Civil Writ Petition No.643 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.643 of 2009 Date of decision: 10.7.2009 Constable Dalbir Singh ...petitioner Versus State of Haryana and others ...respondents. CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Ms. Sharmila Sharma , Advocate for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana for the State. RANJIT SINGH J. 200 posts of Constable drivers were advertised in the year 2002. 25.8.2002 was the last date for submission of the application. Petitioner applied for the post. He was selected on 23.10.2003 and since then he has continued to work on the said post. As per the petitioner, his work and conduct is satisfactory and there is no complaint against him. Suddenly, however, Director General of Police has decided to terminate the services of the petitioner by issuing direction to the appointing authority to complete the formalities in this regard. Show cause notice dated 3.12.2008 was accordingly served to the petitioner by Deputy Inspector General, Haryana Armed Police, Madhuban. The petitioner filed reply pleading various grounds to challenge the proposed action of termination of his services. Notice of motion was issued and reply has been filed. Further proceedings, on the show cause notice issued to the Civil Writ Petition No.643 of 2009 2 petitioner, were stayed on 15.1.2009 and the petitioner continues to be in service. The stand taken in the reply is that one of the essential qualification for the post to which the petitioner was appointed was that the candidate must possess driving licence to drive heavy motor vehicle for which the candidate must have a minimum 3 years experience from the last date of submission of the application i.e. 25.8.2002. The petitioner was accordingly appointed after checking his qualification and experience. Subsequently, Rajesh Kumar and Fateh Singh filed a Civil Writ Petition No. 19027 of 2003 challenging the selection vide which the petitioner and others were appointed. In all 550 constables were appointed out of which 200 constables were appointed as constable drivers. The challenge in the writ petition against the constable drivers was on the ground that those appointed were not having valid driving licences and that their licences were contravening the provisions of Section 4 of the Motor Vehicle Act. The writ petition filed by Rajesh Kumar was allowed by this Court on 20.10.2005. Director General of Police was directed to hold an inquiry into the validity of the driving licences of the selected candidates. If any driving licences were found not genuine or valid then the Director General was to take action accordingly. To comply with the order, the Director General issued letter to Inspector General of Police, HAP Madhuban for verifying the driving licence of all the constables who were appointed as constable drivers and to further take action as per the rules and directions aforementioned. A verification of the driving licence of the petitioner was accordingly got done from licencing authority i.e. District Transport Civil Writ Petition No.643 of 2009 3 Officer, Hisar. It then revealed that licence No. 24551 issued to the petitioner was renewed from 9.5.2002 to 4.6.2005 by DTO, Hisar after passing the test for HGV conducted by the MV Inspector, Hisar. Initially, licence was issued to the petitioner from 5.6.1996 to 4.6.1999 by DTO, Sonitpur, Assam, which was not renewed from 4.6.1999 to 9.5.2002. A clarification was also sought when DTO, Hisar through his letter dated 24.8.2006 informed the respondent that as per Section 15(1) of the Motor Vehicle Act if an application for renewal of licence is made after more than 30 days of its expiry then the driving licence shall be renewed with effect from its date of renewal. It is clarified that the period which had lapsed will not be treated as valid driving licence period. Copy of this clarification is annexed with the reply as Annexure R-2. It is on this basis, stated that the petitioner was not having driving licence and experience as required being the essential qualification of the post advertised. It is seen that regular departmental inquiry was initiated against the petitioner. However, inquiry officer did not find any fault with the petitioner and exonerated him. Commandant 2nd Battalion, HAP, however, disagreed with the finding and served show cause notice dated 15.11.2006 and proposed a penalty of dismissal from service. To this the petitioner submitted the reply on 29.11.2006. On 3.7.2007 again a fresh show cause notice was issued to the petitioner containing disagreement with the finding returned by the inquiry officer. Though not clarified but it seems that when the enquiry was not being finalized directions were issued to finalize the same without delay. It is further disclosed that respondent No.3 was entrusted with the departmental inquiries pending in 2nd and 1st Civil Writ Petition No.643 of 2009 4 Battalian of Haryana Armed Police. This was followed by issuing a letter dated 11.9.2008, which is stated to be to meet the ends of justice. Show cause notice was issued to the petitioner giving him an opportunity to reply. This show cause notice is now under challenge in the present writ petition. The stand taken in the reply clearly shows that there is no allegation that the driving licence which the petitioner initially possessed and issued by the State of Assam was a fake one. Merely because the petitioner could not renew his driving licence for some period should not be taken to his disadvantage to say that he lacked the experience. It is because of the operation of the provisions of the Motor Vehicle Act that period during which the licence could not be renewed is required to be treated as not having a licence to drive validly. The operation of law may require the licence to be valid from the date it is renewed but the experience which the petitioner had and is apparent from the driving licence validly held by him from 5.6.1996 to 4.6.1999 cannot be ignored. Otherwise also, counsel would refer to a case of Ram Sarup Versus State of Haryana 1978 (2) SLR 836 to say that where an employee, who even does not possess essential condition of experience, at the time of appointment should not ordinarily be terminated once he has acquired this experience after his appointment and by working on the post. Counsel would refer to judgment, Annexure P-6 where similar controversy has been dealt with by Division Bench of this Court in this regard. This Court has held as under: “ It is not in dispute, as we have pointed out earlier that none of the petitioners had the requisite number of 3 Civil Writ Petition No.643 of 2009 5 years of experience as licence holders of heavy vehicles. They held three years experience only as holders of light motor vehicles and only by continuance in service after the appointment of the petitioners, all the petitioners obtained the requisite three years experience as holders of heavy motor vehicles. If we must be concerned about the continuance of employment only on the basis of initial eligibility, we could have had no option but to keep hands off approach. But we must remember that the petitioners were being employed not on any highly technical or skilled work, although drivers require basic skills and it is the issuance of driving licences that guaranteed their respective eligibility. The number of years of experience was also relevant for after all, an employer was entitled to insist and expect that with experience they would have gained better control and applied norms of safety and exhibited higher efficiency while driving. It is now not the case that owing to any lack of experience, the respondents had suffered any loss. The experience that they have gained through the years since their employment in 2002 till the time when the show case notices were issued, in 2008, they have sufficiently filled up the initial lacuna. It has been held by the Supreme Court of India in Bhagwati Prasad and others versus Delhi State Mineral Development 1990 (1) S.C.C. 361 while adverting to the value of experience, that education would not always give experience and if the experience Civil Writ Petition No.643 of 2009 6 has been obtained during the service, that itself would be sufficient ground for retention of service and not to terminate on the ground of lack of the requisite educational qualification. The learned Senior counsel for the petitioners rely on the judgment of the Supreme Court in AIR 1978 SC 1536, 1979 (1) SCC 168 where the Hon'ble Supreme Court was addressing the issue of the appointment of Statistical Officer who did not fulfill the requisite qualification at the time of appointment but who had obtained necessary experience subsequently during the service and that was good enough justification for retention of service without termination. We find ourselves bound by the decision of the Supreme Court and we are in full agreement with raison-d'etre found in the above judgment.” Accordingly, the Division Bench of this Court had quashed the show cause notice, in view of the observation as noted above. The controversy in the present writ petition, seems to be covered by this decision rendered by this Court and by the decision of the Hon'ble Supreme Court. The show cause notice issued to the petitioner as such cannot be sustained. The same is set aside, the necessary consequences would follow. The writ petition is allowed in above terms. There shall be no order as to costs. (RANJIT SINGH) JULY 10, 2009 JUDGE rts