THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION Nos.4383 & 4999 of 2007 % 27-07-2007 W.P.No.4383/2007 # Between: V. Rama Prasad S/o. V. Rangaiah R/o. Nandayala, Kurnool District. ..... PETITIONER AND 1 The State of Andhra Pradesh, Rep. by its Secretary to Government , Transport Department, Secretariat, Saifabad, Hyderabad. 2 The Andhra Pradesh Public Service Commission, Rep. by its Secretary, Nampally, Hyderabad. .....RESPONDENTS ! Counsel for the Petitioner: MR.ABHINAND KUMAR SHAVILI ^ Counsel for the Respondents: GP FOR TRANSPORT W.P.No.4999/2007 # Between: M.Venkata Subba Rayudu, s/o Subbarayudu, r/o 3-340, M-14, Ramanjaneyapuram, RTC Colony, Cuddapah Town. ..... PETITIONER AND 1 The Andhra Pradesh Public Service Commission represented by its Secretary, Gruhakalpa, Hyderabad-1, (now at Beside Gandhi Bhavan, M.J.Road, nampally, Hyderabad. 2 The State Board of Technical Education and Training represented by its Secretary, BRKR BUilding, Lower Tank Bund, Hyderabad-500 063. .....RESPONDENTS ! Counsel for the Petitioner: MR.J.R.MANOHAR RAO ^ Counsel for the Respondent: GP FOR TECHNICAL EDUCATION < Gist: > Head Note: ? CITATIONS: 1. 1994 (4) SLR 7 2. (1975) 3 SCC 76 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE SECOND DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NOS:4383 & 4999 of 2007 W.P.No.4383/2007 Between: V. Rama Prasad S/o. V. Rangaiah R/o. Nandayala, Kurnool District. ..... PETITIONER AND 1 The State of Andhra Pradesh, Rep. by its Secretary to Government , Transport Department, Secretariat, Saifabad, Hyderabad. 2 The Andhra Pradesh Public Service Commission, Rep. by its Secretary, Nampally, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order direction more in the nature of writ of Certiorari (a) to call for the records relating to and connected with O.A.No.1410 of 2006 dt.29-12-2006 and quash or set aside the same holding it as a unsustainable and contrary to the rules and violative of Article 14 and 16 of Constitution of India and consequently declare that the petitioner is fully eligible and qualified to be appointed as an Asst. Motor Vehicle Inspector in Andhra Pradesh Transport Department (b) Direct the Respondent to consider the case of the petitioner for appointment to the post of an Asst. Motor Vehicle Inspector and upon selection appoint the petitioner as an Asst. Motor Vehicle Inspector with consequential benefits and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner: MR.ABHINAND KUMAR SHAVILI Counsel for the Respondents: GP FOR TRANSPORT W.P.No.4999/2007 Between: M.Venkata Subba Rayudu, s/o Subbarayudu, r/o 3-340, M-14, Ramanjaneyapuram, RTC Colony, Cuddapah Town. ..... PETITIONER AND 1 The Andhra Pradesh Public Service Commission represented by its Secretary, Gruhakalpa, Hyderabad-1, (now at Beside Gandhi Bhavan, M.J.Road, nampally, Hyderabad. 2 The State Board of Technical Education and Training represented by its Secretary, BRKR BUilding, Lower Tank Bund, Hyderabad-500 063. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ order or direction more in the nature of writ of certiorari calling for the records relating to the order of the Hon'ble A.P. Administrative Tribunal dated 29-12- 2006 in OA No.1004 of 2006 and quash the same and further declare that the petitioner is eligible for appointment to the post of Assistant Motor vehicles inspector and direct the respondents to consider the claim of the petitioner by declaring the action of the respondents as illegal, bad and arbitrary and to pass such other order or orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case. Counsel for the Petitioner: MR.J.R.MANOHAR RAO Counsel for the Respondent: GP FOR TECHNICAL EDUCATION The Court made the following : ORDER: (per Hon’ble Sri Justice Ghulam Mohammed) Since the common questions of law involved in these tow writ petitions, they are clubbed together and disposed of by this common order. These writ petitions are filed seeking writ of Certiorari to quash the common order dated 29.12.2006 passed by the A.P. Administrative Tribunal in O.A.Nos.1410 and 1004 of 2006 and batch and to direct the respondents to consider the case of the petitioners for appointment to the post of Assistant Motor Vehicle Inspector with consequential benefits. All the applicants including the petitioners herein have approached the Tribunal under Section 19 of the A.P. Administrative Tribunals Act, 1985 to declare that they are fully eligible and qualified to be appointed as Assistant Motor Vehicle Inspector in A.P. Transport Department and to direct the respondents to consider their case and appoint them in the said post. It is stated that all these applications are directed against the selection process of Motor Vehicle Inspectors, which is undertaken by the Andhra Pradesh Public Service Commission in pursuance of Notification No.13 of 2004 on various grounds. While the O.As., are pending interim orders came to be passed on 9.03.2006 directing the respondents to permit them for medical re-examination and other consequential tests for the post of Assistant Motor Vehicle Inspector but not to announce the results of the applicants pending further orders. The contention of the petitioners/applicants in the present O.As., was that they are holding Diploma in Mechanical Engineering from various institutions. They challenged the rule, which prescribes Diploma in Automobile Engineering as minimum qualification for direct recruitment as Assistant Motor Vehicle Inspectors and excluding Diploma holders