2010 (10) TMI 674 - HC - Customs

Court quashes discriminatory licensing regulations, directs fair consideration for petitioners

The court found the Customs House Agents Licensing (Amendment) Regulations, 2010, requiring candidates who passed under CHALR, 1984 to take additional ... Licencing of Custom House Agent - Regulation 9 of CHALR, 1984 - Circular being Circular No. 9 of 2010-Custom dated 8-4-2010 -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. - Held that:- The Customs House Agents Licensing (Amendment) Regulations, 2010 issued vide Notification No. 30/2010 dated 8-4-2010, insofar as the same impose a condition upon those persons who had passed the examination conducted under Regulation 9 of the Customs House Agents Licensing Regulations, 1984 and have not been granted license under the said Regulations, to clear the examination in additional subjects to be deemed to have passed the examination referred to in Regulation 8 for the purpose of Customs House Agents Licensing Regulations 2004, is hereby quashed and set aside. Consequently, the petitioners are entitled to be considered for grant of Customs House Agent licenses without having to clear the examination in the additional subjects. Issues Involved:1. Validity of the Customs House Agents Licensing (Amendment) Regulations, 2010.2. Requirement for candidates who passed under CHALR, 1984 to reappear for examinations under CHALR, 2004.3. Discrimination and arbitrariness in requiring additional examinations for certain candidates.4. Legitimate expectation and accrued rights of candidates under CHALR, 1984.Detailed Analysis:1. Validity of the Customs House Agents Licensing (Amendment) Regulations, 2010:The petitioners challenged the validity of the Customs House Agents Licensing (Amendment) Regulations, 2010, which required candidates who had passed the examination under CHALR, 1984 but had not been granted licenses, to pass additional examinations on specific subjects to be deemed to have passed the examination under CHALR, 2004. The court found that the amendment was discriminatory and arbitrary, as it imposed new requirements on candidates who had already qualified under the previous regulations without any reasonable justification.2. Requirement for Candidates Who Passed Under CHALR, 1984 to Reappear for Examinations Under CHALR, 2004:The court examined whether it was reasonable to require candidates who had passed the examination under CHALR, 1984 to reappear for additional examinations under CHALR, 2004. It was noted that the petitioners had cleared the examination under Regulation 9 of CHALR, 1984 and were otherwise qualified for the grant of a license. The court held that requiring these candidates to pass additional examinations was arbitrary and discriminatory, especially since those who had already obtained licenses under CHALR, 1984 were not required to do so.3. Discrimination and Arbitrariness in Requiring Additional Examinations for Certain Candidates:The court found that the requirement for candidates who had passed under CHALR, 1984 to take additional examinations under CHALR, 2004 was discriminatory. The court noted that the petitioners were similarly situated to those who had obtained licenses under CHALR, 1984 and had been discharging similar duties. The only difference was that the petitioners had not been granted licenses due to the failure of the concerned Commissioner to invite applications. The court held that the classification made by the respondents was unreasonable and had no nexus to the object sought to be achieved.4. Legitimate Expectation and Accrued Rights of Candidates Under CHALR, 1984:The petitioners argued that they had an accrued right to be considered for the grant of a license under CHALR, 1984 and that the new regulations violated their legitimate expectation. The court agreed, noting that the petitioners had passed the qualifying examination and were otherwise qualified for the grant of a license. The court held that the petitioners' accrued rights under CHALR, 1984 were not affected by the coming into force of CHALR, 2004, and that the requirement to pass additional examinations was an unreasonable restriction on their rights.Conclusion:The court quashed and set aside the Customs House Agents Licensing (Amendment) Regulations, 2010, insofar as they imposed a condition on candidates who had passed the examination under CHALR, 1984 to clear additional examinations. The court directed the respondents to consider the petitioners for the grant of licenses without requiring them to pass additional examinations, subject to their fulfilling other requirements under the regulations. The court also stayed the operation of the judgment for eight weeks, allowing the respondents to dispose of the petitioners' applications for licenses, with the grant of licenses subject to the final outcome of any proceedings preferred against the judgment.