IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No. 142 of 2008 alongwith LPA No.147 of 2008. Reserved on : 12.5.2009 Date of decision: 2.7.2009 ________________________________________________________ LPA No.142 of 2008. Sh.Rakesh Kumar …. Appellant Versus Hon’ble High Court of H.P. & Anr. ….. Respondents LPA No.147 of 2008 High Court of H.P …. Appellant Versus Sh.Kamlesh Kumar & anr. …. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice V.K.Ahuja, J. Whether approved for reporting? No For the appellant: Mr.B.C.Negi, Advocate in LPA No.142 of 2008 and Ms.Jyotsna Rewal Dua in LPA No.147 of 2008. For the respondents: Ms.Jyotsna Rewal Dua for respondent No.1 and Mr.Ajay Mohan Goel, Advocate for respondent No.2 in LPA No.142 of 2008. Mr.Ajay Mohan Goel, Advocate for respondent No.1 and Mr.B.C.Negi, Advocate for respondent No.2 in LPA No.147 of 2008. _____________________________________________________ 2 Deepak Gupta, J.(Oral) The aforesaid appeals are being disposed of by one judgement since they arise out of one judgment delivered by a learned Single Judge in CWP No.1610 of 2007 decided on 25.11.2008. Kamlesh Kumar, respondent No. 2 in LPA No.142 of 2008 filed CWP No.1610/2007 challenging the appointment of respondent No.2 as Motor Mechanic in the High Court of Himachal Pradesh. Briefly stated the facts of the case are that the High Court of Himachal Pradesh issued an advertisement on 7.4.2007 inviting applications for filling up the post of Motor Mechanic. The only two persons who appeared for the interview were Kamlesh Kumar-writ petitioner and Rakesh Kumar, the selected candidate. The selection of Rakesh Kumar was challenged by the petitioner Kamlesh Kumar on various grounds including the ground that the allocation of almost 50% marks for the viva voce/personal interview were too high and that the appointment should have been made only on the basis of the marks obtained by the candidate in the mechanical test and that the selection process was not proper. This petition was contested by both the selected candidate as well as by 3 the High Court of Himachal Pradesh. The learned Single Judge allowed the petition mainly on the ground that the experience certificate issued in favour of the selected candidate was not valid in the eyes of law. The learned Single Judge further went on to assess the merit of both the candidates and came to the conclusion that the writ petitioner Kamlesh Kumar was entitled to be appointed as Motor Mechanic and, therefore, issued directions to the High Court to offer him appointment. LPA No.142 of 2008 has been filed by the selected candidate Rakesh Kumar in which the challenge is laid to the entire judgment of the learned Single Judge. LPA No.147 of 2008 has been filed by the High Court of Himachal Pradesh in which the main challenge is to the directions given by the learned Single Judge directing High Court to appoint the writ petitioner as Motor Mechanic. We have heard Mr.B.C.Negi, learned counsel for the selected candidate Sh.Rakesh Kumar, Sh.Ajay Mohan Goel, learned counsel for the writ petitioner and Ms.Jyotsna Rewal Dua, learned counsel for the High Court of Himachal Pradesh. 4 There is no dispute that only two candidates appeared in the interview. The selection was made on the basis of trade test and viva voce having total value of 50 marks. Out of these, 35 marks were earmarked for the trade test and 15 for viva voce. The marks for viva voce were further sub divided into three different categories, i.e., general knowledge 5 marks, experience 5 marks and personality/intelligence/physique 5 marks. The advertisement inviting applications for filling up the post of Motor Mechanic was issued on 7.4.2007. There were only three eligible candidates for the post of Motor Mechanic. All of them were invited to appear in the mechanical test to be conducted at the HRTC Workshop at Tara Devi. The writ petitioner Kamlesh Kumar obtained 31.5 marks in the trade test whereas the appointed candidate Rakesh Kumar obtained 28 marks in the trade test. In the viva voce, the writ petitioner was awarded 1½ marks in general knowledge whereas respondent/selected candidate obtained 3½ marks. Similarly in personality/intelligence/physique, the writ petitioner was awarded 1½ marks and the selected candidate was awarded 3½ marks. In experience, both the candidates were awarded 3½ marks. Resultantly the selected 5 candidate Rakesh Kumar was awarded 38½ marks as against 38 marks obtained by the writ petitioner. The main grievance of the writ petitioner was that the marks allotted for viva voce were extremely high and secondly that as far as experience was concerned, the petitioner’s experience being much more, he should have been awarded more marks for experience and if he had even been granted one more mark, he could have ranked higher than the selected