Anil Kumar v. Kerala Public Service Commission and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **THURSDAY, THE 25TH DAY OF JULY 2013/3RD SRAVANA, 1935** ## **WP(C).No. 2530 of 2013 (M)** **---------------------------** ## **PETITIONER(S):** **--------------------------** **ANIL KUMAR, S/O.ANANDA RAJAN AGED 39 YEARS M.K. BHAVANAM, MARU VADAKKU KARUNAGAPPALLY ALUMKADAVU, KOLLAM-690 573.** **BY ADVS.SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH** **RESPONDENT(S):** **----------------------------** ## **1. KERALA PUBLIC SERVICE COMMISSION PATTOM, THIRUVANANTHAPURAM-695 004.** ## **2. REGIONAL OFFICER** - **KERALA PUBLIC SERVICE COMMISSION REGIONAL OFFICE ANDAMUKKU, KOLLAM-691 001** ## **3. STATE OF KERALA** **REPRESENTED BY ITS CHIEF SECRETARY SECRETARIAT THIRUVANANTHAPURAM - 695 001** **R3 BY ADV. SRI.V.VIJULAL, GOVERNMENT PLEADER BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 2530 of 2013 (M)** **---------------------------** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT.P1 - TRUE PHOTOSTAT COPY OF THE NOTIFICATION NO.21/2007 ISSUED BY THE 1ST RESPONDENT PUBLISHED IN MATHRUBHOOMI NEWS PAPER DATED 12-12-2007** **EXT.P2 - TRUE PHOTOSTAT COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DATED 10-10-2012.** **EXT.P3 - TRUE PHOTOSTAT COPY OF THE SECONDARY SCHOOL LEAVING CERTIFICATE OF THE PETITIONER.** **EXT.P4 - TRUE PHOTOSTAT COPY OF THE DRIVING LICENSE ISSUED IN THE NAME OF THE PETITIONER.** **EXT.P5 - TRUE PHOTOSTAT COPY OF THE DRIVING PARTICULARS OF THE PETITIONER.** ## **RESPONDENT'S EXHIBITS: NIL** R.AV //TRUE COPY// PA TO JUDGE **'C.R'** ## **C.T.RAVIKUMAR.J.** ## **================= W.P.C.NO.2530 of 2013 =====================** Dated this the 25[th] day of July 2013. ## **JUDGMENT** ## **-----------------** The petitioner applied for appointment to the post of Driver Grade-II/(LDV) in response to the Notification No.21/2007 dated 12.11.2007 issued by the Kerala Public Service Commission. (for short 'the Commission') Subsequently, he appeared in the written test conducted on 23.01.2010 as also in the 'H test' and 'Road test' held in connection with the selection process. Later, his candidature was cancelled as per Ext.P2 for the reasons of lacking the required qualifications in the Gazette notification and that the badge was not valid on 23.1.2010, the date on which the written test was conducted. This writ petition has been filed seeking quashment of Ext.P2 and for such other consequential reliefs. 2. Ext.P1 notification is dated 12.12.2007 and as per the same the last date for receipt of application was 19.12.2007 and he submitted his application on 16.12.2007. It is submitted that on 12.12.2007 and also as on 16.12.2007 the petitioner was having a valid driving licence and badge. In the said circumstances, it is contended that the mere fact that the petitioner was not possessing a valid badge when he took up the written test on 23.1.2010 should not have been taken as a reason for cancelling his candidature. A 2 W.P.C.NO.2530 of 2013 counter affidavit has been filed on behalf of the first and second respondents. It is stated therein that in the concerned Notification No.21/2007 published in the Gazette dated 12.11.2007 it is specifically stated that a candidate should possess current driving licence and badge on the last date of receipt of applications in the office and also on the date of written test, practical test and interview. That apart, it is contended by the learned standing counsel that in the context of the contentions raised in this writ petition a Division Bench of this Court in OP(KAT) 959 of 2013 also assumes relevance. The contention of the Commission that a candidate should remain fully qualified throughout the selection process was upheld by the Kerala Administrative Tribunal in T.A.No.4344 of 2012 after rejecting an applicant's contention that he need not be fully qualified throughout the selection process and possession of the basic driving licence would be sufficient. It was against the said order of the Tribunal that OP(KAT) 959/20123 was filed. The learned counsel appearing for the petitioner submitted that the question posed for consideration in OP(KAT) 959 of 2013 is different from the issue involved in this case. It is also contended that in that case the Division Bench considered the impact of renewal of licence and badge only in terms of the provisions under Section 15 of the Motor Vehicles Act. The learned counsel appearing for the respondents submitted that a scanning of the said decision would reveal that the 3 W.P.C.NO.2530 of 2013 question whether possession of a valid driver's badge throughout a selection process was also considered by the Division Bench. I do not think it necessary to spend time on the rival contentions as existence or otherwise of a decision on that issue is discernible from the very decision itself. Essentially, in view of the rival contentions the question to be decided to whether an applicant in order to remain as a qualified candidate in the selection process pursuant to the notification issued by the Commission for appointment to the post of Driver Gr-II (LDV) should continue to possess valid driving licence and a valid badge through out the selection process? In other words, the question is when on the date of notification and the last date for receipt of the application if a candidate was holding a valid badge besides valid driving licence whether the mere factum of expiry of the validity of the badge when he took the written test should entail cancellation his candidature?. It is contended by the learned counsel appearing for the petitioner that Section 15 of the Motor Vehicles Act occurring in Chapter II of the Motor Vehicles Act pertains only to the renewal of driving licence. The said contention is founded on the decision of this Court in B **iju v Kerala Public Service Commission reported in 2012 (4) KLT 980.