Bombay High Court

Maharashtra S.T. Workers ... vs The State Of Maharashtra And Ors on 4 October, 2017

Bench: S.C. Dharmadhikari

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION


                       WRIT PETITION NO. 3660 OF 2017


 Maharashtra S. T. Workers Congress
 (INTUC)
 Having its Office at 
 David J Sasoon Building,
 First floor, 27/B, Bharucha Marg,
 Kala Ghoda, Fort,
 Mumbai - 400 023.                                              ... Petitioner

                   Vs.

 1.        The State of Maharashtra
           Through it's Principal Secretary
           Home Dept. (Transport),
           Mantralaya, Mumbai - 400 032
                AND
           Through it's Principal Secretary
           (Labour), Mantralaya,
           Mumbai - 400 032.

 2.        Maharashtra State Road Transport
           Corporation, A Statutory Corporation,
           Through its Managing Director.
           Having its Head Office at 
           Vahatuk Bhavan, Mumbai Central,
           Mumbai - 400 008.                                    ... Respondents

                               ......
 Ms. Seema K. Chopda a/w Mr. T. R. Yadav and Ms. Ishwari 
 Sabadra for the Petitioner.
 Mr. B. V. Samant, AGP for Respondent No.1-State.
 Mr. Y. P. Deshmukh for Respondent No.2. 
                               ......




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                               CORAM : S. C. DHARMADHIKARI &
                                           SMT. BHARATI H. DANGRE, JJ.

DATE : OCTOBER 04, 2017.

ORAL JUDGMENT (PER S. C. DHARMADHIKARI, J.) :

1. In view of the earlier orders, Rule. Respondents waive

service.

2. By consent, Rule is made returnable forthwith.

3. By this Petition under Article 226 of the Constitution of

India, the petitioner Union is seeking the following relief:-

"(a) Issue Writ of Mandamus or any other Writ/Direction/ Order in the nature of this Writ or any other Writ/Direction/Order and after verifying the legality and propriety of the said Circular dated 10.7.2015 which is at Exhibit C and Advertisement no.02 of 2017 (only in respect of posts of Driver cum Conductor) which is at Exhibit D and to quash and set aside the same;"

4. The facts necessary to appreciate, the issues raised in the

Writ Petition are set out herein below.

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5. The petitioner claims to be a Trade Union registered under

the Trade Unions Act, 1926 and functioning in the undertaking of

the 2nd respondent-Maharashtra State Road Transport

Corporation ("MSRTC" for short). It is espousing cause of certain

percentage of employees since February, 2009.

6. The first respondent is the State of Maharashtra through the

Department of Home (Transport) and Secretary (Labour),

Mantralaya, Mumbai-32.

7. The second respondent MSRTC is a Corporation registered

under the Road Transport Corporation Act, 1950 ("RTC Act" for

short). The said Corporation provides passenger bus services and

fulfills the duties set out in Section 18 of Chapter III of the RTC

Act.

8. It is claimed by the petitioner that for providing cheaper,

better and convenient transport services to the residents of the

State, the MSRTC has been plying buses throughout the State on

certain defined routs enabling the people to reach all corners of

the State.

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9. It is claimed that it is employing 1.7 lakhs employees. It is

appointing the employees pursuant to the powers derived from

the RTC Act and certain Rules and Regulations framed

thereunder.

10. It has employed nearly 36,892 Drivers and 34,354

Conductors. It is claimed that there is not a single woman driver

but there are 4,395 women conductors employed throughout the

State. It is claimed that in the Manual of MSRTC, there are duty

lists which have been prepared assigning specific duties to the

employees. Annexures "A" and "B" to the Petition are copies of the

duty list.

11. The Writ Petition concerns a circular dated 10th July, 2015

issued by MSRTC referring to a Resolution dated 28th February,

2014 of the Board of Directors. The Resolution incorporates a

decision that MSRTC has decided to ply certain buses on specified

routs without conductors. The MSRTC has resolved to create one

singular post of Driver-cum-Conductor and recruitment will take

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place on this post, which is now designated as Driver-cum-

Conductor (Junior) instead of normal and ordinary pattern of

having a Driver and a Conductor separately for each post.

Annexure "C" is a copy of this circular. Then, reference is made to

the terms and conditions based on which this decision will be

implemented. The petitioner highlighted the role of a Conductor

and a bus Driver. It is claimed that these are separate and distinct

posts with different duties. The one who is expected to drive the

vehicle safely and carry the passengers to their destination

without causing any accident or injury, according to the

petitioner, cannot be burdened with the duty of a Conductor. The

buses are carrying senior citizens, ladies, children and it is but

natural that a conductor is present so as to take care of any

emergent situation or unforeseen or untoward incident. It is in

such circumstances that the petitioner complains that the

advertisement no.2 of 2017 inviting applications from eligible

candidates so as to complete the recruitment to the above post

will not be, firstly, in public interest and secondly, it will adversely

affect the safety of the passengers.

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12. Relying on the advertisement, copy of which is annexed at

"D", it is stated that such a policy and which is now enunciated

vide the Board resolution, the advertisement will be contrary to

the RTC Act, the Motor Vehicles Act, 1988 ("MV Act" for short)

and equally, the mandate of Article 14 of the Constitution of

India.

