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TMI Blog1993 (7) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... and to avoid any litigation in future if the authorities decide to give one further opportunity to the petitioners to clear the oral test it will be by way of grace only and will not confer any right whatsoever on the petitioners and if the authorities insist upon any undertaking to be filed by the candidates permitted to avail of that extra chance in the present proceedings that they will accept the result as final and conclusive and will not make it a ground for further litigation, they will be well within their rights to so insist. If such undertakings are filed in the present proceedings, the Registry will accept the same. Appeal dismissed. - 9, 3 and 24 of 1993 - - - Dated:- 14-7-1993 - A.M. Ahmadi and S. Mohan, JJ. [Judgment per : A.M. Ahmadi, J.]. - This batch of cases raises questions relating to interpretation of Regulations 8 9 of the Customs House Agents Licensing Regulations, 1984 (hereinafter called `the Regulations') made by the Central Board of Excise Customs under sub-section (2) of section 146 of the Customs Act, 1962. In the Writ Petitions filed under Article 32 of the Constitution, the petitioners have questioned the constitutional validity of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of one year's working, the Collector 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 Regn. 9. While granting such extension, the Collector of Customs shall satisfy himself that the requirements of Regns. 10(1)(a) and 10(1)(b) had been fully met by the applicant. 9.Examination of the applicant. - (1) The holder of a temporary licence in the case of an individual and the person or persons who will be actually engaged in the work of clearance of goods through customs on behalf of the firm or company holding a temporary licence, as the case may be, shall be required to qualify in examination at the earliest opportunity. Such person or persons shall be eligible to appear in the examination as soon as a temporary licence is granted and shall be permitted to avail of three chances within a period of 2 years from the date of issue of the temporary licence on payment of prescribed examination fee of Rs. 250 for each examination. The examination referred to in sub-regulation (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... candidate is ordinarily required to qualify within two chances in a year if the examination is held twice in one year and if he cannot appear for the oral examination unless he has passed the written examination, it follows that he will have only one chance for the oral examination even if he clears the written examination at the first attempt unless the oral test is held after the result of the written test is announced. It is, therefore, obvious that in the first year under Regulation 8(1) the candidate may not have two chances to appear for the oral examination. If he does not pass the written examination at the first attempt immediately after he has secured a temporary licence he would not get a single chance to appear for the oral examination in the first year unless the oral test is held after the result of the written test within that year. Therefore, when the proviso to Regulation 8(1) talks of the third chance it may perhaps be true for those who passed the written test at the first available opportunity but not for those who failed to do so. It was, therefore, contended by the learned counsel for the petitioners that the third chance contemplated by the proviso would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court reliance was placed on a circular dated May 19, 1988 issued by the Central Board of Excise and Customs which granted an additional chance to the candidates to pass the oral examination pending amendment of Regulation 9. The relevant part of the circular extracted by the High Court reads as under : "..........the temporary licence holders who have passed in the written examination within two years from the date of grant of temporary licence, but who have not been able to qualify in the oral examination may be granted two more chances for passing the oral examination. The first of these oral examinations will be held by the Collector of Customs concerned and the second by the DGI, C CE." Pursuant to this circular a public notice was issued and temporary licence holders who had passed the written examination within two years from the date of grant of temporary licence but who had failed to clear the oral examination were given two more chances for passing the same. Indeed it was made clear that the relaxation was confined to two additional chances for clearing the oral examination only. The High Court on a true construction of the circular read with the public notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the temporary licence for a period not exceeding one year. If the period is extended by a year, as in the case of the petitioners herein, he would have further two opportunities to clear the examination. Thus he would have four opportunities to appear at the examinations to be held over a period of two years. Even if we assume that the candidate must pass the written examination before he appears in the oral one, he would have in all four opportunities for clearing the written test and three opportunities for clearing the oral test. If he does not appear or