Mobile View
Main Search Advanced Search Disclaimer
Cites 17 docs - [View All]
The Motor Vehicles Act, 1988
Section 213(4) in The Motor Vehicles Act, 1988
Sirajudheen vs Kerala Public Service Commission on 11 April, 2001
Section 213 in The Motor Vehicles Act, 1988
Sirajudeen vs State Of Kerala on 29 April, 2008

User Queries
View the actual judgment from court
Kerala High Court
M. Abdul Bari vs State Of Kerala on 17 May, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 16193 of 2007(C)


1. M. ABDUL BARI,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA,
                       ...       Respondent

2. THE TRANSPORT COMMISSIONER,

                For Petitioner  :SRI.KRB.KAIMAL (SR.)

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice P.N.RAVINDRAN

 Dated :17/05/2010

 O R D E R
                         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 2006. In that case, applicants seeking appointment by direct recruitment as Assistant Motor Vehicles Inspector, who were included in the ranked list published by the Kerala Public Service Commission on 6-12-2005, contended that about 60 Assistant Motor Vehicles Inspectors, who were appointed by transfer, were not qualified to be appointed by transfer for the reason that they did not possess full time working experience after acquisition of the W.P(C)No.16193 of 2007 and connected cases.

-:19:-

basic qualification. In that case the Transport Commissioner filed a counter affidavit contending that full time working experience is not prescribed as a qualification either in the Kerala Transport Subordinate Service Rules, 1964 or in the notification dated 12-6-1989 issued by the Central Government. The party respondents contended that there is no stipulation in the notification issued by the Central Government that working experience should be full time working experience. The learned single Judge, after considering the rival contentions, held that the working experience prescribed in the notification issued by the Central Government is not full time working experience. The writ petition was accordingly dismissed. The learned single Judge, however, directed the Government to lay down proper guidelines in the matter to avoid such controversies, even by amending the rules. It was also observed that persons engaged in official duties cannot indulge in other activities for gaining working experience of one year in order to become eligible for appointment to the post of Assistant Motor Vehicles Inspector.

16. The correctness of the decision of the learned single Judge in W.P(C)No.2677 of 2006 was canvassed in W.A.No.1643 of 2007, which was heard along with W.A.No.1356 of 2007 and W.P(C)No.12528 of 2007. The Division Bench of this Court in the aforesaid cases held, W.P(C)No.16193 of 2007 and connected cases.

-:20:-

following the decision in Sirajudheen v. Kerala Public Service Commission, (supra), that only those ministerial employees of the Motor Vehicles Department who had acquired the prescribed working experience after acquiring the basic qualification are entitled to be appointed by transfer as Assistant Motor Vehicles Inspector. The Division Bench held that under rule 10(ab) of the Kerala State and Subordinate Services Rules, 1958, the working experience should be one gained by persons on temporary or regular appointment to capacities other than paid or unpaid apprentices, trainees and casual labourers in Central or State Government service or in Public Sector Undertaking or Registered Private Sector Undertaking, after acquiring the basic qualification prescribed for the post. The Division Bench also noticed that under rule 10(ab) of the Kerala State and Subordinate Services Rules, 1958, the experience gained as factory workers on daily wages of a permanent nature can be accepted only if the service is continuous and not of a casual nature. In other words, in the aforesaid cases, the Division Bench of this Court held that the working experience should not be of a casual nature and should be on full time basis. The judgment of the learned single Judge was accordingly reversed and the Government of Kerala and the Transport Commissioner were directed to revert those Assistant Motor Vehicles W.P(C)No.16193 of 2007 and connected cases.

-:21:-

Inspectors who were appointed by transfer from among the ministerial staff of the department, but did not possess one year working experience after acquisition of the requisite educational qualification. The aggrieved parties thereupon moved the Apex Court by filing a Special Leave Petition. The Special Leave Petition was dismissed. Thereafter they moved this Court by filing R.P.No.941 of 2007 and connected cases. The review petitions were also dismissed by order passed on 23.11.2007

17. Shortly thereafter, the Government of Kerala issued the Kerala Transport Subordinate Service Rules, 2008. The rules thereunder relating to physical qualifications came into force on 7.4.2008 and the remaining rules with retrospective effect from 26.6.1995. Rule 5 thereof, which is relevant for the purpose of these cases, reads as follows:-

"5. Qualifications.- No person shall be eligible for appointment as Assistant Motor Vehicle Inspector by the method of appointment specified in column (1) in the table below unless he possesses the qualifications specified in the corresponding entry in column (2) thereof:-

W.P(C)No.16193 of 2007 and connected cases.

