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2011 DIGILAW 1144 (RAJ)

Pooran Mal Raigar v. R. P. S. C. Ajmer

2011-05-25

ARUN MISHRA, NISHA GUPTA

body2011
Hon'ble GUPTA, J.—The question arose for consideration in these appeals is that whether holding of learner's licence as on the date of application, which were invited vide advertisement, is the requisite qualification as advertised by the Rajasthan Public Service Commission (`RPSC' for short) for the post of Motor Vehicle Sub Inspector? 2. The advertisement was issued by the RPSC inviting applications for the post of Motor Vehicle Sub Inspector, in which it was provided that thee incumbent should possess driving licence and experience of work in a workshop for a period of one year, as provided in the Rajasthan Transport Subordinate Service Rules, 1963 (`the Rules' for short). Following are the qualifications, as provided in Schedule-I, Column No. 3 of the Rules:- 1. Must have passed Secondary Examination of a recognised Board; and 2. A diploma in Automobile Engineering (3 years course) or a diploma in Mechanical Engineering awarded by the State Board of Technical Examination (3 years' course) Or Any qualification in either of the above disciplines declared equivalent by the Central Government or State Government; 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 engines; and 4. Must hold a driving licence authorising him to drive Motor Cycle, heavy goods vehicles and heavy passenger vehicles. Nothing contai-ned in this notification shall apply to persons whose names were under consideration for appointment to the post of Inspector of Motor Vehicles or Assistant Inspector of Motor Vehicles (by whatever names called by the State Government prior to first day of July, 1989 or to an officer appointed to such post before the first day of July, 1989 or to an officer appointed to discharge functions of a non-technical nature. 3. The incumbents claimed that they were holding learner's licence as on the last date of submission of application, thereafter permanent driving licence was granted to them before interviews were held. 4. The Single Bench dismissed the writ petition of Pooran Man Raigar, therefore, he was not appointed and allowed writ petition of others by a common order. Banwari Lal could get appointment, but could not remain in service due to his being medically unfit, being short in height. 4. The Single Bench dismissed the writ petition of Pooran Man Raigar, therefore, he was not appointed and allowed writ petition of others by a common order. Banwari Lal could get appointment, but could not remain in service due to his being medically unfit, being short in height. The Single Bench opined that it was open to the candidates to possess educational quail-fication and could have submitted driving licence prior to start of interviews. On appeal being preferred, the question was referred to Full Bench. 5. On 13.4.2010, the reference has been answered and it has been held that as per clause 13 of the advertisement, driving licence and experience are required to be possessed by the candidates on the last date of submission of the application forms, and not on or before the date of interview. However, the other issues were permitted to be urged before the Division Bench. Following is the decision by Full Bench. In view of aforesaid, our answer to reference is that as per clause 13 of advertisement, driving licence and experience are required to be possessed by the candidates on the last date of submission of the application forms and not on or before the date of interview. Let the judgment be placed before the Division Bench hearing appeals for its decision and appellants are given liberty to argue other issues, which include the effect of their appointment and continuance in service thereof for last few years. It is apparent from the decision of Full Bench that the candidates were required to possess driving licence and experience as on the last date of submission of application forms, which was 19.11.2001. 6. Mr. S.N. Kumawat, the learned counsel appearing on behalf of RPSC, has submitted that as on the last date of submission of application, most of the candidates were holding learner's licence only, which was not the driving licence as contemplated under clause 13 of the advertisement. He relied upon the decision of Division Bench of this Court in RPSC & Anr. S.N. Kumawat, the learned counsel appearing on behalf of RPSC, has submitted that as on the last date of submission of application, most of the candidates were holding learner's licence only, which was not the driving licence as contemplated under clause 13 of the advertisement. He relied upon the decision of Division Bench of this Court in RPSC & Anr. vs. Manish Thakur (D.B. Civil Special Appeal No. 525/2003) decided on 20.5.2004, in which the Division Bench set aside the order dated 31.7.2003 of Single Bench and opined that as on the last date of submission of application form the candidate was not holding driving licence, he was possessing only learner driving