Kerala High Court
Rajesh Kumar B. vs Kerala Public Service Commission on 6 October, 1998
Equivalent citations: (1999)ILLJ164KER
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
JUDGMENT Ar. Lakshmanan, J.
1. Heard Mr. R. Krishna Raj for appellant and Mr. O.V. Radhakrishnan, standing counsel for the respondent.
2. The above Writ Appeal has been filed against the judgment dated June 24, 1998 in O.P.9161/1998 of C.S. Rajan, J. a learned Judge of this Court dismissing the Original Petition on the ground that the appellant did not possess the required driving licence as on August 30, 1995, the last date of receipt of the application.
3. The appellant filed the Original Petition to direct the Public Service Commission to consider his name for selection to the post of Assistant Motor Vehicle Inspector in the Motor Vehicles Department as notified in the Gazette dated July 18, 1995 and to quash Ext. P1 and to grant such other reliefs. According to the appellant he was issued with hall ticket and he attended the written examination. At the time of applying for the post he was having a Learner's Licence for Heavy Passenger Motor Vehicles and Heavy Goods Vehicles. But he obtained valid driving licence before attending the written examination. While the appellant was expecting the call for interview, he was served with a memo on September 3, 1996 informing him that his application for selection to the post of Assistant Motor Vehicles Inspector stands rejected since he had no valid driving licence for Heavy Goods Vehicle/Heavy Passenger Vehicle on the last date for receipt of application for the post viz., August 30, 1995. According to the appellant the respondent cannot reject his application on the ground that he had no licence for driving Heavy Passenger Vehicle and Heavy Goods Vehicle on the date of application and actually the appellant got the endorsement as to licence of Heavy Vehicles on October 25, 1995 i.e. before the examination which was held only on January 20, 1996. The appellant filed O.P. 9161/1998 and this Court on June 24, 1998 dismissed the O.P. and aggrieved by the same he filed the above Writ Appeal. Learned counsel for the appellant submitted that even though he had only learner's licence for driving Heavy Goods Vehicle/Heavy Passenger Vehicle on the date of application he obtained valid driving licence even before he had written the examination and in this situation there is no justification in rejecting the application of the appellant by the respondent on the sole ground that the appellant had no driving licence on the date of application. He also submitted that the rejection of his representation on this ground is illegal. We have perused Ext.P1. Under annexure A1 the appellant was informed that his application for selection to the post stands rejected on the following reasons:-
" 1. You do not possess the prescribed qualification on the last date fixed for the receipt of application.
2. Your petition has been received in the office after the last date for the receipt of such appeal.
3. You have no valid driving licence for HGV/HPV/Motor Cycle on the last date for receipt of application for the post i.e., August 30, 1995.
4. You have not proved the required experience of 1 year on the date of application after the acquisition of basic qualification.
5. Experience certificate produced is not in the prescribed form as notified in the gazette/experience certificate is not from a reputed Government approved and registered workshop/experience certificate does not prove that you have experience in maintenance and repairs of Light Motor Vehicles, Heavy Goods Vehicles and Heavy Passenger Vehicles fitted with petrol and diesel engines. Certificate does not specify that the firm from which you produced the certificate undertakes such work. Experience as paid/unpaid apprentice/trainees and Casual Labourers is not acceptable.
6. You have not answered or responded to this office letter directing you to cure the detects in the application in time.
7.........................
8.........................
Orders of rejection of application is non-ap pealable on the above ground. No further communication in the letter will be enter tained."
Ext. A2 is the representation made by the appellant requesting the Public Service Commission to consider his representation for selection to the post of AMVI. Ext. A3 is the further representation for redressal of his grievance.
