Disposed

P.a.Janish v. State of Kerala

Kerala HC16 Nov 2021WP(C)/17091/2021

Case brief

AI extract

What is this about?

PIL challenging the wearing of blue beret caps and Ashoka Emblems by Motor Vehicles Department officers. The court directed strict adherence to Rule 406 of Kerala Motor Vehicles Rules, 1989 and noted the government is examining an amendment to incorporate the Ashoka Emblem.

What did the court decide?

Respondents directed to ensure strict implementation of Rule 406; government to revisit and amend the rule to incorporate Ashoka Emblem.

P.a.Janish Vs State of Kerala — Service and Employment | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 16^TH DAY OF NOVEMBER 2021 / 25TH KARTHIKA, 1943

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WP(C) NO. 17091 OF 2021

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PETITIONER:

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P.A.JANISH, AGED 38 YEARS, S/O.ABDUL KHADER, POTHIYIL HOUSE, VILANGU P.O., ERNAKULAM - 683 561.

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BY ADV P.DEEPAK

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TRANSPORT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2 THE STATE POLICE CHIEF

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POLICE HEADQUARTERS, THIRUVANANTHAPURAM - 695 010.

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3 THE TRANSPORT COMMISSIONER TRANSPORT COMMISSIONERATE, THIRUVANANTHAPURAM - 695 014.

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BY SENIOR GOVERNMENT PLEADER SRI.TEKCHAND

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 17091 OF 2021

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JUDGMENT

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Dated this the 16^th day of November 2021

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S.MANIKUMAR, C.J.

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This public interest litigation is filed for a direction of this court for interdicting the officers of Motor Vehicles Department under the 3^rd respondent from wearing 'blue beret caps' and badges embossed with the Ashoka Emblem or any other uniform deceptively similar to the uniform prescribed for Senior Police Officers under Section 43 of the Kerala Police Act, 2011 and in violation of the directive issued by State Police Chief.

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Petitioner has sought for the following prayers:

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Issue a writ in the nature of mandamus or such other writ, order or direction commanding the 3^rd respondent to ensure that the officers of the Motor Vehicles Department strictly adhere to the uniforms prescribed under Rule 406 of the Kerala Motor Vehicles Rules, 1989.

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Issue a writ in the nature of mandamus or such other writ, order or direction interdicting the officers of the Motor Vehicles Department from wearing 'blue beret caps' and badges embossed with the Ashoka Emblem or any other uniform deceptively similar to the uniform prescribed for Senior Police Officers under Section 43 of the Kerala Police Act, 2011.

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On 1^st September 2021, we passed the following order:

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“This public interest litigation is filed for a direction of this court for interdicting the officers of the Motor Vehicles Department under the 3^rd respondent from wearing 'blue beret caps' and badges embossed with the Ashoka Emblem or any other uniform deceptively

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similar to the uniform prescribed for Senior Police Officers under Section 43 of the Kerala Police Act, 2011 and in violation of the directive issued by State Police Chief.

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Pursuant to the direction of this court dated 24^th August 2021, Mr.Tek Chand, learned Senior Government Pleader has received instructions. He invited the attention of this court to the instructions dated 27.8.2021 furnished by the Transport Commissioner, Thiruvanananthapuram to the office of the Advocate General, Kerala, Ernakulam wherein, it is stated that as per Sub Section (3) of Section 213 of the Motor Vehicles Act, 1988, “the State Government may make rules to regulate the discharge by officers of the Motor Vehicles Department of their functions and in particular and without prejudice to the generality of the foregoing power to prescribe the uniform to be worn by them, the authorities to which they shall be subordinate, the duties to be performed by them, the powers (including the powers exercisable by Police Officers under this Act) to be exercised by them, and the conditions governing the exercise of such powers”.

