Gujarat High Court
Patel vs State on 12 August, 2008
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
Gujarat High Court Case Information System
Print
SCA/957420/2008 76/ 106 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9574 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9575 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9576 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9577 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9596 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9737 of 2008
To
SPECIAL
CIVIL APPLICATION No. 9740 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9752 of 2008
To
SPECIAL
CIVIL APPLICATION No. 9754 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9777 of 2008
To
SPECIAL
CIVIL APPLICATION No. 9780 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9783 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9808 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9820 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9824 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9827 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9828 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9830 of 2008
To
SPECIAL
CIVIL APPLICATION No. 9837 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9862 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9863 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9877 of 2008
To
SPECIAL
CIVIL APPLICATION No. 9883 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9921 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9922 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9967 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9968 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9988 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9989 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
======================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
======================================
PATEL
TULSIBEN AMBALAL & ors. - Petitioner(s)
Versus
STATE
OF GUJARAT & ors. - Respondent(s)
======================================
Appearance
:
Special Civil Application Nos. 9574, 9575,
9596, 9752 to 9754, 9777 to 9780, 9828, 9921, 9922, 9967 & 9968
of 2008
MR
KB PUJARA for Petitioner(s)
MR SUNIT SHAH, GOVERNMENT PLEADER for
Respondent(s) : 1 - 3.
BY POST for Respondent(s) : 4 - 6.
MS
VIRAJ S FOZDAR for Respondent(s) : 7 (in SCA 9574 of 2008)
MR
GM JOSHI for Respondent : 7 (in SCA 9575/08)
Special
Civil Application Nos. 9576, 9577, 9737, 9739, 9831-9837, 9988 &
9989 of 2008
MR
SHALIN MEHTA for Petitioners
MR SUNIT SHAH,
GOVERNMENT PLEADER, for Respondent(s): 1,2
MR
HS MUNSHAW for Respondent(s) : 3,4,7,8,10,13,18,19, 24,25 (SCA
9576/09)
MR
MANISH J. PATEL for Respondent : 11 (SCA 9576/08)
MR
MP PRAJAPATI for Respondent(s): 14, 15 (SCA 9576/08)
MR
RUTVIJ BHATT for Respondent: 22 (SCA 9576/08)
MR
MAYANK VORA for Respondent: 26 (SCA 9576/08)
Special
Civil Application No. 9738 of 2008
Ms.
MAMTA VYAS for Petitioners
MR
SS SHAH, GP, for Respondent : 1
MR
MAYANK VORA for Respondent (s): 2
Ms
VIRAJ FOZDAR for Respondent: 3
Special
Civil Application No. 9740, 9830 of 2008
MR
MAHENDRA K. PATEL for Petitioners
MR
SS SHAH, GP, for Respondent(s): 1-2
MR
MP PRAJAPATI for Respondnent(s) : (in SCA 9830/08)
Special
Civil Application No. 9783 of 2008
MR
UTKARSH JANI for Petitioners
MR
SS SHAH, GP, for Respondent(s) : 1-2
MR
HS MUNSHAW for Respondent(s): 3,4, 6, 8,9
MR
MAYANK FOR for Respondent: 5
MR
MP PRAJAPATI for Respondent(s): 7,11
Special
Civil Application No. 9808, 9862, 9863 of 2008
MR
V. GOSWAMI for Petitioners
MR
SS SHAH, GP, for Respondent(s) 1-2
Special
Civil Application No. 9820, 9824, 9827 of 2008
MR
PS PATEL for Petitioners
MR
SS SHAH, GP, for Respondent(s): 1, 2, 3, 5.
Special
Civil Application No. 9877 to 9883 OF 2008
MR
D.A. ZALA for Petitioners
MR
MP PRAJAPATI for Respondent: 1 (in SCA 9877/08, 9879/08)
MR
SS SHAH, GP, for Respondent(s): 2,3
MR
MANISH PATEL for Respondent: 1 (in SCA 9881/08,9882/08)
MR
HS MUNSHAW for Respondent: 1 (in SCA 9877, 9878, 9879, 9880, 9883 of
2008)
======================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 12/08/2008
ORAL
JUDGMENT
The present group of matters have been filed to challenge the decision of the respondent No. 2-Director of Primary Education dated 17.7.2008 directing all the District Primary Education Officers of the District Education Committees and the Administrative Officers of the Municipal School Boards to ignore/cancel the certificates of sports issued by respondent No. 7-Gujarat State Women's Football Association, Chandkheda, Dist. Gandhinagar (in Special Civil Application No. 9574 of 2008), Gujarat State Kabaddi Association/Gujarat State Athletic Association/Wrestling Association of Gujarat, Ahmedabad for the purpose of 5% additional marks as weightage to be given on the basis of such certificates of sports in the recruitment to the post of Vidhya Sahayak.
2. Since the issues involved in all these petitions are more or less the same and the challenge is to the impugned decision dated 17.7.2008 in all the matters, all these petitions are heard and disposed of together by this common judgment.
F a c t s
3. In order to fill up the post of Vidhya Sahayak in primary schools, the District Education Committees and the Municipal School Boards have undertaken the recruitment in different districts. This exercise has been initiated or started pursuant to the previous litigation and the order passed by this Court in Special Civil Application Nos. 20049 of 2005 and allied matters. For such exercise for filling up of the posts as per the policy of the State government to promote the sports and sports persons 5% weightage has been decided to be given to such sports persons on the basis of the sports certificates issued to them by the recognized sports associations of the State which are in turn affiliated to the federation of the respective sports recognized by the Ministry of Youth Affairs and Sports, Govt. of India. It is also required to be mentioned that there were petitions being Special Civil Application Nos. 4624 of 2007 and 3102 of 2008 filed challenging this aspect of giving of 5% weightage on the basis of such certificates on the ground that the State Government came to know about some associations/institutions distributing bogus certificates which are not recognized. Therefore, the root cause of the controversy or the issue was regarding providing 5% additional marks/weightage to the candidates appearing for the post of Vidhya Sahayak on the basis of such certificates, which in turn are said to have been issued by the associations not complying with the norms, which in turn prejudice the meritorious candidates and thereby preference is given to the candidates with such certificates and the meritorious candidates are denied the opportunity of employment.
4. It is in this context, when it came to the notice of the State Government, the Commissioner, Youth Services and Cultural Activities, Gandhinagar, decided to have verification and trace out issuance of such bogus certificates by organizing camps inviting all recognized associations/institutions with their records about the activities/ events/tournaments organized by them; the details of the candidates who have participated and other such details about the affiliations, etc. with an object to see that the real sports person, who are required to be given the benefit as per the Government policy/Govt. Resolution receive the same, and does not cause prejudice to the meritorious students whose claim would be denied when other candidates with such fake or bogus certificates of sports put forward the claim for accommodating them. The policy of the Government qua giving 5% additional marks/weightage to the candidates appearing in the recruitment of Vidhya Sahayak on the basis of such sports certificates is laid down in the Government Resolution dated. 25.2.1980.
5. It is during such exercise of verification or cross check of such certificates issued by different associations/institutions which have been called in the camps with the records, as stated above, some irregularities are said to have been brought to the notice, which has ultimately culminated into the impugned decision by the respondent No. 2 which has been conveyed to all District Primary Education Officers that they may not approve such certificates given by the aforesaid associations/institutions and treating such certificates as cancelled for the purpose of recruitment of Vidhya Sahayak-2008. It is this decision dated 17.7.2008 which has been challenged in this group of matters on various counts, inter alia, 5.1 The decision is arbitrary and illegal and also in violation of the rules of natural justice;
5.2 The decision is not based on any material and is contrary to the policy of giving 5% additional marks or weightage when the sports certificate is produced by the candidates from the recognized State Associations which in turn is affiliated to the Federation at an all-India level with the Ministry of Youth Affairs and Sports, Govt. of India.