candidate. As far as petitioner is concerned, he passed his 10+2 examination from the H.P Board School Education in the year 1991. He obtained National Trade Certificate from Industrial Training Institute (I.T.I.), Shimla in the trade of Mechanic (Motor Vehicle) in the year 1996. He worked as Motor Mechanic with Goel Motors Private Limited, Tara Devi from November, 1998 till November, 2006. He had also done Apprentice Training in the Motor Mechanic Trade w.e.f. 7.12.1996 to 6.12.1997 with Himachal Road Transport Corporation. On the other hand, the respondent had produced an experience certificate issued by Sharma Auto Clinic, Panthaghati, Shimla. This certificate has been rejected by the learned Single Judge on the ground that it appears to be not genuine. 6 According to the learned Single Judge, this certificate was not issued on the letter head of the firm. As per this certificate, Sh.Rakesh Kumar had worked as Mechanic in Sharma Auto Clinic, Panthaghati, Shimla from September, 2001 till date. We have seen the original certificate and find that it is on the letter head of the firm. We are of the considered view that this experience certificate could not have been totally ignored. Having said so, we are also of the considered view that the Members of the Examination Committee gravely erred in equating the experience of both the candidates. The writ petitioner had worked with M/s.Goel Automobiles, an authorized dealership and workshop of Maruti Suzuki India Limited. On the other hand, there is nothing on record to show what are the credentials of Sharma Auto Clinic, Panthaghati. Even otherwise, the petitioner’s experience was from the year 1996, i.e., he had more than a decade’s experience as Motor Mechanic whereas the experience of the selected candidate was only six years. We cannot comprehend how the experience of the petitioner in a well known and recognized firm was equated to that of the selected candidate in a small firm especially when the petitioner 7 had worked for more than a decade as against only 6 years experience of the selected candidate. We have no doubt in our mind that this Court sitting on the judicial side cannot sit in appeal or re-assess the merits of the candidates. However, this Court has the jurisdiction as well as the duty to ensure that a fair and equitable method is followed by the Selection Committee. This Court may not go into the merits of the case but can decide whether the process followed by the Selection Committee is right or wrong. In this case as observed above, the experience of the writ petitioner of almost eleven years in a well known firm has been equated with the experience of six years in a virtually unknown firm. This shows that the Selection Committee did not follow a proper method. The difference in the marks obtained by the two candidates is only of half a mark. The wrong approach, therefore, vitiates the selection itself. In view of these facts, we are of the considered view that the learned Single Judge was right in quashing the appointment of Rakesh Kumar, the selected candidate. However, we are also of the considered view that the learned Single Judge could not have issued a 8 direction that writ petitioner be appointed as Motor Mechanic. The learned Single Judge has himself observed that prima facie the marks allotted for the interview were on the higher side. The learned Single Judge as already observed above, has erred in totally discarding the experience certificate issued by the Sharma Auto Clinic, Panthaghati in favour of the selected candidate. This Court cannot don the role of the Selection Committee. Once the process of selection is found to be faulty, then the entire selection has to be set aside and the only course is to direct that fresh advertisement be issued. In view of the above discussion, we dismiss LPA No.142 of 2008 filed by Rakesh Kumar, the selected candidate and partly allow LPA No.147 of 2008 filed by the High Court of Himachal Pradesh and set aside the judgment of the learned Single Judge insofar as it directs the High Court to offer appointment to the writ petitioner. Before parting with this case, we may observe that the allotment of 15 marks out of 50 for viva voce appears to be on the higher side keeping in view the nature of the job involved. The Apex Court in a number 9 of cases has held that the marks for viva voce should not be higher than 15 to 20 per cent. We, therefore, direct the Registry that before fresh advertisement, if any, is issued to fill up the post of Motor Mechanic, the matter may be placed before Hon’ble the Chief Justice on the administrative side to consider the question as to what marks, if any, should be allotted for the interview. Both the appeals are disposed of in the aforesaid terms. No orders as to costs. ( Deepak Gupta ) Judge July 2, 2009 (V.K.Ahuja) (m) Judge