Suresh K. S/o Kandhan v. Kerala Public Service Commission, OP(KAT) No. 3 of 2016 (Z)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 8TH DAY OF NOVEMBER 2016/17TH KARTHIKA, 1938 **OP(KAT).No. 3 of 2016 (Z) --------------------------** AGAINST THE ORDER IN OA 846/2015 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 09-10-2015 PETITIONER(S)/RESPONDENTS: ------------------------- 1. THE KERALA PUBLIC SERVICE COMMISSION PATTOM, THIRUVANANTHAPURAM, PIN-695 004, REPRESENTED BY ITS CHAIRMAN, KERALA. 2. THE SECRETARY KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM, KERALA-695 004. BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC RESPONDENT(S)/APPLICANT: ------------------------ SURESH K. S/O.KANDAN, KOTTEKKAD HOUSE, CHERAMANGALAM.P.O., PALAKKAD, KERALA-678 703. R1 BY ADV. SRI.S.PRASANTH (AYYAPPANKAVU) R1 BY ADV. SMT.VARSHA BHASKAR THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 08-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 3 of 2016 (Z) -------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------- EXT.P1 TRUE COPY OF THE O.A(EKM)846 OF 2015 ALONG WITH ANNEXURES. EXT.P2TRUE COPY OF THE ORDER IN O.A.(EKM) 846 OF 2015 DATED 09.10.2015. EXT.P3TRUE COPY OF THE RESULT OF THE PHYSICAL EFFICIENCY TEST. RESPONDENT(S)' EXHIBITS ----------------------EXT.R(a) TRUE COPY OF THE CERTIFICATE DATED 30.12.1995 ISSUED TO THE RESPONDENT BY THE NCC CAMP COMMANDANT EXT.R(b) TRUE COPY OF THE CERTIFICATE ISSUED TO THE RESPONDENT FOR ALL INDIA TREKKING EXPEDITION CONDUCTED BY NATIONAL CADEL CORPS EXT.R(c) TRUE COPY OF CERTIFICATE FOR THE SECOND PLACE IN TRIPLE JUMP AT THE ANNUAL SPORTS AND GAMES COMPETITION HELD AT NSS COLLEGE, NEMMARA EXT.R(d) TRUE COPY OF CERTIFICATE FOR THE SECOND PLACE IN POLE VAULT AT THE ANNUAL SPORTS AND GAMES COMPETTIION HELD AT NSS COLLEGE, NEMMARA EXT.R(e) TRUE COPY OF CERTIFICATE FOR THE THIRD PLACE IN BROAD JUMP AT THE ANNUAL SPORTS AND GAMES COMPETITION HELD AT NSS COLLEGE, NEMMARA /TRUE COPY/ P.S. TO JUDGE. ## **P.R. RAMACHANDRA MENON & P. SOMARAJAN, JJ.** .............................................................................. **O.P.(KAT)No.3 OF 2016** ......................................................................... **Dated this the 8[th] November, 2016** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** The challenge is against Ext. P2 order passed by the Tribunal, whereby a 'Physical re-efficiency test' has been ordered to be conducted by the Public Service Commission (PSC), recording that the selection proceedings were not finalised and it was still going on, in turn to have the grievance of the applicant redressed, which according to the petitioner is not correct or sustainable, either in law or on facts. 2. Heard the learned Standing Counsel for the petitioner / PSC as well as the learned Counsel for the respondent. 3. The issue pertains to the selection of Male Warden (Jail). The vacancies were notified by the PSC on 31.08.2013. The selection process involved a written test, followed by a Physical Efficiency Test . Admittedly, the respondent came out **2** ## **O.P.(KAT)No.3 OF 2016** successful in the written test and was called for a 'Physical Efficiency Test' conducted on various dates. As per the relevant norms/stipulations, 8 different items were given to prove physical efficiency and option was given to the candidates concerned to have it satisfied in any of the 'five events' to the requisite extent. The minimum satisfaction with reference to 100M High Jump, Long Jump, Shot Put, Throwing the Cricket Ball etc., were given and those persons who secured the requisite level were eligible to be considered for interview, selection and appointment. 4. In the Physical Efficiency Test conducted on the relevant date, according to the respondent, his traits were recorded not correctly. He was also having a grievance that the chest measurement was taken not correctly and in the said circumstance, a grievance was aired by submitting Annexure A2 representation, followed by Annexure A3, before the authorities of the PSC. The matter was enquired into and the PSC found that the complaint was not correct or sustainable and accordingly, Annexure A4 communication was issued, which **3** ## **O.P.