T. Venumohan s/o K. Thrivikraman; K. S. Jayalal; S. Noushad; Mohammed Moosa v. State of Kerala; Kerala Public Service Commission; and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 18TH MARCH 2010 / 27TH PHALGUNA 1931 WP(C).No. 8979 of 2009(N) ------------------------- ## PETITIONER(S): - --------------- ## 1. T.VENUMOHAN S/O. K.THRIVIKRAMAN, AGED 40 YEARS, LAST GRADE PEON, O/O. THE ASSISTANT EXCISE COMMISSIONER, COLLECTORATE, KOTTAYAM AND RESIDING AT PICHAMATHIL HOUSE, VAZHAPPALLY WEST P.O., CHANGANASSERY, KOTTAYAM. 2. K.S.JAYALAL S/O. C.V.SANTHAN, AGED 39, LAST GRADE PEON, O/O. THE ASSISTANT EXCISE COMMISSIONER, ALAPPUZHA AND RESIDING AT KOLLASSERIYIL HOUSE, CHERUVARANAM, VARANAM P.O., CHERTHALA, ALAPPUZHA DIST. 3. S.NOUSHAD S/O. SARAFUDEEN, - AGED 38 YEARS, PEON (LAST GRADE), O/O. THE JOINT EXCISE COMMISSIONER (SOUTH ZONE), EXCISE HEAD QUARTERS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM. 4. MOHAMMED MOOSA S/O. KIDER MOHAMMED, AGED 39 YEARS, PEON (LAST GRADE), EXCISE DIVISION OFFICE, PALAKKAD. BY ADV. SRI.N.UNNIKRISHNAN RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, TAXES (F) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. ## 2. THE KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM, REP. BY THE SECRETARY. ## 3. THE DISTRICT OFFICER, K.P.S.C., KANJIKUZHY, MUTTAMPALAM P.O., DEVALOKAM, KOTTAYAM. ## 4. THE DISTRICT OFFICER, ## K.P.S.C. DISTRICT OFFICE, ALAPPUZHA. ## 5. THE DISTRICT OFFICER, ## K.P.S.C. DISTRICT OFFICE, THIRUVANANTHAPURAM. ## 6. THE DISTRICT OFFICER, K.P.S.C.DISTRICT OFFICE, PALAKKAD. ## GOVT. PLEADER SMT.ANU SIVARAMAN-R1 SRI.ALEXANDER THOMAS, STANDING COUNSEL, K.P.S.C, R2 TO R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/02/2010, ALONG WITH WPC NO. 11524 OF 2009 & WPC NO.16528 OF 2009, THE COURT ON 18/03/2010 DELIVERED THE FOLLOWING: ## W.P.(C).NO.8979/2009 ## APPENDIX ## PETITIONERS' EXHIBITS: Ext.P1: True copy of Notification Category No.81/07 dated 12/3/2007. - Ext.P2: True copy of Notification No.PL No.5/08/DOK dtd 14/11/08. Ext.P3: True copy of Notification No.PL No.07/08 DOA dtd.6//12/08. Ext.P4: True copy of Admission Ticket No.106385 issued by 3[rd] respondent to the first petitioner. - Ext.P5: True copy of Admission Ticket No.1112/2002 of the 2[nd] petitioner. - Ext.P6: True copy of Admission Ticket No.T.103516 of the 3[rd] petitioner, Noushad S issued by 5[th] respondent. - Ext.P7: A true copy of G.O.(P) No.12/99/P &ARD dtd.24/5/1999. - Ext.P8: True copy of Special Rules for the Kerala Excise and Prohibition Subordinate Service. - Ext.P9: True copy of GO(Rt)No.101/97/TD dtd.17/2/1997. - Ext.P10: A true copy of letter dtd.20/4/2009 sent by Adv.T.George Mathew, Kottayam to the Deputy Secretary, State Public Information Officer, KPSC, Malappuram. - Ext.P11: A true copy of letter No.MR.1(3) RTI 54/2009 dtd.22/5/2009. Ext.P12: A true copy of letter No.IDS.1(2) 13397/09/GV.Dtd.25/52009. - Ext.P10(sic Ext.P13): True copy of medical certificate dtd.16/3/2009 issued by Dr.Vijayakumari K.K, Superintendent, Dist. Hospital,Kottayam in respect of 1[st] petitioner. - Ext.P11(sic Ext.P14): True copy of Medical Certificate dtd.23/3/2009 issued by Dr.Manoj Venugopal, Assistant Professor in Ophthalmology, Medical College Hospital Alappuzha in respect of 2[nd] petitioner. Ext.P12(sic Ext.P15): True copy of Medical Certificate dtd.19/2009 issued by Dr.Jayalakshmi, Asst.Surgeon, Kerala Govt.Health Services, General Hospital, Thiruvananthapuram in respect of 3[rd] petitioner. Ext.12(sic Ext.P16): True copy judgment dt.19/3/2009 in W.P.(C). No.7136/08. Ext.P13(sic Ext.P17): True copy of G.O (P) No.113/08/TD dated 4/6/2008. Ext.P14(sic Ext.P18): True copy of Notification Rank list No.R.I.No.293/09/DOA dtd.17/8/2009. ## RESPONDENTS' EXHIBITS: EXT.R2(a): True copy of the judgment dt. 11.2.2000 in O.P.29127/2000. **C.R** ## **C.T. RAVIKUMAR, J.** **-------------------------------------------W.P.