IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 WP(C).No. 16193 of 2007(C) -------------------------- PETITIONER(S): --------------- M. ABDUL BARI, UPPER DIVISION CLERK, OFFICE OF THE REGIONAL TRANSPORT OFFICER, ATTINGAL. BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.ANIL K.NAIR SRI.B.UNNIKRISHNA KAIMAL SRI.V.MADHUSUDHANAN SRI.PRAMJI PAUL VAZHAPPILLY RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TRANSPORT 'C' DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE TRANSPORT COMMISSIONER, THIRUVANANTHAPURAM. ADVOCATE GENERAL SRI.C.P.SUDHAKARA PRASAD GOVERNMENT PLEADER SRI.P.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2009, ALONG WITH WPC NO 23265 OF 2008 AND CONNECTED CASES, THE COURT ON 17/05/2010 DELIVERED THE FOLLOWING: W.P(C)No.16193/2007 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. TRUE COPY OF THE CERTIFICATE DATED 27.2.1007 ISSUED BY THE STATE BOARD OF TECHNICAL EDUCATION TO THE PETITIONER. EXT.P2. TRUE COPY OF THE CERTIFICATE DATED 6.3.2007 ISSUED BY LAL AUTO & GENERAL ENGINEERING WORKS, KILIMANOOR TO THE PETITIONER. EXT.P3. TRUE COPY OF THE NOTIFICATION S.O.NO.443(3) DATED 12.6.1989 ISSUED BY THE GOVT. OF INDIA. EXT.P4. TRUE COPY OF THE LETTER NO.A1.879/TC/07 DATED 26.3.2007 OF THE REGIONAL TRANSPORT OFFICER, ATTINGAL TO THE 2nd RESPONDENT. EXT.P5. TRUE COPY OF THE GOVT. LETTER NO.32403/N3/92/PW&T DATED 10.12.1992 TO THE 2nd RESPONDENT. EXT.P6. TRUE COPY OF THE LETTER NO.40390/N4/95/PW & TD DATED 18.7.1996 OF THE 1st RESPONDENT TO THE 2nd RESPONDENT. EXT.P7. TRUE COPY OF THE LETTER NO.2425/C2/2009/TRANS. DATED 3.4.2007 OF THE 1st RESPONDENT TO THE 2nd RESPONDENT. EXT.P8. TRUE COPY OF THE LETTER NO.423/C2/2007/TRANS. DATED 5.5.2007 OF THE 1st RESPONDENT TO THE 2nd RESPONDENT. EXT.P9. TRUE COPY OF THE LETTER NO.A3/5746/TC/2007 DATED 18.5.2007 OF THE 2nd RESPONDENT TO THE PETITIONER. / TRUE COPY / P.S.TO JUDGE P.N.RAVINDRAN, J. ----------------------------------------- W.P(C)Nos.16193 of 2007 23265, 27783, 29229, 31507 and 33366 of 2008 ----------------------------------------- Dated this the 17th day of May, 2010 JUDGMENT Common questions arise in these writ petitions. They were, therefore, heard together and are being disposed of by this common judgment. 2. W.P(C)No.16193 of 2007: The petitioner, a post graduate degree holder, entered service as Lower Division Clerk in the Motor Vehicles Department in March, 1996. He was promoted as Upper Division Clerk in the year 2003. While in service, he underwent the three year part-time diploma course in Mechanical Engineering from Central Polytechnic, Trivandrum and passed the diploma examination in Mechanical Engineering in November, 2006. The petitioner states that after completing the diploma course in Mechanical Engineering, with a view to gain experience in the repair of light motor vehicles, heavy goods vehicles and heavy passenger motor vehicles fitted with petrol and diesel engine, for the purpose of securing appointment by transfer as Assistant Motor Vehicles Inspector, he had attended Lal Auto & General Engineering Works, Kilimanoor (a Government approved workshop), before and after office W.P(C)No.16193 of 2007 and connected cases. -:2:- hours from 1-4-2005. A copy of the provisional certificate dated 27- 2-2007 issued by the State Board of Technical Education certifying that the petitioner has passed the final year diploma examination in Mechanical Engineering in November, 2006, is produced as Ext.P1. A copy of the certificate dated 6-3-2007 issued by the Proprietor, Lal Auto & General Engineering Works, Kilimanoor, certifying that the petitioner has acquired working experience in the repair of light motor vehicles, heavy goods vehicles and heavy passenger motor vehicles fitted with petrol and diesel engines by attending the workshop with effect from 1-4-2005, is produced as Ext.P2. 