Madras High Court
The Secretary vs P.Ponnuswamy .. First on 18 April, 2018
Author: R. Subbiah
Bench: R.Subbiah
W.A.Nos.660 and 665 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on: 29.07.2019
Judgment Delivered on : 26.09.2019
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBBIAH
and
THE HONOURABLE MR.JUSTICE C.SARAVANAN
Writ Appeal Nos.660 and 665 of 2019
and
C.M.P. Nos. 5416, 5417 and 5398 of 2019
The Secretary,
Tamil Nadu Public Service Commission,
Frazer Bridge Road,
V.O.C. Nagar,
Chennai-600 003. .. Appellant in both the Writ Appeals
Versus
1. P.Ponnuswamy .. First Respondent in W.A.No.660 of 2019
1. V.Manoharan .. First Respondent in W.A.No.665 of 2019
2. The Transport Commissioner,
Ezhilagam,
Chennai-600 005. .. Second Respondent in both Appeals
Writ Appeal Nos.660 and 665 of 2019 filed under Clause 15 of the Letters
Patent against the order dated 18.04.2018 passed by the learned Single Judge in
W.P.Nos .23956 and 26769 of 2011 respectively on the file of this Court.
For appellant : Mr. V. Ayyadurai, Senior Counsel
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http://www.judis.nic.in
W.A.Nos.660 and 665 of 2019
assisted by Dr. M. Devendran
Standing Counsel in both Appeals
For respondents : Mr. R. Dhanaram
for Mr. G. Ethirajulu for R-1 in both Appeals
Mr. V. Shanmuga Sundar
Special Government Pleader for R2 in both Appeals
COMMON JUDGMENT
R. SUBBIAH, J These Writ Appeals have been filed by the Tamil Nadu Public Service Commission (TNPSC) as against the common order dated 18.04.2018 passed by the learned Single Judge in W.P.Nos.23956 and 26769 of 2011, allowing the said Writ Petitions.
2. The first respondent herein, namely P.Ponnuswamy has filed W.P.No.23956 of 2011 praying to issue a Writ of Certiorarified Mandamus, to call for the records relating to the order made in Memorandum No.424/OTD- B4/2008, dated 20.09.2011, passed by the second respondent and quash the same and consequently direct the respondents in the Writ Petition to appoint him (Registration No.00102205) as Motor Vehicle Inspector, Grade-II in terms of the provisional Selection List, dated 13.10.2010.
3. Similar is the prayer in W.P.No.26769 of 2011 filed by the first respondent herein, namely V.Manoharan, to call for the records relating to the 2/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 order dated 13.10.2010 and the consequential order made in Memorandum No.424/OTD-B4/2008, dated 20.09.2011, passed by the second respondent and quash the same so far it relates to withholding and non-appointment of the petitioner's name (Registration No.00101097) and consequently direct the respondents in the Writ Petition to appoint the petitioner as Motor Vehicle Inspector, Grade-II.
4. The facts which are necessary for disposal of these Writ Appeals are as follows:
(i) The TNPSC has issued a Notification in Advertisement No.187, dated 24.02.2009 calling for applications for the vacant post of Motor Vehicles Inspector Grade-II (Direct Recruitment) for the year 2006-2008. The last date for receipt of the application was 31.03.2009. The number of vacancies to be filled up is 65. Thereafter, a supplement Notification in Advertisement No.191, dated 28.02.2009 was issued by the TNPSC increasing the vacancies by 11, thereby, total vacancies to be filled up has been enhanced to 76 posts from 65 posts notified earlier.
(ii) In Clause 4(B)(iv) of the said Notification, the qualifications required to be possessed were notified, which includes holding of a Driving Licence 3/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 authorising the applicant to drive Motor Cycle, Heavy Goods Vehicles and Heavy Passenger Motor Vehicles.
(iii) The writ petitioners made applications on 30.03.2009 (in W.P.No.23956 of 2011) and 26.03.2009 (in W.P.No.26769 of 2011) enclosing all the relevant Certificates including the Driving Licence. Thereafter, the written examination was conducted on 24.05.2009 and both the writ petitioners had passed in the said examination. Pursuant to the same, the writ petitioners were called for oral interview on 08.10.2010 (in W.P.No.26769 of 2011) and 07.10.2010 (in W.P.No.23956 of 2011). The writ petitioners have also participated in the said interview. Subsequently, the TNPSC had published the results on 13.10.2010, selecting the writ petitioners provisionally for the post of Motor Vehicle Inspector Grade-II.
(iv) The writ petitioners were under the bona-fide impression that they will be receiving the appointment order as well as posting order after completion of all formalities. However, to the shock and surprise, all the other provisionally selected candidates were appointed except the writ petitioners. Hence, the writ petitioners approached the appellant/TNPSC to know the stage of their appointment. The writ petitioners were given evasive reply by the subordinates of the TNPSC stating that the writ petitioners would be receiving the appointment orders. Since the writ petitioners have not received the appointment 4/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 orders, they have made individual representations on 26.08.2011 to the respondents in the Writ Petitions seeking immediate order of appointment to the post of Motor Vehicles Inspector Grade-II. The said representations were rejected by the TNPSC in their office proceedings in Memorandum No.424/OTD- B4/2008, dated 20.09.2011 by cancelling the provisional selection on the ground that on the date of the Notification, the writ petitioners had no "valid" Driving Licence. Aggrieved by the said proceedings, the Writ Petitions were filed by the writ petitioners.
