IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 8979 of 2009(N)
1. T.VENUMOHAN S/O. K.THRIVIKRAMAN,
... Petitioner
2. K.S.JAYALAL S/O. C.V.SANTHAN,
3. S.NOUSHAD S/O. SARAFUDEEN,
4. MOHAMMED MOOSA S/O. KIDER MOHAMMED,
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE KERALA PUBLIC SERVICE COMMISSION,
3. THE DISTRICT OFFICER,
4. THE DISTRICT OFFICER,
5. THE DISTRICT OFFICER,
6. THE DISTRICT OFFICER,
For Petitioner :SRI.N.UNNIKRISHNAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :18/03/2010
O R D E R
C.R
C.T. RAVIKUMAR, J.
--------------------------------------------
W.P.(C). NOS. 8979, 11524
& 16528 OF 2009
--------------------------------------------
Dated this the 18th 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 11or 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 12Commission 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 2nd 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
W.P.(C) NOS. 8979, 11524
& 16528 OF 2009 18
C.T. RAVIKUMAR, J.
W.P.(C).Nos.8979, 11524 &
16528 OF 2009
JUDGMENT
18th March, 2010
W.P.(C) NOS. 8979, 11524
& 16528 OF 2009 19