Kerala High Court
Anil Kumar vs Kerala Public Service Commission on 25 July, 2013
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ASHOK BHUSHAN
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY,THE 25TH DAY OF JULY 2014/3RD SRAVANA, 1936
WA.No. 969 of 2014 ()
---------------------------------
(AGAINST THE JUDGMENT IN WP(C).NO. 2530/2013 DATED 25-07-2013)
----------------------
APPELLANT/PETITIONER:
----------------------------------------
ANIL KUMAR,
SON OF ANANDA RAJAN, M.K.BHAVANAM,
MARU VADAKKU,KARUNAGAPPALLY, ALUMKADAVU,
KOLLAM-690 573
BY ADVS.SRI.P.B.SAHASRANAMAN
SRI.T.S.HARIKUMAR
SRI.K.JAGADEESH
RESPONDENT(S)/RESPONDENTS:
----------------------------------------------------
1. KERALA PUBLIC SERVICE COMMISSION,
PATTOM, THIRUVANANTHAPURAM-695 004.
2. REGIONAL OFFICER,
KERALA PUBLIC SERVICE COMMISSIONER,
REGIONAL OFFICE, ANDAMUKKU, KOLLAM-691 001
3. STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY,
SECRETARIAT, THIRUVANANTHAPURAM- 695 001
R1 & R2 BY SRI.P.C.SASIDHARAN, SC, KPSC
R3 BY GOVERNMENT PLEADER SRI.PADMARAJ
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION
ON 25-07-2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sts
Ashok Bhushan & A.M. Shaffique, JJ.
=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=
WA. No. 969 of 2014
=-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=
Dated this, the 25th day of July, 2014.
J U D G M E N T
Ashok Bhushan, J.
Heard the learned counsel for the appellant and the learned counsel for the Kerala Public Service Commission.
2. This writ appeal has been filed against the judgment dated 25th July 2013 in W.P(C) No. 2530/2013, by which, the writ petition filed by the appellant challenging the order of Kerala Public Service Commission (for short 'the Commission') rejecting the candidature of the petitioner has been upheld. The petitioner-appellant applied for appointment to the post of Driver Grade II in response to the notification dated 12.11.2007. He also appeared in the written test conducted on 23.1.2010. Later, his candidature was cancelled as per Ext. P2 for the reason that the badge was not valid on the date of written examination on 23rd January, 2010. The order of the Commission dated 10.10.2012 was impugned by the petitioner in the writ petition. The learned Single Judge, relying on two judgments of this Court as referred to in the judgment, dismissed the writ petition upholding the order of the Commission.
3. The learned counsel for the appellant, challenging the judgment of learned Single Judge, contended that once WA. No. 969 of 2014 -: 2 :- qualification can be acquired by the appellant, he was not ceased to have qualification and he should be treated to be qualified for the post and the view taken by learned Single Judge is not correct. He further submits that the judgments, which have been relied on by the learned Single Judge, were with regard to driving licence and distinguishable.
4. Learned standing counsel for the Commission refuted the submission contending that the case is fully covered by the Division Bench judgment in Maheen M. v. State of Kerala and others, 2013 (3) KHC 209 (DB), which was also a case where the candidate was not qualified on the relevant date and the case also relates to the qualification pertaining to the badge.
5. We have considered the submissions of the parties and perused the records.
6. The submission of the learned counsel for the appellant that the present was a case of acquiring qualification cannot be accepted. The qualifications, which were mentioned in the notification, were required to be produced on the last date of the application as well as during the currency of the entire selection process. There was no challenge to any of the conditions which were prescribed in the notification. It is relevant to note that the learned Single Judge, in his judgment, has noted Note (2) as contained in the WA. No. 969 of 2014 -: 3 :- Gazette notification dated 12.11.2007. Note (2) as extracted by the learned Single Judge is to the following effect:
"Candidates should possess Current Driving License and Badge on the last date for receipt of applications in the office and also on the date of Written test, Practical Test and interview."
The condition of possessing current driving licence by which on the last date of application as well as on the written examination was part of the notification, but, any candidate who does not fulfil the condition as prescribed in the notification has to be excluded and no error has been committed by the Commission in rejecting the candidature of the petitioner on the ground that he did not possess badge on the date of written examination. The Division Bench judgment, which has been relied on by the learned counsel for the Commission, fully supports the submission of the learned counsel for the respondents. It is useful to quote paragraph 5 and 6 of the judgment, which are to the following effect:
"5. It is trite law that an applicant has to possess the prescribed qualification as on the last date fixed for the receipt of applications by the PSC. Such qualification that an applicant possesses has to continue to run with that person during the selection process, to be continually carried at the selection, appointment, joining the service and even while holding the post to which the incumbent was WA. No. 969 of 2014 -: 4 :- selected and appointed; that is, during the entire spectrum of employment from the last moment available to apply for being considered. This is a basic doctrine and salutary principle of law. That cannot be watered down to hold that an applicant for the post of Driver Grade-II (LDV), who ought to possess a driver's badge along with the driver's licence as on the date of application or the last date fixed for receipt of application, need not necessarily continue to possess the driver's badge on the date of the proficiency test. This we say, not based on the interpretation of any provision of law applicable to driving of motor vehicles, but on the indefeasible legal effect of the prescriptions and terms of the recruitment rules and the PSC's notification, over which the petitioner has no dispute. The action of the PSC is in conformity with the prescriptions in the notification issued by it and the provisions in the recruitment rules, which, as already noted are not under challenge. We do not find any legal infirmity in the action of the PSC.
6 Now, on to the laws relating to motor vehicles. Section 15 occurs in Chapter II of the MV Act and provides for renewal of driving licences. That chapter relates to licensing of drivers of motor vehicles. No provision in that chapter prescribes any additional requirement, including the need and grant of badges, as regards 'transport vehicles' as a class by themselves. Section 28 of the MV Act empowers the State Government to make rules for the purpose of carrying into effect the provisions of Chapter II of that Act, other than the matters specified in Section 27, which deals with the power of the Central Government to make rules. Clause
(d) of sub-section (2) of Section 28 specifically enumerates the power of the State Government to make rules providing for the badges and uniform to be worn by drivers of transport vehicles and the fees to be paid in respect of badges. Clause (h) of that sub-section provides the specific authority to make rules to provide for the duties, functions and conduct of such persons to whom licences to drive transport vehicles are issued. Now, Rules 11 and 12 of the MV Rules provide for issuance of authorisation to drive transport vehicles and the WA. No. 969 of 2014 -: 5 :- issuance of driver's badge authoring a person to drive a transport vehicle. Rule 42 requires the driver of a transport vehicle to display the metal badge while on duty. The provisions in the MV Rules do not contain any provision similar to Section 15(1) of the MV Act. The provisions in Section 15(1) do not deal with matters relating to issuance of badges for persons authorised to drive transport vehicle since, as already noted, even the legislative field relating to issuance of badges to persons authorised to drive transport vehicles and matters connected therewith are consciously and expressly left to the rule making authority of the State Governments in terms of Section 28 of the MV Act.
In this view of the matter, the arguments advanced on behalf of the petitioner on the basis of the provisions of the MV Act and MV Rules, cannot be accepted."
We are of the view that the learned Single Judge has rightly upheld the order of the Commission rejecting the candidature of the petitioner. There is no error in the judgment and we dismiss the appeal.
Sd/-Ashok Bhushan, Judge.
Sd/- A.M. Shaffique, Judge.
Tds/ (True copy) P.S to Judge.