IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 WP(C).No. 6384 of 2008(I) ------------------------- PETITIONER: ------------ SIBY GEORGE, ASI OF POLICE, A.R.CAMP, KOTTAYAM, VALIYAMALAYIL HOUSE, ATHIRAMPUZHA P.O., KOTTAYAM DISTRICT. BY ADV. SRI.SHAJI THOMAS PORKKATTIL SRI.BINU PAUL SRI.T.V.VINU RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO HOME (K) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER FOR R2 SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ------------------- W.P.(C).6384/2008 -------------------- Dated this the 29th day of July, 2008 JUDGMENT Petitioner was appointed as Police Constable in the year 1987. While working as ASI in the District Armed Reserve, he applied for appointment to the post of Sub Inspector of Police Trainee (General Executive) in the Kerala Police. He passed the written test and physical efficiency test and was included in the rank list, but was not appointed due to lack of vacancies. 2. Thereafter, the PSC initiated proceedings for appointment to the post of Sub Inspector of Police Trainee, General Executive Branch. Petitioner applied for the same. He was successful in the written test. But when the physical efficiency test was conducted, he could pass only four out of the total eight items. Petitioner then moved the Government by Ext.P2 representation seeking to invoke the powers of the Government under Rule 39 of Part-II of K.S. & S.S.R. In Writ Petition No.2691/2006 filed by the petitioner praying for a direction to the W.P.(C).6384/2008 2 respondents to appoint the petitioner as Sub Inspector of Police Trainee (General Executive), petitioner further pointed out that in a similar case involving one Sri. John, Government had invoked its power under Rule 39 and directed that he be appointed in spite of the fact that he had not passed the physical efficiency test. Government in Ext.P6 counter affidavit filed in Writ Petition No.2691/2006 took the stand that John's case was considered as a special case because he had been included in the rank list of Armed Police Sub Inspector (AP Battalion) and the physical fitness was such that he could pass the physical efficiency test for the post in question. The writ petition was ultimately disposed of directing the Government to consider the petitioner's representation. The matter was considered by the Government and this led to Ext.P10 order. Government, while considering the petitioner's contention that he has been subjected to hostile discrimination vis-a vis Sri.John, found that John was actually included in the rank list of APSI of Police ( AP W.P.(C).6384/2008 3 Battalion) as he has passed the written test and five out of eight items in the physical efficiency test for the post of SI of Police (AP Battalion). On this premise, petitioner's claim came to be rejected. Ext.P10 order passed in this regard and subsequent order passed by the Government as Ext.P13, which was on application for review filed by the petitioner himself, have been challenged in this writ petition. 3. Counter affidavit has been filed by the second respondent. Essentially it has been demonstrated in the counter affidavit that John was actually included in the list of SI of Police (AP Battalion) and therefore, while invoking its power under Rule 39 in relation to John, Government had material on the basis of which it could justify its exercise of power. Case of the petitioner stands on a different footing. Therefore, even in the context of invoking powers of the Government under Rule 39, petitioner cannot be legitimately plead a case of hostile discrimination. W.P.(C).6384/2008 4 4. There is force in the above submission made on behalf of the respondents. Apart from the above, this Court cannot compell the Government to necessarily invoke its power under Rule 39 of Part-II of K.S. & S.S.R. In the circumstances, I do not find any error in the stand taken by the Government either in Exts.P10 or P13. Writ petition is bereft of merit and hence dismissed. V.GIRI, Judge mrcs