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2018 DIGILAW 116 (KER)

Biju T. S. v. Kerala Public Service Commission

2018-02-02

MARY JOSEPH, P.R.RAMACHANDRA MENON

body2018
JUDGMENT : P.R. Ramachandra Menon, J. 1. Interference declined by the Tribunal with regard to the challenge raised by the petitioner against rejection of his candidature by the Public Service Commission (P.S.C.) for appointment to the post of Assistant Motor Vehicle Inspector is under challenge in this original petition. 2. The P.S.C. issued Annexure A1 Notification dated 26.12.2014 for selection and appointment to the post of Assistant Motor Vehicle Inspector, stipulating the qualifications and experience. According to the petitioner, he satisfied all the requirements and accordingly, an application was submitted, but the same came to be rejected by the P.S.C. as per Annexure A9 dated 22.12.2016. The reason stated for rejection was that the petitioner was not having the requisite experience as stipulated in the Notification, which was sought to be disputed by the petitioner. The case projected by the petitioner is that, he was working as a Technician designated as GTM in the Leela Kovalam Beach Resort (Pvt.) Ltd. Kovalam, who is having their own infrastructure and was running a workshop attending various vehicles including light motor vehicles as well as heavy motor vehicles. It is stated that the petitioner gathered experience as revealed from Annexure A5 series of certificates and Annexure A8 certificate countersigned by the fifth respondent-Assistant Labour Officer, Neyyattinkara. 3. The certificates were verified by the competent authority in terms of Annexure A7 Circular, despite which, rejection was made by the P.S.C. vide Annexure A9. It is also pointed out that the P.S.C. had initially sought for a clarification from the District Labour Officer as to whether the post held by the petitioner as GTM could be recognised as a post equivalent to the post for which experience is stipulated and further whether the same could be reckoned for the purpose of selection. It is also stated that a negative report was submitted by the fourth respondent (copy of which has been produced as Annexure R1(a) along with the reply statement filed on behalf of the first respondent in the OA). The petitioner preferred a complaint (Annexure A12) to the second respondent against the proceedings of the fourth respondent, pursuant to which a report was called for and the outcome was intimated to the petitioner as per Annexure A13. The petitioner preferred a complaint (Annexure A12) to the second respondent against the proceedings of the fourth respondent, pursuant to which a report was called for and the outcome was intimated to the petitioner as per Annexure A13. This made the petitioner to challenge the proceedings by filing the Original Application with the following prayers:- “(i) Call for the records leading to Annexure A-9,A-10 and A13. (ii) Quash/set aside Annexure A-9 and A-10. (iii) Direct the 1st respondent to permit the applicant to participate in the further selection process for appointment to the post of Assistant Motor Vehicles Inspector by treating the application submitted by him in pursuance to Annexure A-1 Notification as valid. (iv) Direct the 1st respondent to include the applicant in the rank list to be published for appointment to the post of Assistant Motor Vehicles Inspector, considering Annexure A-6 Verification Certificate. (v) Declare that, the designation of the post in which the applicant has gained work experience in the Automobile Workshop as certified in Annexure A-8 is irrelevant, while considering the qualification of working experience to be gained for applying for the post notified in Annexure A-1.” 4. The reliefs sought for were resisted from the part of the Public Service Commission, who filed Ext.P2 reply statement. The petitioner filed Ext.P3 rejoinder, also producing some additional documents as Annexure A14 and A15, virtually trying to make an attempt to substantiate that several vehicles were being attended to by the petitioner at the relevant time in the workshop belonging to the hotel. The petitioner also placed reliance on Ext.P4 verdict passed by the Division Bench of this Court in W.A. No. 1356/2017, wherein some observations have been made as to the scope of the meaning of the word Government approved. The Tribunal however declined interference and the O.A. was dismissed as per Ext.P5, which in turn is under challenge in this Original Petition. 5. Learned counsel for the petitioner points out that the contentions of the petitioner have not been properly evaluated by the Public Service Commission and also by the Tribunal. It is contended that the experience gathered by the petitioner by virtue of placement as G.T.M. in the workshop of the Leela Kovalam Beach Resort (Pvt. Ltd.) is adequate enough to be in conformity with Annexure A1 Notification. It is contended that the experience gathered by the petitioner by virtue of placement as G.T.M. in the workshop of the Leela Kovalam Beach Resort (Pvt. Ltd.) is adequate enough to be in conformity with Annexure A1 Notification. It will be worthwhile in this context, to note the qualifications notified in Annexure A1, as extracted below, for convenience of reference:- “7. Qualifications:- 1. Pass in SSLC or its equivalent. 