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It is also stated therein that in exercise of the said powers, Government of Kerala had framed Rule 406 under the Kerala Motor Vehicles Rules, 1989 prescribing uniform for Regional Transport Officers, Joint Regional Transport Officers, Motor Vehicles Inspectors and Assistant Motor Vehicles Inspectors of the Motor Vehicles Department, as per notification issued under G.O.(P)No.99/95/PW&T dated 18^th July, 1995 and published as S.R.O.No.940/95 in the Kerala Gazette Extraordinary No.730 dated 22^nd July, 1995. It is further sated that as per letter No.C5/79/2021/TC dated 19.7.2021, all the Regional Transport Officers and Joint Regional Transport Officers have been instructed to strictly wear the uniform prescribed under Rule 406 of the Kerala Motor Vehicle Rule 1989. As per sub rule (1) of rule 405 of KMV Rules all officers of the Motor Vehicles Department shall carry out the instructions and orders issued by the Transport Commissioner from time to time.

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It is also stated therein that considering the present issue regarding wearing of uniform, it was decided to furnish a proposal to Government in Transport, for amending Rule 406 of the Kerala Motor Vehicles Rules 1989, by incorporating Asoka Emblem instead of Kerala Emblem.

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Inviting attention of this court to a letter dated 31.8.2021 from the Secretary to the Government, Transport (B) Department, Government of Kerala addressed to the learned Advocate General, Kerala, Ernakulam, Mr. Tek Chand, learned Senior Government Pleader submitted that Rule 406 of the Kerala Motor Vehicles Rules, 1989 prescribes the uniform for Regional Transport Officers, Joint Regional Transport Officers, Motor Vehicles Inspectors and Assistant

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Motor Vehicles Inspectors and in terms of the directions contained in letter dated 19.7.2021 issued by the Transport Commissioner, Government of Kerala to all the Deputy Transport Commissioners, the above mentioned officers should wear uniforms strictly in conformity with Rule 406 of the Kerala Motor Vehicles Rules, 1989.

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As per Section 2(a) of the Emblems and Names (Prevention of Improper Use) Act, 1950 , hereinafter referred to as 'the Act, 1950', “emblem” means any emblem, seal, flag, insignia, coat-of-arms or pictorial representation specified in the Schedule. Section (3) of the Act, 1950 speaks about 'prohibition of improper use of certain emblems and names', which reads as follows:

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“3. Prohibition of improper use of certain emblems and names.—Notwithstanding anything contained in any law for the time being in force, no person shall, except in such cases and under such conditions as may be prescribed by the Central Government, use, or continue to use, for the purpose of any trade, business, calling or profession, or in the title of any patent, or in any trade mark or design, any name or emblem specified in the Schedule or any colourable imitation thereof without the previous permission of the Central Government or such officer of Government as may be authorised in this behalf by the Central Government.”

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Section 5 of the Act, 1950 speaks about “penalty”, which reads as follows:

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“5. Penalty—Any person who contravenes the provisions of section 3 shall be punishable with fine which may extend to five hundred rupees.”

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Section 6 of the Act, 1950 speaks about “Previous sanction for prosecution”, which reads as follows:

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“6. Previous sanction for prosecution.—No prosecution for any offence punishable under this Act shall be instituted, except with the previous sanction of the Central Government or of any officer authorised in this behalf by general or special order of the Central Government.”

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Schedule to Sections 2(a) and (3) of the Act, 1950 enumerates the name, emblem or official seal of institutions/Government.

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The State Emblem of India (Prohibition of Improper Use) Act, 2005 is an Act to prohibit the improper use of State Emblem of India for professional and commercial purpose and for matters connected therewith or incidental thereto.

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As per Section 2(b) of State Emblem of India (Prohibition of Improper Use) Act, 2005, 'emblem' means the State Emblem of India as described and specified in the Schedule to be used as an official seal of the Government.