4. The Original Petition was contested by the Public Service Commission by filing a counter affidavit together with two annexures- Ext.R1(a) and Rl(b) viz., order in SLP (C) 1292/1998 dated January 16, 1998 and judgment in W.A. 194/1997 dated March 18,1997 respectively. It is submitted by the counsel for the respondent that the rejection under Ext.P1 is neither arbitrary, discriminatory nor illegal and that there is also no reasonable or satisfactory explanation for inordinate delay in challenging Ext.P1. It is also submitted that the case of the appellant is fairly covered by a decision of this Court in W.A. 194/1997 Ext.R1(b) and therefore the grounds now raised by the appellant are devoid of any merit. It is also stated that in view of Ext.R1(a) order of the Supreme Court and Ext.R1(b) judgment of the Division Bench of this Court the appellant is not entitled to any of the reliefs prayed for in O.P. As already noticed the learned Judge has dismissed the O.P on the ground that the appellant has no valid licence for heavy goods vehicle/heavy passenger vehicle on the last date for receipt of the application for the post viz., August 30, 1995. We have carefully considered the rival submissions. We are unable to countenance the submissions made by the learned counsel for the appellant for the reasons stated infra.
5. Kerala Public Service Commission invited applications for selection for recruitment to the post in question as per Gazette notification dated July 18, 1995. Last date for receipt of the application was August 30, 1995. The qualification prescribed in the Gazettee notification for selection to the above post were: -
1) minimum general educational qualification of pass in X standard.
2) A Diploma in Automobile Engineering (3 years course) awarded by the State Board of Technical Education.
or Diploma in Mechanical Engineering awarded by the State Board of Technical Education (3 years course) or Any qualification in either of the above disciplines declared equivalent by the Central Government or State Government.
3) Working experience of at least one year in a reputed (Government approved) Automobile Workshop which undertakes repairs of both Light Motor Vehicles, Heavy Goods Vehicles and Heavy Passenger Motor Vehicles fitted with petrol and diesel engine.
The working experience prescribed for this post should be one acquired after the acquisition of the basic qualification prescribed for this post. The experience should be from the Government approved workshop. Experience in the capacities of paid and unpaid apprentices trainees and casual labourers will not be accepted.
4) Must hold a driving licence authorising him to drive Motor Cycle, Heavy Goods Vehicle and Heavy Passenger Motor Vehicles.
It is useful to note Clause 19 of the General Conditions in the Gazettee which is extracted below:-
"19. Qualification prescribed including experience for a post shall be one acquired by the candidates on or before the last date fixed for receipt of applications for that particular post. The date for determining whether a candidate does possess a particular qualification including experience shall be the last date fixed for receipt of applications."
6. The appellant had submitted an application in response to the above notification. He was provisionally admitted for the written test held on January 20, 1996 along with other candidates. After the preparation for the short list, scrutiny of the applications of the candidates was conducted and on scrutiny it was found that the appellant did not possess valid driving licence for driving Heavy Goods Vehicle and Heavy Passengers Vehicle on the last date fixed for receipt of application for the post i. e. on August 30, 1995. Therefore the appellant's application was rejected and he was intimated accordingly as per Ex.P1 memo on September 3, 1996.
7. It is submitted that the rejection of application of certain other candidates on the ground that they did not possess driving licence for driving Motor Cycle by orders similar to Ext.P1 was challenged before this Court in O.P.Nos. 15161 and 16290/1996. The above Original Petitions were dismissed by the learned single Judge of this Court and writ appeals filed (W.A.Nos: 1534 and 1748/1996). By judgment dated December 19, 1996 a Division Bench of this Court allowed the Writ Appeals holding that the rejection of the petitioner's application on the ground that they did not possess the licence for driving Motor Cycle on the last date of submission of the application is not correct and the order rejecting the application was set aside. The above judgment is reported in Varghese Mathew v. State of Kerala 1997 (1) KLT 350. The Bench held for the reasons recorded in the judgment and particularly in para 11 and in the light of Rule 4(b) of the Kerala Transport Subordinate Service Rules, that the rejection of the petitioner's application on the ground that he did not possess the licence for driving Motor Cycle on the last date of submission of the application is not correct. The relevant portion is reproduced hereunder:
"It is true that holding of a licence for driving motor cycle is also an essential qualification for being appointed as Assistant Motor Vehicles Inspector. The process of recruitment and selection of candidates is done by the State Government. That is prescribed in the Kerala Transport Subordinate Service Rules. By reason of the notification issued by the Central Government under Section 213(4) of the M.V.Act, holding of a driving licence to drive motor cycle is to be included in the qualification prescribed under Rule 4(b) of the Transport Subordinate Service Rules. But that rule mentions of a note which gives freedom to obtain the licence within the period of probation. The PSC while issuing the notification cannot forget the prescriptions under the note. The directions in the note cannot be held to be against the prescription of qualifications under Section 213(4) of the M.V.Act because the State Government also adopts the same qualification. The Kerala Transport Subordinate Service Rules were framed in exercise of the power given to the Government under Section 2 of the Kerala Public Services Act."
