O.P.(KAT).489/2013 (Z)

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HON'BLE THE CHIEF JUSTICE MRS. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 5TH DAY OF FEBRUARY 2013/16TH MAGHA 1934 ## **O.P.(KAT).No.489 of 2013 (Z)** ------------------------------------------------------ AGAINST THE ORDER IN O.A.190/2013 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM, DATED 22-01-2013. ---------------------- **PETITIONERS/** APPLICANTS IN O.A.:- ---------------------------------------------------- 1. REVIKUMAR. B.K. AGED 36, S/O.KUNJU PILLAI, BOUNDRICKAL, GURUNADHANMANNU P.O., SEETHATHODE, PATHANAMTHITTA, PIN - 689 667. 2. SHIYAS S, AGED 29, S/O.M.SHAMSUDHEEN, KOTTUKAL P.O., ANCHAL, PIN - 691 519. 3. ANISH RAJ. R., AGED 31, S/O.RAJENDRAN PILLAI M., PRASANTHI, VADAMON P.O., ANCHAL - 691 306. 4. MANOJ C., AGED 29, S/O.CHACKO. L. , MANJU BHAVAN, CHERUVAIKKAL P.O., AYOOR (VIA), KOLLAM, PIN - 691 533. 5. MITHILAJ A.R., AGED 28, S/O.ABDUL RAHIM, ARM MANZIL, MADANNADA, THEKKADA, VEMBAYAM P.O., THIRUVANANTHAPURAM, PIN - 695 615. 6. VIMALACHANDRAN R, AGED 29, S/O.RAMACHANDRAN NAIR, VIMAL VIHAR, ELAMADU P.O., AYOOR, PIN - 691 359. 7. SUBIN M.THOMAS, AGED 30, S/O.M.I.THOMAS, MANIYARA, KUNJITHAI P.O., NORTH PARAVOOR, PIN - 683 522. BY ADVS.SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH. O.P.(KAT).489/2013 - 2 - ## **RESPONDENTS** / RESPONDENTS IN O.A.:- ------------------------------------------------------------ 1. STATE OF KERALA, - REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM - 695 004. R1 BY SENIOR GOVERNMENT PLEADER SRI.P.I.DAVIS. R2 BY STANDING COUNSEL SRI.P.C.SASIDHARAN' R BY SMT.CAROLIN SINDHU VAZ THIS ORIGINAL PETITION (KERALA ADMINISTRATIVE TRIBUNAL) HAVING COME UP FOR ADMISSION ON 05-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- ## O.P.(KAT).489/2013 ## **APPENDIX** ## PETITIONERS' EXHIBITS:- -------------------------------------- |EXT.P1 -|TRUE COPY OF THE O.A.NO.190/2013 OF THE KERALA| |---|---| ||ADMINISTRATIVE TRIBUNAL, TRIVANDRUM.| |ANNEXURE A1 -|TRUE COPY OF RELEVANT NOTIFICATION OF CATEGORY| ||NO.315/07 IN THE GAZETTE DATED 28.9.07.| |ANNEXURE A2 -|TRUE COPY OF RELEVANT NOTIFICATION OF CATEGORY| ||NO.11/08 IN THE GAZETTE DATED 14.01.08.| |ANNEXURE A3 -|TRUE COPY OF RELEVANT NOTIFICATION OF CATEGORY| ||NO.267/2008 IN THE GAZETTE DATED 13.08.08.| |ANNEXURE A4 -|TRUE COPY OF ADMISSION TICKET ISSUED TO THE 1ST| ||PETITIONER BY THE 2ND RESPONDENT VIDE SL.NO.959.| |ANNEXURE A5 -|TRUE COPY OF ADMISSION TICKET ISSUED TO THE 1ST| ||PETITIONER BY THE 2ND RESPONDENT VIDE SL.NO.3310.| |ANNEXURE A6 -|TRUE COPY OF ADMISSION TICKET ISSUED TO THE 1ST| ||PETITIONER BY THE 2ND RESPONDENT VIDE SL.NO.4700.| |ANNEXURE A7 -|TRUE COPY OF ADMISSION TICKET ISSUED TO THE 2ND| ||PETITIONER BY THE 2ND RESPONDENT VIDE SL.NO.984.| |ANNEXURE A8 -|TRUE COPY OF ADMISSION TICKET ISSUED TO THE 2ND| ||PETITIONER BY THE 2ND RESPONDENT VIDE SL.NO.3287.| |ANNEXURE A9 -|TRUE COPY OF ADMISSION TICKET ISSUED TO THE 2ND| ||PETITIONER BY THE 2ND RESPONDENT VIDE SL.NO.4645.| |ANNEXURE A10 -|TRUE COPY OF ADMISSION TICKET ISSUED TO THE 3RD| ||PETITIONER BY THE 2ND RESPONDENT VIDE SL.NO.3280.| |ANNEXURE A11 -|TRUE COPY OF ADMISSION TICKET ISSUED TO THE 3RD| ||PETITIONER BY THE 2ND RESPONDENT VIDE SL.NO.4683.| |ANNEXURE A12 -|TRUE COPY OF ADMISSION TICKET ISSUED TO THE 4TH| ||PETITIONER BY THE 2ND RESPONDENT VIDE SL.NO.1029.| |ANNEXURE A13 -|TRUE COPY OF ADMISSION TICKET ISSUED TO THE 4TH| ||PETITIONER BY THE 2ND RESPONDENT VIDE SL.NO.3276.| |ANNEXURE A14 -|TRUE COPY OF ADMISSION TICKET ISSUED TO THE 5TH| ||PETITIONER BY THE 2ND RESPONDENT VIDE SL.NO.70.| O.P.