13. In the grounds of this Petition, apart from raising the issue

of legality and validity of this decision, it is claimed that if this

decision is implemented, that would endanger the safety of

passengers and put tremendous mental and physical pressure on a

single employee. All the more, when he is expected to drive for

hours together and carry passengers, sometimes, upto a distance

of 300 to 500 kms. It is submitted that the advertisement also

suffers from several other infirmities and pointed out in the

grounds of this Petition including that there is no scope for

recruitment of a woman driver when such policies are framed.

14. Upon being served with this Petition, an affidavit-in-reply is

filed by the MSRTC. This affidavit, affirmed on 16th August, 2017,

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is by the Chief Personnel Officer. Apart from questioning the locus

of the petitioner to maintain such a Petition and by urging that no

aggrieved employee has come forward, there is no apprehension

of the existing employees being adversely affected, nor there

service conditions altered, the petitioner Union, according to the

deponent, does not command any support and which is

proclaimed in the Petition. Secondly, it is contended that these are

not matters of public interest but directly concerning the services

of the employees and therefore, such a Petition is not

maintainable. Thirdly, in matters of this nature and particularly

policy decisions, a Union has no locus or vested right to object or

question them.

15. Without prejudice to this contention, it is submitted that the

decision is a policy matter. In matters of policy, there are limited

powers of intervention conferred in this Court under Article 226 of

the Constitution of India. It is urged that there is no pleading,

much less, proof of any violation of law or of any Constitutional

right, arbitrariness, discrimination and mala fides. It is only on

these parameters policy decisions have to be tested in writ

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jurisdiction by this Court. In writ jurisdiction, this Court does not

exercise a power of appeal. It cannot question the wisdom of a

policy decision, nor can it frame a different policy because that

would be better and wiser in its opinion. In other words, in policy

matters, this Court would not be able to substitute its views with

that of the authorities including experts. Hence, the Petition is

devoid of merits and must be dismissed.

16. It is also submitted that there is enormous delay in

questioning the policy decision taken way back in February, 2014,

a circular of 2015, by the instant Petition. The petitioner Union

made a representation on 21st January, 2017 on the eve of the

advertisement with a view to forestall any recruitment. That is the

real motive and purpose and which should enable this Court to

dismiss the Writ Petition.

17. Then, the petitioner Union is accused of not coming to this

Court with clean hands. The petitioner has not disclosed a crucial

fact that in earlier advertisements too, the post of Driver (Junior)

was included. One of the requirement was that he should possess

a Conductor Badge. The advertisement no. 1 of 2015 for direct

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recruitment to the post of Driver (Junior), in terms of Clause (6),

had stated that there are number of buses which would be plying

without conductors. Therefore, in addition to possessing a driving

license so as to be able to drive a heavy motor vehicle, the

applicant must possess a Conductor Badge. Hence, it is not for the

first time that such an advertisement is inserted.

18. In paragraphs 8 and 9 of the affidavit, the following

statements are made :

8. I say that, the R-2 Corporation has been running to the knowledge of the petitioner conductor-less Buses more popularly known as "SHIVNERI" on Dadar-Pune, Nashik- Pune and Pune-Aurangabad routes for last many years and the same has proved hugely successful and preferred mode of travel for public and Corporation has never received any serious complaints of the nature imagined by the petitioner in the petition. The apprehensions of the petitioner have no basis and is merely imaginary without supporting facts and thus does not merit consideration more so in view of the successful running of conductor-less buses by the R-2 for last many years. I humbly submit that, based on wild imagination and baseless apprehension of the petitioner Union, this Court ought not to interfere with policy decision of the Board taken in view of advancement of technology related to issuance of tickets, door locking systems and other controls and the financial health of the R-2. I say that, Petitioner has not alleged any malafide against the Board much less substantiated it, therefore also decision does not call for interference in exercise of writ jurisdiction of this Hon'ble Court.

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9. I say that, the post of Driver-cum-conductor is specially created with a view to address among other problem of Buses remaining stationary in Depot and trips being canceled for want of either conductor or driver at times. This was noticed to cause much inconvenience to the public who would have to wait longer for the next bus/trip and also loss of revenue to the R-2. Therefore, to deal with such situations Drivers with Badge of Conductor are specially being recruited so that absence of one need not result in Trip being canceled. Further, I say that, the routes of which Driver-cum-Conductor buses would ply are not static or fixed at present and would be determined by the Traffic department of the R- 2 depending on requirement and considering safety, convenience and other factors."

19. Then, it is urged that the issue of reservation for

handicapped does not arise in this Petition and there are suitable

posts identified for recruiting the handicapped persons and the

mandate of the Persons with Disabilities (Equal Opportunities,

Protection of Rights and Full Participation) Act, 1995 is fulfilled

by the Corporation.

20. Then it is stated that a false statement is made that there

would be no woman applicant for a single post, in as much as 445

applications from women have been received, out of which 202

women have appeared for written examination held on 2nd July,

2017. The MSRTC has made further progress in pursuance of the

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advertisement in the sense that now an written examination and

driving test remains to be conducted. After the results of such test,

there would be a medical examination so as to judge the fitness of

the candidates. It is clarified that there is a specific reservation for

women in this advertisement and certain weightage is also given

for their performance in the written test and the driving test.

21. Thus, it is stated that the advertisement has been issued to

subserve larger public interest. There is a shortage of drivers in

the MSRTC, particularly the 6 divisions in Konkan region. Hence,

this Court should not grant any interim stay.

