P.M. Ashok Kumar vs State of Kerala

K. Vinod Chandran, J.—The controversy in the above writ petition is with respect to the appointment of one person as Attender cum Driver to the Korampadam Service Co-operative Bank Ltd. No. 178. W.P.(C) 30646/2012 has been filed by the 2nd rank holder, in the selection pursuant to Ext. P1 notification issued on 16.06.2008. The 5th respondent admittedly was the 1st rank holder. The controversy revolves around the age of the 5th respondent. As per Ext. P1 notification, the stipulation with respect to age was that a candidate should have crossed 18 years and should not have crossed 37 as on 01.04.2008. It is also the admitted position that the 5th respondent, being a Latin Christian, an OBC, was entitled to three years age relaxation. Hence the 5th respondents eligibility to be selected is, only if he was 40 years at the time of selection. Selection was conducted on the basis of Ext. P7 certificate produced by the 5th respondent, wherein the date of birth was shown as 19.01.1969.

The petitioner who was the 2nd rank holder, avers that he was the immediate neighbour of the 5th respondent and was aware of his age, but, did not have any authentic documents to prove that the 5th respondent was beyond the age limit prescribed in Ext. P1. The petitioner hence, applied under the Right to Information Act to the Public Information Officer, Regional Transport Office, Ernakulam as to the details of the 5th respondent''s driving license. Ext. P6 was the reply in which the 5th respondent was said to have been issued a driving license in the year 1985 with No. 7/416/1985. The declared date of birth of the 5th respondent, before the licensing authority was 19.01.1964. Going by such declaration, the 5th respondent would have been 44 years of age, as on the date notified in Ext. P1 notification.

However, the 5th respondent maintained that Ext. P7 school records is the authentic record which would evidence his age and placed reliance on the same. The petitioner was before various authorities and on being frustrated in his various attempts, was before this Court with W.P.(C) No. 22988/2011. This Court having considered the entire issues allowed the writ petition. This Court found that the facts disclosed would point to an evident case of production of fraudulent extract of school admission register. However, considering that to be a matter which has to be adjudicated by an authority capable of looking into the facts, this Court directed the Joint Registrar (General), Ernakulam to conduct an enquiry into the allegations raised. An opportunity was also directed to be granted to the petitioner and respondents 4 and 5.

Pursuant to such direction Ext. P22 was, passed by the Joint Registrar, which is assailed in the writ petition. The Joint Registrar did not consider the issue of the declaration made by the 5th respondent before the licensing authority under the Motor Vehicle''s Act, 1939. The Joint Registrar merely found that the school register is the only authentic document, which can be taken into consideration, for deciding the age of the candidate and in that view, found that there is nothing to show that a fraudulent document has been produced. It is to be specifically noticed that despite the school certificate produced being the extract of the attendance register; the Joint Registrar ought to have noticed that, before the school authority as also the licensing authority, the authorities go on the basis of the declaration made by the applicant. And in fact, it is the licensing authority who would insist on supporting evidence of the declaration of date of birth.

The petitioner did not rest contend, merely, pursuing his claim for appointment, but approached the licensing authority, with an application pointing out the fraud played on the licensing authority. If the school records are to be taken as an authentic document, the petitioner could not have been licensed to drive a motor vehicle in the year 1985, since he would not have reached the age for such licensing. The licensing authority cancelled the license of the 5th respondent under Section 19 of the Motor Vehicles Act, 1988. Section 19(e) speaks of revocation of a license issued, on the finding that the same was obtained by way of fraud and misrepresentation. Ext. P23 is assailed in W.P.(C) No. 6401/2013, which is filed by the 5th respondent in W.P.(C) 30646/2012.

From the circumstance noticed above, if the 5th respondent''s assertion is accepted, as to his date of birth being 19.01.1969, as seen from the school records, then, necessarily, he is to be found to have obtained the driving license by misrepresentation. The 5th respondent would have been, only 16 years, as on the date of issuance of driving license in 1985. The Motor Vehicles Act, 1939 regulated the field then and specifically provided that no person under the age of 18 years shall drive a motor vehicle in any public place. In fact, the driving license issued to the petitioner in 1985, as pointed out by the learned counsel for the petitioner, was a license to drive autorickshaws; which would be covered by sub-section (2) of Section 4. An autorickshaw is a transport vehicle and sub-section (2) of Section 4 mandates that no person under the age of 20 years shall drive a transport vehicle in any public place. Hence by no stretch of imagination can the 5th respondent''s license be considered to be one issued validly.

The 5th respondent had to be found to have definitely misrepresented, with respect to his date of birth before the licensing authority, if that be so, the 5th respondent would not be entitled to be appointed to the post, since the 5th respondent at the time of the selection would not be the holder of a valid license since the same was one issued on a misrepresentation. The mere fact of the license having been renewed subsequently, is of no significance, since the original issue is invalid and the license itself has been now invalidated.

The licensing authority would not have issued a license without an authentic document being produced before the authority and if the 5th respondent is considered to be of the minimum age, for issuance of such license to drive transport vehicle, or even an ordinary motor vehicle, then the 5th respondent would have been 20 years or at least 18 years as on 1985. On 01.04.2008, thus the 5th respondent would be past the age of 40, on any count. Either way, going by the age, the 5th respondent would be disqualified on being overaged as on 01.04.2008, and going by the alleged authentic document issued by the school authorities, the 5th respondent could not be issued with a valid driving license as on 01.04.2008. In such circumstance, the 5th respondents appointment has to be set aside. Ext. P22 order would be set aside for reason of no consideration having been made as directed by this Court in Ext. P21 judgment. The 5th respondent would not have been entitled to be appointed in the 4th respondent Bank. The 5th respondent''s appointment having been found to be bad, as on the date of his appointment, necessarily, such benefit has to ensure to the 2nd rank holder, who had been diligently prosecuting the matter. The petitioner in W.P.(C) No. 30646/2012 shall be appointed to the post of Attender-cum-Driver, immediately at any rate within a month from today, after verifying the credentials of the petitioner and the existence of a valid driving license as on 01.04.2008, and also a current valid license.

W.P.(C) No. 6401/2013 challenged Ext. P3 order of the licensing authority, cancelling the license of the petitioner therein, under Section 19 of the Motor Vehicles Act. Even as per the assertion of the petitioner, the petitioner''s date of birth is 19.01.1969, which would specifically indicate that the petitioner had obtained a license for driving a transport vehicle, an autorickshaw, in the year 1985 by misrepresentation. The petitioner had filed an appeal from Ext. P3 order, which was also rejected by Ext. P5. This Court does not find any error in Ext. P3 order as confirmed by the appellate authority in Ext. P5. However, the learned counsel for the petitioner contends that Section 19 does not enable the licensing authority to prohibit driving of a motor vehicle, permanently under Section 19 of the Motor Vehicles Act. The petitioner is aggrieved by the use of the word permanently, which according to the petitioner would interdict him from any further application to obtain a driving license. That cannot be a correct understanding of Ext. P3 order. Ext. P3 order permanently revoked the license already issued. There can be no renewal. However, if the petitioner applies for a fresh license and the same is permissible under law, that would be definitely considered, if the earlier revocation has no bearing, as per the statute.

WP(C) No. 30646 of 2012 is allowed and W.P.(C) No. 6401 of 2013 is dismissed with the above observations.