5.(i) Before the Writ Court, the appellant-TNPSC repudiated the claim made by the petitioners by filing detailed counter affidavit stating that they had invited the applications from eligible candidates for direct recruitment to fill up 76 vacancies for the post of Motor Vehicles Inspector Grade-II in the Tamil Nadu Transport Subordinate Service, 2006-2008. In paragraph 4(B)(iv) of the Notification, dated 24.02.2009, under the heading "Educational Qualification", it has been stated as follows:
"4. QUALIFICATION:
(A) ... ...
(B) EDUCATIONAL QUALIFICATION:
.. ..
AND 5/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019
(iv) Must hold a Driving Licence Authorising him to Drive Motor Cycle, Heavy Goods Vehicles and Heavy Passenger Motor Vehicles.
(ii) It is the further stand of the appellant/TNPSC in the counter that pursuant to the above Notification, the writ petitioners had applied to the TNPSC for selection for appointment by direct recruitment to the post of Motor Vehicles Inspector Grade-II. The application of the writ petitioner in W.P.No.23956 of 2011 was admitted provisionally pending the verification of his licence to drive the Heavy Transport Vehicle. In the case of the writ petitioner in W.P.No.26769 of 2011, based on the marks obtained by him in the written examination as well as oral test taken together and having regard to the rule of reservation of appointments, he reached his turn for selection to the said post, however, his results were with-held pending receipt of the report from the Transport Commissioner regarding the verification of his Driving Licence.
(iii) In the counter/additional counter affidavit, inter-alia, it is also stated by the appellant-TNPSC that the Transport Commissioner had subsequently forwarded to the TNPSC the verification report received from the Regional Transport Officer, which states that the Driving Licences held by the writ petitioners were not "valid" on the date of the Notification, i.e. 24.02.2009.
Hence, the TNPSC had rejected the applications of the writ petitioners, thereby 6/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 the provisional selection of the writ petitioners, was cancelled. When the petitioners did not comply with the conditions stipulated in the notification, they cannot be selected and appointed to the post and the TNPSC prayed for dismissal of the writ petitions.
6. After hearing the submissions made on either side, the learned Single Judge, by order dated 18.04.2018, which is impugned in these appeals, allowed both the Writ Petitions by placing reliance on the earlier order passed by this Court in W.P.Nos.6214 and 6668 of 2015, dated 31.03.2015 in respect of the same issue relating to the Notification issued by the TNPSC for the relevant year pertaining to the very same post of Motor Vehicle Inspector-Grade-II. The learned Single Judge therefore held that the Notification mandates that the candidate should hold a driving licence authorising him to drive Motor Cycle, Heavy Goods Vehicles and Heavy Passenger Vehicles, but there is no requirement that the candidate must hold a 'valid' driving licence'. It was further held that the word 'valid' is not specifically indicated in the Notification issued by the TNPSC, but such a requirement was insisted only in the order of rejection passed by the TNPSC. The learned Single Judge also recorded the fact that the TNPSC, aggrieved by the earlier order dated 31.03.2015 in W.P.Nos.6214 and 6668 of 2015 passed by this Court, has filed Writ Appeals in W.A.Nos.909 and 7/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 1051 of 2015 and the appeals were dismissed by judgment dated 18.07.2016. Hence, by relying upon the earlier order dated 31.03.2015 passed in W.P.Nos.6214 and 6668 of 2015, the learned Single Judge held that on the date of the impugned Notification, the writ petitioners were in possession of Driving Licence and hence, the contention of the TNPSC that on the date of the Notification, the writ petitioners were not in possession of the "valid" Driving Licence, cannot be countenanced. That apart, the learned Single Judge, by referring to Column No.9 of the Notification issued by the TNPSC, captioned as Enclosures, held that in Clause No.9 alone, one of the enclosures to be submitted along with the application, is mentioned as "valid" Driving Licence and in the instant case, on the date of submission of the applications, the applications were submitted by the writ petitioners by enclosing the Driving Licence issued to them and therefore, they had fulfilled all the required conditions, and thus their candidature cannot, in any event, be rejected on that ground. The learned Single Judge therefore, quashed the orders challenged in the Writ Petitions, dated 13.10.2010 and 20.09.2011 and directed the appellant-TNPSC to forward the selection of the writ petitioners to the second respondent/Transport Commissioner, who in turn was directed to take further action to appoint the writ petitioners as Motor Vehicles Inspectors Grade-II in any of the available vacancies. In case there are no vacancies, the Transport Commissioner was 8/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 directed to create supernumerary post after obtaining necessary direction from the competent authority and accommodate the writ petitioners and issue appointment orders to them. The appellant/TNPSC and the second respondent/Transport Commissioner were also directed to implement the direction of the learned Single Judge, within a period of eight weeks from the date of receipt of a copy of the order passed in the Writ Petitions. Aggrieved by the above order passed by the learned Single Judge, the present Writ Appeals have been filed by the TNPSC.
7. The learned Senior Counsel appearing for the appellant/TNPSC would contend that Clause 4(B)(iv) of the Notification clearly spells out that the applicant must hold a Driving Licence authorising him to drive Motor Cycle, Heavy Goods Vehicles and Heavy Passenger Vehicles as on the date of Notification namely 24.02.2019. Admittedly, as on the date of the Notification, the writ petitioners did not possess a "valid" Driving Licence authorising them to drive the Motor Cycles, Heavy Goods Vehicles and Heavy Passenger Vehicles. So far as the writ petitioner-Ponnusamy is concerned, his earlier licence got expired on 26.12.2006 and so far as the writ petitioner-Manoharan is concerned, his earlier licence got expired on 12.10.2007. The writ petitioners have renewed the Driving Licence only on 05.03.2009 (Ponnusamy) and 04.03.2009 (Manoharan) viz., after the notification and submitted their applications on 30.03.2009 9/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 (Ponnusamy) and 23.03.2009 (Manoharan). Therefore, the writ petitioners did not possess "valid" Driving Licence on the date of the Notification issued by the TNPSC. Since the writ petitioners did not possess the essential qualification being in possession of a "valid" Driving Licence on the date of the Notification, their claim was not considered by the TNPSC.