licence, and before the date of interview he obtained driving licence, it could not be said that thee candidate was qualified as on the last date of submission of application form. 7. Mr. Kumawat, on being consulted and instructed by the RPSC, has submitted that the respondents' case can be considered while making fresh recruitment in accordance with law. 8. The learned counsel, appearing on behalf of the candidates, have submitted that there was conflict in respect of the position of law whether the date of submission of application form was material, or the date of interview? The learner driving licence is also a driving licence. Hence, the candidates were holding driving licence as on the last date of submission of application form, and since permanent driving licence has been granted to them later on before the date of interview, they be treated as qualified. Thereafter, they have also been appointed on the post of Motor Vehicle Sub Inspector, and they have served about six years. Relying on decision in National Insurance Co. Ltd. vs. Swaran Singh and Others (2004) 3 SCC 297 = RLW 2004(2) SC 161, they have also submitted that it is a case where relaxation should be given, if it is opined that learner's licence is not the requisite driving licence. Alternatively it has also been prayed that for one time measure, as a large number of posts are vacant and recruitment is going to be held, the candidates be permitted to participate in the process of selection by relaxing their age. 9. Alternatively it has also been prayed that for one time measure, as a large number of posts are vacant and recruitment is going to be held, the candidates be permitted to participate in the process of selection by relaxing their age. 9. After hearing learned counsel for the parties, and in our opinion, it cannot be said that for the appointment as Motor Vehicle Sub Inspector, the candidates are supposed to take driving licence on the date of interview, as it was necessary for them to possess requisite driving licence as on the date of submitting the application form, without that they were not supposed to perform their duties effectively. Following is the definition of driving licence, as defined in Section 2(10) of the Motor Vehicles Act, 1988:- (10) "driving licence" means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description. Following is the definition of learner's licence, as defined in Section 2(19) of the Motor Vehicles Act, 1988:- (19) "Learner's licence" means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive as a learner, a motor vehicle or a motor vehicle of any specified class or description. 10. It is apparent that "learner's licence" is excluded from driving licence under Section 2(10) of the Act. The very purpose of having "driving licence" was that the person should be authorised to drive the vehicle otherwise than a learner." "Learner's licence" is such, which may be ultimately converted into permanent "driving licence" or it may lapse also as it is issued for a specified period and a person may ultimately be denied "Driving License" if a person fails in the test. Thee contention of the learned counsel that the "learner's licence" is also "driving licence." But what was contemplated in the advertisement and the rules is that the person should have requisite "driving licence", which excludes "learner's licence" as defined in Section 2(10) of the Motor Vehicles Act, 1988. 11. The candidates in question were not holding the requisite "driving licence" as on the last date of submission of the application i.e. 19.11.2001. 11. The candidates in question were not holding the requisite "driving licence" as on the last date of submission of the application i.e. 19.11.2001. In similar set of facts in respect of selection in question itself the Single Bench of this Court in Manish Thakur vs. RPSC & Anr., S.B. Civil Writ Petition No. 4742/2002, decided on 31.7.2003 = RLW 2004(1) Raj. 220, directed to treat the "learner's licence" as "driving licence", as the "learner's licence" held on the last date of submission of application form i.e. 19.11.2001, was later on converted into permanent "driving licence" before the date of interview i.e. 26.11.2001. The said decision was set aside on 20.5.2004, in D.B. Civil Special Appeal No. 252/2003. It was opined that the "driving licence" were obtained in April, 2002, earlier only "learner's licence" were possessed by the candidate as on the last date of submission of application form. The Division Bench of this Court held that the judgment of Single Bench was not sustainable and was accordingly set aside. Following is the relevant discussion made by Division Bench:- The brief facts giving rise to the instant appeal are that the appellant issued an advertisement on 31.10.2001 for appointment on 101 posts of Motor Vehicle sub Inspectors. The last date of submitting the application form was 19.11.2001. the appointment of Motor Vehicle Sub Inspector is governed by the Rajasthan Transport Subordinate Service Rules, 1963 (hereinafter referred to as the Rules of 