(C). NOS. 8979, 11524 & 16528 OF 2009 --------------------------------------------** Dated this the 18[th] day of March, 2010 ## **JUDGMENT** The authority of the Kerala Public Service Commission (for short 'the Commission' only) for prescribing and conducting 'Physical Efficiency Test' for recruitment to the post of Excise Guards against 10% vacancies set apart for persons included in the last grade service as part of the selection process initiated as per notification dated 12.3.2007, is assailed in these Writ Petitions. Therefore, they are heard and being considered jointly. Before adverting to the averments, it is only apposite to refer to the rules relevant for the purpose of deciding the aforesaid points. 2. The Special Rules for the Kerala Excise and Prohibition Subordinate Service (for short 'the Special Rules' only) provide the methods of appointment to the post of Excise Guards and, as per which, 90% of the vacancies in the said category shall be filled up by direct recruitment and the remaining 10% of the vacancies shall be filled up by transfer from members of the last grade service in the Department, who possess the required qualifications. In the absence of qualified last grade employees in the **W.P.(C) NOS. 8979, 11524 & 16528 OF 2009** 2 Department, for appointment by transfer against the 10% vacancies under that category, the same shall be filled by direct recruitment. Rule 5 of the Special Rules prescribes the qualifications for appointment to the categories in the subordinate service including Excise Guards. Category 3 therein is Excise Guards and the qualifications for appointment to the said post are prescribed as hereunder: Excise Guards Recruitment by transfer and direct recruitment (1) Must have completed the S.S.L.C course or its equivalent. (2) Must not be less than 165 cm. In height and 81cm round the chest with a minimum expansion of 5cm. [Provided that in the case of candidates belonging to the Scheduled Castes and Scheduled Tribes, the minimum height shall be **W.P.(C) NOS. 8979, 11524 & 16528 OF 2009** 3 160 cms. and the minimum chest measurement shall be 76 cms. with a minimum expansion of 5cms.] (3) Must be certified by a Medical Officer not below the rank of an Assistant Surgeon as to his physique, fitness and capacity for active outdoor work. 3. For the sake of convenience, the documents are being referred to in this judgment in the order they are set out in W.P.(C).No.8979/2009. The petitioners in these Writ Petitions are last grade servants in the Excise Department and they applied for the post of Excise Guards in different districts pursuant to Ext.P1 notification, dated 12.3.2007 for appointment by transfer against the 10% quota set apart for them. Note (1) under the clause 7 (3) of Ext.P1 notification carries the assailed stipulation for conducting **W.P.(C) NOS. 8979, 11524 & 16528 OF 2009** 4 Physical Efficiency Test. It reads thus: _Note (1)-“If necessary a Physical Efficiency Test will be conducted to assess the physical fitness of candidates before the interview. The details of the test will be intimated later.”_ Later, in terms of the said note (1), the following items of the Physical Efficiency Test were prescribed and conducted as part of the Physical Efficiency Test. Items of Physical efficiency test Minimum standard required (1 star standard) 1. 100 meters runs : 14 seconds 2. High Jump : 132.20 cms 3. Long Jump : 457.20 cms 4. Putting the shot of 7264 gms. : 609.60 cms 5. Throwing the cricket ball : 6096 cms 6. Rope climbing (using hands only) : 365.80 cms 7. Full ups or chinning : 8 times 8. 1500 meters run : 5 minutes and 44 seconds The candidates must qualify in any 5 events out of the 8 specified above of the National Physical Efficiency One Star Standard Test. 4. The petitioners who came out successful in the written **W.P.(C) NOS. 8979, 11524 & 16528 OF 2009** 5 examination, challenged the very prescription of Physical Efficiency Test by the Commission in Ext.P1 notification. However, this Court passed an interim order requiring the petitioners to partake in the Physical Efficiency Test. The petitioners unsuccessfully participated in the Physical Efficiency Test. However, the failure to qualify in the said test cannot prejudicially affect the contentions raised in these Writ Petitions as the said position has been made clear in the interim order itself and therefore, despite their failure in the said physical efficiency test, the challenge against the authority of the Commission to conduct such test as part of recruitment process to the post of Excise Guards calls for consideration. 