IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NO.24020      OF 2011 (Arising out of  CC No.13191 of 2011)

Alka Ojha … Petitioner(s)

Versus

Rajasthan Public Service Commission and another … Respondents

With

SPECIAL LEAVE PETITION (C) NOS.24021-24023              OF 2011  (Arising out of CC Nos.13504-13506 of 2011)

SPECIAL LEAVE PETITION (C) NO.  21462 OF 2011

SPECIAL LEAVE PETITION (C) NO.  22044 OF 2011

SPECIAL LEAVE PETITION (C) NO.  23039 OF 2011

O R D E R

1. The delay in filing SLP(C)  CC Nos.13191 and 13504-13506 of 2011  

is condoned.

2. The  questions  which  arise  for  consideration  in  these  petitions  are  

whether the qualifications prescribed in the Rajasthan Transport Subordinate  

Service Rules, 1963 (for short, “the Rules”) for the post of Motor Vehicle  

Sub-Inspector  are  mandatory  and  whether  the  petitioners,  who  were

appointed as Motor Vehicle Sub-Inspectors in compliance of the direction  

given by the learned Single Judge of the High Court are entitled to continue  

in service despite reversal of the order of the learned Single judge by the  

Division Bench.

3. In response to advertisement dated 1.10.2001 issued by the Rajasthan  

Public Service Commission (for short, “the Commission”),  the petitioners  

applied for  appointment  as  Motor  Vehicle  Sub-Inspectors.   The last  date  

fixed for submission of the application was 19.11.2001. Although  as  on  

that date, none of the petitioners possessed driving licence authorising them  

to drive motor cycle, heavy goods vehicles and heavy passenger vehicles, all  

of them were provisionally allowed to take part in the written examination  

and the interview and their names were included in the select list prepared  

by  the  Commission.   However,  after  final  scrutiny  of  the  papers  the  

Commission  cancelled  the  tentative  selection  of  the  petitioners  on  the  

ground that as on the last date fixed for submission of the application, they  

did not possess the required driving licence.

4. The writ petitions filed by the petitioners questioning the cancellation  

of their selection were allowed by the learned Single Judge, who referred to  

the qualifications specified in paragraph 13 of the advertisement and held  

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that when the requirement of the educational qualifications could be relaxed,  

there  was  no  justification  to  deny  appointment  to  the  petitioners  on  the  

ground that they did not have the required driving licence on the last date  

fixed for submission of the application.

5. The special appeals filed by the Commission were admitted by the  

Division Bench of the High Court but its prayer for interim stay was rejected  

with  an  observation  that  if  any  appointment  is  made,  the  same  will  be  

subject to the decision of the appeal.   For the sake of reference, the relevant  

portions  of  order  dated  26.10.2004  passed  in  D.B.  Civil  Special  Appeal  

(Writ) No.494 of 2004 are extracted below:

“Heard learned counsel for the parties.

Admit.

Heard learned counsel  for the parties  on the stay application  also.

Considering the submissions, no case is made out for stay.

Consequently, the stay application stands rejected.  However, it  is also made clear that if any appointment on the post of Motor  Vehicle  Sub  Inspector  is  made,  that  will  be  subject  to  the  decision of this appeal.

List  the appeal  itself  for hearing in the month of  December,  2004, as prayed for.”  

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6. When  the  special  appeals  were  taken  up for  hearing,  the  Division  

Bench  noticed  that  in  R.P.S.C.  v.  Shri  Manish  Thakur  another  Division  

Bench had adversely commented upon the order of the learned Single Judge  

and  referred  the  matter  to  the  larger  Bench  for  deciding  the  following  

question:

“Whether  as  per  the  educational  qualifications  mentioned  in  clause  13  of  the  advertisement,  the  driving  licence  and  experience  should  be  possessed  by  the  candidate  on the  last  date  of  filing  the  application  or  on  or  before  the  date  of  interview?”

7. The Full Bench of the High Court referred to the relevant provisions  

of  the  Rules,  the  judgments  of  this  Court  in  U.P.  Public  Service  

Commission, U.P. v. Alpana (1994) 2 SCC 723, Ashok Kumar Sharma v.  