in Mechanical Engineering, which is in fact prescribed in the Motor Vehicles Act, and also prescribing Diploma in Mechanical Engineering as qualification for appointment by transfer. They contend that such treatment is arbitrary, discriminatory, unreasonable and violative of Articles 14 and 16 of the Constitution of India. The A.P. Public Service Commission filed counter affidavit contesting the applications. But the State has not filed any counter affidavit in spite of providing sufficient opportunity. The stand of the A.P. Public Service Commission is that the Rules made under Article 309 of the Constitution of India prescribe minimum qualification as Diploma in Automobile Engineering; that the State has a right to prescribe the qualifications and the same cannot be challenged; that the said stand was also upheld by the Hon’ble Supreme Court; and that it is neither discriminatory nor arbitrary or unreasonable and there are no valid grounds. On the above pleadings, the Tribunal framed the following points for consideration. 1. Whether the Hyderabad city is a separate and free zone under the Presidential Order? 2. Whether the applicants in O.A.Nos.270, 1387 and 1927 of 2006 who acquired Heavy Vehicle licence after the Notification can be considered for selection? 3. Whether prescribing minimum physical measurements for candidates for the post of assistant Motor Vehicle Inspector is not just and valid? 4. Whether the physical fitness examination was conducted in a defective manner? 5. Whether prescribing same measurements to the ladies and gents for the post of Assistant Motor Vehicle Inspector is bad under law? 6. Whether failure to provide reservation to the ladies is bad under law? 7. Whether disallowing the candidates possessing Diploma in Mechanical Engineering and prescribing only Automobile Diploma is just and valid? The Tribunal on Point No.7 held that in view of the various contentions raised by the learned counsel for the applicants that excluding the Diploma in Mechanical Engineering as one of the minimum qualifications cannot be held to be bad under law. Therefore, rejection of applications on the ground that they are only possessing Diploma in Mechanical Engineering cannot be said to be arbitrary. Holding so the Tribunal dismissed the above O.As and vacated the interim orders passed thereon. In these writ petitions the petitioners contend that though the Tribunal passed interim order dated 9.03.2006 directing the respondents to permit them for medical re-examination and other consequential tests for the post of Assistant Motor Vehicle Inspector, they have not received any call letters for undergoing medical examination. It appears that the respondents have taken a view that the qualifications possessed by the applicants are not sufficient for appointment to the post of Assistant Motor Vehicle Inspector. Hence the applicants submitted detailed representations to the respondents but no orders have been passed on the said representations. The qualifications prescribed for the post of Assistant Motor Vehicle Inspector as per the special rules, which have been notified in G.O.Ms.No.529, dated 6.04.1999, read as under:- By direct recruitment:- No person shall be eligible for appointment to this post unless he possess the following qualifications, namely – i. Must hold a Degree in Mechanical Engineering or Automobile Engineering of a University in India established or incorporated by or under a Central Act or a Provisional Act or a State Act or Institution recognized by the University Grants Commission or any equivalent qualification OR Must hold a Diploma in Automobile Engineering granted by the State Board of Technical Education and Training, Andhra Pradesh or Technological Diploma Examination Board Hyderabad or any other equivalent qualification. ii. Must hold a motor driving licence and have experience in driving motor vehicles for a period of not less than three years and possess Heavy Transport Vehicle Endorsement. Provided that where persons with three years experience in driving motor vehicles are not available persons with two years experience in driving motor vehicles may be appointed. BY Promotion:-- i. Must possess a diploma in Automobile Engineering issued by the State Board of Technical Education and Training, Andhra Pradesh or any other qualification recognized as equivalent thereto; ii. Must hold a motor driving licence and have experience in driving motor vehicles for a period of not less than two years and possess heavy transport vehicles endorsement. A perusal of the above rules indicate that a degree in Mechanical Engineering or Automobile Engineering or Equivalent qualification is specified, or Diploma in Automobile Engineering or its equivalent qualification is the eligibility criteria. The above said rules were amended in G.O.Ms.No.45 wherein the State Government had introduced the method of appointment by transfer from any other department to the post of Assistant Motor Vehicle Inspector. The qualification prescribed for appointment by transfer from any other department is as follows:- 1. Must possess a Diploma in automobile Engineering issued by the State Board of Technical Education of Andhra Pradesh or any other qualification recognized as equivalent thereto OR Must hold a Diploma in Mechanical Engineering issued by the State Board of Technical Education of Andhra Pradehs or any other qualification recognized as equivalent thereto. 