-:22:-

TABLE

--------------------------------------------------------------------------------

Method of appointment Qualifications

--------------------------------------------------------------------------------

(1) (2)

--------------------------------------------------------------------------------

1. By direct recruitment. 1. Pass in SSLC or its equivalent.

2. (i) A Diploma in Automobile Engineering or Mechanical Engineering awarded by the State Board of Technical Education (3 year course)

(ii) Any qualification in either of the above disciplines declared as equivalent to the above diplomas by the Central Government or the State Government.

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.

Note:- 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 Government.

(emphasis supplied)

4. Must hold a current valid driving licence authorizing him to drive motor cycle, heavy goods vehicle and heavy passenger motor vehicle; and Physical Qualifications.

5. Must be physically fit and shall possess the following minimum physical standards:

(a) Height.- 165 cms. for male candidates and 152 cms. for female candidates.

W.P(C)No.16193 of 2007 and connected cases.

-:23:-

                           (b)    Chest - 81 cms. with a minimum
                           expansion of 5 cms. (applicable to male
                           candidates only)

Note:- For candidates belonging to Scheduled Castes or Scheduled Tribes the minimum height shall be 160 cms. for male candidates and 150 cms. for female candidates.

(c) Visual Standards.- Must possess the visual standards specified below without glasses:

Right eye Left eye Distant Vision 6/6 snellen 6/6 snellen Near Vision 0.5 snellen 0.5 snellen Note I:- (a) Each eye must have a full field of vision.

(b) Colour blindness, squint or any morbid condition of eye or lids of either eye shall be a disqualification for appointment.

Note II:- The visual standards shall be certified by a Medical Officer not below the rank of an Assistant Surgeon specialized in Ophthalmology of a Government Hospital.

Note III:-Physically handicapped candidates shall not be eligible for applying to the post.

2. By transfer 1. Pass in SSLC or its equivalent.

2. (i) A diploma in Automobile Engineering or Mechanical Engineering awarded by the State Board of Technical Education (3 year course), or

(ii) Any certification in either of the above disciplines declared as equivalent to the above diploma by the Central Government or the State Government.

W.P(C)No.16193 of 2007 and connected cases.

-:24:-

3. Working experience or at least one year in a reputed automobile workshop which undertakes repairs or both light motor vehicles, heavy goods vehicles and heavy passenger motor vehicles fitted with petrol and diesel engine.

Note I:-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 Government.

Note II:- In the case of persons appointed by transfer and in service prior to the date of publication of this notification, the condition regarding working experience provided in Note I need not be insisted.

(emphasis supplied)

4. Must hold a current valid driving licence authorising him to drive motor cycle, heavy goods vehicle and heavy passenger motor vehicle.

Physical Qualifications

5. Must be physically fit and should possess the following minimum physical standards:

(a) Height - 165 cms. for male candidates and 152 cms. for female candidates.

(b) Chest - 81 cms. with a minimum expansion of 5 cms. (applicable to male candidates only) Note:- For candidates belonging to Scheduled Castes or Scheduled Tribes the minimum height shall be 160 cms. for male candidates and 150 cms. for female candidates.

(c) Visual standards:- Must possess the visual standards specified below without glasses:

W.P(C)No.16193 of 2007 and connected cases.

-:25:-

                                                               Right eye        Left eye

                                          Distant vision      6/6 snellen    6/6 snellen
                                          Near vision         0.5 snellen     0.5 snellen

                                     Note I - (a) Each eye must have full field of
                                          vision.

                                          (b)    Colour blindness, squint or morbid
                                          condition of eye or lids of either eye shall
                                          be a disqualification for appointment.

Note II - The visual standards shall be certified by a Medical Officer not below the rank of an Assistant Surgeon specialized in Ophthalmology of a Government Hospital.

Note III - Physically handicapped candidates shall not be eligible for transfer to the post.

6. Pass in Account Test (Lower) and Departmental Tests on the laws relating to Motor Vehicles administered by the Motor Vehicles Department; and

7. Three years experience in the ministerial subordinate service of the Motor Vehicles Department.

------------------------------------------------------------------------------------------ In rule 5 it is stipulated that for appointment by direct recruitment and by transfer, the person seeking appointment should possess, besides the basic qualifications, 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. It is also stipulated that the working experience should be one acquired after having acquired W.P(C)No.16193 of 2007 and connected cases.

-:26:-

the requisite educational qualification and the workshop from which such experience has been acquired shall be one registered with the Government. However, in Note II to rule 5(2)(3) of the rules it is stipulated that in the case of persons appointed by transfer and in service prior to the date of publication of the notification (ie. prior to 8-4-2008) the condition regarding working experience provided in Note I to rule 5(2)(3) need not be insisted.

