IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NO.24020 OF 2011
(Arising out of CC No.13191 of 2011)
Alka Ojha … Petitioner(s)
Versus
Rajasthan Public Service Commission and another … Respondents
With
SPECIAL LEAVE PETITION (C) NOS.24021-24023 OF 2011
(Arising out of CC Nos.13504-13506 of 2011)
SPECIAL LEAVE PETITION (C) NO. 21462 OF 2011
SPECIAL LEAVE PETITION (C) NO. 22044 OF 2011
SPECIAL LEAVE PETITION (C) NO. 23039 OF 2011
O R D E R
1. The delay in filing SLP(C) CC Nos.13191 and 13504-13506 of 2011
is condoned.
2. The questions which arise for consideration in these petitions are
whether the qualifications prescribed in the Rajasthan Transport Subordinate
Service Rules, 1963 (for short, “the Rules”) for the post of Motor Vehicle
Sub-Inspector are mandatory and whether the petitioners, who were
appointed as Motor Vehicle Sub-Inspectors in compliance of the direction
given by the learned Single Judge of the High Court are entitled to continue
in service despite reversal of the order of the learned Single judge by the
Division Bench.
3. In response to advertisement dated 1.10.2001 issued by the Rajasthan
Public Service Commission (for short, “the Commission”), the petitioners
applied for appointment as Motor Vehicle Sub-Inspectors. The last date
fixed for submission of the application was 19.11.2001. Although as on
that date, none of the petitioners possessed driving licence authorising them
to drive motor cycle, heavy goods vehicles and heavy passenger vehicles, all
of them were provisionally allowed to take part in the written examination
and the interview and their names were included in the select list prepared
by the Commission. However, after final scrutiny of the papers the
Commission cancelled the tentative selection of the petitioners on the
ground that as on the last date fixed for submission of the application, they
did not possess the required driving licence.
4. The writ petitions filed by the petitioners questioning the cancellation
of their selection were allowed by the learned Single Judge, who referred to
the qualifications specified in paragraph 13 of the advertisement and held
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that when the requirement of the educational qualifications could be relaxed,
there was no justification to deny appointment to the petitioners on the
ground that they did not have the required driving licence on the last date
fixed for submission of the application.
5. The special appeals filed by the Commission were admitted by the
Division Bench of the High Court but its prayer for interim stay was rejected
with an observation that if any appointment is made, the same will be
subject to the decision of the appeal. For the sake of reference, the relevant
portions of order dated 26.10.2004 passed in D.B. Civil Special Appeal
(Writ) No.494 of 2004 are extracted below:
“Heard learned counsel for the parties.
Admit.
Heard learned counsel for the parties on the stay application
also.
Considering the submissions, no case is made out for stay.
Consequently, the stay application stands rejected. However, it
is also made clear that if any appointment on the post of Motor
Vehicle Sub Inspector is made, that will be subject to the
decision of this appeal.
List the appeal itself for hearing in the month of December,
2004, as prayed for.”
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6. When the special appeals were taken up for hearing, the Division
Bench noticed that in R.P.S.C. v. Shri Manish Thakur another Division
Bench had adversely commented upon the order of the learned Single Judge
and referred the matter to the larger Bench for deciding the following
question:
“Whether as per the educational qualifications mentioned in
clause 13 of the advertisement, the driving licence and
experience should be possessed by the candidate on the last
date of filing the application or on or before the date of
interview?”
7. The Full Bench of the High Court referred to the relevant provisions
of the Rules, the judgments of this Court in U.P. Public Service
Commission, U.P. v. Alpana (1994) 2 SCC 723, Ashok Kumar Sharma v.
Chander Shekhar (1997) 4 SCC 18 and held:
“…………………In reference to aforesaid legal position, if
rules and advertisement are looked into, then it becomes clear
that so far as required educational eligibility is concerned, a
candidate appearing in last year examination or has already
appeared, can apply for selection, subject to possessing
educational certificates on or before the date of interview.