2. Must hold a motor driving licence and have experience in driving motor vehicle for a period of not less than three years and possess Heavy Transport Vehicles endorsement. The recruitment rules in respect of the direct recruitment and promotion, and appointment by transfer, the qualifications prescribed are at variance. According to the petitioners, when diploma holder in Mechanical Engineering is eligible for appointment by transfer, in all fairness, the respondents should have considered the Diploma holders in Mechanical Engineering are eligible for appointment by direct recruitment also. Since they possess the equivalent qualification as prescribed in the rules, the respondents ought to have treated the Diploma in Mechanical Engineering as equivalent to Diploma in Automobile Engineering. As the respondents have not sent any intimation for medical examination, the petitioner in W.P.No.4383 of 2007 filed O.A.No.1410 of 2006 and petitioner in W.P.No.4999 of 2007 filed O.A.No.1400 of 2006, wherein the Tribunal through its order dated 9.03.2006 while admitting the O.As., directed the respondents to send the petitioners for medical examination for the selection to the post of Assistant Motor Vehicle Inspector. Since the respondents have not complied with the order of the Tribunal, the petitioners herein filed Contempt Application No.335 of 2006, but the learned Tribunal had not considered the contempt case and had erroneously dismissed the O.A. filed relying on a decision of the Supreme Court in Satyapal Reddy v. Government of A.P., and others. It is stated that the said decision has no application to the present case. The issue before the Apex Court was not in respect of prescribing the diploma in Mechanical Engineering as one of the qualifications to the Assistant Motor Vehicle Inspector. The Central Government had prescribed only Diploma in Mechanical Engineering as a minimum qualification, but the State Government had prescribed higher qualification, i.e. degree in Mechanical Engineering. The contention raised before the Hon’ble Supreme Court was that when Central Government had prescribed a diploma in Mechanical Engineering as a minimum qualification, the State Government can not prescribe qualifications in variance to the Central Government. The Apex Court held that the State Government cannot prescribe the qualification less than what has been prescribed by the Central Government but it can prescribe higher qualification than what has been prescribed by the Central Government. It is contended that for direct recruitment a diploma in Automobile Engineering or equivalent has been prescribed and for the recruitment by transfer a diploma in Automobile Engineering or diploma in Mechanical Engineering or any other equivalent is prescribed and the same had been given in G.O.Ms.No.45, dated 2.03.2000. But the Tribunal erroneously dismissed the O.A. by following the judgment of the Supreme Court supra. The learned counsel for the petitioners vehemently contended that the statutory Rules framed by the Government under proviso to Article 309 clearly stipulates the equivalent qualification with regard to appointment by transfer by virtue of G.O.Ms.No.45 dated 2.03.2000 in which case marking diploma holders in Mechanical Engineering as ineligible for the post of Assistant Motor Vehicle Inspector is highly discriminatory. When the notification relates to direct recruitment as one of the method of recruitment, Diploma in Mechanical Engineering ought to have been treated as equivalent to Diploma in Automobile Engineering. It is contended that when the Central Government has treated the diploma in Mechanical Engineering as equivalent to diploma in Automobile Engineering, the State Government ought to have framed the rules in tune with the Central Government notification. He has drawn our attention to Section 213 of the Motor Vehicles Act, 1964 (for short ‘the Act’), which reads as follows. Appointment of motor vehicle officers:- (1) The State Government may, for the purpose of carrying into effect the provisions of this Act, establish a Motor Vehicles Department and appoint as officers thereof such persons as it thinks fit. (2) Every such officer shall be deemed to be a public servant within the meaning of the Indian penal Code. 1860 (45 of 1860). (3) The State Government may make rules to regulate the discharge by officers of the Motor Vehicles Department of their functions and in particular and without prejudice to the generality of the foregoing power to prescribe the uniform to be worn by them, the authorities to which they shall be subordinate the duties to be performed by them the powers (including the powers exercisable by police officers under this Act) to be exercised by them and the conditions governing the exercise of such powers. (4) The Central Government may having regard to the objects of the Act by notification in the Official Gazatte prescribe the minimum qualifications which the said officers or any class thereof shall possess for being appointed as such. (5) In addition to the powers that may be conferred on any officer of the Motor Vehicles Department under sub-section (3) such officer as may be empowered by the State Government in this behalf shall also have the power to— a. Make such examination and inquiry as he thinks fit in order to ascertain whether the provisions of this Act and the rules made thereunder are being observed; b. With such assistance if any as he thinks fit enter inspect and search any Premises which is in the occupation of a person who he