18. In the light of the decisions of the Division Bench of this Court in Sirajudheen's case (supra) and in W.A.No.1643 of 2007, it cannot be disputed that the qualifications prescribed by the Central Government cannot be diluted or watered down. A reading of the notification issued by the Central Government discloses that the Central Government have only prescribed working experience of at least one year in a reputed automobile workshop as one among the qualifications for appointment to the post of Assistant Motor Vehicle Inspector. As noticed by the Division Bench of this Court in Sirajudheen v. Kerala Public Service Commission (supra) and in W.A.No.1643 of 2007, though there is no stipulation in the Central Government notification as regards the point of time at which the experience had to be gained, in view of rule 10(ab) of Part II of the Kerala State and Subordinate Services Rules, 1958 the experience has W.P(C)No.16193 of 2007 and connected cases.

-:27:-

to be one gained after acquisition of the basic educational qualification prescribed for the post. It was because of applicability of rule 10(ab) of Part II of the Kerala State and Subordinate Services Rules, 1958 that in the aforesaid decisions, this Court held that only those persons in service, possessing the prescribed experience after they have acquired the basic educational qualification can be appointed by transfer to the category of Assistant Motor Vehicle Inspector.

19. What the State Government have now done by issuing the Kerala Transport Subordinate Service Rules, 2008 (for short "the rules") is to prescribe that while persons claiming appointment by direct recruitment and by transfer as Assistant Motor Vehicle Inspector should possess working experience, in the case of those already appointed by transfer to the category of Assistant Motor Vehicle Inspector and in service prior to 8.4.2008, the working experience need not be one gained after acquiring the basic educational qualification. Though at the first blush, there appears to be merit and substance in the challenge to Note II to sub rule 5(2)(3) of the rules, on a close reading of Note II it is evident that there is no merit in the said contention. By rule 5(2)(3) of the rules working experience of at least one year in a reputed automobile workshop is prescribed as one among the qualifications for appointment by transfer to the post of W.P(C)No.16193 of 2007 and connected cases.

-:28:-

Assistant Motor Vehicle Inspector. Note I to rule 5(2)(3) of the rules stipulates that the working experience shall be one acquired after having acquired the requisite educational qualification and that the workshop from which such experience has been acquired shall be one registered with Government. Note II to rule 5(2)(3) of the rules which is under challenge in these writ petitions states that in the case of persons appointed by transfer and in service prior to the date of publication of the notification, (ie. prior to 8-4-2008), the condition regarding working experience provided in Note I need not be insisted. A reading of Note II to rule 5(2)(3) of the rules makes it clear that what is attempted to be salvaged is the appointment of departmental hands who had acquired the experience qualification prior to acquisition of the basic educational qualification and had been appointed by transfer to the category of Assistant Motor Vehicle Inspector and were in service prior to 8.4.2008. In other words, Note II to rule 5(2)(3) of the rules does not dispense with the prescription of experience qualification. It only clarifies that in the case of those already appointed by transfer to the category of Assistant Motor Vehicle Inspector prior to 8.4.2008 and in service prior to 8.4.2008, the experience qualification need not be one acquired after acquiring the basic educational qualification prescribed for the post. In my W.P(C)No.16193 of 2007 and connected cases.

-:29:-

considered opinion, that and that alone is the intendment of Note II to rule 5(2)(3) of the rules.

20. It is evident from the stipulations in rule 5 of the Kerala Transport Subordinate Service Rules, 2008 that for appointment by direct recruitment and by transfer, 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 has been prescribed as a qualification for appointment to the post of Assistant Motor Vehicles Inspector. In the Note to rule 5(1)(3), which deals with direct recruitment, it is stipulated that the working experience shall be one acquired after having acquired the requisite educational qualification. By the said stipulation, the State Government have only incorporated the stipulation in rule 10(ab) of the Kerala State and Subordinate Services Rules, 1958. In Note I to rule 5(2)(3) of the Kerala Transport Subordinate Service Rules, 2008, which deals with appointment by transfer, it is stipulated 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 Government. As noticed earlier, a Division Bench of this Court had in Sirajudheen v. Kerala Public Service W.P(C)No.16193 of 2007 and connected cases.

