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2014 DIGILAW 355 (PAT)

Anil Yadav v. Bihar Agricultural University

2014-03-14

MIHIR KUMAR JHA

body2014
JUDGMENT : MIHIR KUMAR JHA, J.:–Heard learned counsel for the parties. 2. In all these three writ petitions the petitioners who are working as drivers on contractual/temporary basis in the different offices and establishment of Bihar Agricultural University, Sabour (hereinafter referred to as the University) have sought to assail the Advertisement No. 3 of 2012 dated 02.05.2012 so far it relates to laying down of qualification for appointment on the post of driver in the University. Their challenge to the aforementioned advertisement is only confined to laying down of the requirement/possessing of both licence of L.M.V (Light Motor Vehicle) and H.M.V (Heavy Motor Vehicle). 3. In C.W.J.C No. 12248 of 2013, there are two petitioners namely, Anil Yadav and Nago Chauhan who have claimed that they are working on contractual basis for a very long period of time commencing from 1987 as is sought to be supported from the certificates enclosed by them vide Annexures-1, 2 and 4 in this writ application. According to them the University for the post of Driver had earlier prescribed the qualification of possessing only driving licence of L.M.V. In this regard they have stated that when the post of driver was advertised on 27.05.2006, only driving licence of L.M.V with one year experience was required and therefore, prescribing the qualification of driving licence of both L.M.V and H.M.V., in the impugned advertisement would directly and adversely affect them. 4. In this regard it has also been explained that in the University and in its Krishi Vigyan Kendra there are merely two types of vehicles i.e Bolero and Tractor and therefore, if the petitioners have the experience of long number of years in driving Light Motor Vehicle (L.M.V), they cannot be edged out in course of consideration for appointment on the post of Driver in regular establishment. It has also been highlighted that the University in order to accommodate large number of temporary/contractual employees has also reduced academic qualification from matriculation to class-VIII and therefore, it ought to have not insisted by prescribing the requirement of driving licence of both Light Motor Vehicle (L.M.V) and Heavy Motor Vehicle (H.M.V) for making regular appointment on the post of drivers. Reliance in this regard has also been placed to the decision of the University dated 06.05.2008, wherein, the University had agreed to lay down the qualification for filling up the post of employees in Krishi Vigyan Kendra of the University as per the Rules and provision made in the State Government. Mr. Ojha, learned counsel appearing on behalf of the petitioners submits that even in the State Government the essential qualification for driver is by way of having driving licence of Light Motor Vehicle (L.M.V) only. 5. The case of the four petitioners of C.W.J.C No. 12249 of 2013 namely, Mr. Manoj Kr Prajapati, Ram Pravesh Paswan, Vijay Kumar and Sushil Kumar Yadav is almost similar to earlier cases of the two petitioners of C.W.J.C No. 12248 of 2013. These four petitioners also claim to have been appointed and continuing on contractual/temporary basis for a long period of time and their services are being utilized for driving Light Motor Vehicle (L.M.V.) in the University. 6. In C.W.J.C No. 14828 of 2013, there are three petitioners namely, Akhilesh Kumar Singh, Baliram Kumar and Ramanand Kumar, who while seeking the same relief have also raised the question of rationality to lay down the qualification of driving licence of Heavy Motor Vehicle (H.M.V) for filling up of the post of driver. They too claim to have been working in the University on contractual basis from 04.07.2009 and all of them have also asserted that while they have the driving licence of Light Motor Vehicle (L.M.V) the University also in past has always prescribed the driving licence of L.M.V., to be the essential qualification for filling up of the post of drivers. To that extent reliance has been placed by them on Advertisement No. 02 of 2004 dated 04.11.2004 and Advertisement No. 02 of 2008 dated 29.03.2008 wherein for the posts of Driver the requisite qualification was that of L.M.V. driving Licence. According to them they had filed their application in response to the impugned advertisement and they were denied the admit card for appearing in the selection test on the ground that they did not possess the driving licence of Heavy Motor Vehicle (H.M.V). 7. By filing supplementary affidavit on 17.09.2013, the petitioners of C.W.J.C No. 14828 of 2013 have also brought on record that the petitioner no. 1, Akhilesh Kumar Singh, petitioner no. 2, Baliram Kumar and petitioner no. 7. By filing supplementary affidavit on 17.09.2013, the petitioners of C.W.J.C No. 14828 of 2013 have also brought on record that the petitioner no. 1, Akhilesh Kumar Singh, petitioner no. 2, Baliram Kumar and petitioner no. 3, Ramanand Kumar, have also obtained licence of H.M.V on 20.07.2013 and 16.08.2013 respectively and even petitioner no. 2 was in the process of getting such H.M.V. Driving Licence for which he had filed his application before the prescribed authority. 