2022 (3) TMI 516 - HC - Customs

Seeking directions to respondents for the issuance of License to petitioner to act as a Custom Broker under Customs Brokers Licensing Regulations, 2013 - consideration of petitioner as par with other selected candidates for the issuance of License to petitioner to act as a Custom Broker - the petitioners are seeking directions be given to the respondents to issue license of Custom Broker under the Custom Broker Licensing Regulation, 2013 - HELD THAT - There is no dispute that the call letters were issued to the petitioners on April 30, 2019 asking them to appear in the oral examination (on May 23, 2018/May 25, 2018) before the communication dated May 03, 2019 was sent to the Principal Director General, NACIN. On the date of April 30, 2019 when such communication was sent there was no decision that the cut of marks for oral examination was 60 and not 50. 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. 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 have to be assessed at 50 marks in the oral examination, otherwise, it shall have the effect of changing the criteria midway, which is impermissible. The writ petitions are allowed and disposed of.

Summary

Issues Involved:
1. Validity of the oral examination result under CBLR, 2013 and CBLR, 2018.
2. Criteria for passing marks in oral examinations.
3. Retrospective application of CBLR, 2018.
4. Right to be assessed under the same parameters as initially set out.

Detailed Analysis:

1. Validity of the oral examination result under CBLR, 2013 and CBLR, 2018:
The petitioners filed writ petitions seeking the issuance of a Custom Broker license under the Customs Brokers Licensing Regulations, 2013 (CBLR, 2013). They argued that they had qualified the written examination and should be assessed under the same criteria for the oral examination as prescribed in CBLR, 2013. The respondents conducted the oral examination under the amended CBLR, 2018, which changed the criteria.

2. Criteria for passing marks in oral examinations:
The petitioners contended that the oral examination should be assessed based on the 50 marks criteria as per the public notice dated July 01, 2011. The respondents, however, applied a new criterion of 60 marks as per a communication dated May 03, 2019. The court noted that the CBLR, 2013 and CBLR, 2018 did not prescribe specific cut-off marks. The change to 60 marks was communicated after the petitioners had already been called for the oral examination, and they were not informed of this new criterion.

3. Retrospective application of CBLR, 2018:
The respondents argued that the CBLR, 2018, which superseded CBLR, 2013, is retrospective in nature and applicable to the petitioners. The court observed that the selection process for the petitioners commenced under CBLR, 2013, and they were entitled to be assessed under the same parameters. The court found that changing the criteria midway without prior notice was impermissible.

4. Right to be assessed under the same parameters as initially set out:
The court emphasized that the petitioners' right to be considered for the second attempt of the oral examination should be on the same parameters as under CBLR, 2013. It was noted that the petitioners were not informed about the change in the cut-off marks to 60 before appearing for the oral examination. The court ruled that the petitioners, having achieved 50 marks in the oral examination, should be assessed under the original criteria.

Conclusion:
The writ petitions were allowed, directing the respondents to issue licenses to the petitioners as Custom Brokers. The court held that the petitioners should be assessed based on the 50 marks criteria as initially set out, and changing the criteria midway without notice was impermissible. The retrospective application of CBLR, 2018 was not justified in this context.