1/9 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Sushil Kumar Kothari V/s Insurance Regulatory & Development Authority through its Dy. Director S.B. CIVIL WRIT PETITION NO. 1069/2005 DATE OF ORDER : October 26, 2007. PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Anil Bhandari, for the petitioner. Mr. Santosh Choudhary for Mr Anil Bachhawant, for respondent. BY THE COURT REPORTABLE 1. Heard the learned counsel for the parties. 2. This writ petition has been filed by the petitioner challenging therein the impugned communication dated 26.7.2004 (Annex.13) issued by the Insurance Regulatory and Development Authority, (IRDA for short) a public authority constituted under the provisions of the Insurance Regulatory and Development Authority Act, 1999 (hereinafter referred to as the Act). 3. The petitioner submits that he is a highly qualified 2/9 person and has passed the examination of Chartered Accountants in the year 1983 and is already holding a licence issued to him under the said Act on 28.2.97 for a period of 5 years by the Controller of Insurance to work as a Surveyor in the insurance industry. The said licence has been being produced by the petitioner as Annexure-2. The petitioner has further submitted that the said licence was further renewed and now has been extended upto the year 2012 by the said authority. The petitioner applied to the respondents to be assigned the category under the Regulations Insurance Surveyors and Loss Assessors (Licensing, Professional Requirement and Code of Conduct) Regulations, 2000 (hereinafter referred to as the Regulations of 2000) in the category `A', `B' or `C' as the case may be. His application Annex.6 was forwarded to the said prescribed authority for such categorisation. The same was responded to by Annex.13, the impugned communication of the respondent and instead of granting categorisation, it was insisted upon the petitioner to first undergo the practical training as required by Regulation 16 of the said Regulations of 2000 and enroll for the same in the prescribed form No.III. 4. The petitioner being aggrieved by the said communication has approached this Court with a prayer that he being already a licence holder and working as a Surveyor cannot be required to 3/9 undergo the practical training de-novo merely for the purpose of categorisation. 5. The respondents have filed reply and have contested this writ petition. It will be worthwhile to refer to the relevant Regulations 2000 which came into existence after the petitioner was already given the licence to work as a Surveyor vide Annex.2. Regulation 3 contained in Chapter II of Regulations 2000 contains the provisions relating to application form and matters relating to grant of licence required under clause (d) and thereafter to require the applicant to undergo a period of training not exceeding 12 months as contained in Chapter VII of these Regulations. Regulation 3(6) of these Regulations spells that a licence issued before the commencement of these regulations by the Controller of Insurance or his authorised representative shall be deemed to have been issued in accordance with these Regulations. A perusal of regulation 16 contained in Chapter VII providing for practical training indicates that an applicant seeking a licence to act as a surveyor and loss assessor shall undergo a period of practical training for not less than 12 months for a surveyor and loss assessor as specified therein. 6. Mr. Anil Bhandari, learned counsel for the petitioner has argued that since the petitioner was already holding a licence to 4/9 work as an insurance surveyor right from the year 1997 even before the Regulations of 2000 came into being, and has worked like that throughout when he applied for categorisation, he could not be called upon to undergo a training once again as if he was an applicant seeking fresh licence. He, therefore, submits that impugned communication Annexure-13 insisting upon him to first enroll himself for practical training is illegal and the said requirement cannot be construed as a condition precedent in his case. 7. On the other hand, learned counsel for the respondents has urged that the regulation for practical training would apply even for categorisation under Regulation 16. He has however not been able to point out any specific provision in the Regulations of 2000 which requires a person to undergo practical training under Regulation 16, even though he has held licence as an insurance surveyor even prior to coming into force of the Regulations of 2000. The next contention of the learned counsel for the respondent is that in his application against Item no.9 (training attended and experience), writing of `NIL' is an admission of the petitioner, and therefore, he could not be categorised as such. This contention is of no avail to the respondent because if the petitioner has contended that he is not liable to undergo practical training and if such contention is 5/9 accepted by this Court mere writing of “NIL” against these columns in the application would not cause any detriment to the cause of the petitioner. The said contention is accordingly rejected. He, therefore, submits that the applicant was rightly required to undergo the training for categorisation. He has relied upon the judgment of the learned Single Judge of Madras High Court in P. Soundara Rajan Vs. Insurance Regulatory and Development Authority & Anr., (W.P. No. 22725/2001 decided on 22.11.2001). It would be apposite to reproduce Para 3 and 4 from the said judgment: “3. By the impugned proceedings dated 20.8.2001, the respondents, in consideration of the recommendations of the Surveyor and Loss Assessors committee resorted to introduce a system for categorisation and the parameters to be taken into consideration are in relation to the academic qualifications. Insurance Institute of India and Institute of Surveyor and Loss Assessors qualifications, training, highest assessment in professional career, number of surveys in the last three years and quantum of loss assessed. Based upon the said recommendations, the eligibility norms for grant of licence to the Surveyors were re-fixed. The grievance of the petitioner is that the said re-fixation of higher qualification is without notice to the petitioner and therefore, the petitioner is constrained to file the present writ petition. 