8. Let it be noted that the counter affidavit has been filed only in C.W.J.C No. 14828 of 2013, wherein, it has been stated that the University is quite liberal to the candidates for considering appointment on the post of drivers of those persons working on contractual basis as drivers in regular establishment. 9. It has also been stated that the driver like petitioner no. 1 Akhilesh Kumar Singh in C.W.J.C No. 14828 of 2013 who has already obtained driving licence for Heavy Motor Vehicle (H.M.V) would be allowed to appear in the skill test and participate in the interview and if other petitioners also would produce such driving licence of Heavy Motor Vehicle before commencement of the interview, their cases could also be considered. 10. To that extent the approach of the University seems to be quite considerate and helpful to the petitioners as would be apparent from paragraph nos. 6 and 7 of the counter affidavit which reads as follows:– "That the University is liberal in entertaining the candidature of the Drivers working as casual driver in the University in the matter of regular appointment. That in view of the aforesaid facts and circumstances the writ petition may be disposed of as the Respondents is advised not to rise technical or other issues and as such detail counter affidavit is not being filed in this case. If this Hon'ble Court requires detail counter affidavit the University will file parawise reply to the writ petition." 11. Mr. If this Hon'ble Court requires detail counter affidavit the University will file parawise reply to the writ petition." 11. Mr. Upadhayay, learned counsel appearing on behalf of the University, however, in course of his submission has sought to justify and inclusion of driving licence of both Light Motor Vehicle and Heavy Motor Vehicle on the ground that the University is bound by the directions given by the Indian Council of Agricultural Research (ICAR) and to that extent reliance has been placed by him on a communication dated 21.02.2008, which lays down that the qualification for the post of driver in Krishi Vigyan Kendra would require matriculation with driving licence of both Heavy Motor Vehicle and Light Motor Vehicle as also five years experience of driving of a Car or Jeep or Minibus. 12. In the considered opinion of this Court, while there can be no two views in law that it is always open for the employer to lay down qualification for a post but then such qualification must meet the object and nexus sought to be achieved. 13. At the outset, this Court must clarify that Indian Council of Agricultural Research (ICAR) may be within its jurisdiction while laying down academic and research standards in the Agricultural Universities including the University but so far it relates to appointment on class-III/IV posts including the posts of Drivers Indian Council of Agricultural Research (ICAR) has absolutely no role to play. 14. The power of laying down qualification for filling up the post of drivers in the University and its Krishi Vigyan Kendra has to be infact exercised by the University which under Chapter-2 of the Bihar Agriculture University Act 1987 has been vested with the power and functions of creating the post and appointing persons to such posts without any intervention of the Indian Council of Agricultural Research (ICAR). Under Chapter-5 of the Act, it is the University which has been vested with the power to lay down the service condition as also procedure for appointment, selection and fixation of pay and allowances and other service condition of teachers and staff of the University as prescribed in the statutes. The only restriction on the University and its Colleges or Institution as with regard to creating teaching and non-teaching post incurring financial liability or increasing pay and allowances of the staff is prior sanction of the State Government. 15. The only restriction on the University and its Colleges or Institution as with regard to creating teaching and non-teaching post incurring financial liability or increasing pay and allowances of the staff is prior sanction of the State Government. 15. The statutes framed under the Act under Chapter-17 lay down the qualification for appointment on teaching and non-teaching administrative post of the University as also composition of appointing authority and item no. 19 involving the post with a minimum pay not exceeding Rs. 699/- which would also include the non-teaching post of a driver, has to be filled up on the basis of qualification laid down by the Board of Management of the University from time to time. Thus on an over all view of the matter, this Court either from the reading of the Act or the Statutes would not find any role assigned to the Indian Council of Agricultural Research (ICAR) to lay down the qualification for the post of driver in the University. 