Pawan Kumar vs. Union Of INDIA & Ors

Facts

Three writ petitions were filed by Rajesh Kumar, Pawan Kumar, and Ms. Priyanka Rai seeking directions to the respondents to issue them licenses as Custom Brokers under the Customs Brokers Licensing Regulations, 2013 (CBLR, 2013). The petitioners had cleared the written examination for the Custom Broker license. They appeared for the oral examination, initially under CBLR, 2013, where they did not secure the passing marks of 50. Subsequently, the CBLR, 2018 was introduced, which provided for a second attempt at the oral examination. The petitioners appeared for this second attempt, securing marks above 50 but below 60. They contend that the cut-off marks were arbitrarily increased to 60 through an internal communication dated May 3, 2019, after their admit cards for the second oral examination were issued on April 30, 2019, and that they were not notified of this change.

Held

The Court held that the writ petitions are allowed. The respondents are directed to issue licenses to the petitioners as Custom Brokers. The Court found that the selection process for the petitioners had commenced under CBLR, 2013, which stipulated 50 passing marks. It was conceded by the respondents that under CBLR, 2013, a candidate was entitled to two attempts within two years. The Court reasoned that the second attempt for the oral examination could not be on different parameters than those under which the petitioners were initially eligible. The Court noted that the communication dated May 3, 2019, which prescribed 60% qualifying marks, was not sent to the petitioners, and the call letters for the oral examination were issued on April 30, 2019, before this communication. The Court found it impermissible to change the criteria midway without putting the petitioners on notice, especially since they had achieved the initial passing marks of 50. The judgment relied upon by the respondents was distinguished as being factually different. The Court found that the petitioners having qualified the written examination on the basis of 50 marks, they had to be assessed at 50 marks in the oral examination.

Key Issues

1. Whether the petitioners are entitled to be assessed for the oral examination for a Custom Broker license based on the passing marks of 50, as per the initial public notice and CBLR, 2013, or if the revised cut-off of 60 marks, communicated via an internal letter dated May 3, 2019, is applicable, despite the selection process commencing under CBLR, 2013 and the petitioners not being notified of the revised criteria before their second oral examination attempt. The petitioners argued that the selection process began under CBLR, 2013, which stipulated 50 passing marks for both written and oral examinations. They contended that the second attempt for the oral examination, for which they were eligible, should be conducted on the same parameters. They asserted that the increase in cut-off marks to 60 was communicated via an internal letter dated May 3, 2019, which was not addressed to them and was issued after their admit cards for the second oral examination were sent on April 30, 2019. They argued that changing the criteria midway without notice is impermissible, especially since they secured more than 50 marks. The respondents argued, referencing Regulation 6(4) and 6(5) of CBLR, 2013, that the examination process involved written and oral stages, and failure to clear the oral examination within two years meant failing the entire examination. They relied on the judgment in Om Prakash Shukla v. Akhilesh Kumar Shukla.