IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.1610 /2007 Reserved on: 14.11.2008 Decided on: 25.11. 2008 Kamlesh Kumar. …Petitioner. Versus Hon’ble High Court of Himachal Pradesh and another. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.yes For the petitioner : Mr. Sunil Mohan Goel, Advocate. For the Respondents : Mr. Raman Sethi, Advocate for respondent No.1. Mr. B.C. Negi, Advocate for respondent No.2. Rajiv Sharma, J. Brief facts necessary for the adjudication of this petition are that the petitioner has passed his + 2 (plus two) examinations from the Himachal Pradesh Board of School Education in the year 1991. He obtained National Trade Certificate from Industrial Training Institute, Shimla in the trade of Mechanic (Motor-Vehicle) in the year 1996. He worked as Motor Mechanic with Goel Motors Private Limited, Tara Devi, Shimla with effect 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 from 1998 till November, 2006. He has also done apprentice training in the Motor Mechanic Trade with effect from 7.12.1996 to 6.12.1997 with the Himachal Road Transport Corporation. Respondent No.1 had issued advertisement on 7.4.2007 whereby the applications were invited for filling up the post of Motor Mechanic (unreserved) in the pay scale of Rs. 4020- 6200 from amongst matriculate candidates possessing diploma in Motor Mechanism and also having at least three years experience in the respective field on the form prescribed. The applications were to be submitted on or before 30.4.2007. The petitioner and respondent No.2 submitted their applications before the prescribed date. The mechanical test was held on 25.7.2007. Thereafter the interview was held on 1.9.2007. Respondent No.2 was offered appointment on 6.9.2007 vide Annexure P-13. Mr. Sunil Mohan Goel has strenuously argued that the selection of respondent No.2 to the post of Motor Mechanic is violative of Articles 14 and 16 of the Constitution of India. He also contended that the petitioner was more meritorious vis-à-vis respondent No.2. He lastly contended that the petitioner had secured more marks in the trade test vis-à-vis respondent No.2, however, respondent No.2 has stolen march over him in the interview held on 1.9.2007. Mr. Raman Sethi, appearing on behalf of respondent No.1 has supported the selection of respondent No.2. Mr. B.C. Negi has strenuously argued that the petitioner is estopped from challenging the selection of respondent No.2 once he had appeared in the selection process pursuant to advertisement dated 7.4.2007. He has further contended that the petitioner has not imputed any malafide against the members of the selection committee. 3 Respondent No.1 was directed to produce the record. Respondent No.1 has produced the record during the course of hearing. I have heard the learned counsel for the parties and perused the record carefully. What emerges from the pleadings of the parties is that the petitioner had obtained National Trade Certificate from the Industrial Training Institute, Shimla in the year 1996. He worked as a Motor Mechanic with Goel Motors Private Limited with effect from 1998 till November, 2006. He participated in basic training course in the maintenance of motor vehicles with effect from 20.4.1998 to 25.4.1998. He also participated in Service Advisory Training Course on Workshop Management and Maintenance of Motor Vehicles held with effect from 5.11.2004 to 6.11.2004. He further participated in All India Skill i.e. Northern Regional Round for the year 2002-03, 2003-04, 2004-05 and 2005-06. He has also done Apprentice Training in the Motor Mechanic Trade with effect from 7.12.1996 to 6.12.1997 with the Himachal Road Transport Corporation. The petitioner and respondent No.2 had appeared in the trade test held on 25.7.2007. The trade test was conducted at Divisional Workshop, Taradevi, Shimla. Sh. R.K. Gupta, Divisional Manager (Technical), Himachal Road Transport Corporation, D/W Taradevi, Shimla was the Chairman, Sh. J.D. Bhardwaj, Assistant Registrar, High Court of Himachal Pradesh and Sh. Shamsher Singh, Head Mechanic, Himachal Pradesh Road Transport Corporation, D/W Taradevi, Shimla were the other members of the Committee. The petitioner has been awarded 18 marks out of 20 marks whereas respondent No.2 has been awarded 16 marks out of 20 marks in trade test. However, in the viva-voce test held on 1.9.2007, the petitioner has been awarded 7.25 average marks and 4 respondent No.2 has been awarded 11.25 average marks. The details of break-up of the marks awarded in viva-voce are discussed below. In the final marks-sheet, the petitioner has been awarded 38.75 marks whereas respondent No.2 has been awarded 39.25 marks. It is in these circumstances that respondent No.2 on the basis of the final marks-sheet