16. As a matter of fact, even when the Indian Council of Agricultural Research (ICAR) has laid down the minimum educational qualification of matriculation for the post of driver it is not in dispute that the University for working employees on contract/temporary basis has lowered down the same to class-VIII Pass only in terms of the agreement arrived between the employees of the association and the University vide Memorandum of Understanding (MOU) dated 04.08.2009. In fact if this Memorandum of Understanding has got any credibility, which it must have, on account of consensus arrived at in the meeting between the officials of the University and the representatives of the employees association, the same itself would go to show that by and large the parameters followed by the State Government for filling up Class-III and IV posts was to be also made applicable in the University. This Memorandum of Understanding having been circulated by an executive order of the University will, therefore bind the University also in the same manner. 17. Based on the aforesaid memorandum of understanding not only the maximum age limit has been relaxed in the case of employees working in the University in the impugned advertisement itself but even the educational qualification has been lowered for working employees from matriculation to Class-VIII Pass. 17. Based on the aforesaid memorandum of understanding not only the maximum age limit has been relaxed in the case of employees working in the University in the impugned advertisement itself but even the educational qualification has been lowered for working employees from matriculation to Class-VIII Pass. This Court therefore will have no hesitation in accepting the submission of learned counsel for the petitioners that the decision taken by the State Government so far it relates to filling up the post of class-III/IV employees in the University including the post of driver will also bind both the University and the employees. 18. At this stage it has to be kept in mind that the State Government in exercise of its power under proviso to Article 309 of the Constitution of India has framed Bihar Driver (Appointment and Service Condition) Rules-2006 which while classifying post of driver into three categories lay down that the post of basic grade of driver shall be filled up by direct recruitment for which the while minimum educational qualification shall be class-VIII pass, it would be also necessary for a person to have a legal driving licence issued in his name for driving four wheelers. Thus from the Rules of the State Government, it becomes clear that there is no requirement of driving licence of the Heavy Motor Vehicle in the offices and establishment of State Government. 19. As a matter of fact even in the impugned advertisement while the requirement of driving licence of both Light Motor Vehicle and Heavy Motor Vehicle has been prescribed but at the same time experience of driving any vehicle (four wheeler) for a period of two years only has been made compulsory. Thus, whatever has been prescribed as qualification for the post of driver of the University in the impugned advertisement cannot be said to be strictly in keeping with the requirement laid down by the Indian Council of Agricultural Research (ICAR). 20. The experience clause of driving any vehicle in the impugned advertisement infact is more or less in tune of the Government Rules whereas the requirement of driving licence of both L.M.V., and HMV is as per the ICAR guidelines. It has to be, also kept in mind that ICAR in its norms has laid down a minimum five years experience of driving a Car or a Jeep or Mini-Bus for the post of Driver. It has to be, also kept in mind that ICAR in its norms has laid down a minimum five years experience of driving a Car or a Jeep or Mini-Bus for the post of Driver. Such optional experience clause in the ICAR guidelines therefore itself does not make it compulsory of possessing experience of driving a Heavy Motor Vehicle because a Car is not a Heavy Motor Vehicle nor even a Jeep is also not a Heavy Motor Vehicle. A Mini-Bus however can be said to be a Heavy Motor Vehicle but then the work of driver in the University does not involve driving of a Mini Bus. 21. Thus, on a conjoint reading of both the requirement of the University where there are mainly two types of vehicles namely, Bolero or Tractor, it cannot be said that the ICAR infact guidelines have been strictly taken into account while issuing the impugned advertisement. 22. In the backdrop of the aforementioned findings, it becomes clear that for the first time in the history of the University the post of driver was sought to be filled up by prescribing the driving licence of Light Motor Vehicle and Heavy Motor Vehicle as essential qualification, inasmuch as, it has not been denied by the University that earlier in the year 2004 and again in the year 2008 when the post of driver was advertised the requirement was only of having the driving licence of Light Motor Vehicle. 