8. The learned Senior Counsel appearing for the appellant/TNPSC further submitted that the writ petitioners' candidature and provisional selection were cancelled based on indisputable fact of not having possessed "valid" Driving Licence authorising them to drive the specified categories of vehicles as on the date of the Notification, which is evident from the report of the Regional Transport Officer, Chennai (South), dated 12.02.2011. In this regard, the learned Senior Counsel appearing for the appellant/TNPSC invited the attention of this Court to Rule 12(b)(iv) of Part-II of the Tamil Nadu State and Subordinate Services Rules, which clearly says that notwithstanding anything contained in the Special Rules, such a person also possesses the qualifications including experiences prescribed for a post, on the date of Notification of the vacancy, which would show that the date of the vacancy is the relevant date for possessing the eligibility/ qualifications including the experience in terms of Rule 12(b)(iv), namely in the instant case, 24.02.2009 and 28.02.2009 and not the dates on which the applications of the writ petitioners were received. 10/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019
9. According to the learned Senior Counsel appearing for the appellant, in this case, admittedly, both the writ petitioners did not possess a "valid" Driving Licence on the date of the Notification issued by the TNPSC and the earlier Driving Licence got expired on the date of the notification. The writ petitioners have subsequently filed renewal applications and got the driving licence renewed. In this regard, the learned Senior Counsel appearing for the appellant/TNPSC invited the attention of this Court to a judgment of the Supreme Court in the case of Bhupinderpal Singh Vs. State of Punjab, reported in 2000 (5) SCC 262 wherein, the Apex Court had confirmed the view of the High Court, which held that the cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment, is the date appointed by the relevant Service Rules and if there be no cut-off date appointed by the Rules, then such date is as may be appointed for the purpose in the advertisement calling for applications, and that if there be no such date appointed, then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. In this case, there is specific requirement contemplated in Rule 12(b)(iv) of Part II of the Tamil Nadu State and Subordinate Services Rules, which specifies the date of Notification as the cut-off date for possessing Driving Licence. Since the said Rule prescribes the date of the vacancy as the relevant 11/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 date for possessing the qualification, by virtue of the said Rules, the writ petitioners' applications were rightly rejected.
10. The learned Senior Counsel appearing for the appellant/TNPSC also relied on a decision of the Supreme Court in the case of State of Haryana Vs. Vijay Singh, reported in 2012 (8) SCC 633, wherein the Apex Court held that the cases in which recruitment and conditions of service, including seniority are regulated by the law enacted by the Parliament or the State Legislature or the Rules framed under Article 309 of the Constitution of India, the general proposition laid down in any judgment cannot be applied, de-hors, the relevant statutory provisions and dispute relating to seniority had to be resolved keeping in view such provisions.
11. The learned Senior Counsel appearing for the appellant-TNPSC further submitted that it is settled principle of law that the cut-off date as prescribed in the statutory Rules, would have primacy and only in cases of absence of the statute, the last date of application or the date mentioned in the relevant Notification, would be the cut-off date.
12. The learned Senior Counsel appearing for the appellant/TNPSC also submitted that a bare reading of Section 15 of the Motor Vehicles Act, 1988, which deals with the renewal of Driving Licence, would make it clear that the proviso to Section 15 governs the point in issue. According to the learned Senior 12/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 Counsel, Section 15 provides for three types of renewal of Driving Licence and the consequences thereof, i.e. (i) the person applied for renewal of Driving Licence within 30 days from the date of its expiry, (ii) the Driving Licence will be renewed from the date of expiry without any interruption, and (iii) as a result, such a person is deemed to be a holder of valid Driving Licence even for the interregnum period of date of expiry of 30 days because of the retrospective validation of such licence. The learned Senior Counsel appearing for the appellant/TNPSC further submitted that the person whose licence was renewed after 30 days, but before 5 years from the date of expiry of the licence, falls under the second category stated above and is governed by the proviso to Section 15 of the Motor Vehicles Act, which provides the consequences thereof that the said Driving Licence will be effective only from the date of renewal. As a corollary, such person will not be deemed to be a holder of Driving Licence from the date of its expiry to the date of actual renewal that took place. In such cases, the said person is debarred to drive Motor Vehicles, nor can he be termed as holder of licence, which is a relevant criteria for the purpose of this case, since the writ petitioners have renewed their Driving Licence after the date of Notification.
13. The learned Senior Counsel appearing for the appellant/TNPSC further proceeded to contend that the purpose of prescribing possession of 13/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 Driving Licence as stipulated in the Notification in question, is for public employment to the post of the Motor Vehicles Inspector Grade-II. Hence, the writ petitioners cannot be considered in law as holders of valid Driving Licence on the date of Notification. The other category of renewal applied beyond the expiry of 5 years or the applicant attaining the age of 40 years, there shall be insistence of Medical Certificate and it would be subjected for testing, etc., which is not relevant for the purpose of this case.
