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TMI Blog2010 (10) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... licenses without having to clear the examination in the additional subjects. - 6151 , 6152, 6916-6922 and 7770-7772 of 2010 - - - Dated:- 1-10-2010 - D.A. Mehta and H.N. Devani, JJ. REPRESENTED BY : Shri K.S. Nanavati, Sr. Advocate for Nanavati Associates, for the Petitioner. Shri R.M. Chhaya , for the Respondent. [Judgment per : H.N. Devani, J.] All these petitions have been filed with the following identically worded prayers : [A] Your Lordships may be pleased to issue a writ of certiorari or a writ in the name of certiorari or any other writ, order or direction quashing and setting aside Notification dated 8-4-2010 in so far as it purports to require the petitioner to mandatorily appear in the specific examination for the purpose of grant of licence; [B] Your Lordships may be pleased to direct the respondent No. 3 to exercise his power under CHALR 1984 and dispose of the pending applications of the petitioner for grant of licence; [C] That pending the hearing and disposal of the present petition, Your Lordships may be pleased to stay the operation and implementation of Notification dated 8-4-2010 and public notice fixing date for exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons to act as agent for the transaction of any business relating to the entry or departure of conveyances or the import or export of goods at any customs station. [4] Invitation of application : The Commissioner may invite applications for the grant of such number of licences as assessed by him, to act as Customs House Agents in the month of January every year by means of a notice affixed on the notice board of each Customs Station as well as through publication in at least two newspapers having circulation in the area of his jurisdiction specifying therein in the last date of receipt of application. Such application shall be for clearance work within the jurisdiction of the said Commissioner. [6] Conditions to be fulfilled by the applicant - The applicant or the person referred to in clause (b) of sub-regulations (2) and (3) of Regulation 5 as the case may be, shall prove to the satisfaction of the Commissioner that : (a) the applicant is a graduate from a recognised University and is an employee of a licensee and that the possessed a permanent pass in Form G prescribed under regulation 20 and has the experience of work relating to clearance of goods through the Customs, fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner in this regard in Form B. Provided that when evidence is produced to the Commissioner that the applicant has already availed of two chances for qualifying in the written or oral examination prescribed in these regulations and would like to avail of the third chance as soon as the next examination is held in terms of Regulation 9 and that the applicant has been able to account for the minimum volume of work prescribed for such agents in the course of one year s working, the Commissioner may extend the aforesaid period of one year for which the temporary licence has been granted by another six months or such further period not exceeding one year to enable the applicant to avail of the third chance for qualifying in the examination in terms of Regulation 9. While granting such extension, the Commissioner of Customs shall satisfy himself that the requirements of Regulations 10(1) (a) and 10(1)(b) had been fully met by the applicant. (2) Any person, whose application for grant of temporary license under sub-regulation (1) of regulation 8 is rejected by the Commissioner of Customs may represent to the Chief Commissioner of Customs or Chief Commissioner of Customs and Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (h) examination of merchandise at the Customs Stations; (i) provisions of the Trade of Merchandise Marks Act, 1958 (43 of 1958); (j) prohibitions of import and export; (k) bonding procedure and clearance from band; (l) re-importation and conditions for free re-entry; (m) drawback; (n) offences under the Act, (o) the provisions of allied Acts including Imports and Exports (Control) Act, 1947 (18 of 1947), Foreign Exchange Regulation Act, 1973 (46 of 1973), Indian Explosives Act, 1884 (4 of 1884), Arms Act, 1959 (54 of 1959), Opium Act, 1879 (1 of 1878), Drugs and Cosmetics Act, 1940 (23 of 1940), Destructive Insects and Pests Act, 1914 (2 of 1914), Dangerous Drugs Act, 1930 (2 of 1930) in so far as they are relevant go the clearance of goods through customs; (p) procedure in the matter of refund of duty paid, appeals and revision petitions under the Act. (4) The Commissioner shall also satisfy himself whether the licensee in Form B (See Form 48 in para 5) if he is an individual, possesses, or in the case of a firm of company, the persons who will be actually engaged in the work relating to clearance of goods through customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Station, at which he wished to conduct business;). 4. On fulfilment of the aforesaid conditions, the Commissioner of the Customs Station at which the licensee intends to transact business shall grant a licence in Form D (See Form No. 50 in part 5) authorising him to transact business at that Customs Station : Provided that no separate licence would be required in places where in addition to a Custom House handling imports by sea, there is also an international airport to handle imports by air even if under the jurisdiction of a different Commissioner. (3) The Commissioner may reject an application for the grant of regular licence to act as Custom House Agent if the holder of the temporary license 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 Commissioner. 