1963). The qualification for the appointment on the post of Motor Vehicle Sub Inspector under the Rules of 1963 is that a candidate must be matriculate with I.T.I. Certificate in Automobile Engineering. The advertisement further provided an additional qualification of possessing driving licence. It is not in dispute that the respondent acquired the requisite licence only in April, 2002 i.e. well after the last date of submission of the application form. On the last date of filing the application form i.e. 19.11.2001, he was not holding the driving licence. The appellant Commission permitted the respondent to appear in the examination subject to fulfilment of the requisite conditions. However, after he qualified the written test, his application form was scrutinized and it was found that he did not fulfill the eligibility condition with regard to the driving licence and therefore, his candidature was rejected. The appellant Commission permitted the respondent to appear in the examination subject to fulfilment of the requisite conditions. However, after he qualified the written test, his application form was scrutinized and it was found that he did not fulfill the eligibility condition with regard to the driving licence and therefore, his candidature was rejected. The learned Single Judge following the decision of the Apex Court in Ashok Kumar Sharma vs. Chander Shekhar & Anr. reported in 1997 (1) SCC 18, held that the qualification are to be seen on the date of advertisement and not on the date of interview. Thus, in the opinion of the learned Single Judge, there was no illegality committed by the appellant Commission in rejecting the respondent's candidature. However, the learned Single Judge found the equity in favour of the respondent. Considering the peculiar facts and circumstances of the case, the learned Single Judge set aside the order of the appellant Commission rejecting the application form of the respondent. It is submitted by Mr. J.P. Joshi, learned counsel for the Commission that the learned Single Judge found that the respondent was not eligible as he was not holding driving licence on the last date of submission of the application form has committed an error is disturbing the decision of the Commission rejecting the application of the respondent. On the other hand, it is submitted by the learned counsel for the respondent that the equitable view taken by the learned Single Judge does not call for interference more particularly when on the date of interview the respondent had acquired the requisite driving licence. We have considered the rival submissions. The Apex Court in Ashok Kumar Sharma's case (supra) has firmly laid down that the eligibility of the candidate shall be considered on the basis of qualification possessed by him on the last date of submission of the application. The learned Single Judge has committed error in invoking the equitable jurisdiction in favour of the candidate who was not qualified on the last date of submission of the application. With all respect the view taken by the learned Single Judge runs counter to the law laid down by the Apex Court in Ashok Kumar Sharma's case (supra). Thus, in our view, the judgment of the learned Single Judge is not sustainable and deserves to be set aside. Consequently, the special appeal is allowed. With all respect the view taken by the learned Single Judge runs counter to the law laid down by the Apex Court in Ashok Kumar Sharma's case (supra). Thus, in our view, the judgment of the learned Single Judge is not sustainable and deserves to be set aside. Consequently, the special appeal is allowed. The judgment of the learned Single Judge dated 31st July, 2003 is quashed and set aside. 12. In National Insurance Co. Ltd. vs. Swaran Singh (supra), the Apex Court considered the question that Motor Vehicles Act, 1988 provides for grant of learner's licence. It was held that a learner's licence is also a licence according to the provisions of the said Act. thus, their Lordships held such a person could also be a person duly licensed. It cannot be said that holder of a "learner's licence" is not entitled to drive a vehicle. Their Lordships were mainly concerned with Section 149 of the Motor Vehicles Act and held that a person holding "learner's licence" would also come within the purview of duly licensed, as such a learner's licence is also granted in terms of the provisions of the Act and the Rules framed thereunder. Explicitly before the Apex Court question was not as to requirement of the service Rules, in question under which the recruitment was to be made, according to which the candidate was required to hold the requisite "driving licence" as defined in section 2(10) of the Act, as on the last date of submission of the application form, considering the nature and duties to be performed by Motor Vehicle Sub Inspector. The decision of the Apex Court in National Insurance Co. Ltd. vs. Swaran Singh (supra) is inapplicable in the instant case. The decision of the Apex Court was in different context of the "licence", and