D.V. BAKSHIversusUNION OF INDIA AND ORS.

A                                      D.V. BAKSHI
                                            v.
                          UNION OF INDIA AND ORS.

                                       JULY 14, 1993

B                    [AM. AHMADI ANDS. MOHAN, JJ.]

         Customs Act 1962-S.146(2)-Customs House Agents Licensing
  Regulations, 1984-Regulations 8 & 9--Regulations providing for 3 chances
  within 2 years for written, followed by oral, examination-Written examination
C cleared in 2nd/3rd attempt-Number of chances to clear oral test consequeant-
  ly reduced-Whether there should be corresponding increase in number of
  opp01tunities to clear oral test-Held, Scheme of the Regulations afford 3
  chances for passing the examination-Such increase in number of oppor-
  tunities to clear oral test will place premium on incompetency and inefficiency.
D         Customs Act/1962-S.146(2)-Customs House Agents Licensing
    Regulations, 1984-Regulation 9-50 per cent marks for oral examination, held
    justifie~Where oral test is a must'~ responsibility on examiners to maintain
                                  11




    proper records-Marks preferably to be under heads considered relevant to
    evaluate candidates-lVhere oral test a must and marks reserved excessive,
E even light, if dependable, proof in support of charge of bias may upset
    result-Arbitrariness--Constitution of India, Article 14.

          The petitioners secured temporary licences to operate as Customs
    House Agents. As they failed to pass the examination as required by
    Regulations 8 & 9 of the Customs Hosue Agents Licensing Regulations,
F   1984, the temporary licences were terminated and they were refused
    regular licences.

          The petitioners were required to clear the written examination, and
    thereafter the oral test, and secure 50 per cent marks in each. The
G    Regulations provided for examination to be conducted twice every year. It
    required that they pass in 3 chances within 2 years. The petitioners
    "contended that third chance for the oral test contemplated by the proviso
     to Regulation 8(1) would not be available to those who passed the written
    examination in the second or third attempt; and that the proviso should
    be so construed as to give them the chance. They also challenged the
H   allotment to 50 percent marks for the oral test as being excessive, allowing
                                        200
                         D.V. BAKSHI v. U.O.l.                          201

arbitrariness and nepotism.                                                   A
     The High Court rejected the first contention and observed that the
second contention was not seriously urged before it.

      Dismissing the petitions, this Court
                                                                              B
       HELD : 1. It is clear on a plain reading of Regulations 8 and 9 that
they offer more than three opportunties for passing the written test and
at last three opportunities for passing the oral test even if it is assumed
that the result of the first written test is announced after the first oral test.
If a candidate does not appear or does not pass the written test at the first
available opportunity, the number of opportunities to pass the oral test C
would shrink depending on at which attempt he has cleared the written
test. His inability to clear the written test at the earliest available oppor-
tunity cannot operate to his advantage by a corresponding increase in the
number of opportunities to clear the oral test. Such a construction of the
scheme of the Regulations would result in placing premium on incom- D
petency and inefficiency. (209-B-D]

      2. The factors to be assessed at the interview relate to temperament,
mangerial ability, communication ability, interpersonal skill, ~bility to
interact with colleagues and officials, general awareness in regard to
functional responsibilities and professional norms as well as norms of E
behaviour, etc. Therefore, the area of the enquiry in regard to actual
working is equally wide and important and there is justification for an oral
test prescribing 100 marks with 50 percent as passing marks. This is so
becanse the authorities have to assess the candidate's personality, his
temperament and his capacity to interact with others concerned with the
movement of highly valuable goods etc. (211-F-G]                             F
      Lila Dhar v. State of Rajasthan & Ors., [1982] 1 SCR 320 and Indian
Airlines Corporation v. Capt. K.C. Shukla, (1993] 1SCC17, applied.

    Ajay Hasia v. Khalid Mujib Sehravardi, (1981] 2 SCR 79 and Ashok
Kumar Yadav v. State o/Haryana, [~98514SCC417, distinguished.                 G
      Licence to act as a Custom       House Agent in a custom station
requires special knowledge relating to the clearance of conveyance and
goods through customs. While the written test may ascertain the
candidate's knowledge in regard to the laws, both substantive and proce-
dural, the oral test may help the examiner to assess the candidate's method H
    202                   SUPREME COURT REPORTS (1993) SUPP. 1 S.C.R.