(KAT).489/2013 - 2 - - ANNEXURE A15 - TRUE COPY OF ADMISSION TICKET ISSUED TO THE 5TH PETITIONER BY THE 2ND RESPONDENT VIDE SL.NO.2993. - ANNEXURE A16 - TRUE COPY OF ADMISSION TICKET ISSUED TO THE 6TH PETITIONER BY THE 2ND RESPONDENT VIDE SL.NO.3248. - ANNEXURE A17 - TRUE COPY OF ADMISSION TICKET ISSUED TO THE 6TH PETITIONER BY THE 2ND RESPONDENT VIDE SL.NO.4655. - ANNEXURE A18 - TRUE COPY OF ADMISSION TICKET ISSUED TO THE 7TH PETITIONER BY THE 2ND RESPONDENT VIDE SL.NO.1572. - ANNEXURE A19 - TRUE COPY OF ADMISSION TICKET ISSUED TO THE 7TH PETITIONER BY THE 2ND RESPONDENT VIDE SL.NO.3438. - ANNEXURE A20 - TRUE COPY OF SCHEDULE FOR SUB INSPECTOR OF POLICE IN THE POLICE DEPARTMENT FOR PHYSICAL EFFICIENCY TEST. - ANNEXURE A21 - TRUE COPY OF REPRESENTATION DATED 14.01.2013 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT. - EXT.P2 - TRUE COPY OF ORDER DATED 22.1.2013 IN O.A. NO.190/2013 OF KERALA ADMINISTRATIVE TRIBUNAL. RESPONDENT'S EXHIBITS:- - --------------------------------------- NIL. - true copy - Manjula Chellur, C.J. & K.Vinod Chandran, J. -------------------------------------O.P.(KAT).No.489 of 2013-Z -------------------------------------Dated this, the 5[th] day of February, 2013 ## JUDGMENT ## K.Vinod Chandran,J. The petitioners were all aspirants to the post of Sub Inspector of Police; the recruitment of which was conducted to three different branches; and are aggrieved by confining the Physical Efficiency Test to one stage; which, they allege, has been a change introduced after the selection process commenced. 2. The 2[nd] respondent, Kerala Public Service Commission (hereinafter referred to as “the Commission”) issued notification for appointment to the post of Sub Inspector of Police in the District Armed Reserve, General Executive Branch and the Armed Police Battalion. Applications were called for by three separate notifications, issued as Annexure A1, Annexure A5 and Annexure A9. All the applicants submitted separate applications for the said posts in all the three branches. For the General Executive Branch, the selection process involved an objective test and also a descriptive one, with only candidates OP(KAT).No.489 of 2013-Z - 2 - qualified in the objective test being permitted to appear for the descriptive test. The recruitment in the other two branches was by way of an objective test alone. 3. The Commission after the test, published separate short-lists for each of the aforementioned branches. The petitioners who had qualified in the recruitment to more than one branch were called for physical measurement and also Physical Efficiency Test on different dates and was issued with call letters for the physical test to be conducted in each of the branches. The exact dates and the branches to which the individual petitioners were called, has been detailed in the order of the Tribunal and there is no dispute or controversy with respect to that. The entire dispute revolves around the condition specified in the admission ticket, that a candidate who is short-listed in more than one category will be allowed to participate in the Physical Efficiency Test only once. It was mandated that such a candidate should avail his first chance on the first day to which he is admitted and should surrender the other admission tickets issued to him, to the verifying officer. The petitioners allege that this is a condition which was OP(KAT).No.489 of 2013-Z - 3 - not there in the original notification and has been introduced mid-way, thus changing the rules of the game and visiting the petitioners and other similarly placed persons with prejudice. 4. It is to be noticed immediately that all the petitioners subjected themselves to the physical test and the Physical Efficiency Test as stipulated in the admission ticket and on failing to qualify in the Physical Efficiency Test, were before the Tribunal challenging the condition imposed as arbitrary and vitiated for reason of it being introduced long after the selection process commenced. 