7. Adverting to the facts of the case, the petitioner joined a Company, viz., M/s Mathurdas Narandas Sons Forwarders Limited possessing a permanent Customs House Agent Licence in 1988 in Mumbai and later was tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice board of each Customs Station as well as through publication in at least [two newspapers, one in English and the other in vernacular language having wide circulation in the area of his jurisdiction,] specifying therein the last date of receipt of application. Such application shall be for clearance work within the jurisdiction of the said Commissioner of Customs. 5. Application for licence. - (1) An application for a license to act as a Customs House Agent in a Customs Station shall be made [in the form of letter to the jurisdictional Commissioner of Customs, containing details as specified in Form A] and shall, inter alia, contain the name and the address of the person applying; and (2) If the applicant is a firm - (a) the name and address of every partner of the firm, the firm s name, and (b) the name of the partner or the duly authorized employee, who will actually be engaged in the clearance of goods or conveyances through the customs. (3) If the applicant is a company - (a) the name of each director, managing director, manager, and (b) the names of director, managing director, manager or the duly authorized employee, who will actually be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for oral examination. (3) It shall be necessary for the applicant to clear written as well as oral examinations separately. An applicant who clears the written examination but fails in the oral examination linked to it, shall have to clear the oral examination within two years of the related written examination irrespective of the number of chances, and if he fails do so, he shall be treated as having failed in the examination. (4) An applicant shall be allowed a maximum period of seven years within which he shall pass both the written and oral examinations. No further extension of time shall be granted. (5) Notwithstanding anything contained in sub-regulation (4), any person who holds a temporary licence granted under regulation 8 of the Customs House Agents Licensing Regulations, 1984, shall be allowed to pass the examination within a period of two years from the date of commencement of these regulations. (6) The examination may include questions on the following :- (a) preparation of various kinds of bills of entry and shipping bills; (b) arrival entry and clearance of vessels; (c) tariff classification and rates of duty; (d) determination of va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n referred to in sub-regulation (1) on behalf of such holders of license, in addition to the person of their agency who has passed the examination referred to in sub-regulation (1). 9. Grant of licence. (1) The Commissioner of Customs shall on payment of a fee of Rs. 5,000/- grant a license in Form B to an applicant who has passed the examination referred to in regulation 8. (2) The Customs House Agents who are granted licences under sub-regulation (1) shall be eligible to work in all Customs Stations within the country subject to intimation in Form C to the Commissioner of Customs of the concerned Customs Station where he intends to transact business. No separate licence shall be required in places where in addition to a Customs House handling imports by sea, there is also an International airport to handle imports by air, even if under the jurisdiction of a different Commissioner of Customs. (3) The Commissioner of Customs may reject an application for the grant of licence to act as Customs House Agent if the applicant is [convicted of] fraud or forgery, or any criminal proceedings are pending before any court of law against him or he has been convicted in any court of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HALR 1984 till 23-2-2004 lose their right. They have to meet the qualifications and pass the examinations under regulation 8 of CHALR 2004 11. On 31st October, 1997 (sic) the respondent No.1 issued a Circular on the issue of Customs House Agent Licence. It may be pertinent to refer to issue No. (ii) thereunder which reads thus : [ii] Issue of CHA licenses to applicants who had passed the examinations under CHALR, 2004: 4. It has been represented to the Board that some of the Commissionerates have not invited applications for grant of CHA licenses, since the norms for issue of fresh license are required to be reviewed by the Board. Further, in cases where the applicants having passed the requisite examination under Regulation 8 of CHALR, 2004, have not been granted with a CHA license. Board had also examined these issues and decided that irrespective of the norms prescribed by the Board vide F.No. 502/5/92-Cus-VI dated 18-5-1994 under CHALR, 1984, concerned Commissioners of Customs shall issue CHA licenses to all those applicants who had passed the Regulation 8 examination conducted under CHALR, 2004, subject to their fulfilment of the requisite conditions as mentioned in CHA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dment) Regulations, therefore, contemplate a situation whereby the candidates successful under Regulation 9 of CHALR, 1984, are still required to appear in the examination of specific subjects as specified therein, while candidates successful in the exam conducted under CHALR, 2004 as well as the persons who had been granted licences under CHALR, 1984 are not required to go through the same. It is the categorical case of the petitioner that in the examinations conducted during the period between the introduction of CHALR, 2004 till the issuance of Notification No. 30/2010, dated 8-4-2010 amending CHALR, 2004 retrospectively, no questions had been asked from the newly introduced subjects in CHALR, 2004. 