IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 WP(C).No. 17477 of 2009(D) ---------------------------------------- PETITIONER(S): ------------------------- P.T.SURESH KUMAR, S/O.THANKAYYAN NADAR, AGED 4O YEARS, WORKING AS PEON, COMMISSIONERATE OF EXCISE,EXCISE HEAD QUARTERS, THIRUVANANTHAPURAM AND RESIDING AT IYRAL SURESH BHAVAN, KALLIYOOR P.O., THIRUVANANTHAPURAM. BY ADV. MR.N.UNNIKRISHNAN RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, TAXES (F) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY, PATTOM, THIRUVANANTHAPURAM. 3. THE DISTRICT OFFICER, K.P.S.C., DISTRICT OFFICE, THIRUVANANTHAPURAM. R1 BY SR. GOVERNMENT PLEADER MR. P.NANDAKUMAR R2 & R3 BY ADV. MR. ALEXANDER THOMAS, SC, KPSC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.N.RAVINDRAN, J. --------------------------------------------- W.P.(C)No.17477 of 2009 --------------------------------------------- Dated 14th August, 2009 JUDGMENT Heard Sri.N.Unnikrishnan, the learned counsel appearing for the petitioner, Sri.P.Nandakumar, the learned Government Pleader appearing for the State of Kerala and Sri.Alexander Thomas, the learned standing counsel appearing for the Kerala Public Service Commission. 2. The petitioner is presently working as Peon in the Commissionerate of Excise, Thiruvananthapuram. When the Kerala Public Service Commission issued Ext.P1 notification inviting applications for appointment to the post of Excise Guards by transfer and also by direct recruitment, the petitioner applied for appointment by transfer. The petitioner's application was entertained and he was also called to appear for the written test held on 1.3.2008. The petitioner appeared for the written test. Thereafter, he was informed by Ext.P4 letter dated 30.5.2009 that as he has crossed the upper age limit of 35 years he is not eligible for appointment by transfer. This writ petition was WP(C).No.17477/2009 2 thereupon filed challenging Ext.P4 and seeking a writ in the nature of mandamus commanding the respondents to consider the petitioner for appointment by transfer to the post of Excise Guard. The petitioner contends that there is no provision in the Special Rules or in the Kerala State & Subordinate Services Rules prescribing any upper age limit for appointment by transfer and therefore the decision taken by the Kerala Public Service Commission that the petitioner is not eligible to be appointed by transfer on the ground that he is over aged cannot be sustained. The petitioner also relies on the decision of a learned Single Judge of this Court in W.P.(C)No.7136 of 2008 in support of the said contention. 3. A learned Single Judge of this Court has by Ext.P5 judgment delivered in W.P.(C)No.7136 of 2008 held that in the Special Rules or the General Rules no upper age limit has been prescribed for appointment by transfer to the post of Excise Guard and therefore applications for appointment by transfer from Last Grade Servants of the Excise Department cannot be rejected on the ground that they are over aged. The Kerala Public Service Commission is a party to the said judgment. The WP(C).No.17477/2009 3 said judgment has become final. Therefore, the said decision will govern the case of the petitioner also. 4. The learned standing counsel appearing for the Kerala Public Service Commission submits that the physical efficiency test in respect of the selection made pursuant to Ext.P1 has been completed. In view of the fact that the petitioner was eligible to be considered for appointment, the Kerala Public Service Commission is bound to conduct a physical efficiency test to assess the petitioner's eligibility. The petitioner is working in the office of the Commissionerate of Excise, Thiruvananthapuram and the Head Office of the Kerala Public Service Commission is also at Thiruvananthapuram. Therefore, in my opinion, the Commission can very easily conduct a physical efficiency test utilising the service of Police Officers and Physical Education Instructors who are available in plenty at Thiruvananthapuram. I accordingly dispose of this writ petition with a direction to respondents 2 and 3 to conduct a physical efficiency test for the petitioner within three months from the date on which the petitioner produces a certified copy of this judgment before them with due notice to the petitioner. The petitioner WP(C).No.17477/2009 4 shall be given at least two clear days notice to participate in the physical efficiency test. In the event of the petitioner being found fit in the physical efficiency test, his name shall be included at the appropriate place in the ranked list. P.N.RAVINDRAN Judge TKS