A of working at the custom station. (210-A, BJ
          The performance of each applicant prior to the grant of the tem-
    porary licence and during the period he works as a temporary licence
    holder are subject matter of scrutiny and this can only he done effectively
    at the oral interview. The importance of the oral interview lies in the fact
B   that the examiners have an opportunity to assess his performance as a
    temporary licence holder and also seek his clarification In regard to
    certain matters which have come to their knowledge during the period he
    worked as temporary licence holder. (210-F-H]


c allottedNoathard and fast rule can be laid down about the marks to be
               the oral interview as much would depe1ur on the nature of
    performance expected for the resposibility to be handled by a candidate
    after his selection and entry into the establishment. The method of evalua-
    Uon would,\ therefore, vary and cannot be a matter of any strait-jacket
    formula. (212-C-D]
D
           3. The oral test being highly subjective, an allegation that it is suscep-
    tible of misuse is possible where it is a 'must' to qualify for entry.If an oral
    test is a 'must', a heavy responsibility is cast on the examiners to maintain
    a proper record of the oral test In respect of each candidate and marks must
E   preferably he assigned under each bead considered relevant to evaluate the
    candidate. In the matter of evaluation some degree of honest error must be
    countenanced. However, if there Is any allegation of nepotism or
    favouritism, the same can be checked with reference to the record so main-
    tained. Since the oral test is a highly subjective one and is susceptible to
    misuse, the degree of proof required for bringing home the charge of
F   nepotism or favouritism may he light. If the allegation is supported by some
    dependable proof, the Court will satisfy itself whether or not the charge is
    well-founded. In the present case, however, the allegation is of general
    nature and is not supported by even light proof to infer, even pri'!'.~ facie,
    that the result of the oral test was tainted because of bias. (213-C, F; 214-A]
G         4. The concerned authorities to decide if the circumstances permit
    one further chance to appear at the oral examination. (215-8]

        CIVIL APPELLATE JURISDICTION: SLP (C) Nos. 16137, 15527,
  16027, 16114, 16131, 16112, 16769, 52-72, 16684, 16789 of 1992, 357, 518-19
H of 1993 and W.P. (C) Nos. 9, 3, 24 of 1993.
                  D.V. BAKSHI v. U.0.1. [AHMADI, J.]                    203

     From the Judgment and Order dated 16.10.1992 of the Bombay High            A
Court in Writ Petition No. 1580 of 1992.

      G.L. Sanghi, Soli J. Sorabjee, S. Ganesh, A.V. Palli, Ms. Purnima
Bhat Kak and E.C. Agrawala for the Petitioners in SLPs. ·16137, 15527,
16027, 16114, 16131, 16112 and 16769/92.
                                                                                B
       P; ehidambram, KJ. John (For M/s Swarup John & Co.) for the
Petitioners in SLPs. 518-519/93,WJ'. 24 and SLPs. 52-57/93.

     V.R. Reddy, Adell. Solicitor General, P. Parmeswaran and C.V.S.
Rao for the UniOn of India in SLPs. 19136, 19927, 19114, 19191 and              C
16112/92.

      Joseph Vellapalli, P. Parmeswaran, VJ. Francis for the Union of
India in SLPs. 19760/92, 52"72/92, WPs. 3 & 9/93.

     A.K. Ganguli, (NP) Parmeswaran and K. Swamy for the Respondents            D
in SLPs. 16684, 16700/92, 357/90 and 518-19/93.

      HK Puri for the Petitioners in W .Ps. 3 and 9/93, SLPs. 16684 and
16789/92.

      Ms. Kapila Hingorani for the petitioners in SLP 357/93.                   E
      The Judgment of the C~urt was delivered by

      AHMADI, J. This batch pf cases arises questions relating to inter-
pretation of Regulations 8 & 9· of the Customs House Agents Licensing
Regulations, 1984 (hereinafter called 'the Regulations') made by the            F
Central Board of Excise & Custoµis under sub-section (2) of section 146
of the Customs Act, 1962. In the Writ Petitions filed under Article 32 of
the Constitution, the petitioners h~ve questioned the constitutional validity
of the aforesaid Regulations which =njOin the securing of at least 50 marks
out of 100 for the oral test on the ground that it gives arbitrary powers to G
the authorities to pick and choose \he candidates. This contention is based
on this Court's decision in Ajay Hasia etc. v. Khalid Mujib Sehravardi &
Ors., etc., [1981] 2 SCR 79. Before we state the factul background it may
be advantageous to read the relevant Regulations.