14. The learned Senior Counsel appearing for the appellant/TNPSC further put-forth his submission that the judgment of the co-ordinate Bench rendered in Writ Appeal in W.A.Nos.909 and 1051 of 2015, dated 18.07.2016, has no binding force, since in the said Writ Appeals, the ratio-decidendi made by the Supreme Court and the authoritative decision of the Apex Court, were not followed. Thus, the eligibility has to be considered only based on the date of Notification issued by the appellant/TNPSC and not on the date of submission of the applications as per the Notification issued by the appellant/TNPSC. Thus, the learned Senior Counsel appearing for the appellant/TNPSC prayed for setting aside the impugned order passed by the learned Single Judge, by considering the Rule position, thereby allow the Writ Appeals.
15. Countering the above submissions, the learned counsel appearing for the first respondent/writ petitioners submitted that Clause 4(B)(iv) of the 14/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 impugned Notification simply says that, "must hold a Driving Licence Authorising him to Drive Motor Cycle, Heavy Goods Vehicles and Heavy Passenger Motor Vehicle". But this Clause does not contain any reference to "valid" Driving Licence to be possessed on the date of the impugned Notification. In fact, in a similar/identical issue in W.P.Nos.6214 and 6668 of 2015, by order dated 31.03.2015, this Court has come to the conclusion that mere possession of Driving Licence is sufficient on the date of the Notification, in view of the words deployed in the Notification in Clause 4, which was also confirmed by the Division Bench in the Writ Appeals in W.A.Nos.909 and 1051 of 2015, by judgment dated 18.07.2016. The learned counsel for the first respondent/writ petitioners further submitted that, interestingly, in Clause 9 of the Notification, there is a list of Enclosures to be sent along with the application, which contains relevant conditions mentioned therein. Clause 9 shows that on the date of submission of the application form alone, if the candidate possesses a "valid" Driving Licence, that would suffice. Therefore, the learned Single Judge, by considering the said earlier order passed by this Court in respect of the very same issue, which was confirmed in the Writ Appeal by the Division Bench, as mentioned supra, has rightly allowed the present Writ Petitions. Such a well-considered order passed by the learned Single Judge needs no interference in these Writ Appeals, and thus, he prayed for dismissing the Writ Appeals.
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16. On all the above aspects of the matter, this Court also heard the submissions made by the learned Special Government Pleader appearing for the second respondent.
17. Keeping in mind the above submissions made by the learned counsel appearing for the parties, we have perused the materials available on record.
18. Considering the entire gamut of the submissions made on either side, the following questions fall for consideration in these Writ Appeals:
(i) Whether the words deployed in Clause 4(B)(iv) of the notification dated 24.02.2009, namely, "must hold a Driving Licence Authorising him to Drive Motor Cycle, Heavy Goods Vehicles and Heavy Passenger Motor Vehicles", are with reference to the Driving Licence "simpliciter" or it is to be read as 'valid' Driving Licence.
(ii) Whether as per Rule 12(b)(iv) of Part-II of the Tamil Nadu State and Subordinate Services Rule, a person must hold a 'valid' Driving Licence on the date of the Notification of the TNPSC or on the date of submission of the application form, in response to the Notification.
19. If these two questions are examined and decided, it would suffice to dispose of these Writ Appeals.
20. In order to decide question No.(i) above, we are of the opinion that it would be appropriate to extract Section 15 of the Motor Vehicles Act, as follows: 16/39
http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 Section 15. Renewal of driving licences.--(1) Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the date of its expiry :
Provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal :
Provided further that where the application is for the renewal of a licence to drive a transport vehicle or where in any other case the applicant has attained the age of forty years, the same shall be accompanied by a medical certificate in the same form and in the same manner as is referred to in sub-section (3) of section 8, and the provisions of sub-section (4) of section 8 shall, so far as may be, apply in relation to every such case as they apply in relation to a learner’s licence.
(2) An application for the renewal of a driving licence shall be made in such form and accompanied by such documents as may be prescribed by the Central Government.
(3) Where the application for the renewal of a driving licence is made previous to, or not more than thirty days after the date of its expiry, the fee payable for such renewal shall be such as may be prescribed by the Central Government in this behalf.
(4) Where the application for the renewal of a driving licence is made more than thirty days after the date of its expiry, the fee payable for such renewal shall be such amount as may be prescribed by the Central government :
Provided that the fee referred to in sub-section (3) may be accepted by the licensing authority in respect of an application for the renewal of a driving licence made under this sub-section if it is satisfied that the applicant was prevented by good and 17/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 sufficient cause from applying within the time specified in sub-section (3) :
Provided further that if the application is made more than five years after the driving licence has ceased to be effective, the licensing authority may refuse to renew the driving licence, unless the applicant undergoes and passes to its satisfaction the test of competence to drive referred to in sub-section (3) of section 9.
(5) Where the application for renewal has been rejected, the fee paid shall be refunded to such extent and in such manner as may be prescribed by the Central Government.
(6) Where the authority renewing the driving licence is not the authority which issued the driving licence it shall intimate the fact of renewal to the authority which issued the driving licence."
