Page 123 - ELT_3rd_1st May 2020_Vol 372_Part

2020 ] MANISH RISHISHWAR v. UNION OF INDIA 345

well recognised principle of law that a vested right, which inheres in a party,
could not have been taken away. Indeed, the Courts in several judgments have
protected the vested rights which accrue in favour of a party, say under a legisla-
tion or by way of a promise given by the other party. However, we are complete-
ly perplexed as to how the petitioner is claiming that a vested right has accrued
in his favour. The contention of the petitioner is completely misplaced, in our
understanding. It seems that the petitioner comprehends that merely because
under the 2013 regulations, the petitioner was entitled to seven attempts to clear
the examination for getting custom broker license, he has a vested right to claim
such number of attempts, and the respondents could not have brought in the
2018 regulations which reduced the number of attempts only to six. Similarly, the
petitioner is under a misconception that merely because under the 2013 regula-
tions, he is entitled to two attempts at interview, the same could not have been
cut down. His submission that since under the 2018 regulations, a candidate has
to clear the interview in a single attempt, the same violates his fundamental
rights enshrined under Articles 14, 19(1)(g) and 21 of the Constitution of India is
completely untenable. Petitioner cannot question the curb put by the respond-
ents in respect of the number of attempts for clearing the interview. In our con-
sidered opinion, the arguments of the petitioner are inherently flawed. The peti-
tioner has concededly not cleared the examination whilst the 2013 regulations
were in force. He did make five attempts, but was unsuccessful. Therefore, in
that sense of the matter, no right whatsoever, much less vested right can be said
to have accrued in favour of the petitioner under the said regulations. Thereafter,
the 2018 regulations were framed, superseding the earlier regulations and peti-
tioner made yet another attempt to clear the examinations for the 6th time.
Though the petitioner qualified the same, however, he could not clear the oral
interview. Now, since the 2018 regulations do not afford multiple opportunities
to the candidates to clear the oral interview, the petitioner who has failed in this
endeavour, has filed the present petition questioning the limiting of chances of
clearing the oral interview under the 2018 regulations. In our view, since the peti-
tioner did not clear the examinations whilst the 2013 regulations were in opera-
tion, the same cannot be the basis of impugning the fresh regulations, even if the
same superseded certain clauses of the 2013 regulations, that enabled the peti-
tioner better opportunities. The principle of law being pressed into service that a
vested right cannot be taken away, is not attracted in the present case. Merely
because 2013 regulations provided for seven opportunities to clear the written
examination, and two for oral examination, does not mean that such regulations
have to remain effective in perpetuity, and that the respondents cannot introduce
fresh regulations. If we were to construe that a right would accrue or vest in fa-
vour of a person merely because a particular rule, regulation or a legal provision
enables him/her to avail of an opportunity as provided, and that the same can-
not be modified or altered, it would amount to holding that no rule or regulation
can be superseded or modified under any circumstances. The respondents are at
freedom to bring a change in the regulations, if the circumstances and the need
so arises, and the same has to be done in accordance with law. The provisions of
such regulations cannot be declared to be ultra vires only for the reason that cer-
tain clauses which existed prior thereto have been modified. The respondents
have the discretion to restrict the number of attempts for clearing the written as
well as oral examination. Law is dynamic and the Central Board of Excise & Cus-
toms is empowered by sub-section (2) of Section 146 of the Customs Act, 1962 to
EXCISE LAW TIMES  1st May 2020  123