VIJAY MEMORIAL SENIOR SECONDARY SCHOOL vs THE STATE OF HP AND ANOTHER
- Court
- High Court of Himachal Pradesh
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High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 11377 of 2025 a/w CWP Nos. 20070, 20934,
20936 & 20937 of 2025, CWP Nos. 1680, 1697, 1819,
2704, 2950, 2982, 5716, 5998, 6015, 7769, 11604,
11930, 12225, 16349, 16446 and 17386 of 2026
Reserved on: 27.10.2026
Date of Decision: 31.10.2026
Uploaded on: 31.10.2026
_________________________________________________________
1. CWP No.11377 of 2025
Shivalik Institute of Nursing through its President
Shri Khushi Ram Thakur …..Petitioner
Vs.
State of Himachal Pradesh and another …..Respondents
2. CWP No. 20070 of 2025
Rising Field Public High School, Banoi …..Petitioner
Vs.
State of Himachal Pradesh and another …..Respondents
3. CWP No. 20934 of 2025
Shiva Educational Society …..Petitioner
Vs.
State of Himachal Pradesh and another …..Respondents
4. CWP No. 20936 of 2025
Shiva Educational Society …..Petitioner
Vs.
State of Himachal Pradesh and another …..Respondents
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5. CWP No. 20937 of 2025
Shiva Educational Society …..Petitioner
Vs.
State of Himachal Pradesh and another …..Respondents
6. CWP No. 1680 of 2026
Vijay Memorial Senior Secondary School …..Petitioner
Vs.
State of Himachal Pradesh and another …..Respondents
7. CWP No. 1697 of 2026
Sh. Dharampal Soni Memorial Dp.A.V. Convent Senior Secondary School
…..Petitioner
Vs.
State of Himachal Pradesh and another …..Respondents
8. CWP No. 1819 of 2026
Katiani Education Society …..Petitioner
Vs.
State of Himachal Pradesh and another …..Respondents
9. CWP No. 2704 of 2026
Swami Vivekanand Educational Society …..Petitioner
Vs.
State of Himachal Pradesh and another …..Respondents
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10. CWP No. 2950 of 2026
Noorpur Public School …..Petitioner
Vs.
State of Himachal Pradesh and another …..Respondents
11. CWP No. 2982 of 2026
Shashank Shiksha Society …..Petitioner
Vs.
State of Himachal Pradesh and another …..Respondents
12. CWP No. 5716 of 2026
Sarav Hitkari Vidya Niketan …..Petitioner
Vs.
State of Himachal Pradesh and others …..Respondents
13. CWP No. 5998 of 2026
Swami Shri Rajeshwara Nand Bharti Nursing Training Institute
…..Petitioner
Vs.
State of Himachal Pradesh and others …..Respondents
14. CWP No. 6015 of 2026
Shishu Model Public School …..Petitioner
Vs.
State of Himachal Pradesh and another …..Respondents
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High Court of H.P.
15. CWP No.7769 of 2026
Adarsh Bhartiya Public School Society …..Petitioner
Vs.
State of Himachal Pradesh and another …..Respondents
16. CWP No. 11604 of 2026
Alpine Public School Education Society …..Petitioner
Vs.
State of Himachal Pradesh and another …..Respondents
17. CWP No. 11930 of 2026
Come Mensa Educational Society (Regd.) …..Petitioner
Vs.
State of Himachal Pradesh and another …..Respondents
18. CWP No. 12225 of 2026
Galaxy International Education & Research Foundation …..Petitioner.
Vs.
State of Himachal Pradesh and another …..Respondents
19. CWP No. 16349 of 2026
Rose Public School …..Petitioner
Vs.
State of Himachal Pradesh and another …..Respondents
20. CWP No. 16446 of 2026
Dhan Gurudev Educational Trust …..Petitioner.
Vs.
State of Himachal Pradesh and another …..Respondents
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21. CWP No. 17386 of 2026
Arean Public High School …..Petitioner.
Vs.
State of Himachal Pradesh and others …..Respondents
Coram:
The Hon’ble Mr. Justice Ajay Mohan Goel, Judge
The Hon’ble Mr. Justice Yogesh Jaswal, Judge
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Whether approved for reporting? Yes.
For the petitioner(s): M/s Nitin Thakur, Mohit Thakur, K.B. Khajuria,
Vijender Katoch, Gaurav Thakur (vice Dr.
Rajesh Kumar Parmar), Ajay Sharma, Shubham
Singh Guleria and Vishal Thakur, Advocates, for
the petitioners, in the respective petitions.
For the respondents: Mr. Anup Rattan, Advocate General, with M/s
Ramakant Sharma & Sushant Keprate,
Additional Advocates General and Mr. Rajat
Chauhan, Assistant Advocate General.
Ajay Mohan Goel, Judge :
As common issues of facts and law are involved in
these petitions and as all the matters were heard together, therefore, they
are being disposed of vide a common judgment.
2. The petitioners before this Court are Schools and
Educational Institutions, who are aggrieved by Cause (xi) of Rule 73-A(1)A,
Whether the reporters of the local papers may be allowed to see the Judgment?
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which was inserted in the Himachal Pradesh Motor Vehicles Rules, 1999
th
(hereinafter referred to as ‘the 1999 Rules’), vide Notification dated 12
October, 2018.
3. We are quoting the reliefs prayed by the petitioner in
CWP No. 11377 of 2025, which, on the request of the parties, was treated
as the lead case, for the purpose of pleadings etc. The reliefs prayed for
by the petitioner in CWP No. 11377 of 2025 and the relief(s) prayed for in
the other writ petitions are almost same and similar.
“ CWP No. 11377 of 2025
“I. Issue a mandamus directing the
respondents not to apply Rule 73A(1)A (xi) of the
Himachal Pradesh Motor Vehicles Rules 1999 as
amended in the year 2018 to the bus of the
petitioner; or/and
II. Issue a writ of certiorari quashing and
setting aside Rule 73A(1)A(xi) 2 of the Himachal
Pradesh Motor Vehicles Rules 1999 as amended in
the year 2018; and/or
III. Issue a mandamus directing the
respondents to produce record s to running of buses
in Government Educational/Institutes is concerned;
or/and
IV. Any further or other order that this
Hon’ble Court deems fit and appropriate may kindly
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be passed in the facts and circumstances narrated
hereinabove in the interest of justice.”
4. The petitioners are aggrieved by Cause (xi) of Rule
73-A(1)A of the 1999 Rules, in terms whereof, vehicles providing
transportation facilities to “Schools, will not be more than 15 years old”.
th
Vide notification dated 12 of October, 2018, Rule 73-A was inserted in the
Himachal Pradesh Motor Vehicles Rules, 1999 and this Rule provides for
conditions that may be inscribed in the permit relating to buses/vehicles
owned or attached with School/Educational Institutions.
5. The grievance of the petitioners is that as the impugned
Clause prohibits the use of a vehicle for transportation facilities to Schools,
after it is more than 15 years old, said Clause is bad in law, as the condition
of 15 years has been imposed without any rationale, ignoring the factum
of the vehicle in question actually being worthy of use for transportation or
not, and further ignoring the economic viability of Institutions like the
petitioners, who are not in a position to replace the vehicles being used for
transportation facilities more than 15 years old. Petitioners have also
challenged the legislative competence of the State to carry out the said
amendment in the Rule.
6. As per the petitioners, they are having private service
vehicle permits for the vehicles run by them and the said vehicles were
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only being used to pick up and drop the students and staff, and the distance
being covered by the vehicles was very very minimal per day.
7. According to the petitioners, by virtue of the impugned
amendment, the petitioners were being denied the right to use their
vehicles for the purpose of the transportation of students and staff after 15
years as from the date of the purchase of the vehicle, despite the fact that
the life of a vehicle, kept in a good condition, is more than 20 to 25 years.
It is also the case of the petitioners that the State Government cannot
create a class between those vehicles which are being plied by the State
or private operators for transporting passengers and those which are being
plied by the petitioners, because it is not as if students do not travel to
Schools and Educational Institutions in Government vehicles or other
private vehicles or for that matter in vehicles like cars, jeeps etc., which are
more than 15 years old.
8. It is also the contention of some of the petitioners that
because they are not, per se , "Schools", but are other educational
institutions like Nursing Institutions or Pharmacy Institutions, therefore,
they are not covered under the ambit of Clause (xi) of the amended Rule,
yet the Clause is being wrongly applied to them, denying them the renewal
of the permit under the provisions of the Motor Vehicles Act, on the ground
that their vehicle(s) was/were more than 15 years old.