2. Diploma in Automobile Engineering or Mechanical Engineering awarded by the State Board of Technical Education (3 year course). OR Any qualification in either of the above disciplines declared as equivalent to the above diplomas by the Central Government or State Government. KS & SSR Part II Rule 10(a) ii is applicable. 3. Working experience of at least 1 (One) year in a reputed (Govt. approved) automobile workshop which undertake repairs of both Light Motor Vehicles, Heavy Goods Vehicles and Heavy Passenger Motor Vehicle fitted with Petrol and Diesel Engines. (Please see Para 21 of the General Conditions) 4. Must hold a current valid driving licence authorizing him to drive Motor Cycle, Heavy Goods Vehicles and Heavy Passenger Motor Vehicles. Note: Candidates shall possess a current Driving Licence throughout all the stages of selection process as on the last date of application, OMR Test, Practical Test, Interview etc.” The question is whether the petitioner is having the experience as notified in the Notification, that is, experience of one year in a reputed Government Approved automobile workshop. 6. The first respondent in the O.A. along with the reply statement has produced a copy of the report of the fourth respondent after inspection of the infrastructure available in the workshop of the hotel where the petitioner was working. The said document clearly reveals that the petitioner was not holding the post of GTM during the period from 2.1.2012 to 18.6.2013. It is also pointed out that the petitioner was working in the I.T.D.C. as a Plumber with the qualification for appointment as Plumber and pursuant to privatization, he came to the service of the hotel by name Leela Kovalam Beach Resort (Pvt. Ltd.). Initially, it was a Technician post, but it is pointed out that, by virtue of the very nature of the institution in the private sector, there is no scope for any inspection by the authorities of the Labour Department in such institution. 7. Initially, it was a Technician post, but it is pointed out that, by virtue of the very nature of the institution in the private sector, there is no scope for any inspection by the authorities of the Labour Department in such institution. 7. However, in the enquiry conducted, it was revealed that the hotel was having 15 high-end cars, one bus and a few buggies (run on battery). The infrastructure also consists of 24 drivers, 2 cleaners, 1 Transport Manager and a Mechanic engaged on contract basis. The service of the petitioner was in respect of the electrical works. The report further proceeds to say that the enquiry did not reveal as to any repairs/maintenance works as being undertaken by the Leela Kovalam Beach Resort (Pvt. Ltd.) whether in respect of light vehicles or heavy vehicles and no such infrastructure facility was found in existence in the course of inspection. The report further says that the said authority was not in a position to certify whether the post of GTM stated as held by the petitioner was equivalent to the post envisaged for appointment as AMVI to reckon the experience in the said post. A copy of the list of Government Approved workshops for the year 2013-14 had been produced along with the reply statement as Ext.R1(b), which does not include the name of the workshop belonging to the hotel, where the petitioner was working. But there is a contention, as put forward by the learned counsel for the petitioner that the said list is not exhaustive insofar as it has been issued by the Irrigation Department and that there may be various other approved establishments, which are reckoned by other Departments as well. The fact remains that the petitioner could not procure and produce the relevant materials to show that the establishment where the petitioner was working is a Government Approved/Certified Institution so as to reckon the experience stated as gathered by the petitioner in the said institution. 