was appointed as Motor a Mechanic vide order 6.9.2007. The post in question is of a ‘Motor Mechanic’. Primarily the suitability of the candidates was to be adjudged to see their skills as Motor Mechanic. The petitioner had secured 18 marks out of 20 marks in the trade test. Two members of the committee, i.e. Chairman Sh. R.K. Gupta and Shamsher Singh were experts in the field of motor-mechanism. They have assessed the suitability of the petitioner to the post of Motor Mechanic. He has been awarded more marks than respondent No.2. However, as noticed above, the petitioner has been awarded 1 ½ marks in general knowledge, 3 ½ marks in experience and 1 ½ marks in personality/intelligence/physique out of 15 marks by Sh. V.K. Gupta, Registrar Vigilance, whereas he has been awarded 2 ½ marks in general knowledge, 4 marks in experience and 2 marks in personality/intelligence/ physique out of 15 marks by Sh. P.S. Rana, Registrar Inspection. The Court is of the considered opinion that the 15 marks out of 50 allotted for viva-voce were on the higher side. The skills of the candidates were only required to be seen whether they are competent motor mechanic or not. However, at this stage, the Court will not disturb the marks, which have already been carved out for viva-voce. Respondent No.2 has been awarded 3 ½ marks in general knowledge, 3 ½ marks in experience and 3 ½ marks in personality/intelligence/physique out of 15 marks by Sh. V.K. Gupta, Registrar Vigilance, whereas he has been awarded 4 ½ marks in general knowledge, 3 marks in experience and 4 ½ 5 marks in personality/intelligence/physique out of 15 marks by Sh. P.S. Rana, Registrar Inspection. The Court is of the opinion that the marks allotted to the petitioner on the basis of the questions allotted under head “General Knowledge” need not be disturbed. It is evident from the record produced by respondent No.2 that one member of the committee (Sh. V.K. Gupta, Registrar Vigilance) had allotted 3 ½ marks to the petitioner as well as to respondent No.2 for experience. He has awarded 1½ marks for personality/ intelligence/ physique and 3 ½ marks have been awarded to respondent No.2 towards this trait. The second member of the committee (Sh. P.S. Rana, Registrar Inspection) has awarded 3 ½ marks to the petitioner under head ‘experience’ and 3 marks to respondent No.2 under this head. He has awarded 2 marks to the petitioner and 4 ½ marks towards personality/intelligence/physique to respondent No.2. The petitioner, as noticed above, had worked as a Motor-Mechanic with Goel Motors with effect from 1998 till November, 2006. He has done apprentice training in the Motor Mechanic Trade with effect from 7.12.1996 to 6.12.1997 with the Himachal Road Transport Corporation. These certificates have been placed on record by the petitioner by way of Annexures P-3 and P-11, respectively. Respondent No.2 has placed on record his experience certificate vide Annexure R-2/F. This certificate has been issued for Sharma Auto Clinic, Partner. The place where the workshop is situated, has not been mentioned at all. It is also not clear from the certificate in which capacity the person has issued the same. The certificate does not appear to be genuine. The members of the committee have given 3 ½ and 3 marks respectively for experience to respondent No.2. The Court is of the considered opinion that on the basis of the kind of certificate, relied upon by respondent No.2, he was not entitled to any marks at all for experience. It has not been issued on letter-head. To the 6 contrary, the certificates placed by the petitioner on record are authentic and are of well recognized workshop of Goel Motors Private Limited. He has worked with Goel Motors with effect from 1998 till November, 2006. He has also obtained apprentice training vide Annexure P-11. The disproportionate/excessive marks allotted to respondent No.2 towards experience have given definite edge to respondent No.2 over the petitioner. If these marks are excluded, the petitioner is more meritorious vis-à-vis respondent No.2. It is settled law by now that the courts will not sit over the proceedings of the committees/DPCs, however, there is apparent illegality in awarding the marks to respondent No.2 towards experience, which he never deserved and this Court can definitively interfere in the matter being exceptional. Their Lordships of the Hon’ble Supreme Court in Badrinath versus Government of Tamil Nadu and others, (2000) 8 SCC 395 have held as under: “Normally, this Court does not enter into question of the correctness of assessment made by Departmental Promotion Committees (or Joint Screening Committees). But the case before us appears to be a very exceptional one as it has serious overtones of legal bias (to which