3. The qualifications and method of appointment to the category of Assistant Motor Vehicle Inspector in the Motor Vehicles Department, were prescribed by the State Government in the Kerala Transport Subordinate Service Rules, 1964. The said rules were issued when the Motor Vehicles Act, 1939 was in force. As per the said rules, the method of appointment to the category of Assistant Motor Vehicles Inspector was by (i) appointment by transfer from among members of the ministerial service employed in the Motor Vehicles Department and (ii) by direct recruitment from the open market, in the ratio of 1:4. The qualifications prescribed for appointment by transfer were: (i) A pass in the S.S.L.C. examination. W.P(C)No.16193 of 2007 and connected cases. -:3:- (ii) Diploma in Automobile Engineering issued after a course, the duration of which is not less than 3 years by recognized Universities or by Government. (iii) Motor Driving licence with endorsement for driving Heavy Passenger Motor Vehicles and Heavy Goods Vehicles. (iv) Pass in Account Test (Lower) and Departmental Test on the Laws relating to Motor Vehicles administered by the Motor Vehicles Department. It was also stipulated that ministerial staff of the department aspiring for appointment by transfer should have a minimum of three years service in the department. 4. The Motor Vehicles Act, 1939 was repealed by the Motor Vehicles Act, 1988, which came into force on 1-7-1989. Section 213 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) empowered the Central Government, by notification in the Official Gazette, to prescribe the minimum qualifications, which the officers of the Motor Vehicles Department or any class thereof shall possess for being appointed as such. In exercise of the said power the Central Government have issued Ext.P3 notification dated 12.6.1989 prescribing the qualifications for appointment to the category of Inspector of Motor Vehicles/Assistant Inspector of Motor Vehicles. Ext.P3 notification came into force on 1-7-1989. By Ext.P3, W.P(C)No.16193 of 2007 and connected cases. -:4:- 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 vehicles fitted with petrol and diesel engine was stipulated as one among the qualifications for the class of officers consisting of Inspector of Motor Vehicles/Assistant Inspector of Motor Vehicles. In Ext.P3 notification it was also stipulated that nothing contained therein shall apply to an officer appointed to such posts before 1-7-1989 and to an officer appointed to discharge functions of a non-technical nature. 5. While matters stood thus, the State Government sent Exts.P7 and P8 letters to the Transport Commissioner informing him that Ext.P3 notification dated 12-6-1989 is applicable to the State Motor Vehicles Department, that the qualification of working experience in a reputed automobile workshop prescribed therein should be one gained after acquiring the basic qualification prescribed for the post, that persons engaged in official duties cannot indulge in other activities for gaining experience in order to become eligible for appointment by transfer as Assistant Motor Vehicles Inspector, that the working experience should be full time working experience and that if qualified candidates are not available for appointment by transfer, the existing vacancies of Assistant Motor Vehicles Inspector should be reported to W.P(C)No.16193 of 2007 and connected cases. -:5:- the Kerala Public Service Commission immediately. In the light of the stand taken by the State Government in Exts.P7 and P8 letters, the Transport Commissioner rejected the petitioner's request for appointment by transfer as Assistant Motor Vehicles Inspector and communicated the said decision to the Regional Transport Officer, Attingal by Ext.P9 letter dated 8.5.2007. This writ petition was thereupon filed challenging Exts.P7 to P9 and seeking a direction to the respondents to treat the petitioner as fully qualified for appointment by transfer as Assistant Motor Vehicles Inspector. He has also prayed for a writ in the nature of mandamus commanding the respondents to treat his part time working experience as 'working experience' prescribed in Ext.P3 notification. It is contended that the Central Government have not prescribed that the working experience should be full time experience, that the State Government cannot modify or amend the stipulations in Ext.P3 and that by Exts.P7 and P8 the State Government have virtually amended Ext.P3 notification by insisting on full time working experience. It is also contended that as the petitioner had attended the workshop prior to and after office hours and it is not prohibited by the service rules, the experience gained by him in the workshop is liable to be reckoned as adequate experience for the purpose of appointment by transfer as Assistant Motor Vehicles W.P(C)No.16193 of 2007 and connected cases. -:6:- Inspector. 