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9. It is also the case of the petitioners that their vehicles
are in a road-worthy condition and plying them is not risky for the students
at all, and all these aspects of the matter have been ignored by the
respondents while arbitrarily including clause (xi) in Rule 73-A, which
clause has no rationale and is just a colorable exercise of power.
10. Arguments were addressed by learned counsel for the
petitioners in this regard and, in brief, we shall be referring to the
arguments addressed by the learned counsel appearing for the petitioners
before us in the present cases.
11. Mr. Nitin Thakur, learned counsel appearing for some
of the petitioners submitted that as Nursing Institutions were not Schools
and the word used in Clause (xi) was "Schools", therefore, denial of the
renewal of permit to Nursing Institutions or for that matter, other Institutions
like Pharmacy Institutions, which were not “Schools” on the pretext of
Clause (xi) was bad in law. He argued that even otherwise, Clause (xi) of
Rule 73-A of the 1999 Rules was unconstitutional, as the same was framed
by the State beyond its Rule-making power, as in terms of Section 59 of
the Motor Vehicles Act, it was only the Union of India, which can fix the life
of a vehicle. He further submitted that the age of a vehicle is not
demonstrative of the condition of the vehicle and whether or not a vehicle
is roadworthy, should be the bench mark for permitting a vehicle to be used
to transport students. He submitted that there are Officers in the Transport
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Department, whose duty it is to certify whether a particular vehicle is
roadworthy or not and, therefore also, the imposition of the condition that
a vehicle cannot be used for transporting students, if it is more than 15
years old, without ascertaining its roadworthiness, is completely arbitrary
and hit by Article 14 of the Constitution of India.
12. Mr. Vijender Katoch, learned counsel appearing for
some of the petitioners, in addition, argued that the buses of the petitioner-
Institutions are not normal transport buses/vehicles and they are used for
very few kilometers every day and this extremely important aspect of the
matter has been ignored by the Department while incorporating the
impugned Clause in the Rule. He argued that the business difficulties of
petitioners have been totally ignored by the State while adding Clause (xi)
in Rule 73-A in the 1999 Rules and State has also not appreciated that
ultimately the burden of purchasing new vehicles shall be shifted to
students only.
13. Mr. Shubham Singh Guleria and Mr. Vishal Thakur,
learned counsel appearing for some of the petitioners in the connected
petitions, in addition, submitted that Rule 73-A, as also Clause (xi)
thereof, were ultra vires to the Constitution of India, as the said Rule
was framed by the State beyond its legislative competence. Learned
counsel took the Court through the provisions of Section 59 and Section
96 of the Motor Vehicles Act and submitted that it was not within the
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domain of the State Government to have framed the Rule in question,
because the provisions of the Motor Vehicles Act do not confer any
express power upon the State Government to frame a Rule fixing the
maximum age of a vehicle to be used for transporting children to
Schools etc. Learned counsel relied upon the judgment of the Hon'ble
Supreme Court in Naresh Chandra Agrawal Vs. Institute of
Chartered Accountants of India and others, 2024 SCC (13) 241 in
support of their contention. Learned counsel also argued that after 15
years, the petitioners would not be in a position to put their vehicle to
any use and this important aspect of the matter has also been ignored
by the State.
14. Mr. Shubham Singh Guleria, learned counsel further
argued that in terms of Section 59 of the Motor Vehicles Act, the Central
Government may, having regard to the public safety, convenience and
objects of the Act, by notification in the Official Gazette, specify the life
of a motor vehicle reckoned from the date of its manufacture, after the
expiry of which, the motor vehicle shall not be deemed to comply with
the requirements of the Act and the Rules made thereunder, provided
the Central Government may specify different ages for different classes
or different types of motor vehicles. He submitted that the Legislature
itself has dealt specifically with the legal consequences flowing from the
age of a motor vehicle and has vested the corresponding power in the
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Central Government and consequently, the general and residuary Rule-
making power available to the State Government under Section
96(2)(xxxiii) of Chapter-V of the Motor Vehicles Act cannot be construed
as an unrestricted power to create an independent and absolute age
based disability having substantially the same effect, particularly when
such disability operates notwithstanding the vehicle’s continuing
compliance with the statutory regime of fitness and permits. Learned
counsel further argued that in the present case, the impugned Rule
does not merely prescribe a safety or operational requirement, but
creates a substantive disability by declaring a vehicle incapable of being
used as an Educational Institution Bus/Vehicle, providing transportation
facilities for School, solely upon completion of fifteen years,
notwithstanding the existence of the Statutory mechanisms governing
its fitness and permit. He further argued that the impugned Rule creates
an anomalous situation vis-à-vis the Statutory provisions of the Motor
Vehicles Act and, therefore also, the impugned Rules was bad in law.
15. Other learned counsel for the petitioners adopted the
arguments addressed by the abovementioned learned counsel for the
petitioners.
16. On the other hand, the learned Advocate General
submitted that the writ petitions were completely misconceived and it
was incorrect on the part of the petitioners to urge that the Rule framed
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by the State by amendment was beyond its legislative competence. By
referring to Section 96 of the Motor Vehicles Act, learned Advocate
General submitted that the State was having power to frame and amend
the Rules and, therefore, the Rule under challenge was not beyond the
legislative competence of the State Government. Learned Advocate
General argued that the age of a vehicle to be used for transporting
students to Schools and Educational Institutions has been fixed, taking
into consideration the fact that the State of Himachal Pradesh is a hilly
area primarily and 15 years is a good period for a vehicle to be permitted
to be used for transporting children to the School(s ). Learned Advocate
General submitted that Clause (xi) of Rule 73-A of the 1999 Rules only
prohibited the use of a vehicle more than 15 years old for the purpose
of transportation of students to Schools. It nowhere prohibited the use
of a vehicle for other purposes, for which such a vehicle can be used in
terms of the provisions of the Motor Vehicles Act. Learned Advocate
General argued that the business concerns of the petitioners were not
superior to the paramount safety of the students and the 15 years’
period, as is mentioned in Clause (xi), is to ensure that fit vehicles are
used to ferry children to the Schools and Educational Institutions.
Learned Advocate General further submitted that as Rule 73-A deals
with Schools and Educational Institutions, it was incorrect on the part of
the petitioners to state that Clause (xi) of Rule 73-A was not applicable
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to Educational Institutions. He submitted that as the intent was to permit
use of roadworthy vehicles for the purpose of transporting children, the
Clause in question cannot be read myopically by ignoring that Rule 73-
A deals with Schools and Educational Institutions and the word "School"
in Clause (xi) has to be read as inclusive of all Educational Institutions,
be it Nursing Institution or Pharmacy, because at the end of the day, all
these Institutions are Schools imparting education of one or the other
kind. Learned Advocate General further submitted that simply because
the students were travelling in other transport vehicles or private stage
carriage vehicles or in the vehicles of their parents which were more
than 15 years old, same did not bar the State from framing Rule 73-A,
because the minimum that the State can do to safeguard the interests
of the students, is to fix the period of use of a vehicle which is an
identified vehicle for the purpose of transporting children to Schools and
Educational Institutions. Learned Advocate General also argued that
the provisions of Section 59 and Section 96 of the Motor Vehicles Act
were being misread and misinterpreted by the petitioners to the effect
that the State was not having the legislative competence to frame the
Rule in issue.
17. Learned Advocate General submitted that insertion of
Rule 73-A in the 1999 Rules was necessitated on account of the tragic
School Bus accident that occurred on 09.04.2018 near Nurpur, District
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Kangra, H.P., in which, 27 persons including 23 School -children lost their
lives. He submitted that in order to strengthen the regulatory framework
governing School-transport safety, the State Government constituted a
High Level Committee under the Chairmanship of the Chief Secretary,
Government of Himachal Pradesh, by way of issuance of a Notification
dated 10.04.2018 for examining and recommending measures relating to
transportation safety of School-children. The matter underwent an
extensive consultative and legislative process. Draft school transport
safety guidelines were uploaded on the official website of the Government
and concerned Department on 17.04.2018 and suggestions/comments
were invited from all the stakeholders including the general public. The
suggestions/comments received were examined by the Internal Sub-
Committee constituted under the Chairmanship of Additional
Commissioner, Transport. In the course of the examination of
suggestions/comments, it was observed that some of the objectors had
suggested that fixing the life of School Vehicles up to 9 years or 10 to 15
years would be prudent. After due deliberations on 05.05.2018, the
Committee recommended incorporation of various safety measures
including restriction on the life-span of a School-Vehicle up to 15 years.