5.3 It is also contended that once such sports certificates are issued to the candidates, the State government i.e. the Secretary, Youth Affairs and Cultural Activities, Govt. of Gujarat, and Director of Primary Education have no authority to ignore or cancel such certificates or treat the national tournaments held with the approval of All India Federation as null and void.
5.4 It has been further contended that it is only the Ministry of Youth Affairs and Sports, Govt. of India, which can take such decision. Further, it has also been contended that the candidates who have produced the sports certificates and the Associations who have issued them have, in fact, participated during such camps for verification with material and if at all there was any shortcoming, further opportunity could have been given, but such a decision could not have been taken, which will ultimately adversely affect the candidates. The learned advocates have emphasized that the word 'verification' would imply the verification about the genuineness of the certificates issued and it is not in dispute that such certificates are issued by the State Associations recognized and are affiliated to the respective Federations of the concerned sports at an All India level whether it is women's football or wrestling or kabaddi, etc. Therefore, if the certificates are issued pursuant to the participation in such event or tournament by the State Association with the approval of the Federation at an All India level, there is no violation of any norms, rules, procedure and the impugned decision is based on mere suspicion that there may be some irregularities and it is an ipse dixit of the respondents which is not only arbitrary and illegal but also without any basis or foundation.
6. An affidavit-in-reply has been filed on behalf of the Director of Primary Education referring to the need for organizing such camps for verification. It has been contended that the State Government had issued a Government Resolution to give benefit of 5% additional marks/weightage to the candidates appearing for recruitment of Vidhya Sahayak who holds the certificate of sports for outstanding performance as per the Government Resolution/Circular. According to such policy, the candidates have submitted the certificates. However, it came to the notice of the State Government that some Associations/institutions have issued bogus certificates or fake certificates not in accordance with the norms and therefore the Commissioner, Youth Services & Cultural Activities, decided to organize camps for scrutiny inviting all such Associations/institutions to remain present with the records with regard to the activities/events/tournaments organized, the details of the candidates who have participated and other necessary details with an object to see that undue advantage on the basis of such bogus or fake certificates is not taken by the candidates at the cost of the meritorious candidates and the merit is not compromised in the recruitment process. It is contended that during such exercise of camps organized for such purpose it was found that the certificates produced by the petitioners were not recognised on the ground that the certificates issued by the respective Associations was not in a position to establish that it is affiliated to any national level federation recognized by the Central Government or the Indian Olympic Association.
7. Similarly, an affidavit-in-reply has been filed by the Secretary, Youth Services and Cultural Activities, Gandhinagar on the same lines. It has been specifically contended, referring to this aspect, that every sport has only one recognized Association either at the national level a Federation recognized by the Central Government affiliated with the Indian Olympic Association and in the same way at the State level one Association gets recognized from the national level Federation recognized by the Government of India. It has been contended that the list of recognized Associations or Institutes downloaded from the website of the Ministry of Youth Affairs & sports, Govt. of India, does not show the name of the two Associations who is said to have attended the camp. It has been contended that at such camps organized by the Commissioner of Youth Services & Cultural Activities, Gandhinagar was attended by 2 Women's Football Associations but none of the Associations was able to establish its recognition. Further, it has been contended that respondent No. 7-Gujarat State Women's Football Association has admitted the same vide letter dated 13.7.2008 (Annexure-D) to one of the affidavits in Special Civil Application No. 9574/08. It has also been stated that one Mr. Natubhai Parmar, as President of the Gujarat State Women's Football Association had addressed a letter stating that there is change in its office bearers and Mr. Sanjay Joshi is appointed as Secretary of the Association and not to certify any certificates till the dispute between two associations are resolved. Further, it has also been contended that even at the national level there are two Women's Football Associations/Federations having conflict and there was a letter by the Commissioner to the President of Indian Olympic Association to provide a list of approved national federations.
8. An affidavit has also been filed by a supporting respondent i.e. one Mr. Bhagwatiprasad Arya, Secretary of the respondent No.7-Gujarat State Women's Football Association contending, inter alia, that the respondent No. 7 Association is blacklisted by the impugned communication dated 17.7.2008 issued by the respondent No. 2 without any show-cause notice or hearing. The action of respondent No. 2 of blacklisting the Association is therefore inconsistent and incompatible with the decision of the Supreme Court reported in (1975) 1 SCC 70 and 1994 Supp. (2) SCC 699. It has also been contended that the respondents have not taken into consideration and suppressed certain facts deliberately and referred to the correspondence or the letters. In some of the matters rejoinders have also been filed reiterating the same averments and also clarifying the respective stand or position with reference to the contentions in the affidavit-in-reply.
9. It is in this background, this group of petitions are contested on various contentions submitted hereinafter.
9.1 Learned advocate Mr. Kaushik Pujara appearing for the petitioners in Special Civil Application No. 9574 of 2008 submitted that the impugned decisions are arbitrary, illegal and in violation of the principles of natural justice. Learned advocate Mr. Pujara referred to the background with regard to the recruitment process and the 5% additional marks to be given as weightage to the sports persons on the basis of sports certificates possessed by them. Therefore, learned advocate Mr. Pujara submitted that the certificates, which have been issued by the State Association cannot be straightway rejected. Learned advocate Mr. Pujara referred to the advertisement and the requirement or qualifications required for the post of Vidhya Sahayak with 5% additional marks to be added as weightage on the basis of such sports certificates. Learned advocate Mr. Pujara also referred to the certificates which have been produced in each of these matters like at page 49 in SCA No. 9574/08, which is a certificate issued by the women's Football Federation of India with regard to Inter Zonal Women's Football Tournament for 2007-08 and submitted that this certificate and the Form-2 clearly suggest that it has been genuinely issued. Learned advocate Mr. Pujara also referred to the railway tickets stating that it would suggest that the candidates have actually participated. Learned advocate Mr. Pujara has also referred to some of the correspondence or letters by which concession has been provided by the Railways and emphasized that it would suggest that the Ministry of Railway has also offered the concession and, therefore, the genuineness of such certificates or the issuing Association cannot be doubted. Learned advocate Mr. Pujara also referred to the Govt. Resolutions dated 25.2.1980 & 10.5.1982. He also referred to the Govt. Resolution dated 1.8.1990 at page 80 to support the contention that it is pursuant to the Government policy to give encouragement to the sports and the sports persons that they have decided to give the benefit to the sports persons and in substitution of the earlier Resolution dated 25.2.1980, another Resolution dated 10.5.1982 has been passed that those who have participated at national level or even at the inter-University competition would be regarded as meritorious sportsmen. The learned advocate also referred to the Govt. Resolution dated 1.8.1990 and thereafter GR dated 11.10.2005 which states that preference may be given to the sports persons while filling up class III & IV posts which has also a reference to giving 5% additional marks. Learned advocate Mr. Pujara, therefore, submitted that when the State Government has issued such policies in the form of Government Resolutions and circulars to provide encouragement to the sports persons and the sports activity, such impugned decision is arbitrary. Learned advocate Mr. Pujara also referred to the impugned communication dated 17.7.2008 (Annexure-F) addressed by the Office of the Director of Primary Education to all District Primary Education Officers and and District Education Committees. Further, learned advocate Mr. Pujara submitted, referring to Annexure-G p. 92 in SCA No. 9574/08 that the State Women's Football Association which has issued the certificates to the candidates has been recognized by the respondent authorities. Similarly, he referred to p. 93 which is again a communication dated 29.4.2005 stating that the State Women's Football Association has been recognized. Again, the certificate at p. 94 is a certificate issued by the Commissioner of Youth Services and Cultural Activities, Gandhinagar, for the recognition of the State Women's Football Association, Kankaria, Ahmedabad. Similarly, at p. 95 is a letter or communication regarding recognition given by the Secretary, Youth Services & Cultural Activities addressed to the Gujarat State Women's Football Association, Chandkheda. He also referred to further such certificates (Annexures H & I) again for that purpose and pointedly referred to the Annexure-I which is the recognized State level Association for different sports and referred to the fact that the Gujarat State Women's Football Association is also one of them. Learned advocate Mr. Pujara referring p. 111 (Annexure-J) submitted that it has been clarified that the recognition is not compulsory and it was submitted that it cannot be disputed that respondent No.7-Association is recognized by the State Government and also it has affiliation with the national federation i.e. National Women's Football Federation. Learned advocate Mr. Pujara also referred to Annexure-R colly. in SCA No. 9574/08 and submitted that the Association was not intimated and thereafter though they had participated in the camp organized by the respondents, it was repeatedly requested that they may be informed. However, the impugned decision has been taken without affording an opportunity of hearing. Learned advocate Mr. Pujara also contended that a participant from the State Association has also been a recipient of the Arjuna Award as reflected in p. 158.