22. Finally, the attention of this Court is invited to Sections 119,

122 and 131 of the Motor Vehicles Act, 1988, so also the proviso

to Section 124 thereof, to contend that due care has been taken of

the safety and convenience of the passengers in framing such

policy as is impugned in the present Petition. Therefore, it is

submitted that there is no merit in this Petition and it be

dismissed.

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23. From the record, it appears that a brief hearing was held

earlier and after the affidavit-in-reply of the MSRTC was received

and filed in the registry. At that brief hearing, this Court noted the

arguments of the petitioner's counsel. The Court also noted the

fact that the recruitment process is going on. About 8,000 posts

have been advertised. Around 20,000 candidates have qualified

themselves in written test and a driving test is to commence. In

the order dated 7th September, 2017, this Court made the

following prima facie observations:

"1. The petitioner, who claims to be a Trade Union registered under the Trade Unions Act, 1926, has questioned the advertisement issued by the respondent no.2-Corporation for inviting application to the posts of Driver-cum- Conductor. The respondent - Corporation advertised around 8000 posts. It is submitted that the recruitment process is already commenced. Around 20000 candidates got themselves qualified in written test and driving test is going on from today.

2. Learned counsel appearing for the petitioner raises, inter alia, following issues :

(a) The post of Driver-cum-Conductor is not covered under the provisions of Motor Vehicles Act, 1988, nor under any statutory Rules or Regulations. The State has not approved the decision of the Board.

(b) Creation of such posts would endanger safety of the passenger in case the Bus is driven by driver alone

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without there being any conductor.

(c) The Motor Vehicles Act, 1988 defines "Driver" and "Conductor" independently. Their duties are separately defined and it would not be appropriate to club their duties and expect driver to discharge duties of conductor while driving the Bus.

3. On behalf of the respondent-Corporation, affidavit-in- reply is filed. Learned counsel for the respondent- Corporation, on instructions, submits that on specific routes the Corporation desires to utilize services of these persons who would be appointed as Driver-cum- Conductor. The Corporation expects reduction in expenses on appointment of such persons. Their services will be utilized on routes where conductor's role is minimal or the presence of conductor is not at all required. Counsel has given one such example of Shivneri Bus services.

4. The learned AGP has presented an note signed by the Desk Officer, in support of the decision taken by the Corporation, dated 6/9/2017, which is taken on record and marked "X" for identification. So far the State has preferred not to file any reply in spite of order passed on 14/7/2017.

5. We direct the Principal Secretary, Transport Department, Mantralaya, Mumbai to call for a meeting of responsible officers, including members of Administration of the Corporation on the issue involved. The State shall file a short reply on the issue. Liberty to the Corporation to file additional reply.

6. From the material placed on record and submissions advanced, it is not clear as to how the Corporation would be going to utilize the services of Driver-cum- Conductor. The issue as to whether such posts could be created and recruitment process could be initiated is also raised in this petition. The respondents have raised

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the issue of locus of the petitioner. Being a Working President of the Petitioner-Union, he himself has not joined duties. The petition is affirmed by Mr. Mukesh Tigote, working as President of the petitioner, who claims to be a Trade Union registered under the Trade Unions Act, 1926 but is unrecognized Union. The Counsel for the Corporation submits that Mr. Mukesh Tigote has not resumed his duties after his deputation period was over. Learned counsel for the petitioner to take instructions on this issue.

7. Learned counsel appearing for the Corporation submits that no interim order needs to be passed at his stage as driving test of around 100 persons on daily basis has started from today itself. As there are 20000 candidates, who would undergo driving test, it may take 3 to 4 months for completing such test and thereafter their written and practical marks would be clubbed and a final merit list would be prepared. The selected candidates thereafter will be undergoing further process, including submission of medical fitness certificate etc.

8. Accepting the statement made by the learned Counsel appearing for the Corporation, we grant further time and adjourn the hearing of this petition.

9. On request, stand over to 25/9/2017 at 3.00 p.m.

10. Learned Government Pleader to address the Court on the next date."

24. In pursuance of this order and the observations therein, the

State's affidavit-in-reply has been filed.

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25. The State Government, apart from adopting the statements

in the affidavit of MSRTC, directly concerned with the policy

matter, stated on oath that it has examined this policy minutely. A

meeting was convened which was presided over by the Principal

Secretary (Transport) on 18th September, 2017. The Government

officials as also the Vice Chairman and Managing Director of

MSRTC and the Chief Personnel Officer of MSRTC were present

and this Court's views were taken into consideration. The MSRTC

apprised the Government that there is a definite intent in taking

this policy decision. It is not that the Maharashtra State is the only

State which is adopting such a policy. The States of Telangana and

Karnataka have also advertised and recruited persons for such

post, namely, Driver-cum-Conductor. It has not been pointed out

that the passenger safety is compromised necessarily because of

such an advertisement or recruitment. Further, the relevant

provisions of the MV Act were noticed at such a meeting and the

deponent of the State's affidavit says that they contain no express

bar or prohibition against the recruitment of Driver-cum-

Conductor. A copy of the minutes of this meeting has been

annexed to the affidavit.

