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1995 DIGILAW 426 (KER)

K. v. Sailesh VS K. P. S. C.

1995-12-08

K.S.RADHAKRISHNAN

body1995
JUDGMENT K.S. Radhakrishnan, J. 1. Petitioners in both the Original Petitions are diploma holders in automobile engineering, except the third petitioner in O.P.No. 17731 of 1995. Petitioners challenge the notification issued by the Kerala Public Service Commission on 11-7-1995 prescribing diploma in Mech. Engineering as an alternative qualification for diploma in automobile engineering for appointment to the post of Assistant Motor Vehicle Inspector in the Motor Vehicles Department. They contend that the prescription of diploma in mechanical engineering as an alternative qualification is illegal and violative of the qualification prescribed for the said post under the Special Rules for the Kerala Transport Subordinate Service, where diploma in mechanical engineering is not prescribed as an alternative qualification. 2. The Kerala Public Service Commission issued a notification No. R & A (3) 15575/95/GW dated 11-7-1995 published in the Kerala Gazette dated 18-7-1995 inviting applications from the qualified candidates for the post of Assistant Motor Vehicle Inspector in the Motor Vehicles Department of the Government of Kerala. The method of recruitment is stated to be direct recruitment. According to clause (7) of the notification, qualification prescribed is not in conformity with or in accordance with the qualification prescribed under the Special Rules framed under the Act. According to the petitioners, diploma in automobile engineering is recognised by the State as the basic qualification under the Special Rules, whereas the notification prescribes diploma in mechanical engineering as an alternative qualification. Petitioners are fully qualified for appointment to the post of Assistant Motor Vehicle Inspector as per the Special Rules as well as the notification. But they are aggrieved on account of prescription of alternative qualification in violation of the Special Rules with the result that if candidates with diploma in mechanical engineering would also apply for the post, the chances of persons like the petitioners would adversely be affected for getting appointment to the post of Assistant Motor Vehicles Inspector. It is contended by counsel for the petitioners that the Public Service Commission has no jurisdiction to prescribe qualification in violation of the Special Rules. Consequently they have approached this Court praying for a writ of mandamus directing the respondents to make selection to the post of Assistant Motor Vehicle Inspector only from among the applicants having SSLC and diploma in automobile engineering and for consequential reliefs. 3. Consequently they have approached this Court praying for a writ of mandamus directing the respondents to make selection to the post of Assistant Motor Vehicle Inspector only from among the applicants having SSLC and diploma in automobile engineering and for consequential reliefs. 3. The Public Service Commission, first respondent, has filed a counter affidavit, and a statement has been filed on behalf of the second respondent. It is stated by the first respondent that the Transport Commissioner to Government of Kerala as per letter No. A6-17556/TC/94 dated 1-10-1994 reported 29 vacancies for the post of Assistant Motor Vehicles Inspector. The qualifications noted in the Proforma reporting the vacancies were those stipulated in the Special Rules for the post issued by the Government of Kerala vide G.O.(P) No. 164/PD dated 12-5-1964 as amended in G.O.(P) No. 74/77/PD dated 2-6-1977, which included a minimum educational qualification of SSLC with diploma in automobile engineering. However, the Transport Commissioner later informed that the Government of India as per notification SRO.No. 444(E) dated 12-7-1989 prescribed diploma in mechanical engineering awarded by the State Board of Technical Education as an alternative qualification for diploma in automobile engineering. On the basis of the requisition received from the Transport Commissioner, the Public Service Commission considered the question of notifying the vacancies for the post of Assistant Motor Vehicles Inspector. After analysing the qualification laid down by the Central Government and the qualification laid down by the State Government under the Special Rules, the Public Service Commission decided to notify the post based on the qualification laid down by the Central Government. The views of the Public Service Commission were communicated to the Government vide their letter No. GR III B(2)-29199/94 dated 4-4-1995 with an advice to amend the Special Rules for the post of Assistant Motor Vehicle Inspector in line with the qualification prescribed for the post by the Government of India. The State Government in their letter dated 9-5-1995 informed the Public Service Commission that it has already taken steps to amend the Special Rules on the basis of the qualifications prescribed by the Government of India. The State Government also vide their letter No. 10920/N4/95/PW & T dated 26-6-1995 informed the Commission that they agree to adopt the qualifications prescribed in the Govt. of India Notification pending amendment to Special Rules. The Public Service Commission was requested to notify the post and finalise the selection. The State Government also vide their letter No. 10920/N4/95/PW & T dated 26-6-1995 informed the Commission that they agree to adopt the qualifications prescribed in the Govt. of India Notification pending amendment to Special Rules. The Public Service Commission was requested to notify the post and finalise the selection. The Public Service Commission then issued Ext. P1 notification dated 11-7-1995 on the basis of the qualification prescribed by the Government of India. The last date for receipt of the applications was 30-8-1995. Petitioners in O.P.No. 14595 have also applied on the basis of the notification. 