2025 (6) TMI 1371 - HC - Customs

Customs broker license denied after failing oral exam twice despite passing written test under Regulation 17(3)

The Commissioner of Customs Versus P. Saravanan

The HC set aside a Single Judge's order that granted a customs broker license based solely on passing the written examination. The petitioner cleared the ... Seeking Mandamus in the nature of direction to the respondent/appellant herein to give 'G' card license to the petitioner within a time frame fixed by the Court - learned Single Judge has miserably failed to properly interpret the provisions of the Regulation and has substituted his own interpretation - HELD THAT:- In this case, when there is specific notification that the selection will be based on the performance in the written examination and in the viva-voce, the writ petitioner having participated not once, but twice had come to the Court after 5 years of his first attempt, without clearing the viva-voce. The Regulation 17(7) (ii) of Customs Brokers Licensing Regulations, 2013 clearly states that Form 'G' card will be issued only in case a person pass examination referred to in Sub Regulation (3) of Regulation 17 - Sub Regulation (3) of Regulation 17 speaks about employment of a person as a Customs Brokers obtaining license on clearing examination conducted by the Deputy Commissioner or Assistant Commissioner of Customs, as the case may be. The Public Notice No.7 of 2014, dated 15.07.2014 inviting application for 'G' card examination without any ambiguity intimates that the public with the caption “Form 'G' examination (written and oral examination) under Regulation 17(3) of Customs Brokers Licensing Regulations, 2013.” - While so, having knowingly participated in the process that the examination will be in two parts i.e., written and oral, the attempt of the writ petitioner to change the game rule by way of a writ petition cannot be entertained. The learned Single Judge erred in allowing the writ petition which is contrary to Law and Statute. The writ petitioner who had participated in the viva-voce twice, 1st time on 29.10.2014 and 2nd time on 07.10.2016 and both time failed to secure the minimum marks required. He cannot have the advantage of nullifying the provisions to suit his convenience after participating in the process of selection. Conclusion - i) The word 'an examination' under Regulation 17(3) includes both the written and viva-voce examinations. Clearing only the written examination does not entitle the petitioner to the license. ii) The petitioner is not entitled to the 'G' card license without clearing the viva-voce examination as per the 2013 Regulations. The delay and conduct of the petitioner further disentitle him from relief. The order of the learned Single Judge is set aside - appeal allowed. 1. ISSUES PRESENTED and CONSIDEREDThe core legal questions considered by the Court are:Whether the term 'an examination' under Regulation 17(3) of the Customs Brokers Licensing Regulations, 2013, refers to a single examination or includes both the written examination and the viva-voce (oral examination) as a composite process.Whether the writ petitioner, having cleared only the written examination but failed the viva-voce twice, is entitled to be granted the 'G' card license without clearing the oral examination.Whether the learned Single Judge erred in interpreting the statutory provisions by relying on the dictionary meaning of the article 'an' to hold that only the written examination needs to be cleared.Whether the writ petitioner's delay and conduct in approaching the Court after failing the viva-voce twice, and after the introduction of the 2018 Regulations superseding the 2013 Regulations, affects the entitlement to the license.The applicability and interpretation of Regulation 17(7)(ii) and related provisions regarding issuance of the 'G' card license.Whether the principle that the 'game rules' cannot be changed after commencement applies to the licensing process and the writ petitioner's attempt to alter the selection criteria via judicial intervention.2. ISSUE-WISE DETAILED ANALYSISIssue 1: Interpretation of 'an examination' under Regulation 17(3) of the Customs Brokers Licensing Regulations, 2013Relevant legal framework and precedents: The Customs Brokers Licensing Regulations, 2013, govern the licensing process for Customs Brokers. Regulation 17(3) requires passing 'an examination' conducted by the Deputy Commissioner or Assistant Commissioner of Customs. Clause 6 and the notification inviting applications clarify the examination consists of two parts: written and viva-voce. The principle of statutory interpretation mandates reading the provision in its context and harmonizing with other provisions to avoid absurdity.Court's interpretation and reasoning: The learned Single Judge relied on the Oxford Advanced Learner's Dictionary to construe 'an examination' as singular, concluding that clearing the written examination suffices. The High Court disagreed, emphasizing that the Regulations and the notification explicitly describe the examination as comprising two parts: written and oral. The Court held that the term 'an examination' must be understood in the context of the entire regulatory framework, which clearly contemplates a two-stage examination process.Key evidence and findings: The written examination results dated 29.09.2014 showed the petitioner scored 51 marks, qualifying him to appear for the viva-voce. Public Notice No.42/16 dated 10.09.2016 invited eligible candidates for the oral examination scheduled on 06 and 07.10.2016. The petitioner participated in the oral examination twice but failed both times.Application of law to facts: Since the Regulations and notifications explicitly require clearing both written and oral examinations for licensing, the petitioner's argument based on the dictionary meaning of 'an' is untenable. The