Chander Shekhar (1997) 4 SCC 18 and held:

“…………………In  reference  to  aforesaid  legal  position,  if  rules and advertisement are looked into, then it becomes clear  that  so  far  as  required educational  eligibility  is  concerned,  a  candidate  appearing  in  last  year  examination  or  has  already  appeared,  can  apply  for  selection,  subject  to  possessing  educational  certificates  on  or  before  the  date  of  interview.  Thus, in view of the facts and legal position, the eligibility date  for educational qualification being provided not only under the  rules but also in advertisement, accordingly it has to be taken  the date of interview.  So far as experience and driving licence  are  concerned,  it  is  provided  under  the  heading  of  “Qualification for Direct Recruitment”, if schedule appended to  the Rules is looked into, however,  contrary to statutory rules  heading given under Para 13 of advertisement is ‘educational  qualification’.   In  view  of  aforesaid,  firstly  it  is  only  the  statutory rules and not the condition in the advertisement, will  govern the subject because anything contrary to statutory rules  

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cannot be accepted or given effect to which ultimately violates  the statutory rules.  This is only to clarify the confusion kept in  mind by candidates from heading of clause 13 of advertisement.  Since  schedule  provides  heading  “Qualification  for  Direct  Recruitment”,  which includes driving licence, experience and  educational  qualification,  thus  there  are  3  different  requirements  for  candidates  to  become  eligible  and  out  of  which for educational qualification, a separate cut off date has  been  given  under  the  rules  as  well  as  in  the  advertisement  whereas rules as well as advertisement are silent regarding cut  off date to possess experience and driving licence.  As per legal  proposition  referred  above,  it  can  be  only  the  last  date  of  submission of application.  Thus, in our view, Division Bench  of this Court in case of Rajasthan Public Service Commission  and another v. Shri Manish Thakur has rightly settled the issue.  It  is,  however,  made clear  that  there can be different cut off  dates for eligibility criteria,  which exist even if interpretation  given by learned counsel for parties are accepted.  Under the  Rules of 1963, eligibility in regard to age is  the first  day of  January following the last date fixed for application.  As against  cut off date of age, a different cut off date has been given for  other eligibility, thus it is not necessary that one and same cut  off date has to be provided for all eligibility.

In view of aforesaid, our answer to reference is that as  per clause 13 of advertisement, driving licence and experience  are required to be possessed by the candidates on the last date  of submission of the application forms and not on or before the  date of interview.”

  (emphasis supplied)

8. After the judgment of the Full Bench, the special appeals were placed  

before the Division Bench for final disposal.  The Division Bench referred to  

the  definitions  of  the  terms  `driving  licence’  and  `learner’s  licence’  

contained in Section 2(10) and 2(19) of the Motor Vehicles Act, 1988 (for  

short, “the Act”), order dated 20.5.2004 passed in D.B. Civil Special Appeal  

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No.252 of 2003 and held that the respondents (petitioners herein), who did  

not possess one of the prescribed qualifications i.e., the driving licence as on  

the last date fixed for submission of the application, were not eligible to be  

considered for selection.  However, the Division Bench accepted the prayer  

made on behalf of the petitioners that they be allowed to participate in the  

process of fresh selection by providing relaxation in age and directed the  

Commission to complete the process of fresh selection within three months.  

The Division Bench also directed that for a period of three months status  

quo shall be maintained with regard to those who are in service.    

9. S/Shri  P.P.  Rao,  S.P.  Sharma,  Colin  Gonsalves  and  Rakesh  K.  

Khanna, learned senior counsel appearing for the petitioners argued that the  

High Court’s interpretation of the qualifications specified in the Schedule  

appended to the Rules is erroneous and the petitioners were wrongly treated  

ineligible  because  on  the  date  of  interview  they  were  having  all  the  

qualifications including the driving licence.  Shri S.P. Sharma further argued  

that  the  requirement  of  having  the  driving  licence  cannot  be  treated  as  

mandatory because the same is not imperative for discharging the duties of  

Motor Vehicle Sub-Inspector and the candidates who had obtained learner’s  

licence  before  the  last  date  fixed  for  submission  of  the  application  are  

entitled to be appointed because such licence authorised them to drive motor  

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cycle  etc.   Shri  Rakesh  K.  Khanna supported  the  argument  of  Shri  S.P.  

