IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 31ST DAY OF AUGUST 2011/9TH BHADRA 1933 WP(C).No. 20931 of 2011 (N) ------------------------------------ PETITIONER(S) : --------------------- PRADEEP KUMAR.K., 'SIDHA MANDIRAM', CHETHADY, CHENGAMANADU P.O., KOTTARAKKARA , KOLLAM- 691 557. BY ADVS. SRI. N. DHARMADAN SMT. D.P.RENU RESPONDENT(S) : ------------------------ 1. THE CHAIRMAN, KERALA PUBLIC SERVICE COMMISSION, OFFICE OF THE P.S.C., PATTOM THIRUVANANTHAPURAM-695 004. 2. THE PHYSICAL EDUCATION TEACHER, ENGINEERING COLLEGE, SREEKARIYAM, THIRUVANANTHAPURAM-695017. BY ADV. SRI.P.C.SASIDHARAN, S.C., KPSC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31-08-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: NS WP(C).No. 20931 of 2011 APPENDIX PETITIONER(S) EXIBITS : EXT.P1 : COPY OF CERTIFICATE ISSUED FROM ARMY TO THE PETITIONER. EXT.P1(A) : COPY OF COURSE CERTIFICATE FROM I.T.I. TO THE PETITIONER. EXT.P1(B) : COPY OF CERTIFICATE ISSUED FROM DISTRICT COURT, KOLLAM TO THE PETITIOENR. EXT.P2 : COPY OF NOTICE DATED 4.7.2011 ISSUED BY 1ST RESPONDENT. EXTP3 : COPY OF REPRESENTATION DATED 29.7.2011 BY PETITIONER TO THE 1ST RESPONDENT. RESPONDENT(S) EXHIBITS : NIL / TRUE COPY / NS P.A. TO JUDGE C.T. RAVIKUMAR, J. = = = = = = = = = = = = = WP(C).No.20931 of 2011-N. = = = = = = = = = = = = = Dated this the 31st August, 2011. J U D G M E N T The petitioner responded to the notification dated 14.2.2008 published by the Kerala Public Service Commission for appointment to the post of Fireman Driver cum Pump Operator (category No.72/08) under the Fire and Rescue Service. The petitioner succeeded in the driving test that was conducted in August, 2010. Thereupon, he was invited for physical efficiency test. The said test was conducted on 27.7.2011. The physical efficiency test conducted was one of one star standard and in order to clear the test one has to clear five items out of the 8 prescribed items. Item No.8 in category No.III was 1500 metres race. It was to be completed within five minutes and 44 seconds. The petitioner has succeeded in four items. The claim of the petitioner is that he had completed 1500 metres race within the stipulated time of five minutes and 44 seconds. WP(C).No.20931/2011-N. 2 According to the petitioner, except the second respondent all other members of the Board were convinced of the said fact. However, the second respondent refused to accept the same. It is contended that the petitioner was compelled to sign in a form tendered by the second respondent. According to him, he signed it under protest only to avoid an unpleasant situation. Thereafter, he made a complaint to the representative of the Public Service Commission. He has also submitted Ext.P3 complaint. It is the apprehension that on account of the unwillingness of the second respondent to treat the petitioner as a candidate, who successfully completed 1500 metres race within the stipulated time the respondents would treat him as a failed candidate to exclude him from the select list that constrained the petitioner to file this writ petition. It has been filed mainly with the prayer to issue a writ of mandamus commanding the first respondent to consider Ext.P3 and include the petitioner's name in the final list of selected candidates since he has completed all the items WP(C).No.20931/2011-N. 3 successfully. The further prayer is to declare that the petitioner has successfully completed all items in category No.III of Ext.P2. It is also prayed for a direction to the second respondent to include the petitioner for a further physical test, if any, scheduled for giving opportunity to absentees or otherwise so that he can successfully complete all items in Ext.P2. 2. On behalf of the first respondent a counter- affidavit has been filed in this writ petition. It is stated therein that the petitioner was called upon for physical measurement and on being found fit he was admitted to the physical efficiency test on 27.7.2011 with Chest No.10. The said test was conducted by a Board constituted for that purpose headed by a Senior Police Officer, an Assistant Professor, Physical Education, Collegiate Education Department and an Under Secretary of the staff of the Public Service Commission. It is specifically stated therein that the petitioner could qualify only in four out of the eight prescribed items. Consequently, he was declared as not WP(C).No.20931/2011-N. 4 qualified and he signed in the scoring sheet in token of having accepted that result. To substantiate the same Publis Service Commission has produced Ext.R1(a) scoring sheet. Later, a reply-affidavit has also been filed by the petitioner. In paragraph 5 of the reply-affidvit it is stated that he would debunk those statements in the counter- affidavit including the statement in Ext.R1(a) if afforded with a further chance to run 1500 metres. 3. As already noticed hereinbefore, in order to come out successful in the physical efficiency test candidates should pass any of the five items out of the eight items prescribed. It is common case that the petitioner has succeeded in four items. With respect to 1500 metres race the petitioner contends that he had completed the same within the stipulated time of five minutes 44 seconds. At the same time, the second respondent contends that he has failed to do so. Ext.R1(a) scoring sheet would reveal that the petitioner himself admitted the results by signing the same. Ext.R1(a) would reveal that the petitioner who was WP(C).No.20931/2011-N. 5 allotted Chest No.10 had passed only the four items out of the eight prescribed items. It is contended that he had signed in the scoring sheet only under protest with a view to avoid any unpleasant situation. He maintains the stand that he had completed the race within the prescribed time while the respondnets vehimently resisted the said claim. This Court cannot to into any such disputed fact when the records show that the petitioner had failed to finish the 1500 metres race within the stipulated time. The mere assertion by the petitioner is too insufficient to substitute the said finding. The petitioner has not attributed any malafides on any of the respondents. Though the petitioner has raised a contention that it was only on account of the highhanded action on the part of the second respondent that his chance for inclusion in the select list was lost the petitioner has not chosen to implead the second respondent in his personal capacity. The second respondent was also a member of the Board constituted by the Public Service Commission for the purpose of conducting the physical WP(C).No.20931/2011-N. 6 efficiency test. When the Board files a report after conducting the physical efficiency test the Public Service Commission has to act upon it. The Commission had done only that. In view of the aforesaid circumstances, I do not find any merit in the contentions of the petitioner and as such, it is liable to fail. Accordingly, this writ petition is dismissed. C.T.RAVIKUMAR, (Judge) Kvs/-