As you may aware, different “G” card holder’s selection method is followed by Customs formations across India. For example Noida, Jodhpur, Mundra, Kandla and Kolkata Customs locations, a written examination alone is conducted for selection of candidates from "H" card holder to "G" card holder. But in other many locations, apart from written exam, oral exam also conducted to select “G” card holders Which is now struck down by Madurai Bench of Madras High Court.
Providing below full style Judgement for the benefit of Customs
Brokers;
MADRAS HIGH COURT –
MADURAI BENCH
SHABEER
AHMED SAYEED VERSUS PR. COMMR. OF CUS. (PREVENTIVE) , TIRUCHIRAPALLI
Writ
Petition (MD) No. 14425 of 2019 and W.M.P. (MD) Nos. 10860-10861 of 2019
Dated:
- 11 March 2020
Judgment / Order
C.
V. Karthikeyan , J.
For the Appellant : R.S. Sivaram
For the Respondents : B. Vijay
Karthikeyan, Senior Standing Counsel
ORDER
C. V. Karthikeyan, J.
1. The writ petition has been filed in the nature of
Certiorarified Mandamus to call for the records relating to the impugned
notification regarding examination issued by the respondent viz., the Principal
Commissioner, Office of the Commissioner of Customs (Preventive), No. 1,
Williams Road, Cantonment, Tiruchirapalli, with respect to screening and
selection of candidates from "H" Card to "G" Card and for
permission to hold "G" Card license.
2. This notice was issued on 30-1-2019, in Notice No. 1 of 2019.
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-Cus. (N.T.),
dated 14-5-2018, 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.
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, Jodhpur, 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;
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. However, in
the impugned Notification, the Trichy Customs Authorities have not only imposed
a condition to pass written examination but also oral examination. 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
respondents, in which it has been stated that neither the writ petitioner nor
any other person had approached the office for clarification regarding oral
examination. It was stated that based on the Public Notice issued in this
regard, 41 eligible candidates appeared for the written examination on 4-4-2019
and the results were declared on 9-4-2019. Out of 41 candidates who appeared
for the written examination, 22 candidates passed in the written examination.
The petitioner also passed in the written examination. Oral examination was
conducted on 30-4-2019. The result of the oral examination was declared on
6-5-2019. Only 2 candidates had passed.
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.
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. 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. The conducting of the examination on
30-1-2019 and the Public Notice No. 1 of 2019, wherein both the written
examination and the oral examination were stipulated, has to be struck down and
accordingly struck down. 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 on or before 31-3-2020, if he
is otherwise eligible. Accordingly, the writ petition is allowed. No costs.
Consequently, the connected Miscellaneous Petitions are closed.
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