Dismissed

All Kerala Motor Driving School Instructors & Workers Association v. Union of India

Kerala HC9 Jan 2023WP(C)/236/2023

Case brief

AI extract

What is this about?

The High Court at Ernakulam dismissed a writ petition challenging an amendment to the Central Motor Vehicle Rules that exempts holders of Form 5B certificates from the driving test. The single-judge Bench found no force or merit in the challenge.

What did the court decide?

The writ petition challenging the amendment to the Central Motor Vehicle Rules was dismissed.

All Kerala Motor Driving School Instructors & Workers… — Service and Employment | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL

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MONDAY, THE 9TH DAY OF JANUARY 2023 / 19TH POUSHA, 1944
WP(C) NO. 236 OF 2023

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PETITIONERS:

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1ALL KERALA MOTOR DRIVING SCHOOL INSTRUCTORS &
WORKERS ASSOCIATION, REGISTRATION NO. 1289/1998
SAI COMPLEX, KP 1303, POONKULAM,
VELLAYANI.P.O., TRIVANDRUM, PIN – 695522
REPRESENTED BY ITS STATE SECRETARY, MANOHARAN S

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2MANOHARAN S.,
PROPRIETOR OF THUNDIL MOTOR DRIVING SCHOOL,
KOTTARAKKARA,
RESIDING AT THUNDIL VEEDU, KOTTATHALA.P.O.,
KOTTARAKKARA, KOLLAM, PIN – 691566

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BY ADVS.LAKSHMI RAMADAS
M.R.SABU
APARNA RAJAN
SREEDHAR RAVINDRAN

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RESPONDENTS:

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1UNION OF INDIA,
REPRESENTED BY ITS SECRETARY,
MINISTRY OF ROAD TRANSPORT AND HIGHWAYS,
TRANSPORT BHAVAN, PARLIAMENT STREET,
NEW DELHI - PIN – 110001

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2STATE OF KERALA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
TRANSPORT DEPARTMENT, GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM, PIN – 695014

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3 THE TRANSPORT COMMISSIONER, TRANSPORT COMMISSIONARATE, TRANS TOWERS, VAZHUTHAKAD, THIRUVANANTHAPURAM, PIN – 695014

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BY ADV.
SRI.S.MANU, DSGI
SMT.RASHMI K.M., SR. GP.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 236 OF 2023 -2-

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JUDGMENT

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Petitioner No.1, the Association of All Kerala Motor Driving School Instructors and Workers and petitioner No.2, the proprietor of Thundil Motor Driving School, through instant writ petition have assailed the vires of the amendment in proviso to Rule 15(2) introduced with effect from 07.06.2021 in the Central Motor Vehicle Rules on various grounds.

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Petitioner No.1 is a Society registered in accordance with the provisions of the Travancore Cochin Literary, Scientific Charitable Societies Registration Act, 1955. The said membership is confined to the persons conducting licensed Motor Driving Schools as well as instructors of driving. They have been granted licence to impart the training as per the provisions of Section 12 of the Motor Vehicles Act. Petitioner No.2 is the State Secretary of Petitioner No.1.

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There was no grievance for the petitioners before causing amendment to the Rule 15 of the Central

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Motor Vehicles Rules, 1989 which was in vogue till 07.06.2021 as no person shall appear for the test of competence to drive until and unless he is in possession of the learner’s licence for a period of thirty(30) days and the test of competence to drive referred to in sub-section (3) of Section 9 of the Motor Vehicles Act, 1988 s hall be conducted by the authority or such person authorised by the State Government in a vehicle of the type of which application relates. But after the amendment the following proviso has been added:

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“provided that the holder of a certificate in Form 5B shall be exempted from the requirement of driving test.”

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It is contended that the amendment to the

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rules by insertion of the aforesaid proviso has the potential of permitting persons to obtain driving licence without subjecting to the driving test. Petitioners are the licensed instructors who run the schools and institutions for imparting the instructions in driving schools. They are vitally interested in the strict implementation of the

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WP(C) NO. 236 OF 2023 -4-

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provisions of the Motor Vehicles Act., so that the provisions of the Act are being utilised for the safety of the public. The proviso is totally ultra vires to the rules making power. Section 27 of the Motor Vehicles Act does not enable the Government of India to frame the Rule in the nature of proviso to Rule 15(2) of the Central Motor Vehicles Rules. The notification dated 07.06.2021 is in excess of the rule making power of the Government. Permission to grant Driving Licence without subjecting to the test of competence in driving would result into serious danger to public life, pedestrian etc. Section 9 (3) of the Motor Vehicles Act mandates subjecting of an applicant for holding a driving licence, to undergo a rigorous test of competence.

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I have heard learned counsel for the petitioners and appraised the paper books and of the view that there is no force or merit.

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Section 9 of the Motor Vehicles Act , 1988 deals with the provisions for granting of the driving licences.