9.2 Therefore, learned advocate Mr. Pujara also referred to the communication dated 2.12.2005 at p. 120, which is a letter from the Secretary, Youth Services and Cultural Activities, to the District Primary Education Officers, District Education Committee, Zilla Panchayats with regard to the verification of the certificates issued for the game of football. Learned advocate Mr. Pujara referred to Annexure-M p. 145 which is a letter from the Women's Football Federation of India addressed to Mr. Bhagwatiprasad Arya stating that Gujarat Women's Football Association is recognized by the Federation. He submitted that this is a letter addressed by the Federation stating about the recognition to the Gujarat Sate Women's Football Association. Learned advocate Mr. Pujara, therefore, submitted that when there is no dispute about the candidates having participated in such tournaments organized by the Gujarat State Women's Football Association on the basis of which certificates are issued to the candidates and there is no dispute about the recognition of the Gujarat State Women's Football Association by the Federation, which is a national level body with whom the said Association is affiliated, the impugned decision to cancel the certificates issued by the Gujarat State Women's Football Association is arbitrary and illegal.
9.3 Learned advocate Mr. Pujara also submitted the decision is not only arbitrary, illegal, it is also violative of Art. 14 as it is in violation of the rules of natural justice. Learned advocate Mr. Pujara submitted that no opportunity of hearing is given before the decision is taken and in fact there is no procedure or process followed for arriving at such a decision and, therefore, it is arbitrary and illegal.
9.4 Learned advocate Mr. Pujara referred to the different petitions in this group of matters for different sports and has also on the same line made the submissions. He also referred to Special Civil Application No. 9575 of 2008, which is with regard to th sports of Wrestling and he referred the Government Resolutions dated 25.2.1980, 1.8.1990. He also referred to Annexure-H p. 115 which is a letter dated 11.6.2008 from the office of the Director of Primary Education to District Primary Education Officers with regard to verification of certificates and referring to p. 116 he emphasized that though this letter is purported to be written with regard to scrutiny and before that exercise is made, it has already been decided that the certificates issued by the Wrestling Association of Gujarat, Gujarat State Women's Football Association, Chandkheda, Gujarat State Women's Football Association, Vijaynagar are not to be considered. Learned advocate Mr. Pujara therefore strenuously submitted that this reflects the arbitrary and highhanded manner in which the decision is taken. Learned advocate Mr. Pujara referred to Annexure-I (colly.) and submited that the letter at p. 117 is addressed by the Indian Style wrestling Association of India, recognized by the Ministry of Youth Affairs & Sports, Govt. of India) and at p. 118 is another letter by the Ministry of Youth Affairs & Sports, Govt. of India, to the Secretary General, Indian Olympic Association for including the sports of Wrestling in Olympics. Learned advocate Mr. Pujara also referred to p. 121 which is Annexure to Guidelines for Assistance to National Sports Federations issued by the Ministry of Youth Affairs & Sports and submitted that there are category-wise list of discipline which have been recognized and referred to the Guidelines providing for withdrawal of the recognition and the procedure for suspension or withdrawal of the recognition. Learned advocate Mr. Pujara therefore submitted that when the recognition of the State Association is not disputed, affiliation with the Federation at the central level is not disputed, and the tournament having been organized is also not in dispute, there is no reason for cancelling the certificates or doubting the certificates issued by the State Association. Learned advocate Mr. Pujara also referred to the letters at p. 128, 131. Further, learned advocate Mr. Pujara referred to Annexure-K which is a latter addressed by the Wrestling Association of Gujarat to the Director of Primary Education stating that the record has been collected by them and though they were required to submit further details, however, the record has not been returned on a different excuse. Further, it has been stated that the Secretary of the Association had visited the office of the Youth Services & Cultural Activities, Gandhinagar on 14.4.2008 for verification but no verification has been made and was orally informed that now no verification is to be made. It has also been stated in the letter that they are affiliated with the National Federation, which is recognized by the Ministry of Youth Affairs & Sports, Govt. of India. It is in these circumstances learned advocate Mr. Pujara submitted that the decision is arbitrary and illegal. Learned advocate Mr. Pujara also submitted that the letter at p. 115/116 (Annexure-H) would reflect that the mind was made up for not considering the certificates. He also referred to the affidavit-in-reply at p. 301-305.
9.5 Learned advocate Mr. Pujara referred to the affidavit-in-reply at p. 209 and submitted that it has been contended that the Wrestling Association of Gujarat was present on 29.5.2008 in the camp but failed to provide necessary details and asked the Government for some time. Thereafter on 30.5.2008 a representative of the Association came with incomplete record. Learned advocate Mr. Pujara submitted that as it is contended that again on 11.7.2008 the Association was called with the documents and details and thus an opportunity has been given and yet as they have not been able to give any details, the decision is taken. However, learned advocate Mr. Pujara submitted that assuming that the Association was called on 11.7.2008 and did not remain present or failed to produce the record, even then the communication or decision dated 17.7.2008 of blacklisting the Association has been passed without affording any opportunity inasmuch as, can it be blacklisted without providing any opportunity or hearing? It was also further submitted that can such decision be taken which would affect not only the Association but the candidates to whom the certificates have been issued without following any procedure or without complying with the rules of natural justice? Learned advocate Mr. Pujara referred to and relied upon the judgments reported in 1975(1) SCC 70 (para 15 &
20) and also judgments of the Hon'ble Apex Court reported in 1994 Supp. (2) SCC 699 (para 11 & 12).
10. Learned advocate Mr. Shalin Mehta appearing for the petitioners in Special Civil Application No. 9576 of 2008 submitted that some of the issues are common and therefore they would apply to all the sports for which the petitions have been filed and some of the facts of the respective sports will be emphasized separately for the appreciation of the Court.
10.1 Referring to Special Civil Application No. 9836 of 2008, learned advocate Mr. Shalin Mehta submitted that the State Association i.e. Gujarat State Kabaddi Association is affiliated to Amateur Kabaddi Federation of India, which is a national federation, recognized by the Ministry of Youth Affairs & Sports, Govt. of India. Learned advocate Mr. Mehta for that purpose referred to p. 148, which is a letter by Amateur Kabaddi Federatrion of India dated 16.6.2008 stating that Amateur Kbaddi Federation of India is affiliated to International Kabaddi Federation, Asian Amateur Kabaddi Federation and Indian Olympic Association which has been also recognized by the Ministry of Youth Affairs & Sports, Govt. of India. The Amaetur Kabaddi Federation of India is the sole body to look after the game of Kabaddi and the allied events in India. He also referred to p. 28 which also refers to such affiliation and the certificates issued to the candidates for the participation in the tournament. Learned advocate Mr. Mehta therefore submitted that all the petitioners have participated in Kabaddi tournament at Vidyanagar, Anand which was an All-India Kabaddi tournament, and the certicicates have been issued to the petitioners which are produced at p.28-29 and the certificates hav been issued at p.30 by the State Association. Again, learned advocate Mr. Mehta referred to the petitions and the documents produced in support of the contention that the Gujarat State Kabaddi Association is affiliated to Amateur Kabaddi Federation of India which in turn is recognized by the Ministry of Youth Affairs & Sports, Govt. of India. Therefore, it was submitted that the certificates issued by the State Association cannot be cancelled as it fulfils the required norms or criteria that the State Association is affiliated with the Federation at the national level, which is recognized by the Ministry of Youth Affairs & Sports, Govt. of India. Therefore, learned advocate Mr. Mehta submitted that the impugned decision, which is taken by the authorities, is arbitrary and illegal and also in violation of the principles of natural justice inasmuch as no opportunity or hearing has been given to the petitioners before the impugned decision was taken which will affect not only the State Association but also the candidates to whom the certificates have been issued.