we shall refer in detail when we come to Points 4 and 5). Unless there is a strong case for applying the Wednesbury doctrine or there are mala fides, Courts and Tribunal cannot interfere with assessments made by Departmental Promotion Committees in regard to merit or fitness for promotion. But in rare cases, if the assessment is either proved to be mala fide or is found based on inadmissible or irrelevant or insignificant and trivial material - and if an attitude of ignoring or not giving weight to the positive aspects of one's career is strongly displayed, or if the inferences drawn are such that no reasonable person can reach such conclusions, or if there is illegality attached to the 7 decision, - then the powers of Judicial review under Article 226 of the Constitution are not foreclosed. While the Courts are to be extremely careful in exercising the power of judicial review in dealing with assessment made by Departmental Promotion Committees, the executive is also to bear in mind that, in exceptional cases, the assessment of merit made by them is liable to the scrutinised by Courts, within the narrow Wednesbury principles or on the ground of mala fides. The judicial power remains but its use is restricted to rare and exceptional situations. We are making these remarks so that Courts or tribunals may not by quoting this case as an easy precedent - interfere with assessment of merit in every case. Courts and Tribunals cannot sit as appellate authorities nor substitute their own views to the views of Departmental Promotion Committees. Undue interference by the Courts or Tribunals will result in paralysing recommendations of Departmental Committees and promotions. The case on hand can be a precedent only in rare cases. A three Judge Bench considered this question in J. D. Srivastava v. State of M. P., (1984) 2 SCC 8 : (AIR 1984 SC 630 : 1984 Lab IC 337). In that case, Venkataramaiah, J. observed that reference on very old adverse remarks relating to the earlier part of an officer's career are "not quite relevant and that" it would be an act bordering on perversity to dig out old files to find out some material to make an order against an officer. The following observations are significant (Para 7 of AIR, Lab IC) : "It is true that in the early part of his career, the entries made do not appeared to be quite satisfactory. They are of varied kinds. Some are good, some are not good and some are of a mixed kind. But being reports relating to a remarks period, they are not quite relevant for the purpose of determining whether he should be retired compulsorily or not in the year 1981, as it would be an act bordering on perversity to dig out old files to find out some material to make an order against an officer." 8 Their Lordships of the Hon’ble Supreme Court in Vijay Syal and another versus State of Punjab and others, (2003) 9 SCC 401 have held that normally court would not interfere with the assessment made by interview committee in absence of any mala fides or extraneous considerations. Their Lordships have held as under: “As can be seen from the difference of marks secured by the candidates in interview, it does not appear abnormal or per se does not smell of any foul play or does not appear patently arbitrary. The lowest of the marks given in the interview are 11.5 and the highest are 22.87. Further marks secured in the interview and the marks secured in written test are also not grossly disproportionate. This apart, out of total marks of 240, only 25 marks were earmarked for interview. So 25 marks for interview out of 240 as against 200 for written test and 15 marks for qualification and other activities do not admit an element of arbitrariness or give scope for use of discretion by members of the interview Committee recklessly or designedly in giving more marks to show favour in interview so as to give an advantage or march to an undeserving candidate of their over others who had shown extraordinary merit in written test. From the chart, we find among the candidates, marks secured in the written test were between 119 to 128 except in one case belonging to Scheduled Castes were 114. This apart, the marks secured in the interview are based on the assessment of the Interview Committee. Normally, it is not for the court to sit in judgment over such assessment and particularly in the absence of any mala fides or extraneous considerations attributed and established. The interview marks of 25 as against total marks of 240, cannot be taken as excessive. It comes to 10.4%. Possibly the selection would have been vitiated, if the marks for interview were 100, as against 150 marks for written test as sought to be made out. Unfortunately, for the appellants, their misrepresentation in this regard, is unfolded very