does not pass the written test at the first available opportunity, the number of opportunities to pass the oral test would shrink depending on at which attempt he has cleared the written test. His inability to clear the written test at the earliest available opportunity cannot operate to his advantage by a corresponding increase in the number of opportunities to clear the oral test. Such a construction of the scheme of the Regulations would result in placing premium on incompetency and inefficiency. It is, therefore, clear on a plain reading of Regulations 8 9 that they offer more than three opportunities for passing the writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. This is clear from Regulation 6(b) of the Regulations. Besides, as pointed out earlier, before a candidate can apply for the grant of a licence, he must satisfy the Collector that he has experience of work relating to clearance of goods through the customs for a period of not less than one year which means that he must have worked as an apprentice to a licensed agent. The extent of knowledge which he must possess to qualify for the licence can be gathered from the various subjects enumerated in sub-clauses (a) to (p) of clause (3) of Regulation 9, Regulation 10 which relates to grant of regular licence stipulates that temporary licence holder must not only have qualified in the examination referred to in Regulation 9 but his performance must also be found to be satisfactory with reference, inter alia, to (a) quantity or value of cargo cleared by such licence holder conforming to norms as prescribed by the Collector and (b) absence of instances of delay either in the clearance of goods or in the payment of duty for any reason attributable to such licence holder or any complaint of misconduct including non-compliance of any of the obligations specified in Regulation 14. It would, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons set out in Regulation 14. The factors to be assessed at the interview relate to his temperament, managerial ability, communication ability, interpersonal skills, ability to interact with colleagues and officials, general awareness in regard to his functional responsibilities and professional norms as well as norms of behaviour, etc. Therefore, the area of the inquiry in regard to actual working is equally wide and important and there is justification for an oral test prescribing 100 marks with 50 per cent as passing marks. This is so because the authorities have to assess the candidate's personality, his temperament and his capacity to interact with others concerned with the movement of highly valuable goods, etc. In Lila Dhar v. State of Rajasthan, 1982 (1) SCR 320 = AIR 1981 SC 1777 this Court while highlighting the need for an interview test in certain selections clarified that the test which may be valid for admission to medical colleges may not hold good where it concerns entry into public services. The test evolved in the case of Ajay Hasia (AIR 1981 SC 487) Ashok Kumar Yadav (AIR 1987 SC 454) (supra) cannot, therefore, apply with equal force in the matter of grant of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion was not seriously urged before the High Court nor was it seriously pressed before us but we have thought it necessary to deal with the same as certain writ petitions have been filed challenging the validity of the Regulations on the said count. We, therefore, thought it proper to examine the same and put a lid thereon. 7.The submission that the provision for clearing the oral test with at least 50 per cent marks is susceptible to misuse, namely, to eliminate some and to accommodate others needs closer scrutiny. The submission is general in nature and would be true in all such cases where passing of an oral test is a `must' to qualify for entry. The oral test being a highly subjective one such an allegation may be easy to make. But as pointed out earlier in certain situations a written examination alone may not suffice to assess the overall qualities of an individual and an oral test becomes necessary to evaluate his performance from certain other angles to make an integrated assessment of the candidate. As observed in Lila Dhar's case (AIR 1981 SC 1777) (supra) a written examination assesses the man's intellect and the interview tests the man himself and "the twain shall me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nities to clear the examination. Certain candidates failed to avail of the opportunity and that must thank themselves for the same. Those who failed to avail of the opportunity and those who were unsuccessful at the written test after availing of the opportunity fall in the same category because once the opportunity is available it is for the candidate to avail of it and if he fails to avail of it he cannot be heard to say that he did not have that opportunity. It will, therefore, be seen that all the petitioners in the present group of cases had four opportunities to clear the written as well as the oral test but they failed to do so. In the circumstances, we think that the view taken by the High Court is unassailable. In this connection, the High Court's observation is as under : "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." This will show that the petitioners had the required opport ..... X X X X Extracts X X X X X X X X Extracts X X X X
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