TaxTMI 
TaxTMI 
2005 (9) TMI 109
X X X X Extracts X X X X
X X X X Extracts X X X X
....her one year) as Customs House Agent (called-'CHA') at ICD Moradabad under 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 : ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the rejoinder affidavit reads : That the contents of para 19 of the affidavit 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 becaus....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ude a written and oral examination and will be conducted twice every year. Each applicant 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dertake the exercise of attempting the question paper which was never made available to them. Mere 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 ....