Kerala High Court
K.N.Mohanan vs State Of Kerala on 15 February, 2017
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY, THE 3RD DAY OF APRIL 2017/13TH CHAITHRA, 1939
WP(C).No. 7243 of 2017 (E)
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PETITIONER(S) :
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K.N.MOHANAN,
KAIPILLY HOUSE, ARIMBOOR, THRISSUR TALUK 680 620,
PROPRIETOR, KERALA DRIVING SCHOOL, THRISSUR.
BY ADVS. SRI.T.SANJAY
SRI.M.PREMCHAND
RESPONDENT(S) :
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1. STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY,
THIRUVANANTHAPURAM 695 001.
2. TRANSPORT COMMISSIONER,
TRANSPORT COMMISSIONARATE,
VAZHUTHACAUD, THIRUVANANTHAPURAM -14.
3. UNION OF INDIA,
REP. BY SECRETARY, MINISTRY OF ROAD TRANSPORT
AND HIGHWAY TRANSPORT BHAWAN, 1, PARLIAMENT STREET,
NEW DELHI 110 001.
R1 & R2 BY SPL. GOVERNMENT PLEADER SRI. P.SANTHOSH KUMAR
R3 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
ADV. SRI.KRISHNADAS P.NAIR, CGC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 29-03-2017, ALONG WITH W.P(C).NO. 8079 OF 2017 AND
W.P(C).NO. 10347 OF 2017, THE COURT ON 03-04-2017 DELIVERED
THE FOLLOWING:
Msd.
WP(C).No. 7243 of 2017 (E)
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APPENDIX
PETITIONER(S)' EXHIBITS :
EXHIBIT P1 TRUE COPY OF THE CIRCULAR NO. 5/2017 ISSUED BY
THE 2ND RESPONDENT.
EXHIBIT P2 A TRUE COPY OF THE REPRESENTATION DATED 15.02.2017
SUBMITTED BEFORE THE 2ND RESPONDENT.
RESPONDENT(S)' EXHIBITS & ANNEXURES :
ANNEXURE R2(A): TRUE COPY OF THE INSTRUCTION DATED 22.02.2017.
ANNEXURE R2(B): TRUE COPY OF THE INSTRUCTION DATED 03.03.2017.
ANNEXURE R2(C): TRUE COPY OF THE COMPLAINT DATED 24.02.2017.
ANNEXURE R2(D): TRUE COPY OF THE PHOTOGRAPHS IS SHOWING
THE EXISTING DRIVING TESTING TRACK.
ANNEXURE R2(E): TRUE COPY OF THE PHOTOGRAPHS IS SHOWING
THE NEW TRACK ENVISAGED AS PER EXHIBIT P1
CIRCULAR.
ANNEXURE R2(F): TRUE COPY OF THE DIAGRAM.
//TRUE COPY//
P.S.TOJUDGE.
Msd.
P.B.SURESH KUMAR, J.
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W.P.(C) Nos.7243, 8079 & 10347 of 2017
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Dated 3rd April, 2017.
J U D G M E N T
These writ petitions are instituted challenging Circular No.5/17 issued by the Transport Commissioner prescribing revised guidelines for conducting driving tests. According to the petitioners, directions contained in the impugned circular are contrary to the provisions contained in Rule 15(3) of the Central Motor Vehicles Rules. It is also the case of the petitioners that dedicated testing tracks are required for implementing the guidelines contained in the impugned circular; that among the testing centres/grounds in the State, the Government owns only 4 and the remaining centres/grounds are either owned by local authorities or private individuals; that the testing centres/grounds other than the centres/grounds owned by the Government are grounds which are being used for other purposes also and that the licensing WPC 7243/17 & con. cases 2 authorities in the State will not, therefore, be in a position to grant licences, if the directions contained in the impugned circular are implemented. It is also the case of the petitioners that thousands of applicants for driving licence have already obtained learner's licences; that a learner's licence issued is valid for a period of six months; that a learner's licence holder is entitled to undertake the driving test after a period of 30 days and that in the light of the impugned circular, applicants for driving licence who have already obtained learner's licence prior to the impugned circular have lost the benefit of the time provided for under the rules to undergo the test and obtain licence, for, all such persons have now to undergo training to obtain licence in accordance with the revised guidelines introduced as per the impugned circular. The petitioners, therefore, seek directions to the respondents to carry on and conduct driving tests in accordance with the guidelines existed prior to the impugned circular. Alternatively, they seek directions to the respondents to allow all candidates who have obtained learner's licences prior to the introduction of the WPC 7243/17 & con. cases 3 impugned circular to undergo driving tests in accordance with the pre-revised guidelines.
