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TMI Blog2017 (3) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... xaminees and in this case, the petitioner herein, with regard to the oral examinations, which were supposedly held on 05.04.2013 and 06.04.2013. The fact that the said procedure was not followed, persuades to hold that the impugned order is flawed in law - petition allowed - decided in favor of petitioner. - Writ Petition No.29347 of 2015 and MP No.1 of 2015 - - - Dated:- 15-12-2016 - Mr.JUSTICE RAJIV SHAKDHER For The Petitioner : Mr.G.Derrick Sam For The Respondents: Mr.G.M.Syed Nurullah Sheriff ORDER 1. The singular issue, which has been raised in this writ petition is, whether the respondents were required to give individual intimation to the petitioner with regard to oral examination held by them, for obtaining Customs House Agents License. 2. A perusal of the affidavit filed by the respondents, would clearly show, that there was no individual intimation given to the petitioner with regard to the oral examination. 2.1. Therefore, this Court is required to consider as to whether failure to issue individual or separate intimation to the petitioner to present herself for the oral examination, was fatal to the stand taken by the respondents in defence of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 2004 Regulations, as required, the petitioner, appeared for the oral examination, but failed to qualify; a fact, which was communicated to her on 30.04.2012. 5.3. A perusal of the impugned order would also show that the petitioner was eligible for taking the oral examination held by the respondents, immediately, thereafter, that is, on 05.04.2013 and 06.04.2013. 5.4. The respondents claim that the petitioner was called for oral examinations held on 05.04.2013 and 06.04.2013 via circulars issued in that behalf. 5.5. The common case of parties is that the petitioner did appear for oral examination either on 05.04.2013 or on 06.04.2013. 5.6. Resultantly, the respondents proceeded to reject the representation of the petitioner seeking another opportunity to sit for the oral examination on the ground that she had failed to clear the oral examination within a period of two (2) years, from the date of declaration of result of the related written examination. In this behalf, Regulation 6(5) of Customs Brokers Licensing Regulations, 2013 (in short the 2013 Regulations), was invoked. 6. Thus, the point of inflection between the parties is : whether an intimation with rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 Regulations. Thus, for the sake of convenience, an extract of Regulation 8 is culled out hereunder : REGULATON 8. Examination of the applicant - (1) Any applicant whose applications is received within the last date specified in the notice or publication, as the case may be, referred to in regulation 4 and who satisfies the requirements of regulations 5 and 6, shall be required to appear for the written aswell as oral examination conducted by theDirector General of Inspection at specifiedcentres and specified dates, [once every year- substituted by Notification No.30/2010-Cus.(N.T.), dated 08.05.2010], for which intimation shall besent individually in advance before the date ofexamination. Provided that an applicant who hasalready passed the examination referred to inregulation 8 will not be required to appear forany further examination . (2) The applicants declared successful in written examination shall be called 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 writtenexamination but fails in the oral examinationlinked to it, shall have to clear th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritten as well as oral examination conducted by the DGICCE : Provided that an applicant who hasalready passed the examination referred to inregulation 9 of the Custom House AgentsLicensing Regulation, 1984 (corrected by M.F.(D.R.) Corrigendum F.No.502/07/2013-Cus.VI,dated 19.7.2013) [or] regulation 8 of theCustom House Agents Licensing Regulation,2004 shall not be required to appear for anyfurther examination. (2) The written examination shall beconducted on specified dates in month ofJanuary of each year for which intimation shallbe sent individually to applicants in advancebefore the date of examination and the resultof the said examination shall be declared byend May each year. (3) The applicant who is declaredsuccessful in the written examination shall becalled for an oral examination on specifieddates in month of June of each year, the resultof which shall be declared in the month of Julyof each year. (4) The applicant shall be required toclear written examination as well as oralexamination. (5) An applicant who fails to clear the oralexamination within two years from date ofdeclaration of result of the related writtenexamination, shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clause (1) of Regulation 8 of the 2004 Regulations requires the respondents to individually intimate, in advance, the applicants/examinees, with regard to, holding of examinations. This clause takes, within its sway, both written and oral examination. 16.2. On the other hand, under Clause (2) of Regulation 6 of the 2013 Regulations, individual intimation is required to be given in advance, qua the date of the written examination, which is slated for January of each year. However, in so far as oral examination is concerned, Clause (3) of Regulation 6 of the 2013 Regulations states that an applicant/examinee, who is declared successful in the written examination shall be called for an oral examination on specified dates in the month of June of each year. 16.3. To my mind, the expression individual intimation , which finds a mention both in Regulation 8(1) of the 2004 Regulations and in Regulation 6(2) of the 2013 Regulations, as also the expression called for used in Regulation 6(3) of the 2013 Regulations convey one and the same meaning, having regard to the context, in which the 2004 and the 2013 Regulations have been framed. 16.4. The only difference being that whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visit the office during the relevant period for a variety of personal reasons. The record, in the instant case, shows that it is the petitioner's stand that she was unaware of the circular fixing dates of oral examination, as she was pregnant during the relevant period. 17.2. The nearest example by which one can drive home the point concerning the similarity of meaning qua the expressions used in the 2004 and the 2013 Regulations, is by citing the oft repeated illustration of a glass, which is half-full with water. As is said, one could either say it is half-full or, half-empty. Therefore, in my opinion, the expression individual intimation and called for oral examination convey the same meaning. 17.3. More importantly, according to me, the petitioner would be governed by the 2004 Regulations, wherein, under Clause (1) of Regulation 8, the respondents were required to give her an individual, albeit, advance intimation. The reason why the petitioner would be governed by the 2004 Regulations is that, she sat for the written examination, when 2004 Regulations were in vogue. Therefore, the actions taken under the said Regulations would stand saved under the 2013 Regulation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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