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2020 DIGILAW 695 (RAJ)

Ravindra Kumar Serawat v. State of Rajasthan

2020-11-09

SANJEEV PRAKASH SHARMA

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JUDGMENT : Sanjeev Prakash Sharma, J. 1. The petitioners were declared ineligible in the result, which was declared by the respondents for the post of Driver (Fire)-cum Machine Operator on the ground that they did not possess heavy vehicle license/transport vehicle license as provided under the Motor Vehicles Act up to the last date of submission of application form under the advertisement dated 30.12.2015. 2. Counsel for the petitioners submits that the advertisement dated 30.12.2015 only stipulated condition that a person must possess qualification of secondary with six months Fire Diploma and three years experience in heavy and light vehicle driving. This condition was found to be illegal and bad by this Court vide its judgment in S.B. Civil Writ Petition No. 1335/2016: Shri Ahsan Ahmed vs. State of Rajasthan dated 04.08.2016 and it was held as under:- "I have considered rival submission of the parties and perused the record. It is not in dispute that the qualification mentioned in the advertisement for the Post of Driver (Fire) is at variance to the qualification provided under the Rules of 1963. Learned counsel Mr. Rajendra Prasad, AAG, has fairly admitted that the Rules sought to be amended have been approved by the Minister on the initiation of process of selection but Gazette Notification for it has not been issued. The qualification given in the advertisement is as contemplated for amendment in the Rules. The respondents are not authorised to provide qualification different then what exist under the Rules. The advertisement or administrative order cannot supplant the statutory provisions. In the instant case, respondents have illegally substituted qualification of the post in question thereby petitioner have been declared ineligible. The qualification should have been as exist under the Rules. The action of the respondents cannot be said to be proper and, accordingly, all the writ petitions are allowed with a direction to the respondents to consider qualification of the petitioners in reference to the Rules of 1963 as were existing on the last date of submission of applications. The respondents would not be guided by the qualification given in the advertisement. If the petitioners are in possession of the qualification given under the Rules, then they would be eligible for the post. In pursuance to the interim order, they have already appeared in the selection process thus their result be declared, if not already declared. The respondents would not be guided by the qualification given in the advertisement. If the petitioners are in possession of the qualification given under the Rules, then they would be eligible for the post. In pursuance to the interim order, they have already appeared in the selection process thus their result be declared, if not already declared. If the petitioners remain aggrieved with any other issue then would be at liberty to take legal recourse for it. With the aforesaid, all the writ petitions are allowed with the direction aforesaid." 3. I have considered the rival submissions. 4. An another judgment was passed in S.B. Civil Writ Petition No. 1874/2016: Shri Devi Singh Bareth vs. State of Rajasthan wherein also the said qualification was declared as unjustified and the writ petition was disposed of by the High Court. 5. Counsel for the respondents states that in terms of the direction issued by the High Court, the said qualification as noticed above was ignored for the purpose of selection process and only the qualification of petitioners was considered in reference to the Rajasthan Municipal (Subordinate & Ministerial Service) Rules, 1963 (hereinafter referred to as "the Rules of 1963") as were existing on the last date of submission of application form and all the candidates, who had appeared in the examination, their result was declared and even though those candidates, who did not possess three years experience, were declared eligible. However, so far as petitioners are concerned, since they did not possess heavy vehicle license as on the last date of submission of application form, therefore, they were not considered as eligible. 6. Learned counsel for the petitioners, however, submits that as per the provisions of the Rules of 1963, the eligibility for the post of Drivers (Fire) is of holding driving license under the Motor Vehicles Act. In view thereof, learned counsel submits that the requirement of heavy motor vehicle license/transport vehicle license is not mentioned under the Rajasthan Municipal (Subordinate & Ministerial Service) Rules, 1963 and therefore, the petitioners could not have been declared ineligible merely because they obtained heavy motor vehicle license/transport vehicle license after the last date of submission of the application form. 7. In view thereof, learned counsel submits that the requirement of heavy motor vehicle license/transport vehicle license is not mentioned under the Rajasthan Municipal (Subordinate & Ministerial Service) Rules, 1963 and therefore, the petitioners could not have been declared ineligible merely because they obtained heavy motor vehicle license/transport vehicle license after the last date of submission of the application form. 7. Learned counsel for the petitioner also submits that the vehicles are being used by the Fire Department are not restricted to heavy motor vehicles only and there are other vehicles also being used namely, two wheelers as well as light motor vehicles. Since, there was no specification under the Rajasthan Municipal (Subordinate & Ministerial Service) Rules, 1963, the petitioners could not have been declared ineligible. 