5. Admittedly, all the petitioners possess the prescribed academic qualifications for appointment to the post of Excise Guards. They have also produced medical certificates issued by competent medical officers not below the rank of Assistant Surgeon as provided under the Special Rules and also in Ext.P1 notification. According to the petitioners, the Special Rules provide only for production of such certificates issued by competent medical officers not below the rank of Assistant Surgeon to prove physique, fitness and capacity for active outdoor work. Therefore, it is beyond the scope of **W.P.(C) NOS. 8979, 11524 & 16528 OF 2009** 6 authority of the Commission to stipulate a further Physical Efficiency Test in the notification and, as such, the conduct of Physical Efficiency Test vitiated the entire selection process. Item No.3 under qualification No.3 prescribed in category No.3 in Rule 5 of the Special Rules have virtually been incorporated in Ext.P1 notification and they are worthy to be extracted in the context of the aforesaid contentions. They read thus: _“must be certified by a Medical Officer not below the rank of an Assistant Surgeon as to his physique, fitness and capacity or active outdoor work. The Medical Certificate has to be produced as and when called for.”_ 6. The contention of the petitioners is that when the Special Rules provide only for production of a certificate issued by a competent medical officer not below the rank of an Assistant Surgeon, the P.S.C cannot stipulate and conduct Physical Efficiency Test as part of the recruitment process to the aforesaid post under the 10% quota set apart for Last Grade service in the Department. Prescription of such a test is nothing but adding another qualification which is not prescribed in the Special Rules for appointment by transfer to the said post, and, therefore, liable to be interfered with, it is contended. To buttress the said contention, the petitioners have relied on various decisions including the decision of this Court in **Kerala** **W.P.(C) NOS. 8979, 11524 & 16528 OF 2009** 7 ## **Public Service Commission v. Abdul Rasheed and others** reported in **2007** **(3) ILR Kerala 345.** It was contended by the learned counsel for the petitioners that Ext.P14 (sic.Ext.P17) would lend support to his contentions. Admittedly, an amendment has been brought to the Special Rules, as is obvious from Ext.P14(Sic Ext.P17), in Rule 2 under category 4. As per the amendment, after the second proviso the following proviso has been inserted, namely:- _“Provided also that, the candidates to all categories by direct recruitment and by transfer, shall pass the written and Physical Efficiency Tests, conducted by Public Service Commission as in the Police Department”_ 7. Indisputably, after the said amendment, the candidates competing against the 10% set apart for appointment by transfer from last grade service have to pass the Physical Efficiency Test also. Based on the said proviso that was inserted under category No.4 in the Rule 2 of the Special Rules with effect from 4.6.2008, it was further contended that in the matter of recruitment to the post of Excise Guards pursuant to a notification invited prior to 4.6.2008, the Commission could not have and should not have stipulated and conducted Physical Efficiency Test. If it was within the authority of the Commission to stipulate and conduct Physical Efficiency **W.P.(C) NOS. 8979, 11524 & 16528 OF 2009** 8 Test even prior to the amendment, it was absolutely unnecessary to bring such an amendment, it is contended. In short, according to the counsel for the petitioners, the Commission was lacking authority to stipulate and conduct Physical Efficiency Test in the matter of recruitment by appointment by transfer as against the 10% vacancies of Excise Guards set apart for Last Grade Service and hence, the entire selection pursuant to Ext.P1 notification is vitiated. 