Gujarat High Court
Vilash Eknath Khairnar vs Surat Municipal Corporation on 17 February, 2021
Bench: R.M.Chhaya
C/LPA/961/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 961 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 1064 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE R.P.DHOLARIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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VILASH EKNATH KHAIRNAR
Versus
SURAT MUNICIPAL CORPORATION
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Appearance:
MR VAIBHAV A VYAS(2896) for the Appellant(s) No. 1
MR CJ VIN(978) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE R.P.DHOLARIA
Date : 17/02/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
C/LPA/961/2017 JUDGMENT
1. The present appeal is directed against the
order dated 11.8.2016 passed by the learned
Single Judge in Special Civil Application
no.1064 of 2014, whereby the learned Single
Judge was pleased to dismiss the Writ
Petition.
2. Following noteworthy facts arise from the
record of the appeal:
That, the respondent Municipal Corporation
gave an advertisement in public newspaper-
Gujarat Samachar on 20.3.2007 and invited
applications for various posts. The present
appeal relates to the post of driver. As per
the advertisement so published by the
respondent - Corporation, 93 posts of driver
was advertised. As per the said advertisement
for the post of driver, the candidate was
required to have a driving licence of heavy
vehicle with transport vehicle with
authorization of RTO amongst other requisite
qualifications. As per the said advertisement,
the last date was 10.4.2007. Record indicates
that the appellant applied for the post of
driver on 29.3.2007. In the application form
which was in a prescribed form, it was
mentioned by the appellant that he has
enclosed leaving certificate, copy of ration
C/LPA/961/2017 JUDGMENT
card as well as copy of driving license.
Record further indicates that on the date of
submission of the application by the appellant
i.e. on 29.3.2007, the appellant was
possessing the driving license bearing
no.282411 and the appellant was authorized to
drive 'light motor vehicle and motorcycle'.
The record further indicates that the
appellant also produced a learner's license
which was valid from 29.3.2007 to 28.9.2007
for driving heavy motor vehicles which came to
be issued by the competent licensing authority
under Rule 3 of the Central Motor Vehicle
Rules, 1989. Pursuant to the application so
made, the appellant was called for physical
and vision test by the respondent
Corporation vide communication dated 5.5.2008
followed by a practical test vide
communication dated 23.10.2008. Pursuant to
the same, the appellant appeared and
ultimately, the appellant came to be appointed
as trainee driver, by the respondent
Corporation vide order dated 31.8.2009. On
further scrutiny of the documents, the license
submitted by the appellant was found to be
improper and therefore, the respondent
Corporation addressed a communication dated
20.3.2012 asking the appellant to produce a
certificate from RTO within a period of 3
days. The same was replied by the appellant,
C/LPA/961/2017 JUDGMENT
wherein also, it is stated by the appellant
that on 29.3.2007, the appellant had submitted
four wheeler licence and before the process of
interview commenced, the requisite license was
submitted. On scrutiny of the documents and
the reply so submitted, the competent
authority of the respondent Corporation
found that on 10.4.2007, i.e. on the last date
of application, the appellant had not
submitted the requisite license as per the
requirements and the competent authority of
the Corporation came to the conclusion that
the appellant has wrongly obtained the job of
a trainee driver and his services came to be
discontinued. The petitioner approached this
Court by way of filing a Writ Petition being
Special Civil Application no.11364 of 2013,
whereby the very termination order came to be
challenged and the same was disposed of vide
order dated 30.8.2013. As the petitioner had
already availed alternative remedy of filing
an appeal, this Court was pleased to direct
the Corporation to decide the appeal in
accordance with law. The appeal came to be
dismissed vide order dated 15.10.2013 and
thereafter, the Writ Petition came to be filed
on the grounds set out in the memo of
petition. The learned Single Judge was pleased
to dismiss the petition and hence, the present
appeal is filed.
C/LPA/961/2017 JUDGMENT
3. Heard Mr. Vaibhav Vyas, learned advocate for
the appellant and Mr. C.J. Vin, learned
advocate for the respondent - Corporation.
4. Mr. Vaibhav Vyas, learned advocate for the
appellant has taken this Court through the
factual matrix arising out of this appeal and
has submitted that the learned Single Judge
has erred in coming to the conclusion that the
appellant did not possess the required license
on due date. Mr. Vyas further relying upon the
judgment of the Hon'ble Apex Court in the case
of National Insurance Co. Ltd., Vs. Swaran
Singh & Ors. reported in (2004) 3 SCC 297,
contended that the learner's license is also a
valid license and hence, according to Mr.
Vyas, the appellant had submitted the
learner's license which would suffice the
condition of the advertisement. Mr. Vyas also
submitted that the learned Single Judge has
wrongly come to the conclusion that the
appellant has committed a fraud. It was also
contended that the learned Single Judge has
also misread the provisions of Section 2(10)
of the Motor Vehicles Act, 1988 and has
wrongly relied upon the Division Bench
judgment of this Court in the case of New
India Insurance Company Limited Vs. Ketanbhai
C/LPA/961/2017 JUDGMENT
Bhagvandas Shah, reported in 2000 (1) GLR 696.