6. W.P(C)No.23265 of 2008: The petitioners herein are diploma holders in Mechanical Engineering, who are presently working as Upper Division Clerks in the Motor Vehicles Department. The first petitioner in this writ petition entered service as Lower Division Clerk on 21-12-2000. He was promoted to the category of Upper Division Clerk with effect from 1.5.2004. The second petitioner herein entered service as Lower Division Clerk on 31-3-2004. He was promoted to the category of Upper Division Clerk with effect from 17-2-2007. The petitioners state that after they entered service, with the permission of the Controlling Authority, they had undergone the diploma course in Mechanical Engineering and have thereby acquired the academic qualification prescribed for appointment to the category of Assistant Motor Vehicles Inspector. The petitioners contend that the stipulation in the notification issued by the Central Government under Section 213 of the Act that applicants seeking appointment to the post of Inspector of Motor Vehicles/Assistant Inspector of Motor Vehicles should possess 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 vehicles fitted with petrol and diesel engine was not intended to govern ministerial staff of the W.P(C)No.16193 of 2007 and connected cases. -:7:- department seeking appointment by transfer and that it was intended to govern only direct recruits. Relying on rule 8 of the Kerala Transport Subordinate Service Rules, 1964, a copy of which is produced as Ext.P3, it is contended that formerly, ministerial staff of the department appointed by transfer as Assistant Motor Vehicles Inspector were only required to undergo training for a period of six months at the Central Workshop of the State Transport Department at Pappanamcode or in any other workshop, notified by the Government from time to time. The petitioners also contend that Note 1 to rule 5 (2) of the Kerala Transport Subordinate Service Rules, 2008, a copy of which is produced as Ext.P6, which stipulates that the working experience shall be one acquired after having acquired the requisite educational qualification and the workshop from which such experience has been acquired shall be one registered with the Government, is arbitrary, unreasonable and discriminatory. In this writ petition the petitioners seek a declaration that the prescription of working experience of atleast one year in a reputed automobile workshop which undertakes repairs of both light motor vehicles, heavy goods vehicles and heavy passenger motor vehicles fitted with petrol and diesel engine in rule 5(2) thereof and Note I thereto, which stipulates that the working experience shall be one acquired after having acquired the W.P(C)No.16193 of 2007 and connected cases. -:8:- requisite educational qualification and the workshop from which such experience has been acquired shall be one registered with Government are arbitrary, unreasonable and discriminatory. The petitioners also seek a writ in the nature of mandamus commanding the respondents not to insist that the ministerial staff of the Motor Vehicles Department should possess working experience on a full time basis for the purpose of appointment by transfer to the category of Assistant Motor Vehicles Inspector. 7. W.P(C)No.27783 of 2008: The petitioners in this writ petition are Lower Division Clerks working in the Motor Vehicles Department. They entered service on 21-3-1996 and 18-12-1997 respectively. The petitioners in this writ petition challenge the validity of rule 5(2) of the Kerala Transport Subordinate Service Rules, 2008 to the extent it prescribes one year working experience in an automobile workshop as a qualification for appointment by transfer of ministerial staff of the Department to the category of Assistant Motor Vehicles Inspector/Motor Vehicles Inspector. The petitioners have also prayed for striking down rule 5(2)(3) and Note 1 to rule 5(2) of the said rules. It is contended that the exemption given to persons already appointed by transfer prior to 8-4-2008 from possessing the working experience prescribed in Note 1 is bad for under-inclusiveness. W.P(C)No.16193 of 2007 and connected cases. -:9:- 8. W.P(C)No.29229 of 2008: The petitioner in this writ petition is a candidate who has been short listed by the Kerala Public