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26. In paragraph nos. 7 and 8 of this affidavit this is what is

stated:-

"7. I say that, minutes of the said meeting dated 18/09/2017 were prepared and a copy whereof is annexed herewith and marked as Exhibit-C, for ready reference. It is found that, the number of passengers per employee is less in Maharashtra as compared to neighbouring States like Karnataka and Andhra-Pradesh and also the number of employees per Vehicle is higher in the State of Maharashtra compared to that of Karnataka and Andhra-Pradesh. Also, the strength of drivers and conductors in total employee strength is around 67% in the Corporation and expenditure on staff being 40 to 42% of the entire expenditure incurred by the Corporation, which is running in losses, the decision to create such a post of Driver-cum-Conductor is justified in the interest of financial health of the Corporation to reduce its operational costs and losses. The Corporation has further assured that services of such persons would be utilized only on schedules with limited number of stops, Long distance i.e. above 250 Kms, Medium Long Distance i.e. 150-250 Kms, Air-conditioned Buses like Shivneri/ Shivshaahi, Hirkani (Semi-luxury), Raatrani (Night- Service) and Midi-buses plying at hill stations.

8. The Respondents submit that a perusal of the aims and objects of the Motor Vehicles Act clearly shows that the law has been amended from time to time in order to keep up with the changing times, the changes in road transport technology, pattern of passenger and freight movements, development of the road movements, development of road network in the country etc. the idea being to have an act which should be workable in the fast changing world. It is therefore submitted that the Motor Vehicles Act, is an inclusive act and provides for incorportion of changes

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according to changing times. In the backdrop of the aforesaid, it is submitted that the State has the power to recruit candidates to the post of driver cum conductor and there is no express bar in respect of the same. A perusal of Section 124 of the Motor Vehicles Act, clearly shows that the same provides that after a passenger enters in a stage carrier he / she will pay his fare to the conductor or the driver who performs the functions of a conductor and obtain from such driver or conductor, as the case may be a ticket for his journey. This itself clearly shows that the parliament also took into account that given the changing circumstances, the possibility of appointment for driver cum conductor could not be ruled out. Similar provision has also been made in Section 178 of the Motor Vehicles Act which pertains to penalty for travelling without pass or ticket or in case of dereliction of duty on the part of the conductor and refusal to ply contract carriage. Sub Section (2) of Section 178 provides for a fine in case the conductor of a stage carriage, or the driver of a stage carriage performing functions of a conductor in such a stage carriage fails to perform any of the duties assigned to him. It is therefore clear that there is no specific bar against the Respondents from appointment of driver cum conductor. Hence, the present Writ Petition is not maintainable and the same deserves to be dismissed by this Hon'ble Court."

27. For above reasons, the State would submit that the Writ

Petition has no merit and must be dismissed.

28. This matter was placed before us yesterday and Ms. Chopda

appearing for the petitioner tendered a rejoinder affidavit of the

petitioner. In the rejoinder affidavit, apart from meeting the

preliminary objection and particularly on the locus of the

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petitioner, it is alleged that there is an incorrect statement made

equally by the State. The document which was tendered to this

Court and which contains a statement that like Andhra-Pradesh

and Karnataka, western countries have the practice of only Driver-

cum-Conductor, does not appear to be accurate. The respondent

MSRTC would require sanction/permission from the State for this

exercise is creating of a post. This is a new post and which could

not have been created without specific approval of the

Government. In that regard, Section 34 of the RTC Act has been

relied upon and equally Section 45 thereof. It is claimed that as

per general service rules and regulations, one Driver and one

Conductor is required and appointed on each bus to ply them.

There are different duty lists and the duties have to be performed

in compliance with various provisions and Rules of the MV Act.

Thus, creation of a singular post and recruiting employees on such

post for performing both duties is deviation from the normal

service regulations and that would require express permission

from the State Government. The mandate of the MV Act and Rules

therefore, would have to be followed.

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29. Then it is alleged that inquiries were made with the

counterparts in the States of Karnataka, Telangana and Andhra-

Pradesh and it has been informed that the Andhra-Pradesh State

Road Transport Corporation has not created the post of Driver-

cum-Conductor till date and the proposal of the Telangana State

Road Transport Corporation for creation of such post is pending

approval of the State Government. The Petitioner was further

informed that on long distance routes the practice followed by

these Corporations is that if a distance which is to be covered is

300 kms. or more, then, two Drivers are deputed. The practice of

deploying additional Driver has been justified and it is submitted

that even the bus fare of the MSRTC buses results in depletion of

the revenue and creating a financial crunch. In the circumstances,

it is incorrect to state that because there are other Road Transport

Corporations following similar practice that would justify the

policy framed by the MSRTC.

30. It is on the above material that we have heard the

arguments of the counsel.