8. The Commission and the State have filed counter affidavits in these Writ Petitions. In the counter affidavit filed by the Commission, besides refuting the claims and contentions raised by the petitioners, the Commission has made extensive averments to justify the stipulation and the subsequent conducting of the Physical Efficiency Test as part of the recruitment process initiated as per Ext.P1 notification. The core contention raised on behalf of the Commission is that the stipulation in the notification regarding Physical Efficiency Test as part of a recruitment process cannot be construed as prescription of an additional qualification. It is well within its competence and in fact, it owes a constitutional duty to conduct Physical Efficiency Test considering the nature of the duties attached to the **W.P.(C) NOS. 8979, 11524 & 16528 OF 2009** 9 post of Excise Guards and in view of the provisions in the special rules, to carry out the selection process fairly. To sustain the said contentions my attention was drawn to Article 320 of the Constitution of India and Rule 3 of the Kerala Public Service Commission Rules of Procedure (for short ' the Procedure Rules'). It was further contended that the only impact of the amendment brought to Rule 2 under category 4 by inserting the proviso, as is obvious from Ext.P14 (sic Ext.P17), is that the conduct of Physical Efficiency Test which lies with the discretion of the Commission was made mandatory and a pass in Physical Efficiency Test is mandatory to candidates of all categories by direct recruitment and by transfer, under the Kerala Excise and Prohibition Subordinate Service as in the Police Department. Earlier, the Commission invariably exercised the said discretion taking into account the nature of the qualifications prescribed and also the nature of the duties attached to the post, the recruitment of which is left with the Commission. Therefore, according to the Commission, the said amendment cannot and will not lend support to the contentions of the petitioners. 9. The contention of the petitioners that the amendment brought to Clause 5(3) with effect from 4.6.2008 would support their stand that the **W.P.(C) NOS. 8979, 11524 & 16528 OF 2009** 10 Commission was lacking authority to stipulate and conduct the Physical Efficiency Test and the rival contention of the respondents that it only made the discretion exercisable by the Commission in the matter of prescribing Physical Efficiency Test as part of recruitment process to the post of Excise Guards mandatory are also to be examined to answer the issue involved in these cases. Article 320 of the Constitution of India casts a constitutional duty on the Commission to conduct examinations for appointments to the services of the State, the recruitment of which are entrusted to the Commission, fairly, impartially and independently. Admittedly, the recruitment to the post in question has been entrusted to the P.S.C. Rule (3) of K.P.S.C Rules of Procedure is relevant in this context and the same reads thus: _The Commission may conduct all or any one or more of the following examinations to assess the merits of candidates considered for recruitment to a service or post;_ _(i) Written Examination. (ii) Practical Test. (iii) Physical Efficiency Tests (iv) Oral Test (Interview) (v) Any other test or examination, which the commission may deem, fit to hold._ 10. Rule 3 would thus reveal that the Commission may conduct all **W.P.(C) NOS. 8979, 11524 & 16528 OF 2009** 11 or any one or more of the examinations/tests to assess the merits of candidates considered for recruitment to a service or post in accordance with law, in a fair manner to discharge its constitutional duty. In this context, the expressions used for denoting the requisite qualification relating health in item No.3 under category 3 of Rule 5 of the Special Rules viz., 'physique, fitness and capacity for active outdoor work' assume relevance. A conjoint reading of all the aforementioned provisions would undoubtedly suggest that the stipulation and also the subsequent conduct of Physical Efficiency Test are nothing but a test conducted uniformly, by the Commission to assess the merits of the candidates viz., to assess the fitness and capacity for active outdoor work. When fitness and capacity for active outdoor work are prescribed as the required qualifications relating health in the Special Rules, the possession of such qualifications cannot be assessed without conducting a Physical Efficiency Test and, therefore, prescription of Physical Efficiency Test cannot be taken as prescription of an additional qualification. In fact, it is only a test to assess whether the candidates possess the aforesaid prescribed qualification as per the Special Rules. Rule 11 (i) of the Procedures Rules is also relevant in this context. It reads as hereunder: _A decision as to the following shall be taken by the_ **W.P.