Sharma  and  pointed  out  as  per  the  definition  of  `learner’s  licence’,  the  

licensee  is  authorised  to  drive  a  motor  vehicle  of  the  specified  class  or  

description.  Shri Rakesh K. Khanna also produced xerox of the learner’s  

licence of Sanjay Kumar (petitioner in SLP(C) No. 22044/2011) to show  

that by virtue of that licence, he was entitled to drive heavy goods vehicles.  

Shri P.P. Rao and other learned senior counsel then argued that even if this  

Court is inclined to approve the impugned judgment, the petitioners should  

be allowed to continue in service because the provisions contained in the  

Schedule appended to the Rules were vague and only after the judgment of  

the Full Bench, it became clear that for being treated eligible, the candidate  

must  possess driving licence on the last date fixed for submission of the  

application.  Learned counsel submitted that it will be extremely harsh for  

the petitioners to be thrown out of service after they have served for five  

years and have crossed the upper age limit prescribed for other posts.  In the  

end, learned counsel submitted that the order of status quo passed by the  

Division Bench may be extended because the Commission has not been able  

to make fresh selection for the post of Motor Vehicle Sub-Inspector.   

10. On  19.8.2011,  the  Court  had,  while  reserving  order  in  SLP(C)  

Nos.21462, 22044 and 23039 of 2011 permitted the learned counsel for the  

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petitioners to furnish to the Court Master copies of the licence which their  

clients possessed on the date of application.  Taking advantage of the liberty  

given by the Court, Ms. Jyoti Mendiratta, learned counsel appearing for the  

petitioner in SLP(C) No. 21462/2011 made available photostat copies of the  

learner’s licences (Annexures A-1 to A-3) issued to her client.  Shri Nikilesh  

Ramachandran, learned counsel representing the petitioner in SLP(C) No.  

22044/2011 filed affidavit of his client along with xerox copy of learner’s  

licence issued in his favour.

11. For deciding the questions framed in the opening paragraph of this  

order, it  will  be useful to notice Rule 11 and the relevant extracts of the  

Schedule appended to the Rules.  The same are as under:

“11. Academic and Technical qualifications.  – A candidate  for direct recruitment to the post specified in the Schedule shall  possess (1) the qualification given in column 4 of the Schedule,  and  (2)  “Working  knowledge  of  Hindi  written  in  Devnagri  script and knowledge of Rajasthani culture.”

SCHEDULE

Name  of  Post  

Source  of  Recruitment  with  percentage

Qualification  for  Direct  recruitment

Post  from  which  appointment  by  promotion is  to be made

Minimum  experience  and  qualifi- cations  required  for  promotion

2.  Motor  Vehicle  Sub- Inspector

25%  by  promot- ion 75%  by  direct  recruit-

1.  Must  have  passed  Secondary  Examination  of  a  recognized Board;  and  

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ment 3.  A  Diploma  in  Automobile  Engineering  (3  years’  course)   or  a  diploma  in  Mechanical  Engineering  awarded  by  the  State  Board  of  Technical  Examination  (3  years’ course)

OR

Any  qualification  in  either  of  the  above  disciplines  declared  equivalent  by  the  Central  Government  of  State Government;  and

3.  Working  experience  of  at  lest  one year  in a  reputed  Automobile  Workshop  which  undertakes  repairs  of  both  light  motor  vehicle,  heavy  goods  vehicles  and  heavy  passenger  motor  vehicles  fitted  with  petrol  and  diesel  engines; and

4.   Must  hold  a  driving  licence  authorising him to  drive Motor cycle,  heavy  goods  vehicles  and  heavy  passenger  

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vehicles.  Nothing  contained  in  this  Notification  shall  apply  to  persons  whose names were  under  consideration  for  appointment to the  post  of  Inspector  of Motor Vehicles  or  Assistant  Inspector of Motor  Vehicles  (by  whatever  names  called by the State  Government  prior  to first day of July,  1989  or  to  an  officer  appointed  to such post before  the  first  day  of  July, 1989 or to an  officer  appointed  to  discharge  functions of a non- technical nature.”