10.2 Referring to Special Civil Application No. 9754 of 2008, learned advocate Mr. Pujara for the petitioners also supplemented the submission referring to the recognition of the letters which have been produced at p. 95-97 and submitted that the Railway Ministry has granted concession to the participants for which certificates are issued which itself would suggest that the State Association is recognized and its recognition and participation at the tournament at the national level are genuine and bona fide. The State Association has been affiliated to the Amateur Kabaddi Federation of India which in turn is recognized by the Ministry of Youth Affairs & Sports, Govt. of India. Learned advocate Mr. Pujara referred to p. 96 which is a letter from the Amateur Kabaddi Federation of India dated 14.4.2008 to the State Association granting permission to organize such tournament at Vidyanagar, Anand from 28.4.2008 to 1.5.2008. He also referred to the letters at p. 99-100 that such tournament has been arranged after the intimation and approval from the Commissioner of Youth Services and Cultural Activities, Gandhinagar. He also referred to the letter by the Gujarat State Kabaddi Asociation dt. 17.7.2008 at p. 101 and emphazied pointedly to the date which coincides with the date of the decision and submitted that this would imply how the decision is arrived at. Learned advocate Mr. Pujara submitted that this letter specifically addressed by the Gujarat State Kabaddi Association for the purpose of verification of the certificates issued by it and there is a specific clarification that the tournament was organized with the approval of Amateur Kabaddi Federation of India vide letter dated 16/6/2008 and there is no limitation about the participation of the teams of the host state. He also submitted that the State Association is having the affiliation of the district level units. He also referred to the entry form and other details and submitted that the decision is arbitrary and illegal. Learned advocate Mr. Pujara therefore submitted that there is nothing on record by which the benefit could be denied to the petitioners who have ben issued the certificates by the Gujarat State Kabaddi Association.
10.3 Similarly, learned advocate Mr. Shalin Mehta referred to Special Civil Application No. 9831 of 2008 regarding the sports of athletics. It was submitted that the Athletics Federation of India is a national body recognized by the Ministry of Youth Affairs & Sports, Govt. of India. He also submitted that the Gujarat State Amateur Athletics Association is the state level Association with which the Track Trotters Sports Club is also affiliated for which the documents are produced and this Association is affiliated to the national level federation, which is recognized by the Ministry of Youth Affairs & Sports, Govt. of India. Referring to p. 335, 336, 337 & 339 learned advocate Mr. Mehta also submitted that as reflected from the letter at p. 335 which is addressed by the Secretary, Champion Sports Club to the Secretary, Track Trotters Sports Club, Mehsana, Gujarat, for sending the entries or nominations for national level cross country championship under the auspices of AFI & MAAA at Thane, Maharashtra. He referred to p. 336 which is a letter by Maharashtra Amateur Athletic Association to emphasize that the Maharashtra Amateur Athletic Association had organized an all-India tournament and the participants from Gujarat had participated. He referred to the letter at p. 337 by Gujarat State Amateur Athletics Association to the Secretary, Track Trotters Sports Club, Gandhinagar and further correspondence to substantiate that the participants have actually participated. He referred to p. 339/A which is a letter by the Athletic Federation of India, New Delhi to the General Secretary, Maharashtra Amateur Athletics Association which has granted permission to conduct such tournament.
10.4 Learned advocate Mr. Pujara also made submissions on the same lines referring to Special Civil Application No. 9780 of 2008 and other matters with regard to the sports of Volleyball. He referred to Annexure-F (colly.) which is a letter from Gujarat State Volleyball Association regarding grant of permission for organizing tournament and at p. 81 which is a letter by the Volleyball Federation of India dated 22.1.2008 which is regarding invitation for participation in All India Volleyball Tournament which was to be conducted from 7.2.2008 to 10.2.2008. He also referred to Annexure-E (colly.) which is again a letter by the Department of Youth Services and Cultural Activities, Gandhinagar to all District Primary Education Officers, District Education Committee, District Panchayat, with regard to verification of the certificates issued and submitted that this letter is dated 9.3.2008. He also referred to the affidavit-in-reply filed by the Government in Special Civil Application No. 9574 of 2008 and submitted that the same criteria has been applied and the decision is taken which is arbitrary. It was submitted that in the present case also the Gujarat State Volleyball Association is affiliated to the Volleyball Federation of India, which in turn is recognized by the Ministry of Youth Affairs & Sports, Govt. of India. Therefore, there is no reason why the certificates issued by the said State Association should be rejected.
11. Mr. Sunit S. Shah, learned Government Pleader, referred to the Government Resolutions dated 25.2.1980, 1.8.1990 and submitted that it refers to the scheme or the policy of the Government to promote sports and sports persons and with a view to giving encouragement to the sports and sports persons a policy has been evolved by which 5% additional marks is given as a preference to such sports persons in the recruitment of Vidhya Sahayak. Learned Government Pleader Mr. Shah submitted that this scheme does not provide for any reservation and does not contemplate that large number of sportsmen should be available. He referred to the orders passed in Special Civil Application No. 9577 of 2008 (Coram: Bhagwati Prasad, J.) and the order passed in Special Civil Application No. 4624 of 2007 and other allied matters (Coram: H.K. Rathod, J.) and submitted that there were some grievances with regard to irregularity or bogus certificates issued by the Sports Associations or the Clubs on the basis of which 5% additional marks is claimed which will have the effect of marching a steal over the other meritorious/general candidates. Learned Government Pleader Mr. Shah submitted that as there was no uniformity in the recruitment process which were undertaken by different districts, there was a litigation and therefore, now, about 10225 posts of Vidhya Sahayak are to be filled up by different districts and about 26000 candidates have applied. Learned Government Pleader Mr. Shah submitted that the same candidates may have applied in different districts and therefore there would be multiple applications by the candidates.
12. Learned Government Pleader Mr. Shah submitted that in background of these facts it is required to be appreciated whether the impugned decision can be said to be arbitrary and illegal. He submitted that when certain facts were brought to the notice of the Government, it was decided to have a scrutiny by a committee. For that purpose, he referred to Form No.2 and pointedly emphasized the manner in which it could be issued to the candidates and by whom it could be issued. For that purpose he referred to the Government Resolution dated 25.2.1980 and submitted that as referred to in this Government Resolution, 5% marks is to be given as a preference on the basis of the certificates which will be issued and clause (4) of the Resolution provides that as per Schedule 'kh' such a certificate could be issued by the authority specified therein i.e. for national level sports the Secretary of the National Federation or the State Association. Again, it refers to the aspect of verification and scrutiny of the certificates by the said authority. Therefore, learned Government Pleader Mr. Shah submitted that the scrutiny or verification is a right as well as an obligation of the Government to verify that only genuine certificates and genuine candidates get the preference. He also referred to Government Circular dated 11.10.2005 which is also referring to the earlier Resolutions clarifying that it will have the same policy. However, it has a reference to the earlier litigation being Special Civil Application No. 14097 of 2004 that this Court had made an observation with regard to the uniformity.