-:30:-

Commission (supra) held that the notification issued by the Central Government is a recruitment rule that satisfies the definition of the term "recruitment rule" occurring in rule 10(ab) of the Kerala State and Subordinate Services Rules, 1958 and as there is no stipulation to the contrary in the said notification, the provisions of rule 10(ab) are attracted. In the notification dated 12-6-1989 the Central Government have only prescribed the minimum qualifications for appointment to the post of Motor Vehicles Inspector/Assistant Motor Vehicles Inspector. One of the qualifications prescribed by the Central Government is 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. By issuing the Kerala Transport Subordinate Service Rules, 2008 the State Government have not watered down the said qualification. The State Government have only prescribed, in tune with the decisions of this Court in Sirajudheen v. Kerala Public Service Commission (supra) and in W.A.No.1643 of 2007 and connected cases that such working experience should be one acquired after acquiring the basic educational qualifications. Even without such a prescription, as held by the Division Bench of this Court in the aforesaid decisions, in view of rule 10(ab), the working experience has W.P(C)No.16193 of 2007 and connected cases.

-:31:-

to be one acquired after acquiring the basic educational qualifications. Therefore, it cannot be said that the Government of Kerala have amended the notification issued by the Central Government by stipulating in the Kerala Transport Subordinate Service Rules, 2008 that the 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, shall be one acquired after having acquired the requisite educational qualification.

21. I shall now deal with the question whether the working experience gained should be full time working experience or not. Though the learned counsel for the petitioners in W.P(C)Nos.16193 of 2007, 23265 of 2008, 27783 of 2008, 31507 of 2008 and 33366 of 2008, contended that as Government employees the petitioners cannot acquire full time working experience, Sri.C.P.Sudhakara Prasad, the learned Advocate General appearing for the official respondents, contended with reference to the counter affidavit filed in W.P.(C)No.31507 of 2008 that it is open to the petitioners to apply for and obtain leave for the purpose of acquiring working experience and that several persons including the petitioner in W.P.(C)No.31507 of 2008, have been granted leave for acquiring working experience. W.P(C)No.16193 of 2007 and connected cases.

-:32:-

The learned Advocate General also referred to and relied on Ext.R2(a) order produced in W.P.(C)No.31507 of 2008 to contend that the petitioner in that case was appointed by transfer as Assistant Motor Vehicles Inspector after he acquired working experience while in service, after availing leave. The learned Advocate General also submitted that in the light of the authoritative pronouncements of this Court in Sirajudheen v. Kerala Public Service Commission (supra) and in W.A.No.1643 of 2007 and connected cases, it cannot be disputed that the working experience should be one gained after acquiring the basic qualification. The learned Advocate General also submitted that the Government have, in Ext.P8 letter dated 5-5-2007 produced in W.P.(C)No.16193 of 2007 only clarified that the working experience should be full time working experience and that in the absence of any indication to the contrary in the notification issued by the Central Government, it cannot be said that the working experience need not be full time working experience. The learned Advocate General also submitted with reference to the averments in paragraph 7 of the counter affidavit filed in W.P.(C)No.31507 of 2008 that several persons have been granted leave by the Government for the purpose of acquiring working experience and that if the petitioners apply, their applications will be considered on the merits and an W.P(C)No.16193 of 2007 and connected cases.

-:33:-

appropriate decision taken in the matter. In the light of the decision of the Division Bench of this Court in W.A.No.1643 of 2007 and connected cases wherein the Division Bench reversed the view taken by the learned single Judge in W.P.(C)No.2677 of 2006 that working experience need not be full time working experience, it has to be necessarily held that the working experience contemplated in the Kerala Transport Subordinate Service Rules, 2008 is full time working experience. However, in view of Note II to rule 5(2)(3) of the rules, in the case of those departmental hands already appointed by transfer to the category of Assistant Motor Vehicles Inspector and in service prior to 8-4-2008, the experience qualification need not be one acquired after acquiring the basic educational qualification prescribed in the rules. As stated earlier, Note II to rule 5(2)(3) of the Kerala Transport Subordinate Service Rules, 2008 does not dispense with the prescription of working experience as a qualification. Note II only stipulates that in the case of persons appointed by transfer as Assistant Motor Vehicles Inspector and in service prior to 8.4.2008 the working experience need not necessarily be one gained after acquiring the requisite educational qualification. In view of the stand taken by the State Government and the fact that the Government have granted leave to similarly situated persons to acquire working experience, the W.P(C)No.16193 of 2007 and connected cases.

-:34:-

petitioners cannot be heard to contend that they are not in a position to acquire working experience or that the working experience need not be full time working experience. Rule 10(ab) of the Kerala State and Subordinate Services Rules, 1958 cannot be pressed into service to contend that Note II rule 5(2)(3) of the Kerala Transport Subordinate Service Rules, 2008 is arbitrary or ultravires for the reason that rule 10(ab) operates only when there is no stipulation to the contrary in the recruitment rules.

