Deva Ram vs State Of Rajasthan ...
2023 Latest Caselaw 5765 Raj

2023:RJ-JD:25381

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 6980/2021

Deva Ram S/o Rupa Ram, Aged About 25 Years, Date Of Birth - 03.10.1995, Category - Obc (Non Creamy), R/o Village - Bamboo, Tehsil Bidasar, District Churu (Rajasthan) Pin 331517

----Petitioner Versus

1. State Of Rajasthan, Through Its Secretary, Department Of Home Affairs (Govt. Of Rajasthan) Government Secretariat, Jaipur.

2. The Director General Of Police, Police Headquarters, Jaipur (Rajasthan)

3. The Superintendent Of Police, District Churu (Rajasthan)

----Respondents

For Petitioner(s) : Mr. Razak Khan Mr. Mohit Singh Choudhary For Respondent(s) : Mr. Manish Vyas, AAG

JUSTICE DINESH MEHTA

Order

10/08/2023

1. By way of the present writ petition, the petitioner has prayed

thus:

"i. That the action of the respondents in not considering the Heavy Vehicle License of the petitioner since the license was not issued before one year of the date of advertisement, may kindly be declared per se unjust, arbitrary and further violation of the Article 14, 16 and 21 of the Constitution of India; and/or ii. The respondents may kindly be directed to consider the Heavy Vehicle Driving License of the petitioner and give 4 marks to him which were reserved for the candidates who possessed Heave

2023:RJ-JD:25381 (2 of 7) [CW-6980/2021]

Vehicle Driving License at the time of Proficiency Test (PT) and if he secures himself in merit, give him appointment on the post of Constable (Driver) with all consequential benefits; and/or iii. Pass any other appropriate order which this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the case in favor of the petitioner."

2. The facts relevant for the present purposes are that the

respondent - State issued an Advertisement dated 04.12.2019 for

filing up various posts of Constable (Driver). Para-7(iv) of the

Advertisement which prescribed the eligibility to such post reads

thus:

"7(iv) dkWULVscy MªkbZoj in dh ik=rk gsrq vkosnd ds ikl foKfIr tkjh gksus dh fnukad ls ,d o'kZ iwoZ dk cuk gqvk LFkkbZ MªkbZfoax ykbZlsal ¼LMV/HMV½ gksuk vko";d gSA"

3. The petitioner while submitting his application form on

25.12.2019 indicated 'Light Vehicle License' against the Column

meant for Type of License.

4. It is to be noted that as per Standing Order No. 14/2019

dated 06.11.2019 issued by Directorate of Police duly reflected in

the subject advertisement, total 15 marks were kept for

Proficiency in driving which included 4 marks for driving Heavy

Vehicle for the post of Constable (Driver).

5. Subsequently, after submitting the application form on

08.02.2021, the petitioner obtained a license to drive Heavy

Vehicle as well.

6. The petitioner having cleared the written test was called for

the Proficiency Test to be held on 07.04.2021, he was examined

2023:RJ-JD:25381 (3 of 7) [CW-6980/2021]

on all parameters, but was not allowed to take part in driving test

of Heavy Vehicle.

7. As the petitioner was also having a license of driving 'Heavy

Vehicle', when appeared for Proficiency Test, he requested the

respondents to allow him to undertake Proficiency Test for driving

Heavy Vehicle as well, but the petitioner's request was turned

down.

8. It is the case of the petitioner that as the petitioner was

having license to drive Heavy Vehicle on 08.02.2021, i.e. prior to

the date of Proficiency Test, the respondents could not prevent

him from taking the driving test of Heavy Vehicle. He argued that

because of such act of the respondents, his right to contest for 4

marks out of 15 marks, meant for Proficiency Test, was taken

away.

9. On the last date of hearing, a specific query was posed by

the Court to the learned Additional Advocate General as to

whether petitioner's Proficiency Test in relation to drive Heavy

Vehicle was conducted or not; in pursuance whereof, it has been

informed that the petitioner was not allowed to undertake the

Proficiency Test qua Heavy Vehicle. A communication dated

09.08.2023 has been placed on record, in which it has been

indicated that the petitioner has been awarded 'Zero' marks, so

far as driving of Heavy Vehicle is concerned and that the petitioner

has secured 8 marks out of 15 marks earmarked for Proficiency

Test and his total marks have turned out to be 76.875 out of 100.

10. Learned counsel for the petitioner contended that the cut off

marks of petitioner's category was 77.87 marks and had the

petitioner been tested for Proficiency Test of driving Heavy Vehicle,

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he would have secured sufficient marks to get more marks than

the cut off.

11. Learned Additional Advocate General while inviting Court's

attention towards the fact that the endorsement of driving Heavy

Vehicle in the petitioner's license was made on 08.02.2021, and

the advertisement was issued on 04.12.2019 argued that since

the petitioner became eligible to drive Heavy Vehicle after the last

date of application form, his proficiency in driving Heavy Vehicle

cannot be considered, particularly in the face of the condition No.