does not support the contention of learned counsel appearing on behalf of the candidates who were holding learner's licence as on the date of submission of application. The Full Bench of this Court has answered the question that as on the last date of submission of the application, it was necessary to possess requisite qualification of experience as well as driving licence, which was not possessed by the candidates. On the last date of submission of application form the candidates were not having the requisite qualification. The Full Bench of this Court has answered the question that as on the last date of submission of the application, it was necessary to possess requisite qualification of experience as well as driving licence, which was not possessed by the candidates. On the last date of submission of application form the candidates were not having the requisite qualification. The learned counsel for the candidates have also relied on the case of Rekha Chaturvedi vs. University of Rajasthan and others (1993) Supp. (3) SCC 168, wherein the Apex Court found the selection to be illegal but since after appointment eight long years were passed, the selection was not set aside and held that the scrutiny of qualification will be the last date for filing the application and not the date of selection. They also relied on M.A. Murthy vs. State of Karnataka and Others (2003) 7 SCC 517, wherein the Apex Court held that though it was permissible to set aside the appointments of respondents 4 and 5, on the peculiar facts of the case such a course is not called for and the rights of parties instead could be adjusted by working out equities, in the interest of substantial justice by adopting a different course. The appellant shall rank senior to respondent 4 by treating his appointment to be w.e.f. the date of selection of respondent 4.That shall be only for the purpose of fixing the seniority of service and not for entitlement to any salary or other financial benefits. As respondent 5 was only subsequently appointed, he will also rank below the appellant and respondent 4. They further relied on Dr. M.S. Mudhol and another vs. S.D. Halegkar and Others (1993) 3 SCC 591 , wherein the Apex Court held that since it was the default on the part of the 2nd respondent, Director of Education in illegally approving the appointment of the first respondent in 1981 although he did not have the requisite academic qualification as a result of which the 1st respondent continued to hold the post for the last 12 years now, it would be inadvisable to disturb him from the post at this late stage particularly when he was not at fault when his selection was made. He had not at the time projected his qualification other than what he possessed. He had not at the time projected his qualification other than what he possessed. If, therefore, in spite of placing all his cards before the selection committee, the selection committee for some reason or the other hand thought it fit to choose him for the post and the 2nd respondent had chosen to acquiesce in the appointment, it would be inequitous to make him suffer for the same now. Illegality, if any, was committed by the selection committee and the 2nd respondent. They are alone to be blamed for the same. Relying upon the aforesaid judgments the learned counsel for the candidates submitted that appointment of the candidates may not be disturbed. In our opinion, the decisions are quite distinguishable on facts and ratio is of no help to controversy involved in the instant matters. 13. However, coming to the submission of the learned counsel appearing on behalf of the candidates that the candidates have been appointed and they have served at least about six years, and crossed the age limit during pendency of the matter, the RPSC may be directed to allow the candidates to participate in the process of selection, by providing relaxation of age. The submission of the learned counsel appearing for the candidates is found to be proper. Regular process has to be undergone by such candidates, who were not holding the requisite qualification on the last date of submission of application forms, but they got appointment pursuant to the order of the court, and they have crossed upper age limit. Shri Kumawat on being instructed by RPSC has agreed to permit the petitioners to participate in process of recruitment. 15. In the circumstances, we direct that RPSC shall permit the candidates to participate in the process of afresh selection, by providing relaxation of age. Let the process of fresh selection be completed within a period of three months. As agreed, for three months status quo shall be maintained with regard the candidates who are in service. Pooran Mal also to be allowed participation. 16. Coming to the case of Banwari Lal, who was appointed, but on being found medically unfit, being short in height, was removed from service and now he is out of service, he cannot be permitted to participate. 17. The special appeals are disposed of accordingly. Stay applications also stand disposed of.