has reason to believe has committed an offence under this Act or in which a motor vehicle in respect of which such offence has been committed is kept; Provided that— i. any such search without a warrant shall be made only by an officer of the rank of a Gazetted Officer; ii. where the offence is punishable with fine only the search shall not be made after sunset and before sunrise; iii. where the search is made without a warrant the Gazetted Officer concerned shall record in writing the grounds for not obtaining a warrant and report to his immediate superior that such search has been made; c. examine any person and require the production of any register or other document maintained in pursuance of this Act and take on the spot or otherwise statements of any person which he may consider necessary for carrying out the purposes of this Act; d. seize or take copies of any registers or documents or portions thereof as he may consider relevant in respect of an offence under this Act which he has reason to believe has been committed; e. launch prosecutions in respect of any offence under this Act and to take a bond for ensuring the attendance of the offender before any Court; f. exercise such other powers as may be prescribed. Provided that no person shall be compelled under this sub- section to answer any question or make any statement tending to incriminate himself. (6) The provisions of the Code of Criminal Procedure 1973 (2 of 1974) shall so far as may be apply to any search or seizure under this section as they apply to any search or seizure under the authority of any warrant issued under Section 94 of the Code. A reading of the above section shows that the central Government may prescribe the minimum qualifications, which Motor Vehicle Inspectors shall possess. In pursuance of this power the Central Government issued Notification. The contention of the petitioner is that the Supreme Court has dealt with the propositions with regard to the minimum qualification prescribed by the Central Government and the State Government is also entitled to frame rules under proviso to Article 309 prescribing higher qualification. On the other hand, learned Government Pleader vehemently contended that the Tribunal rightly relied upon the judgment in Satyapal Reddy’s case. When once certain qualifications are prescribed the post of Assistant Motor Vehicle Inspector, it is not within the purview of the judicial review to say that diplomas in Mechanical Engineering is equivalent to diploma in Automobile Engineering, He has relied upon the decision of the Supreme Court in Mohammad Shujat Ali and others v. Union of India and others wherein the Supreme Court held as under. The question regarding equivalence of educational qualifications is a technical question based on proper assessment and evaluation of the relevant academic standards and practical attainments of such qualifications and where the decision of the Government is based on the recommendation of an expert body then the Court, uninformed of relevant data and unaided by the technical insights necessary for the purpose of determining equivalence, would not lightly disturb the decision of the Government unless it is based on extraneous or irrelevant considerations or actuated by male fides or is irrational and perverse or manifestly wrong. The learned Government Pleader further contended that Diploma in Automobile Engineering is higher qualification than Diploma in Mechanical Engineering and at this distance of time, the petitioners cannot question the notification. I n Satyapal Reddy’s case (supra) the Supreme Court held that the State Government might accept the qualification or prescribe higher qualification but in no case prescribe qualification less than the qualification prescribed by the Central Government under sub-section (4) of Section 213 of the Motor Vehicles Act. In the latter event, i.e., prescribing lesser qualifications, both the rules cannot operate without colliding with each other. When the rules made by the Central Government under Section 213(4) of the Act and the statutory rules made under proviso to Article 309 of the Constitution are construed harmoniously, there is no incompatibility or inconsistency in the operation of both the rules to appoint fit persons to the posts or class of officers of the State Government vis-à-vis the qualifications prescribed by the Central Government under sub-section (4) of Section 213 of the Act. The first respondent as well as the second respondent filed their respective counter affidavits, but nowhere it was mentioned that Diploma in Automobile Engineering and Diploma in Mechanical Engineering are equivalent, hence at this distance of time the petitioners cannot question the notification. In view of the judgment rendered by the Supreme Court in Satyapal Reddy’s case, it is always open for the State Government to prescribe higher qualifications for the post, if it feels necessary. Once the petitioners have participated and not questioned the rules and accepted the same in toto, they cannot turn back and say that notification is bad. In the circumstances, we do not find any infirmity in the order passed by the Tribunal warranting interference of this Court under Article 226 of the Constitution of India. Accordingly, both the writ petitions are dismissed. No costs. ________________________ (GHULAM MOHAMMED, J.) ___________________________ (B.SESHASAYANA REDDY, J.) 2nd December, 2008 LR Copy to be marked Note: CC in two days B/o. Js.