      Regulation 2 defines the various ellpressions used in the Regulations. H
    204                 . SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.

A The expression "Customs House Agent" mans a person licensed under the
  Regulations to act as agent for the transaction of any business relating to
  the entry or departure of conveyance or the import or export of goods at
  any customs station. Regulation 4 provides for inviting applicaitons for the
  grant of a licence to act as a Customs House Agent. It says that the
B Collector may invite applications in the month of January-every year for
  clearance work within the jurisdiction of the said collectorate. Regulation
  5 prescribes the form in which the applicaiton shall be made. It is clear
  from this Regulation.Aha! the application can be in the name of an in·
  dividual, a partnership firm or a company incorporated under the Com-
  panies Act. Regulation 6 lays down the conditions to be fulfilled by the
C applicant. One of the conditions to be satisfied is that the applicant has the
  experience of work relating to clearance of goods through the customs for
  a period of not less than one year and is financially viable. That brings us
  to Regulaitons 8 & 9 which we extract for ready reference:


D           "8. Grant of temporary licence. ·· Any applicant whose application
            is received with the last date specified in Reg.4 and who satisfied
            the requirements of Regs.5 and 6, shall be permitted to operate
            as Custom House Agent at the customs station for which the
            application is made initially for the period of one year against
            temporary licence granted by the Collector in this regard in Form
E           B:

            Provided that when evidence is produced to the Collector that the
            applicant has already availed of two chances for qualifying in the
F           written or oral examination prescribed in these regulations and
            would like to avail of the third chance as soon as the next examina-
            tion is held in terms of Reg.9 and that the applicant has been able
            to account for the minimum volume of work prescribed for such
            agents in the course of one year's working, the Collector may
            extend the aforesaid period of one year for which the temporary
G           licence has been granted by another six months or such further
            period not exceeding one year to enable the applicant to avail of
            the third chance for qualifying in the examination in terms of Reg.9.
            While granting such extension, the Collector of Customs shall
            satisfy himself that the requirements of Regs.lO(l)(a) and lO{l)(b)
H           had been fully met by the applicant.
                   D.V. BAKSHI v. U.O.I. [AHMADI,J.)                     205

        9. Examination of the applicant.-- (1) The holder of a temporary        A
        licence in the case of an individual and the person or persons who
        will be actually engaged in the work of clearance of goods through
        customs on behalf of the firm or company holding a temporary
        licence, as the case may be, shall be required to qualify in examina;
        tion at the earliest opportunity. Such person or persons shall-15e      B
        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
        on payment of prescribed examination fee of Rs.250 for each
        examination.
                                                                                c
        (2) The examination referred to in sub-regulation (1) shall include
        a written and oral examination and will be conducted twice every
        year. Each applicant would be permitted to avail of 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         D
        from the date of grant of temporary licence.

        (3) xxx xxx xxx

        (4) xxx xxx xxx".

Regulation 10 provides for the grant of a regular licence. Regulation 10(3)     E
says that the Collector may reject the application for the grant of a regular
licence to act as Customs House Agent if the holder of the temporary
licence fails to qualify in the examination in terms of Regulation 9, or the
holder of temporary licence on evaluation of his performance in terms of
Regulation 10 is not considered suitable due to any other reason to be          F
stated in the order passed by the Collector.

       It is crystal clear on a plain reading of the Regulations that any
individual firm or company can apply for a licence if the applicant fulfills
the conditions laid down in Regulation 6. Under Regulation 8 before a
regular licence is issued, a temporary licence may be issued to a person        G
who satisfies the requirements of Regulations 5 & 6 to operate as a Custom
House Agent initially for a period of one year. During this period of one
year he is required to qualify by passing both the written and oral examina-
tions within two chances but if he has failed to so do and is desirous of
availing of a third chance as so6n as the next examination is held, the         H
    206                  SUPREME COURT REPORTS (1993] SUPP. lS.C.R.