4. I have heard counsel for the petitioners and learned counsel appearing for the respondents at length. Art.309 of the Constitution of India states that subject to the provisions of the Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to Public Services and posts in connection with the affairs of the Union or of any State. Accordingly, the Kerala Legislature enacted the Kerala Public Services Act, 1968 as an Act to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the State of Kerala. As per S.2 of the said Act, the Government can make rules so as to regulate the recruitment, and conditions service of persons appointed to public services and posts in connection with the affairs of the State of Kerala. In exercise of the said power, the Government framed Special Rules for Kerala Transport Subordinate Service. The Motor Vehicles being "a subject included in the concurrent list, that is List III of the VIIth Schedule to the Constitution," both the Central and State laws can hold the same field. Accordingly Parliament enacted the Motor Vehicles Act, 1988 (Act 59 of 1988). S.213 of the Act deals with appointment of Motor Vehicles Officers, which is extracted below: "213. Appointment of Motor Vehicles Officers. (1) The State Government may, for the purpose of carrying into effect the provisions of this Act, establish a Motor Vehicles Department and appoint as officers thereof such persons as it thinks fit. (2) Every such officer shall be deemed to be a public servant within the meaning of Indian Penal Code (45 of 1860). Appointment of Motor Vehicles Officers. (1) The State Government may, for the purpose of carrying into effect the provisions of this Act, establish a Motor Vehicles Department and appoint as officers thereof such persons as it thinks fit. (2) Every such officer shall be deemed to be a public servant within the meaning of Indian Penal Code (45 of 1860). (3) The State Government may make rules to regulate the discharge by officers of the Motor Vehicles Department of their functions and in particular and without prejudice to the generality of the foregoing power to prescribe the uniform to be worn by them, the authorities to which they shall be subordinate, the duties to be performed by them, the powers (including the powers exercisable by police officers under this Act) to be exercised by them, and the conditions governing the exercise of such powers. (4) The Central Government may, having regard to the objects of the Act, by notification in the Official Gazette, prescribe the minimum qualifications which the said officers or any class thereof shall possess for being appointed as such. .............................." The above mentioned provisions authorise the State Government to establish a Motor Vehicles Department and to appoint officers thereof for the purpose of carrying into effect the various provisions of the Act. The power of the State Government to appoint officers in the Motor Vehicles Department includes the power to select a fit and competent person who it thinks fit to hold the post and would discharge efficiently. This power includes the power to prescribe qualifications also. However the said power is subject to the power of the State Government to prescribe qualifications for officers or any class of officers in the Motor Vehicles Department, but subject to the provisions of sub-s.(4) of S.213; of the Central Act. Sub-s.(4) authorises the Central Government to prescribe the minimum qualifications for any class of officers in the Motor Vehicles Department. 5. The power of appointment given to the State Government by S.213(1) includes the power to select a fit and 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 S.213(1) while S.213(4) empowers the Central Government to prescribe minimum qualifications for the purpose. It includes the power to prescribe qualifications to select suitable officers. The Parliament preserved that power to the State Government under S.213(1) while S.213(4) empowers the Central Government to prescribe minimum qualifications for the purpose. Under Entry 41 of List II (State List) of VIIth Schedule to the Constitution, the public service includes the services of the officers to be appointed under sub-s.(1) of S.213 of the Act. The Motor Vehicles Act receives paramountcy, since under Entry 35 the subject under the Act covers the concurrent field. Sub-s.(4) of S.213 also preserves the power to prescribe qualifications higher that that minimum qualification prescribed by the Central Government to appoint the said officers or any class thereof shall possess for being appointed as such. To determine that there is an apparent repugnance or conflict between Central and State laws occupying the same field and that they cannot operate harmoniously in each case, the court has to examine whether the provisions occupy the same field with respect to one of the matters enumerated in the Concurrent list and whether there exists repugnancy between the two laws. Art.254 lays emphasis on the words 'with respect to that matter'. Repugnancy arises when both the laws are fully inconsistent or are absolutely irreconcilable and when it is impossible to obey one without disobeying the other. But the court has to make every attempt to reconcile the provisions of the apparently conflicting laws and to endeavour to give harmonious construction. The purpose to determine inconsistency is to ascertain the intention of Parliament which would be gathered from a consideration of the entire field occupied by the law. Sub-.