22. I shall now deal with the contention raised by Sri.M.Rajasekharan Nair, learned counsel appearing for the petitioner in W.P.(C)No.29229 of 2008 that the State Government lacks the competence to prescribe the qualifications for appointment to the post of Assistant Motor Vehicles Inspector and that the rules issued by the State Government are in conflict with the notification issued by the Central Government. I shall also deal with the contention raised by the learned counsel that Note II to rule 5(2)(3) of the Kerala Transport Subordinate Service Rules is beyond the rule making power of the Government. In Sirajudheen v. Kerala Public Service Commission (supra) and in W.A.No.1356 of 2007 the Division Bench of this Court held, relying on rule 10(ab) of the Kerala State and Subordinate Services Rules 1958, that in the absence of a stipulation W.P(C)No.16193 of 2007 and connected cases.

-:35:-

to the contrary in the notification issued by the Central Government, the qualification of working experience should be one gained after acquiring the basic qualification prescribed for the post. The power of the Parliament to enact the Motor Vehicles Act is traceable to entry 35 in List III of the Seventh Schedule to the Constitution of India. The power of the Central Government to prescribe the qualifications for Assistant Motor Vehicles Inspectors is traceable to Section 213(4) of the Motor Vehicles Act, 1988. The notification issued by the Central Government under Section 213(4) of the Motor Vehicles Act, 1988 is silent as regards the point of time at which the working experience had to be acquired. In my opinion, as the Central Government have chosen to remain silent, it is open to the State Government to speak by stipulating that the working experience should be one acquired after acquiring the basic qualifications and also to stipulate that in respect of a specified class of persons, the said stipulation need not be insisted upon. There is, in my opinion, no inconsistency between the notification issued by the central Government prescribing the qualifications and the stipulations in rule 5 of the Kerala Transport Subordinate Service Rules, 2008. As noticed earlier, the Central Government have not specified in the notification that the working experience should be one acquired after acquiring the basic W.P(C)No.16193 of 2007 and connected cases.

-:36:-

qualification. All that the State Government have done by issuing the Kerala Transport Subordinate Service Rules, 2008 is to incorporate the qualifications prescribed by the Central Government and to further stipulate that the working experience should be one acquired after having acquired the requisite qualification for the post. It cannot therefore, be said that the State Government have altered the qualifications prescribed by the Central Government. As noticed earlier, Note II to rule 5(2)(3) only says that in the case of persons appointed by transfer and in service prior to 8-4-2008, the condition in Note I that the working experience should be one acquired after having acquired the requisite educational qualification for the post need not be insisted. Section 213(4) of the Motor Vehicles Act only stipulates that the Central Government may, having regard to the objects of the Act, by notification in the Official Gazette, prescribe the minimum qualifications which the officers or any class thereof shall possess for being appointed as such. As per the stipulations in the notification issued by the Central Government, persons who apply for appointment as Assistant Motor Vehicles Inspector by direct recruitment or by transfer should possess besides the basic educational qualifications, working experience also. They should also hold a driving licence authorising them to drive light motor vehicles, W.P(C)No.16193 of 2007 and connected cases.

-:37:-

heavy goods vehicles and heavy passenger motor vehicles. In view of the decisions of this Court and the stipulations in Rule 10(ab) of the Kerala State and Subordinate Services Rules, 1958 and in the Note to rule 5(1)(3) and Note I to rule 5(2)(3) of the Kerala Transport Subordinate Service Rules, 2008 the working experience will necessarily have to be one acquired after having acquired the basic educational qualifications.

23. The prescription of the minimum qualifications by the Central Government in exercise of the power conferred on it under Section 213(4) of the Motor Vehicles Act 1938 does not,i n my opinion, stand in the way of the State Government from stipulating that the working experience should be one acquired after acquiring the basic educational qualification. The said prescription does not, in my opinion, water down or alter the qualifications prescribed by the Central government. The State Government have not, by the stipulation in Note II to rule 5(2)(3) of the Kerala Transport Subordinate Service Rules, 2008 altered the minimum qualifications prescribed by the Central Government. The State Government have only specified the point of time at which the qualification of working experience should be acquired. Section 213(1) of the Motor Vehicles Act, 1988 empowers the State Government to establish a Motor Vehicles W.P(C)No.16193 of 2007 and connected cases.