A Collector may extend the period by another six months or such period not
  exceeding one year to enable the applicant to avail of the additional chance
  to clear the examination. In other words, ordinarily the applicant must
  qualify. within th initial period of one year but if he fails to do so the
  Collector may extend the time by a maximum of one year to give the
B applicant an additional chance but in no case can the temporary licence
  be renewed beyond two years. The Regulations are silent on the question
  whether the applicant must first clear the.written test to qualify for the oral
  test. The High Court has, however, noted as a fact which has not been
  controverted before us that "the candidates are not allowed to appear for
  an oral examination unless they have passed the written examination''. Each
C examination is of 100 marks, the passing marks being 50. Now under
  Regulation 8 since a candidate is ordinarily required to qualify within two
  chances in a year if the examination is held twice in one year and if he
  cannot appear for the oral examination unless he has passed the written
  examination, it follows that he will have only one chance for the oral
D examination even if he clears the written examination at the first attempt
  unless the oral test is held after the result of the written test is announced.
  It is, therefore, obvious that in the first year under Regulation 8(1) the
  candidate may not have two chances to appear for the oral examination. If
  he does not pass the written examination at the first attempt immediately
  after he has secured a temporary licence he would not get a single chance
E to appear for the oral examination in the first year unless the oral test is
  held after the result of the written test within that year.Therefore, when
  the proviso to Regulation 8(1) talks of the third chance it may perhaps be
  true for those who passed the written test at the first available opportunity
  but not for those who failed to do so. It was, therefore, contended by the
F learned counsel for the petitioners that the third chance contemplated by
  the proviso would not be available to candidates who do not pass the
  written test at the first attempt in the year in which they are granted the
  temporary licence and two examinations are held in that very year. They,
  therefore, contend that the third chance contemplated by the proviso
  would not be available to those who pass the written examination at the
G second or the third attempt. For them, they contend, the proviso should be-
  so construed as to give them the third chance to appear at the oral
  examination also.

          The petitioners before us secured temporary licence on different
H   dates but as they failed to pass the examination as required by Regulations ·
                   D.V. BAKSHI v. U.O.l. [AHMADI, J.j                    '207

8 & 9, the temporary licences were terminated and they were refused a           A
 regular licence under Regulation 10 of the Regulations. A large number of
writ petitions were filed by those who had failed to pass the examination
and were refused a regular licence in the High Court of Bombay which
came to be disposed of by the judgment impugned before us dated October
16, 1992. A table was produced before the Division Bench which showed           B
the attempts made by each candidate to clear the written _;Iii well as oral
examinations for securing the regular licence, wherefrom it appeared that
certain candidates had passed the written examination and had appeared
in three oral examinations but had failed to clear the same. The High
Court, therefore, noticed that these candidates had actually availed of three
chances under Regulation 9 and had yet failed to clear the examination.         C
Such candidates, the High Court rightly observed, could have no grievance
insofar as sufficiency of chances for clearing the examination was con-
cerned. We were told at the Bar that such candidates have not challenged
the High Court's order before us. All the other candidates had passed the
written examination but had failed to clear the oral examination within the     D
maximum period of two years permitted by the Regulations. They had
cleared the written examinations either at the first, second or third attempt
but all of the them had failed to pass the oral examination within the outer
period of two years permitted by the Regulations. Nevertheless they were
allowed to appear for the oral examination even after the period of their
temporary licence expired but they failed to clear the examination and,         E
therefore, the High Court did not see any substance in their grievance also.
Before the High Court reliance was placed on a circular dated May 19,
1988 issued by the Central Board of Excise and Custom which granted an
additional chance to the candidates to pass the oral examination pending
amendment of Regulation 9. The rdevant part of the circular extracted by        F
the High Court reads as under:

        "...........the temporary licence holders who have passed in the
        written examination within two years from the date of grant of
        temporary licence, but who have not been able to qualify in the
        oral examination may be granted two more chances for passing the        G
        oral examintion. The first of these oral examinations will be held
        by the Collector of Customs concerned and the second by the DGJ,
        C&CE."


Pursuant to this circular a public notice was issued and temporary licence      H
    208                   SUPREME COURT REPORTS [1993) SUPP. 1 S.C.R.