(emphasis supplied)

12. Paragraph 13 of the advertisement issued by the Commission, which  

is also relevant for deciding the issue raised by the petitioners reads thus:

“13. Educational Qualification:- (A)(1)  Passed  Secondary  Examination  from  any  recognized  

Board.

(2) Awarded by the State Technical Education Board –

Diploma in Automobile Engineering (3 years’ course) Or

Diploma in Mechanical Engineering (3 years’ course) Or

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Any  qualification  in  either  of  the  above  disciplines  declared equivalent by the Central Government or State  Government; 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 fitted with petrol and diesel engines; and

(4) Must  hold  a  driving  licence  authorizing  him  to  drive    Motor Cycle, heavy goods vehicles and heavy passenger  vehicles.

But, such candidate who appeared in the final year of the  course  for  such educational  qualification  sought  for  as  per the Rules or is going to appear in such examination,  will be eligible to submit application but he has to submit  the certificate passing the specified qualification before  the interview.

(5) Working knowledge of Hindi written in Devnagri script  and the knowledge of the culture of Rajasthan.”

                  (emphasis supplied)

13. The  use  of  word  “shall”  in  Rule  11  makes  it  clear  that  the  

qualifications  specified  in  the  Schedule  are  mandatory  and  a  candidate  

aspiring  for  appointment  as  Motor  Vehicle  Sub-Inspector  by  direct  

recruitment  must  possess  those  qualifications  and  must  have  working  

knowledge of Hindi written in Devnagri script and knowledge of Rajasthani  

culture.  A conjoint reading of Rule 11, the relevant entries of the Schedule  

and paragraph 13 of the advertisement shows that a person who does not  

possess  the  prescribed  educational  and  technical  qualifications,  working  

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experience and a driving licence authorizing him to drive motor cycle, heavy  

goods vehicles and heavy passenger vehicles cannot compete for the post of  

Motor Vehicle Sub-Inspector.     

14. The  question  whether  the  candidate  must  have  the  prescribed  

educational and other qualifications as on the particular date specified in the  

Rule or the advertisement is no longer res integra.  In Bhupinderpal Singh  

v.  State of  Punjab (2000) 5 SCC 262, this  Court  referred to the earlier  

judgments  in  A.P.  Public  Service  Commission  v.  B.  Sarat  Chandra  

(1990)  2  SCC  669,  District  Collector  and  Chairman,  Vizianagaram  

Social Welfare Residential School Society v. M. Tripura Sundari Devi  

(1990) 3 SCC 655, M.V. Nair (Dr.) v. Union of India (1993) 2 SCC 429,  

Rekha Chaturvedi v. University of Rajasthan 1993 Supp. (3) SCC 168,  

U.P. Public Service Commission, U.P., Allahabad v. Alpana (supra) and  

Ashok Kumar  Sharma v.  Chander  Shekhar (supra)  and  approved  the  

following proposition laid down by the Punjab and Haryana High Court:

“….. that the cut off date by reference to which the eligibility  requirement must be satisfied by the candidate seeking a public  employment is the date appointed by the relevant service rules  and if there be no cut off date appointed by the rules then such  date as may be appointed for the purpose in the advertisement  calling  for  applications  and  that  if  there  be  no  such  date  appointed  then  the  eligibility  criteria  shall  be  applied  by  reference to the last date appointed by which the applications  have to be received by the competent authority.”

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The  same  view  was  reiterated  in  M.A.  Murthy  v.  State  of  

Karnataka  (2003)  7  SCC 517 and  Ashok Kumar Sonkar v.  Union of  

India (2007) 4 SCC 54.  Therefore, the Full Bench of the High Court rightly  

held that a candidate who does not possess driving licence on the last date  

fixed for submission of the application is not eligible to be considered for  

selection.