The above decision was challenged by the Public Service Commission before the Apex Court by filing petitions for Special Leave to appeal (Civil) Nos. 10714-15/1997 which were dismissed by the Supreme Court without expressing any opinion on the question of law by order dated September 8, 1997. The above order reads as follows:
"We have heard learned counsel for the parties and examined the pleadings without expressing any opinion on the question of law we find that in the case of respondents no interference is called for at our hands in exercise of our jurisdiction under Article 136 of the Constitution of India. The Special Leave Petitions are dismissed."
8. Our attention was drawn to the judgment of another Division Bench of this Court following the decision in 1997(1)KLT 350. (Supra) The Bench has allowed W.A.341/1997. Kamat,J speaking for the Bench held as follows:-
"The main question for consideration before; us in this appeal is the approach available to us in the decision of this Court in W.A. 1534/1996 reported in Varghese Mathew v. State of Kerala 1997(1)KLT 350 (Supra). The principle on which the said; Writ Appeal is decided is available to us in the said judgment. The question is of rejection of the petitioner's application on the ground of non-possession of the licences required as on the date of the submission of the application. In the appeal, before the appeal Bench, holding of a licence for driving a motor cycle being an essential qualification for being appointed as Assistant Motor Vehicles Inspector is assumed. Even though, the process of recruitment of selection of candidates by the State Government as prescribed in the Kerala Transport Subordinate Service Rules is taken into consideration, the Bench took into consideration the relevant position and understood the situation of freedom to obtain the licence even thereafter. In this way the rejection of the application is held to be improper by the Bench.
2. Careful reading of the judgment of this Court would show that in spite of the position that the applicant should possess certain stated qualifications, still he can be considered for appointment even though not possessing the licence with conditional expectation that he should obtain the same before he completes the probation. This Court has approached the situation in a meaningful way. In the proces's of reasoning, the appeal Bench has also referred to the decision of the Supreme Court in Styapal Ready v. Government of A. P. 1994(4)SCC 391. Government, relying on the observations that the power to select a fit and competent person naturally includes the power to prescribe qualifications and although the qualifications would have to be understood as essential in the matter of appointments, the real spirit of the situation is taken into consideration.
3. We find that this decision is not properly taken into consideration and also the submission of the learned Standing Counsel to the effect that the said decision would not apply to a situation of a driving licence for HGV/ GPV. Once the principle is appreciated, the decision could not be distinguished in such a manner as sought to be done by the learned standing counsel before the learned Judge."
Against the above decision in W.A.341/97 the Public Service Commission filed Special Leave to appeal (Civil) No: 1292/98 before the Honourable Supreme Court. The Honourable Supreme Court did not agree with the view taken by the Division Bench of this Court. The Supreme Court while disposing of the above SLP(C) 1292/1998 (marked as Ext.R1(a))ob-served that an essential qualification for appointment to the post of Motor Vehicles Inspector/Assistant Motor Vehicles Inspector being that the candidate should possess a driving licence that could certainly be taken into account when short listing the candidate and further that if a person does not hold a driving licence he has no right to be considered for appointment to such post. The Supreme Court judgment in SLP(Civil)1292/1998 (Ext.R1(a) is reproduced hereunder:-
(Honourable Justice Mr. M.M. Punchhi and Mr. Justice M. Srinivasan) "Regretfully, we do not agree with the view taken by the High Court. An essential qualification for appointment to the post of a Motor Vehicles Inspector/Assistant Motor Vehicles Inspector being that the candidate should possess a driving licence, that could certainly be taken into account when short listing the candidates. The distinction between one possessing it and the other not, is well-marked and serves a much-desired purpose. If a person does not hold a driving licence, he has no right to be considered for appointment to such post. All the same, we do not wish to entertain this petition due to this one-time measure in favour of the respondent. The SLP would stand disposed of accordingly."
