period he worked as a temporary licence holder. The Regulations have, therefore, taken care to ensure that he has experience of at least one year as an apprentice to an agent before he applies for the grant of licence. In order to assess his work he is given a temporary licence before he qualifies by clearing the prescribed examination. The authorities have the opportunity of assessing his knowledge regarding the laws and procedure through the written examination. It must be remembered that the custom station is a place of work. Observance of Regulations is absolutely essential as movement of very valuable goods takes place and only sufficiently experienced hands can be permitted to act as agents. He must satisfy the authorities that he has adequate knowledge regarding the laws and the procedure connected with the clearance of goods and that he actually is in a position to handle the work from the moment he is licensed. The assessment of his work during the period he holds the licence is, therefore, of great relevance and that can be done at the oral test only. The assessment has to be made on the basis of his perfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of educational institutions the distinction has relevance for the reason that the candidates are young and their personality has yet to develop and, therefore, greater weight has to be given to their performance at the written examination rather at the oral examination. It is therefore, clear that no hard and fast rule can be laid down in this behalf as much would depend on the nature of performance expected for the responsibility to be handled by a candidate after his selection and entry into the establishment. The method of evaluation would, therefore, vary and cannot be a matter of any strait-jacket formula. The weight to be given to the performance at the interview would depend on the nature of duties, responsibilities and functions to be handled after selection. The duties, responsibilities and functions of a Customs House Agent are very special demanding not only a high degree of probity and integrity but also intellectual skills, adaptability, judgment and capacity to take prompt decision in conformity with the law, rules and regulations. The selection is, therefore, done through those conversant with the working of custom stations and the nature of an agent's job. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or less faithfully reflect the fitness of the candidate. In the matter of evaluation some degree of honest error must be countenanced. However, if there is any allegation of nepotism or favoritism the same can be checked with reference to the record so maintained. Since the oral test is a highly subjective one and is susceptible to misuse, the degree of proof required for bringing home the charge of nepotism or favouritism may be light. But that is not to say that a mere allegation based on the fact that passing of an oral test is a `must' or that the marks reserved for the oral test are excessive will per se, without anything more, set the Court, probing into the records of the oral test. But if the allegation is supported by some dependable proof, the Court will satisfy itself whether or not the charge is well founded. That is why we have said that a heavy responsibility lies on those examining the candidates at the interview to ensure that proper record is maintained so that there is no room for suspicion in the minds of the unsuccessful candidates that the result of the oral test is tainted with bias for or against any candidate because even light proof in support of the char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oral examination should be accorded to them as was done in the past under the circular dated May 19, 1988. That would be a matter on which the concerned authorities would have to take a decision if the circumstances so permit but it would not be proper for this Court to issue a mandate once it is found as a fact that the petitioners had the requisite opportunities under the regulations for clearing the written as well as oral test. We may add by way of caution and to avoid any litigation in future if the authorities decide to give one further opportunity to the petitioners to clear the oral test it will be by way of grace only and will not confer any right whatsoever on the petitioners and if the authorities insist upon any undertaking to be filed by the candidates permitted to avail of that extra chance in the present proceedings that they will accept the result as final and conclusive and will not make it a ground for further litigation, they will be well within their rights to so insist. If such undertakings are filed in the present proceedings, the Registry will accept the same. 10.For the above reasons, we see no merit in these petitions and dismiss the same with costs. All ..... X X X X Extracts X X X X X X X X Extracts X X X X
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