15. Unfortunately,  the  learned  Single  Judge  decided  the  writ  petitions  

without even adverting to Rule 11, the relevant entries of the Schedule and  

paragraph 13 of the advertisement and issued direction which amounted to  

amendment of the Rules framed under Article 309 of the Constitution.  This  

was clearly impermissible.  Therefore, the Division Bench of the High Court  

rightly  set  aside  the  direction  given  by  the  learned  Single  Judge,  which  

facilitated appointment of the petitioners despite the fact that they were not  

eligible to be considered for selection.

16. We may now deal with the argument of Shri S.P. Sharma and Shri  

Rakesh K. Khanna that the learner’s licence possessed by the petitioners was  

sufficient  to  make  them eligible  for  appointment  as  Motor  Vehicle  Sub-

Inspector.   The definitions of `driving licence’  and `learner’s licence’,  as  

contained in Section 2(10) and 2(19) of the Act, read as under:

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“2(10)  "driving  licence"  means  the  licence  issued  by  a  competent  authority  under  Chapter  II  authorising  the  person  specified therein to drive, otherwise than as a learner, a motor  vehicle or a motor vehicle of any specified class or description

2(19)   "learner's  licence"  means  the  licence  issued  by  a  competent  authority  under  Chapter  II  authorising  the  person  specified  therein  to  drive  as  a  learner,  a  motor  vehicle  or  a  motor vehicle of any specified class or description”

17. Sections 3, 8(1), (5) and (6), 9(1), (4), (5), (6) and (7) and 10 of the  

Act,  which  too  have  bearing  on  the  decision  of  the  question  whether  

learner’s licence is at par with driving licence and a person having learner’s  

licence is eligible for appointment as Motor Vehicle Sub-Inspector under the  

Rules read as under:  

“3. Necessity for driving licence. - (1) No person shall drive a  motor vehicle in any public place unless he holds an effective  driving  licence  issued  to  him  authorising  him  to  drive  the  vehicle; and no person shall so drive a transport vehicle other  than a motor cab or motor cycle hired for his own use or rented  under  any scheme made under  sub-section  (2)  of  section  75  unless his driving licence specifically entitles him so to do.

(2) The conditions subject to which sub-section (1) shall not  apply  to  a  person  receiving  instructions  in  driving  a  motor  vehicle  shall  be  such  as  may  be  prescribed  by  the  Central  Government.

8.  Grant  of  learner’s  licence –  (1)  Any  person who is  not  disqualified  under  section  4  for  driving a  motor  vehicle  and  who  is  not  for  the  time  being  disqualified  for  holding  or  obtaining a driving licence may,  subject  to the  provisions of  section 7, apply to the licensing authority having jurisdiction in  the area-

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(i) in which he ordinarily resides or carries on business,  or (ii)  in which the school or establishment  referred to in  section 12 from where he intends to receive instruction in  driving a motor vehicle is situate,

for the issue to him of a learner's licence.

(5) No  learner's  licence  shall  be  issued  to  any  applicant  unless he passes to the satisfaction of the licensing authority  such test as may be prescribed by the Central Government.

(6) When  an  application  has  been  duly  made  to  the  appropriate licensing authority and the applicant has satisfied  such authority of his physical fitness under sub-section (3) and  has passed to the satisfaction of the licensing authority the test  referred  to  in  sub-section  (5),  the  licensing  authority  shall,  subject  to  the  provisions  of  section  7,  issue  the  applicant  a  learner's  licence  unless  the  applicant  is  disqualified  under  section 4 for driving a motor vehicle or is for the time being  disqualified for holding or obtaining a licence to drive a motor  vehicle:

Provided that a licensing authority may issue a learner's licence  to drive a motor cycle or a light motor vehicle notwithstanding  that  it  is  not  the  appropriate  licensing  authority,  if  such  authority is satisfied that there is good reason for the applicant's  inability to apply to the appropriate licensing authority.