15. Subsequently another Circular being Circular No. 9 of 2010-Custom dated 8-4-2010 regarding issue of Customs House Agents Licence, came to be issued. Clause (vi) of the same which is relevant for the present purpose reads thus : (vi) CHA licenses in respect of individuals who had passed the examination under CHALR, 1984 : 8.1 The issue of granting CHA license in respect of persons who had already passed the written and oral examinations held under Regulation 9 examination o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination under the newly introduced mandatory subjects for candidates qualified under regulation 9 of CHALR, 1984 which was to be held on 15th July, 2010. Being aggrieved, the petitioners have moved the present petitions seeking the reliefs noted hereinabove. 17. Mr. K.S. Nanavati, Senior Advocate, learned counsel for the petitioners invited attention to the provisions of Section 146 of the Customs Act, 1962 (the Act) to point out that sub-section(2) thereof empowers the Board to make regulations for the purpose of carrying out the provisions of the said section and that such regulations, inter alia, may provide the qualifications of persons who may apply for a licence and the qualifications of persons to be employed by a licensee to assist him in his work as an agent. It was submitted that Section 146 of the Act only empowers the Board to make regulations to regulate grant of licence in relation to entry or departure of a conveyance or import or export of goods. Thus, the Board can exercise powers only as provided under clause (a) to (f) provided under sub-section(2) of Section 146. The said provision does not authorise the Board to assume powers to prescribe passing of an ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licence also. 35. In the event a statute provides for licensing, in a case of this nature, the same must thus be found to satisfy the test oi reasonableness. The standard for determining reasonableness of a statute so as to satisfy the constitutional scheme as adumbrated in Article 14 of the Constitution of India must receive a higher level of scrutiny than an ordinary statute. Such a higher level of scrutiny is necessary not for the purpose of determining the constitutionality of the statute alone vis-a-vis the field of legislative power as envisaged under Article 245 of the Constitution of India but also having regard to the object and purpose, the statute seeks to achieve. 39. The superior courts would ensure that the subordinate legislation has been framed within the four corners of the Act and is otherwise valid. The issue therefore which arises for our consideration is as to whether the delegation having been made for the purpose of carrying out the object, could the limitation be imposed for ascertaining as to whether the applicant is fit and proper person and disregarding his creditworthiness. There cannot be any doubt whatsoever that a statute cannot be vague and unre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts or arbitrarily fixing the ceiling on the maximum number of Customs House Agents that may be issued licenses. It was submitted that arbitrariness of the regulations is amply clear from the fact that, in the Ahmedabad region, after 1996, the concerned Commissioner has not invited any applications and persons like the petitioners, having passed the examination in the year 1999 etc. and having requested the Jurisdictional Commissioner of Customs to grant a license, have still not been able to obtain licenses and with a change in the regulations are now being compelled to appear in the examinations for the newly added subjects. It was submitted that it is only on account of the failure on the part of the respondents to invite applications that despite having passed the examination under Regulation 9 of CHALR 1984 and having been working with regular license holding companies/firms, etc., the petitioners are now being compelled to appear in a fresh examination for newly added subjects. That the action of the respondents is clearly arbitrary and unreasonable and therefore, violative of Article 14 of the Constitution of India. It was urged that the petitioners belong to a class of perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to satisfy each and every criteria and condition as required of them under the Regulations, that of financial status, experience, proficiency, reliability and success in examination, the petitioners, by virtue of the provisions of CHALR 2004 as amended vide the (Amendment) Regulations, 2010, become ineligible for a license till clearance of the examination as contemplated in the (Amendment) Regulations, 2010 which illegally seeks to take away the pre-existing right bestowed under CHALR, 1984, which the petitioners had acquired. It was pointed out that although the petitioners are required to appear in a separate examination under the (Amendment) Regulations, 2010, the petitioners have been granted an identity card under Form F as per CHALR, 2004, whereas during the regime of the CHALR, 1984, the equivalent corresponding identity card would be issued in Form I . Procedurally, the I.D. Cards are issued after grant of license, while in the present case, the petitioners have been treated at par with the successful candidates of examination conducted under CHALR, 2004. 