(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. Rule. Mr.P.S.Champaneri, learned Solicitor General of India waives service of notice of Rule on behalf of the respondents. With the consent of the learned counsel for the parties, we have taken up the writ petition for final disposal today itself.
2. We have heard Mr.Kunal Nanavati, holding brief of Nanavati Associates appearing for the petitioner and Mr.P.S.Champaneri, learned Assistant Solicitor General of India appearing for the respondents.
3. The learned counsel for the parties agree that this writ petition is covered by the Division Bench decision of this Court in Special Civil Application No.6151 of 2010 in Ravindra K.Joshi vs. Union of India through Under Secretary decided on 1.10.2010 wherein the Division Bench in paragraphs 51 to 53 has held as under:
"51. Moreover, it may be pertinent to note that the Board has issued instructions on 31.10.2007 as well as 8.4.2010, calling upon the Commissionerates to clear up backlog of pending requests by various applicants who had qualified as per CHALR, 2004 for issue of licences which have been held up by various Customs Commissionerates within a month and send a compliance report to the Board. Thus, the instructions issued by the Board are on the face of it contrary to the provisions of Regulation 4 of the Regulations which vests in the Commissioner the discretion as to when to invite applications and the number of applications to be invited. In the circular dated 8.4.2010, the Board has expressed the view that no restriction should be placed on the number of Customs House Agents operating in the Custom Houses and the market forces should govern the number of proficient and qualified persons required to carry out the job of Customs House Agent commensurate with the volume of import/export cargo. In the circular dated 31.10.2007, the Board has instructed the Commissionerates that irrespective of the norms prescribed by the Board under CHALR, 1984, the concerned Commissioners of Customs shall issue Customs House Agent licence to all those applicants who had passed the Regulation 8 examination conducted under CHALR, 2004, subject to their fulfillment of the requisite conditions as mentioned in CHALR 2004. Thus, it is apparent that the respondents are blowing hot and cold at the same time. When it comes to dealing with the applications made by the petitioners despite the Commissioners not having invited applications, it has been contended on behalf of the respondents that in the light of the provisions of Regulation 4, licences can be issued only as and when the concerned Commissioner invites applications in respect of the same even if the applicants may be qualified in all respects. Whereas, as regards the persons who have qualified under CHALR, 2004, despite the fact that Regulation 4 of the CHALR, 2004 also prescribes for applications being invited by the concerned Commissioner and is in pari materia to the provisions of Regulation 4 of CHALR, 1984, the Board has thought it fit to override the said regulation and has directed the Commissioners of Customs to clear the backlog of pending applications by various applicants who had qualified as per CHALR, 2004.
52. One finds it difficult to comprehend as to how there were applicants under CHALR, 2004 when the concerned Commissionerate had not invited any applications in this regard. In fact, as can be seen from the instructions dated 31.10.2004, not only has the Board directed the Commissioners to clear the backlog of pending requests of various applicants, who had qualified as per CHALR 2004, for issue of licences, within a month but also to send a compliance report to the Board. Thus, the treatment meted out to the petitioners herein is on the face of it discriminatory inasmuch as upon applications made by the petitioners, they are told that the same would be subject to concerned Commissioner inviting applications under Regulation 4, whereas in respect of those applicants who have qualified as per the new regulations, general directions have been issued to Commissionerates to grant licences to them within a period of one month. As pointed out on behalf of the petitioners two persons have already been granted licences in Jamnagar after the coming into force of CHALR, 2004 and several persons in other States have also been granted licences under the new regime. In the circumstances, the action of the respondents is clearly arbitrary and discriminatory and violative of the petitioners’ fundamental rights under Article 14 of the Constitution of India and as such cannot be sustained. "
4. For the foregoing reasons, the petition succeed and are, accordingly, allowed. The Customs House Agents Licensing (Amendment) Regulations, 2010 issued vide Notification No.30/2010 dated 8.4.2010, insofar as the same impose a condition upon those persons who had passed the examination conducted under Regulation 9 of the Customs House Agents Licensing Regulations, 1984 and have not been granted licence under the said Regulations, to clear the examination in additional subjects to be deemed to have passed the examination referred to in Regulation 8 for the purpose of Customs House Agents Licensing Regulations 2004, is hereby quashed and set aside. Consequently, the petitioner is entitled to be considered for grant of Customs House Agent licences without having to clear the examination in the additional subjects. In the light of the instructions issued by the Board in respect of the application made by the applicant who had qualified as per Customs House Agents Licensing Regulations 2004, the respondent No.3 is directed to dispose of the applications/pending application of the petitioner for grant of licences treating the petitioner on a par with the applicants who have qualified under CHALR, 2004, subject to their fulfilling other requirements under the Regulations. Rule is made absolute accordingly with no order as to costs.
(V.M.SAHAI,J) (N.V.ANJARIA,J) ***vcdarji