2022 (10) TMI 1087 - HC - Customs

Seeking quashing of Clause 6 of Regulation 6 of Customs Brokers Licensing Regulations, 2018 - Permission to eligible applicant a total of six attempts to clear the prescribed written and oral examination for obtaining the Customs Broker License - HELD THAT - 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 by 18th November, 2016. Therefore, as per the aforesaid provision of CBLR, 2013, an applicant would ve been eligible for further attempts till 18th November, 2023 i.e., seven (7) years from the date of original application, effectively resulting in a maximum of seven (7) attempts, if the applicant chose to appear in the exam every single year. Further, it is evident from the record that the Petitioner himself has appeared for four (4) written examinations starting from 2019 to 2022 as per CBLR, 2018 and was not aggrieved by the said Regulations at the relevant time - the notification inviting applications for examinations was issued on 24th August, 2022, and the applications for appearing in the written examination are to be filed from 18th October, 2022. The present petition has been filed on the eve of 18th October, 2022, and it is a speculative attempt to appear in the said examination for the seventh (7th) time. Petition dismissed.

Summary

Issues Involved:
1. Validity of Clause 6 of Regulation 6 of Customs Brokers Licensing Regulations, 2018 (CBLR, 2018) limiting attempts to clear the Customs Broker License examination.
2. Comparison between CBLR, 2013 and CBLR, 2018 regarding the number of attempts allowed.
3. Alleged arbitrariness in the reduction of attempts from seven to six.
4. Petitioner's claim of vested rights under the previous regulations (CBLR, 2013).

Issue-wise Detailed Analysis:

1. Validity of Clause 6 of Regulation 6 of CBLR, 2018:
The petitioner challenged Clause 6 of Regulation 6 of CBLR, 2018, which limits an eligible applicant to six attempts to clear the prescribed written and oral examination for obtaining the Customs Broker License. The petitioner sought to quash this clause and requested permission for a seventh attempt.

2. Comparison between CBLR, 2013 and CBLR, 2018:
Under CBLR, 2013, an applicant was allowed a maximum period of seven years from the date of the original application to pass both the written and oral examinations, effectively allowing up to seven attempts if the applicant chose to appear annually. In contrast, CBLR, 2018 restricts the total number of attempts to six, without a specific time frame, providing more flexibility as the six attempts do not need to be completed within a set period.

3. Alleged Arbitrariness in Reduction of Attempts:
The petitioner argued that the reduction in the number of attempts under CBLR, 2018 is arbitrary and that it wasted the valuable time spent preparing for the examination over the past six years. The petitioner claimed that the reduction from seven to six attempts under the new regulations was unfair.

4. Petitioner's Claim of Vested Rights:
The petitioner contended that he had a vested right to seven attempts under CBLR, 2013, and that this right could not be taken away by the new regulations. The petitioner referenced a previous decision in Manish Rishishwar v. Union of India & Anr., 2020 SCC Online Del 381, where similar claims were made. In that case, the court held that no vested right accrued to the petitioner under CBLR, 2013, as the petitioner did not clear the examinations while the 2013 regulations were in force. The court stated that the respondents are free to introduce fresh regulations and that the principle of vested rights does not apply in this context.

Judgment:
The court found no merit in the petitioner's arguments. It emphasized that the petitioner had appeared for four written examinations from 2019 to 2022 under CBLR, 2018, without challenging the regulations at that time. The court also noted that the petition was filed on the eve of the application deadline for the next examination, indicating a speculative attempt to gain an additional chance.

The court reiterated the decision in Manish Rishishwar, stating that the petitioner did not have a vested right to seven attempts and that the regulations could be modified as needed. The court concluded that the reduction in the number of attempts was not arbitrary or violative of constitutional rights.

Conclusion:
The petition and the pending application were dismissed, upholding the validity of Clause 6 of Regulation 6 of CBLR, 2018, and confirming that the petitioner did not have a vested right to seven attempts under the previous regulations. The court affirmed the respondents' authority to modify the regulations and restrict the number of attempts for clearing the Customs Broker License examination.