2021 (6) TMI 1006 - HC - Customs

Seeking 'G' Card Licence to the petitioner under Regulation 17(3) of Customs Brokers Licensing Regulations, 2013 - upgradation of license from H to G - HELD THAT - It is clear that the respondent authorities have conducted the examination not with a view to upgrade the licence holder, but with a view to reject the upgradation from H to G . The object of any examination is to ensure that the qualified candidate is promoted to the next post. If an examination is conducted with the object to reject candidates, then the examination itself has to be struck down. In this case, the respondent had no right to conduct any oral examination. It is not provided in the Rules. The Rules stipulate that written examination alone must be conducted. Other State authorities have conducted only written examination and they have not called upon the qualified candidates to again appear for an oral examination. The reasons are obvious. In the present case, for the written examination, the maximum mark was 100 and the qualifying mark was 50 and separately, for oral examination 100 marks were allotted as a maximum and the qualifying mark was given as 50. It is not known what is the nature of oral examination, which was conducted and how the candidates were assessed. Those details are absent in the counter affidavit. A direction is issued to the respondent to consider the petitioner's representation, dated 02.07.2020, seeking 'G' Card Licence to the petitioner, under Regulation 17(3) of Customs Brokers Licensing Regulations, 2013 and to pass necessary orders, within a period of eight weeks from the date of receipt of a copy of this order - Petition disposed off.

Summary

Issues:
1. Petition seeking 'G' Card Licence under Customs Brokers Licensing Regulations, 2013.
2. Selection process from 'H' card holder to 'G' card holder.
3. Validity of conducting oral examination for upgrading the license.
4. Examination procedures under Customs Brokers Licensing Regulations, 2013 and 2018.

Analysis:

1. The petitioner filed a writ petition seeking a Writ of Mandamus to direct the respondent to consider the petitioner's representation for a 'G' Card Licence under Regulation 17(3) of Customs Brokers Licensing Regulations, 2013, based on a previous court order. The petitioner, holding an 'H' Card license, is a Customs Broker with a minimum educational qualification of 10 + 2, allowing him to transact work at Customs Stations upon producing the identity card when required.

2. The Regulations specify three types of card holders: 'F' card holder, 'G' card holder, and 'H' card holder. To qualify as a 'G' card holder, passing a written examination as per the Regulations is necessary. The petitioner highlighted practices in other port authorities where only written examinations were conducted for upgrading 'H' card holders to 'G' card holders, emphasizing that conducting an oral examination is beyond the authorities' scope.

3. The petitioner passed the written examination but did not qualify in the oral examination, prompting the petition to challenge the oral examination's validity. The respondent's counter affidavit explained that the oral examination aimed to assess knowledge adequacy, following a pattern similar to the F-Card examination until the implementation of CBLR 2018, which prescribed only a written examination for 'G' card holders.

4. The Court noted that the examination was conducted not to upgrade license holders but to reject the upgrade from 'H' to 'G', contrary to the examination's intended purpose. The absence of oral examination provisions in the Rules led the Court to conclude that conducting an oral examination was unjustified. The Court emphasized that oral examinations could introduce bias and questioned the lack of details regarding the nature and assessment of the oral examination in the counter affidavit.

5. Consequently, the Court directed the respondent to consider the petitioner's representation for the 'G' Card Licence under Regulation 17(3) of Customs Brokers Licensing Regulations, 2013, within eight weeks, in line with a previous court order. The Court emphasized the importance of adhering to examination procedures and avoiding biased practices, ultimately disposing of the Writ Petition without imposing any costs.