5. The Physical Efficiency Test prescribed in each of the notifications, being Annexure A1, Annexure A5 and Annexure A9 are identical. All the said notifications prescribe 8 items to assess the physical efficiency of a candidate and the minimum standard prescribed for each case also one and the same. The prescription was also that a candidate must qualify in any 5 out of the 8 items, which was reiterated in each of the above notifications. The petitioners having appeared for the Physical Efficiency Test, failed to reach the benchmark and failed to qualify. Hence, it is their submission that they should OP(KAT).No.489 of 2013-Z - 4 - be allowed to participate in the Physical Efficiency Test scheduled for the other branches in which they have qualified, since their performance in the earliest test did not reach upto the standard only because of the unfortune circumstance that would have afflicted them on the day on which the test was conducted. The petitioners would canvass the position that merely because they could not achieve the standard on the first day, it cannot be assumed that they would not achieve the required standards on the second day. Especially in the context of the selection being conducted to three different branches, confining the Physical Efficiency Test to one single stage visits them with undue prejudice and injury, since it cannot be merely assumed that the petitioners would not do well in the next stage. 6. We are of the opinion that this is a malady which affects any selection process. That apart, we shall first consider the issue whether the contention of the petitioners that this involves a change in the rules of the game mid-way and, hence, is vitiated, can be countenanced. The petitioners have relied on the decisions of the Hon'ble Supreme Court reported in OP(KAT).No.489 of 2013-Z - 5 - _**K.Manjusree v. State of A.P.**_ **[(2008) 3 SCC 512],** _**Madan Mohan Sharma v. State of Rajasthan**_ **[(2008) 3 SCC 724]** and _**Hemani Malhotra v. High Court of Delhi**_ **[(2008) 7 SCC 11]** to contend that no recruitment authority could change the rules of the game mid-way. We keep in mind the binding precedents of the Hon'ble Supreme Court while considering the above issue. 7. _**K.Manjusree**_ and _**Memani Malhotra**_ (both _supra_ ) were cases on which the Selection Committee decided to prescribe minimum marks for the interview after the selection process commenced. While clarifying that such a prescription would not be illegal, the Supreme Court nevertheless set aside the selection for reason that the prescription was made mid-way. _**Madan Mohan Sharma's case**_ ( _supra_ ) was one in which changes with reference to eligibility conditions were brought about in the rule after the advertisement for selection was made. The Hon'ble Supreme Court held that recruitment could be proceeded only in accordance with the advertised educational qualifications. 8. As noticed above, the Physical Efficiency Test OP(KAT).No.489 of 2013-Z - 6 - prescribed in all the three notifications were one and the same with similar standards being prescribed. Undisputedly the recruitment was being effected to the Kerala Police, but under separate notifications in three different branches. The threshold requirement was that they should qualify in the test prescribed as per each of the notifications. We have already seen that the tests for the three branches were held separately and also involved minor changes in procedure. The petitioners, all of whom, had qualified in the threshold test; in more than one branch. 9. The recruiting agency was faced with the prospect of examining, the candidates who were successful in more than one branch, in physical test and efficiency more than once. This required the very same test being conducted and the very same standards being applied again and again. While issuing admission tickets for physical test and Physical Efficiency Test, it was stipulated that the candidates would be subjected to physical test and Physical Efficiency Test only once. If a candidate qualifies in the same, then he would not have to subject himself to the same test for being considered for OP(KAT).No.489 of 2013-Z - 7 - selection to the other two branches. Similarly, a candidate who is disqualified in the physical efficiency test would not be permitted to appear for the very same test in the other two branches, since then that would be giving a candidate opportunity after opportunity to better oneself and the selection itself would be reduced to a farce. 