A   holders who had passed the written examination within two years from the
    date of grant of temporary licence but who had failed to clear the oral
    examination were given two more chances for passing the same. Indeed it
    was made clear that the relaxation was confined to two additional chances
    for clearing the oral examination only. The High Court on a true construc-
    tion of the circular read with the public notice issued pursuant thereto
B   came to the conclusion that the relaxation was a one-time relaxation and
    this, observed the High Court, was clear from the subsequent circular of
    September 6, 1988 and the correspondence that had followed the issuance
    of the circular of May 19, 1988. The High Court came to the conclusion
    that the relaxation being a one-time relaxation to meet the special cir-
C   cumstance then obtaining in regard to the candidates covered under the
    circular, the petitioners could not avail of the benefit of the circular which
    had exhausted itself. Learned counsel for the petitioners did not attempt
    to contend before us that this. conclusion of the High Court was erroneous
    but submitted that a similar concession could be granted to candidates who
D   did not have the opportunity of three chances to pass the oral examination.

           From the Regulations it seems clear to us that the Collector is
    expected to invite applications for the grant of licence in the months of
    January every year. Such an application has to be made in the prescribed
    Form A. Regulation 6(a) suggests that the applicant must inter a/ia prove
E   to the satisfaction of the Collector that he has the experience of work
    relating to clearance of conveyance and .p;oods through the custom for a
    period of not less than one year. This meaili;-.[hat prior experience is a sine
    qua non. Regulation 8 provides that an applicant who has applied in
    response to an advertisement under Regulation 4 and who has satisfied the
F   requirements of Regulations 5 & 6 shall be permitted to operate as a
    custom house agent initially for a period of one year against a temporary
    licence granted in prescribed Form B. Now under Regulation 9, the holder
    of such a temporary licence must qualify in examination at the earliest
    opportunity. He must appear at the examination held immediately after the
    grant of the temporary licence. The said Regulation provides that he shall
G   be permitted to avail of three chances within the maximum period of two
    years from the date of issue of the temporary licence. A conjoint reading
    of the proviso to Regulation 8 and clauses (1) and (2) of Regulation 9
    leaves no room for doubt that an exmination shall be conducted twice every
    year. If a candidate has availed of two chances and has failed to clear the
H   examination he may request the Collector to permit him to avail of a third
                   D.V. BAKSHI v. U.O.l. [AHMADI,J.)                      209

chance by extending the duration of the temporary licence for a period not A
exceeding one year. If the period is extended by a year, as in the case of
the petitioners herein, he would have further two opportunities to clear the
examination. Thus he would have four opportunities to appear at the
examinations to be held over a period of two years. Even if we assume that
the candidate must pass the written examination before he appears in the
oral one, he would have in all four opportunities for clearing the written
                                                                                  B
test and three opportunties for clearing the oral test. If he does not appear
or does not pass the written test at the first available opportunity, the
number of opportunties to pass the oral test would shrink depending on at
which attempt he has cleared the written test. His inability to clear the
written test at the earliest available opportunity cannot operate to his          c
advantage by a corresponding increase in the number of opportunities to
clear the oral test. Such a construction of the scheme of the Regulations
would result in placing premium on incompetency and inefficiency. It is,
therefore, clear on a plain reading of Regulations 8 & 9 that they offer
more than three opportunities for passing the written test and at least three     D
opportunities for passing the oral test even if we assume that the result of
the first written test is announced after the first oral test. In any view of
the matter, it is, therefore, difficult to agree with the learned counsel for
the petitioners that the scheme of the Regulations do not in reality afford
three chances for passing the examination to qualify for the grant of a
regular licence.                                                                  E
      A feeble attempt was made to contend that Regulations 8 & 9 were
bad in law, in that, they afford an opportunity to the authorities to eliminate
certain candidates with a view to accommodating their favourites. This
submission is based on the ratio of the decision in Ajay Hasia (supra) and
Ashok Kumar Yadav & Ors. v. State of Haryana & Ors., [1985] 4 SCC 417,
                                                                                  F
wherein this court struck down the rule prescribing the high percentage of
marks for oral test as offending Article 14 of the Contitution. It is indeed
true that the exan1ination, in the instant case, con1prises a written paper of
100 marks and an oral test qf 100 marks, i.e., 200 marks in all. The passing
marks for each test is 50. Thus the oral test of 100 marks out of the             G
aggregate of 200 marks works out to 50 percent. Counsel for the
petitioners, therefore, contended that the marks reserved for clearing the
oral test were excessive thereby affording the examiners an opportunity to
arbitrarily eliminate candidates and acco1:11modate their favourites. Now
                                                                                  H
    210                   SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.