23. All these petitioners are working for a long number of years and they are also discharging their duty as driver on temporary/contract basis in the University. These, petitioners therefore have a legitimate expectation of being selected and appointed on the vacant post of drivers. In fact some of them like the petitioners of C.W.J.C No. 14828 of 2013 have also obtained the driving licence of Heavy Motor Vehicle during the pendency of these writ applications. The persons like the petitioners working on contract/temporary basis are a class by themselves for whom the University itself has already lowered the prescribed the educational qualification or the maximum age as per the Memorandum of Understanding between the University and its employees association. Thus, the persons alike the petitioners cannot be eliminated altogether for being considered only because they or some of them have still not obtained the driving licence of Heavy Motor Vehicle. 24. Thus, the persons alike the petitioners cannot be eliminated altogether for being considered only because they or some of them have still not obtained the driving licence of Heavy Motor Vehicle. 24. At this stage, it would be also relevant to take into account the basic difference between the essential qualification and desirable qualification for appointment on the post in question on regular basis. As noted above nowhere either in the University itself or in the State Government possessing the licence of Heavy Motor Vehicle (HMV) is a condition precedent for appointment on the post of driver. In fact the I.C.A.R guidelines also lay down that experience even of Light Motor Vehicle (LMV) such as car or jeep would be good enough for consideration for appointment on the post of driver. 25. In such circumstances, this Court will have no difficulty in holding that the purpose of selecting drivers by way of regular appointment in the University could have better achieved if the qualification could have been confined to possessing of licence of Light Motor Vehicle (LMV) with preference to those who also possess the licence of Heavy Motor Vehicle (HMV). As a matter of fact if the University could have got the candidates either from the open market or from its own working drivers on contract/temporary basis of both types i.e. having licence of Light Motor Vehicle (LMV) or Heavy Motor Vehicle or both the driving licence of LMV and HMV, it could have made selection on the basis of their performance in the selection test by giving some weightage to the persons also possess the driving licence of HMV. In any event, however, when the job of a driver in the University involves mostly driving of Light Motor Vehicles, the candidates including the petitioners working in the University on contract/temporary basis having only the driving licence of LMV cannot be altogether eliminated. 26. As noted above there are 40 posts of drivers which are sought to be filled up by the University and therefore, if the large number of vehicles in the University is only light Motor Vehicles be it Car or Bolero or Jeep, the persons like the petitioners cannot be altogether eliminated from the zone of consideration. 26. As noted above there are 40 posts of drivers which are sought to be filled up by the University and therefore, if the large number of vehicles in the University is only light Motor Vehicles be it Car or Bolero or Jeep, the persons like the petitioners cannot be altogether eliminated from the zone of consideration. In fact, the experience clause of the advertisement by itself would be sufficient to indicate that driving experience of a heavy motor vehicle is not a condition precedent and therefore absence of driving licence of heavy motor vehicle even otherwise cannot be made a condition precedent for regular appointment on the post of driver in the University. 27. Judged from all these angles, this Court will have no difficulty in coming to a conclusion that the petitioners would be entitled for consideration of their cases for appointment on the post of drivers even on the basis of their having only driving licence of Light Motor Vehicle. In the event, the petitioners or some of them are selected and appointed, they can be given a period of at least two years for also obtaining the licence of Heavy Motor Vehicle so that their services can be better utilized even for driving Heavy Motor Vehicle in the shape of a Tractor but for the time being they would be required to be considered for the post of drivers with all other eligible candidates on the basis of their having driving licence of Light Motor Vehicle. 28. Thus for the reasons indicated above, all these applications are allowed and the impugned advertisement so far it lays down the requirement of possessing the licence of HMV for appointment on the post of driver is hereby quashed. In view of the fact that not only the petitioners but others who may have been eliminated and disqualified on account of the aforementioned provision of possessing both driving licence of Light Motor Vehicle (L.M.V) and Heavy Motor Vehicle (HMV) and thus not called for interview/selection, this Court would direct for issuance of a fresh advertisement for the post of driver wherein the driving licence of only Light Motor Vehicle (L.M.V) should be made the essential qualification. 29. 29. This Court hopes and believes that such an advertisement followed by selection for appointment on the vacant post of drivers in the University shall be completed within a period of six months from the date of receipt of this order. 30. With the aforementioned observations and directions all these applications are disposed of.