The matter was reconsidered at Government level and it was decided to
provide Statutory-backing to the School Transport Safety Guidelines by
inserting Rule 73-A in the Himachal Pradesh Motor Vehicles Rules, 1999,
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including restriction on the life-span of School Vehicle up to 15 years and
restriction on the use of a school vehicle up to 15 years as from the date
of its manufacture. He submitted that the above all demonstrates that the
amendment was not incorporated in the Rules as a knee-jerk reaction, but
due process was followed and suggestions from all the stakeholders were
invited and the received comments were duly considered also before
carrying out the necessary amendments. Learned Additional Advocate
General made available for the consideration of the learned counsel for
the petitioners as well as the Court the notifications etc., which were
referred by him hereinabove and the process, as was submitted before us
by the learned Advocate General, which ultimately culminated into the
insertion of Rule 73-A in the 1999 Rules, was not disputed before us on
behalf of the petitioners.
18. Learned Advocate General further submitted that the
amendment prescribes that vehicles providing transportation facilities for
students of educational institutions shall not be more than 15 years old and
the amendment forms part of a comprehensive State Road Safety Policy
issued by the State in furtherance of the binding directions of the Hon'ble
Supreme Court of India's appointed Committee on Road Safety, aimed at
preventing accidents, ensuring mechanical soundness of vehicles and
protecting vulnerable road users, especially School- children/students of
Educational Institutions from unsafe vehicles. Learned Advocate General
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submitted that Section 2(11) of the Motor Vehicles Act defines "Educational
Institution Bus" to mean an omnibus owned by a College, School or other
Educational Institution and used solely for the purpose of transporting its
students or staff. He submitted that Rule 73-A applies uniformly to all such
vehicles, whether self-operated or attached through contract, in order to
maintain consistent safety standards for the benefit of the students. He
submitted that the age restriction of 15 years is a preventive measure
designed to avoid safety risks before they manifest. Learned Advocate
General submitted that the fixation of a uniform maximum operational age
of 15 years for Educational Institution vehicles in terms of the Rule under
challenge was based on objective safety considerations and not on
arbitrary differentiation. He submitted that older vehicles, even if
maintained, are more prone to structural fatigue, material degradation,
outdated safety technology and sudden mechanical failure risks, which
cannot be detected through periodic fitness inspections. Learned Advocate
General, by referring to the reply of the State, submitted that the vehicles
used for transporting students are a distinct category under the Motor
Vehicles Act and have always been subject to more stringent norms than
any other vehicles, in light of the heightened duty of care which the State
owes to young citizens. Learned Advocate General also submitted that as
per Government Notification dated 07.02.2024, all Government vehicles
which have either been declared condemned or have completed 15 years
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of operational life, whichever is earlier, are required to be sold through e-
auction and mandatorily scrapped and, therefore, the allegation that the
Government continues to operate its own vehicles beyond 15 years, is
baseless. He also submitted that the applicability of Clause (xi) of Rule
73A(1)A. is not dependent on whether a party operates a full-fledged
School or just an Educational Institution; it applies uniformly to all vehicles
owned by or attached to Educational Institutions for transporting students,
including Colleges, Training Centres and Vocational Institutes. He
submitted that as the vehicles of the petitioners were registered and
operated by Schools and Educational institutions for the transport of
students, they fall within the ambit of Clause (xi) of the said Rule. He further
submitted that the reasonable nexus with the object to be achieved by
limiting the number of years of operation of such vehicles to 15 years was
the safety of the students transported in such vehicles and the age limit
was based on empirical safety data, expert recommendations, and the
directions of the Hon'ble Supreme Court–appointed Committee on Road
Safety.
19. Learned Advocate General referred to Notification
th
dated 30 November, 2015, issued by the Government of Chhattisgarh and
by referring to the same, he submitted that in terms of said Notification,
Rule 76-B was added by the Chhattisgarh State in the existing Chhattisgarh
Motor Vehicles Rules, 1994 and in terms of Rule 76-B Clause (16), it was
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prescribed that one of the conditions for School Bus Permit was to be that
‘no vehicle shall be more than 12 years old’. Relevant portion of the said
Rule is being quoted hereinbelow for ready reference:-
“…. …. …. ….. …. ….. …. ….
76-B Conditions for school bus permit .- Subject
to the provision of sub-section (2) of Section 74, the
following conditions shall be attached to every
school bus Permit, namely:-
(1) Each bus shall be painted in yellow
colour and “School Bus” shall be written in front and
rear of the vehicle under sub-rule (5) of rule 114 of
Chhattisgarh Motor Vehicle Rules, 1994. The
name, address and telephone/mobile number of the
School shall be written on a 09 inch broad strip on
outer side of the school bus on both the sides.
(2) The buses shall have a horizontal grill fitted on
the windows.
(3) Each school bus shall have first aid kit and fire
extinguisher.
….. …. …. …. ….. …..
(16) No vehicle shall be more than 12 years old.”
Learned Advocate General also referred to the judgment of the Hon'ble
Three-Judge Bench of the Chhattisgarh High Court in Ghanshyam Das
Rungta Foundation Vs. Union of India WPC No. 3191 of 2022 and other
connected matters and submitted that same and similar issue was raised
before the Hon'ble Full Bench of the Chhattisgarh High Court with regard
to the legislative competence of the Chhattisgarh State to frame a Rule of
the kind that has been framed by the State herein and the same was
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answered by way of a Reference by the Hon'ble Three-Judge Bench of the
Hon'ble Chhattisgarh High Court as under:-
“20. The amendment which is sought to be
challenged in these petitions, has been brought in
exercise of the powers conferred by Section 96 of
the Act of 1988. Section 96 is in respect of the
power of the State Government to make rules for
the purpose Chapter-V which is with relation to
control of transport vehicles. The petitioners, which
are educational societies, run various schools and
colleges and they use buses for transporting the
students/children. It is important that the condition
of the buses must be such so that it may not cause
any kind of threat to the students/children while
they are being plied on the roads. The State
Government, in its wisdom has thought it
appropriate not to allow such buses to be used as
school bus which are more than 12 years old. If the
State Government is concerned with the safety of
the students/children, it cannot be said that it has
caused any infringement of any of the rights of any
Individual. There is nothing in Section 96(2) (xxxili)
of the Act of 1988 which bars the State Government
from laying down the conditions as has been laid in
Rule 76-B(16) of the Rules of 1994. The question
referred by the learned Division Bench already
stands answered in view of the ratio laid down by
the Apex Court in S. K. Bhatia (supra) and Subhash
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Chandra (supra). As such, we are of the considered
opinion that the reference made to this Bench by
the learned Division Bench deserves to be
answered in affirmative. It is answered
accordingly.”
20. Learned Advocate General also referred to the Uttar
Pradesh Motor Vehicles Rules, 1998, as amended from time to time and
by referring to Chapter IX-A thereof, which deals with Special Provisions
for School Vehicles, he submitted that in terms of Rule 222-D, the age limit
of School Vehicle/Educational Institution Bus shall not be more than 15
years old as from the date of initial registration.
21. Learned Advocate General also referred to the Haryana
Motor Vehicles Rules, 1993, and by referring to Rule 67A, he submitted
that by invoking the provisions of Section 96(2)(xxxiii), the age of buses
plying as educational institution vehicles has been restricted to a maximum
of 15 years.
22. He submitted that the above demonstrates that the
action of the State is neither arbitrary nor discriminatory, nor beyond the
legislative competence of the State and as a reasonable and rationale
decision has been taken by the State, akin to the one taken by other States
also in the larger safety of the students, the present petitions, being devoid
of any merit, are liable to be dismissed.
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23. We have heard learned counsel for the parties and have
also carefully gone through the pleadings and documents appended with
the petitions.
24. We would like to refer to some of the statutory
provisions of the Motor Vehicles Act at this stage.
