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Rajasthan High Court · body

2011 DIGILAW 1889 (RAJ)

Nirmal Kumar Jain v. R. S. R. T. C.

2011-09-02

M.N.BHANDARI

body2011
Hon'ble BHANDARI, J.—The respondent- Rajasthan State Road Transport Corporation (for short `the Corporation') issued an advertisement for filling up various posts including the posts of Driver and Conductor. The first advertisement for the aforesaid posts was issued bearing advertisement No. 219/2009-10 dated 5.3.2010. That was, however, not given effect and another advertisement was issued for the same post on 24.9.2010 bearing No. 152/2010-11. In the second advertisement, it was provided that the applicants, who had submitted applications pursuant to the earlier advertisement, need not to apply again. The selections for different posts were accordingly held pursuant to the advertisement dated 24.9.2010. 2. Before the advertisement dated 24.9.2010, an office order dated 23.4.2010 was issued indicating about Board's resolution to amend the schedule to the regulations for qualification of the posts of Driver and Conductor and its approval by the Government vide its letter dated 22.4.2010. By virtue of the amendment in the Schedule to the regulations, a Driver or Conductor was required to possess qualification of secondary apart from driving licence of heavy motor vehicle and conductor's licence along with batch. For the post of Driver, 3 years experience was also required. The amendment was made effective since 18.2.2010. By these writ petitions, a challenge has been made to the aforesaid amendment. 3. With the consent of all the parties, matter is heard by this Court as amendment in regulations is not by legislative process, hence, matter can be heard by Single Bench. 4. Learned counsel for petitioners submit that amendment in Schedule appended to the regulations is illegal being in violation of the provisions of the Motor Vehicle Act, 1988 (for short `the Act of 1988') and the Rajasthan Motor Vehicles Rules, 1990 (for short `the Rules of 1990'), thus amendment deserves to be set aside so as the relevant clauses in the advertisement providing qualification for the posts of Driver and Conductor other than provided under the provisions of the Act of 1988 and the Rules of 1990. It is submitted that the Act of 1988 and the Rules made thereunder provides qualifications and conditions to obtain licence for driver as well as for conductor. The Corporation is not authorized to provide different qualification for Conductor and Driver for their appointment. The Corporation provided qualification of secondary for Driver as against the required qualification of Class VIII. It is submitted that the Act of 1988 and the Rules made thereunder provides qualifications and conditions to obtain licence for driver as well as for conductor. The Corporation is not authorized to provide different qualification for Conductor and Driver for their appointment. The Corporation provided qualification of secondary for Driver as against the required qualification of Class VIII. At the same time, a condition is provided for the Driver to have a conductor licence along with batch and for a Conductor to have a driving licence of heavy motor vehicle though such qualification for a Conductor and Driver is not provided under the Act of 1988. Thus, the office order dated 23.4.2010 and the amendment as made by the Corporation indicated therein becomes illegal being in conflict to the Central Act and the Rules made thereunder. The Corporation is not having the legislative competence, hence, the Act and the Rules made by the Legislature cannot be annulled by them. The powers of the Corporation are limited for framing of the regulations by virtue of Section 45 of the Road Transport Corporation Act, 1950 (for short `the Act of 1950'). By amendment in Section 45 of the Act of 1950, previous sanction of the State Government and notification in official gazette is a pre-condition to make the regulations. In the present matter, there exists no gazette notification in regard to the amendment in the regulations, hence, amendment under the Board's resolution and sanctioned by the Government cannot be given effect unless a gazette notification is issued. However, the Corporation has given effect to the amended regulation in an illegal manner and thereby all the petitioners were debarred to participate in the selection. This Court, however, passed interim order whereby most of the petitioners were permitted to appear in the written examination and in few other cases in trade test. Looking to the aforesaid, the impugned office order and the amendment in the regulations carried out by the Corporation may be declared as illegal. 5. The object to make amendment in the regulations is that with the introduction of new Volvo & Mercedes Buses with IDMI, GPS & remote control along with an electronic machine, Conductors may not be required by the Corporation. In fact, after 5-6 years, there would be no requirement of Conductor. 5. The object to make amendment in the regulations is that with the introduction of new Volvo & Mercedes Buses with IDMI, GPS & remote control along with an electronic machine, Conductors may not be required by the Corporation. In fact, after 5-6 years, there would be no requirement of Conductor. The amendment in the regulations have been made only on the aforesaid ground, if the original record of the Corporation is looked into. The resolution though further provides that looking to the latest technology, the Corporation would require trained Drivers and Conductors acquainted with the new technology. The Corporation, while passing the resolution for the reasons mentioned aforesaid, failed to consider that as per the provisions of Rule 3.2 of the Rules of 1990, stage carriage buses cannot be plied without a Conductor. Rules provide that every bus should have a Driver as well as a Conductor. Separate duties are assigned to both, Driver and Conductor. The Government while granting sanction to the amendment in the regulation, failed to consider that without a Conductor a bus cannot be plied, unless the Rules of 1990 are amended. Thus, very object and basis to amend Corporation's regulation is contrary to the Rules of 1990. Looking to the aforesaid reason also, the amendment in the regulations deserves to be set aside. 6. It is further urged that in few cases, petitioners are eligible for the post of Driver/Conductor, but disqualified for want of batch. Petitioners were not given batch by the Transport Department of the State Government due to its unavailability though they were granted licence much prior to the last date of submission of the applications pursuant to the advertisement. In the aforesaid circumstances, one cannot be disqualified in absence of batch because it is on account of default of the State Government that batch was not given to some of the petitioners in time. 7. Learned Advocate General, Mr. G.S. Bapna, appearing on behalf of the Corporation on the other hand, supported the amendment and the office order issued by the Corporation followed by an advertisement for selection to the posts of Driver and Conductor apart from other post. 7. Learned Advocate General, Mr. G.S. Bapna, appearing on behalf of the Corporation on the other hand, supported the amendment and the office order issued by the Corporation followed by an advertisement for selection to the posts of Driver and Conductor apart from other post. It is stated that Section 9(4) read with Section 27(g) of the Act of 1988 provides only about minimum qualification of Driver to be prescribed by the Central Government, thus Act of 1988 does not debar for prescribing higher qualification for a Driver to seek appointment. Similar issue was considered by the Hon'ble Apex Court in the case of S. Satyapal Reddy and others vs. Government of A.P. and others reported in 1994 (4) SCC 391 and recently in the case of State of Uttar Pradesh and others vs. Bhupendra Nath Tripathi and others reported in 2010(13)SCC 203. It was held that the Central Act provides minimum qualification, thus the State Government is not debarred to provide higher qualification, hence, there exists no repugnancy in the Central and the State Legislations, thus both can go together being reconcilable. 8. Coming to the Rules of 1990, it submitted that stage carriage is required to run the bus with a Driver as well as Conductor and Corporation is not going to flout the Rules as they would run their buses with the Driver and the Conductor. The amendment in the regulations has been made after taking into consideration certain emergent requirement of a Driver to work as a Conductor and a Conductor to work as a Driver. This is to avoid disturbance of the Schedule of the buses on account of absence of a Driver or a Conductor vice-versa or to take note of such similar contingencies. The Corporation has no intention to ply bus without a Conductor, hence by virtue of the amendment in the regulations, there would be no violation of the Rules. 9. Learned Advocate General further states that the confusion is created by the petitioners by referring to the provisions of the Act of 1988 and the Rules made thereunder as it has not been noticed that those provisions do not exist to prescribe qualification of Conductor and Driver for their appointment in the Corporation. 9. Learned Advocate General further states that the confusion is created by the petitioners by referring to the provisions of the Act of 1988 and the Rules made thereunder as it has not been noticed that those provisions do not exist to prescribe qualification of Conductor and Driver for their appointment in the Corporation. The conditions for appointment can be provided by the Corporation in view of the provisions of Section 45 of the Act of 1950, thus amendment in the regulation by the Corporation is as per the powers given to them under Section 45 of the Act of 1950 and such powers are not subjected to any other provision in any other Act, hence, regulation so framed by the Corporation is legal and valid. The intention of the Corporation is to introduce quality buses with latest technology and at the same time to make them cost effective by curtailing avoidable expenditure. Thus, looking to the good intention of the Corporation, amendment may be saved. 10. Learned Advocate General was fair enough to concede that amendment so sanctioned by the Government has not been notified in the gazette as yet. It is submitted that issue aforesaid has not been raised by any of the petitioners in the petitions, but raised during the course of arguments. Hence, reply to the writ petition does not cover the aforesaid aspect, may it be a legal issue. 11. It is urged that the regulations so amended would be sent for notification in the gazette in the near future, but for that reason, selection may not be annulled as Corporation has incurred more than a sum of Rs. 1 crore for the said selection. This is more so when most of the candidates approached this Court have already allowed their participation in the written examination and even in few cases, for trade test also. Thus, petitioners, who have appeared in the written examination and obtained required cut off marks, would be permitted for trade test, if anybody is left out from his appea-rance in the trade test after qualifying the written examination by securing required cut off marks. The Corporation will conduct the trade test for them within the time frame given by this Court, but consideration of the candidature of said petitioners for appointment to the post of Conductor and Driver would be subject to obtaining merit position. The Corporation will conduct the trade test for them within the time frame given by this Court, but consideration of the candidature of said petitioners for appointment to the post of Conductor and Driver would be subject to obtaining merit position. They may further be commanded to obtain required qualification and respective licence within a period of two/ three years from the date of gazette notification of the amended regulations. This is more so when similar controversy has already been decided by this Court in the case of Deep Singh & 10 Ors. vs. RSRTC & Anr. reported in 2010(4) WLC (Raj.) 308. The aforesaid judgment is based on earlier judgment in the case of Sohan Lal vs. RSRTC & Ors.-S.B. Civil Writ Petition No.4167/2010 decided on 28.4.2010 holding that condition to obtain driving licence of heavy motor vehicle by the Conductor cannot be held to be illegal. 12. I have heard learned counsel for parties and scanned the matter carefully. 13. The challenge to the amended regulations has been mad on various grounds. The main ground urged for challenge to the amended regulations is that it is in violation of the Act of 1988 and Rules mad thereunder. The defence put forwarded by the respondents is in reference to Section 45 of the Act of 1950. Before averting to other arguments, it would be necessary to look into the provisions of Section 45 of the Act of 1950 from where Corporation takes powers to frame regulations. The aforesaid provision is thus quoted hereunder:- "45. Power to make regulations-(1) A Corporation may, with the previous sanction of [the State Government and by notification in the Official Gazette], make regulations, not inconsistent with this Act and the rules made thereunder, for the administration of the affairs of the Corporation. The aforesaid provision is thus quoted hereunder:- "45. Power to make regulations-(1) A Corporation may, with the previous sanction of [the State Government and by notification in the Official Gazette], make regulations, not inconsistent with this Act and the rules made thereunder, for the administration of the affairs of the Corporation. (2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:- (a) the manner in which, and the purposes for which, persons may be associated with the [Board] under Section 10; (b) the time and place of meetings of the [Board] and the procedure to be followed in regard to transaction of business at such meetings; (c) the conditions of appointment and service and the scales of pay of officers and [other employees of the Corporation other than the Managing Director, the Chief Accounts Officer and the Financial Adviser or, as the case may be, the Chief Accounts Officer-cum-Financial Adviser]; (d) the issue of passes to the employees of the Corporation and other persons under Section 19; (e) the grant of refund in respect of unused tickets and concessional passes under Section 19." 14. Perusal of the provisions quoted above shows that Corporation can frame the regulations with previous sanction of the State Government and by notification in the official gazette. The regulations may provide condition of appointment and service and scale of pay of the officers other than of Managing Director, Chief Accounts Officer and Financial Adviser etc Section 45, as originally existing, was not providing a condition of gazette notification of the regulations, however, aforesaid provision was substituted by the Act 4 of 2005. As per the amendment made, following words were added under Section 45 of the Act of 1950, which are "and by notification in official gazette." By virtue of the amendment of the year 2005, regulations can be framed or amendment can be made, in the manner indicated under the amended provisions of Section 45 of the Act of 1950. 15. It is not disputed by learned Advocate General that the amendment in regulations have not been notified in the gazette though it has come much after the amended provisions of Section 45 of the Act of 1950. 15. It is not disputed by learned Advocate General that the amendment in regulations have not been notified in the gazette though it has come much after the amended provisions of Section 45 of the Act of 1950. In the light of the aforesaid, amendment in regulations cannot have effect till it is notified in the gazette and aforesaid issue has not been disputed by the learned Advocate General, who admitted, on the instruction of the officers present in the court, that after sanction of the Government for amendment in the regulations, it was not sent for gazettee notification. 16. The only prayer made by learned counsel for respondent Corporation is to allow them to send the amended regulations for gazette notification now and at the same time to save the selection by issuing necessary directions as indicated while arguing the matter. 17. The side opposite i.e. learned counsel for petitioners agreed that after gazette notification of the amended regulations, petitioners will obtain required licence within a period of two years and even qualification of secondary class for the post of Driver within three years. It is further agreed that a condition can be imposed to that effect by the Corporation while issuing the appointment orders, but then period of two years should be reckoned from the date of gazette notification of the amended regulations. The petitioners may, accordingly, be considered eligible for the posts of Driver and Conductor without imposing a condition of required qualification as per the amended regulations. 18. So far as the judgment of this Court in the case of Sohan Lal vs. RSRTC & Ors. (supra) and subsequent judgment in the case of Deep Singh & 10 Ors. vs. RSRTC & Anr. (supra) are concerned, they were in respect of the first advertisement issued and were not involving the challenge to the amendment regulations. The writ petitions therein were dismissed holding conditions of driving licence of heavy motor vehicle for the post of Conductor after considering the advertisement, but therein petitioners failed to refer or argue the matter that qualification provided under the regulations, then existing, were different than provided in the advertisement. The writ petitions therein were dismissed holding conditions of driving licence of heavy motor vehicle for the post of Conductor after considering the advertisement, but therein petitioners failed to refer or argue the matter that qualification provided under the regulations, then existing, were different than provided in the