Thus, in view of the facts and legal position, the eligibility date
for educational qualification being provided not only under the
rules but also in advertisement, accordingly it has to be taken
the date of interview. So far as experience and driving licence
are concerned, it is provided under the heading of
“Qualification for Direct Recruitment”, if schedule appended to
the Rules is looked into, however, contrary to statutory rules
heading given under Para 13 of advertisement is ‘educational
qualification’. In view of aforesaid, firstly it is only the
statutory rules and not the condition in the advertisement, will
govern the subject because anything contrary to statutory rules
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cannot be accepted or given effect to which ultimately violates
the statutory rules. This is only to clarify the confusion kept in
mind by candidates from heading of clause 13 of advertisement.
Since schedule provides heading “Qualification for Direct
Recruitment”, which includes driving licence, experience and
educational qualification, thus there are 3 different
requirements for candidates to become eligible and out of
which for educational qualification, a separate cut off date has
been given under the rules as well as in the advertisement
whereas rules as well as advertisement are silent regarding cut
off date to possess experience and driving licence. As per legal
proposition referred above, it can be only the last date of
submission of application. Thus, in our view, Division Bench
of this Court in case of Rajasthan Public Service Commission
and another v. Shri Manish Thakur has rightly settled the issue.
It is, however, made clear that there can be different cut off
dates for eligibility criteria, which exist even if interpretation
given by learned counsel for parties are accepted. Under the
Rules of 1963, eligibility in regard to age is the first day of
January following the last date fixed for application. As against
cut off date of age, a different cut off date has been given for
other eligibility, thus it is not necessary that one and same cut
off date has to be provided for all eligibility.
In view of aforesaid, our answer to reference is that as
per clause 13 of advertisement, driving licence and experience
are required to be possessed by the candidates on the last date
of submission of the application forms and not on or before the
date of interview.”
(emphasis supplied)
8. After the judgment of the Full Bench, the special appeals were placed
before the Division Bench for final disposal. The Division Bench referred to
the definitions of the terms `driving licence’ and `learner’s licence’
contained in Section 2(10) and 2(19) of the Motor Vehicles Act, 1988 (for
short, “the Act”), order dated 20.5.2004 passed in D.B. Civil Special Appeal
5
No.252 of 2003 and held that the respondents (petitioners herein), who did
not possess one of the prescribed qualifications i.e., the driving licence as on
the last date fixed for submission of the application, were not eligible to be
considered for selection. However, the Division Bench accepted the prayer
made on behalf of the petitioners that they be allowed to participate in the
process of fresh selection by providing relaxation in age and directed the
Commission to complete the process of fresh selection within three months.
The Division Bench also directed that for a period of three months status
quo shall be maintained with regard to those who are in service.
9. S/Shri P.P. Rao, S.P. Sharma, Colin Gonsalves and Rakesh K.
Khanna, learned senior counsel appearing for the petitioners argued that the
High Court’s interpretation of the qualifications specified in the Schedule
appended to the Rules is erroneous and the petitioners were wrongly treated
ineligible because on the date of interview they were having all the
qualifications including the driving licence. Shri S.P. Sharma further argued
that the requirement of having the driving licence cannot be treated as
mandatory because the same is not imperative for discharging the duties of
Motor Vehicle Sub-Inspector and the candidates who had obtained learner’s
licence before the last date fixed for submission of the application are
entitled to be appointed because such licence authorised them to drive motor
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cycle etc. Shri Rakesh K. Khanna supported the argument of Shri S.P.
Sharma and pointed out as per the definition of `learner’s licence’, the
licensee is authorised to drive a motor vehicle of the specified class or
description. Shri Rakesh K. Khanna also produced xerox of the learner’s
licence of Sanjay Kumar (petitioner in SLP(C) No. 22044/2011) to show
that by virtue of that licence, he was entitled to drive heavy goods vehicles.
Shri P.P. Rao and other learned senior counsel then argued that even if this
Court is inclined to approve the impugned judgment, the petitioners should
be allowed to continue in service because the provisions contained in the
Schedule appended to the Rules were vague and only after the judgment of
the Full Bench, it became clear that for being treated eligible, the candidate
must possess driving licence on the last date fixed for submission of the
application. Learned counsel submitted that it will be extremely harsh for
the petitioners to be thrown out of service after they have served for five
years and have crossed the upper age limit prescribed for other posts. In the
end, learned counsel submitted that the order of status quo passed by the
Division Bench may be extended because the Commission has not been able
to make fresh selection for the post of Motor Vehicle Sub-Inspector.