25. Section 2(11) of the Motor Vehicles Act defines
“educational institution bus” as under:-
“(11) “educational institution bus” means an
omnibus, which is owned by a college, school or
other educational institution and used solely for the
purpose of transporting students or staff of the
educational institution in connection with any of its
activities;
26. Section 2(24) of the Motor Vehicles Act defines
“medium passenger motor vehicle” as under”:-
“(24) “medium passenger motor vehicle” means any
public service vehicle or private service vehicle, or
educational institution bus other than a motor cycle,
adapted vehicle, light motor vehicle or heavy
passenger motor vehicle;”
27. Section 2(31) of the Motor Vehicles Act defines “permit”
as under:-
“(31) “permit” means a permit issued by a State or
Regional Transport Authority or an authority
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prescribed in this behalf under this Act authorizing
the use of a motor vehicle as a transport vehicle;”
28. Section 2(33) of the said Act defines “private service
vehicle” as under:-
“(33) “private service vehicle” means a motor
vehicle constructed or adapted to carry more than six
persons excluding the driver and ordinarily used by
or on behalf of the owner of such vehicle for the
purpose of carrying persons for, or in connection
with, his trade or business otherwise than for hire or
reward but does not include a motor vehicle used for
public purposes;”
29. Section 59 of the Motor Vehicles Act, which deals
with the power to fix the age limit of a motor vehicle, provides as under:-
“ 59. Power to fix the age limit of motor
vehicle .—(1) The Central Government may, having
regard to the public safety, convenience and objects
of this Act, by notification in the Official Gazette,
specify the life of a motor vehicle reckoned from the
date of its manufacture, after the expiry of which the
motor vehicle shall not be deemed to comply with the
requirements of this Act and the rules made
thereunder:
Provided that the Central Government
may specify different ages for different classes or
different types of motor vehicles.
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(2) Notwithstanding anything contained in
sub-section (1), the Central Government may, having
regard to the purpose of a motor vehicle, such as,
display or use for the purposes of a demonstration in
any exhibition, use for the purposes of technical
research or taking part in a vintage car rally, by
notification in the Official Gazette, exempt, by a
general or special order, subject to such conditions
as may be specified in such notification, any class or
type of motor vehicle from the operation of sub-
section (1) for the purpose to be stated in the
notification.
(3) Notwithstanding anything contained in
section 56, no prescribed authority or authorised
testing station shall grant a certificate of fitness to a
motor vehicle in contravention of the provisions of
any notification issued under sub-section (1).
(4) The Central Government may, having
regard to the public safety, convenience, protection
of the environment and the objects of this Act, make
rules prescribing the manner of recycling of motor
vehicles and parts thereof which have exceeded their
life.”
30. Section 76 of the Motor Vehicles Act deals with
application for private service vehicle permit and the same provides as
under:-
“ 76. Application for private service vehicle
permit .—(1) A Regional Transport Authority may, on
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an application made to it, grant a private service
vehicle permit in accordance with the application or
with such modification as it deems fit or refuse to
grant such permit: Provided that no such permit shall
be granted in respect of any area or route not
specified in the application.
(2) An application for a permit to use a motor
vehicle as a private service vehicle shall contain the
following particulars, namely:—
(a) type and seating capacity of the vehicle;
(b) the area or the route or routes to which the
application relates;
(c) the manner in which it is claimed that the
purpose of carrying persons otherwise than for hire
or reward or in connection with the trade or business
carried on by the applicant will be served by the
vehicle; and
(d) any other particulars which may be
prescribed.
(3) The Regional Transport Authority if it decides
to grant the permit may, subject to any rules that may
be made under this Act, attach to the permit any one
or more of the following conditions, namely:—
(i) that the vehicle be used only in a specified
area or on a specified route or routes;
(ii) the maximum number of persons and the
maximum weight of luggage that may be carried;
(iii) that the Regional Transport Authority may,
after giving notice of not less than one month—
(a) vary the conditions of the permit;
(b) attach to the permit further conditions;
(iv) that the conditions of permit shall not be
departed from, save with the approval of the
Regional Transport Authority;
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(v) that specified standards of comforts and
cleanliness shall be maintained in the vehicle;
(vi) that the holder of the permit shall furnish to the
Regional Transport Authority such periodical returns,
statistics and other information as the State
Government may, from time to time, specify; and
(vii) such other conditions as may be prescribed.”
31. Section 96(1) of the Motor Vehicles Act reads as
under:-
“ 96. Power of State Government to make rules for
the purposes of this Chapter .—(1) A State
Government may make rules for the purpose of
carrying into effect the provisions of this Chapter.”
32. Section 96(2)(xxxiii) of the Motor Vehicles Act reads
as under:-
“96(2)(xxxiii) any other matter which is to be or
may be prescribed.”
33. Section 2(11) of the Motor Vehicles Act defines an
“educational institution bus” as an omnibus, which is owned by a
college, school or other educational institution and used solely for the
purpose of transporting students or staff of the educational institution in
connection with any of its activities. Section 2(24) thereof defines
“medium passenger motor vehicle” as any public service vehicle or
private service vehicle or educational institution bus other than a
motorcycle, adapted vehicle, light motor vehicle or heavy passenger
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motor vehicle. Section 2(31) of the Act defines “permit” as a permit
issued by a State or Regional Transport Authority or an authority
prescribed in this behalf under the Motor Vehicles Act authorizing the
use of a motor vehicle as a transport vehicle. Section 59, inter alia,
provides that the Central Government may, having regard to the public
safety, convenience and objects of this Act, by notification in the Official
Gazette, specify the life of a motor vehicle, reckoned from the date of
its manufacture, after the expiry of which the motor vehicle shall not be
deemed to comply with the requirements of the Motor Vehicles Act and
rules made thereunder. Section 76 of the Motor Vehicles Act provides
that a Regional Transport Authority may, on an application made to it,
grant a private service vehicle permit in accordance with the application
or with such modification as it deems fit or refuse to grant such permit.
34. Sub-section (3) of Section 76 of the Act provides that
the Regional Transport Authority, if it decides to grant the permit may,
subject to any rules that may be made, attach to the permit any one or
more of the conditions specified therein and Clause (vii) thereof states,
"such other conditions as may be prescribed."
35. Section 96 of the Act confers upon the State
Government the power to make rules for the purpose of carrying into
effect the provisions of Chapter-V of the Act, of which, Section 76 is a
part and Section 96(2)(xxxiii) confers upon the State Government,
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without prejudice to the generality of the Rule-making power, as is
prescribed under Section 96, to make Rules “with respect to any other
matter which is to be or may be prescribed”.
36. We will start by quoting the order passed by the
Division Bench of this Court in CWP No. 73 of 2018 on 10.04.2018,
which reads as under:-
“With anguish, grief and pain, we treat a
news report published in vernacular newspapers
"Indian Express'; "The Tribune"; "The Times of
India"; "Punjab Kesari"; "Amar Ujala etc. as Public
Interest Litigation, which reports the factum of
unfortunate death of 27 passengers including 23
children in an accident involving a School bus,
which took place at around 3:30 p.m. on 9th April,
2018 in Nurpur region of District Kangra.
As per news report, a 42 seater School
bus carrying school children after school hours fell
into a 700 feet deep gorge resulting into unfortunate
death of 27 passengers. 23 young children of age
less than 12 years lost their lives on account of this
unfortunate accident. The bus involved is stated to
be a School bus of Wazir Ram Singh Pathania
Memorial Public School. Few of the young lives lost
in fact had just started going to the School since last
few weeks. Newspaper report also suggests that a
judicial inquiry into the accident has already been
ordered by the Hon'ble Chief Minister of the State.
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The magnitude of the young lives lost
has indeed shocked us. In recent past only, young
lives were lost when a Van carrying School children
met with an accident in the suburbs of Shimla town
itself.
This Court takes judicial notice of the
fact that in recent past, number of private
educational institutions have literally mushroomed
in the State. One finds private educational
institutions in every nook and corner of the State.
We wonder whether there is any mechanism in
place to supervise the management of these
institutions as far as it relates to the transportation
of children from their houses to such Schools and
back. Obvious, such Schools are not catering to the
students residing in immediate vicinity of the
School. Therefore, but obvious, students come to
the School by various transportation modes. One of
such modes is School buses which are run and
operated by the private Schools themselves. What
is the mechanism in place to supervise the
operation of such School buses with respective
District Administration or Local Administrations? If
none, then why and if there is such a mechanism in
place, then how is the supervision being carried our
by the Administration. We call upon the State to
submit its response.
Coming to the present unfortunate
accident, what was the age of the School bus and
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what was the mechanical) condition of the same
has to be ascertained. Who was engaged tis drive
the same and what was his age and medical fitness
has the ascertained. What steps stood taken by the
School management to ensure the road worthiness
of the bus has to be ascertained. What steps were
taken by the School management to ascertain
medical fitness of the driver engaged to ply the bus
has to be ascertained. How many children were
being plied in the bus has to be ascertained.