A licence to act as a Custom House Agent in a custom station requires speciaJ
  knowledge relating to the clearance of conveyance and goods through
  customs. This becomes immediately clear if we peruse the subjects
  enumerated in Regulation 9(3), for the examination. The candidate is
  exspected not only to have knowledge regarding the actual working at a
B custom station but also in regard to the provisions in the Customs Act and
  allied statutes mentioned in clause ( o) of the said Regulation. While the
  written test may ascertain the candidate's knowledge in regard to the laws,
  both substantive and procedural, the oral test may help the examiner to
  assess the candidate's method of working at the custom station. It must be
  realised that the agents have to deal with large sums of money and valuable
C articles. That is why one of the conditions required to be satisfied is in
  regard to the financial viability of the applicant. This is clear from Regula-
  tions 6{b) of the Regulations. Besides as pointed out earlier, before a
  candidate can apply for the grant of ~ licence, he must satisfy the Collector
  that he has experience of work relating to clearance of goods through the
D customs for a period of not less than one year which means that he must
  have worked as an apprentice to a licensed agent. The extent of knowledge
  which he must possess to qualify for the licence can be gathered from the
  various subjects enumerated in sub-clauses (a) to {p) of clause (3) of
  Regulations 9. Regulation 10 which relates to grant of regular licence
E stipulates that temporary licence holder must not only have qualified in the
  examination referred to in Regulation 9 but his performance must also be
                                   -----.. inter alia, to (a) quantity of value
  found to be satisfactory with reference,
  of cargo cleared by such licence holder conforming to norms as prescribed
  by the Collector and {b) absence of instances of delay either in the
F clearance of goods or in the payment of duty for any reason attributable
  to such licence holder or any complaint of misconduct including non-com-
  pliance of any of the obligations specified in Regulation 14. It would,
  therefore, appear that the performance of each applicant prior to the grant
  of the temporary licence and during the period he works as a temporary
  licence holder are subject matter of scrutiny and this can only be done
G effectively at the oral interview. The importance of the oral interview lies
  in the fact that the examiners have an opportunity to assess his perfor-
  mance as a temporary licence holder and also seek his clarification in
  regard to certain matter who might have come to their knowledge during
  the period he worked as a temporary licence holder. The Regulations have,
H
                   D.V. BAKSHI v. U.0.1. [AHMADI, J.]                   211

therefore, taken care to ensure that he has experience of at least one year A
 as an apprentice to an agent before he applies for the grant of licence. In
 order to assess his work he is given a temporary licence before he qualifies
by clearing the prescribed examination. The authorities have the oppor-
 tunity of assessing his knowledge regarding the laws and procedure through
the written examination. I( must be remembered that the custom station 'is
                                                                                B
a place of work. Observance of Regulations is absolutely essential as
movement of very valuable goods takes place and only sufficiently ex-
perienced hands can be permitted to act as agents. He must satisfy the
authorities that he has adequate knowledge regarding the laws and the
procedure connected with the clearance of goods and that he actually is in
a position to handle the work from the moment he is licensed. The C
assessment of his work during the period he holds the licence is, therefore,
of great relevance and that can be done at the oral test only. The assess-
ment has to be made on the basis of his performance as a temporary licence .
holder and his capacity to handle goods as an agent at the custom station.
The curriculum for the examination is, therefore, extensive, vide Regulation D
 9(3), to test his knowledge regarding the laws relating to the arrival, entry
 and clearance of goods at the custom station and his actual handling during
 the period he held the temporary licence. That is why Regulation 10 also
provides that besides passing the examination his work must be found to
be satisfactory with reference to the quantity or valuable of cargo cleared,
fulfillment of the prescribed nonl!s, absence of delay in the clearance of E
goods ~nd the payment of duty and avoidance of complaints in regard to
misconduct including non-compliance of the obligations set out in Regula-
tion 14. The factors to be assessed at the interview relate to his tempera-
ment, managerial ability, communication ability, interpersonal skills, ability
to interact with colleagues and officials, general awareness in regard to his F
functional responsibilities and professional norms as well as norms of
behaviour, etc. Therefore, the area of the enquiry in regard to actual
working is equally wide and important and there is justification for an oral
test prescribing 100 marks with 50 per cent as passing marks. This is so
because the authorities have to assess the, candidate's personality, his
temperament and his capacity to interact with others concerned with the G
movement of highly valuable goods, etc. In Lila Dhar v. State of Rajasthan
& Ors., (1982] 1 SCR 320, !his- Court while highlighting the need for an
interview test in certain sefections clarified that the test which may be valid
for admission to medical colleges maY. not bold good where it concerns
                                                                              H
    212                   SUPREME COURT REPORTS 11993] SUPP. l S.C.R.