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WP(C) NO. 236 OF 2023 -5-

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The same reads as under:

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“ 9. Grant of driving licence.—

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(1) Any person who is not for the time being disqualified for holding or obtaining a driving licence may apply to [any licensing authority in the State]—

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(i) in which he ordinarily resides or carries on business, or

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(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.

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(2) Every application under sub-section (1) shall be in such form and shall be accompanied by such fee and such documents as may be prescribed by the Central Government.

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[(3) If the applicant passes such test as may be prescribed by the Central Government, he shall be issued the driving licence:

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Provided that no such test shall be necessary where the applicant produces proof to show that—

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(a) (i) the applicant has previously held a driving licence to drive such class of vehicle and that the period between the date of expiry of that licence and the date of the application does

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WP(C) NO. 236 OF 2023 -6-

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not exceed five years, or

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(ii) the applicant holds or has previously held a driving licence to drive such class of vehicle issued under section 18, or

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(iii) the applicant holds a driving licence to drive such class of vehicle issued by a competent authority of any country outside India, subject to the condition that the applicant complies with the provisions of sub-section (3) of section 8,

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(b) the applicant is not suffering from any disability which is likely to cause the driving by him to be a source of danger to the public; and the licensing authority may, for that purpose, require the applicant to produce a medical certificate in the same form and in the same manner as is referred to in sub-section (3) of section 8:

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[Provided further that a driving licence for driving an adapted vehicle may be issued to the applicant, if the licensing authority is satisfied that he is fit to drive such motor vehicle.]]

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(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 a driving certificate issued by a school or establishment referred to in section 12.

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WP(C) NO. 236 OF 2023

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[(5) Where the applicant does not pass the test, he may be permitted to re-appear for the test after a period of seven days:

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Provided that where the applicant does not pass the test even after three appearances, he shall not be qualified to re-appear for such test before the expiry of a period of sixty days from the date of last such test [and such applicant shall be required to complete a remedial driver training course from any school or establishment under Section 12].]

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(6) The test of competence to drive shall be carried out in a vehicle of the type to which the application refers:

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Provided that a person who 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.

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(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:

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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

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WP(C) NO. 236 OF 2023 -8-

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licensing authority is satisfied that there is good and sufficient reason for the applicant’s inability to apply to the appropriate licensing authority:

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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.

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(8) If the licensing authority is satisfied, after giving the applicant an opportunity of being heard, that he—

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(a) is a habitual criminal or a habitual drunkard; or

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(b) is a habitual addict to any narcotic drug or psychotropic substance within the meaning of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or

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it may, for reasons to be recorded in writing, make an order refusing to issue a driving licence to such person and any person aggrieved by an order made by a licensing authority under this sub-section may, within thirty days of the receipt of the order, appeal to the prescribed authority.

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(9) Any driving licence for driving a motor cycle

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WP(C) NO. 236 OF 2023 -9-

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in force immediately before the commencement of this Act shall, after such commencement, be deemed to be effective for driving a motor cycle with or without gear.

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[(10) Notwithstanding anything contained in this section, the driving licence to drive e-cart or e-rickshaw shall be issued in such manner and subject to such conditions, as may be prescribed.]”

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As per the proviso to Section 9(3), it is clear that no test shall be conducted in respect of the person who produces the proof that he had previously held the driving licence to drive such class of vehicle and that the period between the date of expiry of that licence and the date of the application do not exceed five(5) years or applicant holds or had previously held driving licence to drive such class of vehicles issued under Section 18, class of vehicles issued by a competent authority of any country outside the India or not suffering from any disability likely to cause the driving by him to be a source of danger to the public. On satisfaction of the requirement the licensing authority shall issue the driving licence.

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Rule 15 prior to amendment of the Central

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Motor Vehicle Rules reads thus:

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“ 15. Driving test.-

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(1) No person shall appear for the test of competence to drive unless he has held a learner’s licence for a period of at least [thirty days].

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(2) The test of competence to drive referred to in sub-section (3) of section 9 shall be conducted by the licensing authority or such other person as may be authorised in this behalf by the State Government in a vehicle of the type to which the application relates.

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And after the amendment following proviso has been inserted.

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(3) The applicant shall satisfy the person conducting the test that he is able to—

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(a) adjust rear-view mirror;

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(b) take suitable precautions before starting the engine;

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(c) move away safely and smoothly straight ahead at an angle, while at the same time engaging all gears until the top gear is reached;

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(d) to change to the lower gears quickly from the top gear when the traffic conditions warrant

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WP(C) NO. 236 OF 2023

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such change;

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(e) change quickly to lower gears when driving downhill;

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(f) stop and re-start the vehicle on a steep upward incline making proper use of the handbrake or of the throttle and the foot-brake without any rolling back, turn right and left corners correctly and make proper use of the rear-view mirror before signalling;

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(g) overtake, allow to be overtaken, meet or cover the path of other vehicles safely and take an appropriate course of the road with proper caution giving appropriate signals;