(1) of S.213 gives power to the State Government to create Transport Department and to appoint officers, as it thinks fit. Sub-s.(4) thereof also preserves the power. By necessary implication, it also preserves the power to prescribe higher qualification for appointment of officers of the State Government to man the Motor Vehicles Department. The Motor Vehicles Act authorises the Central Government to prescribe minimum qualifications, leaving the field open to the State Government concerned to prescribe if it finds necessary higher qualifications. 6. In the instant case, the Central Government prescribed the minimum qualification, which includes diploma in mechanical engineering as an alternative qualification for a diploma in automobile engineering. The Motor Vehicles Act authorises the Central Government to prescribe minimum qualifications, leaving the field open to the State Government concerned to prescribe if it finds necessary higher qualifications. 6. In the instant case, the Central Government prescribed the minimum qualification, which includes diploma in mechanical engineering as an alternative qualification for a diploma in automobile engineering. The Central Government has got the power to do so under S.213(4) of the Central Act and that qualification has to be taken as the minimum qualification as per the Central Act. As per S.213(1) of the Act, the State Government may for the purpose of carrying into effect the provisions of the Act, establish a motor vehicle Department and appoint as Officers thereof such persons as it thinks fit. It includes the selection of suitable officers also. True that the State Government has issued Special Rules whereby diploma in automobile engineering has been prescribed as the essential qualification. The Central Government in exercise of the powers under sub-s.(4) of S.213 has issued a notification prescribing diploma in mechanical engineering as an alternative qualification for diploma in automobile engineering. 7. I am of the view that diploma in mechanical engineering has also to be treated as the minimum qualification within the meaning of S.213(4) of the Motor Vehicles Act. In that view of the matter, the Public Service Commission is fully justified in following the qualification laid down by the Government of India in accordance with S.213(4) of the Motor Vehicles Act. 8. The scope of S.213(1) came up for consideration before the Supreme Court in S. Satyapal Reddy v. Govt. of A.P., 1994 (4) SCC 391 , wherein the Supreme Court upheld the recruitment made by the Andhra Pradesh Public Service Commission. In the said case, the Government of Andhra Pradesh prescribed the qualification of graduation in Mechanical Engineering as the essential qualification for recruitment to the post of Assistant Motor Vehicle Inspector in the Andhra Pradesh Transport Subordinate Service. The prescription of the said qualification was challenged contending that the qualification prescribed by the State Government is in conflict with the qualification laid down by the Central Government under the Motor Vehicles Act. The prescription of the said qualification was challenged contending that the qualification prescribed by the State Government is in conflict with the qualification laid down by the Central Government under the Motor Vehicles Act. Repelling the contention, the Supreme Court took the view that sub-s.(4) gives power to the Central Government, having regard to the object of the Act, by a notification in the official gazette 'to prescribe minimum qualification' which the officers or class of officers thereof shall possess for being appointed as such officer or to the cadre belonging to the State Government. It was pointed out that under Entry 41 of List II (State List) of VIIth Schedule to the Constitution, the public service includes the services of the officers to be appointed under sub-s.(1) of S.213 of the Act. It was held that sub-s.(4) of S.213 also preserves the power to prescribe qualifications higher than that 'minimum qualification' prescribed by the Central Government to appoint the said officers or any class thereof shall possess for being appointed as such. 9. In the instant case, the Public Service Commission followed the minimum qualification prescribed by the Central Government in exercise of its powers under S.213(4). If the minimum qualification prescribed by the Central Government under S.213(4) of the Motor Vehicles Act is higher than the qualification prescribed by the State Government, then the qualification laid down by the Central Government would prevail, notwithstanding the qualification laid down in the Special Rules for the Kerala Transport Subordinate Service. Therefore the Public Service Commission is fully justified in following the qualification prescribed by the Central Government for appointment to the post of Assistant Motor Vehicle Inspector in the Motor Vehicles Department. I find there is no illegality or irregularity in the procedure adopted by the Public Service Commission. Original Petitions are therefore dismissed.