Shankumar T.T. and Others v. State of Kerala and The Director General of Police

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE Ag. CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 6TH DAY OF JANUARY 2012/16TH POUSHA 1933 WA.No. 4 of 2012 ----------------------- AGAINST THE JUDGMENT IN WPC.25947/2011 DATED 29/09/2011 ............. ## APPELLANTS/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 ADV.SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH ## RESPONDENTS/RESPONDENTS: ## 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT HOME DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695 001. - 2 THE DIRECTOR GENERAL OF POLICE THIRUVANANTHAPURAM-695 001. BY SENIOR GOVERNMENT PLEADER, SMT. GIRIJA GOPAL. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06-01-2012 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Manjula Chellur, Ag. C.J. & P.R.Ramachandra Menon, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No. 4 OF 2012 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6[th] day of January, 2012 ## **JUDGMENT** ## **Ramachandra Menon, J.** Whether the exemption sought for by the appellants from passing the 'Physical Efficiency Test', which is a mandatory requirement for the purpose of selection to the post of Sub Inspector(S.I.) is sustainable, in view of extension of such benefit by the Government to another person as per Ext.P5 is the question involved. 2. The case of the appellants is that they were recruited as Police Constables years back and were serving accordingly. By virtue of the relevant recruitment rules, a quota is earmarked for in-service candidates in the matter of selection to the post of S.I. However, as per the rules, it is obligatory for the contestants to clear the Physical Efficiency Test as well, besides succeeding in the written test for the purpose of selection. The appellants contend that in view of their advanced age, they are not in a position to compete with the young blood ## W.A. No. 4 of 2012 ## -:2:- and hence they might be given relaxation, from undergoing Physical Efficiency Test, more so, when they have already cleared the test when they were selected and posted as Police Constables. 3. When the matter came up for consideration before the learned Single Judge, reference was made to Ext.P3, whereby the Government had issued certain norms for relaxation of the requirements; particularly with regard to the 'age' and such other aspects in the matter of selection. Reliance was also sought to be placed on Ext.P5, whereby the Government granted exemption from clearing the 'Physical Efficiency Test' to the person named therein, invoking the power under Rule 39 of Part II K.S. & S.S.R. The case of the writ petitioners was that they were also entitled to have similar benefit which hence was sought for. 4. After considering the claim put forth by the writ petitioners and also the submissions made on the part of the Government with reference to the materials on record and the relevant provisions of law, the learned Single Judge observed that, the writ petitioners were not entitled to claim the benefit of W.A. No. 4 of 2012 -:3:- relaxation as a matter of right and it was always for the employer to prescribe the relevant norms for selection, more so, in respect of posts like S.I. of Police, where physical efficiency matters are much. It was also observed by the learned Single Judge that Ext.P5 order was passed under a particular circumstance, which however was not applicable to the case in hand. Accordingly, interference was declined and the writ petition was dismissed; which is under challenge in the appeal. 5. Heard the learned counsel for the appellants at length, who seeks to have similar benefit as granted to the person named in Ext.P5 and submits that the law declared by the Apex Court in **State of Karnataka v. V.R.Vivekananda Swamy** [2008(5) SCC 328] has been wrongly interpreted and understood by the learned Single Judge. The learned counsel concedes that there is of course no vested right for the appellants to contend that they should be given the benefit of relaxation. But such benefit has already been granted by the Government to some other person as borne by Ext.P5, and hence such power of relaxation is vested with the Government as borne by Ext.P3 Government Order, the appellants are also entitled to have W.A. No. 4 of 2012 ## -:4:- similar treatment, lest there should be any instance of discrimination; is the point. 6. Since there is no dispute with regard to the relevant rules which stipulate the satisfaction of the Physical Efficiency Test, this Court does not find it necessary to analyse the relevant provisions of law in this regard. The only question is whether the appellants are entitled to have the benefit of Ext.P5 as given to the person named therein. 7. It is seen from Ext.P5 that the person named therein was originally appointed as a Police Constable. Years later, he participated in the selection to the posts of SI; both in respect of the 'Armed Police Battalion' and also the 'General Executive'. The written test and interview in respect of both the above posts were common, as conducted by the Public Service Commission. However, the Public Service Commission decided to conduct separate Physical Efficiency Test for the posts in the two different streams. The person concerned came out successful in the Physical Efficiency Test in respect of the 'Armed Police Battalion', conducted on 23.07.2002, though he happened to be failed in respect of the similar test conducted for the 'General W.A. No. 4 of 2012 ## -:5:- Executive' on 01.08.2002. He was also having some additional skills/qualification, particularly in material arts and placing the credentials in this regard, a request was made before the DGP so as to consider him in the General Executive category as well; which in turn was considered and recommended by the DGP to the Government. It was pursuant to the said exercise, that the matter was considered by the Government and found that the recommendation was very much within the four walls of the law, obviously for the reason that the person named therein had already cleared the Physical Efficiency Test in respect of the other category - S.I.(APB). There was no case that the Physical Efficiency Test prescribed for S.I.(General Executive), was something different. It was in the said circumstance, that the Government rightly decided to invoke the power under Rule 39 of Part II KS & SSR and Ext.P5 order was passed, giving the benefit of exemption. 8. Going by the materials on record, the case of the appellants stand entirely on a different footing and at no point of time, had the appellants successfully completed the Physical Efficiency Test in respect of the post of S.I., either 'APB' or W.A. No. 4 of 2012 -:6:- 'General Executive'; who stand declared as failed in the test. We find that the benefit of Ext.P5 cannot be extended to the appellants under any circumstance. We fully agree with the finding and reasoning given by the learned Single Judge. There is no merit in the appeal and the same is dismissed accordingly. **Manjula Chellur, Ag. Chief Justice.** **P.R.Ramachandra Menon, Judge.** ttb