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Section 3 of the State Emblem of India (Prohibition of Improper Use) Act, 2005, deals with prohibition of improper use of emblem, which reads as under:

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“3. Prohibition of improper use of emblem.— Notwithstanding anything contained in any other law for the time being in force, no person shall use the emblem or any colourable imitation thereof in any manner which tends to create an impression that it relates to the Government or that it is an official document of the Central Government, or as the case may be, the State Government, without the previous permission of the Central Government or of such officer of that Government as may be authorised by it in this behalf. Explanation.—For the purposes of this section, “person” includes a former functionary of the Central Government or the State Governments.”

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Section 4 of the State Emblem of India (Prohibition of Improper Use) Act, 2005 deals with 'prohibition of use of emblem for wrongful gain'; Section 7 deals with 'penalty' and Section 8 deals with 'Previous sanction for prosecution'. Sections 4, 7 and 8 of the State Emblem of India (Prohibition of Improper Use) Act, 2005 read as under:

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“4. Prohibition of use of emblem for wrongful gain .—No person shall use the emblem for the purpose of any trade, business, calling or profession or in the title of any patent, or in any trade mark or design, except in such cases and under such conditions as may be prescribed.

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Penalty .—(1) Any person who contravenes the provisions of section 3 shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to five thousand rupees, or with both, or if having been previously convicted of an offence under this section, is again convicted of any such offence, he shall be punishable for

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WP(C) NO. 17091 OF 2021

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the second and for every subsequent offence with imprisonment for a term which shall not be less than six months, which may extend to two years and with fine which may extend to five thousand rupees.

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(2) Any person who contravenes the provisions of section 4 for any wrongful gain shall be punishable for such offence with imprisonment for a term which shall not be less than six months, which may extend to two years and with fine which may extend to five thousand rupees.”

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“8. Previous sanction for prosecution .—No prosecution for any offence punishable under this Act shall be instituted, except with the previous sanction of the Central Government or of any officer authorised in this behalf by general or special order of the Central Government.”

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In exercise of the powers conferred by Section 11 of the State Emblem of India (Prohibition of Improper Use) Act, 2005 (50 of 2005), the Central Government have framed the State Emblem of India (Prohibition of Improper Use) Rules, 2007. Schedule I of which deals with 'constitutional or statutory authorities, ministries or departments of the Central Government, State Governments or Union Territory Administrations and other Government Functionaries which may use the emblem'.

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Part I of Schedule II deals with 'Constitutional authorities and other Dignitaries which may display the emblem on their cars'.

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Part II of Schedule II speaks about 'Authorities which may display the Ashoka Chakra (which is part of the Emblem) on Triangular Metal Plaques on their cars'.

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Schedule III deals with 'other purposes for which emblem has been used'.

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Clause (xiv) of Schedule III speaks about the badges, collars, buttons, etc, with such modifications as are considered necessary, on the uniforms of –

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(a) commissioned or gazetted officers of the armed forces of the Union;

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(b) gazetted officers of uniformed services (other than armed forces) of the Union and such of the State Governments and Union territory Administrations that have adopted the emblem, or have incorporated the emblem in the Emblem of that State or Union territory;

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Upon a cursory perusal of the statutory provisions, extracted supra, at this juncture, it is only observed that gazetted officers of Transport Department may not fall within the description of gazetted officers of uniformed services (other than armed forces) of the Union or State Government, although they are officers of Transport Department, Government of Kerala. In the absence of any counter affidavit or statement of facts, we are not inclined to delve further.

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However, having regard to the specific instructions contained in letter No.C5/79/2021/TC dated 19.7.2021, there shall be direction that the officers mentioned in the order dated 19.7.2021 should strictly obey the same. All the Regional Transport Officers and Joint Regional Transport Officers and other officers should strictly wear the uniform prescribed under Rule 406 of the Kerala Motor Vehicle Rule 1989.