Accordingly, Mr. Shrawan Dogra,
learned Senior with Mr. Anup Rattan, Advocate
([email protected] Mob. 94180958901),
who is present in Court, is appointed as Araieus
Curiae to assist the Court. Registry is directed to
supply paper-book, complete in all respects, to
learned counsel for the parties.
Learned Advocate General states that
administration has already taken appropriate
action. In fact, Hon'ble the Chief Minister has visited
the spot and is in touch with the family members of
the deceased and the injured children.
Mr. Rajesh Sharma, learned Assistant
Solicitor General of India states that Sh. J.P. Nadda,
Union Health Minister has also visited the spot and
all possible assistance shall be provided to the
injured for medical treatment.
Notice. Mr. Adarsh Sharma, learned
Additional Advocate General waives notice on
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behalf of respondents No. 1 to 6 and Mr. V.B.
Verma, Advocate, waives the same on behalf of
respondent No. 7. Separate notice be issued to
respondent No. 8, returnable for 17th April, 2018.
Service upon respondent No. 8 be effected through
respondent No. 6.
List on 17th April, 2018, by which date,
respective respondents shall file their response(s)
to the issues mentioned above.”
37. This is the incident, which was referred to by the
learned Advocate General in the course of his arguments, which led to
the initiation of the process by the Government, which culminated into
the insertion of Rule 73-A in the 1999 Rules by way of amendment.
Relevant portion of Rule 73-A, which was inserted by way of
amendment in the 1999 Rules, reads as under:-
“73-A. Conditions that may be inscribed in the
permit relating to Buses/vehicles owned or attached
with School/Educational Institutions.
A Regional Transport Authority may inscribe in
the permit belonging to the School buses/vehicles
owned or attached with a School/Educational
Institution, the following conditions in addition to
those as specified in sub-section (2) of section
72,73,74,76 as the case may be namely:-
(1) Transport related school safety
Conditions:
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Currently, following categories of vehicles are
being used to provide transport facilities for school
children in the state:-
(a) Buses, self operated by schools;
(b) Buses of private contract carriage/Himachal
Road Transport Corporation taken on lease basis
by schools; and (c) Motor cab/Maxi Cab vehicle
used to provide transportation facilities to school
children.
The general and class-wise guidelines
for the above three categories of vehicles and
whenever the school management operates,
contracts and uses any bus, they shall strictly
adhere to these conditions:-
A General conditions applicable to all
categories
i) The buses self-operated by the school and
buses arranged on the basis of whole-time
contract shall be painted in dark yellow colour
and the name of the school shall be written
clearly on both sides so that it can be easily
identified. "School Bus" shall be written in the
size of 400mm x 300mm on the back and
front of the vehicle. If it is a leased
bus/vehicle, then "On School Duty shall be
clearly written on it. There should be a first
aid box and drinking water in the school
bus/vehicle.
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ii) Details of the driver (name, photo, license
number and telephone number) shall be
displayed inside the bus and the name of the
school or name of the owner of the bus, Child
Helpline No. 1098, important emergency
numbers (Police, Hospital) and vehicle
registration number will be displayed in
fluorescent colours at prominent places
outside the bus. This information should be
clearly visible to all passengers of the bus
and people so that the school
management/police or other officers can be
informed when required.
iii) If the age of the students is less than 12 years
then the number of students in the
vehicle/bus will not exceed 1½ times the
prescribed capacity of the vehicle. Student
over 12 years of age will be considered as a
person.
iv) School bus/vehicle seats should be in line
with standards for students safety.
v) There should be sufficient lighting in the
school bus/vehicle and there should be no
curtain and any type of film on glasses, so
that the inside activities will be clearly visible
from the outside. Apart from this, the
bus/vehicle will not have any kind of music
device.
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vi) Under any circumstances, no unauthorized
person shall be allowed to sit in the
bus/vehicle, nor will it be allowed to place any
objectionable materials like gas cylinders,
kerosene, acids, liquor etc.
vii) School bus/vehicle must be stationary during
boarding and deboarding of the children.
viii) In bus/vehicle, passenger and vehicle should
have valid insurance under provisions
contained in the Motor Vehicles Act, 1988.
ix) The School bus/vehicle shall be
repaired/inspected at regular and fized
intervals and it will be mandatory to get a
fitness certificate under the provisions of the
Motor Vehicles Act, 1988.
x) Route and stoppage of each school
bus/vehicle will be required to be approved by
Regional Transport Authority or School
Management and it will be necessary to give
information in this regard to the Transport
Department and local administration.
xi) Vehicles providing transportation facilities to
schools will not be more than 15 years old.
xii) It shall be mandatory to install Global
Positioning System (GPS) in each school
bus/vehicle. The school management and
vehicle owner must ensure that this system is
functioning smoothly at all tirnes and its
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record is regularly checked and available, if
required.
xiii) The driver of the school bus/vehicle should
have a valid driving license.
xiv) The driver's age should not be more than 60
years.
xv) The physical fitness of the bus/vehicle driver,
including eye examination, should be done
every year and the school management will
provide the health card to the driver. School
management will also ensure that the driver
has been issued a fitness certificate by the
competent authority according to safety
standards under the Motor Vehicles Act,
1988.
xvi) Any school management, if found violating
the provisions of the Motor Vehicles Act,
1988 or the rules made there under and the
directions issued by the State Government or
Hon'ble Court, will be punished as per the
rules.
xvii) While driving, the use of mobile phone by the
school bus/vehicle driver will be strictly
prohibited.
xviii) School Management/Vehicle Owner will
ensure fitting of tamper-proof Speed
Governors in buses/vehicles with maximum
speed limit of 40 KM per hour.
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xix) For the convenience of divyangs/students,
necessary and appropriate provisions will be
mandatory in vehicles/buses as per the rules.
xx) It will be ensured that school bus should have
two ISI standard fire extinguishers of 5 Kg
capacity installed in the bus, of which one
should be placed in the driver's cabin and the
other should be placed near the emergency
exit gate. Drivers, conductor and female
guard/attendant should be trained to operate
firefighting equipment. School management
will also ensure regular inspection of them so
that they are in working condition at all times.
Apart from this, it will be mandatory to have a
fire extinguisher in the motor/maxi Cab and it
will be kept in working condition at all times .”
38. In terms of Cause (xi) of the said Rule, vehicles
providing transportation facilities to schools will not be more than 15
years old. As per the petitioners, the framing of Rule 73-A per se is ultra
vires , as it is beyond the legislative scope of the State Government and
further, as per the petitioners, Clause (xi) thereof is also bad in law, as
the fixation of 15 years, as the period for which a vehicle can be used
for providing transportation facilities to Schools is arbitrary and it further
does violence to the provisions of Section 59 of the Motor Vehicles Act.
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39. Section 59 of the Motor Vehicles Act, 1988 provides
for the power to fix the age limit of motor vehicle. Sub-section (1) of
Section 59 provides that the Central Government may, having regard
to the public safety, convenience and objects of the Act, by notification
in the Official Gazette, specify the life of motor vehicle reckoned from
the date of its manufacture, after the expiry of which, the motor vehicle
shall not be deemed to comply with the requirements of the Act and the
Rules made thereunder. Proviso thereto says that the Central
Government may specify different ages for different classes or different
types of motor vehicles.
40. As per the petitioners, in the light of this statutory
provision, the State Government was not having any power to fix the
age of a vehicle transporting students to the School as 15 years in
terms of the impugned Rule.
41. In our considered view, there is a fallacy in the
argument of the petitioners.
42. Section 59 of the Motor Vehicles Act, confers upon
the Central Government the right to specify “ life of a motor vehicle
reckoned from the date of its manufacture, after the expiry of
which the motor vehicle shall not be deemed to comply with the
requirements of the Motor Vehicles Act and the Rules made
thereunder ”.
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43. On the other hand, impugned Clause (xi) of Rule
73A (1)(A) of the HP Motor Vehicles Rules, 1999 has provides that a
vehicle providing transportation facilities to School will not be more than
15 years old. Unlike Section 59, which specifies the life of a motor
vehicle, this Clause of the Rule does not specify the life of the motor
vehicle, but it only specifies as to for what period, obviously as from the
date of its manufacture, a vehicle providing transportation facility to
School can be used.