10. On 19.8.2011, the Court had, while reserving order in SLP(C)
Nos.21462, 22044 and 23039 of 2011 permitted the learned counsel for the
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petitioners to furnish to the Court Master copies of the licence which their
clients possessed on the date of application. Taking advantage of the liberty
given by the Court, Ms. Jyoti Mendiratta, learned counsel appearing for the
petitioner in SLP(C) No. 21462/2011 made available photostat copies of the
learner’s licences (Annexures A-1 to A-3) issued to her client. Shri Nikilesh
Ramachandran, learned counsel representing the petitioner in SLP(C) No.
22044/2011 filed affidavit of his client along with xerox copy of learner’s
licence issued in his favour.
11. For deciding the questions framed in the opening paragraph of this
order, it will be useful to notice Rule 11 and the relevant extracts of the
Schedule appended to the Rules. The same are as under:
“11. Academic and Technical qualifications. – A candidate
for direct recruitment to the post specified in the Schedule shall
possess (1) the qualification given in column 4 of the Schedule,
and (2) “Working knowledge of Hindi written in Devnagri
script and knowledge of Rajasthani culture.”
SCHEDULE
Name of
Post
Source of
Recruitment
with
percentage
Qualification
for Direct
recruitment
Post from
which
appointment
by
promotion is
to be made
Minimum
experience
and qualifications
required for
promotion
2. Motor
Vehicle
Sub-
Inspector
25% by
promotion
75%
by
direct
recruit-
1. Must have
passed Secondary
Examination of a
recognized Board;
and
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ment 3. A Diploma in
Automobile
Engineering (3
years’ course) or
a diploma in
Mechanical
Engineering
awarded by the
State Board of
Technical
Examination (3
years’ course)
OR
Any qualification
in either of the
above disciplines
declared
equivalent by the
Central
Government of
State Government;
and
3. Working
experience of at
lest one year in a
reputed
Automobile
Workshop which
undertakes repairs
of both light
motor vehicle,
heavy goods
vehicles and
heavy passenger
motor vehicles
fitted with petrol
and diesel
engines; and
4. Must hold a
driving licence
authorising him to
drive Motor cycle,
heavy goods
vehicles and
heavy passenger
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vehicles. Nothing
contained in this
Notification shall
apply to persons
whose names were
under
consideration for
appointment to the
post of Inspector
of Motor Vehicles
or Assistant
Inspector of Motor
Vehicles (by
whatever names
called by the State
Government prior
to first day of July,
1989 or to an
officer appointed
to such post before
the first day of
July, 1989 or to an
officer appointed
to discharge
functions of a nontechnical
nature.”
(emphasis supplied)
12. Paragraph 13 of the advertisement issued by the Commission, which
is also relevant for deciding the issue raised by the petitioners reads thus:
“13. Educational Qualification:-
(A)(1) Passed Secondary Examination from any recognized
Board.
(2) Awarded by the State Technical Education Board –
Diploma in Automobile Engineering (3 years’ course)
Or
Diploma in Mechanical Engineering (3 years’ course)
Or
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Any qualification in either of the above disciplines
declared equivalent by the Central Government or State
Government; and
(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 fitted with petrol and diesel engines; and
(4) M ust hold a driving licence authorizing him to drive
Motor Cycle, heavy goods vehicles and heavy passenger
vehicles.
But, such candidate who appeared in the final year of the
course for such educational qualification sought for as
per the Rules or is going to appear in such examination,
will be eligible to submit application but he has to submit
the certificate passing the specified qualification before
the interview.
(5) Working knowledge of Hindi written in Devnagri script
and the knowledge of the culture of Rajasthan.”