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31. Ms. Chopda appearing for the petitioner would submit that

the Petition does not question the wisdom of a policy decision. It

questions the policy decision because it is clearly arbitrary,

irrational and discriminatory. The policy cannot be termed as legal

and valid as well. According to her, there is no question of an

express prohibition or bar enacted in a statute and in the matters

of present nature. The petitioner Union is highlighting not the

interest and personal to the employees of the MSRTC. It is

highlighting the concern of such employees who are presently

working with the Corporation as well as those who would be

newly joining it. It is contended that bearing in mind the

population of the State of Maharashtra, the situation is peculiar

and not comparable with the other States. The Corporation has to

ply huge number of buses to carry the passenger load. Since there

is a competition with private bus operators on certain routes, the

Corporation has decided to purchase new vehicles and which are

modern and technologically advanced. Such vehicles are driven

with great speed on the busy routes in the State. The Driver is

under continuous tension and pressure. If the driver driving such

vehicle is expected also to act as Conductor, that would result in

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severe adverse consequences on the safety and convenience of the

passengers. Apart from the fact that it would be a dual duty, the

Driver will not be able to concentrate on his essential function. It

would be expected by the passengers that he should assist them in

emergencies and other matters where they require his assistance

for either alighting or boarding the vehicle. The Driver is not

expected to get down at every stoppage or halt and assist the

passengers by either issuing ticket or checking it. In such

circumstances, it is too much to expect from a Driver and the

ordinary and normal practice could not have been deviated in

such a hasty fashion. She has submitted that even when such

policy decisions are taken, there is a wide consultation. It is not

that there has to be necessarily a consensus or concurrence but the

existing employees, the Unions and representative bodies ought to

have been consulted. Similarly, there is no indication that the

experts in the field have been consulted by the MSRTC. Merely

because such a policy as is framed is implemented and has been

working does not mean that the same is beyond any questioning,

including by a Court of law. Once such matters and serious in

nature have been raised for consideration of this Court, then, it is

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contended that the Petition be entertained and necessary orders

and directions be issued.

32. On the other hand, Mr. Samant and Mr. Deshmukh the

advocates appearing for the State as also the MSRTC would

submit that the petitioner is questioning a policy decision. That

decision has already been taken. There is not a single averment in

the Petition that the policy decision contravenes any particular

statutory provision or any Constitutional Provision. A general and

vague statement is made in the grounds of the Petition that such a

policy, as is enunciated, framed and under implementation,

contravenes the provisions of the RTC Act. Our attention has been

invited to the RTC Act to submit that the Act does not contemplate

that while fulfilling the duties, and particularly in Section 18, and

exercising powers under Section 19, the Corporation is, in any

way, fettered from recruiting such persons as are required. Section

34 falls in Chapter V titled as 'Miscellaneous'. Section 34 refers to

the general powers of the State Government to give directions.

The State Government may, in its discretion, after consultation

with a Corporation established by such Government, give to the

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Corporation (MSRTC) general instructions to be followed by the

Corporation and such instructions may include directions relating

to the recruitment, conditions of service and training of its

employees, wages to be paid to the employees, reserves to be

maintained by it and disposal of its profits or stocks. Sub-section

(2) of Section 34 says that in the exercise of its powers and

performance of its duties under the RTC Act, the Corporation shall

not depart from any general instructions issued under Sub-section

(1) except with the previous permission of the State Government.

Learned counsel for the MSRTC would submit that no direction

and particularly relating to the recruitment, conditions of service

issued by the State have been brought on record. Similarly, which

general instruction has been issued in exercise of powers

conferred by Sub-section (1) and which is departed from has not

been brought on record. Secondly, it is argued that all Directors

and all officers and employees of the Corporation, whether

appointed by the State Government or corporate, shall be deemed,

when acting or purporting to act in pursuance of any of the

provisions of the Act or of any law, as public servants, but by

Section 44, it is the State Government which can notify in the

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Official Gazette the Rules to give effect to the provisions of the

RTC Act. Sub-section (2) of Section 44 sets out the matters in

relation to which the Rules can be framed. By Section 45, there is

a power conferred in the Corporation to make Regulations. The

Regulations, not inconsistent with the RTC Act and the Rules

issued thereunder, for the administration of the affairs of the

Corporation, can always be made. It is not as if there is no

Regulation or any guiding instruction, or if there is one, that is

violated or breached. There is no such averment in the Petition,

much less with reference to any specific Regulation and Rule or

statutory provision. Hence, the first contention is that the policy

does not violate the RTC Act. Secondly, the MV Act and the Rules

of 1989 framed thereunder have also not been violated. There is a

reference made to Chapter VIII of the MV Act and particularly the

titled thereof "Control of Traffic". It is stated that, in that Chapter,

Section 124 appears which says that no person shall enter or

remain in any stage carriage for the purposes of travelling therein

unless he has with him a proper pass or ticket. The proviso to this,

according to the MSRTC's advocate, supports his argument that

there is no prohibition in any law so as to disable the MSRTC to

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make appointment of a single person or direct its Drivers to

perform a dual duty in certain situation.

33. Besides this lack of prohibition, the MSRTC has not been

informed of a single incident endangering the safety of travelling

passengers or causing inconvenience to them of such magnitude

as would force it to withdraw its policy decision. There is not a

single incident brought to the notice of this Court in the entire

Petition, including the rejoinder, of this nature. Rather it is

submitted that the decision to appoint a Driver-cum-Conductor on

specified routes in certain category of vehicles is under

implementation. For a long time it has been implemented in

certain buses which are operative under the name "Shivneri" and

certain other buses which are plying on long routes. It is in these

circumstances the MSRTC would submit that the Writ Petition is

lacking in bona fides and must be dismissed.

34. The State's advocate has also adopted these contentions.

35. For properly appreciating these contentions, we must make

a reference to the circular preceding this advertisement. The

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annexures "A" and "B" to the Petition need not be set out in

details for they pertain to the duties of the Drivers and

Conductors. None disputes that there are specific duties to be

performed, and which may be distinct in nature, by a Driver and a

Conductor.