21. On a reading of Section 15 of the Motor Vehicles Act, it is clear that any licensing authority may, on application made to it, renew a Driving Licence issued under the provisions of the said Act, with effect from the date of its expiry. In case where the application for renewal of a licence is made within thirty days after the date of its expiry, the Driving Licence shall be renewed with effect from the date of its expiry. As a result of such renewal, the applicant is deemed to be a holder of "valid Driving Licence" even during the interregnum period of date of expiry of 30 days, because of the retrospective validation of such licence. Further, the person whose licence was renewed after 30 days, but before 5 years from the date of expiry of the licence, is governed by proviso to 18/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 Section 15, which provides the consequence thereof that the said Driving Licence will be effective only from the date of renewal. As a corollary, such person will not be deemed to be a holder of Driving Licence from the date of its expiry to the date of actual renewal that took place. In such cases, the person would be debarred to drive the Motor Vehicle in the interregnum period, nor can he be termed as a holder of licence. In the present case, the writ petitioners (first respondent) have renewed their Driving Licence on 05.03.2009 and 04.03.2009. Of course, their licence got expired even on 26.12.2006 and 12.10.2007 respectively. However, the renewal of the driving licence by the petitioners and the consequent validation of their licence with effect from 05.03.2009 and 04.03.2009, falls within the scope and ambit of proviso to Section 15 mentioned supra and their licence validated from the date of their renewal on 05.03.2009 and 04.03.2009 respectively. Thus, after getting their licence validated on 05.03.2009 and 04.03.2009, they have sent their applications to the TNPSC on 30.03.2009 and 23.03.2009 respectively. Therefore, only on the date of submission of application, the writ petitioners got a valid driving licence to drive Motor cycle, heavy Goods vehicles and Heavy Passenger Vehicles, as notified by the TNPSC.
22. The learned Senior Counsel appearing for the appellant relied on the decision of the Supreme Court in the case of Ram Babu Tiwari Vs. United India 19/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 Insurance Company Limited, reported in 2008 (8) SCC 165. In that case, an accident had taken place on 27.01.1996 and on that date, the driver did not possess a valid driving licence and therefore, the Insurance Company had raised a defence that since the driver did not possess a "valid" driving licence, the Insurance Company cannot be mulcted with any liability. On appreciation of the said defence, the Honourable Supreme Court held that the driver was in possession of a driving licence for one year and for about three years thereafter, he did not renew it and his licence was renewed only on 07.02.1996. Therefore, as per provision to Section 15 of the Motor Vehicles Act, the licence was renewed and/or validated from the date of renewal namely 07.02.1996 with prospective effect and that the driver did not possess a "valid" driving licence as on the date of accident, namely on 27.01.1996. But in the present case on hand, the licence issued to the writ petitioners got expired on 26.12.2006 and 12.10.2007 respectively. The Notification was issued by the TNPSC on 24.02.2009 / 28.02.2009 calling for applications to the post of Motor Vehicle Inspector, Grade- II (direct recruitment). Admittedly, on the date of Notification of the TNPSC, the licence issued in favour of the writ petitioners was not renewed. However, before submitting the applications for appointment to the post of Motor Vehicle Inspector, Grade-II, the writ petitioners renewed the driving licence on 05.03.2009 and 04.03.2009 respectively. According to the learned Senior 20/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 Counsel appearing for the appellant, since the application for renewal was submitted by the petitioners after 30 days and within five years, on renewal, the licence issued to the petitioners will be effective only from the date of renewal. Therefore, on the date of notification issued by the TNPSC, the writ petitioners did not possess a valid licence. However, according to the counsel for the writ petitioners/respondents, the word "valid" is not mentioned in the Notification issued by the TNPSC and therefore, mere possession of a driving licence as on the date of Notification itself is sufficient. However, at the time of submission of their applications, the writ petitioners were in possession of a "valid" driving licence, which is in accordance with Clause 9 of the Notification issued by the TNPSC.
23. As contended by the learned counsel for the writ petitioners/respondents, on perusal of the Notification dated 24.02.2009/28.02.2009 issued by the TNPSC, in Clause 4(B)(iv), the word 'valid' is not mentioned and it only says "must hold a driving licence authorising him to drive Motor Cycle, Heavy Goods Vehicle, Heavy Passenger vehicle". But we are of the opinion that the words employed in Clause 4(B)(iv) of the Notification namely "must hold a Driving Licence Authorising him to Drive Motor Cycle, Heavy Goods Vehicles and Heavy Passenger Motor Vehicles" are only referable to 'valid' Driving Licence. The fact remains that without a "valid" driving licence, one cannot drive 21/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 the types of vehicle mentioned in clause 4(B)(iv) of the Notification. Moreover, the proviso to Section 15 of The Motor Vehicles Act clearly stipulates that if application seeking renewal is submitted beyond thirty days but within five years, such licence will be effective only from the date of renewal. Therefore, as on the date of the Notification, with the expired licence, the writ petitioners are not entitled to drive any vehicle and the entitlement of the writ petitioners to drive the vehicles will arise only after getting the licence renewed. Therefore, we are of the view that the Driving Licence mentioned in Clause 4(B)(iv) of the notification issued by the TNPSC, relates only to possession of a valid driving licence authorising the first respondent in these Writ Appeals to drive Motor Cycle, Heavy Goods Vehicle and Heavy Passenger Vehicle and it means that it is a valid driving licence. Question (i) is answered in the above terms.
24. The next question that falls for consideration is as to whether such a "valid" Driving Licence has to be possessed by a candidate on the date of Notification of the TNPSC or on the date of submission of the application form by the candidate in response to the Notification. In this regard, it is the submission of the learned Senior Counsel appearing for the appellant/TNPSC that in the absence of any specific date mentioned in the impugned Notification for possession of Driving Licence, the date of Notification has to be taken into 22/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 consideration for holding a "Valid" Driving Licence as per Rule 12(b)(iv) of Part-II of the Tamil Nadu State and Subordinate Services Rules.