4. I am unable to agree with the contentions of the learned counsel for the petitioner. Since the petitioner is only a licensee, he is not vested with any right to have an opportunity for the minimum categorisation, based upon the qualifications for the applicant to seek for licence. For the interest of the students community, the respondents are allowed to 6/9 have higher qualifications. Such an administrative matter, regarding fixation of norms cannot be interfered by this Court sitting under Article 226 of the Constitution of India.” 8. The other citation of Delhi High Court in Mr. Ashit Kapur Vs. Union of India and Ors. (C.W. 5733/2003 decided on 12.12.2003) is distinguishable, because there the controversy was relating to category “A” surveyors, who were not allowed to operate in financial limits are specified for category “B” surveyors. The Court held that : “7. Thus, it is apparent that the circular itself permits category 'A' surveyors / loss assessors to be eligible for jobs falling within the financial limits of category 'B' (excluding the area of operation of category 'C' surveyors). This fact is further strengthened by the revised circular of 25.04.2003 which clearly stipulates that category “C” surveyors are to operate upto a limit of Rs.1 lac. Category “B's” upper limit is Rs.2 lacs whereas category “A” surveyors would be permitted to undertake surveyors in respect of any claim over Rs.1 lac. This means that apart from category “C”, Category “A” surveyors would be able to operate in the areas in which category “B” surveyors are permitted to operate. However, beyond Rs.2 lacs, it is only Category 'A' surveyors who shall operate exclusively. 8. In this view of the matter, the position is crystal clear and as such no grievance of the category “A” surveyors survives. The respondent Insurance companies being respondents 3 to 6 shall permit the petitioners to carry on their work as surveyors within the financial limits of category “A” and also category “B” but, only 7/9 over and above the limit of category “C” surveyors in terms of the circulars.” This judgment is not applicable to the facts of the present case. 9. Having heard the learned counsel and upon perusal of the relevant provisions of the Act and Regulations, this Court is of the opinion that the writ petition filed by the petitioner deserves to be allowed. The requirement of practical training under Regulation 16 of the Regulations of 2000 ex-facie are applicable only to those applicants who are seeking licence to act as a Surveyors or Loss Assessors. No separate provision has been brought to the notice of the Court which requires similar practical training or training under Regulation 16 to be undergone as a condition precedent for categorisation of licencee acting as insurance Surveyor. The petitioner is apparently a highly qualified person not only holding the degree of Chartered Accountant but is also working as Insurance Surveyor under the licence granted by the Controller of Insurance since 1997. There is no material brought on record by the respondents to establish that despite holding a licence, the petitioner was not actually working as a surveyor / Loss Assessor and therefore, did not have any practical experience in this field. The very purpose of 8/9 practical training before issuing a licence as stipulated in Regulation 16 is to give orientation to such applicants for the work of surveyor and loss assessor. A person who is already working in the said field for over 10 years cannot be presumed to have no experience in the field. 10. The judgment relied on by the learned counsel for the respondents, with great respects is not applicable to the facts of the present case. The learned Single Judge of Madras High Court while going into the question of prescribing of higher qualification for categorisation under the Regulations held that since the system of categorisation and the parameters to be taken into consideration in relation to the academic qualifications prescribed by Insurance Institute of India and Surveyor/ Loss Assessor's qualifications, training undergone, experience as a surveyor and number of surveys in the last three years, quantum of loss etc. cannot be interfered with and merely because the petitioner is a licencee, he is not vested with any right to have an opportunity for the minimum categorisation. With great respects, I am unable to agree. Unless the statutory requirement of practical training is specifically provided for in the Regulations of 2000, even for those who are already working as Surveyors/ Loss Assessors under the licence granted to them, the same cannot be insisted upon as a condition precedent for 9/9 categorisation. As already pointed out, no contradictory material has been brought on record by the respondents to establish that despite holding a licence as insurance surveyor and loss assessor, the petitioner does not have practical experience in the said field. Therefore, the right to be considered for grant of categorisation to the petitioner is definitely there with the petitioner and requirement of practical training under Regulation 16 cannot be insisted upon in the case of the petitioner. 11. Accordingly, this writ petition is allowed and Annexure 13 dated 26.07.2004 is quashed to the extent of requiring the petitioner to enroll in Form No.III for training under Regulation 16. The respondent No.1 of course, is free to otherwise consider the case of the petitioner for categorisation in either categories “A” “B” or “C” as the case may be on the basis of relevant information and evidence furnished by him in his application Annexure-6. The same may be done expeditiously but not later than a period of three months from today. 12. With these observations, the writ petition is allowed. No order as to costs. (Dr. VINEET KOTHARI)J. Gandhi/ ITEM NO.10.