In view of the above ruling of the Supreme Court judgment the judgment of this Court in Varghese Mathew's case (supra) is no longer good law.
9. The judgment of a Division Bench of this Court in W.A. No: 194/1997 comprising of K.G. Balakrishnan .J. and B.N. Patnaik.J can be beneficially looked into in the present context. The said judgment is marked as Ext.R1(b). In the above judgment the decision in 1997(1)KLT 350 (Supra) has been distinguished by the Honourable Judges of the Division Bench and has not been followed by them. The Division Bench in para 3 of the judgment ruled as follows:-
"3. The above decision cannot be applied with equal force to the facts of the present case in view of the divergence of facts. In the instant case, even as per the Special Rules, the candidates must have licence to drive Heavy Goods Vehicles/Heavy Passenger Vehicles fitted with petrol and diesel engine. The note appended to the Special Rules says that in the absence of candidates possessing the Motor Driving Licence with endorsement of eligibility for driving Heavy Passenger Motor Vehicles and Heavy Goods Vehicles the applicants who do not possess such licence will also be considered for appointment to the post. It is further stated that such candidates, if selected, shall however obtain the Heavy Passenger Motor Vehicles and Heavy Goods Vehicles endorsement, within the period of probation. As per the note only in the absence of candidates possessing the Motor Driving Licence with endorsement of eligibility for driving Heavy Passenger Motor Vehicles and Heavy Goods Vehicles, persons like the appellants could be considered. There is no case for the Public Service Commission that there is absence of candidates possessing Motor Driving Licence with endorsement of eligibility for driving Heavy Passenger Motor Vehicles and Heavy Goods Vehicles. Therefore the appellants applications were rightly rejected by the P.S.C."
10. In this context we may usefully advert to the decision of the Supreme Court in Ashok Kumar Sharma v. Chander Shekhar (1994-I-LLJ-267) which was later reviewed by the Supreme Court by judgment dated March 10, 1997. The Supreme Court has partly upheld but over-ruled (1994-I-LLJ-267) on point of law. The said review judgment is reported in 1997 (4) SCC 18. Two review applications were filed by the respondents in Ashok Kumar Sharma v. Chader Shekhar (supra). In that case an advertisement was published on January 9, 1982 inviting applications for appointment to the post of Junior Engineer in the service of Jammu & Kashmir State. The last date for submitting applications was specifically stated as July 15, 1982. A pass in B.E.(Civil) Examination was the minimum academic/technical qualification required for applying for the said post. A number of persons applied pursuant to the advertisement. Out of them, 33 persons had not passed the B.E.(Civil) Examination on or before July 15, 1982. They had appeared for the said examination earlier to the said date but the results were published only on August 21, 1982. Interviews were held on various dates commencing on August 24, 1982. Though these 33 persons were not qualified as on the specified date, they were yet interviewed pursuant to certain instructions given by the Government and were selected along with some other candidates. Some candidates who were fully qualified to apply for the said post according to the aforesaid advertisement and who were selected but placed in the select list below the respondents, filed a writ petition in the High Court contending that 33 persons could not have been allowed to appear for the interview because they had not acquired the requisite academic/ technical qualification by the prescribed date viz., July 15, 1982. The writ petition was dismissed. However no letters patent appeal having been filed against the said order, it became final. Writ Petition No. 483 of 1983 was filed by four candidates who are the review petitioners in the High Court questioning the selection of 33 respondents on the very same ground as was urged in the other writ petition. Another batch of selected candidates was appointed on September 5, 1984. Thereafter Writ Petition 483/1983 came up for final hearing and was dismissed following the order dated May 27,1983 dismissing Writ Petition No. 250 of 1983. Thereupon the petitioners filed letters patent appeal which was allowed by a Division Bench on December 13, 1991. The Division Bench held that 33 respondents could not have been allowed to appear in the interview for the reason that they had not acquired the requisite academic/ technical qualification by the prescribed date. The Division Bench, however thought it just and proper to direct that while the appointment of the said 33 respondents be not set aside, they should be treated as junior to all those selected persons who were fully qualified by the prescribed date. The 33 respondents filed Civil Appeal No: 5407/1992 in the Supreme Court. While the State of Jammu & Kashmir filed Civil Appeal No: 5408/1982 questioning the decision of the Division Bench aforesaid. The