(emphasis supplied)
13. The use of word “shall” in Rule 11 makes it clear that the
qualifications specified in the Schedule are mandatory and a candidate
aspiring for appointment as Motor Vehicle Sub-Inspector by direct
recruitment must possess those qualifications and must have working
knowledge of Hindi written in Devnagri script and knowledge of Rajasthani
culture. A conjoint reading of Rule 11, the relevant entries of the Schedule
and paragraph 13 of the advertisement shows that a person who does not
possess the prescribed educational and technical qualifications, working
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experience and a driving licence authorizing him to drive motor cycle, heavy
goods vehicles and heavy passenger vehicles cannot compete for the post of
Motor Vehicle Sub-Inspector.
14. 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 (2000) 5 SCC 262, this Court referred to the earlier
judgments in A.P. Public Service Commission v. B. Sarat Chandra
(1990) 2 SCC 669, District Collector and Chairman, Vizianagaram
Social Welfare Residential School Society v. M. Tripura Sundari Devi
(1990) 3 SCC 655, M.V. Nair (Dr.) v. Union of India (1993) 2 SCC 429,
Rekha Chaturvedi v. University of Rajasthan 1993 Supp. (3) SCC 168,
U.P. Public Service Commission, U.P., Allahabad v. Alpana (supra) and
Ashok Kumar Sharma v. Chander Shekhar (supra) and approved the
following proposition laid down by the Punjab and Haryana High Court:
“….. 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 and 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.”
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The same view was reiterated in M.A. Murthy v. State of
Karnataka (2003) 7 SCC 517 and Ashok Kumar Sonkar v. Union of
India (2007) 4 SCC 54. Therefore, the Full Bench of the High Court rightly
held that a candidate who does not possess driving licence on the last date
fixed for submission of the application is not eligible to be considered for
selection.
15. Unfortunately, the learned Single Judge decided the writ petitions
without even adverting to Rule 11, the relevant entries of the Schedule and
paragraph 13 of the advertisement and issued direction which amounted to
amendment of the Rules framed under Article 309 of the Constitution. This
was clearly impermissible. Therefore, the Division Bench of the High Court
rightly set aside the direction given by the learned Single Judge, which
facilitated appointment of the petitioners despite the fact that they were not
eligible to be considered for selection.
16. We may now deal with the argument of Shri S.P. Sharma and Shri
Rakesh K. Khanna that the learner’s licence possessed by the petitioners was
sufficient to make them eligible for appointment as Motor Vehicle Sub-
Inspector. The definitions of `driving licence’ and `learner’s licence’, as
contained in Section 2(10) and 2(19) of the Act, read as under:
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“2(10) "driving licence" means the licence issued by a
competent authority under Chapter II authorising the person
specified therein to drive, otherwise than as a learner, a motor
vehicle or a motor vehicle of any specified class or description
2(19) "learner's licence" means the licence issued by a
competent authority under Chapter II authorising the person
specified therein to drive as a learner, a motor vehicle or a
motor vehicle of any specified class or description”
17. Sections 3, 8(1), (5) and (6), 9(1), (4), (5), (6) and (7) and 10 of the
Act, which too have bearing on the decision of the question whether
learner’s licence is at par with driving licence and a person having learner’s
licence is eligible for appointment as Motor Vehicle Sub-Inspector under the
Rules read as under:
“3. Necessity for driving licence. - (1) No person shall drive a
motor vehicle in any public place unless he holds an effective
driving licence issued to him authorising him to drive the
vehicle; and no person shall so drive a transport vehicle other
than a motor cab or motor cycle hired for his own use or rented
under any scheme made under sub-section (2) of section 75
unless his driving licence specifically entitles him so to do.
(2) The conditions subject to which sub-section (1) shall not
apply to a person receiving instructions in driving a motor
vehicle shall be such as may be prescribed by the Central
Government.
8. Grant of learner’s licence – (1) Any person who is not
disqualified under section 4 for driving a motor vehicle and
who is not for the time being disqualified for holding or
obtaining a driving licence may, subject to the provisions of
section 7, apply to the licensing authority having jurisdiction in
the area-
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(i) in which he ordinarily resides or carries on business,
or
(ii) in which the school or establishment referred to in
section 12 from where he intends to receive instruction in
driving a motor vehicle is situate,
for the issue to him of a learner's licence.
