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2020 (2) TMI 238 - HC - CustomsSelection of petitioner in the examination of Customs Broker - submission of the learned senior counsel for the petitioner is that under the Customs Brokers Licensing Regulations, 2013, the applicants who were successful in the written examination, were entitled to be called for oral examination within two years from the date of declaration of the result of the related written examination - Section 6 (c) of the General Clauses Act, 1987. HELD THAT - The contention of the petitioner is completely misplaced. 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 attempts, and the respondents could not have brought in the 2018 regulations which reduced the number of attempts only to six. Similarly, the petitioner is under a misconception that merely because under the 2013 regulations, he is entitled to two attempts at interview, the same could not 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2013 regulations were in operation, the same cannot be the basis of impugning the fresh regulations, even if the same superseded certain clauses of the 2013 regulations, that enabled the Petitioner better opportunities.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 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 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. In the present case, no right whatsoever has accrued in favour of the petitioner that permits him to avail seven attempts to crack the examination in question, and two chances to appear in the interview, even though the Rules have changed. Examinations held under the regulations of 2018 cannot be treated as those undertaken under the 2013 Regulation. They are strictly governed by their own regulations. The 2018 Regulations are prospective in their nature and have been applied prospectively. Petition dismissed - decided against petitioner.
Issues Involved:
1. Validity of Clause 5(1)(h)(ii) of the Customs Brokers Licensing Regulations, 2018. 2. Validity of Clauses 6.4, 6.5, and 6.6 of the Customs Brokers Licensing Regulations, 2018. 3. Petitioner's claim of vested rights under the Customs Brokers Licensing Regulations, 2013. 4. Retrospective application of amended regulations. 5. Petitioner's entitlement to multiple attempts at clearing the oral examination. Issue-wise Detailed Analysis: 1. Validity of Clause 5(1)(h)(ii) of the Customs Brokers Licensing Regulations, 2018: The petitioner challenged Clause 5(1)(h)(ii) of the Customs Brokers Licensing Regulations, 2018. The court examined the regulations and found no merit in the petitioner's claim that this clause violated any vested rights or constitutional provisions. The court noted that the regulations were framed under the statutory authority of the Central Board of Excise and Customs and were within their discretionary powers to amend. 2. Validity of Clauses 6.4, 6.5, and 6.6 of the Customs Brokers Licensing Regulations, 2018: The petitioner also sought to quash Clauses 6.4, 6.5, and 6.6 of the Customs Brokers Licensing Regulations, 2018. These clauses pertained to the examination and licensing process for customs brokers. The court held that these clauses did not infringe on any vested rights of the petitioner and were within the regulatory framework's permissible limits. The court emphasized that the regulatory body has the authority to modify the examination and licensing process as deemed necessary. 3. Petitioner's claim of vested rights under the Customs Brokers Licensing Regulations, 2013: The petitioner argued that he had a vested right to seven attempts to clear the examination under the 2013 regulations and that this right could not be taken away by the 2018 regulations. The court rejected this argument, stating that the petitioner did not clear the examination while the 2013 regulations were in force. Therefore, no vested right accrued in his favor. The court clarified that the petitioner could not claim a vested right to the number of attempts provided under the previous regulations, as regulations can be amended or superseded by new ones. 4. Retrospective application of amended regulations: The petitioner contended that the retrospective application of the 2018 regulations, which reduced the number of attempts to clear the examination, was arbitrary and violative of Articles 14 and 16 of the Constitution. The court found this argument untenable, stating that the 2018 regulations were applied prospectively and did not have a retrospective effect. The court emphasized that the regulatory authority has the discretion to amend the regulations and that such amendments are not arbitrary if done in accordance with the law. 5. Petitioner's entitlement to multiple attempts at clearing the oral examination: The petitioner argued that under the 2013 regulations, he was entitled to two attempts at the oral examination, which was curtailed to one attempt under the 2018 regulations. The court held that the petitioner did not have a vested right to multiple attempts at the oral examination. The court noted that the petitioner had already made five attempts under the 2013 regulations and one under the 2018 regulations but failed to clear the examination. The court concluded that the regulatory authority's decision to limit the number of attempts was within its discretion and not violative of any constitutional provisions. Conclusion: The court dismissed the petition, finding no merit in the petitioner's claims. The court upheld the validity of the 2018 regulations and rejected the argument that the petitioner had any vested rights under the 2013 regulations. The court emphasized that the regulatory authority has the discretion to amend the regulations and that such amendments, if done in accordance with the law, are not arbitrary or unconstitutional. The petition and the pending application were dismissed with no order as to costs.
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