K.S. Subramanyan v. Kerala Public Service Commission and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **FRIDAY, THE 09TH DAY OF OCTOBER 2020 / 17TH ASWINA, 1942** **OP(KAT).No.222 OF 2020** **AGAINST THE ORDER IN OA (EKM) 391/2018 DATED 08-03-2018 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER:** **K.S.SUBRAMANYAN AGED 44 YEARS S/O. SANKARAN K.C, KORODIPARAMBIL HOUSE, P.O VYASAGIRI, PARIKKAD, PALAKKAD KERALA 680 623 BY ADV. SMT.SHERLY THOMAS** ## **RESPONDENTS:** **1 KERALA PUBLIC SERVICE COMMISSION PATTOM PALACE P.O, PATTOM, THIRUVANANTHAPURAM 695 004 2 THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM PALACE P.O, PATTOM, THIRUVANANTHAPURAM, KERALA 695 004 3 THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, THRISSUR DISTRICT 680 001** **R1, R3 BY SRI.P.C.SASIDHARAN, SC, KPSC** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 05-10-2020, THE COURT ON 09-10-2020 DELIVERED THE FOLLOWING:** O.P.(KAT)No.222/2020 2 ## **JUDGMENT** Dated this the 9[th] day of October 2020 ## **Gopinath, J.** This Original Petition (KAT) is filed challenging the order of the Kerala Administrative Tribunal in O.A.No.391/2018. The petitioner was the applicant before the Tribunal. The petitioner approached the Tribunal aggrieved by non-inclusion of his name in the rank list for the post of Driver Gr.II (LDV) in various departments. The Tribunal, having found that the petitioner did not possess the requisite qualification as on the last date prescribed by the notification, rejected the Original Application holding that in terms of the relevant notification, the petitioner was required to possess the required qualification on the last date prescribed for applying, in terms of the notification and also during the entire process of selection. This order of the Tribunal is challenged before us. 2. Smt. Sherly M. Thomas, the learned counsel appearing for the petitioner would contend that the petitioner was having a valid driving licence from 2006 till 2016. She would attempt to show from AnnexureA2 that the petitioner had a driver's badge for the period from 8.2.2011 to 7.2.2014 and thereafter from 23.5.2014 to 22.5.2017. She would contend that the petitioner scored 64 marks in the test conducted by the Public O.P.(KAT)No.222/2020 3 Service Commission and that a candidate, who scored only 39 marks was included in the main list and that a candidate who is having only 27 marks also came to be included in the supplementary list. She would refer to Ext.P7 which is a communication issued by the Public Service Commission on 7.11.2018 to state that the requirement of badge for selection of Driver had been removed. She would also refer to the orders of the Kerala Administrative Tribunal in O.A.Nos.696/2016 & 410/2010 to contend that the persons similarly placed had been granted relief by the Tribunal. 3. Sri. P.C. Sasidharan, the learned Standing Counsel appearing for the Kerala Public Service Commission would contend that the terms of the notification issued in this case are extremely clear and that there is no question of there being any ambiguity in the matter. He would submit that the notification was published in the Kerala Gazette dated 15.3.2014 with the last date fixed for receipt of application as 16.4.2014. He would submit that the Special Rules (the qualifications are fixed through executive orders and not through Rules framed under the Kerala Public Services Act) fixing qualifications etc., for the post of Drivers (LDV) in various Departments provide as follows:- _“1. A. Pass in Standard VII/III Forum._ _2. Must possess valid Driving Licence of three years standing to drive Light Motor Vehicle with Driver's badge._ _3. Proficiency in Driving- Light motor vehicles (to be proved by a_ O.P.(KAT)No.222/2020 4 _practical test conducted by the KPSC during the course of selection)_ _4. Medical fitness.”_ He would contend that the Public Service Commission cannot but conduct a selection following these Rules. He would also contend that the decisions of the Tribunal which are relied upon by the petitioner have no application in the facts of the case as they were rendered in a different fact scenario. He would submit that the point is covered by a Division Bench judgment of this Court in _**Maheen.M.**_ v. _**State of Kerala and others;**_ 2013(3) KLT 639 as well as by a judgment of this bench in O.P. (KAT)No.456/2017. He would also place reliance on a judgment of a Division Bench of this Court in _**Kerala Public Service Commission**_ v. _**Jaimon;**_ 2019 (3) KLT 65 to contend that in cases where a notification specifically requires that the driving licence must be available throughout all stages of the selection process, it must be valid during all stages of selection. 4. We have considered the contentions raised by both sides. It is not disputed before us that the last date fixed for receipt of application was 16.4.2014. It is also admitted before us that the validity of the badge issued to the petitioner under the provisions of Section 28 of the Motor Vehicles Act, 1988 read with the provisions of the Kerala Motor Vehicles Rules, O.P.