** In Biju's case it was held that a person holding a valid heavy vehicle driving licence as on the date of receipt of the application and thereby qualified to be considered for selection would not get disqualified if the 4 W.P.C.NO.2530 of 2013 validity/currency of the licence expired during the selection process. At the same time, the learned standing counsel appearing for the petitioner submitted that the judgment in WP(C)No.18011 of 2012 and connected cases viz., Biju's case (supra) was taken up in appeal as WA.NO.2223 of 2012. As is obvious from a decision in Biju's case (supra) WP(C) No.18011 of 2012 was disposed of along with certain other connected writ petitions including WP(C)No.10777 of 2012. WA.NO.2223 of 2012 arose from WP(C)No.10777 of 2012. It is evident from the judgment of the Division Bench in WA.No.2223 of 2012 dated 30.01.2013 that the impugned judgment was set aside. Though, the learned counsel appearing for the petitioner raised the contention to the effect that only the directions in WP(C)No.10777 of 2012 was interfered with by the Division Bench it is a fact that the said writ petition as also WP(C) NO.18011 of 2012 along with certain other connected matters were disposed by the learned Single Judge by a common judgment. In the said circumstances, when the judgment of the learned Single Judge was interfered with, the petitioner cannot cite that decision anymore as a decision having any presidential value. A perusal of the judgment of the Division Bench in OP(KAT) 959 of 2013 would reveal that a Division Bench of this Court considered the necessity to possess driver's licence and driver's badge during the entire selection process. The further contention of the learned counsel appearing for the petitioner is that 5 W.P.C.NO.2530 of 2013 since the pointed question posed for consideration of the Division Bench was only regarding the impact of renewal of licence in terms of Section 15 of the Motor Vehicles Act the observations made by the Division Bench in the said decision regarding the requirement to possess diver's licence and badge throughout the entire selection process can only be treated as obicter dicta and therefore, they are not binding on this Court. On going through the decision of the Division Bench I am not inclined to accept the said contention. Even if, the said observations can be treated only as obicter dicta certainly the petitioner cannot as a matter of right assign it as a ground to contend that this Court shall not look into those observations. A perusal of a judgment would reveal that the Division Bench observed that a qualification required to be possessed to earn eligibility to apply to the post of driver should continue to exist during the entire selection process. In other words, it was held that an applicant should continue to possess the driver's badge along with the driver's licence as on the date of application and also the date fixed for receipt of application and it should continue to be valid during the entire selection process. I am of the considered view that when a qualifications are prescribed to earn eligibility to respond to a notification the concerned candidate has to possess those qualifications for appointment to the said post valid throughout the selection process in order to remain as a fully qualified candidate in regard to that selection. 6 W.P.C.NO.2530 of 2013 In this case evidently on the date of the written test, which admittedly is a part of the selection process, the petitioner was not holding a valid badge. True that the petitioner subsequently obtained the badge, but that certainly cannot improve the situation for the petitioner or restore his lost status as a qualified candidate. I am of the view that in this case, in fact, there is no need to look in to those decisions in view of Note (2) given in the concerned Gazette notification dated 12.11.2007 that was extracted in the Counter Affidavit filed on behalf of respondents 1 and 2. it reads thus:- Candidates should possess Current Driving License and Badge on the last date for receipt of applications in the office and also on the date of Written test, Practical Test and Interview. For the foregoing reasons when it is specifically stated thus in the Gazette notification dated 12.11.2007 the petitioner cannot avert the inevitable consequence of non-possession of a current badge on any of those crucial dates. The cancellation of the candidature of the petitioner in regard to the selection process is thus in tune with the general condition. I am of the view that the decision of Commission in Ext.P2 cannot be said to be illegal in the light of the said circumstances. In that view of the writ petition is liable to fail and accordingly it is dismissed. ## **C.T.RAVIKUMAR, JUDGE** R.AV