7(iv) of the Advertisement, which provided that a candidate must

have the license issued atleast a year before the date of

advertisement.

12. Mr. Razak Khan, learned counsel for the petitioner in

rejoinder submitted that the condition of having license issued

atleast a year before the date of advertisement has been quashed

by this Court by the judgment dated 15.01.2020 rendered in the

case of Akshay Kumar Khatri vs. State of Rajasthan & Ors. :

S.B. Civil Writ Petition No. 7092/2019.

13. Heard learned counsel for the parties and perused the

material available on record.

14. The moot question to be answered in the present case is

that, whether the petitioner was entitled to appear in the

Proficiency Test for driving Heavy Vehicle as well, because of the

fact that on the date of conducting Proficiency Test i.e. on

08.04.2021, he was having a valid license to drive the Heavy

Vehicle?

15. A perusal of the requisite eligibility criteria given in Para 7(iv)

of the Advertisement reproduced hereinabove clearly shows that

2023:RJ-JD:25381 (5 of 7) [CW-6980/2021]

the eligibility of a candidate for the post of Constable (Driver) was

to be examined on the basis of possessing a Driving License; Light

Motor Vehicle (LMV)/Heavy Motor Vehicle (HMV). Use of '/'

between the words 'Light Motor Vehicle (LMV) and Heavy Motor

Vehicle (HMV)' clearly suggests that any person, who is having

driving license to drive LMV or HMV or both was eligible to contest

for the post of Constable (Driver).

16. So far as condition of having license older than one year of

the advertisement is concerned, the same has been quashed by

this Court in the case of Akshay Kumar Khatri (supra).

17. Resultantly, the position which emerges is, that for being

eligible to vie for the post of Constable (Driver) a candidate should

have a valid license to drive either LMV or HMV. A person need not

have a license to drive HMV.

18. Indisputably, the petitioner was possessed of license to drive

Light Motor Vehicle (LMV), when he submitted his application form

on 25.12.2019. Hence, being eligible to apply to the post and

having cleared the written test, the petitioner was called for

Proficiency Test, wherein he was tested on all parameters, except

for parameter (A)(i)(d) of Part-III of Standing Order No. 14/2019

dated 06.11.2019.

19. Para (d) of (A)(i) of Part-III reads thus:

"(d) Driving of Heavy Vehicles (along with possession of Heavy Vehicle Driving Licence)"

20. According to this Court, when the Proficiency Test was held

on 07.04.2021, the petitioner was possessing the license to drive

Heavy Vehicle as well, and therefore, the respondents could not

deny him the right to appear in Proficiency Test on the parameter

2023:RJ-JD:25381 (6 of 7) [CW-6980/2021]

(d) namely 'Driving of Heavy Vehicle (along with possession of

Heavy Vehicle Driving Licence)'.

21. If above noted parameter is considered, it only speaks of

'Driving of Heavy Vehicle' for a person who is possessing a license

to drive Heavy Vehicle. The petitioner was definitely possessing a

Driving License for Heavy Vehicle as well on 07.04.2021.

22. That apart, since the condition of having license older than

one year has been set aside, this Court does not find the

justification given by the respondent - State that since petitioner's

license was issued after the date of submitting application form,

he cannot be tested for Heavy Vehicle.

23. True it is, that the eligibility of a candidate has to be seen on

the date of submitting the application form or on the last date of

submitting the application form, unless provided otherwise. But,

so far the petitioner's eligibility is concerned, he was eligible at the

time of submitting application form, as the eligibility was only

having a Driving License either LMV or HMV.

24. Once he has come in the zone of consideration or became

eligible, the respondents could not justifiably deny him the right to

stake his claim for the marks meant for driving Heavy Vehicle,

given the fact that he was having a requisite Driving License to

drive such vehicle. The fact that he has obtained driving license

during the intervening period of submitting application form and

date of Proficiency Test, cannot be a fetter, inasumch as, driving

Heavy Vehicle is an additional proficiency and not the minimum

requirement.

25. As noticed above, in the parameters set for Proficiency Test,

particularly in condition (d) of (A)(i), what has been written is

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"with possession of Heavy Vehicle Driving License" and therefore,

if on the date of conducting Proficiency Test, the petitioner was

having Driving License, the respondents could not have refused to

test him on the parameters of driving Heavy Vehicle.

26. As an upshot of discussion foregoing, the writ petition

succeeds. The respondents are directed to conduct petitioner's

Proficiency Test for driving Heavy Vehicle and then award him

suitable marks (out of 4 marks), as has been prescribed for such

purpose.

27. After conducting the Proficiency Test for driving Heavy

Vehicle, if the petitioner secures more marks than the cut off of

his category, he be offered appointment on the post of Constable

(Driver), obviously, if he is otherwise eligible.

28. The petitioner's Proficiency Test for driving Heavy Vehicle be

held on or before 15.09.2023, whereafter, the respondents shall

proceed as directed above.

29. Stay application also stands disposed of, accordingly.

(DINESH MEHTA),J 294-Mak/-

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