-:38:-

Department and to appoint as officers thereof, such persons as it thinks fit. Section 213(2) stipulates that every officer appointed under section 213(1) shall be deemed to be a public servant within the meaning of the Indian Penal Code 1860 (45 of 1860). Section 213(3) empowers the State Government to 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 the Act) to be exercised by them, and the conditions governing the exercise of such powers. Section 213(4) empowers the Central Government, by notification in the Official Gazette, to prescribe the minimum qualifications which the said officers or any class thereof shall possess for being appointed as such. Section 2 of the Kerala Public Services Act, 1968 empowers the State Government to make rules either prospectively or retrospectively to regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the State of Kerala. In view of the stipulations in section 2 of the Kerala Public Services Act, 1968 read with Section 213(1) of the Motor W.P(C)No.16193 of 2007 and connected cases.

-:39:-

Vehicles Act, 1988, the State Government are competent to frame and issue the Kerala Transport Subordinate Service Rules, 2008 prescribing in addition to the minimum qualifications prescribed by the Central Government, such other qualifications, which in the opinion of the State Government, an Assistant Motor Vehicles Inspector of the Motor Vehicles Department should possess. I, therefore, overrule the contention of the learned counsel for the petitioner in W.P.(C) No.29229 of 2008 that the stipulation in Note II to rule 5(2)(3) of the Kerala Transport Subordinate Service Rules, 2008 is in conflict with the notification issued by the Central Government.

24. Then the only question is whether the stipulation in Note II to rule 5(2)(3) that in the case of persons appointed by transfer and in service prior to 8.4.2008, the stipulation in Note I that working experience shall be one acquired after acquiring the requisite educational qualification need not be insisted upon is valid or not. As noticed earlier, it was because of the lack of a stipulation in the rules that this Court in Sirajudheen v. Kerala Public Service Commission (supra) and in W.A.No.1643 of 2007 held that as the notification issued by the Central Government is a recruitment rule, rule 10(ab) of Part II of the Kerala State and Subordinate Services Rules, 1958 applies and therefore, the experience gained should W.P(C)No.16193 of 2007 and connected cases.

-:40:-

necessarily be one gained after acquiring the requisite educational qualification. The petitioners in these writ petitions do not challenge the Kerala Transport Subordinate Service Rules, 2008 as such. The power of the Government to frame and issue the rules is not under challenge. Section 2 of the Kerala Public Services Act, 1968 empowers the State Government to make rules either prospectively or retrospectively to regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the State of Kerala. Therefore, the State Government is competent to frame and issue the Kerala Transport Subordinate Service Rules, 2008. The challenge in these writ petitions is confined to the stipulation in Note II to rule 5(2)(3) of the rules regarding the working experience and the manner in which it should be acquired. Though the Central Government have prescribed the minimum qualifications, I am of the opinion that the State Government are empowered to prescribe the point of time at which the working experience should be acquired. By Note I to rule 5(2)(3) it was stipulated that the working experience should be acquired after acquiring the requisite educational qualification. By Note II that stipulation is dispensed with in the case of persons appointed by transfer and in service prior to 8-4-2008. As rule 10(ab) of Part II of W.P(C)No.16193 of 2007 and connected cases.

-:41:-

the Kerala State and Subordinate Services Rules, 1958 applies and as the State Government are competent to add to the notification issued by the Central Government without in any manner watering down or dispensing with the qualifications prescribed therein, I am of the opinion that the State Government are competent to prescribe the point of time at which the working experience should be acquired. The challenge to Note II to rule 5(2)(3) is, therefore, in my opinion, without any merit.

25. Sri.M.Rajasekharan Nair, learned counsel appearing for the petitioner in W.P.(C) No.29229 of 2008 also contended that as this Court had issued a writ of mandamus in W.A.No.1643 of 2007 and connected cases directing the Government to revert the ministerial staff of the department who did not possess one year working experience after acquiring the requisite educational qualification, but were appointed by transfer to the category of Assistant Motor Vehicles Inspector, the Government are bound by the said direction and that the said direction cannot be annulled by issuing the Kerala Transport Subordinate Service Rules, 2008. Reliance was placed on the decision of the Apex Court in Madan Mohan Pathak v. Union of India, AIR 1978 SC 803 in support of the said contention. Per contra, Sri.C.P.Sudhakara Prasad, the learned Advocate General, relying on W.P(C)No.16193 of 2007 and connected cases.

-:42:-

the decision of the Apex Court in Virender Singh Hooda v. State of Haryana, (2004) 12 SCC 588 contended that the interpretation placed by this Court on an existing rule can be nullified by amending the rule and that the only restriction on the amending power of the State is that the amended rules should not contravene the Constitution. The learned Advocate General also contended that as rule 10(ab) of the Kerala State and Subordinate Services Rules 1958 stipulates that unless otherwise specified, the experience qualification should be one acquired after acquiring the basic educational qualification prescribed for the post, as the Central Government have not stipulated the point of time at which the working experience should be acquired in the case of persons seeking appointment by transfer to the category of Assistant Motor Vehicles Inspector, it is open to the State Government to stipulate the point of time at which the working experience should be acquired.