13. Learned Government Pleader Mr. Shah therefore submitted that it is the right as well as an obligation of the respondent Government to verify or scrutinize the certificates on the basis of which the preference is claimed. Mr. Shah, learned Government Pleader, submitted that for that an exercise was carried out by the committee and the State level sports Associations which have issued the certificates were called upon with the relevant material. For that purpose he referred to the records in different petitions including Special Civil Application No. 9574 of 2008 pertaining to Gujarat State Women's Football Association and submitted that when the said Association could not produce the record with the relevant details and the certificates are issued which in the scrutiny are found fake and have, therefore, led to the decision about non-approval or cancellation of such certificates. He referred to the affidavit-in-reply p. 155 filed by the Director of Primary Education, Gandhinagar and submitted that when the Government came to know that some Associations/institutions were distributing bogus certificates which were utilized by the candidates for the purpose of this preference in the recruitment of Vidhya Sahayak, the verification/scrutiny was made. He pointedly referred to para 5 and submitted that as contended every sport has only one recognized Association either the National Federation, which is recognized by the Ministry of Youth Affairs & Sports, Govt. of India or the Indian Olympic Association. Similarly, at the State level, there is only one Association which would be affiliated to the National Federation. However, in the camp organized by the Commissioner of Youth Services & Cultural Activities for verification of certificates, 2 Women's Football Associations had attended and none of them was able to establish its recognition or affiliation with the National Federation. Learned Government Pleader Mr. Shah referred to Annexures-C & D for that purpose. He also pointedly referred to the letter at Annexure-D dated 13.7.2008 by the Gujarat State Women's Football Association, Chandkheda addressed to the Commissioner, Youth Services & Cultural Activities, Gandhinagar, stating that the Association is affiliated to national level Federation but no letter or certificate could be produced and the participants have participated through the Association. Again, he referred to another letter dated 13.7.2008 which has a different address and again it is addressed to the Commissioner, Youth Services & Cultural Activities and he pointedly referred to p. 192 to emphasize that it is stated that this Association is associated with the State level Association or national level federation or Indian Olympic Association. No certificate or evidence is produced and it would be produced shortly. He also submitted that the President of Gujarat State Women's Football Association Mr. Natubhai Parmar had addressed a letter about the change in the office bearer and Mr. Sanjay Joshi is appointed as Secretary of the Association and it is also stated that there was dispute between the two Associations and not to issue any certificate till their dispute is resolved. Similarly, there are other letters. Learned Government Pleader Mr. Shah submitted that therefore the Commissioner, Youth Services & Cultural Activities had addressed a letter to the President, Indian Olympic Association to provide the list of national federations as there are 2 federations at the national level and there are 2 Women's Football Associations at the State level for which also there is a dispute. Mr. Shah for that purpose referred to the letter dated 29.8.2002 at p. 185 addressed by one M.P. to another M.P. with regard to the aspect of merger of the 2 Federations.
14. It is in these circumstances, learned Government Pleader Mr. Shah submitted that it is necessary that the court may also examine the record and it would be evident that the Associations, particularly, the 3 Associations whose certificates are not approved or cancelled, have been called to submit the record and as they have failed to submit the record, the impugned decision has been taken. Therefore, Mr. Shah strenuously submitted that, can it be said that the decision arrived at by the committee was wrong or biased? Mr. Shah submitted that when it came to the notice of the Government about the irregularities the scrutiny/verification was undertaken by the committee at the camps and after giving an opportunity, as the Associations have failed to submit the relevant record, the decision has been taken and, therefore, the submission regarding the arbitrariness or violation of rules of natural justice cannot be accepted.
15. For this purpose, Learned Government Pleader Mr. Shah referred to and relied upon the judgments of Hon'ble Apex Court in the case of Municipal Corporation of Delhi v. Qimat Rai Gupta and ors., reported in 2007 (7) SCC 309.
16. Learned Government Pleader Mr. Shah submitted that whether the decision is right or wrong is a separate aspect, but can it be said that the decision making process is not justified? It was submitted that the scope of judicial review is also well-defined and limited and the court can examine the decision making process which will reflect about the reasonableness of the decision and the fact that it was not biased or arbitrary.
17. Learned Government Pleader Mr. Shah, therefore, submitted that few points are required to be highlighted or borne in mind that the recruitment to the post of Vidhya Sahayak is in the nature of public employment. Secondly, the recruitment to the post of Vidhya Sahayak being a public employment, transparency and merit are the two criteria, which is required to be appreciated. Third, nobody could be permitted to perpetuate any well designed mischief or the irregularity for taking any undue advantage, which in turn would defeat the rights of the meritorious candidates. Fourthly, role of the Government. Learned Government Pleader Mr. Shah submitted that the Government lays down the policy and the policy has to be implemented and supervised. Therefore, in order to see that there is some uniformity and there is no malpractice, the exercise has been undertaken for the verification and during the scrutiny/verification certain irregularities have been found on the basis of which the impugned decision is taken. Learned Government Pleader Mr. Shah for that purpose referred to the different petitions and also dealt with in detail letter addressed by the State Associations like Gujarat State Women's Football Association to the Women's Football Federation as well as for the sports like wrestling, kabaddi, athletics, etc. seeking permission to organize the tournaments and referring Special Civil Application No. 9574 of 2008 & Special Civil Application No. 9575/08, he highlighted the manner in which the tournament was organized and conducted inasmuch as even before the tournament was concluded, the certificates are issued which is evident from the dates. He therefore emphasized and pointedly referred to this aspect that after the decision or the advertisement with regard to the recruitment for the post of Vidhya Sahayak was published in March by a public advertisement, these tournaments are said to have been organized by the Sports Associations for which letters are addressed to the Federations which have given permission without knowing these aspects and on that basis the so-called tournaments have been organized and the certificates are distributed on the basis of which the claim is made. Again, he referred to the nature of the tournaments and the participation pointing out that there is no proper participation even though it was a national tournament inasmuch as only a few teams have participated and more than one team from the Gujarat State itself has participated. Therefore, again he emphasized that keeping in background this aspect, the Government is required to consider its policy for which he again referred to the Government Resolutions/Circulars dated 25.2.1980, 1.8.1990, 11.10.2005.
18. It was submitted that the policy has been made but the requirement or criteria fixed has to be fulfilled. In the facts of the present case, it is required to be examined whether such criteria or norms have been fulfilled and whether the Government has a right to verify and supervise such a scheme or not? Mr. Shah also submitted that as some of the Associations which have issued the certificates have not fulfilled the criteria or the norms, they were called upon to satisfy and they have failed to satisfy the required norms which has led to the impugned decision for non-approval or cancellation of the certificates issued by them.
19. For that purpose, Mr. Shah also referred to the Guidelines in the form of Government Resolutions as stated above as well as the Guidelines issued by the Ministry of Youth Affairs & Sports, Govt. of India, which refers, Guidelines for Assistance to National Sports Federations. He pointedly referred to the introduction and emphasized that even these Guidelines also refer to the policy to give encouragement to the sports persons. Mr. Shah also referred to para 8.7 which refers to the 'National Championship' and emphasized that the court may examine whether the tournaments can be said to be of the standard of a national championship.
20. Learned Government Pleader Mr. Shah submitted that the candidates like the petitioners have a right to be considered and they have claimed the benefit under the policy. However, can the decision taken by the Government be said to be biased? It was submitted that while taking such decision whether the relevant circumstances and material is considered before arriving at the decision or not is required to be examined by the court.
21. Learned Government Pleader Mr. Shah therefore submitted that as it appears from the Guidelines, this principle has been accepted that there has to be only one team for the State representation at the national level and one national team for the representation at the international level and this criteria is not observed inasmuch as there are number of teams having participated in the national tournaments, which itself is illegal. Moreover, he pointedly referred to clause (c) which reads, National Tournament Schedules. . He also referred to para 8.7 to suggest as to how the national level tournaments and the participation should be organized. It was submitted that it is clearly observed that the Federations shall take steps to ensure that the participants of all the affiliated units participate in the national level championship and in case less than 75% of the affiliated units participate, then the scale assistance will be reduced by 25% and no grant shall be provided in case less than 50% of the affiliated units participate. He submitted that it is not in dispute that at the national level tournaments more than one team from Gujarat has participated and only a few teams from outside the State have participated.
