Madras High Court
M.Muniasamy vs The Assistant Commissioner Of Customs on 23 June, 2021
Author: J.Nisha Banu
Bench: J.Nisha Banu
W.P(MD)Nos.18201 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.06.2021
CORAM
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
W.P(MD)Nos.18201 of 2020
M.Muniasamy ... Petitioner
Vs.
The Assistant Commissioner of Customs,
(CBLR) Section,
Custom House,
Tuticorin. ... Respondent
PRAYER: Petition filed under Article 226 of the Constitution of
India, praying for issuance of Writ of Mandamus, to direct the
respondent to consider the petitioner's representation, dated
02.07.2020, seeking 'G' Card Licence to the petitioner under
Regulation 17(3) of Customs Brokers Licensing Regulations, 2013
and to pass necessary orders, in the light of the order passed by
this Court in W.P(MD)No.14425 of 2019, dated 11.03.2020, within a
time stipulated by this Court.
For Petitioner : Mr.N.Anandakumar
For Respondent : Mr.R.Aravindan
1
https://www.mhc.tn.gov.in/judis/
W.P(MD)Nos.18201 of 2020
ORDER
The writ petition has been filed in the nature of Writ of Mandamus, to direct the respondent to consider the petitioner's representation, dated 02.07.2020, seeking 'G' Card Licence to the petitioner under Regulation 17(3) of Customs Brokers Licensing Regulations, 2013 and to pass necessary orders, in the light of the order passed by this Court in W.P(MD)No.14425 of 2019, dated 11.03.2020, within a time stipulated by this Court.
2. The case of the petitioner is that the petitioner is a “H” Card license holder. He is a Customs Broker. The minimum educational qualification required is 10 + 2. With the basis of “H” Card license, a photo identity card is given to him and he can transact work at the Customs Station. He must produce the identity card whenever demanded by any Officer in the Customs Station. The Customs Brokers Licensing Regulations 2018 issued a Notification No.41/2018 - Customs (N.T.) dated 14.05.2018, specifying that a Customs Broker is a person licensed under the regulations to act as an agent on behalf of the importer or an exporter for purposes of transaction of any business relating to the entry or departure of conveyances or the import or export of goods at any Customs Station including audit.
2 https://www.mhc.tn.gov.in/judis/ W.P(MD)Nos.18201 of 2020
3. There are three kinds of card holders. “F” card holder, “G” card holder and “H” card holder. On qualifying of a written examination as stipulated under the Regulations referred above, he can be appointed as a “G” card holder. As a “G” card holder he will have the permission of signing the documents.
4. The learned counsel for the petitioner had drawn the attention of this Court to the manner in which “H” card license holders are selected to become “G” card license holder in other port authorities across the country. The illustrations of Noida, Jodpur, Mundra, Kandla and Kolkata had been drawn to this Court. It is seen that in all those stations, the Regulations stipulated that a written examination alone is conducted for selection of candidates from “H” card holder to “G” card holder. Those Regulations have been stipulated by those Customs Authorities on the basis of the Customs Brokers Licensing Regulations 2018. Under these Regulations “G” and “H” card holders are defined as follows:
(h) “G card holder” means a person who has passed the examination referred to in regulation 13 and has been issued a photo identity card in Form G;
(I) “H card holder” means a person who has not passed the examination referred to in regulation 13 and has been issued a photo identity card in Form H;3
https://www.mhc.tn.gov.in/judis/ W.P(MD)Nos.18201 of 2020
5. Regulation 13 again referred to relates to Engagement or Employment of persons.
6. Sub Clause 5 of Clause 13 relates to the manner in which a “H” card holder is selected. It is seen that he must pass a written examination. Regulation 13 relates to “G” card holder. The petitioner had passed his written examination. He did not qualify in the oral examination. Conducting an oral examination is beyond the scope of the authorities. The writ petition has been filed to quash the said conducting of oral examination.
7. A counter affidavit has been filed on behalf of the respondent, in which it has been stated that the petitioner has passed the G card written examination conducted as per Regulation 17(3) of CBLR, 2013 and failed in the oral examination. Only to ascertain the adequacy of knowledge, the written as well oral examination pattern was being followed like F-Card examination (Regulation 6 of CBLR, 2013 and 2018), till the date of implementation of CBLR 2018 wherein only written examination has been prescribed. Sofar, the respondent office has not conducted any G card examination under Regulations of CBLR, 4 https://www.mhc.tn.gov.in/judis/ W.P(MD)Nos.18201 of 2020 2018. Since the petitioner himself admitted that he did not qualify the above said G card examination, he was not considered for issuance of 'G' Card.
8. 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. The reasons are obvious. During oral examination, an element of bias can always takes place. To eliminate such bias, it has been consistently held that the marks allotted for oral examination should be less than 25% of the total marks.
5 https://www.mhc.tn.gov.in/judis/ W.P(MD)Nos.18201 of 2020
9. 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.
10. In view of the above facts and circumstances of the case, a direction is issued to the respondent to consider the petitioner's representation, dated 02.07.2020, seeking 'G' Card Licence to the petitioner, under Regulation 17(3) of Customs Brokers Licensing Regulations, 2013 and to pass necessary orders, in the light of the order passed by this Court in W.P(MD)No.14425 of 2019, dated 11.03.2020, within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, the connected Miscellaneous Petitions are closed.
11. With the above direction, the Writ Petition is disposed of. No costs.
23.06.2021 Index:Yes/No Internet:Yes/No MPK 6 https://www.mhc.tn.gov.in/judis/ W.P(MD)Nos.18201 of 2020 Note:(i) In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
To The Assistant Commissioner of Customs, (CBLR) Section, Custom House, Tuticorin.
7 https://www.mhc.tn.gov.in/judis/ W.P(MD)Nos.18201 of 2020 J.NISHA BANU, J.
MPK W.P(MD)Nos.18201 of 2020 23.06.2021 8 https://www.mhc.tn.gov.in/judis/