2021 (6) TMI 1049 - HC - Customs

Court invalidates oral exam for 'G' Card license, emphasizing bias risks in licensing process. Petitioner to be appointed within four weeks.

R. Murugesh Versus The Assistant Commissioner of Customs, (CBLR) Section, Custom House, Tuticorin.

The Court allowed the writ petition challenging the legality of the oral examination for the 'G' Card license issuance. It held that the Customs Brokers ... Seeking direction to respondent to issue 'G' Card License to the petitioner - conversion of “H” Card license holder to 'G' Card License to the petitioner - N/N. 41/2018 - Customs (N.T.) dated 14.05.2018 - HELD THAT:- It is clear that the respondent authorities have conducted the examination not with a view to upgrade the licence holder, but with a view to reject the upgradation from “H” to “G”. The object of any examination is to ensure that the qualified candidate is promoted to the next post. If an examination is conducted with the object to reject candidates, then the examination itself has to be struck down. In this case, the respondent had no right to conduct any oral examination. It is not provided in the Rules. The Rules stipulate that written examination alone must be conducted. Other State authorities have conducted only written examination and they have not called upon the qualified candidates to again appear for an oral examination. In the present case, for the written examination, the maximum mark was 100 and the qualifying mark was 50 and separately, for oral examination 100 marks were allotted as a maximum and the qualifying mark was given as 50. It is not known what is the nature of oral examination, which was conducted and how the candidates were assessed. Those details are absent in the counter affidavit. Except merely stating that only two candidates passed in the oral examination, no other specific details have been given in the counter affidavit. The counter affidavit has to be rejected - A direction is issued to the respondent, insofar as the petitioner is concerned, since he has passed the written examination, to appoint him as “G” card licence holder within a period of four weeks from the date of receipt of a copy of this order. Petition allowed. Issues:1. Challenge to the legality of Public Notice No.48/2017 and request for 'G' Card License issuance.Analysis:The petitioner, a Customs Broker holding an 'H' Card license, sought a 'G' Card license based on the Customs Brokers Licensing Regulations 2018. The Regulations define 'G' and 'H' card holders, with 'G' card holders having the authority to sign documents upon passing a written examination. The petitioner contended that in other port authorities, selection from 'H' to 'G' card holder was based solely on a written examination, not an oral one. The petitioner had passed the written examination but failed the oral one, leading to the filing of a writ petition to challenge the oral examination's legitimacy.The respondent argued that the oral examination was conducted to assess knowledge adequacy, following a pattern similar to the F-Card examination until the implementation of CBLR 2018, which prescribed only a written examination. The respondent had not conducted any 'G' card examination under the CBLR 2018. The respondent's stance was that since the petitioner did not qualify the 'G' card examination, he was not considered for the 'G' Card issuance.The Court observed that the purpose of an examination should be to promote qualified candidates, not to reject them. It noted that conducting an oral examination was beyond the Rules' scope, which mandated only a written examination. The Court highlighted that oral examinations could introduce bias and emphasized that marks for oral assessments should be less than 25% of the total. The lack of specific details in the counter affidavit regarding the oral examination led the Court to reject it. Consequently, the Court struck down the oral examination and the Public Notice stipulating both written and oral examinations. A direction was issued to appoint the petitioner as a 'G' card license holder within four weeks, given his successful completion of the written examination.In conclusion, the writ petition was allowed, and no costs were imposed. The connected Miscellaneous Petition was closed, resolving the dispute over the 'G' Card license issuance.