2. A statement has been filed by the Transport Commissioner in W.P.(C) No.7243 of 2017 as directed by this Court.
3. Heard the learned counsel for the petitioners and the learned Special Government Pleader.
4. It is seen from the statement filed by the Transport Commissioner in W.P.(C) No.7243 of 2017 that the impugned guidelines have been issued having regard to the alarming increase in the road accidents taking place in the State. It is stated that one of the main causes for the road accidents is lack of driving expertise. It is also stated that the Government of India is anxious about the steady increase in the road accidents and have issued directions to all States to improve the standards of driving tests. The relevant portion of the letter issued by the Government of India to the State Governments is also extracted in the statement. The relevant portion of the letter of the Central Government as extracted in WPC 7243/17 & con. cases 4 the statement reads thus :
"Grant of driving license is a reason for permitting use of motor vehicles on the road. Hence strengthening the process of granting driving license can help minimize road accidents. It is of utmost importance that the drivers are aware of Road Safety Rules and are issued driving licenses only after proving their competence as stipulated in M.V.Act. License issuing Authorities must put in place a robust system for competent evaluation to ensure that only eligible applicants pass the driving test."
It is, therefore, clear that the revised guidelines have been issued in public interest with a view to reduce road accidents. The contentions raised by the petitioners, in the circumstances, have to be considered keeping in mind the said fact.
5. Petitioners are persons running driving schools. The impugned circular is one which prescribes revised guidelines for conducting driving test. It has nothing to do with the driving schools or the rights of the holders of driving school licence. As such, according to me, the petitioners have no locus standi to challenge the impugned circular. Be that as it may, I do not want to dismiss the writ petitions on that technical ground.
WPC 7243/17 & con. cases 5
6. It is pointed out by the learned counsel for the petitioner in W.P.(C) No.8079 of 2017 that the grievance of the petitioner therein is not concerning the impugned circular, but concerning only its implementation. According to the learned counsel for the petitioner in the said case, the Transport Commissioner had several rounds of discussions with the stake holders including persons running driving schools prior to and after the introduction of the revised guidelines; that in one of the meetings convened by the Transport Commissioner for the said purpose, there was an understanding that the revised guidelines will be implemented only with effect from 18/5/2017 and that the revised circular is implemented contrary to the said understanding, with effect from 1/4/2017. I shall deal with this contention a little while later.
7. Rule 15 of the Central Motor Vehicles Rules ('the Rules'), framed under the Motor Vehicles Act (Act), deals with driving test. The said Rule reads thus:
"15. Driving test.--
(1) No person shall appear for the test of competence to drive WPC 7243/17 & con. cases 6 unless he has held a learner's licence for a period of at least [thirty days].
(2) The test of competence to drive referred to in sub-section (3) of section 9 shall be conducted by the licensing authority or such other person as may be authorised in this behalf by the State Government in a vehicle of the type to which the application relates.