22. Learned Government Pleader Mr. Shah pointedly referred to some of the petitions like SCA No. 9754 of 2008 regarding Kabaddi and submitted that the sports certificates regarding participation are issued suggesting the dates from 28.4.2008 to 1.5.2008. The tournament is scheduled hurriedly after announcement of the recruitment process. For that purpose he referred the letter at p. 96 by the Amateur Kabaddi Federation of India dt. 14.4.2008 giving approval for organizing such tournament. He also referred to p.99 for that purpose. He also referred to p. 142-143 and strenuously submitted that date of the certificates would show that they were issued before the closure of the tournament. He also referred to p. 116 in another petition regarding Kabaddi Association where the same letter dt. 16.4.2008 of the Gujarat State Kabaddi Association is produced addressed to Amateur Kabaddi Federation of India and learned Government Pleader Mr. Shah submitted that by this letter they seek the approval of the Federation for organizing such national tournament and vide communication dated 14.4.2008 at p. 96, the Amateur Kabaddi Federation of India grants approval. Therefore, he submitted that this shows how the tournament or the national championship tournament is organized. Again, he emphasized, referring to the guidelines by the Ministry of Youth Affairs & Sports, Govt. of India and referring to para 8.7 he submitted that it refers to 'National Championships' which clearly provide that application in a proforma (Annexure VII) has to be sent three months before the date of such championship. He also referred to 'XII. Miscellaneous' and emphasized that for the national level tournament widespread domestic tournament is expected and therefore in order to have widespread participation the number of teams as far as possible who participate is also provided. He therefore submitted that if the papers and the number of teams which have participated is verified, it would show how many teams have participated and in fact more than one team from the State of Gujarat has only participated.
23. Again, he referred to SCA No. 9574 of 2008 which is regarding women's football and the certificates issued by the Gujarat State Women's Football Association. He pointedly referred to the draft amendment and Annexure-R colly. produced at p. 155 and submitted that a letter dt. 13.7.2008 addressed by Gujarat State Women's Football Association, Chandkheda addressed to the Commissioner, Youth Services & Cultural Activities, makes it clear that for such national level tournament trial competitions are held and on that basis a team representing the State is selected for participation at the national tournament. He also referred to the affidavit-in-reply at p. 165 and referring to para 5 of the said affidavit he also submitted that there are two such associations and in fact there has been an inter se dispute with regard to election or the claim and recognition. Not only that, referring to para 5 of the affidavit-in-reply he emphasized that the Gujarat State women's Football Association (having same name). Gandhingar, addressed a letter to the Commissioner, Youth Affairs & Cultural Activities and has specifically stated that they have not been able to produce any certificate or any document with regard to affiliation with the level Federation and it has a reference to their communication or the letter on earlier occasion. Therefore, learned Government Pleader Mr. Shah submitted that it thus suggests that sufficient opportunity has been given. He also referred to the letter at p. 199, 196 addressed by the Gujarat State Football Association, Chandkheda and pointedly referred to the fact that there is a specific mention that another women's football association of which one Mr. Sanjay Joshi is the Secretary , is not recognized and the Gujarat State Women's Football Association, Chandkheda has the recognition and has organized tournaments. Mr. Shah, therefore, submitted that the certificates issued by another State Women's Football Association would necessarily mean that they are not reliable as per this letter.
24. He further referred to p. 111 (Annexure-J) and emphasized that there is a litigation with regard to Amateur Athletics Association for which suits are filed in the City Civil Court and the orders have been also passed restraining from carrying out any proceedings in connection with the activities of the Association by any person either as President or Secretary of the Association. The learned Government Pleader also submitted that though emphasis has been given to Annexure-M, p. 145 (in SCA 9574 of 2008), which is sought to be projected as a recognition given by the Women's Football Federation of India. In fact the recognition of the Federation itself has some cloud as there are 2 MPs, Mr. Kirti Jha Azad who has addressed a letter to another MP pointing out the dispute as regards merger of the two Federations even at the national level. For that purpose, he referred to SCA No. 9577 of 2008 and the letter at p. 180 & 185 pointing out that there are 2 women's football federations and even there is some dispute with regard to the federation itself inasmuch as one MP Mr. Kirti Jha Azad has addressed a letter to another Federation of another MP Mr. P.R. Dasmunshi. Learned Government Pleader Mr. Shah also referring to the letter at Annexure-M p. 145 as well as the letter of the Federation at p. 142 (in SCA 9574 of 2008) submitted that even if it is considered, it is evident that p. 142 says that women's football tournament has been scheduled from 15.3.2008 to 18.3.2008 at Kanpur, U.P.
25. He also referred to p. 140 which is a letter by Women's Football Federation of India with regard to National Federation Cup Women's Football Tournament 2007-08 scheduled between 28.12.2007 to 30.1.2008 at Chhatisgarh. Therefore, the learned Government Pleader submitted that if such a national tournament or championship is already organized at one place, how there could be another such national level tournament within a few months in Gujarat?
26. Similarly, he also referred to the petitions with regard to the certificates issued for the sports of athletics and he pointedly referred to the letter dated 12.6.2008 by Gujarat State Amateur Athletics Association which is a letter by the Secretary of the Association stating that for any national level tournament only their Association is recognized and has a right to send the team for participation at national level tournament and any other Association or Club can send the team with their approval only. Learned Government Pleader Mr. Shah therefore submitted that this Association itself has disowned any such certificates issued by any such club or association.
27. Similarly, learned Government Pleader Mr. Shah referred to the letter from the Member-Secretary, Wrestling Sub-Committee, Mysore Dasara Mahotsava which is addressed to District Primary Education Officer, Anand, regarding participation of women wrestlers at Mysore Dasara Wrestling Tournament, which clearly states that Gujarat State was also one of the States which was invited. However, it clearly mentions that a few other women wrestlers from Gujarat had come to participate in the tournament but they were not allowed to participate in the actual tournament/bouts because only 7 wrestlers from each invited State will be allowed to take part in the tournament. However, some of the women wrestlers who had gone to participate in the said tournament had requested to issue at least participation certificate. Therefore, by this letter addressed in response to the letter by the District Primary Education officer it has been clarified that name of the women wrestlers referred to in the letter have not in fact participated.
28. Again, referring to the petitions, learned Government Pleader Mr. Shah emphasized with reference to the dates that as to how the national level tournaments have been organized after the publication of the advertisement for the recruitment to the post of Vidhya Sahayak. It was submitted that after the advertisement for the post of Vidhya Sahayak was published in March, 2008, the State Associations have sought to organize national level tournaments for which they have addressed letters to the Federations and as late as in April, 2008 the permission is granted to organize such tournaments or even thereafter. Therefore, referring to para 8.7 he emphasized that an application has to be first submitted in the prescribed form (Annexure-VII) to MYAS with a copy to ED, SAI 3 months before the date of championship (emphasis supplied). Therefore, learned Government Pleader Mr. Shah submitted that there has to be at least a permission before 3 months before the date of the event or tournament, whereas in the facts before the court, the tournaments at the so-called national level are organized in a hurried manner only with a view to see that such tournaments are used for the purpose of issuing certificates to the participants, which in turn are the persons like the petitioners claiming for the preference by 5% additional marks in the recruitment to the post of Vidhya Sahayak.
29. Therefore, the learned Government Pleader submitted that whether the petitioners can claim any relief and whether the court can consider it under the judicial review. For that purpose, learned Government Pleader Mr. Shah submitted that the scope of judicial review is very limited. For that purpose he referred to and relied upon the judgment in the case of Jayrajbhai Jayantibhia Patel v. Anilbhai Nathubhai Patel & Ors., reported in (2006) 8 SCC 200 and referring to Head Note B and the observations in paras 12 & 18 he pointedly emphasized, Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks th conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects is generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognized, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision-making process and not the decision.