21. Reliance was placed upon the decision of the Supreme Court in the case of B. P. Sharma v. Union of India, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le restriction on the fundamental rights of the petitioners under article 19(1)(g) of the Constitution. 23. It was, accordingly, submitted that, despite the fact that the petitioners are similarly situated to those persons who had acquired licenses under CHALR 1984, merely because of failure on the part of the concerned Commissioner to invite applications before the coming into force of CHALR, 2004, the petitioners are now sought to be discriminated against and are required to appear in an examination for additional subjects after having already cleared the qualifying examination several years ago. It was urged that considering the fact that even for the examination held under CHALR 2004, no question had been asked from the newly added subjects, it is apparent that the petitioners are sought to be discriminated against even in relation to the candidates who have so far appeared and cleared the examination under regulation 9 of CHALR 2004. It was submitted that, in the circumstances, the action of the respondents in requiring the petitioners to appear in the examination for additional subjects after such a length of time is irrational, discriminatory and arbitrary, and as such, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Patent Act, 1970 and Indian Copyright Act, 1957; (b) Central Excise Act, 1944; (c) Export promotion schemes; (d) Procedure on appeal and revision petition; (e) Prevention of Corruption Act, 1988; (f) Online filing of electronic Customs declarations; (g) Narcotic Drugs and Psychotropic Substances Act, 1985; (h) Foreign Exchange Management Act, 1999 26. It was pointed out that the said subjects are covered under the syllabus prescribed for examination under regulation 8 of CHALR, 2004 and were not covered in the syllabus prescribed for examination under regulation 9 of CHALR, 1984. Thus, the decision of the Board to conduct written examination for persons, who had passed the Rule 9 examination under earlier regulations, that is, CHALR 1984, on the said additional subjects, is based upon the need to ensure the same competence and knowledge levels amongst successful applicants under both CHALRs. The examination would be conducted by the Directorate General of Inspection after giving due notice to these candidates. Accordingly, persons who qualify in the aforesaid examination shall be deemed to have passed under the Regulation 8 of the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regulations provide for a condition that such persons can apply for a license only when applications for licenses have been invited by the Commissioner of Customs vide regulation 4. It was submitted that, thus, the above restrictions and conditions are not ultra vires Section 146 of the Act. 29. Next it was submitted that the provisions contained in Regulation 4 of CHALR, 1984 as well as Regulation 4 of CHALR, 2004, vest discretion in the Commissioner of Customs to invite applications for grant of such number of Customs House Agent licenses as assessed by him, to act as Customs House Agent. The petitioners are not being denied the right to engage themselves in a profession, occupation, vocation, trade or business of their choice. However, a reasonable restriction in the form of qualification in certain additional subjects that are extremely relevant to customs clearance work and which does have a rational nexus with the nature of business or occupation, has been prescribed. Lack of knowledge of basics of the additional prescribed subjects in the changed global economic scenario, viz., The Patents Act, 1970, Indian Copyright Act, 1957, Narcotic Drugs and Psychotropic Substances A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h as the practice of undertaking Customs House Agent services on the basis of Form C intimation is already in vogue and would render such exercise meaningless. The Board, therefore, has decided against fixing a numeric criterion governing the number of Customs House Agent licenses being issued. Hence, there is no ceiling on the maximum number of Customs House Agents that can be licensed in terms of the Regulations or the instructions issued by the Board, which has been clarified vide paragraph 3 of Circular No. 09/2010, dated 8-4-2010. 31. It was further submitted that once the Board has vide CHALR, 2004, changed the eligibility criteria, by including additional subjects in the syllabus, and the same is given effect to taking note of the present day intricacies of law, which the Customs House Agents are bound to have knowledge; the natural corollary of this would be to ask the Regulation 9 passed candidates (of CHALR 1984) to get acquainted with the additional laws and qualify for the same. That the Notification No. 30/2010-Customs (NT) seeks to do the same and the rationale behind issuance of the said notification is to seek equality in the competence and knowledge level of ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the proposition that the doctrines of promissory estoppel and legitimate expectation cannot come in the way of public interest. Public interest has to prevail over private interest. 