25. Per contra, according to the learned counsel appearing for the first respondent/writ petitioners, as per Clause 9 of the Notification, enclosures are to be sent along with the application. In the said Clause 9, one of the enclosures mentioned is that the candidates should also send the copy of the "valid" Driving Licence authorising him/her to drive Motor Cycle, Heavy Good Vehicles and Heavy Passengers Motor Vehicles. Therefore, according to the learned counsel appearing for the first respondent/writ petitioners, the writ petitioners should possess "valid" Driving Licence on the date of forwarding the application form and not on the date of the impugned Notification. In view of the above submission and the counter-submissions made by the learned counsel appearing for the respective parties, for effective discussion, it would be appropriate to look into the relevant Rules of the Tamil Nadu State and Subordinate Services Rules, framed under Article 309 of the Constitution of India, and the said Rules came into effect from 01.01.1955.
26. The said Tamil Nadu State and Subordinate Services Rules define the expression "General Rules" as follows:-
2.9 "General Rules" shall mean the rules in Part II of these rules.23/39
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27. The said Rules also defines the expression "Special Rules" in Rule 2 (19):-
(19) “Special Rules” shall mean the rules in part III applicable to each service or class of service;
28. Rule 12 of the General Rules of the Tamil Nadu State and Subordinate Services Rules, in Part II reads as under:-
12.Qualifications—(a)(i) The minimum general educational qualification wherever referred to in the Special Rules shall mean the qualification prescribed in Schedule I to this Part:
(ii) ...........
(iii) ..........
(vi) ..........
(b) No person shall be eligible for appointment to any service by direct recruitment unless he satisfies the commission in cases where the appointment has to be made in consultation with it or the appointing authority, in other cases—
(i) ..........
(ii) .........
(iii) ......... and
(iv) that, notwithstanding anything contained in the Special Rules, such a person also possesses the qualifications including experience prescribed for a post, on the date of notification of the vacancy.24/39
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29. The relevant portions of the Notification of the TNPSC, dated 24.02.2009 read as under:-
4.QUALIFICATIONS:-
(A) AGE:-
.........
(B) EDUCATIONAL QUALIFICATIONS:-
Candidates should possess the following or its equivalent qualifications on the date of this Notification, viz. 24.02.2009.
i. Minimum General Educational Qualification (as defined in paragraph 7 of Commission's “Instructions, etc. to candidates) AND ii. A Diploma in Automobile Engineering (3 years course) or a Diploma in Mechanical Engineering (3 years course) awarded by the State Board of Technical Education and Training, Tamil Nadu;
AND iii. Experience of having worked for a period of not less than one year both on vehicles fitted with Petrol Engines and Vehicles fitted with Diesel Engines on a full time basis in an Automobile Workshop which undertakes repairs of Light Motor Vehicles, Heavy Goods Vehicles and Heavy Passenger Motor Vehicles;25/39
http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 AND iv. Must hold a Driving Licence Authorising him to Drive Motor Cycle, Heavy Goods Vehicles and Heavy Passenger Motor Vehicles AND v. Must have experience in Driving Heavy Transport Vehicles for a period of not less than six months.
Provided that other things being equal, preference shall be given to those who possess post diploma in Automobile Engineering awarded by the State Board of Technical Education and Training, Tamil Nadu.
(Details regarding equivalence of qualifications are given in paragraph 9 of the Commission's Instructions, etc. to candidates) EXPLANATION:- “Automobile workshop” shall mean (A) An Automobile workshop owned by the Government or the State Transport Corporation.
OR (B) An Automobile workshop recognised or approved or certified by the Transport Commissioner or the Director, Motor Vehicles Maintenance Department for carrying out all kinds of repairs.
9. ENCLOSURES TO BE SENT ALONG WITH APPLICATION:-
Candidates should enclose copies of all certificates (including evidence for Education Qualification possessed by them) as mentioned in para 15 of the Commission's Instructions etc. to candidates' and item 25 under part-II of Information Brochure 26/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 along with a Postal receipt to the value of Rs.100/- (Rupees One Hundred only) pasted in the column provided in the application, unless exemption of fee is claimed. Information if any relating to the debarment by any recruiting agency, criminal or any Disciplinary proceedings initiated or finalized should be furnished along with the application. In addition to the copies of certificates mentioned in Column 25 (if applicable only) of the OMR application form, candidates should also send the following copies of certificates along with the OMR application.
(i) Evidence of Technical Qualifications
(ii) Evidence of experience of having worked for a period of not less than one year both on vehicles fitted with petrol engines and vehicles fitted with diesel engines on a full time basis in an Automobile Workshop which undertakes repairs of light motor vehicles, heavy goods vehicles and heavy passenger motor vehicles.
(iii) Valid Driving Licence authorizing him/ her to drive Motor Cycle, Heavy Goods Vehicles and Heavy Passenger Motor Vehicles.
(iv) Evidence of experience in driving Heavy Transport Vehicles for a period of not less than six months.
Original Certificates should not be sent. Those applying Online please refer sub para D of Para 12 of this Notification/Advertisement.
Applications received without the attested copies of certificates as specified above will be rejected.
30. Rule 12 (b) of the General Rules in Part II of the Tamil Nadu State and Subordinate Services Rules stipulates that no person shall be eligible for 27/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 appointment to any service by direct recruitment unless he satisfies the commission in cases where the appointment has to be made in consultation with it or the appointing authority. In other cases, not notwithstanding anything contained in the Special Rules, such a person should also possess the qualifications including experience prescribed for a post, on the date of notification of the vacancy.
31. We have verified the volume II & III of the Tamil Nadu Services Manual published by the Government of Tamil Nadu. The volume II deals with the Special Rules relating to the State Services (Section1 to 51 of Part III A) while Volume III deals with the Special Rules relating to the Subordinate Services (Sections 1 to 60 of Part III B).