8. The learned counsel points out that the issue with regard to the experience to be possessed by the persons to be appointed as AMVI, was the subject matter of consideration before this Court, leading to Ext.P4 judgment where some observations have been made in paragraph 5, as claimed to be in favour of the petitioner. The said paragraph as such is extracted below for clarity and to avoid repetition. “5. The said paragraph as such is extracted below for clarity and to avoid repetition. “5. We find that a Division Bench of this court has elaborately considered the scope of the notification issued by the Central Government under Section 213(4) of the Motor Vehicles Act, 1988 read with rule 10(ab) of the Kerala State and Subordinate Services Rules, 1959 in Sirajudheen vs. Kerala Public Service Commission, 2001 (2) KLT 268 . The Bench took the view that for appointment to the post of Assistant Motor Vehicle Inspector, requirement of working experience should be gained after acquisition of the basic qualification which is a mandatory requirement. Against the said judgment, Special Leave Petition was filed before the apex court and the same was dismissed. The fact that contesting respondents should conform to the qualification prescribed by the Central Government under Section 213(4) of the Motor Vehicles Act as well as the qualification prescribed under Rule 10(ab) of the K.S. & S.S.R. is undisputed. Notification dated 12.06.1989 issued under Section 213(4) of the Act by the Central Government refers to working experience, which is extracted hereunder for easy reference. “(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 engine.” Rule 10(ab) of the Kerala State and Subordinate Service Rules states that where the Special Rules or Recruitment Rules for a post in any service prescribe qualification of experience, it shall, unless otherwise specified, be one gained by persons on temporary or regular appointment to capacities other than paid or unpaid apprentices, trainees and casual laborers in Central or State Government service or in Public Sector Undertaking or Registered Private Sector Undertaking after acquiring the basic qualification prescribed for the post. Proviso to the above rule states that the experience gained as factory workers on daily wages of a permanent nature may be accepted, if the service is continuous and not of a casual nature. On a reading of the Central Government notification dated 12.06.1989 along with Rule 10(ab) it is clear that working experience should be obtained from a reputed automobile workshop (registered with Government), Public Sector Undertaking or Registered Private Sector Undertaking and too after the acquisition of basic qualification prescribed for the post.” 9. On a reading of the Central Government notification dated 12.06.1989 along with Rule 10(ab) it is clear that working experience should be obtained from a reputed automobile workshop (registered with Government), Public Sector Undertaking or Registered Private Sector Undertaking and too after the acquisition of basic qualification prescribed for the post.” 9. The above discussion clearly reveals that only those persons having the qualification and experience gathered after obtaining the qualification in terms of Rule 10(ab) of the Part II Kerala State and Subordinate Services Rules, 1958 (for short K.S. & S.S.R.) could be considered for appointment. The discussion given in the next paragraph reveals that, it was accordingly that the Bench held that the Assistant Motor Vehicle Inspectors, who are appointed by transfer from among members of the Ministerial staff of the Department, who did not possess the one year working experience as qualification prescribed under the Special Rules shall be reverted. The case projected by the appellants, who were expecting appointment in the direct recruit segment, was upheld and the writ appeals were allowed as mentioned therein. As a matter of fact, the said verdict stands against the proposition mooted by the petitioner herein, insofar as there is a categoric observation that only those persons, who are having the requisite experience as notified, should be considered for appointment. As such, Ext.P4 judgment does not come to the rescue of the petitioner in any manner. 10. It is relevant to note that the experience quoted in paragraph 5 of the aforesaid judgment, prima-facie, appears to be the same as notified in Annexure A1. But there is some difference, insofar as Annexure A1 Notification says something more that such experience should be in a Government approved automobile workshop. The words Government Approved is conspicuously absent in the relevant notification extracted by the Division Bench in paragraph 5 of the verdict cited supra. 11. The learned counsel for the petitioner points out that the meaning of the word registered with the Government has to be considered with reference to the relevant Special Rules applicable to the post of AMVI. Rule 5 of the Kerala Transport Subordinate Service Rules, 2008 and particularly, the Note under clause 3 is sought to be pressed into service. We find it appropriate to extract the said Rule governing the qualification as given below:- “5. Rule 5 of the Kerala Transport Subordinate Service Rules, 2008 and particularly, the Note under clause 3 is sought to be pressed into service. We find it appropriate to extract the said Rule governing the qualification as given below:- “5. Qualifications.