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For brevity, Rule 406 of the Kerala Motor Vehicles Rule, 1989 is reproduced:

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406.Uniform for Regional Transport Officers, Joint Regional Transport Officers, Motor Vehicles Inspectors and Assistant Motor Vehicles Inspectors. (The] Regional Transport Officers, Joint Regional Transport Officers, Motor Vehicles Inspectors and Assistant Motor Vehicles Inspectors of the Motor Vehicles Department shall wear the following uniform while on duty, namely:

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Regional Transport Officers

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(i) Peak cap Khaki Gabardine, Cap, Badge with letters 'KTS' and Kerala Emblem and embossed buttons with the letters 'KTS' in yellow metal or gilt.

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(ii) Jacket and trousers Khaki Gabardine or terrycotton with embossed buttons in yellow metal on pockets and front of the jacket. The jacket to be tucked inside the trousers;

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(iii) Sam Browne belt;

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(iv) Whistle of police pattern attached to yellow cord and carried in the left breast pocket;

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(v) Brown shoes;

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(vi) Khaki, nylon or cotton socks;

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(vii) [Badge] of rank-One star and Kerala Emblem made of brass on the centre of each shoulder strap, ‐ evenly placed length wise with metal badge bearing the letters 'KTS' at the base.

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Joint Regional Transport Officers-

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(i) Peak cap Khaki Gabardine, Cap, Badge with the letters 'KTS' and Kerala Emblem and embossed buttons with the letters 'KTS' in yellow metal or gilt;

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(ii) Jacket and trousers - Khaki Gabardine or terrycotton with embossed buttons in yellow metal on pockets and front of the jacket. The jacket to be tucked inside the trousers;

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(iii) Sam browne belt;

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(iv) Whistle of police pattern attached to yellow cord and carried in the left breast pocket;

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(v) Brown shoes;

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(vi) Khaki nylon or cotton socks;

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(vii) Badges of rank - Three stars made of brass on the centre of each shoulder strap evenly placed length wise with metal badge bearing the letters 'KTS' at the base:

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Provided that lady Regional Transport Officers and Joint Regional Transport Officers shall wear Khaki saree with Khaki blouse with appropriate badges of rank.

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Motor Vehicles Inspectors

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(i) Peak cap Khaki Gabardine, Cap, Badge with the letters "KMV and Kerala Emblem and embossed buttons with the letters "KMV" in yellow or gilt;

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(ii) Jacket and trousers Khaki Gabardine or terrycotton with embossed buttons in yellow metal on pockets and front of the jacket. The jacket to be tucked inside the trousers

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(iii) Sam Browne belt;

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(iv) Whistle of police pattern attached to yellow cord and carried in the left breast pocket;

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(v) Brown shoes;

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(vi) Khaki, nylon or '[cotton socks];

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(vii) Badges of rank Three five pointed stars made of brass on the centre of each shoulder strap, evenly placed length wise with the metal badge bearing the letters 'KMV at the base and ribbon yellow and red horizontally divided on each shoulder strap worn between metal badge and stars.

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Assistant Motor Vehicles Inspectors

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i) Peak cap' [Khaki Gabardine], Cap, Badge with the letters 'KMV' and Kerala Emblem and embossed buttons with the letters 'KMV' in yellow or gilt;

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(ii) Jacket and trousers Khaki, Gabardine or terricotton with embossed buttons in yellow metal on pockets and front of the jacket. The jacket to be tucked inside the trousers;

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(iii) Sam Browne belt;

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(iv) Whistle of Police pattern attached to yellow cord and carried in the left breast pocket;

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(v) Brown shoes;

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(vi) Khaki nylon or cotton socks;

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(vii) Badges of rank Two five pointed stars made of brass on the centre of each shoulder strap evenly placed lengthwise with the metal badge bearing the letters "KMV' at the base and ribbon yellow and red horizontally divided on each shoulder strap worn between metal badge and stars.]