Service Commission for appointment by direct recruitment to the post of Assistant Motor Vehicles Inspector. She challenges Note II to sub- rule (2) of rule 5 of the Kerala Transport Subordinate Service Rules, 2008, which stipulates that in the case of persons appointed by transfer as Assistant Motor Vehicles Inspector and in service prior to 8.4.2008, the condition regarding working experience prescribed in Note I need not be insisted. She also challenges Ext.P3 order passed by the State Government on 25.6.2008 extending the benefit of Note II to rule 5(2) of the Kerala Transport Subordinate Service Rules, 2008 to those Assistant Motor Vehicles Inspectors who were appointed by transfer from among members of the ministerial staff of the department but did not possess one year working experience and were ordered to be reverted by this Court. She has also prayed for a direction to the respondents to report all vacancies in the category of Assistant Motor Vehicle Inspector including those now manned by unqualified hands to the Kerala Public Service Commission. 9. W.P(C)No.31507 of 2008: The petitioner in this writ petition is an Upper Division Clerk working in the Motor Vehicles Department. In this writ petition he challenges Note II to rule 5(2) of W.P(C)No.16193 of 2007 and connected cases. -:10:- the Kerala Transport Subordinate Service Rules, 2008 in so far as it exempts persons already appointed by transfer as Assistant Motor Vehicles Inspector and in service prior to 8-4-2008 from possessing the required working experience stipulated in Note I. In the alternative he has prayed for a declaration that there is no stipulation in the Kerala Transport Subordinate Service Rules, 2008 to the effect that the working experience should be in accordance with rule 10(ab) of Part II of the Kerala State and Subordinate Services Rules, 1958. 10. W.P(C) No.33366 of 2008: The petitioner in this writ petition is presently working as Upper Division Clerk in the Motor Vehicles Department. He entered service as Lower Division Clerk on 2.5.2000. He has successfully completed the three year diploma course in Automobile Engineering. In this writ petition he challenges rule 5(2) of the Kerala Transport Subordinate Service Rules, 2008 and Note I to the said rule and seeks a direction to the respondents not to insist that ministerial staff of the department seeking appointment by transfer as Assistant Motor Vehicles Inspector should possess full time working experience. The petitioner contends that as an employee of the Government he cannot acquire full time experience while in service and therefore, the stipulation that ministerial staff seeking appointment by transfer as Assistant Motor Vehicles Inspector should possess full W.P(C)No.16193 of 2007 and connected cases. -:11:- time working experience is arbitrary and unreasonable. 11. I heard Sri.K.R.B.Kaimal, learned Senior Advocate appearing for the petitioner in W.P(C)No.16193 of 2007, Sri.P.C.Sasidharan, learned counsel appearing for the petitioners in W.P(C)No.23265 of 2008, Sri.P.Ravindran, learned Senior Advocate appearing for the petitioners in W.P(C)No.27783 of 2008, Sri.M.Rajasekharan Nair, learned counsel appearing for the petitioner in W.P(C)No.29229 of 2008, Sri.P.Gopinath Menon, learned counsel appearing for the petitioner in W.P(C)No.31507 of 2008, Sri.V.A.Muhammed, learned counsel appearing for the petitioner in W.P(C)No.33366 of 2008, Sri.C.P.Sudhakara Prasad, the learned Advocate General appearing for the State of Kerala and Sri.Alexander Thomas, the learned standing counsel appearing for the Kerala Public Service Commission. 12. I have considered the submissions made at the Bar by learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. The qualifications and method of appointment to the category of Assistant Motor Vehicles Inspector in the Kerala Transport Subordinate Service were stipulated in the Special Rules for the Kerala Transport Subordinate Service, 1964 issued as per G.O(P)No.164/PD dated 12-5-1964. Rule 2 thereof provided that appointment to the category of Assistant Motor Vehicles Inspector shall W.P(C)No.16193 of 2007 and connected cases. -:12:- be made by direct recruitment or recruitment by transfer from among members of the ministerial service employed in the Motor Vehicles Department. It was also stipulated that appointment by