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TMI Blog2005 (9) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... Regulation 8 of Regulations, 1984. The said temporary licence in favour of the petitioner was to expire on 19-11-2002. The said licence was not extended and at the same time the concerned Authority refused to grant regular licence as contemplated under Regulation 10 of the Regulations, 1984 on the ground that the petitioner, in spite of required number of opportunity being given, failed to pass the examination provided under Regulation 9 of the Regulations, 1984. The petitioner was allowed, vide order dated 21-5-2003 (infra) passed by Chief Commissioner (Annexure-5 to writ petition), to continue to work as CHA at ICD Moradabad till declaration of his result in the written examination held by him on 14-6-2002. Under Regulations, 1984 within the relevant period of two years (viz. 20-11-2000 to 19-11-2002) it is claimed that 'examination' was held on four occasions, namely, 29-12-2000, 18-7-2001, 28-12-2001 and 14-6-2002. 3.According to the petitioner, he failed to appear in the examination held on 29-12-2000. The reason for not appearing is disclosed in paragraph-15 of the writ petition which reads : That personal hearing was granted on 21-5-2003 by the"15. respondent No. 3. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are denied."11. The submission of the deponent with respect to the examination held on 29-12-2000 is not an afterthought. The same submission was made in the earlier writ petition numbered as 941 of 2004. Further, allegation that the examination conducted on 29-12-2000 was held after due information to the public is wrong and denied. Neither any public notice was issued nor copy of the same has been filed. Further the manner of giving public notice has also not been mentioned in para 19 of the affidavit." 5.We notice that the respondents, apart from having failed to disclose the mode of alleged "due information to the public" have also not cared to disclose even the date when such notice was given to the public. In that view of the matter, it is not possible to accept the stand taken by the respondents who were possessed of the relevant material but chose not to disclose; giving rise to presumption against them. In our opinion it is not at all relevant as to whether the person concerned had information/intimation of the examination being held under Regulation 9 of the Regulations, 1984 because even if one had notice but opted not to appear, it cannot be said that he had 'avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be permitted to avail of a maximum of three chances to qualify in the said examination but all such chances should be availed of within a maximum period of 2 years from the date of grant of temporary licence." It is interesting to note that in the proviso attached to Regulation 8(1), the relevant expression is - "to enable the applicant to avail of the third chance for qualifying in the examination in terms of Regulation 9". On the other hand, the relevant expression used in aforementioned Regulation 9 is - "....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…" 6.A conjoint reading of the two expressions, in Regulation 8(1) and 9(1), shows to "enable the applicant to avail" three chances for qualifying the examination is one thing but embargo placed is by the expression ".......Shall be permitted to avail of three chances" used in Regulation 9(1) of Regulations, 1984. By giving notice of holding a particular examination requirement of Regulation 8(1) alone is fulfilled and not that of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fixation of date for holding examination is nothing but a paper work. In that view of the matter, there is no occasion to argue that the said examination was at all held. There is thus no basis to say that the petitioner availed 'opportunity' which was never offered to the candidates, including the petitioner. It is, therefore, abundantly clear that the petitioner had availed two chances only and he was, thus, entitled to avail the third chance. 10.Coming to the impugned judgment and order dated 11-10-2004 passed by the Chief Commissioner/Respondent No. 3, one finds that the said respondent [while deciding the appeal preferred before it under Regulation 8(2) of the Regulations, 1984] has not touched the issue raised by the petitioner before him that he had not availed three chances inasmuch as the examination held on 29-12-2000 had to be excluded when computing the 'chances availed' by him. The appellate authority, on the other hand, non-suited the petitioner and dismissed the appeal on the ground that the three chances contemplated under the aforementioned Regulation had to be availed within a period of two years i.e. on or before 19-11-2002 in the instant case. A bare r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pass the written and oral examination. We find that the view taken by us of Regulations, 1984 is also in consonance with the subsequent policy adopted by the Department. 13.Before we part with the judgment, we may also refer to the decision of the Apex Court in the case of D.V. Bakshi and others v. Union of India and others - 1994 (74) E.L.T. 200 (S.C.) = AIR 1993 Supreme Court 2374 cited by Sri Kshitij Shailendra, Advocate on behalf of the petitioner. The decision does not help the petitioner in the facts and circumstances of the present case, particularly in view of the fact that the aforesaid judgment does not advert to the issue in hand, namely, whether two years' maximum period having expired, the Appellate Authority was competent to grant relief or not. We also find that the aforesaid decision was rendered on July 14, 1993 whereas the explanation to Regulation 9(2) was added on 28-1-1994 and the ambiguity, if any, was removed in consonance with the aforementioned decision of the Apex Court. In the result, the impugned appellate judgment and order dated 11-10-2004 passed by the Chief Commissioner, Central Excise, Meerut Zone, Meerut/Annexure-7 to the writ petition cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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