clearly as already stated above. Further, the appellants, knowing the criteria fixed for selection and allocation of marks, did participate in the interview; when they are not successful, it is not open to them to turn around and attack the very criteria. The High Court in the impugned order has found that the 9 criteria contained in Annexure R-1 filed in the writ petition was published and that such criteria was adopted earlier also in respect of other selections.” Their Lordships of the Hon’ble Supreme Court have recently upheld the decision of the Hon’ble High Court of Orissa in Dipitimayee Parida versus State of Orissa and others, JT 2008 (11) SC 430 whereby the decision of the selection committee awarding three marks to the candidate in violation of the instructions issued was quashed. Their Lordships have further held that the selection committee had no power to give relaxation. It is thus evident that the courts can intervene where the marks are allotted to the candidates. Their Lordships have held as under: “We have noticed hereinbefore that a Circular Letter had been issued by the State Government on 7.10.1998; the validity whereof is not in question. The manner in which the marks are to be distributed has been laid down in clause 8 of the said circular letter. Sub-Clause (d) of Clause 8 of the said Circular postulates that three marks are to be granted if the candidate is a married woman and additional three marks are to be granted if she is a widow or a divorcee. As the Scheme deals with the welfare of the children, it is expected that a married woman would be able to deal with them more efficiently; widows and divorcees are granted additional marks in order to give incentive to them to work with the children. Then marks had been fixed for viva-voce test. The marks which have to be awarded in terms of clause 8 (a) to (e) were to be notified prior to holding of interview. The reason behind the same appears to be invoking the principle of transparency in the Selection Process. Thus, as in terms of clause 8 (a) to (e), appellant got 55% marks; the Selection Committee could not have awarded here three additional marks on the premise that she was married. Even before the interview such marks could not have been awarded as the authorities were not expected to be aware that she was married after filing of the application for recruitment. It may or may not be for appellant to bring the 10 said subsequent event to the notice of the competent authority so as to enable them to consider that although on the last date for filing of the application she was not married but was married subsequently. We say so because in terms of the rules it was for the competent Committee to award marks in terms of clause 8 (a) to (e) of the said Circular Letter dated 7.10.1998. The Selection Committee could not have done so as it was merely authorized to hold the viva-voce test wherefor only 10 marks were specified.” In the present case, the petitioner had no knowledge what marks were allotted at the time of interview since the decision to hold interviews had been taken after issuing the advertisement on 7.4.2007 and that too after holding trade test on 25.7.2007. Their Lordships of the Hon’ble Supreme Court in Inder Parkash Gupta versus State of J&K and others, (2004) 6 SCC 786 while dealing with the defective selection method have held that the appellant was not only entitled to be placed above the respondents in the select panel but was also entitled to all consequential service benefits. Their Lordships have held as under: “Questioning the validity of Rule 51 of 1980 and consequently the selection and appointment of Respondents 3 to 10, a writ petition was filed by Shri Inder Parkash Gupta, inter alia, contending therein that Respondents 3, 6 and 9 were not eligible to be considered for appointment to the said posts as they did not possess requisite experience of two years as Registrar/Tutor. It was further alleged that Respondent 10 at that time was overage. Further contention of the writ petitioner was that his research work, experience and publications had not been taken into consideration by the Commission. In particular, his higher qualification of DM had not been given due weightage. It was also urged that keeping in view the decision of this Court in J&K Public Service Commission v. Dr. Narinder Mohan1 wherein the appointments of Respondents 3 and 10 as ad hoc Lecturers have been quashed, the purported experience gained by them in the said capacity could not 11 have been taken into consideration by the Commission. The selection made by the Commission was said to be arbitrary and illegal as the criteria laid down in Rule 51 of the 1980 Rules had been applied to assess the merit and suitability of the candidates ignoring Rule 8 of the 1979 Rules whereby and wherein eligibility criteria and method of recruitment were laid down. The writ petition having regard to the importance of the questions involved was referred to a Full Bench for its decision. The Full Bench by its judgment dated 30-7-1999 passed in SWP No. 211 of 1994, for all intent and purport accepted the major contentions raised on behalf of the writ petitioner-appellant holding: "1. The Commission has the competence and jurisdiction to frame rules for conducting its business such as the 1980 Rules. 