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It is further ordered that the first respondent/ Secretary to the Government, Transport Department, Government of Kerala and the third respondent/Transport Commissioner, Transport Commissionerate, Thiruvananthapuram, shall ensure strict implementation of Rule 406 of the Kerala Motor Vehicles Rule, 1989 and the directions contained in letter No.C5/79/2021/TC dated 19.7.2021. If there is any violation of Rule 406 of the Kerala Motor Vehicles Rules and instructions dated 19.7.2021, Secretary to the Government, Transport Department, Government of Kerala/respondent No.1 and Transport Commissioner/respondent No.3 are directed to take appropriate action, under the Rules.”

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Pursuant to the direction of this court, a detailed statement has been filed by Mr.V.Tekchand, Senior Government Pleader on behalf of the first respondent/State of Kerala on 6^th November 2021 wherein, it is stated that the Government have

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decided to revisit Rule 406 of the Rules of 1989. Relevant portions of the statement reads thus:

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“As per Annexure R1(a), only the Motor Vehicles Inspectors and Assistant Motor Vehicle Inspectors were prescribed uniform while on duty. In the aforesaid Rule, it is clearly prescribed that the cap badge of Motor Vehicle Inspectors carry Ashoka Stamba Emblem.

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4 It is submitted that thereupon, the Government as per notification issued as per GO(P) No. 99/95/PW&T dated 18.07.1995 and published as SRO No. 940/95 in the Kerala Gazette extraordinary No. 730 dated 22.07.1995 amended Rule 406 of the Rules of 1989 prescribing uniform for Joint Regional Transport Officers and Regional Transport Officers also along with the Motor Vehicle Inspectors and Assistant Motor Vehicle Inspectors.

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It is submitted that 3^rd respondent as per Exhibit P7 had issued strict directions to all officers of the Motor Vehicles to wear uniform as prescribed in Rule 406 of the Rules of the 1989. Pursuant to the Order of this Hon'ble Court dated 1^st September 2021 wherein this Hon'ble Court was pleased to order that this respondent as well as the 3^rd respondent shall ensure strict implementation of Rule 406 of the Rules of 1989. letter dated 10.09.2021 was issued by the 3^rd respondent directing to strictly wear the uniform prescribed by the rules.

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It is submitted that based on a proposal from the Transport Commissioner, the 3^rd respondent, it has been decided to examine the scope of amending Rule 406 of the Rules of 1989 in consultation with the Law Department. It was noted that clause xiv to Schedule Ill of State Emblem of India (Regulation of Use Rules) 2007 formulated in exercise of the powers conferred by the State Emblem of India (Prohibition of Improper Use) Act, 2005 permits gazetted officers of the uniform service (other than armed forces) of the union and such of the State Governments and Union territory Administrations that adopted the Emblem or have incorporated the emblem in the emblem of that state or Union territory. Further it is noted that in several states in exercise of the power conferred under Section 213(3) of the Motor Vehicles Act, 1988 based on rules formulated, permission

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to use Ashoka Stamba Emblem either in the shoulder strap or in the Beret cap have been accorded. Following are the States which incorporated in its motor vehicle rules permission to use Ashoka Stamba in uniforms of the officers of the Motor Vehicles Department.

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(a) Andhrapradesh Motor Vehicles Rules, 1989

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Rule 481 of the Andhrapradesh Motor Vehicles Rules, 1989 provides for use of the Ashoka Stamba Emblem on the shoulder strap in the uniform of Regional Transport Officer and Deputy Transport Commissioner.

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(b) Chattisgarh Motor Vehicles Rules, 1994

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Rule 248 of the Chattisgarh Motor Vehicles Rule, 1994 provides uniform for the officers of that state, in which Beret cap with badge is provided in the uniform to be worn by the Transport Sub-inspectors and Assistant Transport Sub-Inspectors. The Ashoka Stamba Emblem on the shoulder strap was provided to the uniform of the cap badge, star and shoulder badge are provided under schedule 5 of the said rules, which is the National Emblem of India.