(3) The applicant shall satisfy the person conducting the test that he is able to--
(a) adjust the rear-view mirror;
(b) take suitable precautions before starting the engine;
(c) move away safely and smoothly straight ahead at an angle, while at the same time engaging all gears until the top gear is reached;
(d) to change to the lower gears quickly from the top gear when the traffic conditions warrant such change;
(e) change quickly to lower gears when driving downhill;
(f) stop and re-start the vehicle on a steep upward incline making proper use of the hand-brake or of the throttle and the foot-brake without any rolling back, turn right and left corners correctly and make proper use of the rear-view mirror before signalling;
(g) overtake, allow to be overtaken, meet or cover the path of other vehicles safely and take an appropriate course of the road with proper caution giving appropriate signals;
(h) give appropriate traffic signals at the appropriate time, in clear and unmistakable manner by hand or by electrical indicators fitted to the vehicle;
(i) change the lanes with proper signals and with due care;
(j) stop the vehicle in an emergency or otherwise, and in the WPC 7243/17 & con. cases 7 latter case, bring it to rest at an appropriate course on the road safely, giving appropriate signals;
(k) in the case of vehicle having a reverse gear, driving the vehicle backwards, reverse it into a limited opening either to the right or left under control and with reasonable accuracy;
(/) cause the vehicle to face in the opposite direction by means of forward and reverse gears;
(m) take correct and prompt action on the signals given by traffic signs, traffic lights, traffic controllers, policemen and take appropriate action on signs given by other road users;
(n) act correctly at pedestrian crossings, which is not regulated by traffic lights or traffic police, by giving preference to persons crossing the roads;
(o) keep well to the left in normal driving;
(p) regulate speed to suit varying road and traffic conditions;
(q) demonstrate general control of the vehicle by confident steering and smooth gear changing and braking as and when necessary;
(r) make proper use of the rear-view mirror before signalling, beginning manoeuvering, moving away, altering the course to overtake, turning right or stopping;
(s) use proper side when driving straight, turning right, turning left and at junction of the road;
(t) make proper use of accelerator, clutch, gears, brakes (hand and foot) steering and horn;
(u) anticipate the actions of pedestrians, drivers of other vehicles and cyclists;
(v) take precautions at cross roads and on road junctions with regard to:-- (i) adjustment of speed on approach, (ii) proper use of rear-view mirror, (iii) correct positioning of the vehicle WPC 7243/17 & con. cases 8 before and after turning to the right or left, (iv) avoidance of cutting right hand corners, (v) looking right, left and right again before crossing or emerging;
(w) concentrate in driving without his attention being distracted and to demonstrate the presence of mind;
(x) show courtesy and consideration for the safety and convenience of other road users, such as pedestrians, drivers of other motor vehicles or cyclists."
It is evident from the Rule extracted above that sub-rule (3) of Rule 15 only prescribes the criteria to be satisfied by the applicants for obtaining driving licence. Clauses (a) to (x) of sub-rule (3) of Rule 15 contain the criteria. It is seen that since the Rule prescribes only the criteria to be satisfied by the applicants for obtaining driving licence, for maintaining consistency as regards the testing procedures, the Transport Commissioner has been issuing guidelines as regards the testing procedures, by way of circulars from time to time. The impugned circular is the latest one.
8. The pleadings in the writ petitions that the impugned guidelines are contrary to the criteria prescribed by WPC 7243/17 & con. cases 9 sub-rule(3) of Rule 15 of the Rules are vague. The only argument raised at the time of hearing to substantiate the said case is that Rule 15(3) of the Rules does not provide for the diagram test indicated in Annexure R2(f). In this context, the learned Special Government Pleader pointed out that the diagram test indicated in the said document is intended to satisfy the criteria laid down in clause (k) of sub-rule (3) of Rule
15. A close reading of clause (k) of sub-rule (3) of Rule 15 indicates that the criteria laid down in the said clause can be satisfied by conducting the diagram test indicated in Annexure R2(f). True, one will be able to point out that the said criteria can be tested by other means as well. But, the same, according to me, cannot be a ground to contend that the said diagram test has to be interfered with in a proceedings of this nature. In matters like this, some play at the joints have to be conceded to the authorities and common sense perceptions of the litigants and courts shall give way to the expertise of the statutory authorities gained by experience.