(C) NOS. 8979, 11524 & 16528 OF 2009** 12 _Commission in respect of all selections made by them:_ _(i) whether any candidate possesses the prescribed qualifications for the post;_ 11. In the light of the aforesaid findings and observations relating the competency of the Commission to stipulate and conduct the Physical Efficiency Test, it has to be construed that after the amendment that was brought with effect from 4.6.2008 it is mandatory to conduct the Physical Efficiency Test i.e., the Commission cannot now dispense with physical efficiency test as part of selection process for recruitment to the post of Excise Guards against the aforesaid 10% quota and in fact, the Commission is bound to conduct that test with effect from 4.6.2008, in the matter of such recruitment to the post of Excise Guards. Therefore, the contention of the petitioners based on the amendment that was brought by inserting a proviso under the 2[nd] proviso to item 3 under category 4 in Rule 2 of the Special Rules also cannot be countenanced. 12. Another contention was raised relying on the counter affidavit filed by the state. The learned counsel for the petitioners read certain **W.P.(C) NOS. 8979, 11524 & 16528 OF 2009** 13 statements made in the said counter affidavit in isolation to contend that the counter affidavit is in favour of the petitioners. The statement 'The rule in force' at the time to assess the physical efficiency/fitness of a candidate applied for appointment to the post of Excise guards by direct recruitment and by transfer is limited to be certified by a medical officer not below the rank of Assistant Surgeon as to his physique, fitness and capacity for active outdoor work' is particularly relied on by the counsel for the petitioner in a bid to substantiate the said contention. I am afraid that the said contention also cannot be countenanced. To understand the stand of the Government, the counter affidavit filed on behalf of the first respondent has to be looked into as a whole. Virtually, a reading of the statements in the counter affidavit would, indisputably, reveal that the Government support the stand of the P.S.C. 13. Certain facts borne out from the materials produced before this Court are worthy to be noticed in the context of the contentions raised in these Writ Petitions. Exts.P10 to P12 (sic. Exts.P13 to P15) are the medical certificates produced by the petitioners 1 to 3 along with the reply affidavit filed on 17.7.2009 in W.P.(C).No.8979/2009. The fourth petitioner and also **W.P.(C) NOS. 8979, 11524 & 16528 OF 2009** 14 the other writ petitioners did not produce such medical certificates which they had produced before the Commission. The certification in Exts.P10 to P12(sic Exts.P13 to P15), in so far as it is relevant for the purpose of these cases are as follows: ## _In Ext.P10 (sic Ext.P13)_ _Any morbid condition of the eye or lids of either eye- Nil He has good physical fitness and capacity for active out door work -Yes_ _He is physically fit for the post of Excise Guard in Excise Department._ ## _In Ext.P11(sic Ext.P14)_ _Any morbid condition of the eye or lids of either eye- Nil He has good physical fitness and capacity for active outdoor work He is physically fit for the post of Excise Guard in the Excise Department._ ## _In Ext.P12 (sic Ext.P15)_ _Any morbid condition of the eye or lids of either eye – nil He has good physical fitness and capacity for active outdoor work He is physically fit for the post of Excise Guard in the Excise Department_ . 14. A scanning of Exts.P10 to P12 (sic. Exts.P13 to P15) would undoubtedly reveal that they are certificates issued in printed format. In Ext.P10(sic. Ext.P13) against the statement 'He has good physical fitness and capacity for active work' the certification is 'yes' and at the same time there is **W.P.