transfer and direct recruitment shall be made in the ratio of 1:4. The qualifications prescribed in the said rules for appointment by direct recruitment and appointment by transfer were as follows:- ------------------------------------------------------------------------------- Method of appointment Qualifications ------------------------------------------------------------------------------- (1) (2) ------------------------------------------------------------------------------- Direct recruitment . Essential: (i) Minimum general educational qualification of the S.S.L.C. Standard. (ii) Diploma in Automobile Engineering issued after a course the duration of which is not less than 3 years by recognised Universities or by Government. (iii) Motor Driving Licence with endorsement for driving Heavy Passenger Motor Vehicles and Heavy Goods Vehicles. Note:- In the absence of candidates possessing Motor Driving Licence with endorsement of eligibility for driving Heavy Passenger Motor Vehicles and Heavy Goods Vehicles those without such an endorsement in their licence will also be considered for appointment to the post. Such candidates, if selected, shall however obtain the Heavy Passenger Motor Vehicles and Heavy Goods Vehicles endorsement, W.P(C)No.16193 of 2007 and connected cases. -:13:- within the period of probation. By transfer Essential: (i) Minimum general educational qualification of the S.S.L.C. Standard. (ii) Diploma in Automobile Engineering issued after a course, the duration of which is not less than 3 years, by recognised Universities or by Governent. (iii) Motor Driving licence with endorsement for driving Heavy Passenger Motor Vehicles and Heavy Goods Vehicles. (iv) Must have passed the Account Test (Lower) and Departmental Test on the Laws relating to Motor Vehicles administered by the Motor Vehicles Department. (v) Must have completed three years service in the State Motor Vehicles Department. Provided that, members of the existing Ministerial Staff in the Motor Vehicles Department who have acquired any of the following qualifications shall be exempted from acquiring the qualification prescribed in item (ii) above:- Post Diploma in Automobile Engineering issued after successful completion of one year study in the Government Polytechnic, Kalamassery after passing the Mechanical Engineering Diploma Course of three years duration from Polytechnic, or Kerala Government Technical Examination Certificate in Auto - Engineering subjects W.P(C)No.16193 of 2007 and connected cases. -:14:- (Lower) issued after one year study in a private recognised institute, or Certificate in Auto Engineering subjects issued after successful completion of 2 years course from the Government Industrial School, Cannanore, or National Trade Certificate in the trade of Mechanic (Motor Vehicles) issued by the National Council for Training in Vocational Trades, Ministry of Labour, Employment and Rehabilitation, Government of India, or such other diplomas recognised by the Government of Kerala. Note:- In the case of a person allotted to the State of Kerala from the service under the Government of Madras consequent on States Re-organisation, a pass in Account Test for Subordinate Officers, Part I or Account Test for Executive Officers shall be accepted as sufficient qualification in lieu of Account Test (Lower)." -------------------------------------------------------------------------------- In rule 8 thereof it was stipulated that persons appointed by transfer shall undergo training for a period of six months at the Central Workshop; State Transport Department, Pappanamcode or any other workshop notified by the Government from time to time. Rule 8 thereof reads as follows:- "8. Training: - Persons appointed by transfer shall undergo training for a period of six months at the Central Workshop, State Transport Department, Pappanamcode or any W.P(C)No.16193 of 2007 and connected cases. -:15:- other workshop notified by the Government from time to time. Note:- In the case of persons appointed by transfer and holding Diploma in Automobile Engineering issued by recognised Universities or by Government after a course, the duration of which is not less than 3 years, no training is necessary." The aforesaid rules were issued at a time when the Motor Vehicles Act, 1939 was in force. 