Rasak P.M. v. Kerala Public Service Commission and Others (OP(KAT) 77 of 2021)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE`** ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN ``` ``` THURSDAY, THE 12[TH] DAY OF OCTOBER 2023 / 20TH ASWINA, 1945 ``` ``` OP(KAT) NO. 77 OF 2021 ``` ``` AGAINST THE ORDER/JUDGMENT OA (EKM) 434/2018 OF KERALA ``` ## **`ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM`** ## **`PETITIONER/S/APPLICANT:`** ## **`RASAK P.M.,`** ``` AGED 43 YEARS, S/O. MOITHEEN @ MAITHEEN, PERINGATTIL HOUSE, ANAVIRATTY P.O, KOOMPAMPARA, DEVIKULAM TALUK, IDUKKI DISTRICT, PIN - 685561. ``` ``` BY ADVS. MATHEW KURIAKOSE J.KRISHNAKUMAR (ADOOR) MONI GEORGE ``` ## **`RESPONDENT/S/RESPONDENTS:`** - **`1 KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM P.O, THIRUVANANTHAPURAM - 695004.`** - **`2 DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, IDUKKI, KATTAPPANA P.O, IDUKKI DISTRICT, PIN - 685508.`** - **`3 THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.`** - **`4 THE DISTRICT COLLECTOR, IDUKKI CIVIL STATION, PAINAV, IDUKKI ( SOUGHT TO BE IMPLEADED ) BY ADVS.`** - **`SHRI.P.C.SASIDHARAN, SC, KPSC ADV.VINITHA.B SENIOR GOVERNMENT PLEADER`** ``` THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 12.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(KAT) No.77 OF 2021 ``` ``` 2 ``` ## **`JUDGMENT`** ## **`Dated this the 12[th ] day of October, 2023`** ## **`A.MUHAMED MUSTAQUE, J`** ``` This original petition is filed by the applicant aggrieved by non-inclusion in the rank list for the post of Driver-Grade II (LDV) in District wise recruitment in Idukki District. By Ext.P5 order of the Kerala Administrative Tribunal, the original application filed by the petitioner has been dismissed. ``` ``` 2.The notification refers to qualification which are as follows: ``` ``` II. Qualification for the said post as per Annexure A13 notification are: ``` ## `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 which is to be proved in a practical ``` ``` 3 ``` ## **`O.P.(KAT) No.77 OF 2021`** ``` test conducted by KPSC during the course of selection. Only those who pass H test are eligible for Road test. ``` ``` 3.The petitioner was short listed initially and after scrutiny of the records, it was found that the the petitioner was not having the prescribed qualification No.2, which stipulates that the candidates must possess valid driving licence for three years standing to drive Light Motor Vehicle with Driver’s badge. ``` ``` 4.The notification for the said post was issued in the gazette on 15.03.2014 and the last date for receipt of the application was on 16.04.2014. Admittedly, the badge of the petitioner was expired on 18.12.2013 and it was renewed only on 05.05.2014. As the petitioner did not have badge continuously for three years as on the date of application, the petitioner was not included in the rank list. The petitioner approached the Tribunal and the Tribunal passed an interim order placing reliance on the decision of the Supreme Court in Mukund Dewangan v. ``` ``` O.P.(KAT) No.77 OF 2021 ``` ``` 4 ``` ## **`Oriental Insurance Company Ltd, reported in [(2017)`** ``` 14 Supreme Court Cases 663], and direct the Public Service Commission (for short “the PSC”) to include the petitioner in the rank list. PSC challenged the above interim order in O.P.(KAT) No.153 of 2020. ``` ``` 5.The Division Bench of this Court, noting that the requirement of badge is a stipulation under the Special Rules and notification, the Tribunal could not have passed such an interim order, but liberty was given to the petitioner to challenge the Special Rules and set aside the interim order. Thereafter, the petitioner amended the relief by incorporating a challenge against the Special Rules. The Tribunal declined interference and accordingly, this original Petition has been filed. ``` ``` 6.We heard Adv. Mathew Kuriakose, the learned Counsel for the petitioner and Adv.P.C.Sasidharan, the Standing Counsel for the PSC. ``` ``` 7.According to the learned Counsel for the petitioner, in the light of Mukund Dewangan (Supra), the badge is not a requirement for driving light ``` ``` O.P.