29. He also emphasized the observations in para 12 referring to the scope of judicial review in administrative matters and the exercise of power under Art. 226 of the Constitution and emphasized that, the judicial quest has been to find and maintain a right and delicate balance between the administrative discretion and the need to remedy alleged unfairness in the exercise of such discretion.
30. Learned Government Pleader Mr. Shah therefore submitted that in the present facts, can it be said that the decision is not based on any material or is illogical? He also emphasized that under the guise of preventing the abuse of power, be itself may not be guilty of usurping power.
31. The learned Government Pleader also referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Ajit Kumar Nag v. General Manager (PJ) IOC Ltd., Haldia & ors. reported in 2005(7) SCC 764 and referring to Head Note C and the observations in para 1 strenuously emphasized the observations, The principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. While interpreting legal provisions, a court of law cannot be unmindful of the hard realities of life. The approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, function rather than formal and practical rather than precedential . It was emphasized that, as observed, the principles of natural justice can be modified and even excluded. Again, it was submitted that the principles of natural justice has to be decided with reference to the facts and circumstances of the case.
32. Learned Government Pleader Mr. Shah again emphasized that there must be a legal right before a writ of mandamus can be asked. He strenuously submitted that what is the legal right of the petitioners is required to be examined inasmuch as it is only a policy which has been evolved for the purpose of giving a preference. He again emphasized that 5% additional marks which are given as a preference to the sports persons in the matter of recruitment has to be subject to the norms and which in turn makes it obligatory for the Government to see that the certificates on the basis of which the preference or weightage is claimed is not misused to the detriment or prejudice of other general candidates. Learned Government Pleader Mr. Shah submitted that in the facts of the case after the scrutiny if it is found that the certificates cannot be relied upon and the impugned decision is taken, can it be said that it is in violation of the rules of natural justice or is arbitrary? The learned Government Pleader submitted that in fact even if the person is selected, he does not have a vested right and even the select list can be cancelled.
33. In support of his submission, learned Government Pleader Mr. Shah has referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Mohd. Sartaj and anr. v. State of U.P. and ors., reported in 2006(2) SCC 315 and submitted that it is a case regarding service matter for the appointment where the select list was cancelled and the court has considered the aspect of compliance with the natural justice and referring to the observations it was emphasized that as observed in this case it would not violate the principles of natural justice even if the list is cancelled. Mr. Shah submitted that in this matter of giving 5% additional marks or weightage are not to be considered, but yet if the certificates issued by the Associations, on verification, are found to be not genuine, the same may be ignored and, therefore, the challenge to the decision on the ground of violation of principles of natural justice is without any basis.
34. It was submitted that one has a right to be considered but cannot claim any right for the preference and they have no right to challenge after participating in the recruitment process. For that purpose learned Government Pleader Mr. Shah referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Bihar Public Service Commission and ors. v. Kamini and others, reported in (2007) 5 SCC 519 and submitted that as observed in this judgment, ordinarily, the court would not interfere with the opinion of expert committee as regards qualification and eligibility of candidates.
35. Again, Mr. Shah emphasized with regard to the process and submitted that in this case also for the purpose of recruitment process when the scrutiny or verification is undertaken for the purpose of 5% marks as a preference cannot be said to be arbitrary. He also emphasized that as observed in this judgment, because in the past some candidates possessing a particular qualification has been erroneously considered could to be a ground for another candidate possessing the same qualification to claim the appointment in a subsequent recruitment.
36. Therefore, Mr. Shah submitted that the submission that the same Associations which have issued similar certificates in the past which have been accepted on earlier occasions and therefore the non-acceptance or cancellation of the certificates in the present recruitment process violates Art. 14 is also misconceived. It was submitted that if some irregularity is brought to the notice of the authority, that irregularity has to be corrected and it cannot be allowed to be perpetuated.
37. Again, learned Government Pleader Mr. Shah referred to the judgment of the Hon'ble Apex Court reported in 2007(8) SCC 100 in the case of Union of India v. S. Vindodkumar and Ors. and referring to the observations in para 16 he emphasized that even if the candidates are selected they do not have any vested right.
38. Again, learned Government Pleader Mr. Shah referred to and relied upon the judgment of the Hon'ble Apex Court in the case of A.P. SRTC & Ors. v. G. Srinivas Reddy and ors., reported in (2006) 3 SCC 674 and emphasized the observations and discussion with regard to the right of the candidate to be considered and he emphasized that even the Apex Court has observed that the direction given by the authority to consider was not justified. Learned Government Pleader Mr. Shah submitted that, as observed, the High Court cannot proceed to substitute its own decision in the matter as it will amount to exercising appellate power. Mr. Shah, referring to the observations in para 15 observed, the power of judicial review under Art. 226 concentrates and lays emphasis on decision making process, rather than the decision itself.
39. Therefore, referring to these observations and the principles laid down, learned Government Pleader Mr. Shah strenuously submitted that, can it be said that the impugned decision arrived at is arbitrary, illegal or in violation of Art. 14 and/or in violation of the principles of natural justice?
40. Again, learned Government Pleader referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Mohd. Sartaj and anr. v. State of U.P. and ors. (supra) and emphasized the observation made that it is a matter regarding the discretion and the court, at the best, can examine the fairness of the procedure and the material and the method of arriving at the decision. He also referred to the judgment of the Apex Court reported in (2004) 5 SCC 588 and also in the case of M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and ors., reported in 1999(6) SCC 464 in support of his submissions.
41. Therefore, learned Government Pleader Mr. Shah submitted that in this background the decision making process or the discretion exercised for the purpose of arriving at such a decision can be examined and if, on the basis of material after the scrutiny and after affording the opportunity to the respective Associations, a decision is taken, it cannot be termed as arbitrary or illegal. The State function under Art. 14 can be subject to the scrutiny by the courts but it has to be only for a limited purpose that the court has to be satisfied that the decision making process is based on material and the method adopted is not arbitrary. Learned Government Pleader also emphasized that if the impugned decision is set aside by the court and if the certificates given by the Associations in the manner as highlighted hereinabove are permitted resulting in the preference of 5% additional marks to the petitioners would in fact cause prejudice to the other candidates and it would amount to denial of the fairness in the recruitment process by the Government and also it would allow the petitioners with such irregularly issued certificates taking advantage or rather undue advantage to steal a march over the other general candidates whose rights would be prejudiced. Therefore, he submitted that all these petitions deserve to be dismissed.
42. Learned advocate Mr. Shalin Mehta referring to the rejoinder affidavit in Special Civil Application Nos. 9577 of 2008 and 9574 of 2008 regarding the Gujarat State Women's Football Association submitted that the State Association is affiliated to the Women's Football Federation of India which in turn is recognized by the Ministry of Youth Affairs and Sports, Govt. of India and there cannot be any dispute about it. Therefore, the impugned decision amounts to blacklisting. For that he, again, reiterated and submitted that for the decision of blacklisting no opportunity has been given either to the petitioners or to the Association. He also submitted that the petitioners should be treated with fairness for which fair procedure is required to be followed before they can be condemned.
43. Learned advocate Mr. Mehta, referring to the scope of judicial review, submitted that it is always open to the court to examine whether the procedure followed is fair. Again, he referred to the pleadings to emphasize the submission that an opportunity has not been given to even the Association. He submitted that the Government has a right to verify but the procedure is required to be followed and rules of natural justice ought to have been followed. Again, emphasizing that the impugned decision amounts to blacklisting, he tried to submit that though the learned Government Pleader has stated that the decision does not amount to blacklisting, he referred to the definition of 'blacklisting' in Collin's Dictionary and submitted that it is a consequence that the petitioners would be denied the preference and their certificates re cancelled.