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(h) give appropriate traffic signals at the appropriate time, in clear and unmistakable manner by hand or by electrical indicators fitted to the vehicle;

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(i) change the lanes with proper signals and with due care;

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(j) stop the vehicle in an emergency or otherwise, and in the latter case, bring it to rest at an appropriate course on the road safely, giving appropriate signals;

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(k) in the case of vehicle having a reverse gear, driving the vehicle backwards, reverse it into a limited opening either to the right or left under control and with reasonable accuracy;

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WP(C) NO. 236 OF 2023

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(l) cause the vehicle to face in the opposite direction by means of forward and reverse gears;

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(m) take correct and prompt action on the signals given by traffic signs, traffic lights, traffic controllers, policemen and take appropriate action on signs given by other road users;

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(n) act correctly at pedestrian crossings, which is not regulated by traffic lights or traffic police, by giving preference to persons crossing the roads;

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(o) keep well to the left in normal driving;

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(p) regulate speed to suit varying road and traffic conditions;

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(q) demonstrate general control of the vehicle by confident steering and smooth gear changing and braking as and when necessary;

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(r) make proper use of the rear-view mirror before signalling, beginning manoeuvering, moving away, altering the course to overtake, turning right or stopping;

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(s) use proper side when driving straight, turning right, turning left and at junction of the road;

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(t) make proper use of accelerator, clutch, gears, brakes (hand and foot) steering and horn;

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WP(C) NO. 236 OF 2023 -13-

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(u) anticipate the actions of pedestrians, drivers of other vehicles and cyclists;

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(v) take precautions at cross roads and on road junctions with regard to:—

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(i) adjustment of speed on approach,

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(ii) proper use of rear-view mirror,

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(iii) correct positioning of the vehicle before and after turning to the right or left,

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(iv) avoidance of cutting right hand corners,

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(v) looking right, left and right again before crossing or emerging;

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(w) concentrate in driving without his attention being distracted and to demonstrate the presence of mind;

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(x) show courtesy and consideration for the safety and convenience of other road users, such as pedestrians, drivers of other motor vehicles or cyclists.”

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Form 5B has been provided under the provisions of Rule 31E:

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“ 31E.General conditions to be observed by the holder of an accreditation.-

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The holder of an accreditation granted under Rule 31B shall,-

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(i) maintain an electronic register in Form 14 and an alphabetical list of the names of the students admitted during the year;

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(ii) conduct the training course according to the syllabus specified in Rule 31J;

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(iii) issue to every student who has completed the course a certificate in Form 5B;

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(iv) submit to the designated authority which granted the accreditation such information as may be called for by it from time to time for the purpose of this Chapter.

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(v) not shift the center from the premises mentioned in the accreditation without the prior approval in writing of the designated authority, which granted the accreditation;

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(vi) exhibit in a conspicuous manner on all the motor vehicles used for imparting instructions the name, full address of the center and the telephone number, in bold letters;

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(vii) maintain a record separately for each trainee showing the number of driving hours spent every day, in Form 15;

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(viii) display at a prominent place in its office the following:-

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a. the accreditation in original issued to the center by the designated authority, and

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b. the names, addresses and mobile numbers of

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WP(C) NO. 236 OF 2023 -15-

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instructors employed by the center;

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(ix) not act in a manner calculated to mislead any person making an application to receive instructions from the center as to his ability to procure an accreditation for such person other than in accordance with these rules or to connive with any person in acts of commission or omission with a view to circumventing the provisions of this Chapter.”

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Form 5B is Ext.P1. Rule 31E was introduced on 07.06.2021 with effect from 01.07.2021. This is in tandem with the provisions of Section 9 of the Motor Vehicles Act as if a person had already held a driving licence, a company having a power to issue accreditation can issue a certificate in Form 5B t hat he or she had already undergone a test and held a driving licence, and therefore would not be required to undergo a further test. This, in my view, would not take away the right of livelihood of the petitioners as tried to be projected as it is not disclosed to the Court whether the petitioners are having an authority to issue such certificate in Form 5B. This Court, in the absence of any assistance during the course of argument or pleadings,

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presumed that the petitioners may be also having such powers.

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No ground for interference is made out. Writ petition stands dismissed.

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Sd/-

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AMIT RAWAL JUDGE

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vv

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WP(C) NO. 236 OF 2023 -17-

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APPENDIX OF WP(C) 236/2023

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PETITIONER EXHIBITS

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Exhibit-P1TRUE COPY OF FORM 5 B DRIVING
CERTIFICATE ISSUED BY ACCREDITED
DRIVING TRAINING CENTER

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Exhibit-P2TRUE COPY OF GOVERNMENT ORDER
G.S.R.NO.394(E) DATED 07.06.2021
INSERTING A PROVISO TO RULE 15 (2)

All Kerala Motor Driving School Instructors & Workers Association v. Union of India

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All Kerala Motor Driving School Instructors & Workers Association v. Union of India

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