Kerala High Court
Varghese Mathew vs State Of Kerala on 19 December, 1996
Equivalent citations: I(1997)ACC519
JUDGMENT S. Sankarasubban, J.
1. Both these writ appeals are concerned with the same question and hence, they are disposed of by a common judgment. W.A. No. 1748 of 1996 is filed by the petitioner in O.P. No. 16290 of 1996 while W.A. No. 1534 of 1996 is filed by the petitioner in O.P. No. 15161 of 1996. First we shall deal with the facts in O.P. No. 16290 of 1996. The Kerala Public Service Commission issued Ext. P1 notification dated 11.7.1995 inviting applications for the posts of Assistant Motor Vehicle Inspectors by direct recruitment in the Motor Vehicles Department. The qualifications stipulated for the post are:
(i) Pass in X standard;
(ii) Diploma in Automobile Engineering awarded by the State Board of Technical Education or equivalent qualification;
(iii) 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.
A certificate has to be produced in the Form to show the experience.
(iv) Must hold a driving licence authorising him to drive Motor Cycle, Heavy Goods vehicles and Heavy Passenger Motor Vehicles.
There is a note in Ext. P1 which says as follows:
The candidate should claim their qualification and experience specifically in the application and produce attested copies of documents to substantiate their claim, failing which such applications will be summarily rejected.
The last date for receiving the application was 30.8.1995.
2. The petitioner submitted his application before the last date. He received Ext. P2 from the Public Service Commission intimating that his application was rejected on the following reasons:
(i) Experience Certificate without salary is not acceptable.
(ii) Licence regarding motor cycle is not produced. -
However, Ext. P3 admission card was issued to the petitioner to appear for the examination. Petitioner appeared in the written examination. By Ext. P4, the petitioner was asked to cure the defects in his application. Petitioner sent Ext. P5 letter. Along with that he gave an experience certificate showing his salary and licence showing that he was qualified to drive motor cycle from 14.2.1996. As a matter of fact, the licence will show that the petitioner had obtained licence for driving heavy motor vehicle from 19.12.1988 and heavy goods vehicle and heavy passenger vehicle from 21.7.1990, Subsequently, petitioner received Ext. P6 order from the PSC rejecting his application on the ground that the petitioner did not have a driving licence to drive a motor cycle on the last date of the application. It is challenging Ext. P6 order that the O.P. has been filed.
3. With regard to O.P. No. 15161 of 1996, the petitior?r filed his application pursuant to Ext. P1 notification issued by the PSC on 18.7.1995. By Ext. P4, the same was rejected for non-production of the experience certificate and motor cycle licence. But, subsequently, he was allowed to sit for the examination after curing the defects by producing the experience certificate and also a licence which enabled him to drive the motor cycle from 13.5.1996. The petitioner had taken heavy vehicle licence and licence for driving heavy motor vehicles, heavy goods vehicle on 8.7.1987. He got the endorsement with regard to the motor cycle on 13.5.1996. By Ext. P6 order, petitioner's application was rejected by the PSC on the ground that the petitioner did not have valid driving licence for motor cycle on the last date for receiving the application, viz., 30.8.1995.
4. The learned Single Judge, before whom both these Original Petitions came up for hearing, dismissed the OPs. on the ground that the driving licence for driving motor vehicle is an essential qualification laid down by the Central Government and since the petitioners did not possess the qualification even on the last date of the application, the PSC was correct in rejecting the application. It is challenging the above judgment, the writ appeals have been filed. In W.A. No. 1748/96, the appellant had. filed CMP No. 5391 of 1996 for amending the original petition challenging the'requirement of motor cycle licence before the last date specified in the notification ar.d also produced Ext. P8.
5. The Public Service Commission filed a counter affidavit stating that the Central Government has issued a notification under Section 213(3) of the Motor Vehicles Act, by which holding a licence for motor cycle is also an essential qualification. In the Special Rules, for recruitment with regard to Assistant Motor Vehicle Inspectors framed by the Government of Kerala, possessing of licence like motor cycle is not included. But, since, the Central Government has held that qualification is necessary, the PSC after ascertaining from the Central Government, included the possessing of licence for driving motor cycle as an essential qualification. It was by a mistake that originally the petitioners' applications were entertained. Later, it was found that the petitioners did not possess the qualification on the last date of receipt of the application. Those applications were rejected.
Learned Counsel submitted that it is clear from the decisions of the Supreme Court that the candidates should possess the qualification on the date when they apply or at least on the last date of receipt of the applications. Both the petitioners did not nave a driving licence for driving motor cycle on the last date of receipt of the applications and hence, the rejection of the applications is correct and the judgment of the learned Single Judge is correct.
6. We heard the learned Counsel for the appellants, Mr. C.P. Sudhakara Prasad. Sr, Counsel; Mr. N. Dharmadan, learned Counsel for the PSC; Mr. O.V. Radhakrishnan and the learned Government Pleader Mr. K.K. Raveendranath.
7. Recruitment to the post of Assistant Motor Vehicles Inspector is governed by the Kerala Transport Subordinate Service Rules. These special rules are framed under Section 2 of the Kerala Public Services Act. Rule 4(b) deals with the qualifications for the post of Assistant Motor Vehicle Inspectors by direct recruitment. The qualifications stated are as follows:
(i) Minimum general educational qualification of the SSLC standard.
(ii) Diploma in Automobile Engineering issued after a course, the duration of which is not less than 3 years by recognised Universities or by Government
(iii) Motor Driving Licences with endorsement for driving Heavy Passenger Motor Vehicles and Heavy Goods Vehicles.