26. I shall now refer to the decision of a seven member Bench of the Apex Court in Madan Mohan Pathak and another v. Union of India and others, AIR 1978 SC 803, referred to and relied on by Sri.Rajasekharan Nair, learned counsel appearing for the petitioner in W.P(C)No.29229 of 2008. The facts of the said case are as follows. The Calcutta High Court had by judgment delivered on 21-5-1976 W.P(C)No.16193 of 2007 and connected cases.

-:43:-

issued a writ of mandamus directing the Life Insurance Corporation of India to pay annual cash bonus to Class III and Class IV employees for the period from 1-4-1975 to 31-3-1976 along with their salary for the month of April 1976 as provided for in a settlement. Though an intra court appeal was preferred against the judgment of the learned single Judge of the Calcutta High Court, that appeal was dismissed as withdrawn. The direction issued by the learned single Judge of the Calcutta High Court thus attained finality. In the meanwhile, the Parliament enacted the Life Insurance Corporation (Modification of Settlement) Act, 1976. Section 3 thereof stipulated that "Notwithstanding anything contained in the Industrial Disputes Act, 1947, the provisions of each of the settlements, in so far as they relate to the payment of an annual cash bonus to every Class III and Class IV employees of the Corporation at the rate of fifteen per cent of his annual salary, shall not have any force or effect and shall not be deemed to have had any force or effect on and from the 1st day of April, 1975". The validity of the aforesaid Act was challenged before the Apex Court. The said enactment was struck down by the Apex Court on the ground that it offends clause (2) of Article 31 of the Constitution of India. While deciding the issue, the Apex Court also observed that there was nothing in the Act which set at naught the W.P(C)No.16193 of 2007 and connected cases.

-:44:-

effect of the judgment of the Calcutta High Court or the binding character of the writ of mandamus issued against the Life Insurance Corporation of India.

27. In Virender Singh Hooda and others v. State of Haryana and another, (2004) 12 SCC 588 the question whether a writ of mandamus issued by the High Court can be nullified by an enactment of the legislature was elaborately considered by the Apex Court. It was held that though the legislature cannot by a bare declaration, without anything more, directly overrule, reverse or override a judicial decision; it may, at any time in exercise of the plenary power conferred on it by the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field, fundamentally altering or changing with retrospective, curative or neutralising effect the conditions on which such decision is based. It was held that rendering ineffective the judgments of courts and tribunals by changing their basis by legislative enactment is a well-known pattern of all validating Acts. In the instant case, a Division Bench of this Court had in Sirajudeen v. Kerala Public Service Commission (supra) and in W.A.No.1643 of 2007 held that in the absence of a stipulation to the contrary in the notification issued by the Central Government under Section 213(4) of the Motor Vehicles W.P(C)No.16193 of 2007 and connected cases.

-:45:-

Act, 1988, in view of the stipulation in rule 10(ab) of the Kerala State and Subordinate Services Rules, 1958, the experience qualification has to be one gained after acquiring the basic educational qualification. The relevant portion of rule 10(ab) of the Kerala State and Subordinate Services Rules, 1958 reads as follows:-

"10(ab) Where the Special Rules or Recruitment Rules for a post in any service prescribe qualification of experience, it shall, unless otherwise specified, be one gained by persons on temporary or regular appointment in capacities other than paid or unpaid apprentices, trainees and casual labourers in Central or State Government service or in Public Sector Undertaking or Registered Private Sector Undertaking, after acquiring the basic qualification prescribed for the post;
Provided that the experience gained as factory workers on daily wages of a permanent nature may be accepted, if the service is continuous and not of a casual nature."

It is evident from a plain reading of rule 10(ab) quoted above that the stipulation therein will operate only if it is not otherwise specified in W.P(C)No.16193 of 2007 and connected cases.