(5) No learner's licence shall be issued to any applicant
unless he passes to the satisfaction of the licensing authority
such test as may be prescribed by the Central Government.
(6) When an application has been duly made to the
appropriate licensing authority and the applicant has satisfied
such authority of his physical fitness under sub-section (3) and
has passed to the satisfaction of the licensing authority the test
referred to in sub-section (5), the licensing authority shall,
subject to the provisions of section 7, issue the applicant a
learner's licence unless the applicant is disqualified under
section 4 for driving a motor vehicle or is for the time being
disqualified for holding or obtaining a licence to drive a motor
vehicle:
Provided that a licensing authority may issue a learner's licence
to drive a motor cycle or a light motor vehicle notwithstanding
that it is not the appropriate licensing authority, if such
authority is satisfied that there is good reason for the applicant's
inability to apply to the appropriate licensing authority.
9. Grant of driving licence. – (1) Any person who is not for
the time being disqualified for holding or obtaining a driving
licence may apply to the licensing authority having jurisdiction
in the area –
(i) in which he ordinarily resides or carries on business,
or
(ii) in which the school or establishment referred to in
section 12 from where he is receiving or has received
instruction in driving a motor vehicle is situated.
for the issue to him of a driving licence.
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(4) Where the application is for a licence to drive a transport
vehicle, no such authorisation shall be granted to any applicant
unless he possesses such minimum educational qualification as
may be prescribed by the Central Government and a driving
certificate issued by a school or establishment referred to in
section 12.
(5) Where the applicant does not pass the test, he may be
permitted to reappear for the test after a period of seven days:
Provided that where the applicant does not pass the test even
after three appearances, he shall not be qualified to re-appear
for such test before the expiry of a period of sixty days from the
date of last such test.
(6) The test of competence to drive shall be carried out in a
vehicle of the type to which the application refers:
Provided that a person who passed a test in driving a motor
cycle with gear shall be deemed also to have passed a test in
driving a motor cycle without gear.
(7) When any application has been duly made to the
appropriate licensing authority and the applicant has satisfied
such authority of his competence to drive, the licensing
authority shall issue the applicant a driving licence unless the
applicant is for the time being disqualified for holding or
obtaining a driving licence:
Provided that a licensing authority may issue a driving licence
to drive a motor cycle or a light motor vehicle notwithstanding
that it is not the appropriate licensing authority, if the licensing
authority is satisfied that there is good and sufficient reason for
the applicant's inability to apply to the appropriate licensing
authority:
Provided further that the licensing authority shall not issue a
new driving licence to the applicant, if he had previously held a
driving licence, unless it is satisfied that there is good and
sufficient reason for his inability to obtain a duplicate copy of
his former licence.
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10. Form and contents of licences to drive. – (1) Every
learner's licence and driving licence, except a driving licence
issued under section 18, shall be in such form and shall contain
such information as may be prescribed by the Central
Government.
(2) A learner's licence or, as the case may be, driving licence
shall also be expressed as entitling the holder to drive a motor
vehicle of one or more of the following classes, namely:-
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
(e) transport vehicle;
(i) road-roller;
(j) motor vehicle of a specified description.”
18. A reading of the two definitions brings out stark difference between
the two types of licences. `Driving licence’ issued by the competent
authority under Chapter II authorises a person to drive a motor vehicle or a
motor vehicle of any specified class or description otherwise than as a
learner and `learner’s licence’ authorises a person specified therein to drive
as a learner a motor vehicle or a motor vehicle of any specified class or
description. It is thus evident that a person who is granted `learner’s licence’
is entitled to drive a motor vehicle or a motor vehicle of any specified class
or description only as a learner and he cannot be treated as a person to whom
`driving licence’ defined under Section 2(10) has been issued. Though,
there is some similarity in the language of Section 8 which regulates the
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grant of ‘learner’s licence’ and Section 9 which regulates the grant of
‘driving licence’, the very fact that the legislature has thought it proper to
make separate provisions for grant of two types of licences leads to an
irresistible conclusion that a person holding `learner’s licence’ cannot be
treated at par with a person having `driving licence’ authorised to drive
motor cycle, heavy goods vehicles and heavy passengers vehicles. Section 3
of the Act, which is mandatory in character also lays down that a person
shall not drive a motor vehicle in any public place unless he holds an
effective driving licence. Surely, learner’s licence cannot entitle a person to
claim that he holds an effective driving licence. Therefore, the mere fact
that the petitioners possessed learner’s licence on the date of application was
not sufficient to make them eligible to compete for selection.
