IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 WA.No. 1042 of 2010() --------------------- AGAINST THE JUDGEMENT IN WPC.11524/2009 Dated 29/03/2010 .................... APPELLANT(S)/PETITIONERS:- ------------------------------------------ 1. RAJESH M., S/O.T.V.RAGHAVAN NAMBIAR, AGED 34 YEARS, WORKING AS PEON, EXCISE DIVISION OFFICE, KANNUR AND RESIDING AT MUTHUVADATHU HOUSE, KANDAMKULANGARA, KUNHIMANGALAM P.O., KANNUR 2. NAJEEB T.K., S/O.T.S.KONTHALAM, AGED 32 YEARS, WORKING AS PEON, EXCISE DIVISION OFFICE, IDUKKI-THODUPUZHA AND RESIDING AT THAIPARAMBIL, MUTHALAKODAM P.O., THODUPUZHA. BY ADV. SRI.T.RAMPRASAD UNNI SRI.J.R.PREM NAVAZ SMT.SMITHA GEORGE RESPONDENT(S)/RESPONDENTS:- ---------------------------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, TAXES (F) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM REPRESENTED BY THE SECRETARY. 3. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, KANNUR. 4. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, IDUKKI- THODUPUZHA. (..................2) -: 2 :- 5. ADDL.R5: DINESH V.A., VELLIAPPILIL HOUSE, THEKKUMBHAGOM P.O., THODUPUZHA, IDUKKI-685584. 6. JAMES MATHEW, ELAPPANICKAL HOUSE, KUDAMILUZHY P.O., KADAMKUZHY 685515. 7. SUMESH SUDHAKARAN, RAMALTTATHIL, RAJAKANDAM P.O., KUMALY, IDUKKI DISTRICT-685509. 8. DIBU RAJ, KATTUKALLATHIL HOUSE, AMARAVATHY P.O., IDUKKI DISTRICT-685509. 9. SAJITH E.J., ELAYIDATHU HOUSE, RAJAKKAD P.O., IDUKKI DISTRICT-685566. 10. LIJU ABRAHAM, AYYAMLAYIL HOUSE, KOCHARA P.O., IDUKKI DISTRICT 685551. 11. ANOOP K.S., KOLLAMPARAMBIL HOUSE, COMBAYAR P.O., IDUKKI DISTRICT-685552. 12. ANOOPMON P.D., PALTHARA HOUSE, KALAKETTY P.O., KOTTAYAM DISTRICT-686508. 13. ANOOP R., MAKOTTU HOUSE, MODNNILAVU P.O. MARATHUMPARA, KOTTAYAM 686586. 14. JOBY THOMAS, KOTTARATHIL, AMARAVATHY P.O KUMILY, IDUKKI DISTRICT 685509. 15. RATHEESH KUMAR M.R., MANALATHU, KALLAR P.O., MUNDIYERMA, IDUKKI DISTRICT 685552. 16. JYOTHISH V., JYOTHI BHAVAN, KOOTAR P.O. IDUKKI DISTRICT 685602 17. JAYESH T.S., THAYYIL HOUSE, PACHADY P.O. IDUKKI DISTRICT 685553. 18. ARUN M.S., BLOCK NO.495, KALLAR P.O., THOOKKAPALAM 685552. 19. REHIM M.S., MEDAKMANDL HOUSE, KEERIKODE, THODUPUZHA, IDUKKI 685584. GOVT.PLEADER SMT.T.B.REMANI. STANDING COUNSEL SRI.ALEXANDER THOMAS. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14/07/2010, ALONG WITH WA NO.1045 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “CR” C.N.Ramachandran Nair & P.S.Gopinathan, JJ. ============================================ W.A.Nos.1042 & 1045 of 2010 ============================================ Dated this the 14th day of July, 2010. JUDGMENT Ramachandran Nair, J. 1.Appeals are filed by Peons in the State Excise Department, who are declared physically unfit by the Public Service Commission in the recruitment by transfer to the post of Excise Guards. 10% of the vacancies of Excise Guards in the Department are reserved for in-service candidates in the last grade. Even though recruitment is governed by Special Rules framed by the Government, namely, Kerala Excise and Prohibition Subordinate Service Rules, which does not specifically provide for any physical test being conducted by the Public Service Commission in the selection process, appellants were subjected to physical WA1042&1045/10 -:2:- test and were declared unfit. The appellants have relied on Rule 5 of Special Rules where under Category 3, qualification for Excise Guards are prescribed. All the appellants, admittedly, have the educational qualification, namely, S.S.L.C., physical measurements and they had obtained medical certificate from Doctor certifying their medical fitness and capacity for active outdoor work. Their grievance is that, in spite of the qualification they have, the P.S.C. put them to Physical Endurance Test, which is the same applicable for selection of police constables under the Special Rules applicable for their selection and on failing to pass five out of eight physical tests, the appellants have been disqualified. In the selection process, the appellants along with others, were subjected to undergo the test by the P.S.C., which provided eight items of Physical Efficiency Test and in WA1042&1045/10 -:3:- order to qualify for appointment, the candidate should pass in five items. The appellants, admittedly, did not pass the Physical Efficiency Test and consequently were found disqualified. The learned single Judge, by relying on Rule 2(c) and Rule 3 of the Kerala Public Service Commission Rules of Procedure, held that Physical Efficiency Test could be prescribed by P.S.C. under the Special Rules and so much so the test conducted for appellants along with others are permissible under the Special Rules and consequently the writ petitions were dismissed, against which, these writ appeals are filed. 2.Senior counsel Sri.K.Ramkumar appearing for the appellants referred to Clause 3 of Category 3 under Rule 5 of the Special Rules, which provides the condition for eligibility for appointment of Excise Guards by transfer and direct recruitment WA1042&1045/10 -:4:- as follows: “Must be certified by a Medical Officer not below the rank of an Assistant Surgeon as to his physique, fitness and capacity for active outdoor work.” 3.According to the counsel, once the certificate is produced in conformity with the above norms from the Doctor, it was not open to the P.S.C. to conduct Physical Efficiency Test as prescribed by them. He further pointed out that under G.O.