(C) NOS. 8979, 11524 & 16528 OF 2009** 15 no such certification against the same statement in Exts.P11(sic Ext.P14) and P12(sic Ext.P15). Against the statement 'He is physically fit for the post of Excise Guard in the Excise Department' there is no certification at all in all these three certificates. All the other petitioners also did not have a case that the certificates produced by them before the Commission were not in a printed format and separate certification was made in respect of those statements regarding their physical fitness after making them undergo tests to determine their physical fitness and capacity for active outdoor work. The duties attached to the post of Excise Guard, indisputably, involve arduous works for which good physique, fitness and capacity for active outdoor work are required. These three conditions are admittedly prescribed as qualifications in the Special Rules and in terms of the Special Rules in Ext.P1 notification. Therefore, the question is whether the Commission was bound to blindly accept the medical certificates issued in a printed format as final words as regards the possession of 'physique, fitness and capacity for active outdoor work' even in the absence of anything in such certificates to show the tests conducted to arrive at the opinion with regard to the concerned candidate and whether the Commission is justified in conducting a uniform Physical Efficiency Test to determine whether the applicants possess **W.P.(C) NOS. 8979, 11524 & 16528 OF 2009** 16 physique, fitness and capacity for active outdoor work, the qualifications prescribed under the Special Rules'. Indisputably, in the case of direct recruitment to the post of Excise Guards, the candidates were made to undergo Physical Efficiency Test as part of the recruitment process. The requirement to produce medical certificates in the manner prescribed in the Special Rules can, in the circumstances, be treated only as a condition to earn eligibility as regards a candidate under the 10% quota set apart for last grade servants in the post of Excise Guards, to participate in the selection process. It would only enable the authorities to weed out the disabled candidates at the initial point itself and at any rate, the issuance of medical certificates by medical officers cannot be taken as an assessment of the qualifications namely, 'physique, fitness and capacity for active outdoor work' done as part of the recruitment process. Such an assessment has to be made uniformly in the case of all applicants to ensure fairness in selection and therefore, can be made only by the recruiting agency. In this view of the matter, Article 320 of the Constitution of India and Rule 3 of the Procedure Rules would reveal that it, in fact, is the duty of the Commission. The facts expatiated above would reveal that the Commission was legally justified in conducting the Physical Efficiency Test to have uniform assessment of the **W.P.(C) NOS. 8979, 11524 & 16528 OF 2009** 17 fitness and capacity for active outdoor work in terms of the Special Rules in respect of all candidates. Accepting medical certificates produced by candidates wherein the fitness and capacity for active outdoor work is properly certified and conducting such test only in respect of the candidates in whose case such certifications are absent would be against public interest and definitely would not be a proper discharge of the duty cast upon the Commission under Article 320 of the Constitution of India. 15. In view of the discussions made above, I am of the opinion that prescription of Physical Efficiency Test in Ext.P1 notification and then, conducting the same as part of recruitment process initiated as per Ext.P1 cannot be taken as factors vitiating the recruitment process. There is no merit in the challenge against the authority of the P.S.C in prescribing and conducting Physical Efficiency Test as part of the selection initiated as per Ext.P1 notification and these Writ Petitions are, therefore, liable to fail. Accordingly, the Writ Petitions are dismissed. ## **(C.T. RAVIKUMAR, JUDGE)** ## **spc** 18 ## **W.P.(C) NOS. 8979, 11524 & 16528 OF 2009** **C.T. RAVIKUMAR, J.** **W.P.(C).Nos.8979, 11524 & 16528 OF 2009** **JUDGMENT** **18[th] March, 2010** # **W.P.(C) NOS. 8979, 11524 & 16528 OF 2009** 19