--No person shall be eligible for appointment as Assistant Motor Vehicle Inspector by the method of appointment specified in column (1) in the table below unless he possesses the qualifications specified in the corresponding entry in column (2) thereof:- TABLE Method of appointment Qualifications 1. By direct recruitment 1. Pass in SSLC or its equivalent. 2.(i) Diploma in Automobile Engineering or Mechanical Engineering awarded by the State Board of Technical Education (3 year course). (ii) Any qualification in either of the above disciplines declared as equivalent to the above diplomas by the Central Government or State Government. 3. Working experience of at least One year in a reputed automobile workshop which undertake repairs of both Light Motor Vehicles, Heavy Goods Vehicles and Heavy Passenger Motor Vehicles fitted with Petrol and Diesel Engines. Note:- The working experience shall be one acquired after having acquired the requisite educational qualification and the workshop from which such experience has been acquired shall be one registered with Government. 4. Must hold a current valid driving licence authorizing him to drive Motor Cycle, Heavy Goods Vehicles and Heavy Passenger Motor Vehicles.” 12. In respect of direct recruitment, the third qualification clearly says that the working experience of at least one year should be 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. This is further made clear from the 'Note' thereunder, to the effect that it should be from a workshop, which has been registered with the Government. With reference to the word registered with the Government, the learned counsel seeks to place reliance on Rule 10(ab) of Part II K.S. & S.S.R. with the explanation thereunder. The above provision is extracted below for convenience of reference. With reference to the word registered with the Government, the learned counsel seeks to place reliance on Rule 10(ab) of Part II K.S. & S.S.R. with the explanation thereunder. The above provision is extracted below for convenience of reference. “10(ab) Where the Special Rules or Recruitment Rules for a post in any service prescribe qualification of experience, it shall, unless otherwise specified, be one gained by persons on temporary or regular appointment in capacities other then paid or unpaid apprentices, trainees and Casual Labourers in Central or State Government Service or in Public Sector Undertaking or Registered Private Sector Undertaking, after acquiring the basic qualification prescribed for the post: Provided that the experience gained as factory workers on daily wages of a permanent nature may be accepted, if the service is continuous and not of a casual nature. Explanation.-For the purpose of this sub-rule, Registered Private Sector Undertaking means:- (i) Co-operative Societies registered under the Kerala Co-operative Societies Act,1969, Societies Registered under the Societies Registration Act, 1860 of the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act,1955 or Companies registered under the Companies Act, 1956 or any institution, firm or company which has a legal entity under any law for the time being in force.” By virtue of clause (i) of the Explanation, the word 'registered private sector undertaking' appearing in Rule 10(ab) of the above Rules is stated as inclusive of the establishment of the petitioner as well and hence his experience shall be counted. But here, it is to be noted that the experience in a registered private sector undertaking is stipulated to be reckoned in Rule 10(ab), unless it is otherwise specified in the Rules. Coming back to the relevant rule, i.e. Rule 5 of the Kerala Transport Subordinate Service Rules, 2008 extracted above, it is clearly evident that the nature of the experience to be procured has been clearly mentioned and as such, the rest of the above provision in respect of registered private sector undertaking as given in the 'Explanation' to Rule 10(ab) is not at all attracted. In the said circumstances, the said Rule also does not come to the rescue of the petitioner in any manner. 13. In the said circumstances, the said Rule also does not come to the rescue of the petitioner in any manner. 13. Another important aspect to be noted is that the petitioner while giving the particulars of the vehicles, which are being attended to in the workshop of the establishment/hotel where he is working as per Annexure A8, has not shown the type of vehicles handled therein. The type of fuel used in the vehicle is of course given that is, both petrol as well as diesel, as applicable. But, whether the vehicles are light motor vehicles, heavy goods vehicles or heavy passenger vehicles have not been shown or stated anywhere. This has to be analysed in the light of the assertion given by the fourth respondent in Annexure R1(a) report, wherein the inspection and enquiry made by him revealed that the establishment/hotel was having only 15 nos. of high-end cars, one bus and a few buggies (battery operated vehicles). This factual point has not been