(KAT) No.77 OF 2021 ``` ``` 5 ``` ``` motor vehicle and therefore, Special Rules have to be struck down. Apart from that, the learned Counsel for the petitioner argued that he had licence and the renewal of badge relates back to the date of expiry. Therefore, it has to be assumed that he had a valid badge for continuous three years. It is further pointed out that PSC directed to produce the petitioner’s document and it is mentioned that the petitioner has to produce all the documents available as on 18.06.2014. Therefore, it is submitted that as on 18.06.2014, the petitioner possessed a valid licence and badge. ``` ``` 8.It may not be a requirement to possess a badge for any insurance claims in the light of the Apex Court judgment in MukundDewangan (Supra).But it does not mean that the Special Rules can be challenged on that ground. The challenge to Special Rules can be sustained only when stipulations in the Rules are ultravires or pointing out the incompetency to stipulate such rule offending any parent Act. The parameters of challenging statutory rules are well ``` ``` O.P.(KAT) No.77 OF 2021 ``` ``` 6 ``` ``` defined. If the State stipulates a qualification over and above what is normally required to do an activity related to driving, that does not mean that the stipulation itself become unnecessary and arbitrary. The wisdom of the State cannot be questioned except in the circumstances noticed above. We, therefore, of the view that the challenge to Special Rules have to be negatived as rightly done by the Tribunal. ``` ``` 9.Coming back to the question of having valid driving licence with a badge for three years as on the date of notification or as on the date of scrutiny, the issue actually is covered as against the petitioner in [2013(3) KLT 639] Maheen v. State of Kerala. Admittedly, there was a break for renewal of nearly 5 months. The Special Rules in notification stipulates that the candidates was possessed valid driving licence for three years. It is appropriate to refer the judgment in Maheen’s case (supra) which reads thus: ``` ``` O.P.(KAT) No.77 OF 2021 ``` ``` 7 ``` ``` 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. That cannot be watered down to hold that an applicant for the post of Driver Grade-II(LDV), who ought to possess a driver's badge along with the driver's licence as on the date of application or the last date fixed for receipt of application, need not necessarily continue to possess the driver's badge on the date of the proficiency test. This we say, not based on the interpretation of any provision of law applicable to driving of motor vehicles, but on the indefeasible legal effect of the prescriptions and terms of the recruitment rules and the P.S.C.'s notification, over which the petitioner has no dispute. 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 ``` ``` 8 ``` ## **`O.P.(KAT) No.77 OF 2021`** ``` rules, which, as already noted, are not under challenge. We do not find any legal infirmity in the action of the P.S.C. ``` ``` There is a break in renewal and that break would clearly establish that the petitioner was not having the possession of driving licence with badge for continuous period of three years as on the date of application. ``` ``` The Original Petition is thus dismissed. ``` ``` Sd/- A.MUHAMED MUSTAQUE, JUDGE ``` ``` Sd/- SHOBA ANNAMMA EAPEN, JUDGE ``` ``` RK ``` ``` O.P.