A entry into public senices. The test evolved in the case of Ajay Hasia &
    Asliok Kumar Yadal', (supra) cannot, therefore, apply with equal force in
  the matter of grant of licence as a Custom House Agent. This has been
  further clarified in a recent decision in Indian Airlines Corporation v. Capt.
  K. C. Shukla & Ors., I1993 I l SCC 17. In that case this Court after referring
  to the decisions in Ajay Hasia, Asliok Kumar Yadav and Lila Dhar, (supra)
B observed that the distinction appears to have been drawn in interviews held
  for competitive examination or admission to educational institutions and
  selection for higher posts. In the case of educational institutions the dis-
  tinction has relevance for the reason that the candidates are young and
  their personality has yet to develop and, therefore, greater weight has to
C be given to their performance at the written examination rather at the oral
  examination. It is, therefore, clear that no hard and fast rule can be laid
  down in this behalf as much would depend on the nature of performance
  expected for the responsibility to be handled by a canadidate after his
  selection and entry into the establishment. The method of evaluation
D would, therefore, vary and cannot be a matter of any strait-jacket formula.
  The weight to be given to the performance at the interview would depend
  on the nature of duties, responsibilities and functions to be handled after
  selection. The duties, responsibilities and functions of a Customs House
  Agent are very special demanding not only a high degree of probity and
  integrity but also intellectual skills, adaptability, judgment and capacity to
E take prompt decisions in conformity with the law, ruits and regulations.
  The selection is, therefore, done through those conversant with the working
  of custom stations and the nature of an agent's job. We are, therefore, of
  the opinion that the submission based on the decisions in Ajay Hasia &
  Aslzok Kumar Yadav, (supra) cannot be accepted. It may also be mentioned
F that before the High Court the validity of Regulation 9 was not challenged.
  The High Court further observed as under:

             "Learned advocates who apeared before us on behalf of the
             petitioners cited certain judgments of the Supreme Court in order
             to suggest that undue importance was being given to the oral
G            examination and/or that allocation of 100 marks for an oral ex-
             amination is not proper. The petitioners have not raised any legal
             contentions or made submisSion in this connection in those peti-
             tions."

H It would, therefore, appear that the contention was not seriously urged
                   D.V. BAKSHI v. U.O.I. [AHMADI, J.J                      213

before the High Court nor was it seriously pressed before us but we have          A
thought it necessary to deal with the same as certain writ petitions have
been filed challenging the validity of the Regulations on this said count.
We, therefore, thought it proper to examine the same and put a lid thereon.