33. Reliance was placed upon the decision of the Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27, for the proposition that it is a common legislative practice that the Legislature may choose to lay down only the general policy and leave it to the delegate to make detailed provisions for carrying into effect the said policy and effectuate the purposes of the statute by framing rules/regulations which are in the nature of subordinate legislation. It was accordingly, submitted that Section 146 of the Act lays down a general policy and it is left to the delegate to make detailed provisions for carrying it into effect to effectuate the purpose of the statute. Accordingly, the Board has framed regulations making provision for passing of an examination as per the syllabus prescribed by the Board to give effect to the provisions of Section146 of the Act. That as such, the Board has not transgressed the scope of the powers delegated to it an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to decide these petitions without entering into larger controversy as to whether the Board is empowered to prescribe for a qualifying examination for the grant of Customs House Agent s license, hence, the contentions raised in this regard are not dealt with, leaving it open to the parties to agitate the said issue in an appropriate case, if so required. 37. The controversy involved in the present case is, therefore, as to whether the action of the respondents in requiring the petitioners to appear in the additional subjects prescribed under CHALR, 2004 is arbitrary and discriminatory and as such, is violative of the petitioners fundamental rights under Article 14 of the Constitution of India. 38. On a perusal of the provisions of CHALR, 1984, it is apparent that the same provide for the Commissioner to invite applications for grant of such number of licenses as assessed by him to act as Customs House Agent in the month of January every year in the area of his jurisdiction for clearance work within the jurisdiction of the said Commissioner. Regulation 5 of the said Regulations provides for application for a license to act as a Customs House Agent in a customs station. Regulatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amination referred to in Regulation 9 and whose performance was found to be satisfactory with reference to the conditions stipulated in Regulation 10, could be granted a regular license in Form D by the Commissioner on receipt of an application in Form C . 39. Under CHALR, 2004, Regulation 4 which is similarly worded to Regulation 4 of CHALR, 1984 provides for invitation of applications. Regulation 5 makes provision for application for license and is also similarly worded to Regulation 5 of CHALR, 1984. Regulation 6 of the CHALR, 2004 makes provision for conditions to be fulfilled by the applicant. Regulation 7 makes provision for scrutiny of applications for license and is similarly worded to Regulation 7 of CHALR, 1984. Whereas Regulation 8 of CHALR, 1984 which makes provision for grant of temporary license, has been done away with in CHALR, 2004. Regulation 8 of CHALR, 2004 makes provision for examination of the applicant, which is more or less in pari materia to Regulation 9 of CHALR, 1984, except that the same provides for certain additional subjects in respect of which questions may be asked in the examination. Regulation 9 makes provision for grant of license in Form B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion referred to in Regulation 8 for the purpose of CHALR 2004. Pursuant to the said amendment in the Regulations, the Commissioner of Customs, Ahmedabad has issued Public Notice No. 26/2010-Customs calling upon the candidates who had already qualified under Regulation 9 of CHALR, 1984, but have not got Customs House Agent license to appear in the Customs House Agent examination in respect of additional subjects for the presently prescribed course curriculum under CHALR 2004. The examination was scheduled to be held on 15th July 2010. 42. The main grievance ventilated in the present petitions is that the petitioners along with others have qualified under Regulation 9 of CHALR, 1984 for the grant of Customs House Agent license. However, on account of failure on the part of the concerned Commissioner in inviting applications for grant of license, the petitioners though being qualified in all other respects, were not in a position to obtain licenses despite having made applications in this regard. Now in view of the newly framed regulations, the petitioners are sought to be discriminated against and are required to pass an examination in additional subjects, whereas similarly situate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was done arbitrarily or by any ulterior criteria. 45. It is a well settled principle of law that when a rule is challenged as denying equal protection, the question for determination by the court is not whether it has resulted in inequality but whether there is some difference which bears a just and reasonable relation to the object of the legislation. Mere differentiation or inequality of protection does not amount to discrimination within the inhibition of equal protection clause under Article 14 of the Constitution. To attract the attention of the clause, it is necessary to show that the selection of differentiation is unreasonable or arbitrary and that it does not rest on any rational basis having regard to the object which the legislature had in view. The court has to examine whether the classification can be deemed to rest upon differentia discriminating the persons or things grouped from those left out and whether such differentia has a reasonable relation to the objects sought to be achieved. (Dhan Singh v. State of Haryana, 1991 Supp (2) SCC 190. