RAJESH Vs. STATE OF KERALA

JUDGEMENT

(1.) Appeals are filed by Peons in the State Excise Department, who are declared physically unfit by the Public Service Commission in the recruitment by transfer to the post of Excise Guards. 10% of the vacancies of Excise Guards in the Department are reserved for in-service candidates in the last grade. Even though recruitment is governed by Special Rules framed by the Government, namely, Kerala Excise and Prohibition Subordinate Service Rules, which does not specifically provide for any physical test being conducted by the Public Service Commission in the selection process, appellants were subjected to physical test and were declared unfit. The appellants have relied on Rule 5 of Special Rules where under Category 3, qualification for Excise Guards are prescribed. All the appellants, admittedly, have the educational qualification, namely, S.S.L.C., physical measurements and they had obtained medical certificate from Doctor certifying their medical fitness and capacity for active outdoor work. Their grievance is that, in spite of the qualification they have, the P.S.C. put them to Physical Endurance Test, which is the same applicable for selection of Police Constables under the Special Rules applicable for their selection and on failing to pass five out of eight physical tests, the appellants have been disqualified. In the selection process, the appellants along with others, were subjected to undergo the test by the P.S.C., which provided eight items of Physical Efficiency Test and in order to qualify for appointment, the candidate should pass in five items. The appellants, admittedly, did not pass the Physical Efficiency Test and consequently were found disqualified. The learned Single Judge, by relying on Rule 2(c) and Rule 3 of the Kerala Public Service Commission Rules of Procedure, held that Physical Efficiency Test could be prescribed by P.S.C. under the Special Rules and so much so the test conducted for appellants along with others are permissible under the Special Rules and consequently the Writ Petitions were dismissed, against which, these Writ Appeals are filed.

(2.) Senior counsel Sri. K. Ramakumar appearing for the appellants referred to C1.3 of Category 3 under Rule 5 of the Special Rules, which provides the condition for eligibility for appointment of Excise Guards by transfer and direct recruitment as follows:

(3.) According to the counsel, once the certificate is produced in conformity with the above norms from the Doctor, it was not open to the P.S.C. to conduct Physical Efficiency Test as prescribed by them. He further pointed out that under GO. (P) No. 113/08/TD dated 4.6.2008 only, the Government extended the Physical Efficiency Test applicable to police for recruitment of Excise Guards. Since the appellants applied for and selection was also made prior to the introduction of the Rule, they should not have been subjected to the physical test later introduced, is his case. Admittedly, after 4.6.2008, the very same Physical Efficiency Test available under the Special Rules applicable for recruitment to the police department is made applicable for selection of Excise Guards as well. However, the question to be considered is whether the selection made by incorporating Physical Efficiency Test by P.S.C. prior to the amendment of the Special Rules by notification dated 4.6.2008 is in order. Standing counsel appearing for the P.S.C. relied on Rule 2(c) and Rule 3 of the K.P.S.C. Rules of Procedure, which authorizes the P.S.C. to conduct examination to assess the merits of the candidates with respect to the said Rules. Rule 2(c) and Rule 3 of the P.S.C. Rules of Procedure are extracted hereunder: