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2013 DIGILAW 269 (KER)

Maheen v. State of Kerala

2013-03-21

B.KEMAL PASHA, THOTTATHIL B.RADHAKRISHNAN

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JUDGMENT : Thottathil B. Radhakrishnan, J. 1. Petitioner applied for the post of Driver Grade-II (LDV) in response to Ext. P1 P.S.C. notification. The prescribed qualifications required, among other things. that the candidate must possess valid driving licence of three years standing to drive Light Motor Vehicles with driver's badge and proficiency in driving Light Motor Vehicles (to be proved by a practical test conducted by the P.S.C. during the course of selection). Petitioner possessed valid driving licence of three years standing with driver's badge on the date of the notification as well as on the last date fixed for receipt of applications. However, the badge had expired by efflux of time when he appeared for the proficiency test on 2.6.2010. On his application, Motor Vehicle Department renewed the badge with effect from 4.6.2010. P.S.C. refused to accept him as a qualified candidate. He challenged it before the State Administrative Tribunal. That failed. Hence, he challenges Tribunal's decision invoking Art. 227 of the Constitution. Petitioner's learned counsel argued that the badge having been renewed by the Motor Vehicle Department, such renewal ought to be treated as from the date of expiry of the badge and thus, the badge ought to have been treated as live throughout. He made reference to S. 15 of the Motor Vehicles Act, 1988, for short, the "M.V. Act", to argue that when an application for renewal is made within a period of thirty days after the date of its expiry, renewal shall be effected with effect from the date of its expiry and therefore, renewal of the badge by the Motor Vehicle Department should be treated to have been from the date of its expiry. Thus, it is argued that the badge should have been treated as current as on the date of the proficiency test. 2. Learned counsel for P.S.C. argued that the prescriptions in the notification issued by it would govern matters relating to selection and its operation cannot be made dependent on any presumptive situation on the basis of the provisions of the M.V. Act or of the Kerala Motor Vehicles Rules, 1989, for short, the "M.V. Rules", made thereunder. He pointed out that S. 15 of the M.V. Act relating to renewal of licence does not apply to badges' which are mandatory in terms of the M.V. Rules authorising one to drive transport vehicles. 3. He pointed out that S. 15 of the M.V. Act relating to renewal of licence does not apply to badges' which are mandatory in terms of the M.V. Rules authorising one to drive transport vehicles. 3. At the outset, we may note that the petitioner does not challenge either the notification issued by the P.S.C. or the relevant recruitment rules. Not only that, he applied for, and participated in the selection as per that notification. 4. 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 P.S.C. 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 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 P.S.C.'s notification, over which the petitioner has no dispute. The action of the P.S.C. 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 P.S.C. 5. Now, on to the laws relating to motor vehicles. S. 15 occurs in Chapter II of the M.V. 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. S. 15 occurs in Chapter II of the M.V. 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. S. 28 of the M.V. 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 S. 27, which deals with the power of the Central Government to make rules. Clause (d) of sub-section (2) of S. 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 M.V. Rules provide for issuance of authorisation to drive transport vehicles and the issuance of driver's badge authorising a person to drive a transport vehicle. R. 42 requires the driver of a transport vehicle to display the metal badge while on duty. The provisions in the M.V. Rules do not contain any provision similar to S. 15(1) of the M.V. Act. The provisions in S. 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 S. 28 of the M.V. Act. In this view of the matter, the arguments advanced on behalf of the petitioner on the basis of the provisions of the M.V. Act and M.V. Rules, cannot be accepted. Resultantly, we do not find any ground to interfere with the impugned decision of the Tribunal. In the result, this Original Petition is dismissed. No costs.