IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY, THE 19TH DAY OF SEPTEMBER 2014/28TH BHADRA, 1936
OP(KAT).No. 3389 of 2013 (Z)
## ----------------------------AGAINST THE ORDER IN OA 192/2013 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 08-08-2013
PETITIONER(S)/APPLICANT IN THE O.A:-:
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HARIS ALUMTHARAYIL, AGED 33 YEARS S/O.MUHAMMED A., ALUMTHARAYIL HOUSE, PAPPINIPPARA P.O. MANJERI VIA, MALAPPURAM DISTRICT.
BY ADVS.SRI.C.P.SUDHAKARA PRASAD (SR.) SRI.S.RAMESH SRI.NAVEEN.T SMT.POOJA SURENDRAN
## RESPONDENT(S)/RESPONDENTS IN THE O.A. AND ADDL. 3RD RESPONDENT:-:
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## 1. STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT HOME DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM - 695 001.
2. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM THIRUVANANTHAPURAM - 695 004.
3. G.PADMAGIRISH, S/O.GANGADHARA KURUP, 'BHASKARA', KAKKAZHAM P.O. ALAPPUZHA - 688 005.
(ADDL.R3 IMPLEADED VIDE ORDER DATED 3.10.13 IN IA.13012/13)
R2 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC R1 BY SR GOVERNMENT PLEADER SRI.S.JAMAL
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 19-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(KAT).No. 3389 of 2013 (Z)
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## APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1. TRUE COPY OF ORIGINAL APPLICATION, O.A.NO.192/2013 FILED BEFORE THE KAT.
EXHIBIT P2. TRUE COPY OF THE REPLY STATEMENT DATED 26.01.2013 FILED BY THE P.S.C. IN O.A.NO.192/2013 BEFORE THE KAT.
EXHIBIT P3. TRUE COPY OF THE ORDER DATED 8TH AUGUST, 2013 IN O.A.NO.192/2013 AND CONNECTED CASES OF THE KERALA ADMINISTRATIVE TRIBUNAL.
EXHIBIT P4. TRUE COPY OF THE RELEVANT EXTRACT OF THE RANKED LIST OF CANDIDATES FOR SELECTION TO THE POST OF S.I. OF POLICE (TRAINEE) IN THE GENERAL EXECUTIVE BRANCH-OPEN PUBLISHED BY THE PSC W.E.F. 11.09.2013.
EXHIBIT P5. TRUE COPY OF THE RELEVANT EXTRACT OF THE RANKED LIST OF CANDIDATES FOR SELECTION TO THE POST OF S.I. OF POLICE (TRAINEE) IN THE DISTRICT ARMED RESERVE-OPEN PUBLISHED BY THE PSC W.E.F. 11.09.2013.
/TRUE COPY/
PS TO JUDGE
ANTONY DOMINIC & ANIL K.NARENDRAN, JJ. ----------------------------------O.P(KAT).No.3389 of 2013 ----------------------------------Dated this the 19[th] day of September, 2014
## JUDGMENT
## Antony Dominic, J.
- 1.This original petition is filed by the applicant before the Kerala Administrative Tribunal in OA.192/13, which was dismissed by the Tribunal along with several other cases as per Ext.P3 order.
- 2.We heard the learned senior counsel for the petitioner, learned Government Pleader appearing for the first respondent and the standing counsel appearing for the second respondent.
- 3.In 2007 and 2008, notifications were issued by the Public Service Commission inviting applications for filling up the posts of Sub Inspector of Police (Trainee) in the General Executive Branch and in the District Armed Reserve respectively. Petitioner applied against both the notifications. He passed the written test, OMR test and the physical measurements.
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- 4.The physical efficiency test consists of 8 items, among which, candidates should pass at least in 5 items. This test was conducted by a Board consisting of three officials. In the test so conducted, on the ground that the petitioner failed in 4 items and passed only in three, he was held disqualified for participation in the 8[th] item of 1500 meters race.
- 5.As he was held to have failed in the physical efficiency test, he filed complaints dated 15.1.2013 to the Chairman and Secretary of the PSC. He did not get any response. It was in such circumstances he filed OA.192/13, copy of which is Ext.P1. Ext.P2 is the counter affidavit filed by the PSC producing Ext.R2(a), the guidelines governing the selection. The video recording of the physical efficiency test was seen by the Tribunal along with two independent experts. It was accordingly that the Tribunal passed Ext.P3 order dismissing the OA. It is challenging this order, the original petition is filed.
- 6.Contention raised by the learned senior counsel for the petitioner is that, in the order, the Tribunal
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has held that in the case of 'chinning', his case was a border line one and that no purpose would be served in considering that aspect as he had already failed in the long jump. Counsel contends that this reasoning adopted by the Tribunal is incorrect. According to the learned counsel, if the case of the petitioner was a border line one, applying the principles laid down by the Apex Court in its judgment in Mukund Swarup Mishra v. Union of India [(2007) 2 SCC 536], the petitioner ought to have been held passed in 'chinning'. The counsel further contends that once the petitioner is held to have passed in chinning, he should be allowed to participate in the 1500 meter race also. On these grounds, the learned counsel attacks the order passed by the Tribunal.
- 7.However, we are unable to agree with the learned senior counsel. Among the 8 items, admittedly, the petitioner failed in throw of cricket ball, high jump and long jump. He has not dispute on this. In so far as pulling up or chinning is concerned, the Tribunal has seen the video recording of this item
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and it was thereafter that the Tribunal has held that it was a border line case.
- 8.The physical efficiency test in connection with the recruitment to the post of Sub Inspector of Police was conducted by a Board consisting of three experts.
9. Along with the counter affidavit filed in this OP, the PSC has produced the valuation sheet which shows that the results of the test have been recorded therein and that the valuation sheet has been signed not only by the members of the board but also by the candidates, including the petitioner. In that valuation, it has been specifically recorded that the petitioner failed in pulling up or chinning. Therefore, once the petitioner has accepted that decision of the Board, he cannot now contend otherwise.
10. Even otherwise, if the case is found to be a border line one, the resultant position, at best, is that another view also is possible. In such a situation also, the courts will certainly respect the
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view of the expert and uphold the same as final one and will not substitute the said conclusion with that of the court. It was therefore that the Tribunal, which also had the benefit of seeing the video along with two independent experts, accepted the result and declined to probe further into the matter.
- 11.Once the result of the physical efficiency test in so far as the pulling up or chinning is upheld, the Board cannot be faulted for disqualifying the petitioner for participation in the 1500 meters race for the reason that evenif he succeeded in that item, he will not satisfy the minimum requirement of pass in 5 items.
- 12.In so far as the judgment of the Apex Court in Mukund Swarup Mishra (supra) relied on by the learned senior counsel for the peititoner is concerned, that was a case dealing with the selection and appointment of dealers of Liquefied Petroleum Gas marketed by the public sector oil companies. Following the cancellation of the dealership when the proceedings of appointments were evaluated by the committee
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appointed by the Supreme Court, some of the cases were found to be border line cases by the Supreme Court and therefore, appointments were not disturbed. In our view, that standard of appreciation cannot be applied to a case of physical efficiency test conducted by a board of experts for recruitment to the post of Sub Inspector of Police, where physical efficiency is a matter of prime importance.
- 13.We do not think that the peititoner has any sustainable claim against the respondents and do not find any reason to interfere with the order passed by the Tribunal.
In the result, the original petition fails. It is accordingly dismissed.
Sd/ANTONY DOMINIC, Judge.
Sd/ANIL K.NARENDRAN, Judge.
kkb.