9. Grant of driving licence. – (1) Any person who is not for  the time being disqualified for holding or obtaining a driving  licence may apply to the licensing authority having jurisdiction  in the area –  

(i) in which he ordinarily resides or carries on business,  or (ii)  in which the school or establishment  referred to in  section 12 from where  he is  receiving or  has received  instruction in driving a motor vehicle is situated.

for the issue to him of a driving licence.

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(4) Where the application is for a licence to drive a transport  vehicle, no such authorisation shall be granted to any applicant  unless he possesses such minimum educational qualification as  may be prescribed by the Central  Government  and a driving  certificate  issued  by a  school  or  establishment  referred to  in  section 12.

(5) Where the applicant  does not pass the test,  he may be  permitted to reappear for the test after a period of seven days:

Provided that where the applicant does not pass the test even  after three appearances, he shall not be qualified to re-appear  for such test before the expiry of a period of sixty days from the  date of last such test.

(6) The test of competence to drive shall be carried out in a  vehicle of the type to which the application refers:

Provided that  a person who passed a test  in driving a motor  cycle with gear shall be deemed also to have passed a test in  driving a motor cycle without gear.

(7) When  any  application  has  been  duly  made  to  the  appropriate licensing authority and the applicant has satisfied  such  authority  of  his  competence  to  drive,  the  licensing  authority shall issue the applicant a driving licence unless the  applicant  is  for  the  time  being  disqualified  for  holding  or  obtaining a driving licence:

Provided that a licensing authority may issue a driving licence  to drive a motor cycle or a light motor vehicle notwithstanding  that it is not the appropriate licensing authority, if the licensing  authority is satisfied that there is good and sufficient reason for  the  applicant's  inability  to  apply  to  the  appropriate  licensing  authority:

Provided further that the licensing authority shall  not issue a  new driving licence to the applicant, if he had previously held a  driving  licence,  unless  it  is  satisfied  that  there  is  good  and  sufficient reason for his inability to obtain a duplicate copy of  his former licence.

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10.  Form  and  contents  of  licences  to  drive.  –  (1)  Every  learner's licence and driving licence, except a driving licence  issued under section 18, shall be in such form and shall contain  such  information  as  may  be  prescribed  by  the  Central  Government.

(2) A learner's licence or, as the case may be, driving licence  shall also be expressed as entitling the holder to drive a motor  vehicle of one or more of the following classes, namely:-

(a) motor cycle without gear; (b) motor cycle with gear; (c) invalid carriage; (d) light motor vehicle; (e) transport vehicle; (i) road-roller; (j) motor vehicle of a specified description.”

18. A reading of the two definitions brings out stark difference between  

the  two  types  of  licences.   `Driving  licence’  issued  by  the  competent  

authority under Chapter II authorises a person to drive a motor vehicle or a  

motor  vehicle  of  any  specified  class  or  description  otherwise  than  as  a  

learner and `learner’s licence’ authorises a person specified therein to drive  

as a learner a motor vehicle or a motor vehicle of any specified class or  

description.  It is thus evident that a person who is granted `learner’s licence’  

is entitled to drive a motor vehicle or a motor vehicle of any specified class  

or description only as a learner and he cannot be treated as a person to whom  

`driving  licence’  defined  under  Section  2(10)  has  been  issued.   Though,  

there is some similarity in the language of Section 8 which regulates the  

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grant  of  ‘learner’s  licence’  and  Section  9  which  regulates  the  grant  of  

‘driving licence’, the very fact that the legislature has thought it proper to  

make  separate  provisions  for  grant  of  two  types  of  licences  leads  to  an  

irresistible  conclusion that  a person holding `learner’s  licence’  cannot be  

treated  at  par  with  a  person having  `driving  licence’  authorised  to  drive  

motor cycle, heavy goods vehicles and heavy passengers vehicles.  Section 3  

of the Act, which is mandatory in character also lays down that a person  

shall  not  drive  a  motor  vehicle  in  any  public  place  unless  he  holds  an  

effective driving licence.  Surely, learner’s licence cannot entitle a person to  

claim that he holds an effective driving licence.   Therefore, the mere fact  

that the petitioners possessed learner’s licence on the date of application was  

not sufficient to make them eligible to compete for selection.