(KAT)No.3 OF 2016** made the respondent feel aggrieved and hence the O.A with the following prayers: _i) to declare that the respondents are legally liable to conduct a re-physical efficiency test as per Clause 9 of Annexure A1 in the case of the applicant and the applicant is legally entitled to be called for a re-physical efficiency test;_ _ii) declare that Annexure A4 is highly illegal, arbitrary and a non speaking one vitiated with lack of competence hence legally unsustainable and liable only to be set aside._ _Iii) to set aside Annexure A4 order of the 2[nd] respondent._ _iv) direct the respondents to conduct a re-physical efficiency test in the case of the applicant and allow him to participate in the same ;_ _v) pass such orders or directions as deemed just fit and necessary in the facts and circumstances of the case_ _vi) award costs of and incidental to this application.”_ The reliefs sought for were sought to be resisted by the PSC. But when the matter was finally heard, the Tribunal observed that the selection process was still going on and if an opportunity was **4** ## **O.P.(KAT)No.3 OF 2016** given to the applicant by holding a re-physical efficiency test , no prejudice would be caused to any other candidate. It was accordingly, that the O.A. was disposed of, directing the PSC to conduct a re-physical efficiency test to assess the traits of the applicant and to have the issue finalised accordingly. This made the petitioner/PSC to challenge the said verdict by filing this Original Petition. 5. A counter affidavit has been filed by the respondent herein. Thereafter, the petitioner/PSC filed I.A.No.87 of 2016 as well producing a copy of the report dated 04.07.2015 (Ext.P4) submitted by the concerned authority, pursuant to the enquiry ordered by the PSC as per letter dated 23.06.2015. With reference to the materials on record, the learned Standing Counsel for the PSC submits that the applicant opted to participate in 100 Metres run, High Jump, Long Jump, Shot Put and in Throwing the Cricket Ball. The Chest Number assigned to the petitioner was '1695'. The contents of Ext.P3 Scoring Sheet revealed that he had cleared 100 M Run and was declared as **5** ## **O.P.(KAT)No.3 OF 2016** passed . But in respect of High Jump, Long Jump, Shot Put and Throwing the Cricket ball, he was declared as 'failed '. It was accordingly, that he was declared as not qualified as given in Column No.12. The position was acknolwedged by the applicant by affixing signature against Col.No.13. Much thereafter the applicant, as a matter of revelation, filed a complaint by way of Annexures A2 and A3 and approached the Tribunal with the desire to have conducted a re-efficiency Test, which has been considered by the Tribunal favourably and allowed, absolutely without any reason, but for wrongly observing that the Selection proceedings were not complete. 6. The learned Standing Counsel for the PSC submits that interference can be made only if any lapse on the part of the PSC is established to the satisfaction of the Court or the Tribunal, which is not satisfied in the instant case. Merely for the reason that the proceedings are still going on, it cannot be taken as a ground to direct the PSC to conduct physical Re-efficiency Test. There is no specific plea of malafides; nor is it established, in any **6** ## **O.P.(KAT)No.3 OF 2016** manner, to call for interference 7. The learned Counsel also seeks to place reliance on the verdict passed by this Court on many an occasion under such circumstances, particularly as reported in **2003 (2)KLT 177 [Kerala Public Service Commission vs. Ashokan]** and also in O.P(KAT)No.205 of 2014 . 8. The learned Standing Counsel further submits that the idea and understanding of the Tribunal as to the stage of the proceedings as on the date of passing of Ext.P2 order itself is wrong and that the selection proceedings had already been finalised and the rank list was published by the PSC way back on 23.07.2015 itself, i.e much before the order of the Tribunal, (which was passed on 09.10.2015). If the Tribunal was actually aware of the fact that the selection proceedings had already been finalised and the rank list had been published by the PSC, by no stretch of imagination would the Tribunal have interfered with the process of selection granting a further opportunity to the applicant to participate in the re-efficiency test to be conducted, **7** ## **O.P.(KAT)No.3 OF 2016** giving directions to the PSC in this regard. 9. After hearing both the sides, this Court finds that the version put forth by the petitioner/PSC is perfectly justified and there is no reason to sustain the order passed by the Tribunal. Accordingly, Ext. P2 stands set aside and the Original Petition stands allowed. No cost. **P.R. RAMACHANDRA MENON, JUDGE** **P. SOMARAJAN, JUDGE** lk