8. Per contra, learned counsel appearing for the state-respondents submits that the qualifications had to be read in a wholesome manner and it cannot be interpreted as has been done by learned counsel for the petitioners. Learned counsel submits that the post of Driver (Fire) has been included in category of 'Fire Fighting' under the Rajasthan Municipal (Subordinate & Ministerial Service) Rules, 1963, while there are other drivers, which are included in the category of 'Motor Garage' under the Rajasthan Municipal (Subordinate & Ministerial Service) Rules, 1963. The post of Driver (Fire) motor vehicles under the category of 'Motor Garage' requires holding driver license under the Motor Vehicles Act and similarly, for Fire Fighting, the Drivers (Fire) are also required to hold driving license under the Motor Vehicles Act. However, fire fighting equipment is a separate category altogether where a driver is required to have license of heavy Motor Vehicle. Since all the vehicles were fire fighting equipment, the same are heavy motor vehicles. The logical interpretation, therefore, for the qualifications of Drivers (Fire) would be that a candidate must possess at least heavy motor vehicle license. It is submitted that merely because, some other vehicles are being also used in the Fire Fighting Department, the petitioners cannot be appointed as Drivers (Fire), if they do not have a heavy motor vehicle license. Learned counsel submits that the earlier litigation only limited to the addition of the qualifications relating to six months diploma in fire fighting as well as three years experience in heavy and light motor vehicle, which has been done away in terms of judgment passed by this Court. Learned counsel submits that the earlier litigation only limited to the addition of the qualifications relating to six months diploma in fire fighting as well as three years experience in heavy and light motor vehicle, which has been done away in terms of judgment passed by this Court. Hence, the petitioners cannot claim the benefit on account of the orders passed earlier by the Court as the High Court specifically directed that the qualifications have to be looked into as on the last date of application. 9. I have considered the aforesaid submissions. 10. The Supreme Court in Alka Ojha vs. Rajasthan Public Service Commission & Anr. (2011) 9 SCC 438 observed as under:- "15. The question whether the candidate must have the prescribed educational and other qualifications as on the particular date specified in the Rule or the advertisement is no longer res integra. In Bhupinderpal Singh v. State of Punjab this Court referred to the earlier judgments in A.P. Public Service Commission v. b. sarat Chandra, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi, M.V. Nair v. Union of India, Rekha Chaturvedi v. University of Rajasthan, U.P. Public Service Commission v. Alpana and Ashok Kumar Sharma v. Chander Shekhar and approved the following proposition laid down by the Punjab and Haryana High Court (Bhupinderpal singh Case, SCC p. 268, para 13): "13 ..... (i) that the cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut-off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; (ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority." 16. The same view was reiterated in M.A. Murthy v. State of Karnataka and Ashok Kumar Sonkar v. Union of India. Therefore, the Full Bench of the High Court rightly held that a candidate who does not possess a driving licence on the last date fixed for submission of the application is not eligible to be considered for selection." 11. The same view was reiterated in M.A. Murthy v. State of Karnataka and Ashok Kumar Sonkar v. Union of India. Therefore, the Full Bench of the High Court rightly held that a candidate who does not possess a driving licence on the last date fixed for submission of the application is not eligible to be considered for selection." 11. This Court is of the view that the petitioners cannot claim themselves to be eligible for the post of Driver (Fire), if they did not possess a heavy motor vehicle license as on the last date of application. The qualification of Driver (Fire) as it existed prior to amendment in the Rajasthan Municipal (Subordinate & Ministerial Service) Rules, 1963, has to be read with the purpose for which appointment is being made, while a driver in the motor garage can be considered to be eligible, even if, he has a light motor vehicle license. For the purpose of firefighting, a driver at least required qualification for the post of Driver (Fire) would be that he should possess heavy motor vehicles license/transport license. Since the petitioners admittedly did not possess the transport license/heavy motor vehicle license up to the last date of application, they cannot be treated as eligible for appointment. 12. Learned counsel for the petitioners also submits that there is a change of rule of the game after the game has been started as the advertisement was issued in 2015 and the qualifications, which have been added, are regarding heavy motor vehicle license, is subsequent. 13. I do not consider that there has been any change in the rule of the game as affected, even though the amendment was brought into force in the year 2019 adding the qualification, which was originally mentioned in the advertisement and the same has not been considered in terms of the judgment passed by this Court. The only requirement, which the respondents have considered, is in relation to the heavy motor vehicle license being required up to the last date of application, such requirement is found to be inherent in the Rajasthan Municipal (Subordinate & Ministerial Service) Rules, 1963, for the post of Driver (Fire) as already stated hereinabove, and, therefore, the contention of the petitioners is found to be without merits. 14. Accordingly, the writ petitions are dismissed. The interim orders passed by this Court and the stay applications are also accordingly, dismissed. 14. Accordingly, the writ petitions are dismissed. The interim orders passed by this Court and the stay applications are also accordingly, dismissed. 15. All the pending applications also stand dismissed. 16. A copy of this order be placed in each of the file.