Shankumar T.T. and others v. State of Kerala and Director General of Police

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN** **THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933** **WP(C).No. 25947 of 2011(P)** **---------------------------------------** **PETITIONERS:** ## **---------------------** **1. SHANKUMAR T.T, POLICE CONSTABLE (A-4404) TRAFFIC UNIT, CHERTHALA.** **2. VENUGOPAL. M., POLICE CONSTABLE (5011). KOLLAM EAST POLICE STATION, KOLLAM.** **3. JAYAKUMAR .R, POLICE CONSTABLE (5164) TRAFFIC POLICE STATION, KOLLAM.** **4. SANTHOSH KUMAR. G., POLICE CONSTABLE (7470), MATTANCHERRY POLICE STATION, COCHIN CITY.** **BY ADVS. SRI.ELVIN PETER. P.J, SRI.T.G.SUNIL (PRANAVAM), SRI.K.R.GANESH.** **RESPONDENTS:** ## **------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DIRECTOR GENERAL OF POLICE, (STATE POLICE CHIEF), THIRUVANANTHAPURAM-695 001.** ## **R1 & R2 BY GOVT. PLEADER SMT. N. SUDHADEVI.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/09/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C).NO.25947/2011-P:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXHIBIT P1: TRUE COPY OF THE RELEVANT EXTRACT OF THE NATIONAL PHYSICAL EFFICIENCY TEST PLAN.** **EXHIBIT P2: TRUE COPY OF THE G.O DATED 5.10.1970** **EXHIBIT P3: TRUE COPY OF THE G.O DATED 26.07.1995** **EXHIBIT P4: TRUE COPY OF THE GAZETTE NOTIFICATION DTD. 31.12.1996.** **EXHIBIT P5: TRUE COPY OF THE G.O DATED 25.02.2005.** **EXHIBIT P6: TRUE COPY OF JUDGMENT DTD.07.12.2006 IN W.P(C)NO.32583/06 OF THIS HON'BLE COURT.** **EXHIBIT P7: TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DTD. 9.03.07** **EXHIBIT P8: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS BEFORE THE HOME MINISTER.** **EXHIBIT P9: TRUE COPY OF JUDGMENT IN W.P(C)NO.34514/2008 (H) OF THIS HON'BLE COURT.** **EXHIBIT P10: TRUE COPY OF THE ORDER DATED 18.07.2011.** ## **RESPONDENT'S EXHIBITS:NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **Prv.** ## **K.SURENDRA MOHAN, J.** = = = = = = = = = = = = = WP(C).No.25947 of 2011-P. = = = = = = = = = = = = = Dated this the 29[th] September, 2011. ## **J U D G M E N T** The petitioners are working as Constables in the Police Department. They had applied for selection and appointment to the post of Sub Inspector pursuant to Ext.P4. However, they did not succeed in the physical efficiency test. According to the petitioners, because of the reason of their age, they are unable to compete with the young blood that constitute the present cadre of Police Constables. Therefore, they submitted Ext.P8 representation before the first respondent seeking relaxation of the physical efficiency test so that they would be able to get appointed as Sub Inspectors. When no orders were forthcoming on Ext.P8, they approached this Court by filing WP(C).No.34514/2008. The said writ petition has been disposed of by this Court as per judgment dated 2 **WP(C).No.25947 /2011-P.** 24.11.2008 directing the grievances of the petitioners to be considered. Accordingly, the matter was considered and Ext.P10 order has been passed by the Government, rejecting the request of the petitioners. This writ petition is filed challenging Ext.P10. 2. According to Sri.Elvin Peter, who appears for the petitioners, as per Ext.P3 order, permission has been granted to fill up the vacancies of Sub Inspectors reserved for ministerial staff. The said vacancies are to be filled up by graduate policemen in the Police Department with the stipulation that they should be selected in the “same manner as open market candidates with age relaxation or by other relaxation”. The counsel lays emphasis on the words, to grant “any relaxation”, and contends that the said provision is capable of conferring power on the Government to relax the requirement of a pass in the physical efficiency test as well. It is further contended that in the case of other persons, such relaxation has been granted in Ext.P5. Therefore, it is contended that in the case of the petitioners 3 **WP(C).No.25947 /2011-P.** also a similar treatment may be meted out so as to appoint them as Sub Inspectors. 3. The contentions of the counsel for the petitioners are opposed by the learned Government Pleader, who points out that in none of the Government Orders relied on by the counsel, physical efficiency test has been waived or relaxed. Therefore, it is pointed out that there are absolutely no grounds to interfere with Ext.P10. The same has been issued after considering all the relevant aspects. 4. The counsel for the petitioners submits that though there was a direction in Ext.P6 judgment of this Court to consider Ext.P5 and similar representations submitted by the petitioner, the representations have not been considered in Ext.P10. The learned Government Pleader counters the above argument by pointing out that all relevant aspects have been considered in Ext.P10. 5. I have considered the rival contentions anxiously. A pass in the physical efficiency test is one of the criteria that has to be satisfied for selection and appointment to the 4 **WP(C).No.25947 /2011-P.** post of Sub Inspectors. It cannot be disputed that the requirements of the uniformed service and the nature of the duties that are to be discharged by a Sub Inspector of Police are those that require a certain amount of physical efficiency, that is not relatable to the age of a person. Therefore, the requirement of passing a physical efficiency test cannot be said to be a minor requirement as far as the nature of duties of a Sub Inspector is concerned. The appointing authorities have prescribed the said requirement as an essential criterion to be satisfied by all aspirants to the said post. It is true that as per Ext.P3 permission to relax age or any other criteria is granted. However, there is no specific mention of a power to relax the physical efficiency test that is required to be passed. Ext.P5 order has been issued specifying therein that the same was a special case. It is true that as per Ext.P6 judgment this Court has directed the representations of the petitioners in this regard to be considered. Ext.P10 shows that the contentions of the petitioners have been considered. The 5 **WP(C).No.25947 /2011-P.** petitioners were also given an opportunity of being heard in person. It is stated in Ext.P10 that the matter was considered by the Government thereafter and it is decided that there are no grounds to relax the requirement of passing the physical efficiency test. 6. Since the power to prescribe qualifications for a particular post is vested in the Government, when the Government decides not to relax any of the prescribed qualifications, there is little scope for interference in judicial review. All the contentions of the petitioners have been considered in Ext.P10. Therefore, I do not find any grounds to interfere with the said order. 7. The counsel for the petitioner has placed reliance on the judgment of the Apex Court in **State of Karnataka v. R.Vivekananda Swamy** (2008(5) SCC 328). It is contended by the counsel for the petitioners that when the Government decides to exercise its power for relaxation, the authority concerned has to act judiciously, keeping in mind the purport and object thereof. Though the consideration 6 **WP(C).No.25947 /2011-P.** need not be of mathematical exactitude, the same should be effective. On the basis of the above dictum, it is pointed out that the denial of the same treatment to the petitioners, as given in Ext.P5 is violative of the principles of fairness. As already noticed hereinabove, it is specifically mentioned in Ext.P5 that relaxation in the said case was granted as a special case. For the said reason, the petitioners cannot claim the benefit of the said relaxation as a matter of right. The petitioners in the present case are persons who had participated in the selection process and failed in the physical efficiency test. Therefore, they have not satisfied the eligibility criteria for being considered for selection to the post of Sub Inspectors. This writ petition fails and it is accordingly dismissed. ## **K.SURENDRA MOHAN, (Judge)** ## **Kvs/-**