(P) No.113/08/TD dated 4.6.2008 only, the Government extended the Physical Efficiency Test applicable to police for recruitment of Excise Guards. Since the appellants applied for and selection was also made prior to the introduction of the Rule, they should not have been subjected to the physical test later introduced, is his case. Admittedly, after 4.6.2008, the very same WA1042&1045/10 -:5:- Physical Efficiency Test available under the Special Rules applicable for recruitment to the police department is made applicable for selection of Excise Guards as well. However, the question to be considered is whether the selection made by incorporating Physical Efficiency Test by P.S.C. prior to the amendment of the Special Rules by notification dated 4.6.2008 is in order. Standing counsel appearing for the P.S.C. relied on Rule 2(c) and Rule 3 of the K.P.S.C. Rules of Procedure, which authorizes the P.S.C. to conduct examination to assess the merits of the candidates with respect to the said Rules. Rule 2(c) and Rule 3 of the P.S.C. Rules of Procedure are extracted hereunder: “2(c).”Examination” includes written examinations, practical examinations, physical efficiency test, oral test (interview) and any other test or examinations which the Commission may deem WA1042&1045/10 -:6:- fit to hold. 3.The Commission may conduct all or any one or more of the following examinations to assess the merits of candidates considered for recruitment to a service or post: (i)Written examination. (ii)Practical test. (iii)Physical Efficiency Test. (iv)Oral Test (interview). (v)Any other test or examination which the Commission may deem fit to hold.” 4.It is obvious from the above that where the selection is entrusted under the Special Rules to the P.S.C., it is within the powers of the P.S.C. to provide Physical Efficiency Test for the candidates for selection, if it is of the view that physical efficiency is a requirement to serve the post for which selection is made. The contention of the senior counsel appearing for the appellants is that once Special Rules are made prescribing qualification for selection and WA1042&1045/10 -:7:- appointment by transfer, the P.S.C. is not free to introduce any further Physical Efficiency Test. We are unable to accept this contention of the appellants because, we have already noted under category 3 of Rule 5 of the Special Rules, that candidates should get a medical certificate to the effect that he/she is physically fit and has the capacity for active outdoor work. Doctors admittedly do not conduct any physical efficiency test for any candidate before issuing a physical fitness certificate. Invariably the Doctor only examines the candidate and on being satisfied about the physical fitness of the candidate, issues fitness certificate, which, at the maximum, is prima facie evidence of the physical fitness of the person. However, it is open to any agency to test the correctness of a medical certificate issued by the Doctor by testing the candidate as regards his physical WA1042&1045/10 -:8:- efficiency, endurance and capacity to do outdoor work. Therefore, in our view, the above provision in the Special Rules is sufficient authorization to the P.S.C. to subject a candidate to Physical Efficiency Test, which is exactly what is done in this case. Besides this, when recruitment is left to the P.S.C., which is not disputed in this case, it is for the P.S.C. to adopt it's Rules of Procedure for selection. As already found by us, if P.S.C. is of the view that appellants' physical efficiency and ability to do outdoor work have to be looked into, necessarily P.S.C. has to put the candidate to Physical Efficiency Test and we find nothing arbitrary or unreasonable in the P.S.C. putting the appellants along with others to undergo Physical Efficiency Test in terms of their Rules of Procedure. In other words, even without any specific provision in the Special Rules for WA1042&1045/10 -:9:- recruitment, the P.S.C. can under Rule 3 of their Rules of Procedure put candidates for Physical Efficiency Test for appointment of Excise Guards. We, therefore, do not find any merit in the writ appeals and the same are accordingly dismissed. 5.Before parting with the matter, we should bring to the notice of the Government and P.S.C. that the same standards for Physical Efficiency Test prescribed for young people for direct recruitment should not be applied to older generation people in service when appointment by transfer is made without any age limit. If the age limit for direct recruitment and for recruitment by transfer is one and the same, then the same yardstick could be applied. However, if older people are eligible for appointment by transfer, certainly they will not be able to achieve the same standards of Physical Efficiency WA1042&1045/10 -:10:- Test prescribed for younger generation people, who are the applicants for direct recruitment. However, in this case, we find that, all the appellants were below the age of 40 when they applied for and underwent the selection process, including the Physical Efficiency Test. Therefore, we do not think the appellants are entitled to claim that high standards of Physical Efficiency Test prescribed for candidates applying for direct recruitment should not be made applicable to them. We, therefore, suggest to the Government and the P.S.C. to consider and provide realistic norms for Physical Efficiency Test for selection by transfer, based on age. C.N.Ramachandran Nair, Judge. P.S.Gopinathan, Judge. sl.