13. The Motor Vehicles Act, 1939 was repealed by the Motor Vehicles Act, 1988 which came into force on 1-7-1989. Section 213 of the said Act empowered the Central Government to prescribe the minimum qualifications which the officers of the Motor Vehicles Department or any class thereof shall possess for being appointed as such. In exercise of the said power, the Central Government have issued a notification dated 12-6-1989 and it came into force on 1.7.1989. The notification is extracted below:- "S.O.443(E) dated June 12, 1989.- In exercise of the powers conferred by sub-section (4) of Section 213 of the Motor Vehicles Act, 1988 (59 of 1988), the Central Government hereby prescribes that the minimum qualification for the class of officers consisting of the category of Inspector of Motor Vehicles or Assistant W.P(C)No.16193 of 2007 and connected cases. -:16:- Inspector of Motor Vehicles (by whatever names called) shall be as under:- (1) Minimum general educational qualification of a pass in X standard; and (2) a diploma in Automobile Engineering (3 years course) or a diploma in Mechanical Engineering awarded by the State Board of Technical Education (3 years course); 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 vehicles fitted with petrol and diesel engine; and (4) must hold a driving licence authorising him to drive motor cycle, heavy goods vehicles and heavy passenger motor vehicles. 2. Nothing contained in the notification shall apply to an officer appointed to such post before the first day of July, 1989 and to an officer appointed to discharge function of a non-technical nature. 3. This notification shall come into force on the first day of July, 1989." (emphasis supplied) 14. After the said notification was issued, the Kerala Public Service Commission issued a notification dated 18-7-1995 inviting applications for appointment by direct recruitment to the category of W.P(C)No.16193 of 2007 and connected cases. -:17:- Assistant Motor Vehicles Inspector. The Kerala Public Service Commission had also stipulated that the working experience prescribed by the Central Government should be one acquired after acquisition of the basic qualification prescribed for the post, that the experience should be from a Government approved workshop and that experience in the capacities of paid and unpaid apprentices, trainees and casual labourers will not be accepted. The said stipulation was challenged in this Court. It was contended that the notification issued by the Central Government is not a special rule or a recruitment rule and therefore, the stipulation in rule 10(ab) of the Kerala State and Subordinate Services Rules, 1958 that the working experience should be one gained after acquisition of the basic educational qualification has no application. It was also contended that in the notification issued by the Central Government there is no indication that the working experience should be gained after acquisition of the basic educational qualification. The Kerala Public Service Commission resisted the writ petition, contending, inter alia, that as Section 213(1) of the Motor Vehicles Act, 1988 empowers the State Government to establish a Motor Vehicles Department and to appoint such persons, as it thinks fit, as officers in that department, the State Government can frame and issue its own rules in addition to the minimum qualifications prescribed by the W.P(C)No.16193 of 2007 and connected cases. -:18:- Central Government under section 213(4) of the Motor Vehicles Act, 1988. A Division Bench of this Court in Sirajudheen v. Kerala Public Service Commission, 2001 (2) KLT 268, overruled the contentions of the petitioners and held that in view of rule 10 (ab) of the Kerala State and Subordinate Services Rules, 1958, the working experience prescribed by the Central Government should be one gained after acquisition of the basic qualification and that applicants who do not satisfy the said requirement are not eligible to apply for the post of Assistant Motor Vehicles Inspector. The Division Bench held that the notification issued by the Central Government under Section 213(4) of the Motor Vehicles At, 1988 would satisfy the definition of the term “recruitment rule” occurring in Rule 10(ab) of the Kerala State and Subordinate Services Rules, 1958. 15. The issue again came up for consideration before this Court in W.P(C).No.2677 of