36. However, the standing order no. 1215 dated 10 th July, 2015

has been issued by the MSRTC on the subject of recruitment to the

post of Driver-cum-Conductor (Junior). That is a post which has

been added to the Schedules and appearing in the MSRTC

(Recruitment, Promotion, Seniority and Re-designation) Manual.

This is a general policy and referable to the Regulations and the

Rules. The said order refers to the Board decision dated 28 th

February, 2014 whereby the Corporation was authorized by the

Board to create a post of Driver-cum-Conductor (Junior). That is

in pursuance of a policy to operate specific number of vehicles and

buses without a Conductor. The terms and conditions based on

which such a recruitment is permitted are then set out. The

general standing order no. 503 and the Schedule thereunder is

then referred and what the document carries is the name and

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designation of the post, the pay-scale, the manner of recruitment

and the eligibility criteria. From a perusal of these documents, we

do not find that the MSRTC was, in any manner, acting contrary

to the RTC Act.

37. The RTC Act is an Act to provide for the incorporation and

regulation of Road Transport Corporations. The creation of the

statutory Transport Corporation was contemplated and for that

purpose, a comprehensive legislation was enacted. Therefore, this

Act has been enacted and it is divided into six chapters. As far as

Chapter I is concerned, it contains preliminary provisions,

including definitions. Chapter II contains Sections 3 to 17 enabling

establishment of Road Transport Corporations in the States, their

incorporation, management through the Board of Directors, the

disqualification for being chosen as, or for being a Director of a

Corporation, the resignation of office of the Chairman or a

Director, their removal, filling up of vacancies, temporary

association of persons with a Board for particular purposes,

meetings of Board, power to appoint committees and delegate

functions and authenticate orders and other instruments. Section

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14 in this Chapter empowers the Officers and servants of the

Corporation to appoint, in addition to its having a Managing

Director, a Chief Accounts Officer and a financial Adviser

appointed by the State Government, a Secretary and such other

officers and employees as it considers necessary for the efficient

performance of its functions. Sub-section (3) of Section 14 sets

out that the conditions of appointment and service and scales of

pay of the officers and employees of a Corporation shall, as

respects the officers and employees enumerated in Clause (b) of

Sub-section (3) of Section 14, be determined by Regulations made

under the RTC Act. This is subject to the provisions of Section 34.

The other provisions in Chapter II therefore, need not be referred

and equally, Chapter II-A. The powers and duties of Corporation

are then to be found in Chapter III and particularly in Section 18.

The general duty of a Corporation is to exercise its powers as

progressively as to provide or secure or promote the provision of

an efficient, adequate, economical and properly co-ordinated

system of road transport services in the State or part of the State

for which it is established and in any extended area. The proviso

to Section 18 need not be referred. By Section 19, certain powers

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are conferred in the Corporation and which are subject to the

provisions of RTC Act. The Corporation shall have power inter alia

to operate road transport services in the State and in the extended

area, to provide for any ancillary service, to provide for its

employees suitable conditions of service, including fair wages,

establishment of provident fund, living accommodation, places for

rest and recreation and other amenities. It shall also possess a

power to do anything for the purpose of advancing the skill of

persons employed or the efficiency of the equipment or of the

manner in which that equipment is operated, including the

provision by the Corporation, and the assistance by the

Corporation to others for the provision of facilities for training,

education and research. Thus, it can prepare schemes and it can

also implement them to facilitate the proper carrying on of its

business. In furtherance of such a comprehensive power, the

Corporation vide the other provisions of the Act and contained in

Chapter V, has power to make Regulations. The Regulations can

take care of the matters, particularly in Sub-section (2) of Section

45 and that would include the conditions of appointment and

service and the scales of pay of officers and (other employees of

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the Corporation other than the Managing Director, the Chief

Accounts Officer and the Financial Adviser). Thus, with the

previous sanction of the State Government and by notification in

the Official Gazette, the power to make Regulations can be

exercised not inconsistent with the RTC Act and the Rules

thereunder, for the administration of the affairs of the

Corporation.

38. We have not been shown any Regulation presently in force

and which would disable the MSRTC from making a policy and

particularly issuing a circular which is in the nature of annexure

"C" to the Petition. Meaning thereby, creation of the post of

Driver-cum-Conductor (Junior) is not shown to be contrary to any

existing Regulation, Rule or Provision of the RTC Act. We have not

been shown, as rightly contended by the advocate for the MSRTC,

any direction issued by the State Government in terms of Sub-

section (1) of Section 34 on the point. There is, thus, no violation

of the provisions of the RTC Act. We would find rather, from the

materials placed before us and the uncontroverted statements on

affidavit of both, the MSRTC and the State, a conscious decision

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taken with due application of mind and to improve the passenger

service and to carry the passengers in the existing vehicles and the

newly purchased ones efficiently and smoothly.

