2017 (3) TMI 590

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....rtue of this writ petition, challenge is laid to the order dated 09.09.2015, passed by the second respondent. 4. In a sense, the entire stand of the respondents, and the facts necessary for dealing with the instant petition, in a nutshell, are encapsulated in the impugned order. The impugned order, being brief, is culled out hereunder, to the extent relevant, for the sake of convenience : "Madam, Sub : Request for appearance in CHALR Rule 8 Oral Exam - RollNo.044/2011 -reg. xxxx Please refer to your representation dated 26.08.2015 on the subject cited. In this connection, please recall that theresult of the written examination underRegulation 8 of CHALR, 2004, held on23.09.2011, was declared on 17.02.2012, in which you qualified (Roll No.044/2011). Please also recall that Oral Examination was subsequently held on 29.03.2012 to 31.03.2012 and theresult of which was declared on 30.04.2012, inwhich you did not qualify. It is intimated that you were again calledfor the Oral Examination held on 05.04.2013 &06.04.2013 by Circular dated 28.03.2013(copy enclosed), in which you did not appear. Further, as per Regulation 6(5) of CBLR,2013,"An applicant ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... circular, or, was the petitioner to be intimated individually, that is, via a separate notice. 7. Quite clearly, the petitioner was given intimation by a circular dated 28.03.2013. In this circumstance, one would, therefore, be required to examine the relevant regulations, which were in force, at the time, when, the written examination was taken by the petitioner and how, if at all, they were impacted by the new regulations, which were brought into play by the respondents. 8. At the time, when, the petitioner took the written examination, the regulations, which were in force, were, concededly, the 2004 Regulations. The 2004 Regulations were superseded by the 2013 Regulations. The 2013 Regulations were notified on 21.06.2013. 9. Therefore, before, I proceed further, it may be relevant to note, what is stated in the preface of the '2013 Regulations'. A quick perusal of the preface set out in the 2013 Regulations would demonstrate that while the said Regulations supersede the 2004 Regulations, it saves things which are done or, omitted to be done before such supersession : "In exercise of the powers conferred by sub-section (2) of Section 146 of the Customs Act, 1....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....f chances, and if he fails to do, he shall betreated as having failed in the examination. (4) An applicant shall be allowed amaximum period of seven years within whichhe shall pass both the written and oralexaminations. No further extension of timeshall be granted. (5) Notwithstanding anything contained in sub-regulation (4), any person who holds a temporary license granted under regulation 8 of the Customs House Agents Licensing Regulations, 1984, shall be allowed to pass the examination within a period of two years from the date of commencement of these regulations." (emphasis is mine) 12. As it would be evident, upon a bare reading of clause (1) of Regulation 8, that an applicant/examinee, (i.e., the petitioner in this case), was required to appear for the written as well as the oral examination conducted by the Director General of Inspection at specified centres and on specified dates, for which, intimation had to be sent "individually", in advance, prior to the date of the examination. 12.1. Furthermore, clause (2) of Regulation 8, required the respondents to call the applicant/examinee, (i.e., the petitioner herein) for an oral examination, if declared successf....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....al application within which he shallpass both written and oral examinations and nofurther extension shall be granted." (emphasis is mine) 14. A perusal of Regulation 6 of the 2013 Regulations, would show that in substance, the two Regulations are similar. 14.1. The difference, if any, to my mind, is cosmetic. The 2013 Regulations provide that written examination will be held in the month of January each year and the result would be declared in May of that year. 14.2. The applicant/examinee, who clears the written examination is to be called for an oral examination in the month of June each year, and result, is to be declared in the month of July each year. [See Regulation 6(2) and 6(3).] 14.3. Regulation 6(5) gives a window of two (2) years to the applicant/examinee to clear the oral examination. In this sense, Regulation 6(5) of the 2013 Regulations is, in effect, similar to Regulation 8(3) of the 2004 Regulations. 15. The only difference in the stands taken by the parties, before me, is that, while the petitioner says individual intimation had to be given qua oral examination, the respondents take the stand that a circular would suffice. 15.1. In this connection....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....he said clause has been split into two clauses, i.e., Clause (2) and (3) of Regulation 6. 17. In order to understand the purport and the meaning of the expressions used in the 2004 and 2013 Regulations, one has to look at the contextual framework, in which, they are placed. Often, a draftman uses synonymous terms and/or expressions without intending to change their purpose or meaning. Both, 2004 and 2013 Regulations provide for a written examination, followed by an oral examination for applicants/examinees to obtain CHA Licenses. While clearing of a written examination at one sitting is made mandatory, a little leeway is given for the oral examination. Thus, the purpose is achieved by giving additional chances to take the oral examination. Therefore, this object, which is, sought to be achieved by those who framed the Regulations, cannot be allowed to be defeated by permitting notice, being given via a circular, which may or may not be seen by an applicant/examinee. 17.1. The use of the expression "called for" in the 2013 Regulations, when, looked at contextually and in a holistic manner, can only mean giving of an individual intimation. The reason being that the expression "....