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TMI Blog1992 (10) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... Stations are required to hold a regular licence granted under the Regulations. Under Regulation 8, there is a provision for grant of a temporary licence. It provides as follows :- "8. Grant of temporary licence. - Any applicant whose application is received within the last date specified in Regulation 4 and who satisfies the requirements of Regulations 5 and 6, shall be permitted to operate as Custom House Agent at the Customs Station for which the application is made initially for the period of one year against temporary licence granted by the Collector in this regard in Form B. Provided that when evidence is produced to the Collector 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 Collector may extend the aforesaid period of one year for which the temporary licence has been ganted by another six months or such further period not exceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry. Knowledge of Hindi will be considered as an additional or desirable qualification." When Regulations 8 and 9 read together, it becomes clear that, initially, the temporary licence is granted for a period of one year. Thereafter the applicant has to avail of two chances for qualifying in the written and oral examination, which is prescribed under Regulation 9. If the applicant fails to pass and would like to avail of a third chance as soon as the next examination is held, and, if 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 Collector may extend the period of temporary licence by another 6 months or a further period not exceeding one year to enable the applicant to avail of the third chance for qualifying in the examination in the terms of Regulation 9. Therefore, under Regulation 8, during the period of the temporary licence, the applicant should be given at least three chances of appearance for the written-cum-oral examination prescribed under Regulation 9. This position is again made clear under Regulation 9 itself. This regulation clearly sets out that the holder of a temporary lice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date during this period of two years. The number of chances he will get of appearing for an oral examination will depend entirely on when he passes the written test. 6. The petitioners have contended that, since, under Regulation 9(2), the examination is required to be conducted twice a year, every person, who is entitled to appear for such an examination during the subsistence of the licence should be considered as having a right to take four chances, because the temporary licence is for a period of two years. Therefore, unless four such written-cum-oral examinations are available to a candidate, there will be a breach of Regulation 9. This submission, in our view, is not warranted by the language of Regulation 9. Both Regulations 8 and 9 only speak of three chances being made available to a candidate. It is true that a written examination is required to be held twice every year, but it does not necessarily follow from this that, during the subsistence of a given temporary licence, four examinations will necessarily be held. This is because a temporary licence can be issued after the screening of the application, at any time during the year. If, for example, a licence is issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioners at the aforesaid written and oral examinations and whether they have passed or failed in the examinations. This table is taken by us on record and marked 'X' for identification. 8. From this table, it appears that the concerned persons in Writ Petitions 176 of 1992, 177 of 1992, 244 of 1992, 347 of 1992, 348 of 1992, 401 of 1992, 465 of 1992 and 1058 of 1992 had all passed in the written examinations and had actually appeared in three oral examinations, but had failed in all three. Therefore, these petitioners have actually availed of three chances, which were given to them under Regulation 9, and have failed to pass. They cannot, therefore, have any grievance regarding compliance of this Regulation. All the other petitioners and persons working under them had the opportunity of appearing in written and oral examinations thrice during the period of subsistence of their temporary licences. They have, however, not cleared the oral examination, although all have cleared their written examination - either at first, second or third attempt. In fact, for some of the petitioners and their employees concerned who passed the written examination only at the third attempt, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the oral examination only. The language of the circular and the public notice, in our view, makes it clear that the relaxation was a one-time relaxation and that only two additional oral examinations were to be conducted pursuant to the relaxation. This fact is made very clear in a Circular dated 6th September, 1988, which was issued within three months of the original circular, by the Under Secretary, Ministry of Finance, Department of Revenue, Government of India, to all Collectors and Additional Collectors of Customs. This letter makes a reference to the Ministry's instructions in letter dated 19th May, 1988, and makes it clear that these instructions would apply to pending cases of temporary licences and not for any fresh cases. The letter also makes it clear that such temporary licences as are allowed to avail themselves of the two additional chances of oral examination should be allowed to function as Temporary Customs House Agents until these two oral examinations are held and the results are declared, subject to the condition that they avail themselves of the two consecutive chances for the oral examination. There is a subsequent letter of 24th September, 1991, issued by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin a period of two years from the issue of a temporary licence. Considering the number of such cases, two additional oral examinations were allowed as a one-time arrangement. However, it was conveyed by the Board in September, 1988, that these additional two chances were not to be given in any fresh cases. The letter also clarifies that subsequently there was no need felt to amend Regulation 9, because the number of chances which were given under Regulation 9 were found to be adequate. 13. Therefore, the respondents are not liable to conduct any additional oral tests for the benefit of the petitioners, nor are the petitioners entitled to appear in two additional oral tests even after the expiry of the licence. 14. Although the petitioners have neither challenged the Regulations, nor the Public Notice dated 6th December, 1989 which sets out the manner in which the written and oral tests are required to be conducted, nor the allotment of marks as between the written and oral examinations, learned advocates who appeared before us on behalf of the petitioners cited certain judgments of the Supreme Court in order to suggest that undue importance was being given to the oral examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducted. There is no challenge to the validity of Regulation 9. In fact, the validity of Regulation 9 was considered by a Division Bench of this Court consisting of Bharucha J. and Jhunjhunwala J. in the case of Shri Sainath Shipping Corporation and Ors. v. Collector of Customs Anr. being Writ Petition No. 1432 of 1988 and a group of other petitions, under a Judgment and Order dated 29th August, 1991. The Division Bench, after examining the relevant provisions of these Regulations, have upheld, inter alia, the validity of Regulation 9 of the Custom House Agents Licensing Regulations, 1984. A Special Leave Petition against this judgment has been dismissed by the Supreme Court. The Madras High Court (Sathiadev, J.) in Writ Petition Nos. 5315 and 5316 of 1984, by his Judgment and Order dated 18th November, 1987, has also upheld the validity of the same Regulation. In the case of Chandrakant Krishnarao Pradhan and Anr. v. Jasjit Singh, the Collector of Customs, Bombay and Ors., reported in AIR 1962 Supreme Court 204, the Supreme Court considered similar Rules under the Sea Customs Act, 1878, being Custom House Agents Licensing Rules, 1960, and upheld the validity of a similar rule the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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