32. The Motor Vehicle Inspector Grade II is a subordinate service within the meaning of Section 42 of the Special Rules viz., The Tamil Nadu Transport Subordinate Service in the Tamil Nadu Service Manual Vol.III. Section 42 of the said Section 42 reads as under:-
SECTION 42—THE TAMIL NADU TRANSPORT SUBORDINATE SERVICE
1. Constitution.—The service shall consist of the following categories of officers, namely :-
Category 1 Motor Vehicles Inspectors, Grade I. 28/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 Category 2 Motor Vehicles Inspectors, Grade II.
2. Appointment.—(a) Appointment to the category mentioned in column (1) of the table below shall be made by the methods specified in the corresponding entries in column (2) thereof :-
TABLE Category Method of recruitment (1) (2) 1 Motor Vehicles Inspectors, Promotion from Motor Vehicles Grade I Inspectors, Grade II 2 Motor Vehicles Inspectors, Grade II Direct recruitment
(b) Promotion to category 1 shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal.
(c) Omitted.
3.Reservation of appointments.—The rule of reservation of appointments (General rule 22) shall apply to appointment to category 2 by direct recruitment.
4. Appointing authority.—The appointing authority for the categories shall be the Joint Transport Commissioner.
5. Qualification:
(a) Age.—(i) No person shall be eligible for appointment to category 2 by direct recruitment, unless he possesses the qualifications specified below, namely:-
(1) Must have completed 21 years of age;29/39
http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 (2) Must not have completed 32 years of age:
Provided that a person belonging to a Scheduled Castes / Scheduled Tribes shall be eligible for appointment by direct recruitment to category 2 if he has not completed 37 years of age.
Provided further that the minimum age limit of 21 years prescribed above shall apply also to the candidates belonging to Scheduled Castes/ Scheduled Tribes and Backward Classes.
(ii) The age limit prescribed in this rule shall be reckoned so far as direct recruits are concerned with reference to the first day of July of the year in which the selection for appointment is made.
(b) Other qualifications.—No person shall be eligible for appointment to the category specified in column (1) by the method specified in column (2) of the table below unless he possesses the qualifications specified in the corresponding entries in the column (3) thereof :-
TABLE Category Method Qualifications (1) (2) (3) 1 Motor Vehicles Promotion (i)Must be an approved Inspectors, probationer in the post Grade I specified in category 2; and
(ii)Must have served for a total period of not less than four years in the post specified in category 2, out of which not less than one year should be in the flying squad or in the checking squad:
Provided that this rule shall not apply to appointments by promotion 30/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 Category Method Qualifications (1) (2) (3) made prior to the 1st January 1988.
2 Motor Vehicles Direct (i)Minimum general Inspectors, recruitment educational qualification; Grade II.
(ii)A diploma in Automobile Engineering (3 years’ course) or a diploma in mechanical Engineering (3 years’ course) awarded by the State Board of Technical Education and Training, Tamil Nadu;
(iii)Experience of having
worked for a period of not
less than one year both on
vehicles fitted with petrol
engines and vehicles fitted
with diesel engines on a full
time basis in an Automobile
Workshop which undertakes
repairs of light motor
vehicles, heavy goods
vehicles and heavy
passenger motor vehicles;
(iv) Must hold a driving
licence authorising him
to drive motor cycle,
heavy goods vehicles and
heavy passenger motor
vehicle and must have
experience in driving
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Category Method Qualifications
(1) (2) (3)
heavy transport vehicles
for a period of not less
than six months:
Provided that other
things being equal,
preference shall be given to
those who possess post
diploma in Automobile
Engineering awarded by the
State Board of Technical
Education and Training,
Tamil Nadu.
Explanation.—“Automobile Workshop” for the purpose of entry (iii) above means -
(a) an automobile workshop owned by the Government or the State Transport Corporation; or
(b) an automobile workshop recognized or approved or certified by the Transport Commissioner or the Director, Motor Vehicles Maintenance Department for carrying out all kinds of repairs.
6. Probation.—Every person appointed by direct recruitment to category 2 shall be on probation for a total period of two years on duty within a continuous period of three years.
7. Training.—A candidate appointed by direct recruitment for the category of Motor Vehicles Inspectors, Grade II, shall undergo a course of training for a period of three months as per programme that may be laid down by the Transport Commissioner. During the period of training he shall be allowed minimum of the time scale of pay applicable to the category 32/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 concerned. The period of training shall count both for probation and increment.
Every such person shall, on completion of the training, serve the Government for a period of not less than 5 years failing which he shall repay to the Government the amount spent on him during the training.
8. Tests.—Every person appointed to the category of Motor Vehicles Inspector, Grade II shall pass within the period of probation, the following tests conducted by the Tamil Nadu Public Service Commission, namely :-
(i) Departmental Test on the Motor Vehicles Act, 1988 (Central Act 59 of 1988), the Central Motor Vehicles Rules, 1989 and the notification made thereunder, the Tamil Nadu Motor Vehicles Rules, 1989 and the notifications made thereunder, the Tamil Nadu Motor Vehicles Taxation Act, 1974 (Tamil Nadu Act 13 of 1974) the rules and the notifications made thereunder and the Road Traffic Code, 1940, Volume IV;
(ii) Departmental Test on the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) covering Chapters I to VI, XII to XXI, XXIII to XXVII and XXXII;
(iii) The Tamil Nadu Government Office Manual Test ; and
(iv) The Account Test for Executive Officers
9. Preparation of annual list of approved candidates. —For the purpose of the preparation of the annual list of approved candidates, for the appointment by promotion, the crucial date on which the candidates shall be qualified shall be the 15th March of every year."