44. Upon the fixation of the life of a motor vehicle by the
Central Government under Section 59 of the Act, after the expiry of said
period, such a motor vehicle cannot be used because in terms of Sub-
section (1) of Section 59, after the expiry of the specified life of a motor
vehicle under Section 59, the motor vehicle shall not be deemed to
comply with the requirements of the Act and the Rules made
thereunder.
45. On the other hand, Clause (xi) of the Rule in issue
does not create any such embargo and a vehicle which otherwise was
providing transportation facility to Schools can be used for any other
purpose, provided there is still time in the life of such a motor vehicle
fixed by the Central Government under Section 59 of the Act.
46. Therefore, we are of the considered view that the
State Government has not usurped upon the powers of the Central
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Government, as stand conferred upon the Central Government under
Section 59 of the Motor Vehicles Act. The powers of the Central
Government are sacrosanct and remain untouched, unfettered and
unaltered, because, the impugned Clause does not transgress Section
59 of the Motor Vehicles Act by specifying the life of a motor vehicle
providing transportation facility to School.
47. Coming to Section 96 of the Motor Vehicles Act,
Section 96 is part of Chapter-V of the Motor Vehicles Act, which chapter
deals with the control of transport vehicles.
48. Chapter-V of the Motor Vehicles Act, inter alia ,
provides for the necessity for permits, power of the State Government
to control road transport, general provisions as to application for
permits etc.
49. The petitioners have been granted the permits to ply
their vehicles under Section 76 of the Act.
50. Section 96 of the Motor Vehicles Act, 1988 thereof
provides for the power of the State Government to make Rules for the
purposes of Chapter-V of the Motor Vehicles Act. This section reads
as under:-
“96. Power of State Government to make
rules for the purposes of this Chapter. - (1) A
State Government may make rules for the
purpose of carrying into effect the provisions of
this Chapter.
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(2) Without prejudice to the generality of
the foregoing power, rules under this section may
be made with respect to all or any of the following
matters, namely:
(i) the period of appointment and the
terms of appointment of and the conduct of
business by Regional and State Transport
Authorities and the reports to be furnished by them;
(ii) the conduct of business by any such
authority in the absence of any member (including
the Chairman) thereof and the nature of business
which, the circumstances under which and the
manner in which, business could be so conducted;
(iii) the conduct and hearing of appeals that
may be preferred under this Chapter, the fees to be
paid in respect of such appeals and the refund of
such fees;
(iv) the forms to be used for the purposes
of this Chapter, including the forms of permits;
(v) the issue of copies of permits in place
of permits lost, destroyed or mutilated;
(vi) the documents, plates and marks to be
carried by transport vehicles, the manner in which
they are to be carried and the languages in which
any such documents are to be expressed;
(vii) the fees to be paid in respect of
applications for permits, duplicate permits and
plates;
(viii) the exemption of prescribed persons or
prescribed classes of persons from payment of all
or any or any portion of the fees payable under this
Chapter;
(ix) the custody, production and
cancellation on revocation or expiration of permits,
and the return of permits which have been
cancelled;
(x) the conditions subject to which, and the
extent to which, a permit granted in another State
shall be valid in the State without countersignature;
(xi) the conditions subject to which, and the
extent to which, a permit granted in one region shall
be valid in another region within the State without
countersignature.
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(xii) the conditions to be attached to permits
for the purpose of giving effect to any agreement
such as is referred to in clause (iii) of sub-section
(1) of section 67;
(xiii) the authorities to whom, the time within
which and the manner in which appeals may be
made;
(xiv) the construction and fittings of, and the
equipment to be carried by, stage and contract
carriages, whether generally or in specified areas;
(xv) the determination of the number of
passengers a stage or contract carriage is adapted
to carry and the number which may be carried;
(xvi) the conditions subject to which goods
may be carried on stage and contract carriages
partly or wholly in lieu of passengers;
(xvii) the safe custody and disposal of
property left in a stage or contract carriage;
(xviii) regulating the painting or marking of
transport vehicles and the display of advertising
matter thereon, and in particular prohibiting the
painting or marking of transport vehicles in such
colour or manner as to induce any person to
believe that the vehicle is used for the transport of
mails;
(xix) the conveyance in stage or contract
carriages of corpses or persons suffering from any
infectious or contagious disease or goods likely to
cause discomfort or injury to passengers and the
inspection and disinfection of such carriages, if
used for such purposes;
(xx) the provision of taxi meters on
motorcabs requiring approval or standard types of
taxi meters to be used and examining testing and
sealing taxi meters;
(xxi) prohibiting the picking up or setting
down of passengers by stage or contract carriages
at specified places or in specified areas or at places
other than duly notified stands or halting places and
requiring the driver of a stage carriage to stop and
remain stationary for a reasonable time when so
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required by a passenger desiring to board or alight
from the vehicle at a notified halting place;
(xxii) the requirements which shall be
complied with in the construction or use of any duly
notified stand or halting place, including the
provision of adequate equipment and facilities for
the convenience of all users thereof; the fees, if
any, which may be charged for the use of such
facilities, the records which shall be maintained at
such stands or places, the staff to be employed
thereat, and the duties and conduct of such staff,
and generally for maintaining such stands and
places in a serviceable and clean condition;
(xxiii) the regulation of motorcab ranks;
(xxiv) requiring the owners of transport
vehicles to notify any change of address or to report
the failure of or damage to any vehicle used for the
conveyance of passengers for hire or reward;
(xxv) authorizing specified persons to enter
at all reasonable times and inspect all premises
used by permit holders for the purposes of their
business;
(xxvi) requiring the person in charge of a
stage carriage to carry any person tendering the
legal or customary fare;
(xxvii) the conditions under which and the
types of containers or vehicles in which animals or
birds may be carried and the seasons during which
animals or birds may or may not be carried;
(xxviii) the licensing of and the regulation of
the conduct of agents or canvassers who engage
in the sale of tickets for travel by public service
vehicles or otherwise solicit customers for such
vehicles;
(xxix) the licensing of agents engaged in the
business of collecting for forwarding and
distributing goods carried by goods carriages;
(xxx) the inspection of transport vehicles and their
contents and of the permits relating to them;
(xxxi) the carriage of persons other than the
driver in goods carriages;
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(xxxii) the records to be maintained and the
returns to be furnished by the owners of transport
vehicles; and
[(xxxiia) framing of schemes under sub-section
(3) of section 67;
(xxxiib) the promotion of effective competition,
passenger convenience and safety, competitive
fares and prevention of overcrowding;]
(xxiii) any other matter which is to be or may
be prescribed.”
51. A perusal of Section 96 demonstrates that it, inter
alia , provides that a State Government may make Rules for the purpose
of carrying into effect the provisions of Chapter-V of the Motor Vehicles
Act. Sub-section (2) thereof provides that, without prejudice to the
generality of the foregoing power, Rules under Section 96 may be
made with respect to all or any of the matters which are mentioned
under Sub-rule(2).
52. The above demonstrates that the rule-making power
of the State Government is not confined to the matters which are
mentioned under sub-rule (2) of Section 96 and the rule-making power
conferred upon the State qua the matters which are mentioned under
Sub-section (2) of Section 96 is without prejudice to the generality of
the power conferred upon the State Government under sub-section (1)
of Section 96.
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53. Section 96 (2) (xxxiii) further confers rule making
power upon the State qua any matter which is to be or may be
prescribed.
54. In light of the fact that the permits have been granted
to the petitioners to ply the vehicles being used by them for providing
transportation facilities to Schools, the petitioners cannot be permitted
to state that the State Government does not have the power to make
the rules for the purpose of carrying into effect the provisions of
Chapter-V of the Motor Vehicles Act, as Section 76 is a part of Chapter-
V of the Act and the State Government has the power to make rules for
the purpose of carrying into effect the provisions of Chapter-V of the
Motor Vehicles Act, which obviously includes its right to frame rules for
the purpose of carrying into effect the provisions of Section 76 of the
Act.
55. The contention of the learned counsel for the
petitioners that because Section 96 does not confer any express power
upon the State Government to fix the age of a vehicle which can be
used for transportation facilities to schools, therefore the State
Government cannot fix any age in this regard, according to us, cannot
be accepted. The purpose of the rules is to supplement what is not
there in the main statute. The main statute provides for the mode and
manner of granting a permit for plying a private service vehicle, and
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Section 96 of the Act confers upon the State Government the power to
make rules for the purpose of carrying into effect the provisions of
Section 76, which obviously also includes the power to frame rules as
to for how many years old vehicle can be used for providing
transportation facilities to School.