10. We cannot sustain the plea that this procedure involves a change in the selection process mid-way. The rules in the game remains the same, since the physical standards required as also the items on which efficiency is tested remain the same with similar minimum standards to be achieved in the efficiency test. The benchmark also remains in all the three branches as 5 out of 8. These are the rules of the game and they have not been tampered with at all by the recruiting agency mid-way. The selection criteria is not at all meddled with. What was stipulated is only that a person who had been called for more than one branch would be required to appear in only one Physical Efficiency Test and the result of the same would govern, the selection to all the three branches. This, according to us, we reiterate, does not involve any change in OP(KAT).No.489 of 2013-Z - 8 - the rules of the game. The petitioners also cannot rely on unfortunate circumstances on a day to contend that they should be given opportunities one after another to test their luck. Definitely a selection, especially in the most literate State and one of the most populous one, would involve an element of luck when actually the selection involves a process of elimination. However, discrimination and arbitrariness cannot be stretched to the level of seeking for availing opportunity one after another for bettering one's prospects depending on what each day brings to the candidates. 11. We observe, that the Commission had, before the Tribunal, contended that the decision to conduct Physical Efficiency Test en-bloc for all the three branches was taken having regard to the availability of officers who would test them; the availability of grounds, and so on and so forth. The Commission also expressed its anxiety in repeatedly examining the very same person twice or thrice, thus delaying the publication of the final list and also the recruitment process. 12. The Tribunal rightly found that there is no acquiescence and the petitioners cannot be faulted for not OP(KAT).No.489 of 2013-Z - 9 - challenging the stipulation even prior to appearing for the selection. The Tribunal noticed that the stipulation in the admission ticket mandated that any candidate who had qualified for more than one branch ought to avail the first opportunity given to him for testing the physical efficiency and at that point has to surrender the other admission tickets. But, however, we are concerned with whether the condition visits the petitioner with arbitrariness or discrimination and whether it involves any change in the rules of the game mid-way. We are unable to agree with the petitioners, with regard to the aforementioned contention, for the reasons stated above. It is trite that judicial review is to be exercised warely taking care not to transgress on the discretion conferred on a recruiting agency. Irregularity, illegality, irrationality and rank discrimination would definitely vitiate any selection procedure. But, it is not to say that the Courts can super-impose its own view on reasonableness to set aside an otherwise reasonable procedure adopted by a recruiting agency. The Commission has explained the factors which influenced the decision to confine the physical test and Physical Efficiency Test to one OP(KAT).No.489 of 2013-Z - 10 - stage. As the Tribunal held, it visits certain persons with favour, while others with disfavour mainly by reason of circumstances which are fortuitous or otherwise. That, however, cannot be the anvil on which the reasonableness of a decision is tested. The Court cannot substitute a reasonable procedure adopted by the recruiting agency merely for reason of a few being affected by the same, again for reason only of their having not been able to put their best foot forward on a particular occasion/day. That alone cannot be relevant for consideration in judicial review and we restrain ourselves from interfering with the order of Tribunal, which has upheld the action of the Commission. The Writ Appeal is dismissed, however, with no order as to costs. Sd/Manjula Chellur, Chief Justice vku/ Sd/K.Vinod Chandran, Judge. ( true copy )