9. The main contention urged by the learned counsel WPC 7243/17 & con. cases 10 for the petitioners is that dedicated tracks are required for the purpose of giving effect to the impugned guidelines. As regards this contention, the stand taken by the Transport Commissioner in the statement filed in W.P.(c) No.7243 of 20176 is that only two additional features have been introduced in the revised guidelines. It is stated that the first is the reverse parking test and the second test is the gradient test. According to the Transport Commissioner, the said tests are prescribed by Rule 15(3) of the Rules of which the reversed parking test can be conducted at all the present testing grounds by drawing a rectangle at an angle as a continuation of the existing markings on the ground. According to him, this only requires fixing of four more additional poles on the ground in addition to the poles already there. It is also stated that the gradient test can be conducted along with the Part II road test. In short, the stand of the contesting respondents is that dedicated testing centres are not required for the purpose of giving effect to the revised guidelines. Paragraph 15 of the statement reads thus :
"15. It is submitted that new stipulation for the tests WPC 7243/17 & con. cases 11 prescribed in Circular 5/2017 involves only two additional features. The first is the reverse parking test and the second is the gradient test. Both of which are prescribed by Rule 15 of the Central Motor Vehicles Rules. The reverse parking test can be conducted at all the present testing grounds by drawing a rectangle, at an angle as a continuation of the existing markings on the ground. This only requires fixing of 4 more additional poles on the ground in addition to the ones already there. The gradient test can also be conducted along with the Part II Road test and hence no dedicated grounds is necessary for that also. No other alteration is required for his and this can be clearly seen from the photographs produced as Annexure R2(e)."
There is nothing on record to indicate that the stand aforesaid of the Transport Commissioner is incorrect. The contention of the petitioners that dedicated tracks are required for conducting driving test in accordance with the guidelines prescribed in the impugned circular is, therefore, only to be rejected.
10. It is seen that the petitioners have approached this Court in these writ petitions to vindicate their private interests. It appears that the difficulty which the petitioners face now is that they have to train the candidates who have WPC 7243/17 & con. cases 12 undertaken training under them again to enable them to satisfy the revised testing procedures. According to me, the same cannot be a ground at all to interfere with a circular of this nature introduced in public interest.
11. Now, I shall deal with the case set up by the petitioners in the writ petitions as regards the grievances of the applicants who have obtained learner's lcience prior to the introduction of the revised guidelines. True, a person holding a learner's licence is eligible to undertake driving test after a period of thirty days. Since the learner's licence is valid for six months, the applicants would get almost 150 days to qualify in the test. It is a fact that the applicants would undertake tests after a period of thirty days repeatedly until they get licence. In other words, the scheme of things is such that the applicants would get training within the first thirty days after obtaining the learner's licence and then if they do not qualify the test undertaken thereafter, they would improve the skills required by consistent practice and keep on trying for until they qualify in the test. The petitioners are, therefore, right in contending WPC 7243/17 & con. cases 13 that a person who has already obtained a learner's licence and finished the training under a driving school in accordance with the guidelines that were existing prior to the introduction of the impugned guidelines, now has to undergo training again under the revised guidelines so as to qualify the test. It creates heart burn to such candidates. The Transport Commissioner, in the circumstances, should have published the revised guidelines sufficiently in advance. It is seen that the revised guidelines have been issued on 16.2.2017. It appears, having regard to the said grievance of the applicants for driving licence, the implementation of the same has been extended upto 1.4.2017. By extending the implementation of the revised guidelines upto 1.4.2017, as far as applicants who became eligible to undertake the driving test, have got only 45 days to qualify the test in accordance with the pre-revised guidelines. The said period, according to me, was too short a period for the candidates to qualify the test after the training. In the circumstances, I am of the view that some more time has to be granted to those applicants who became qualified to undertake the test before WPC 7243/17 & con. cases 14 16.2.2017. On an evaluation of the facts and circumstances, I am of the view that a further period of 45 days shall be given to them.
In the result, the writ petitions are disposed of directing that the implementation of the impugned circular shall be deferred till 15.5.2017.
Sd/-
P.B.SURESH KUMAR, JUDGE.
tgs (true copy)