19. The  judgment  in  National  Insurance  Co.  Ltd.  v.  Swaran  Singh  

(2004) 3 SCC 297 (paras 93 and 94) on which reliance was placed by Shri  

Rakesh K. Khanna has no bearing on the interpretation of Rule 11 read with  

the entries contained in the Schedule and it is not possible for this Court to  

rewrite  the  rule  so  as  to  enable  the  persons  holding  learner’s  licence  to  

compete for appointment as Motor Vehicle Sub-Inspector.

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20. We shall now consider the question whether despite reversal of the  

order passed by the learned Single Judge by the Division Bench of the High  

Court, the petitioners can continue in service.  The submission of the learned  

counsel that this Court should invoke Article 142 of the Constitution and  

direct the competent authority to allow the petitioners to continue in service  

because  they  have already  completed  more  than 5  years’  service  sounds  

attractive but lacks merit.  In our view, the power under Article 142 cannot  

be exercised for conferring legitimacy to the appointment of the petitioners,  

who, as held hereinabove, were not eligible to be considered for selection.  

The Commission had provisionally allowed the petitioners to take part in the  

written test  and the  interview,  but  their  tentative  selection was cancelled  

because at the stage of final scrutiny, it was found that they did not possess  

one of the prescribed qualifications i.e. driving licence authorising them to  

drive  motor  cycle,  heavy  goods  vehicles  and  heavy  passenger  vehicles.  

Notwithstanding this, the competent authority was compelled to appoint the  

petitioners  because  while  entertaining  the  special  appeals,  the  Division  

Bench of the High Court declined to stay the direction given by the learned  

Single  Judge.   If  the  course  suggested  by  the  learned  counsel  for  the  

petitioners is adopted, then every illegal appointment will get regularized by  

judicial  fiat  and  those  who  are  eligible  and  more  meritorious  will  be  

deprived of their constitutional right to be fairly considered for selection and  

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appointment against the advertised posts.  The judgments of this Court in  

Dr. M.S. Mudhol v. S.D. Halegkar (1993) 3 SCC 591, Rekha Chaturvedi  

v.  University  of  Rajasthan (supra),  Bhupinderpal  Singh  v.  State  of  

Punjab (supra) and other similar judgments cannot be pressed into service  

for issuing a direction for the petitioners’ continuance in service because in  

those cases, the selection and/or appointments were made otherwise than by  

judicial intervention and this Court held that the candidate should not suffer  

due to the fault of the public authorities.

21. A half-hearted attempt was made by Shri Rakesh K. Khanna, learned  

counsel appearing for the petitioner in SLP(C) No.22044 of 2011 to draw  

solace from the last line contained in order dated 29.6.2011 passed by the  

Division  Bench  of  the  High  Court  in  D.B.  Civil  Special  Appeal  (Writ)  

No.494 of 2004 wherein it was observed that the question of regularisation  

has to be considered by the RPSC/State Government.  In this context, it is  

sufficient to observe that there is no provision in the Rules under which the  

Commission or the State Government can regularise the appointment of a  

person, who was not eligible to compete for selection.  

22. In  the  result,  the  special  leave  petitions  are  dismissed.   However,  

keeping in view the statement of the learned senior counsel appearing for the  

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petitioners that the Commission has not completed the process of selection  

for  fresh  recruitment  of  Motor  Vehicle  Sub-Inspectors,  we  direct  the  

Commission to do the needful within a period of next 4 months.  Till then,  

the petitioners shall be allowed to continue in service.  The Secretary of the  

Commission shall send a report to the High Court about compliance of the  

directions given by the Division Bench and this Court for completing the  

process of selection.

23. It is needless to say that the order of status quo passed by the High  

Court and the direction given by this Court for the petitioners’ continuance  

in service will not enure to their advantage and the Commission shall make  

selection without being influenced by those orders.

24. Copies of this order be sent to the Secretary, Rajasthan Public Service  

Commission, Ajmer and Transport Commissioner, Rajasthan, Jaipur by fax.

……..……………………J (G.S. Singhvi)

……..……………………J (H.L. Dattu)

New Delhi August 25, 2011.

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