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the present case on the anvil of the principles enunciated in the aforesaid decisions, the undisputed facts are that the petitioners herein have cleared the examination held under Regulation 9 of CHALR, 1984 and were otherwise qualified for grant of license under the said Regulations subject to scrutiny of certain conditions. The petitioners are also working in some capacity or the other, whether as director, partner, power or attorney, etc. of regular license holders. Thus, for all practical purposes the petitioners are holding qualifications equal to that of regular license holders and have been discharging similar duties. On behalf of the respondents no other distinguishing feature has been pointed out to indicate anything to the contrary. Thus, the petitioners were discharging functions on par with the regular license holders, except the fact that as the concerned Commissionerates/Collectorates did not invite applications as envisaged under Regulation 4 of the Regulations, between the period since the petitioners cleared the Regulation 9 examination and the coming into force of CHALR, 2004 on supersession of CHALR, 1984, the petitioners were not in a position to obtai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shing feature being pointed out, the petitioners who too have passed the Regulation 9 examination under CHALR, 1984 and have been discharging similar duties in different capacities on behalf of the regular license holders are any less qualified or lack the competence that the said license holders possess. On an overall consideration of the facts of the case, the State has neither been able to establish the reasonableness of the classification nor its nexus with the object sought to be achieved by the legislation. As to what is the basis and how is it reasonable in differentially classifying equally qualified persons, merely on the basis of those having obtained licenses prior to the coming into force of the new regulations and those who on account of failure on the part of the concerned Commissioner to invite applications could not get regular licenses, is not coming forth. The nexus of such classification, in requiring those who had passed the Regulation 9 examination but could not obtain licenses, to appear in the examination for the additional subjects, with the object sought to be achieved is also not established inasmuch as those who had already obtained licenses earlier are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situated to the license holders under CHALR 1984, except for the fact that they had not been granted licenses as the concerned Commissionerate had not invited applications, the petitioners are now sought to be saddled with the liability to appear in the examinations to be conducted in respect of additional subjects, whereas similarly situated license holders are not required to do so. If the case of the respondents is to be accepted, namely, that the requirement of the petitioners to appear in the additional subjects has a nexus with the object sought to be achieved, one fails to understand as to how the existing license holders are not required to appear for the same examinations in additional subjects. In case license holders are deemed to be qualified under the new regulations also for the purpose of continuation and extension of license, it is beyond comprehension as to why the petitioners who are similarly situated persons, except for the fact that they were unable to obtain licenses because the concerned Commissionerate did not invite applications, are required to be treated differently. Thus, the action of the respondents is, on the face of it, arbitrary and discriminatory a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time. When it comes to dealing with the applications made by the petitioners despite the Commissioners not having invited applications, it has been contended on behalf of the respondents that in the light of the provisions of Regulation 4, licenses can be issued only as and when the concerned Commissioner invites applications in respect of the same even if the applicants may be qualified in all respects. Whereas, as regards the persons who have qualified under CHALR, 2004, despite the fact that Regulation 4 of the CHALR, 2004 also prescribes for applications being invited by the concerned Commissioner and is in pari materia to the provisions of Regulation 4 of CHALR, 1984, the Board has thought it fit to override the said regulation and has directed the Commissioners of Customs to clear the backlog of pending applications by various applicants who had qualified as per CHALR, 2004. 52. One finds it difficult to comprehend as to how there were applicants under CHALR, 2004 when the concerned Commissionerate had not invited any applications in this regard. In fact, as can be seen from the instructions dated 31-10-2004, not only has the Board directed the Commissioners to clear the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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