      The submission that the provision for clearing the oral test with
                                                                                  B
atleast 50 per cent marks is susceptible to misuse, namely, to eleminate
some and to accomtnodate others needs closer scrutiny. The submission is
general in nature and would be true in all such cases where passing of an
oral test is a 'must' to qualify for entry. The oral test being a highly
subjective one such an allegation may be easy to make. But as pointed out
earlier in certain situations a written ,examination a]one may not suffice to     c
assess the overall qualities of an individual and an oral test becomes
necessary to evaluate his performance from certain other angles to make
an integrated assessment of the candidate. As observed in Lila Dhar's, case
(supra) a written examination assesses the man's intellect and the interview
test the man himself and "the twain shall meet" for a proper selection. If        D
an oral test is, therefore, a 'must' as in this case, a heavy responsibility is
cast on the examiners lo maintain a proper record of the oral test in respect
of each candidate and marks must preferably be assigned under each head
considered relevant to evaluate the candidate. Once this care is taken the
element of subjectivity will be largely checked and the marks assigned
under different heads at the oral test will more or less faithfully reflect the   E
fitness of the candidate. In the matter of evaluation some degree of honest
error must be countenanced. However, if there is any allegation of
nepotism or favouritism, the same can be checked with reference to the
record so maintained. Since the oral test is a highly subjective one and is
susceptible to misuse, the degree of proof required for bringing home the         F
charge of nepotism or favouritism may be light. But that is not to say that
a mere allegation based on the fact that passing of an oral test is a 'must'
or that the marks reserved for the oral test are excessive will per se, without
anything more, set the. Court, probing into the records or the oral test. But
if the allegation is supported by some dependendable proof, the Court will
satisfy itself whether or not the charge is well-founded. That is why we have     G
said that a heavy responsibility lies on those examining the candidates at
the interview to ensure that proper record is maintained so that there is
no room for suspicion in the minds of the unsuccessful candidates that the
result of the oral test is tainted with bias for or against any candidate
because even light proof in support of the charge may upset the result of         H
    214                   SUPREMECOURTREPORTS [1993] SUPP. lS.C.R.

A the oral test as a whole or qua a candidate, as ~he case may be. In the
    present case, however, the allegation is of a gener~l nature and is not
    supported by even light proof to infer, even prima facie, that the result of
    the oral test was tainted because of bias. We, therefore, do not see any
    merit in the contention raised by the petitioners.

B       The petitioners fall in two groups, namely, (i) those who passed the
  written examination at the third oportunity but failed in the only available
  oral test and (ii) those who passed the written test at the second oppor-
  tunity but failed in the oral test at both the available opportunities. Can-
  didates belonging to both the groups, therefore, had as many as four
C opportu;.ities to clear the examination. Certain candidates failed to avail
  of the opportunity and they must thank themselves for the same. Those
  who failed to avail of the opportunity and those who were unsuccessful at
  ihe written test after availing of the opportunity fall in the same category
  because once the opportunity is-<1vailable it is for the candidate to avail of
  it and if he fails to _avail of it he cannot be heard to say that he did not
D have that opportunity. It will, therefore, be seen that all the petitioners in
  the present group of eases had fonr opportunties to clear the written as
  well as the oral test but they failed to do so. In the circumstances, we think
  the view taken by the High Court is unassailable. In this connection, the
  High Conrt's observation is as under:
E
             "All the other petitioners and persons working under them had the
             opportunity of appearing in written and oral examinations thrice
             during the period of snbsistence of their temporary licences. They
             have, however, not cleared the oral examination, althongh all have
             cleared their written examination - either at first, second or third
F            attempt.11




    This will show that the petitioners had the required opportunities to pass
    the examination written as well as oral but they failed to do so in the
    available opportunities.
G         A fervent appeal was made by the learned counsel for the petitioners
    that having regard to the fact that all the petitioners have passed the written
    examination and that some of them had only one opportunity to appear at
    the oral examination since they passed the written examination at the third
    attempt, one further chance to appear at the oral examination should be
H   accorded to them as was done in the past under the circular dated May
                   D.V. BAKSHI v. U.0.l. [AHMADI, J.]                     215

19, 1988. The would be a matter on which the concerned authorities would A
have to take a decision if the circumstances so permit but it would not be
proper for this Court to issue a mandate once it is found as a fact that the
petitioners had the requisite opportl!nities under the ·regulations for clear-
ing the written as well as oral tests. We may add by way of caution and to
avoid any litigation in future if the authorities decide to give one further B
opportunity to the petitioners to clear the oral test it will he by way of grace
only and will not confer any right whatsoever on the petitioners and if the
authorities insist on any undertaking to 6e filed by the candidates permitted
to avail of that extra chance in the present proceedings that they will accept
the result as final and conclusive and will not make it a ground for further
litigation, they will be well within their rights to so insist. If such undertake C
ing are filed in the present proceedings, the Registry will accept the same.

      For the above reasons, we see no merit in these petitions and dismiss
the same with costs. All interim orders in force will lapse forthwith.

U.R.                                                     Petitions dismissed.   D