A note is added to Clause (iii) which states thus ;
In the absence of candidates, possessing Motor Driving Licence with endorsement of eligibility for driving Heavy Passenger Motor Vehicles and Heavy Goods Vehicles those without such an endorsement in their licence will also be considered for appointment to the post. Such candidates, if selected, shall however obtain the Heavy Passenger Motor Vehicles and Heavy Goods Vehicles endorsement, within the period of probation.
8. Thus, according to the Special Rules, the applicant should possess a Heavy Motor Driving Licence. He can be considered for appointment even without possessing the licence, but he should obtain the same before he completes the probation. It is noteworthy that the rule does not contain the stipulation regarding possession of licence for driving motor cycle.
9. Section 213 of the Motor Vehicles Act deals with the appointment of Motor Vehicles Officers: Sub-section 4 of Section 213 enables the Central Government to p1 escribe the minimum qualifications, which the said officers on any class thereof shall possess for being appointed as such. By virtue of the power vested in Section 213(4), the Central Government has issued a notification, SRO 443/E dated 12.6.1989. In the notification, it is stated as follows:
In exercise of the powers conferred by Sub-section 213 of the Motor Vehicles Act, 1988 (59 of 1988), the Central Government hereby prescribed that the minimum qualification for the class of officers consisting of the category of Inspectors of Motor Vehicles or Assistant Inspector of Motor Vehicles shall be as under:
(1) Minimum general educational qualification of a pass in X standard; and (2) a diploma in Automobile Engineering (3 years course) or a diploma in Mechanical Engineering awarded by the State Board of Technical Education (3 years course); and (3) working experience of at least one year in a reputed automobile workshop which undertakes repairs of both light motor vehicles, heavy goods vehicles and heavy passenger motor vehicles fitted with petrol and diesel engine; and (4) must hold driving licence authorising him to drive motor cycle, heavy goods vehicles and heavy passenger motor vehicles.
The notification came into force on first July, 1989. This notification requires holding of a driving licence authorising the applicant to drive motor cycle, heavy goods vehicles and heavy passenger motor vehicles.
10. Learned Counsel for the PSC submitted that after the coming into force of the above notification, the requirement of possessing a valid licence for driving a motor cycle is an essential qualification. When the State Government issued directions to the PSC to make recruitment for the post of Assistant Motor Vehicles Inspectors, the PSC insisted that the Special Rules should be amended by including the qualifications of possessing a licence for driving motor cycles. The Government, instead of amending the Special Rules, allowed the PSC to include that qualification also in the notification. Ext. R1 has been produced to show the requirement of the Government.
11. We cannot accept the contention of the appellants-petitioners that possession of a valid licence for driving a motor cycle is not an essential qualification for being appointed as Assistant Motor Vehicles Inspector. After the notification is issued by the Central Government under Section 213(4) of the M.V. Act the above requirement is absolutely essential even though the qualifications laid down in the Kerala Transport Subordinate Service Rules do not prescribe the same. Hence, according to us, the PSC was correct in including the qualification with regard to the possession of a licence for driving a motor cycle.
12. The next question is whether the PSC was right in rejecting the applications of the appellants. The applications were rejected on the grounds that both the appellants did not have a licence to drive a motor cycle on the last date or receipt of the applications, even though they acquired the same subsequent to the last date. Learned Counsel for the appellants submitted that it may not be correct to say that the candidate should possess the qualification at least on the last date of filing the application in all cases. The Kerala Transport Subordinate Service Rules prescribe the qualification; but the note enables the consideration of the persons who did not have the licence provided they obtain the same before the period of probation is over. Thus, according to the learned Counsel for the appellants, reading the note along with the rule, the application for appointment to the post of Assistant Motor Vehicle Inspectors cannot be rejected on the ground that the qualifications regarding the licence were not obtained on the last date of the application. The note gives a choice to obtain the qualification even after the last date of the notification provided the qualification is obtained before probation is declared.
13. Learned Counsel for the PSC relied on the decision of the Supreme Court reported in S. Satyapal Reddy v. Government of A.P. 1994 (4) SCC 391 where the Supreme Court has held as follows:
The power of appointment given to the State Government by Sec. 213(1) includes the power to select a fit arid competent person who it thinks fit to hold the post and would discharge efficiently the functions assigned under the Act. It includes the power to prescribe qualifications to select suitable officers. The Parliament preserved that power to the State Government under Section 213(1), while Section 213(4) empowers the Central Government to prescribe minimum qualifications for the purpose.
xxx xxx xxx xxx The power of the Governor under the proviso to Article 309 includes prescription of qualifications for appointment. The State Government while appointing its own officers in its Transport Department, is necessarily entitled to prescribe qualifications for recruitment or conditions of service. But, while so prescribing, the State Government may accept the qualifications or prescribe higher qualification but in no case prescribe any qualification less than the qualifications prescribed by the Central overnment.
14. Going by the above declaration, it is true that holding of a licence for driving motor cycle is also an essential qualification for being appointed as Assistant Motor Vehicle Inspectors. But as held by the Supreme Court in the above case, 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. In this case, we find that both the petitioners were holding licence for driving heavy motor vehicles and heavy goods vehicles and they wanted only an endorsement with regard to driving motor cycle. They have obtained the same before the date of interview. Hence, according to us in the light of Rule 4(b) of the Kerala Transport Subordinate Service Rules, the rejection of the petitioner's applications on the ground that they did not possess the licence for driving motor cycle on the last date of the submission of the application is not correct. The order passed rejecting the applications is set aside. Since, they have already been allowed to write the examination, they may be called for interview if they are otherwise entitled to and their case also may be considered for selection to the post of Assistant Motor Vehicle Inspectors.
The judgment of the learned Single Judge is set aside. Writ Appeals are allowed.