39. If on long distance routes the passengers are already issued

tickets at the entry point and the tickets are up to the last bus halt

and destination, then, for issuance of tickets at least, the

Corporation deemed it fit to do away with the services of a

Conductor. Secondly, the buses being modern and equipped with

such technology as would not be requiring any intervention by

any other employee, that it decided to do away with the services

of a Conductor. The Driver-cum-Conductor means driving the

vehicle and whenever and wherever required, assisting the

passengers or take care of the collection of fares and ensure that

only those who possess valid tickets board the buses. These are

the minimal duties that are expected to be performed by the

Driver-cum-Conductor and he must concentrate, therefore, on

driving the vehicle and carry passengers safely to their

destination. The Corporation has not done away with the services

of Conductors as a whole. The Corporation has only chosen

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specific routes and enunciated them with clarity. All the more,

there are undertakings given by the Corporation and equally the

State Government on affidavit. Each of these statements, which

we have reproduced above, are accepted as undertakings given to

this Court. We have no hesitation, therefore, in concluding that

the MSRTC and the State has not acted contrary to the provisions

of the RTC Act, 1950. Thus, a policy decision consistent with the

duties entrusted to the Corporation has been taken.

40. Then, what we have on record is the advertisement, copy of

which is at annexure "D". From a perusal thereof, we find that the

advertisement itself indicates the Constitutional reservations and

the reservations for women. In fact, the advertisement indicates

the number of posts created in the Divisions throughout the State

and thereafter, the manner of recruitment, the eligibility criteria,

the educational qualifications, age and how the recruitment would

take place. A written test and a driving test is also stipulated so as

to take care of the convenience and safety of the passengers. Thus,

it is not the case of the petitioner that the advertisement, in any

way, contravenes the provisions of law or contains such terms and

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conditions or stipulations which would be contrary to the interest

of the passengers or endangering their safety and convenience.

The representation, copy of which is annexed at annexure "E",

preceding the Petition would indicate that the petitioner Union

may or may not have any locus to complain, but surely it has not

brought to the notice of the Corporation any instance or example

of the passengers being inconvenienced or their safety being

compromised. It is only an apprehension of the petitioner that

having a Driver-cum-Conductor may increase the pressure and

tension on a single employee, resulting in lapse of concentration

and accidents because of the same. However, after deployment of

Driver-cum-Conductor (Junior) on certain specific routes, such as

"Shivneri" from the date of the policy decision and in furtherance

of the earlier advertisement, not a single major incident having

taken place or an mishap of that nature has been brought with

specific details.

41. We therefore, cannot, on some general statements and

vague assertions, interfere with a policy decision. During the

course of arguments, Ms. Chopda has referred to certain

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provisions of the Motor Vehicles Act, 1988 and the Rules framed

thereunder.

42. Once again, that statute of the Parliament is to consolidate

and amend the law relating to motor vehicles. Thus, the law

which was pre-existing, has been extensively amended over a

passage of time. Now, the Motor Vehicles Act, 1988 is in force.

The term "public service vehicle" has been defined in Section 2

Clause (35). We have also a definition of the term 'State transport

undertaking' appearing in Section 2 Clause (42). We also have a

definition of the term 'stage carriage' appearing in Section 2

Clause (40). There are then several chapters in the statute

containing extensive provisions on licensing of drivers of motor

vehicles, licensing of Conductors of stage carriages, registration of

motor vehicles, control of transport vehicles, special provisions

relating to State transport undertakings found in Chapter VI,

construction, equipment and maintenance of motor vehicles,

control of traffic and motor vehicles temporarily leaving or visiting

India. Then, we have chapters so as to deal with insurance of

motor vehicles against third party risks, no fault liability in certain

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cases and setting up of claims tribunals so as to award just

compensation to the victims of accidents/their dependents.

43. All that we are able to infer from these provisions is that

there is, in this law, a chapter dealing with licensing of

Conductors of stage carriages. There is therefore, a post like

Conductor contemplated and that could not be necessarily

equated with a Driver. However, something more would be

required to interfere with a policy decision. In that regard, our

attention has been invited to certain provisions and which are to

be found in Chapter VIII titled as "Control of traffic". There are

several provisions which would distinguish the limits of speed,

limits of weight and limitations on use, power to weigh the

vehicles, power to restrict use of vehicles, erect traffic signs,

parking places and halting stations, driving regulations and

certain duties, namely, to obey traffic signs. There is also a

provision which enacts a prohibition against travelling without

pass or ticket. Section 124 of the MV Act reads thus:-

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"124. Prohibition against travelling without pass or ticket.-

No person shall enter or remain in any stage carriage for the purposes of travelling therein unless he has with him a proper pass or ticket:

Provided that where arrangements for the supply of tickets are made in the stage carriage by which a person has to travel, a person may enter such stage carriage but as soon as may be after his entry therein, he shall make the payment of his fare to the conductor or the driver who performs the functions of a conductor and obtain from such conductor or driver, as the case may be, a ticket for his journey.

Explanation.- In this section,-

(a) "pass" means a duty privilege or courtesy pass entitling the person to whom it is given to travel in a stage carriage gratuitously and includes a pass issued on payment for travel in a stage carriage for the period specified therein;

(b) "ticket" includes a single ticket, a return ticket or a season ticket."

44. A bare perusal of the section and particularly of the proviso

would indicate that the Motor Vehicles Act, 1988 does not rule out

a person Driving a State Transport vehicle and at the same time

performing the functions of a Conductor. Therefore, these

provisions enable boarding of a stage carriage or remaining

therein with a proper pass or ticket. That ticket has to be

purchased by paying fare to the Conductor or to the Driver who

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performs functions of a Conductor. Therefore, the duty to provide

a ticket after boarding or entering a bus is contemplated. Then

there are provisions for safety measures for drivers and pillion

riders, wearing of protective headgear, duty to produce licence

and certificate of registration and by Section 131, the Driver has

to perform the duty to take certain precautions at unguarded

railway crossings. He has to stop the vehicle in certain cases and

also to provide information. Besides this, we have not been shown

any provision which would prohibit the MSRTC in this Case from

issuing a circular of the nature issued or from making the

impugned policy.