19. The judgment in National Insurance Co. Ltd. v. Swaran Singh
(2004) 3 SCC 297 (paras 93 and 94) on which reliance was placed by Shri
Rakesh K. Khanna has no bearing on the interpretation of Rule 11 read with
the entries contained in the Schedule and it is not possible for this Court to
rewrite the rule so as to enable the persons holding learner’s licence to
compete for appointment as Motor Vehicle Sub-Inspector.
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20. We shall now consider the question whether despite reversal of the
order passed by the learned Single Judge by the Division Bench of the High
Court, the petitioners can continue in service. The submission of the learned
counsel that this Court should invoke Article 142 of the Constitution and
direct the competent authority to allow the petitioners to continue in service
because they have already completed more than 5 years’ service sounds
attractive but lacks merit. In our view, the power under Article 142 cannot
be exercised for conferring legitimacy to the appointment of the petitioners,
who, as held hereinabove, were not eligible to be considered for selection.
The Commission had provisionally allowed the petitioners to take part in the
written test and the interview, but their tentative selection was cancelled
because at the stage of final scrutiny, it was found that they did not possess
one of the prescribed qualifications i.e. driving licence authorising them to
drive motor cycle, heavy goods vehicles and heavy passenger vehicles.
Notwithstanding this, the competent authority was compelled to appoint the
petitioners because while entertaining the special appeals, the Division
Bench of the High Court declined to stay the direction given by the learned
Single Judge. If the course suggested by the learned counsel for the
petitioners is adopted, then every illegal appointment will get regularized by
judicial fiat and those who are eligible and more meritorious will be
deprived of their constitutional right to be fairly considered for selection and
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appointment against the advertised posts. The judgments of this Court in
Dr. M.S. Mudhol v. S.D. Halegkar (1993) 3 SCC 591, Rekha Chaturvedi
v. University of Rajasthan (supra), Bhupinderpal Singh v. State of
Punjab (supra) and other similar judgments cannot be pressed into service
for issuing a direction for the petitioners’ continuance in service because in
those cases, the selection and/or appointments were made otherwise than by
judicial intervention and this Court held that the candidate should not suffer
due to the fault of the public authorities.
21. A half-hearted attempt was made by Shri Rakesh K. Khanna, learned
counsel appearing for the petitioner in SLP(C) No.22044 of 2011 to draw
solace from the last line contained in order dated 29.6.2011 passed by the
Division Bench of the High Court in D.B. Civil Special Appeal (Writ)
No.494 of 2004 wherein it was observed that the question of regularisation
has to be considered by the RPSC/State Government. In this context, it is
sufficient to observe that there is no provision in the Rules under which the
Commission or the State Government can regularise the appointment of a
person, who was not eligible to compete for selection.
22. In the result, the special leave petitions are dismissed. However,
keeping in view the statement of the learned senior counsel appearing for the
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petitioners that the Commission has not completed the process of selection
for fresh recruitment of Motor Vehicle Sub-Inspectors, we direct the
Commission to do the needful within a period of next 4 months. Till then,
the petitioners shall be allowed to continue in service. The Secretary of the
Commission shall send a report to the High Court about compliance of the
directions given by the Division Bench and this Court for completing the
process of selection.
23. It is needless to say that the order of status quo passed by the High
Court and the direction given by this Court for the petitioners’ continuance
in service will not enure to their advantage and the Commission shall make
selection without being influenced by those orders.
24. Copies of this order be sent to the Secretary, Rajasthan Public Service
Commission, Ajmer and Transport Commissioner, Rajasthan, Jaipur by fax.
……..……………………J
(G.S. Singhvi)
……..……………………J
(H.L. Dattu)
New Delhi
August 25, 2011.
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