33. The qualification prescribed for a Motor Vehicle Inspector Grade -II for 33/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 direct recruitment contemplates that the candidates must hold a driving licence authorizing him to drive motor cycle, heavy goods vehicles and heavy passenger motor vehicle and must have experience in driving heavy transport vehicles for a period of not less than six months.
34. It does not contemplate that the licence should be valid on the date of notification. It merely stipulates that a person who applies for the post of Motor Vehicle Inspector Grade-II must hold a driving licence and required minimum qualification to be eligible for appoitment as Motor Vehicle Inspector Grade-II.
35. Both the General Rule Part II of the Tamil Nadu State and Subordinate Services Rules and Special Rules relating to Government of Tamil Nadu in volume III of the Tamil Nadu Service Manual do not contemplate that on the date of application the candidate must possess valid driving licence. All that is required for the candidates to become eligible to be appointed as Motor Vehicle Inspector Grade-II is the minimum general qualification including technical qualification. It is not a must that the licence should be "valid" on the date of notification. As long as the person has a "valid" licence on the date of application appointment, he or she cannot be denied appointment, provided the other qualifications are met.
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36. On a combined reading of Rule 12(a)(i) and Rule 12(b)(iv) of the General Rules of the Tamil Nadu State and Subordinate Services Rules in Part-II, it is clear that Rule 12(a)(i) speaks only about the educational qualification. Rule 12 (b) deals only with respect to possession of educational qualification. Rule 12(b)(iv) requires that notwithstanding anything contained in the Special Rules, such a person also possesses the qualifications including experience prescribed for a post, on the date of Notification of the vacancy. Rule 12(b)(iv) is only referable to educational qualification and not to technical qualification. Further, the Special Rules framed under Section 42 of the Tamil Nadu Transport Subordinate Service Act exclusively prescribes the conditions of eligibility and the manner/method of promotion from the post of Motor Vehicles Inspector-Grade-II to the post of Motor Vehicles Inspector-Grade-I. Rule 5 of the said Special Rules framed under Section 42 of the Tamil Nadu Transport Subordinate Service Act, in clause (b) therein deals with the other qualifications, and sub-clause 2 (iv) therein relates to direct recruitment for the post of Motor Vehicles Inspectors- Grade-II, which says that the candidate must hold a Driving Licence authorising him to drive motor cycle, heavy goods vehicles and heavy passenger motor vehicle and the candidate must have experience in driving heavy transport vehicles for a period of not less than six months. It does not say that he must hold a "valid" Driving Licence on the date of the Notification. Therefore, in the 35/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 absence of any condition in the abovesaid Special Rules framed under the Tamil Nadu Transport Subordinate Service Act or under the above said Rule 12(b)(iv) to the effect that the candidate must possess a 'valid' Driving Licence on the date of the Notification, it has to be construed that mere possession of Driving Licence "simpliciter" is sufficient on the date of the Notification of the TNPSC. Therefore, on the date of the Notification, the candidate should merely possess a licence, which the writ petitioners in this case admittedly possessed. However, the writ petitioners have later renewed the licence and had a "valid" Driving Licence subsequent to the date of the impugned Notification, before filing their respective applications for the post. Therefore, we are of the opinion that on the date of the submission of the application form in response to the Notification issued by the TNPSC, the writ petitioners possesed requisite technical qualification as prescribed under Rule 12(b)(iv) quoted above. It is also not in dispute that the writ petitioners were also having six months experience, as required by the said Clause 9(iv) on the date of the TNPSC's Notification. Clause 4(B)(iv) of the Notification does not say that "valid" Driving Licence should be possessed by a candidate on the date of the Notification. A reading of Clause 4(B) of the Notification of the TNPSC, shows that the writ petitioners should possess minimum educational qualification on the date of the Notification, namely on 24.02.2009, and the date mentioned in Clause 4(B) of the Notification 36/39 http://www.judis.nic.in W.A.Nos.660 and 665 of 2019 has nothing to do with the technical qualification. On the other hand, Clause 9 deals with the "Enclosures to be sent along with application". In one of the enclosures to be sent, as required therein, it is mentioned as "valid" Driving Licence and therefore, possessing required qualification as prescribed under Rule 12(b)(iv) quoted above, on the date of the submission of the application, would suffice. Furthermore, as per the above said Clause 9(iv) stated above, the writ petitioners should have six months driving experience, which is also on the date of the submission of the application form. Therefore, we are of the view that possessing a "valid" driving licence as on the date of submission of the application is sufficient. When the petitioners were in possession of such a "valid" driving licence as on the date of submission of the application, they are entitled to be selected and appointed to the post. Question (ii) is answered in the above terms.
37. For the foregoing reasons, we do not find any infirmity in the order passed by the learned Single Judge. The Writ Appeals are accordingly dismissed. No costs. Consequently, C.M.Ps. are closed.
(R.P.S.J) (C.S.N.J)
26.09.2019
Index: Yes
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Speaking Order: Yes
cs
To
1. The Secretary,
Tamil Nadu Public Service Commission,
Frazer Bridge Road, V.O.C. Nagar,
Chennai-600 003.
2. The Transport Commissioner,
Ezhilagam, Chennai-600 005.
38/39
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R.SUBBIAH, J
and
C.SARAVANAN, J
cs
Common Judgment
in
WA Nos.660 and 665 of 2019
26.09.2019
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