appeals came up for hearing before a Bench comprising of Dr. T.K. Thommen, V. Ramaswami and R.M. Sahai, JJ. There were difference of opinion on one question though all the three Judges agreed on the result. The majority (Dr. Thommen and V. Ramaswami.JJ) held that allowing the said 33 candidates to appear for interview was not impermissible. They were of the opinion that by allowing the said persons to appear for the interview the recruiting authority was able to get the best talents available and that it was certainly in the public interest that the interview was made as broad-based as was possible on the basis of qualification. The learned Judges held that inasmuch as the 33 respondents were qualified by the date of interview, though not by the date prescribed in the advertisement inviting applications, there was no illegality in allowing them to appear for the interview. R.M. Sahai, J however held that the 33 candidates should not have been allowed to appear for the interview since they did not possess the requisite academic/technical qualifications by the prescribed date. Even so the learned Judge agreed with the majority that the seniority of the said 33 candidates vis-a-vis the qualified candidates (who are placed at a lower position in the select list) need not be disturbed in the particular facts and circumstances of the case. The result was that all the three learned Judges allowed the appeals preferred by the 33 respondents and the State of Jammu and Kashmir and set aside the judgment of the Division Bench. The present review petitions were filed by four original writ petitioners in Writ Petition No. 483 of 1983 who were respondents in the Civil appeals before the Supreme Court. The review petitions were admitted confined to two issues. We are concerned with issue No. 1 in the case. Issue No: 1 reads as follows:-
"1. Whether the view taken by the majority (Hon'ble Dr. Thommen and V. Ramaswami, J) that it is enough for a candidate to he qualified by the date of interview even if he was not qualified by the last date prescribed for receiving the application, is correct in law and whether the majority was right in extending the principle of Rule 37 of the Public Service Commission Rules to the present case by analogy?"
The review petitions were heard by three Judges' Bench of the Supreme Court. So far as the first issue referred to above is concerned the Supreme Court was of the respectful opinion that majority judgment rendered by Dr. T.K. Thommen and V. Ramaswami, JJ, is unsustainable in law. The Supreme Court further held:
"The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. This is also the proposition affirmed in Rekha Chaturvedi v. University of Rajasthan (1993-I-LLJ-818). The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered opinion, a clear error of law and an error apparent on the face of the record. In our opinion, R.M. Sahai, J (and the Division Bench of the High Court) was right in holding that the 33 respondents could not have been allowed to appear for the interview."
11. It is thus seen that when something is required to be done and the consequences of failure to do so are also provided then it is known as mandatory. Proceeding further Sahai, J in his dissenting note reported in (1994-I-LLJ-267) (supra) has observed as follows:-
"The legal terminology, when something is required to be done and the consequences of failure to do so are also provided then it is known as mandatory. Mandatory character of the condition stipulated in the advertisement is further strengthened from the fact that the candidates were prohibited from applying if they did not possess the requisite qualifications. The expression 'shall be possessed of such qualifications', is indicative of both mandatory character of the requirement and its operation in praesenti. Acceptance of the view that the appellants had requisite qualification on the date of interview would have the effect of altering condition of eligibility on the date of application as being extended to the date of interview. The condition that incomplete applications would not be accepted, will also become meaningless."
The minority view finds support from R.D. Shetty v. International Airport Authority (1979-II-LLJ-217) (SC) for the view that it was a denial of equality of opportunity for those situated like the appellants and awaiting their results yet took the language of the notification seriously and did not apply.
12. We are of the opinion that in view of the recent pronouncement of the Supreme Court in SLP (Civil) 1292/1998 dated January 16, 1998 and the judgment reported in 1997 (4) SCC 18 (supra) the grounds now raised by the appellant are devoid of any force or merit and the Writ Appeal has to fail in view of the above rulings of the Supreme Court and also judgment of the Division Bench of this Court in W.A. 194/1997 dated March 18, 1997. The Appellant is not entitled to any of the reliefs prayed for in the Original Petition and in this appeal. Writ Appeal therefore fails and is dismissed. C.M.P.No: 5187/1998 also stands dismissed. No costs.