56. We again state at this point that this power
exercised by the State under Section 96(1) and (2) of the Motor
Vehicles Act cannot be confused with Section 59 of the Motor Vehicles
Act, because the power which is conferred upon the Central
Government under Section 59 of the Motor Vehicles Act is a totally
different power, as the said Section, i.e., Section 59, confers upon the
Central Government the power to specify the life of a motor vehicle.
57. In other words, whether the life of a motor vehicle
reckoned from the date of its manufacture, after which such a motor
vehicle shall not be deemed to comply with the requirements of the
Motor Vehicles Act and the rules made thereunder, should be 1 year, 5
years, 10 years, 15 years, 20 years, 30 years or 40 years is the domain
of the Central Government. The State Government has no right to tinker
or supplant the same by framing a rule contrary thereto.
58. The present Rule framed by the State Government
restricting the use of vehicle for providing transportation facility to
school as up to 15 years from the date of its manufacture has to play
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and run within the confines of Section 59 of the Motor Vehicles Act and
if the life of any such vehicle which is being used for providing
transportation facility to Schools has been fixed as 10 years by the
Central Government, then, in the garb of this rule, none can use such
a vehicle for 15 years for providing transportation to School. Similarly,
if the life of a vehicle has been fixed by the Central Government as 20
years or 25 years or 30 years, then, though such a vehicle can be used
for providing transportation facilities to school in terms of the rule in
issue only for 15 years as from the date of its manufacture, but,
thereafter such a vehicle can be put to use by the owner thereof for any
other purpose. This is the difference and distinction between what is
provided for under Section 59 of the Motor Vehicles Act, with regard to
the power of the Central Government to specify the life of the motor
vehicle vis-a-vis the rule framed by the State Government in the present
case, in terms whereof, vehicle providing transportation facility to
School will not be more than 15 years.
59. Hon'ble Supreme Court of India in State of T.N and
another versus P. Krishnamurthy and others, (2006) 4 SCC 517 ,
has been pleased to hold in para-15 thereof the following with regard
to the constitutionality or validity of subordinate legislation:-
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“The contention that the act of premature
termination referred to in section 4A(3) is an
executive act and not a legislative act, finds support
from the decision in State of Haryana vs. Ram
Kishan & Ors. [1988 (3) SCC 416] wherein this Court
considered the scope of section 4-A , as it originally
stood prior to the substitution thereof by Act No. 37
of 1986. Section 4-A , considered in that case , read
as under :-
"4-A(1). Where the Central Government, after
consultation with the State Government, is of opinion
that it is expedient in the interest of regulation of
mines and mineral development so to do, it may
request the State Government to make a premature
termination of a mining lease in respect of any
mineral, other than minor mineral, and, on receipt of
such request, the State Government shall make an
order making a premature termination of such
mining lease and granting a fresh mining lease in
favour of such government company or corporation
owned or controlled by government as it may think
fit.
(2) Where the State Government, after consultation
with the Central Government, is of opinion that it is
expedient in the interest of regulation of mines and
mineral development so to do, it may, by an order,
make premature termination of a mining lease in
respect of any minor mineral and grant a fresh lease
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in respect of such mineral in favour of such
government company or corporation owned or
controlled by government as it may think fit."
60. Subsequently, Hon'ble Supreme Court of India in
Naresh Chandra Aggarwal versus Institute of Chartered
Accountants of India and others (2024) 13 SCC 241 , i.e., the
judgment which was relied upon by the learned counsel for the
petitioners also, has inter alia held as under qua the legal principles that
have to be taken into consideration in adjudicating cases where
subordinate legislations are challenged on the ground of being ultra
vires the parent Act:-
“From reference to the precedents discussed
above and taking an overall view of the instant
matter, we proceed to distil and summarise the
following legal principles that may be relevant in
adjudicating cases where subordinate legislation
are challenged on the ground of being “ultra vires”
the parent Act.”
61. In our considered view, in the light of the
observations which have been made by us hereinabove, it cannot be
said that the rule which is under challenge, is ultra vires to the parent
Act. Rule 73-A has been added by way of amendment to the already
existing Himachal Pradesh Motor Vehicles Rules, 1999 and, therefore,
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it cannot be said that the State herein has no inherent power of its own
to make Rules. In fact, the Motor Vehicles Rules stand framed by the
State Government in exercise of powers conferred upon it under
Section 96 read with Section 212 of the Motor Vehicles Act as far back
as in the year 1999.
62. Hon'ble Supreme Court has been pleased to hold in
the judgments referred by us that if a Rule is challenged as being ultra
vires on the ground that it exceeds the power conferred by the parent
Act, then, the Court must firstly determine and consider the source of
power which is relatable to the rule and secondly, it must determine the
meaning of the subordinate legislation itself and finally, it must decide
whether the subordinate legislation is consistent with and within the
scope of the power delegated.
63. In our considered view, the source of power
relatable to the framing of Rule squarely flows from Section 96 of the
Motor Vehicles Act and the factum of the State having the power to
frame the rule cannot be doubted for the reason that the Rule has been
framed with regard to a permit granted under Section 76 of the Motor
Vehicles Act, which is a part of Chapter-V of the Motor Vehicles Act
and Section 96 of the Motor Vehicles Act confers power upon the State
Government to make rules for the purpose of carrying into effect the
provisions of Chapter-96.
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64. Herein the meaning of the subordinate legislation is
that in terms thereof, i.e., in terms of Rule 73-A, conditions have been
spelled out which may be inscribed in the permit relating to
buses/vehicles owned or attached with schools/educational institutions,
including Clause (xi), in terms whereof, vehicles providing
transportation facilities to Schools will not be more than 15 years. This
rule is consistent with and within the scope of the power delegated to
the State under Section 96 of the Motor Vehicles Act, because, in terms
of the provisions of Section 96, the State Government has the
competency to frame the rules for the purpose of carrying into effect
the provisions of Chapter-V of the Motor Vehicles Act, which chapter,
as observed hereinabove, also contains Section 76, which confers the
power upon the Regional Transport Authority to issue private service
vehicle permits.
65. Therefore, in light of the above discussions, in our
considered view, the delegated rule-making power which has been
exercised by the State is not only well within its domain and the same
is also not ultra vires on the ground that it exceeds the power conferred
by the parent Act or that it is inconsistent with the provisions of the
parent Act in any manner.
66. As per the Chhattisgarh Motor Vehicles Rules, 1994,
one of the conditions for school bus permit is that such a vehicle should
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not be more than 12 years old. Under the Uttar Pradesh Motor Vehicles
Rules, the age of School Vehicle, i.e., the Educational Institution Bus,
shall not be more than 15 years old from the date of initial registration
and under the Haryana Motor Vehicles Rules, 1993, the age of buses
plying as Educational Institutional Buses is to be not more than 15
years.
67. A perusal of the Rules of the said States further
demonstrates that said condition has been added in the permits by the
State by formulating the Rules in exercise of the powers conferred upon
the State under Section 96(2)(xxxiii) of the Motor Vehicles Act, 1988.
68. The exercise of power by the respondent-State
Government under Section 96(2)(xxxiii) of the Motor Vehicles Act, in
terms whereof, Rule 73-A has been added in the Himachal Pradesh
Motor Vehicles Rules, 1999, cannot also be said to be an exercise
undertaken by the State to frame a Rule beyond its legislative
competence. In fact, as was also argued by the learned Advocate
General in terms of the Hon’ble Three-Judge Bench judgment of the
Hon’ble High Court of Chhattisgarh, wherein the High Court of
Chhattisgarh was dealing in Reference with the issue of the State
Government not allowing buses more than 12 years old to be used for
transporting students and children, the Hon’ble Three-Judge Bench
held that there is nothing in Section 96(2)(xxxiii) of the Motor Vehicles
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Act, 1988, which bars the State Government from laying down the
conditions as were laid down in the Rules by the State of Chhattisgarh.
69. The contention of the learned counsel for the parties
that the financial viability etc. of the petitioners has not been taken into
consideration while framing the Rule, in our considered view, does not
render the Rule bad in law, for the reason that the issue of the safety of
School-going children cannot be measured in monetary terms and
according to us, the safety of the students is paramount. There is no
merit in the contention raised by some of the learned counsel that the
vehicles of the petitioners will be rendered useless after 15 years,
because the Rule in issue does not in any manner prohibit the use of
the vehicle after 15 years, provided it is duly registered with the
Registering Authority and can be plied for any other purpose in terms of
the provisions of the Motor Vehicles Act and Rules framed thereunder.