successfully rebutted by the petitioner by producing any material to show that the workshop attached to the hotel where the petitioner was working is also attending to the repairs of various types of vehicles including heavy goods vehicles, heavy passenger vehicles etc. Even otherwise, the requirement of the service of a Technician/Mechanic in a workshop belonging to a Star hotel-as in the instant case is concerned, is only to provide the minimum input as to the nature of defect, if any and to have the defective equipment caused to be replaced then and there. The 'Star hotel' using high end vehicles/cars to cater to the needs of their customers, usually do not and will not carry out extensive repairs and reuse the defective parts, but will only seek to replace the parts as such when turn to be defective, to ensure that no inconvenience or discomfort is resulted to any of the customers, who avail the service of conveyance in such vehicles. That apart, it is also relevant to note that the establishment like a Star hotel as in the instant case is not catering to the needs of the general public/ customers and no other vehicles, than the vehicles belonging to the hotel, are sought to be repaired or maintained by the said establishment. That apart, it is also relevant to note that the establishment like a Star hotel as in the instant case is not catering to the needs of the general public/ customers and no other vehicles, than the vehicles belonging to the hotel, are sought to be repaired or maintained by the said establishment. As such, the output, if at all any, can only be minimal, which even otherwise cannot be reckoned as sufficient experience to have the requirement satisfied as notified in Annexure A1 Notification and also as envisaged in the Special Rules. 14. The very prescription of experience, which has of course to be a post qualification experience based on Rule 10(ab) of Part II K.S. & S.S.R. and also in the light of Ext.P4 judgment rendered by the Division Bench of this Court, is to ensure that the person concerned has obtained sufficient skill in putting the knowledge acquired by him in the course of study, to actual practice, to meet the challenge. The very nature of the post in question and the job requirements are relevant to be considered in the said context. Onerous duties are to be performed by the persons appointed as Assistant Motor Vehicle Inspector, inspecting different types of vehicles and to certify the condition/performance. This is more so in respect of transport vehicles, which require a fitness certificate to be issued by the competent authority, in terms of Section 56 of the Motor Vehicles Act, 1988 and Rule 105 of the Kerala Motor Vehicles Rules, 1989. Unless sufficient experience is gathered by such person in respect of all the relevant vehicles including Heavy Goods Vehicles and Heavy Passenger Vehicles, the duty cast upon him cannot be satisfactorily discharged. If there is any failure in this regard, the ultimate sufferer will be the pedestrians/passengers travelling in such vehicles/the general public. It is to safeguard such rights and interests, that the Special Rules have been formulated stipulating the requisite qualifications and also the experience to be obtained from the 'Government approved workshops' as notified in Annexure A1 Notification. 15. If there is any failure in this regard, the ultimate sufferer will be the pedestrians/passengers travelling in such vehicles/the general public. It is to safeguard such rights and interests, that the Special Rules have been formulated stipulating the requisite qualifications and also the experience to be obtained from the 'Government approved workshops' as notified in Annexure A1 Notification. 15. Insofar as the petitioner has failed to produce any document to show that the hotel/ establishment where the petitioner was working, is having all types of vehicles as envisaged in the rules and the notification and that they are effecting repairs/maintenance of all such vehicles with the involvement of the petitioner herein, the so-called experience stated as gathered by the petitioner based on Annexure A5 series or Annexure A8 would not satisfy the requirement. This being the position, the post which the petitioner was holding in the Leela Kovalam Beach Resort (Pvt.) Ltd. Kovalam, during the relevant time by itself cannot be a substitute or satisfy the requirement and the understanding of the petitioner in this regard is wrong and misconceived. This Court is of the view that the petitioner has not satisfied the requisite experience as contained in the Special Rules and as notified in Annexure A1 Notification to be considered for the post of Assistant Motor Vehicle Inspector. As it stands so, rejection of the candidature as per Annexure A9 is justified, which was rightly held so, by the Tribunal while passing Annexure A1 order. 16. The Original Petition fails and is dismissed, accordingly.