CHANDER MOHAN v. HEALTH AND MEDICAL EDUCATION DEPARTMENT

a) The present Transfer Application arises out of SWP No. 2807/2016, which was originally filed before the Hon'ble High Court of Jammu & Kashmir at Jammu and later transferred to this Tribunal and registered as TA No. 391/2022. The applicant claims appointment to the post of Driver in the Health Department, District Samba, pursuant to Advertisement Notification No. 01 of 2008 dated 22.04.2008.

b) The case of the applicant is that the State Government had advertised posts of Driver for the newly created District Samba under Item No. 006 of the said advertisement. The applicant, being eligible, applied for the post. His application was scrutinized and found complete in all respects, whereafter he was shortlisted and called to participate in the driving test/viva voce. The shortlist was issued on 08.09.2008 and published in local newspapers on 11.09.2008, wherein the applicant's name appeared, and he was directed to appear for the test on

22.09.2008.

c) Upon completion of the selection process, a provisional select list dated 14.11.2010 was issued, in which the applicant figured

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in the merit list, having secured 84 points. According to the applicant, he fulfilled all eligibility conditions prescribed in the advertisement, namely Matriculation qualification with a valid Heavy Goods Vehicle driving licence. He asserts that he possessed a valid driving licence at the time of application as well as during the selection process and was accordingly allowed to participate and selected on merit.

d) The grievance of the applicant is that despite being selected, his name was not recommended for appointment. Instead, the respondents raised an objection that at the time of initial issuance of his driving licence on 24.03.1987, the applicant was allegedly underage. The applicant contends that his licence was issued by the competent authority, remained valid, carried endorsements for heavy vehicles, and had been renewed from time to time, including during the relevant period of selection. He maintains that at the time of applying and participating in the selection process, he was fully eligible and possessed a valid licence, and therefore, the objection regarding the initial issuance of licence was wholly unjustified.

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e) It is further pleaded that vide communication dated 23.06.2011, the respondents recommended the names of four candidates, namely Jatinder Singh, Sharat Chander, Arun Deep Sharma and Bishamber Dass, who were allegedly lower in merit than the applicant, thereby excluding him from appointment without any lawful justification. The applicant asserts that such non- recommendation and the impugned communication dated 23.06.2011 are arbitrary, discriminatory, violative of Articles 14 and 16 of the Constitution, and constitute a colourable exercise of power. He claims that repeated representations submitted by him yielded no result, leaving him with no alternative but to approach the Court seeking quashment of the impugned communication and a direction for his appointment as Driver in the Health Department, District Samba

4. The respondents have filed their reply statement wherein they have averred as follows: -

a) The respondents have contested the Transfer Application and sought its dismissal at the threshold. It is submitted that the

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averments made by the applicant, unless specifically admitted, are denied. According to the respondents, no cause of action has accrued in favour of the applicant, nor has any of his legal or fundamental rights been violated so as to invoke the jurisdiction of this Tribunal.

b) The respondents submit that the posts of Driver, District Cadre Samba, in the Health and Medical Education Department were duly advertised under Advertisement Notification No. 01 of 2008 and that the selection process was conducted strictly in accordance with the applicable rules and statutory provisions. After completion of the selection process, the select list was prepared and forwarded to the indenting department.

c) The principal objection raised by the respondents pertains to the validity of the applicant's driving licence. It is stated that as per the official records, the applicant's date of birth is 06.12.1971, whereas his basic driving licence was issued on 24.03.1987 by the Licensing Authority, Mandi (Himachal Pradesh). On the said date, the applicant had not attained the minimum age of 18

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years, which is a mandatory requirement under Section 4 of the Motor Vehicles Act, 1939, applicable at the relevant time.

d) The respondents assert that the applicant was not merely short by a few months but was more than two years short of the prescribed age for issuance of a driving licence. It is contended that once the basic driving licence itself was issued in violation of statutory provisions, the subsequent endorsements for hill driving or heavy vehicles and renewals, being manual in nature, do not cure the foundational illegality. According to the respondents, an invalidly issued licence cannot confer any legal right and renders the applicant ineligible for the post of Driver.

e) It is further submitted that the Jammu and Kashmir Services Selection Board, being a statutory body, is duty-bound to ensure that only eligible candidates are recommended for appointment. The non-recommendation of the applicant was thus a lawful consequence of his ineligibility and not an act of arbitrariness or discrimination. The respondents deny all allegations of mala fides, colourable exercise of power, or violation of Articles 14 and 16 of the Constitution.

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f) On these premises, the respondents contend that the Transfer Application is devoid of merit and deserves to be dismissed in the interest of justice, with liberty reserved to urge additional grounds at the time of arguments, if necessary.

5. Heard learned counsel for the parties and perused the material available on record.

6. The present Transfer Application has been received on transfer from the Hon'ble High Court and registered as TA No. 391/2022. The applicant challenges the action of the respondents in not recommending/appointing him to the post of Driver (District Cadre Samba), Health Department, advertised under Advertisement Notification No. 01 of 2008, and also assails the subsequent recommendation/communication dated 23.06.2011, whereby candidates allegedly lower in merit were recommended.