(KAT)No.222/2020 5 1989 was for the period from 8.2.2011 to 7.2.2014 and thereafter from 23.5.2014 to 22.5.2017. Thus on the last date fixed for receipt of the application i.e. 16.4.2014, the petitioner did not have a valid badge. In _**Maheen (supra)**_ it was held: - _“5. It is trite law that an applicant has to possess the prescribed qualification as on the last date fixed for the receipt of applications by the P.S.C. Such qualification that an applicant possesses, has to continue to run with that person during the selection process, to be continually carried at the selection, appointment, joining the service, and even while holding the post to which the incumbent was selected and appointed; that is, during the entire spectrum of employment from the last moment available to apply for being considered. This is a basic doctrine and salutary principle of law. ………………..The action of the P.S.C. is in conformity with the prescriptions in the notification issued by it and the provisions in the recruitment rules, which, as already noted, are not under challenge. We do not find any legal infirmity in the action of the P.S.C_ _6. …………………….The provisions in the M.V.Rules do not contain any provision similar to S.15(1) of the M.V.Act. The provisions in S.15(1) do not deal with matters relating to issuance of badges for persons authorised to drive transport vehicle since, as already noted, even the legislative field relating to issuance of badges to persons authorised to drive transport vehicles and matters connected therewith are consciously and expressly left to the rule making authority of the State Governments in terms of S.28 of the M.V. Act. In this_ O.P.(KAT)No.222/2020 6 _view of the matter, the arguments advanced on behalf of the petitioner on the basis of the provisions of the M.V. Act and M.V. Rules, cannot be accepted.”_ Thus _**Maheen (supra)**_ is the authority for the proposition that the prescribed qualification must be available at all stages of the selection including on the last date for application prescribed by the notification. In _**Jaimon (supra)**_ a Division Bench of this Court held that where the notification provides that the driving license must be valid throughout all stages of the selection process, the candidates must comply with that stipulation. In the facts of the present case, it is clear that the notification insisted upon the badge being valid throughout all stages of the selection process. We are in respectful agreement with the view taken in _**Maheen (supra)**_ and _**Jaimon (supra)**_ **.** The issues raised in this original petition are covered against the petitioner through the judgements referred to above. Exts.P.8 & P.9 orders of the Tribunal, on which considerable reliance has been placed by the learned counsel for the petitioner, were rendered in completely different fact situations. There the issue was whether the badge should have been valid for three years or was the three year prescription in the notification applicable to the licence only. On a consideration of the notifications in question, the Tribunal held that the candidates need only have a valid badge and they should also have had a O.P.(KAT)No.222/2020 7 licence for a minimum period of three years on the date of application. The decision reflected in Ext.P.7 was taken in the light of a series of judgments of the Tribunal taking the same view. The facts of this case are completely different. The original petition will therefore stand dismissed. No costs. **Sd/-** **A.M.SHAFFIQUE JUDGE** **Sd/-** **GOPINATH P. JUDGE** acd O.P.(KAT)No.222/2020 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 CERTIFIED COPY OF ORDER IN OA(EKM) 391/2018 KEERALA ADMINISTRATIVE TRIBUNAL ON 08-03-2018** - **EXHIBIT P2 TRUE COPY OF OA(EKM) 391/2018 DATED 12TH FEBRUARY, 2018 ALONG WITH ITS ANNEXURE FILED BY THE PETITIONER BEFORE THE LEARNED KEERALA ADMINISTRATIVE TRIBUNAL; (AT ERNAKULAM SITTING)** - **ANNEXURE A1 TRUE COPY OF NOTIFICATION PUBLICATION IN MATHRUBHOOMI THOZHILVARTHA DTD 22/3/14** - **ANNEXURE A2 TRUE COPY OF DRIVING LICENCE PARTICULARS OF APPLICANT DATED 19/05/2017** - **ANNEXURE A3 TRUE COPY OF REPRESENTATION DATED 20/06/2017 MADE BEFORE THE 2ND RESPONDENT** - **ANNEXURE A4 TRUE COPY OF COMMUNICATION NO DR II(3) 12809/13/GW-DY4 DATED 31/10/2017 OF 2ND RESPONDENT** - **EXHIBIT P3 TRUE COPY OF THE LETTER ISSUED BY PSC DTD 22-06-2020 STATING MARKS OF THE PETITIONER** - **EXHIBIT P4 TRUE COPY OF SHORTLIST OF PETITIONER IN PSC S SITE** - **EXHIBIT P5 TRUE COPY OF THE LICENCE OF THE PETITIONER EXHIBIT P6 RANK LIST PUBLISHED BY PSC ON 06-02-2018** - **EXHIBIT P7 PAPER PUBLICATION DT 7-11-2018 ABOUT REMOVAL OF VLIDITY OF BADGE** **EXHIBIT P8 COPY OF ORDER IN OA 696/2016 DTD 28-112016 EXHIBIT P9 COPY OF ORDER IN OA 410/2016 DTD 09-122016**