2. Rule 51 of the 1980 Rules should be reframed by the Commission in accordance with the observations made in the course of this judgment. 3. The selection of selected candidates made by the Commission is not disturbed subject to the relief granted to the petitioner. 4. The petitioner shall be treated to have been selected and placed in the select panel above Respondents 3 and 9 who in turn shall be the selected candidates in the select panel after Respondent 4 and the petitioner. The petitioner shall further be entitled to all consequential service benefits." The High Court having regard to the pleadings of the parties and submissions made before it formulated the following questions: "1. Whether the Commission has the competence and jurisdiction to frame the Jammu and Kashmir Public Service Commission (Conduct of Business and Procedure) Rules, 1980? 2. Whether the selection made applying criteria prescribed under Rule 51 of the Rules (supra), has the effect of ignoring Rule 8 of the Jammu & Kashmir Medical Education (Gazetted) Services Recruitment Rules, 1979, which prescribes the statutory method of recruitment to the posts in teaching wing? 12 3. Whether the experience as ad hoc Lecturer can be counted as experience gained as Registrar/Tutor, Demonstrator/Tutor or Senior Resident/Tutor to meet the requirement of statutory eligibility condition to seek consideration for selection and appointment as Lecturer? 4. Whether 100 marks earmarked for viva voce test and 40 marks for record as per the criteria contained in Rule 51 (supra), are excessive and capable of turning the merit into demerit in view of the judgments of the Supreme Court and thus Rule 51 needs reconsideration? 5. Whether the selection of Respondents 6 to 10 and particularly of Respondents 3, 6, 9 and 10 is bad being not in accordance with the statutory method of selection and is also the result of arbitrary selection?" As regards Question 1, it was answered in the negative stating that although no such power is expressly conferred upon the Commission but proceeded to hold that the Commission had the competence and jurisdiction to frame such regulatory procedural rules for conduct of its own business and this power is impliedly granted by the enactment. As regards Question 2, the High Court was of the opinion that Rule 8 of the 1979 Rules prevailed over Rule 51 of the 1980 Rules holding that no additional qualification can be attached or added to the prescribed eligibility qualification or method of selection by the Commission holding: "Thus, the Commission has not properly followed and applied the method of selection relating to the service, while making selection, prescribed under Rule 8 of the 1979 Rules." As regards the eligibility of Respondents 3, 6 and 9, the High Court noticed that the said respondents did not possess requisite experience observing that the Commission did not specifically explain as to how these respondents were said to have possessed two years' experience as Registrar, Demonstrator or a Senior Resident. It was held: "Respondent 3 Dr. Jaipal Singh, is having experience as Registrar only of 22 months whereas Respondent 9 Dr. Jatinder Singh is having experience of 20 months 27 days which is less than two years." 13 As regards Question 4, the High Court answered the same in the affirmative relying on various decisions of this Court. It was held that in engineering service there is no such rule providing statutory method of selection as is found in Rule 8 of the 1979 Rules holding: "Rule 51 providing 100 marks for viva voce against 40 for record, makes a departure and is apparently contrary to the law laid down by the Supreme Court and necessitates reconsideration of Rule 51 for the added reason that there is no consensus of judicial opinion rendered in Abdul Wahid Zargar case vis-a-vis the judgments of the Supreme Court that marks for viva voce test could exceed the marks assigned for record/academic merit, where the selection is made on the basis of interview alone. There is another reason also that Rule 51 has not taken care of Rule 8 of the Service Rules, 1979, consequence whereof is that the statutory method of selection has not been comprehensively followed