-:46:-

the special rules or the recruitment rules. Therefore, it is open to the rule making authority to specify whether the experience gained should be one acquired after acquiring the basic educational qualification or before. By Note II to rule 5(2)(3) of the Kerala Transport Subordinate Service Rules, 2008, the State Government have stipulated that in respect of persons appointed by transfer and in service prior to the date of publication of the notification under which the said rules were issued, the condition regarding working experience stipulated in Note I thereto, namely, the stipulation that working experience should be one acquired after having acquired the requisite educational qualification need not be insisted. The power of the Government to frame the Kerala Transport Subordinate Service Rules, 2008 is not under challenge. As noticed earlier, the Division Bench of this Court had in Sirajudeen v. Kerala Public Service Commission (supra) and in W.A.No.1643 of 2007 held that the working experience should be one gained after acquiring the basic educational qualification, in view of rule 10(ab) of the Kerala State and Subordinate Services Rules, 1958, for the reason that there was no stipulation to the contrary in the rules. In the light of the stipulation to the contrary in the rules [Note II to rule 5 (2)(3)], rule 10(ab) of the Kerala State and Subordinate Services Rules, 1958 can have no application. As noticed by the Apex W.P(C)No.16193 of 2007 and connected cases.

-:47:-

Court Virender Singh Hooda and others v. State of Haryana and another (supra) it is open to the rule making authority to render a judicial decision ineffective by enacting a valid law on a topic within its legislative field, fundamentally altering or changing with retrospective, curative or neutralising effect, the conditions on which such decision is based. In other words, by prescribing the point of time at which the working experience has to be acquired, the State Government can get over the applicability of rule 10(ab) of the Kerala State and Subordinate Service Rules, which alone was the foundation of the decisions of the Division Bench of this Court in Sirajudeen v. Kerala Public Service Commission (supra) and in W.A.No.1643 of 2007. I am therefore, of the considered opinion that the State Government are competent to frame and issue the Kerala Transport Subordinate Service Rules, 2008 and to stipulate that in the case of those persons appointed by transfer and in service prior to 8-4-2008, the stipulation that working experience shall be one acquired after having acquired the requisite educational qualification need not be insisted.

28. In view of the decisions of the Division Bench of this Court in Sirajudeen v. Kerala Public Service Commission (supra) and in W.A.No.1643 of 2007 departmental hands cannot be heard to contend that the notification issued by the Central Government under Section W.P(C)No.16193 of 2007 and connected cases.

-:48:-

213(4) of the Motor Vehicles Act, 1988 does not apply to departmental hands seeking appointment by transfer to the category of Assistant Motor Vehicles Inspector. Such persons are also governed by the notification issued by the Central Government, which has been incorporated by the State Government in the Kerala Transport Subordinate Service Rules, 2008. The ministerial staff of the Motor Vehicles Department seeking appointment by transfer to the category of Assistant Motor Vehicles Inspector cannot, therefore, contend that they are not required to possess full time working experience of one year in a reputed automobile workshop which undertakes repairs of light motor vehicles, heavy goods vehicles and heavy passenger motor vehicles fitted with petrol and diesel engine. The challenge to Note II to rule 5(2)(3) of the Kerala Transport Service Rules, 2008 on the ground that it is arbitrary, unreasonable and discriminatory, also lacks merit. Note II is intended to govern only those ministerial employees of the department who were appointed by transfer to the category of Assistant Motor Vehicles Inspector prior to 8.4.2008, but did not possess one year full time working experience in a reputed automobile workshop which undertakes repairs of light motor vehicles, heavy goods vehicles and heavy passenger motor vehicles fitted with petrol and diesel engine, after acquiring the requisite educational W.P(C)No.16193 of 2007 and connected cases.

-:49:-

qualification prescribed by the rules. Note II to rule 5(2)(3) of the rules is one intended to save their appointments by stipulating that in the case of such employees, the experience need not necessarily be one gained after acquiring the requisite educational qualification. The petitioners in these writ petitions, who do not fall in the said category, but are governed by Note I to rule 5(2)(3) of the rules and the stipulations in the notification issued by the Central Government under Section 213(4) of the Act cannot, therefore, be heard to contend that Note II is bad for under-inclusiveness. The persons governed by Note II form a separate class and they have been classified separately on valid grounds. Note II to rule 5(2)(3) of the Kerala Transport Subordinate Service Rules, 2008 was incorporated in the rules with a view to save the appointments of ministerial staff of the department who had not acquired the working experience after having acquired the requisite educational qualification for the post. Since I have upheld the validity of Note II and the competence of the State Government to frame and issue the rules, I am of the opinion that the contention of the petitioners that Note II suffers from the vice of under-inclusiveness cannot be accepted.

W.P(C)No.16193 of 2007 and connected cases.

-:50:-

For the reasons stated above I hold that there is no merit in these writ petitions. The writ petitions fail and are accordingly dismissed. No costs.

P.N.RAVINDRAN, Judge.

ahg.

P.N.RAVINDRAN, J.

---------------------------

W.P(C)Nos.16193 of 2007 23265, 27783, 29229, 31507 and 33366 of 2008

----------------------------

JUDGMENT 17th May, 2010