Court applied the principle of harmonious construction and contextual interpretation to affirm that 'an examination' includes both components.Treatment of competing arguments: The petitioner's counsel argued that the singular article 'an' limits the requirement to one examination, i.e., the written test. The Court rejected this narrow literalism, holding that dictionary meanings cannot override the statutory scheme and legislative intent. The Department's contention that the examination is composite and both parts are mandatory was accepted.Conclusion: The Court concluded that 'an examination' under Regulation 17(3) includes both the written and viva-voce examinations. Clearing only the written examination does not entitle the petitioner to the license.Issue 2: Entitlement to 'G' card license after failing viva-voce twice and delay in approaching the CourtRelevant legal framework and precedents: Regulation 17(7)(ii) states that the Form 'G' card license will be issued only upon passing the examination referred to in Sub Regulation (3). The 2013 Regulations provided for two-part examination; the 2018 Regulations, which superseded the earlier Regulations, abandoned the two-part examination. The principle that the rules of a selection process ('game rules') cannot be changed after commencement is well established in administrative law jurisprudence.Court's interpretation and reasoning: The Court noted that the petitioner participated in the viva-voce twice (first on 29.10.2014 and second on 07.10.2016) and failed both times. The petitioner approached the Court only after a delay of about five years from the first attempt. The Court held that the petitioner cannot invoke the 2018 Regulations, which changed the examination scheme, to gain advantage retrospectively for attempts made under the 2013 Regulations.Key evidence and findings: The petitioner's participation in the viva-voce twice and failure to secure the minimum qualifying marks was established from the record. The delay in filing the writ petition and the petitioner's 'unclean hands' were noted.Application of law to facts: The Court applied the principle that a candidate cannot alter the conditions of a selection process after participating in it. The petitioner's attempt to nullify the viva-voce requirement after failing twice was contrary to the statutory scheme and principles of fairness and equity.Treatment of competing arguments: The petitioner's reliance on the 2018 Regulations and the dictionary meaning of 'an examination' was rejected. The Department's argument emphasizing adherence to the original examination scheme and the petitioner's failure to clear the viva-voce was accepted.Conclusion: The petitioner is not entitled to the 'G' card license without clearing the viva-voce examination as per the 2013 Regulations. The delay and conduct of the petitioner further disentitle him from relief.Issue 3: Validity of the learned Single Judge's order allowing writ petition and granting MandamusRelevant legal framework and precedents: The learned Single Judge's order was based on the interpretation that only the written examination needed to be cleared. The Supreme Court's principle that rules of a game or selection process cannot be changed after commencement is relevant. The principle of judicial restraint in substituting statutory interpretation with dictionary meanings is also applicable.Court's interpretation and reasoning: The High Court found that the Single Judge erred in substituting the statutory scheme with a dictionary-based interpretation. The Single Judge failed to consider the entire regulatory framework, notifications, and the petitioner's participation and failure in the viva-voce examination. The Court emphasized the need for a harmonious and contextual reading of the statute rather than a literal and isolated one.Key evidence and findings: The record of examination results, notifications, and the petitioner's participation history were considered. The Court noted the absence of any statutory provision allowing the petitioner to bypass the viva-voce after failing twice.Application of law to facts: The Court applied the principles of statutory interpretation and administrative fairness to conclude that the Single Judge's order was contrary to law and the statutory scheme.Treatment of competing arguments: The Court rejected the petitioner's arguments based on dictionary meanings and the changed Regulations of 2018, emphasizing the binding nature of the 2013 Regulations for the petitioner's attempts.Conclusion: The order of the learned Single Judge allowing the writ petition and directing issuance of the 'G' card license was set aside as erroneous.3. SIGNIFICANT HOLDINGS'The golden principle of interpretation of any Statute should be reading the text in the context it is made. While interpreting the other provisions of the Act should also be taken into account for a harmonious and meaningful interpretation.''Having knowingly participated in the process that the examination will be in two parts i.e., written and oral, the attempt of the writ petitioner to change the game rule by way of a writ petition cannot be entertained.''There cannot be any change in the game rule, after the commencement of the game.'The Court conclusively held that the term 'an examination' under Regulation 17(3) includes both the written and viva-voce components as a composite examination process. The petitioner, having failed the viva-voce twice, is not entitled to the 'G' card license without clearing the oral examination.The Court set aside the order of the learned Single Judge that had allowed the writ petition and directed issuance of the license based on clearing only the written examination. The Court emphasized adherence to the statutory scheme and rejected the petitioner's attempt to circumvent the prescribed examination process after participating in it.