It was submitted that the termination order is
exfacie, bad and illegal and the appeal
deserves to be allowed.
5. Per contra, Mr. C.J. Vin, learned advocate for
the respondent Corporation has opposed the
appeal. Mr. Vin submitted that the learner's
license and license are two different types of
license and what was provided as a requisition
in the advertisement was a valid license and
not a learner's license. Mr. Vin contended
that the learned Single Judge has committed no
error which warrants interference by this
Court in exercise of its appellate
jurisdiction under Clause 15 of the Letters
Patent and the appeal, being meritless,
deserves to be dismissed.
6. No other or further submissions, grounds
and/or contentions are made by the learned
advocates appearing for the respective
parties.
7. Having heard the learned advocates appearing
for the respective parties and on perusal of
the advertisement given by the respondent-
Corporation, it is crystal clear that
possession of a valid license for driving
heavy vehicles and transport vehicles along
C/LPA/961/2017 JUDGMENT
with the authorization of RTO was a sine qua
non. It is not in dispute that such condition
was there in the advertisement. It is also a
matter of fact that the last date of
submission was 10.4.2007. The record further
indicates that even though the appellant has
mentioned that he has submitted copy of the
driving license on 29.3.2007, the appellant
did not possess license for Heavy Motor
VehicleTransport Vehicle but has a learning
license. On perusal of the copy of the license
which is produced by way of reply by the
respondent Corporation before the learned
Single Judge, it clearly transpires that such
license was issued on 29.3.2007 which was
valid for six months. It therefore clearly
transpires that the appellant obtained
learner's license on the date of application.
Considering the contentions raised by Mr.
Vyas, the question which falls for
consideration for this Court is whether
possessing a learner's license on 29.3.2007
i.e. the date of filing of the application
would be sufficient compliance of the
requirement for the advertisement or not and
the other question which arises in this appeal
is whether any subsequent submission of new
document would be sufficient compliance of
such requirement or not. The issues raised in
this appeal, in opinion of this Court, is
C/LPA/961/2017 JUDGMENT
covered by the judgment of the Hon'ble Apex
Court in the case of Alka Ojha vs. Rajasthan
Public Service Commission & Anr., reported in
AIR 2011 SC 3547, wherein the Hon'ble Apex
Court has observed that mere fact that the
candidate possessing learner's license on the
date of application is not sufficient to make
him eligible to compete for the selection. The
Hon'ble Apex Court has observed as under:
"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:
"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"
C/LPA/961/2017 JUDGMENT
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 subsection (2)
of section 75 unless his driving
licence specifically entitles him so
to do.
(2) The conditions subject to which
subsection (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
(i) in which he ordinarily resides
or carries on business, or
C/LPA/961/2017 JUDGMENT
(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 subsection
(3) and has passed to the
satisfaction of the licensing
authority the test referred to in
subsection (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.
C/LPA/961/2017 JUDGMENT
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.
(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 reappear
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
C/LPA/961/2017 JUDGMENT
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.
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.
C/LPA/961/2017 JUDGMENT
(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) roadroller;
(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 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
C/LPA/961/2017 JUDGMENT
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."
8. In the case on hand also, the appellant did not
possess the driving license and possessing learner's
license which was issued on the date on which the
the appellant filed the application, cannot be
treated as a driving license authorizing to drive
heavy motor vehicles and heavy passenger vehicles.
Hence, following the judgment of the Hon'ble Supreme
Court in Alka Ojha(supra), we are in total agreement
with the conclusions arrived at by the learned
Single Judge and the learned Single Judge rightly
came to the conclusion that that the appellant was
not eligible to apply much less be appointed without
license which would a prerequisite for applying for
the post. The ratio laid down by the Apex Court in
the case of national Insurance Company(supra) would
not be applicable to the present case. The said
C/LPA/961/2017 JUDGMENT
judgment is in relation to the motor accident claim
and on interpretation of section 149 of the Motor
Vehicles Act wherein the aspect of duly licensed and
effective license is considered.
9. It goes without saying that the eligibility of the
candidate for possession of prerequisite as per the
advertisement relates to the last date of filing of
the application i.e. in the case on hand 10.4.2007
and it is not in dispute that the appellant did not
possess driving license to drive heavy vehicles with
transport vehicles on the last date of application.
The learned Single Judge has succinctly considered
this aspect, more particularly, in Paragraphs 5.4
and 6 of the impugned order and aggrieved with the
submissions made, the appeal is liable to be
dismissed and is hereby dismissed. However, there
shall be no order as to costs.
(R.M.CHHAYA, J)
(R.P.DHOLARIA, J)
MRP