advertisement. In fact, first advertisement was consist of qualifications of Driver and Conductor without an amendment in the regulations, thus was not valid and it is therefore only Corporation not only issued subsequent advertisement, but it was after the amendment in the regulations with previous sanction of the Government though without getting it notified in the gazette. Since legal provisions applicable to the present matter were not brought to the notice of the court while arguing the matter aforesaid, judgments were rendered therein based on the arguments made by those petitioners. Conversed to the aforesaid, detailed arguments have been made in this case in reference to the legal provisions and have been dealt with accordingly, thus judgments in the two cases referred aforesaid, are based on distinguishable facts, hence, not applicable even if few writ petitions were dismissed by the Coordinate Bench of this Court, as any judgment contrary to the statutory provision otherwise remains per-incuriam. Accordingly, judgments in the cases of Sohan Lal and Deep Singh (supra) provide no assistance to the Corporation. 19. In view of the discussion made above, I am not required to go into other aspects of the matter, like conflict of regulations with the provisions of Act of 1988 and the Rules made thereunder as learned Advocate General agreed to look into the Rules of 1990 for amendment, if in future Corporation needs to ply/run their business without a Conductor and thereby to give dual responsibilities to the Driver and at the same time, to have an arrangement to use Driver and Conductor with interchangeable duties in certain contingencies. Looking to all these facts, issue remains for my consideration is that as to what relief can be granted to petitioners. 20. The issue aforesaid was argued by both the parties and they agreed that selection made to the post of Conductor/Driver may not be disturbed as the Corporation has incurred more than Rs. 1 crore and they are in need of Driver/Conductor to ply buses smoothly for the convenience of the public at large. 20. The issue aforesaid was argued by both the parties and they agreed that selection made to the post of Conductor/Driver may not be disturbed as the Corporation has incurred more than Rs. 1 crore and they are in need of Driver/Conductor to ply buses smoothly for the convenience of the public at large. In view of the agreement on the issue of relief by both the parties, these writ petitions are disposed of with the following directions and observations:- 1. The Corporation will not effect order dated 23.4.2010 and amendment specified therein, on the petitioners, till it is notified in the gazette. 2. The petitioners, who have already appeared in the written examination either under the interim order of this court or at the instance of the Corporation, would be eligible to appear in the trade test provided they have obtained required cut off marks or qualifying marks in the written test. 3. The petitioners, who have already undergone for written examination and also for trade test, would be considered for their appointment to the posts of Driver or Conductor, as the case may be, provided they have obtained merit position in the selection and subject to qualifying interview or medical test, as the case may be and if any. 4. Those petitioners, who were not in possession of the qualification as per unamendment regulations of the Corporation on the last date of submission of the application i.e. 24.9.2010, will have no right of consideration for appointment to the posts of Driver and Conductor, as the case may be. 5. The Corporation would be at liberty to request the State Government for sending amended regulations for its gazette notification and State Government would also be at liberty to make amendment in the Rules of 1990, if they so wish, after taking note of proposed changes in the working of the Corporation with the introduction of buses with new technology. 6. If any of the petitioners obtained merit position for their appointment on the posts of Driver or Conductor, as the case may be, then they have agreed to possess required qualification as provided under amended regulations within a period of two years, if amended regulation is notified in a gazette and period of two years would be counted from the date of gazette notification. In case, they failed to obtain the required qualification within the period given above, liable to be discontinued from the services of the Corporation. However, to obtain the qualification of secondary class a period of 3 years from the date of notification would be admissible for them to obtain the required qualification. The aforesaid condition may be incorporated while issuing appointment orders. 7. The Corporation will run their buses in compliance of the Rules of 1990 unless amended by the Government to have a provision to run a bus without a Conductor. 8. Directions referred to aforesaid would be applicable only to petitioners before this High Court and appeared in the written examination. This is to avoid delay in completion of selections. 9. Respondent Corporation has agreed not to debar any candidate for want of batch, till it becomes available with the Transport Department. 10. Aforesaid arrangement has been agreed by both the parties so that selection is not disturbed. This is more so when it is unknown to everyone as to whether any of the petitioners will fall in the merit to get appointment because result of the selection is yet to be declared by the Corporation. Directions aforesaid are thus kept limited to the petitioners as given by the Hon'ble Apex Court in the case of Sanjay Singh vs. U.P. Public Service Commission, Allahabad and another reported in JT 2007(2) SC 534 wherein holding application of scaling for selection to the Judicial Services to be illegal, selection was not disturbed so as the application of scaling and marks reduced therein, however, relief was granted limited to the petitioners, if they obtained merit position vis-a-vis selected candidates.