According to us, it cannot be said that the period of 15 years, which has
been prescribed as the age of a vehicle to be used for the transportation
of students to school is arbitrary. As is evident from the Rules of the
other States which have been quoted by us hereinabove, whereas the
State of Chhattisgarh has fixed the age at 12 years, the States of Uttar
Pradesh and Haryana have fixed the age of the vehicle at 15 years.
70. We are also of the considered view that simply
because the travelling of students is not confined to educational
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institution buses and they also travel by other means including private
stage carriage buses or Government stage carriage buses etc., which
may be more than 15 years old, that does not make the condition
imposed in the Rule that an educational institution bus should not be
more than 15 years old, bad in law.
71. Restricting the age of a vehicle to 15 years as per
Clause (xi) is a preventive measure to avoid safety risks before they
actually indeed manifest. Older vehicles, even if maintained, are more
prone to structural fatigue, material degradation, outdated safety
technology, and sudden mechanical failure risks, which cannot be
detected through periodic fitness inspections. According to us, the
petitioners should be happy that the State of Himachal Pradesh has
fixed the age of the vehicle at 15 years, because in light of the fact that
the State of Himachal largely comprises of hilly areas and some States
like the State of Chhattisgarh have deemed it proper that the age of
such like vehicles should only be 12 years, nothing prevented the State
Government from restricting the age of vehicle to less than 15 years for
the purpose of transportation of students to Schools.
72. The contention of the petitioners that so long as a
vehicle is roadworthy, it should be permitted to be plied for
transportation of students to Schools cannot be acceded to, for the
reason that roadworthiness of a vehicle cannot be the sole criteria while
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taking a call as to what should be the maximum age of a vehicle
permitted to be used for transporting students to the Schools.
73. The life of the young generation is far more precious
than the monetary considerations of the petitioners. One fatal incident
on account of an aged vehicle can ruin and shatter the lives of families
forever. Said loss cannot be compensated in any terms whatsoever.
Prohibitive steps to minimize the occurrence of such incidents cannot
be equated with economics, as the petitioners are praying this Court to
do. Any prudent step which the State Government takes to ensure the
safety of students, unless and until it is so arbitrary that it shocks the
judicial conscience of the Court, requires to be protected and upheld by
the Court.
74. In terms of Rule 73-A, the Rule recognizes the
following categories of vehicles, which are being used to provide
transport facilities for school children in the State:-
“ (a) Buses self-operated by schools;
(b) Buses of private contract carriage/HRTC
taken on lease basis by the schools; and
(c Motor cab, maxi cab, vehicle used to
provide transportation facilities to school
children.”
75. Rule 73-A(1)A prescribes general conditions
applicable to all categories and Clause (i) thereof provides that the
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buses self-operated by the Schools and buses arranged on the basis of
whole-time contract shall be painted in dark yellow colour and the name
of the School shall be written clearly on both sides so that it can be
easily identified. "School Bus" shall be written in the size of 400 mm x
300 mm on the back and front of the vehicle. If it is a leased bus/vehicle,
then "On School Duty" shall be clearly written on it. There should be a
first-aid box and drinking water in the School bus/vehicle. Clause (iii)
thereof provides that if the age of students is less than 12 years, then
the number of students in the vehicle/bus will not exceed one and a half
times the prescribed capacity of the vehicle. Student over 12 years of
age will be considered as a person. Clause (x) thereof provides that
route and stoppage of each School bus/vehicle will be required to be
approved by the Regional Transport Authority or School Management,
and it will be necessary to give information in this regard to the Transport
Department and Local Administration. Clause (xi) thereof, which in fact
is the bone of contention in the present petition, provides that vehicles
providing transportation facilities to Schools will not be more than 15
years old.
76. The Heading of Rule 73-A is "Conditions that may be
inscribed in the permit relating to buses/vehicles owned or attached with
School/Educational Institutions".
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77. Rule 73-A further provides that a Regional Transport
Authority may inscribe in the permit belonging to the school bus/vehicle
owned or attached with School/Educational Institution conditions
prescribed thereinafter, in addition to those as specified in Sub-section
(2) of Section 72, 73, 74, 76, as the case may be.
78. ‘Educational Institution’ has been defined in Black’s
Law Dictionary, Sixth Edition as under:-
“Educational institution. A school, seminary,
college, university, or other educational
establishment, not necessarily a chartered
institution. As used in a zoning ordinance, the
term may include not only buildings, but also all
grounds necessary for the accomplishment of
the full scope of educational instruction,
including those things essential to mental, moral,
and physical develop ment. Commissioners of
District of Columbia v. Sharnon & Luchs Const.
Co., 57 App. D.C. 67, 17 F.2d 219, 220.”
79. Similarly, ‘School’ has been defined in Black’s Law
Dictionary, Sixth Edition as under:-
“School. An institution or place for instruction
or education.”
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80. Now, whereas in Rule 73-A, the words "School" and
"Educational Institutions" have been used, but when it comes to Rule
73-A(1) which deals with transport-related school safety conditions and
which also prescribes for general conditions applicable to all categories
which are mentioned in Rule 73-A(1)A, the Rule mentions School only.
However, if we read Rule 73-A harmoniously, the only conclusion which
can be drawn is that reference to the word "School" in Rule 73-A(1) and
Clauses thereof is not restricted to “Schools” so as to construe them as
th
Educational Institutions imparting education up to 10 or 10+2 level
only, but intent is to include all Educational Institutions, such as Nursing
Institutions, Pharmacy Institutions, or for that matter, any other
Institution, be it Engineering Institution or Medical Institutions etc. We
say so for the reason that under Rule 73-A(1)A, the general conditions
applicable to the categories of buses which are used to provide
transport facilities for school children in the State, as are to be
prescribed in the permit, include that buses self-operated by the School
and buses arranged on the basis of whole-time contract shall be painted
in dark yellow colour and the name of the school shall be written clearly
on both sides, so that it can be easily identified. It is in continuation of
Clause (i) and other Clauses thereof that clause (xi) is also there, which
provides that vehicles providing transportation facilities to Schools will
not be more than 15 years old. According to us, any Institution, be it a
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School, as it is commonly understood or any other Educational
Institution, which is bound by the conditions, as is prescribed in Rule 73-
A(1)A, is also bound by Cause (xi) thereof. In other words, an Institution
which has to comply with conditions which are prescribed in Clauses (i)
to (x) and Clauses (xii) to (xx) to the general conditions applicable to all
categories, cannot claim immunity to Clause (xi) of the Rule. It was not
disputed in the course of arguments, on behalf of the petitioners that
they have to comply with Clauses (i) to (x) and (xii) to (xx) also, which
Clauses independently have not been assailed by them in these writ
petitions, save and except the challenge to Rule 73-A per se , on the
ground that it was beyond the legislative competence of the State to
frame the said Rule. Therefore, the contention raised by learned
counsel for the parties that the impugned Rule is applicable only to
th
Schools which are ordinarily imparting education up to 10 Class or
10+2 class and not to other Educational Institutions, is negated by
holding that whichever Institution is bound by Causes (i) to (x) and
Clauses (xii) to (xx) of Rule 73-A(1)A is also bound by Clause (xi) of the
said Rules.
81. Accordingly, in light of the above discussions, as we do
th
not find that Notification dated 12 October, 2018, in terms whereof, Rule
73-A was inserted in the Himachal Pradesh Motor Vehicle Rules, 1999 or
that Rule 73-A was made by the State by exercising power beyond its
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legislative competence; or Clause (xi) of Rule 73-A(1)A is either arbitrary or
offends the provisions of Section 59 or Section 96 of the Motor Vehicles Act,
1988, the present petitions, being devoid of any merit, are dismissed. We
further hold that the said Clause is applicable to all Educational Institutions,
to which the general conditions, which are mentioned in Rule 73-A(1)A are
applicable; and the Rule/Clause cannot be read in a restrictive manner so as
to construe that the word “School” includes Institutions which impart
th
education up to 10 or 10+2 level classes only. Interim orders stand vacated
forthwith. Pending miscellaneous application, if any, also stand disposed of.
No order as to costs.
(Ajay Mohan Goel)
Judge
(Yogesh Jaswal)
Judge
October 31, 2026
(bhupender)
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