45. We have thus found that there is no substance in the

contentions and which have been broadly summarized in this

Court's earlier order. Thus, the post of Driver-cum-Conductor is

not covered under the provisions of the MV Act, nor under any

statutory Rules or Regulations, was the primary contention. We

have scanned the provisions of the RTC Act as also the MV Act

with the assistance of the counsel appearing for the parties. We

have not been shown any provision which does not contemplate

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or expressly rules out such a post as is advertised, namely, "Driver-

cum-Conductor". We have also not been shown any prohibition in

either statute. Further, argument that the State Government has

not approved the decision of the Board is also not sound in law.

We have found that such an argument to be legally unsound. It

cannot be accepted in the light of the provisions of the RTC Act or

the Rules or Regulations framed thereunder. There is nothing

therein that would require prior permission of the State

Government to create a post as is advertised through the

impugned circular and advertisement. There are powers conferred

in the Corporation to make Regulations and once these

Regulations have been made in exercise of the power conferred by

Section 45 of the RTC Act and in the manner set out therein, then,

for creation of specific posts and advertising them so also making

recruitment thereto, the Corporation is not required to approach

the Government again and again, nor is it required to seek a prior

approval or permission of the State Government to fill up the

posts created by the MSRTC. The second argument that creation

of such post would endanger safety of the passengers is not

supported by any material. There is no illustration or instance

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cited of any inconvenience or accident which would endanger

safety of the passengers. On the other hand, the system and policy

has been operating for some time. The Corporation has denied the

allegations and placed on record not only the broad features but

details of the policy. It has stated that the policy is not going to

operate throughout the State. On our specific query, the advocate

for the MSRTC, on taking instructions, has handed over a

clarification of the policy and which would reveal that the policy

has been implemented in Pune, Nagpur, Nashik and Aurangabad

Division presently. The routes are also set out and for instance, a

bus plying from Pune to Nashik will have a Driver-cum-Conductor.

It is further stated on instructions that this policy is not static nor

incapable of being reviewed, reformed, altered. A periodical

assessment and review will be taken after every six months and if

necessary, changes and alterations will be made. In the forefront

would be the safety and convenience of passengers. Thereafter, it

would be ensured that there is no extra burden, pressure or force

on the employee such as a Driver. The policy as is being

implemented presently and the same will not be implemented

during night travel even on the routes which have been

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enunciated in the clarification placed on record, takes care of the

Petitioner's apprehension. We take this clarification on record and

mark it as "X-1" for identification. The statements made in this

document are also accepted as undertakings to this Court.

46. We do not find, therefore, that there is any compromise with

the safety and convenience of the passengers.

47. We have not been shown any provision, apart form the

definition of the term 'Driver-cum-Conductor' and the

classification of Conductors/Drivers in the MV Act, which carves

out a prohibition against creation of a single post of Driver-cum-

Conductor and plying a bus by him exclusively. Therefore, even

the contention that there being separate duties defined for both,

the Driver and the Conductor, in the MV Act, clubbing the same

would contravene the provisions of the Act, has no merit. There

has to be an express prohibition or a prohibition which could be

inferred from a reading of all the provisions of the MV Act

harmoniously and together. Additionally, the statements/

undertakings to this Court protect the interest of the stakeholders.

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In night travel buses there will be additional hand (a Driver) so

that passengers safety is not compromised.

48. In the circumstances, this is a case where the principles laid

down in the decision of the Hon'ble Supreme Court in the case of

Krishnan Kakkanth vs Government of Kerala and others

reported in AIR 1997 SC 128 would squarely apply. In paragraph

34, the Hon'ble Supreme Court has made the following pertinent

observations:-

"34. To ascertain unreasonableness and arbitrariness in the context of Article 14 of the Constitution, it is not necessary to enter upon any exercise for finding out the wisdom in the policy decision of the State Government. It is immaterial if a better or more comprehensive policy decision could have been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for which such decision has been taken. Unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, the policy decision cannot be struck down. It should be borne in mind that except for the limited purpose of testing a public policy in the context of illegality and unconstitutionality, Court should avoid "embarking or uncharted ocean of public policy.""

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49. These are therefore, the guiding and binding principles. The

Hon'ble Supreme Court holds that unless the policy of the

Government is unconstitutional, contrary to the statutory

provisions, arbitrary, irrational or an abuse of power, this Court

will not interfere with it. The Government policy decision also has

to be capricious and discriminatory and only then can it be said to

be violative of the mandate of Article 14 of the Constitution of

India.

50. Having tested the impugned policy decision on this

touchstone, we do not find that a serious infirmity therein

warranting our interference in writ jurisdiction, all the more,

when we have obtained clarifications and undertakings on the

policy and which would have to be abided by during the course of

its implementation and enforcement. We have ensured that these

undertakings are to the Court. In the event of deliberate breach or

violation thereof or non-adherence thereto, in addition to inviting

consequences in contempt, this Court would then not hesitate to

take such steps as are permissible in law. Once we have ensured a

overall protection of the vital interest of passengers on these lines,

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