(KAT) No.77 OF 2021 ``` ``` 9 ``` ## **`APPENDIX OF OP(KAT) 77/2021`** ``` PETITIONER ANNEXURES ANNEXURE A1TRUE COPY OF THE INTIMATION DATED NIL ISSUED TO THE APPLICANT BY THE 1ST RESPONDENT. ``` ``` ANNEXURE A2TRUE COPY OF THE NOTIFICATION (SHORT LIST) DATED 07.01.2016 PUBLISHED BY THE 2ND RESPONDENT. ANNEXURE A3TRUE COPY OF THE INTIMATION DATED 12.02.2016 ISSUED TO THE APPLICANT BY THE 2ND RESPONDENT. ANNEXURE A4TRUE COPY OF THE VERIFICATION CERTIFICATE NO. PCN 160011016 DATED 21.03.2016 ISSUED BY THE 2ND RESPONDENT TO THE APPLICANT. ANNEXURE A5TRUE COPY OF THE RANKED LIST NO. 109/18/DOJ-CAT. NO. 016/2014 PUBLISHED BY THE 2ND RESPONDENT. ANNEXURE A6TRUE COPY OF THE RELEVANT PAGES OF THE S.S.L.C BOOK OF THE APPLICANT. ANNEXURE A7TRUE COPY OF THE DRIVING LICENSE OF THE APPLICANT WITH DETAILS OF THE BADGE. ANNEXURE A8TRUE COPY OF THE DRIVING LICENSE PARTICULARS OF THE APPLICANT. ANNEXURE A9TRUE COPY OF THE ORDER DATED 28.11.2016 IN OA NO. 696 OF 2016 OF THIS HON'BLE TRIBUNAL. ANNEXURE A10TRUE COPY OF THE REPRESENTATION DATED 12.02.2018 SUBMITTED BY THE APPLICANT TO THE 2ND RESPONDENT WITH COPY TO THE 1ST RESPONDENT. ANNEXURE A11TRUE COPY OF THE COMMUNICATION DATED 16.04.2018 ISSUED BY THE MINISTRY OF ROAD TRANSPORT AND HIGHWAYS TO THE PRINCIPAL SECRETARIES OF ALL THE STATES AND UNION TERRITORIES (PRODUCED ALONG WITH M.A(EKM) NO. 182 OF 2020) ANNEXURE A12TRUE COPY OF THE COMMUNICATION DATED 12.10.2018 ISSUED BY THE TRANSPORT COMMISSIONER , KERALA ALONG WITH TYPEWRITTEN LEGIBLE COPY (PRODUCED ``` ``` O.P.(KAT) No.77 OF 2021 ``` ``` 10 ``` ||**`ALONG WITH M.A(EKM) NO. 182 OF 2020)`**| |---|---| |**`ANNEXURE A13`**|**`TRUE COPY OF THE NOTIFICAITON DATED`**| ||**`15.03.2014 ISSUED BY THE FIRST`**| ||**`RESPONDENT REGARDING CATEGORY NO.`**| ||**`16/2014 FOR THE SELECTION PROCESS TO`**| ||**`THE POST OF DRIVER GRADE II LDV IN`**| ||**`VARIOUS DEPARTMENTS IN DIFFERENT`**| ||**`DISTRICTS INCLUDING IDUKKI DISTRICT`**| ||**`(PRODUCED ALONG WITH M.A(EKM) NO. 182`**| ||**`OF 2020)`**| |**`ANNEXURE A14`**|**`TRUE COPY OF THE NOTIFICATION GO(P) NO.`**| ||**`120/73/PD DATED 30.04.1973 ISSUED BY`**| ||**`THE 3RD RESPONDENT (SPECIAL RULES FOR`**| ||**`THE POST OF DRIVERS IN VARIOUS`**| ||**`DEPARTMENTS) WITH ITS LEGIBLE COPY`**| ||**`(PRODUCED ALONG WITH M.A (EKM) NO. 145`**| ||**`OF 2021)`**| |**`ANNEXURE A15`**|**`TRUE COPY OF THE GO(P) NO.23/2003/P &`**| ||**`ARD DATED 14.08.2003 ISSUED BY THE 3RD`**| ||**`RESPONDENT (PRODUCED ALONG WITH M.A`**| ||**`(EKM) NO. 145 OF 2021)`**| |**`EXHIBIT P1`**|**`TRUE COPY OF ORIGINAL APPLICATION FILED`**| ||**`BY THE PETITIONER AND NUMBERED AS`**| ||**`OA(EKM) NO. 434 OF 2018 ON THE FILES OF`**| ||**`THE KERALA ADMINISTRATE TRIBUNAL AT`**| ||**`THIRUVANANTHAPURAM (ADDITIONAL BENCH AT`**| ||**`ERNAKULAM), WITH ANNEXURE A1 TO A15.`**| |**`EXHIBIT P2`**|**`TRUE COPY OF THE REPLY STATEMENT DATED`**| ||**`19.02.2019 FILED ON BEHALF OF`**| ||**`RESPONDENT NOS. 1 AND 2 IN OS (EKM) NO.`**| ||**`434 OF 2018 ON THE FILES OF THE KERALA`**| ||**`ADMINISTRATIVE TRIBUNAL, ADDITIONAL`**| ||**`BENCH ERNAKULAM.`**| |**`EXHIBIT P3`**|**`TRUE COPY OF THE INTERIM ORDER DATED`**| ||**`24.02.2020 IN OA (EKM) NO.434 OF 2018`**| ||**`ON THE FILES OF THE KERALA`**| ||**`ADMINISTRATIVE TRIBUNAL, ADDITIONAL`**| ||**`BENCH, ERNAKULAM.`**| |**`EXHIBIT P4`**|**`TRUE COPY OF THE JUDGMENT DATED`**| ||**`02.06.2020 IN OP(KAT) NO.153 OF 2020 OF`**| ||**`THIS HON'BLE COURT.`**| |**`EXHIBIT P5`**|**`TRUE COPY OF THE ORDER DATED 27.01.2021`**| ||**`IN OA (EKM) NO. 434 OF 2018 O N THE`**| ||**`FILES OF THE KERALA ADMINISTRATIVE`**| ``` O.P.(KAT) No.77 OF 2021 ``` ``` 11 ``` ``` TRIBUNAL, ADDITIONAL BENCH AT ERNAKULAM. ``` ``` EXHIBIT P6TRUE COPY OF THE ORDER CUM COMMUNICATION DATED 08.02.2021 ISSUED BY THE FIRST RESPONDENT ``` ``` EXHIBIT P6(a)TRUE COPY OF THE REPLY CUM COVERING LETTER DATED 31.03.2021 ISSUED BY THE SECOND RESPONDENT ``` ``` EXHIBIT P7TRUE COPY OF THE APPOINTMENT CHART PUBLISHED BY THE SECOND RESPONDENT AS REGARDS THE POST OF DRIVER GRADE II(LDV) (CAT.No.016/2014) IN VARIOUS DEPARTMENTS IN IDUKKI DISTRICT ``` ``` EXHIBIT P8TRUE COPY OF THE INFORMATION DATED 20.07.2021 FURNISHED BY THE STATE PUBLIC INFORMATION OFFICER OF THE OFFICE OF THE DISTRICT COLLECTOR, IDUKKI ``` ``` Exhibit P9TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT DATED 12.07.2021. ``` ``` Exhibit P9(a)TRUE COPY OF THE INFORMATION DATED 03.08.2021 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER. ```