7. The applicant applied under Item No. 006 for the post of Driver, District Samba. His application was scrutinized; he was shortlisted; and he participated in the driving test/viva voce. A provisional select list dated 14.11.2010 was issued wherein the applicant figured in the select list with 84 points. The applicant's case is that he possessed the

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prescribed qualification (Matriculation) and a valid heavy/transport driving licence at the time of application/selection; the licence had been renewed from time to time and carried endorsements. He contends that despite being selected, he was not recommended/appointed on the ground that his basic licence had been initially issued when he was allegedly underage.

8. The respondents, particularly the J&K Services Selection Board, oppose the claim primarily on the ground that as per record the applicant's date of birth is 06.12.1971 and the basic driving licence was issued on 24.03.1987; thus, according to them, the basic licence was void ab initio for being issued before attaining 18 years, and later endorsements/renewals cannot validate it.

9. The core issue is:

 Whether the applicant could be denied recommendation/appointment despite being selected on merit, solely on the objection that his basic driving licence was initially issued when he was underage, even though the licence stood renewed/endorsed and was valid during the relevant selection period?

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10. There is no dispute that the applicant was permitted to participate in the selection process; he was assessed; and he found place in the provisional select list with stated merit. The respondents have not pointed out any disqualification attached to him during the selection process except the age-objection relating to the initial issuance of licence.

11. The statutory scheme under the Motor Vehicles law does prescribe an age threshold for driving in a public place, generally 18 years, with a limited proviso for a small-engine motorcycle at 16 years. CommonLII+1 However, what is material for public employment eligibility in such selections is whether the candidate holds a valid and effective driving licence of the required class on the relevant cut-off/selection stage, and whether the licence stands cancelled/suspended by the competent licensing authority.

12. In the present matter, the applicant's consistent case is that his licence was issued by the competent authority, was endorsed for heavier class later, and was renewed from time to time and was valid when he applied and participated.

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13. Significantly, the respondents have not produced any order showing that the licence was ever cancelled by the competent licensing authority under the Motor Vehicles law. In absence of such cancellation, the selection authority cannot, by a collateral inquiry, treat the subsisting licence as non est.

14. The approach that an initial age-irregularity forever taints the licence and disables a person for all times to come has been disapproved in principle. In Kuldip Balhara v. State of Haryana (CWP No. 10077 of 2012, decided on 06.02.2013), the Punjab & Haryana High Court, while noticing that the petitioner was underage at the time of first issuance, held that once the person crossed the age bar and the licence had been repeatedly renewed, the earlier illegality becomes at best an irregularity, and the person cannot be deprived "for all times to come"

merely due to the initial mistake, particularly when there was no falsification of date of birth at the renewal stages. High Court of Punjab and Haryana+1

15. Applying the above reasoning to service jurisprudence, this Tribunal is of the considered view that where (i) a candidate has been subjected to a selection process, (ii) placed in the select list on merit, (iii) and

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holds a subsisting driving licence renewed/endorsed by the competent authority during the relevant period, denial of recommendation/appointment on a hyper-technical objection regarding the initial issuance decades earlier, without any cancellation of licence by the statutory authority, becomes arbitrary and falls foul of fair and reasonable administrative action.

16. The respondents' plea that endorsements/renewals are "manual" and thus insignificant cannot be accepted as a valid substitute for a statutory cancellation order. Once renewals/endorsements are granted by the competent authority under law, the presumption is that official acts have been regularly performed, unless the licence is withdrawn in accordance with law. The selection authority cannot treat a subsisting licence as invalid by assumption.

17. The applicant has also demonstrated comparative prejudice by pointing out that thereafter candidates lower in merit were recommended through communication dated 23.06.2011. If a vacancy existed and appointments were made, the administration was expected to follow the merit list and apply uniform standards.

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18. For the foregoing reasons, the Transfer Application is allowed to the extent indicated below:

a) The action/decision of the respondents in not recommending/appointing the applicant to the post of Driver (District Cadre Samba), despite his selection, on the sole ground of initial-age defect in issuance of driving licence, is held unsustainable.

b) The respondents No. 3 & 4 (SSB) are directed to recommend the applicant for appointment as Driver against the available vacant post in District Samba under Advertisement Notification No. 01 of 2008, and respondents No. 1 & 2 shall issue the appointment order thereafter, subject to completion of usual formalities.

c) The entire exercise shall be completed within 12 weeks from the date a copy of this order is made available.

d) The applicant shall be entitled to notional seniority vis-à-vis those appointed pursuant to the same selection, for the limited purpose of fixation of position, but monetary benefits/back wages shall be prospective from the date he actually joins

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(principle of "no work no pay"), except as may be required for pay fixation/notional increments, if applicable under rules.

19. No order as to costs.

(RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA)

Administrative Member Judicial Member /harshit/

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