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Uniform of officers of the Delhi Transport Department was provided under Rule 124 of the Delhi Motor Vehicles Rules, 1993. Clause (a) of rule 124 of the said Rules provides that the uniform of the Enforcement Officer of the Transport Department shall be similar to that of the Assistant Commissioner of Police.

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(d) Maharashtra Motor Vehicles Rules, 1989

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Uniform of officers of the Maharashtra Transport Department is provided under Rule 288 of the Maharashtra Motor Vehicles Rules, 1989. Beret cap in navy blue colour and National Emblem in white metal in shoulder badge is prescribed under the said rules.

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Under the circumstances, the Government as stated hereinbefore has decided to revisit Rule 406 of the Rules of 1989.”

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Placing on record the abovesaid averments contained in the statement filed on behalf of the first respondent dated 6^th November 2021 and the submission of the learned Senior Government Pleader Mr.V.Tekchand, there shall be a direction to the respondents to ensure strict implementation of Rule 406 of the Kerala Motor Vehicles Rule, 1989 and the directions contained in letter No.C5/79/2021/TC dated 19.7.2021. We make it clear that if there is any violation of Rule 406 of the Kerala Motor Vehicles Rules and instructions dated 19.7.2021, Secretary to the Government, Transport Department, respondents are bound to take appropriate remedial action in accordance with law.

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With the above directions, writ petition is disposed of.

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sd/- S.MANIKUMAR CHIEF JUSTICE

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sd/-

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SHAJI P. CHALY JUDGE

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jes

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APPENDIX

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PETITIONER'S EXHIBITS

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Exhibit P1	A TRUE EXTRACT OF RULE 406 OF THE KERALA MOTOR VEHICLE RULES 1989.
Exhibit P2	PHOTOGRAPHS OF OFFICERS OF THE MVD SPORTING BLUE BERET CAPS AND BADGES IMPOSED WITH THE ASHOKA EMBLEM.
Exhibit P3	TRUE COPY OF THE COMMUNICATION DATED 05/09/2019 FROM THE OFFICE OF THE THIRD RESPONDENT UNDER THE PROVISIONS OF THE RTI, ACT, 2005 WITH ITS ENGLISH TRANSLATION.
Exhibit P4	TRUE COPY OF THE REPRESENTATION DATED 24/09/2019 OF KERALA TAURUS TIPPER ASSOCIATION ADDRESSED TO THE SECOND RESPONDENT WITH ITS ENGLISH TRANSLATION
Exhibit P5	TRUE COPY OF THE LETTER DATED 28/04/2020 OF THE SECOND RESPONDENT ADDRESSED TO THE ADDITIONAL CHIEF SECRETARY, HOME DEPARTMENT, GOVERNMENT OF KERALA WITH ITS ENGLISH TRASLATION.
Exhibit P6	TRUE COPY OF THE COMMUNICATION DATED 20/01/2021 OF THE SECRETARY, TRANSPORT DEPARTMENT, GOVERNMENT OF KERALA, ADDRESSED TO THE THIRD RESPONDENT WITH ITS ENGLISH TRANSLATION.
Exhibit P7	TRUE COPY OF THE COMMUNICATION OF THE THIRD RESPONDENT DATED 19/07/2021 ADDRESSED TO THE OFFICERS OF THE MVD WITH ITS ENGLISH TRANSLATION.
Exhibit P8	TRUE COPY OF THE NEWS REPORT IN THE MATHRUBHUMI DAILY DATED 25/07/2021 WITH ITS ENGLISH TRANSLATION.

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RESPONDENTS EXHIBITS:

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ANNEXURE R1(a) A TRUE COPY OF THE SRO NO.1286/89.

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// TRUE COPY //

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P.S. TO JUDGE

P.a.Janish v. State of Kerala

Case brief

What is this about?

What did the court decide?

P.a.Janish v. State of Kerala

Case brief

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