44. Learned advocate Mr. Mehta also referred to Special Civil Application No. 9576 of 2008 which is with regard to Wrestling and submitted that the decision for the Wrestling Association has been taken because they have not bothered to produce the documents and the State Government had no option but to cancel the certificates. Again, he referred to the pleadings at p. 225, 226 and submitted that the petitioners have not been given any opportunity to produce the certificates for verification. Referring to the correspondence and the pleadings it was submitted by him that if the Association has not gone to the camp as directed, whether the petitioners should be thrown out or made to suffer. It was emphasized as to what would have been the fair procedure. Learned advocate Mr. Mehta submitted that it is expected of the Government to call the candidates by giving public notice and verify and could have asked them to submit the documents. It was submitted that if at all it is the State Association which has failed to comply with the requirements, the petitioners cannot be made to suffer.
45. Learned advocate Mr. Mehta submitted that though submissions have been made about the promotion of sports, in fact, there is no policy and submitted that on the one hand the Government has made a policy for promoting the sports and sports persons and such attitude would on the contrary frustrate the very policy. It was also incidentally submitted that though the submissions have been made that there is a widespread irregularity by issuing such certificates, in fact, referring to the statistics and the number of certificates issued by each State Association, he tried to emphasize that the number is not so large and it could have been verified through each of the participants who had submitted the certificates.
46. Referring to Special Civil Application No. 9831/08 which is again regarding the sports of athletics and the letter dated 12.6.2008 referred to by the Government Pleader, it was submitted by learned advocate Mr. Mehta that it is a flip flop of the Government for which he again referred to the letter dated 17.4.2008 and the policy at p. 337 in Special Civil Application No. 9831 (athletics) and submitted, referring to p. 335-339, does the State Government policy require that the candidates should be given certificates for the sports in Gujarat only? It was, therefore, submitted that once there is no dispute about the recognition and affiliation, the decision to cancel such certificates or the tournaments behind the back of the petitioners and the Associations is in violation of the principles of natural justice and fair play. Again, he referred to the letter from the Amateur Kabaddi Federation at p. 83 in SCA No. 9754 and 9836 of 2008 and pointed out that the letter of Amateur Kabaddi Federation clarifying that there is no limitation of number of teams to be participating in all India kabaddi tournaments from the host state which is Gujarat. Therefore, learned advocate Mr. Mehta submitted that the submission of the learned Government Pleader that more than one team has participated in the national tournament from Gujarat is also misconceived as the Federation has accepted and allowed such participation of more than one team from the host State and therefore it is merely an eye wash.
47. Learned advocate Mr. Mehta submitted that the action of the respondent State Government is required to be tested on the Wednesbury's Test (reasonableness). For that he submitted that it has to fulfill the following criteria:
procedural impropriety illegality irrationality proportionality
48. It was submitted, emphasizing on this aspect, that it would be subject to the judicial review. He submitted that there is no procedure followed before cancelling the certificates and it was merely on assumption and presumption the impugned decision has been taken and therefore it is illegal. Again, he emphasized that it would also amount to illegality inasmuch as principles of natural justice have not been followed. No show-cause notice or no opportunity has been provided which is in violation of Art. 14 of the Constitution. He emphasized that this decision is also irrational inasmuch as it is on assumption and presumption or suspicion and there is no basis, material or foundation for arriving at such a decision. Referring to the proportionality, it was submitted that, whether the candidates have been given any show cause notice as to why the certificates should not be rejected? As they have not been given such opportunity, it amounts to violation of the rules of natural justice inasmuch as it involves civil consequences.
49. Learned advocate Mr. Mehta, in support of this submission, referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Gulzar Singh v. Sub-Divisional Magistrate and anr., reported in 1999(3) SCC 107 where the scheduled caste certificate was cancelled and the Apex Court has observed that without issuance of show-cause notice, such an action of cancellation of the scheduled caste certificate was bad and in violation of the principles of natural justice.
50. He also referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Rajesh Kumar & Ors. v. Dy. CIT and ors., reported in 2007(2) SCC 181 and referring to Head Note B and para 26, 23 and 48 pointedly referred to the observations, In any event, when civil consequences ensue, there is hardly any distinction between an administrative order and a quasi-judicial order. There might have been difference of opinions at one point of time, but it is now well settled that a thin demarcated line between an administrative order and quasi-judicial order now sand obliterated.
Therefore, he emphasized that even if it is an administrative decision, bare minimum principles of natural justice ought to have been followed.
51. Learned advocate Mr. Mehta also submitted that, therefore, the impugned decision dated 17.7.2008 violates every canons of fair play. It was submitted that no reasons are also mentioned in the order itself which is a necessary imperative. In support of the submission, he has referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Hindustan Petroleum Petroleum Corpn. Ltd. v. Darius Shapur Chenai and ors. reported in 2005(7) SCC 627 and referring to para 25 he submitted that the State cannot be permitted to construe subsequently what has not been there in the order. It was submitted that otherwise it would amount to encouraging highhandedness or arbitrariness.
52. Learned advocate Mr. Mehta submitted that the contention which has been raised is with regard to whether the mandamus would lie and the right of the petitioners. He strenuously submitted that the matter pertains to public employment and therefore Art. 14, 19 and 21 would apply. It was submitted that 5% marks which are claimed as a preference, which is sought to be given to the sports persons like the petitioners would benefit them, and therefore if such certificates are cancelled arbitrarily, it would cause prejudice and therefore they have a right to challenge the State action.
53. In support of his submission, learned advocate Mr. Mehta has referred to and relied upon the judgments of the Hon'ble Apex Court in the cases of Bihar Public Service Commission (supra), A.P. SRTC (supra), Union of India & ors. v. S. Vinodhkumar & ors. reported in (2007) 8 SCC 100 and Indian Airlines Officers' Assn. v. Indian Airlines Ltd. & ors., (2007) 10 SCC
684. Therefore, he submitted that it would fall within the scope of judicial review and the writ of mandamus would lie to set aside such arbitrary action of the respondent-Government.
54. Learned advocate Mr. Kaushik Pujara submitted that he would supplement the submissions made by learned advocate Mr. Shalin Mehta. It was submitted that an impression is sought to be created there is large-scale irregularity committed in issuing such certificates. However, he submitted that if the facts are examined, it is contrary to the facts. Learned advocate Mr. Pujara submitted that the decision making process could be examined and what was the material before the authority to come to such conclusion and the respondents have failed to establish that there was any basis or material to come to such conclusion. Again, he referred to the policy of the Government as reflected in the Government Resolutions dated 25.2.1980, 1.8.1990 etc. and submitted that on the one hand it is meant to encourage the sports and sports persons and on the other such a decision is taken which would cause prejudice to the candidates who are the sports persons. Learned advocate Mr. Pujara submitted that the verification said to have been undertaken is also erroneous as it has to be in light of the Government policy in the form of Government Resolutions dated 25.2.1980, 1.8.1990 etc. These are the parameters within which the respondents are required to function and not beyond. Therefore, the right of verification cannot be for a fishy inquiry. Learned advocate Mr. Pujara submitted that there is no record as to which committee, under what authority or power, has been made and who are the persons in the committee. What is the procedure followed and there has to be some minutes or record for such proceedings of the committee. Therefore, learned advocate Mr. Pujara submitted that the so-called exercise is merely a paper exercise and nothing is brought on record.
55. According to learned advocate Mr. Pujara, the so-called exercise for verification is in fact for not giving sufficient opportunity to the candidates and he emphasized that once the affiliation of the State Association with the national level Federation for different sports is established, which is recognized by the Ministry of Youth Affairs & Sports, Govt. of India, the matter would end there and the Government has no business to make further scrutiny.
56. Again, learned advocate Mr. Pujara submitted referring to the Government Resolutions that this policy and the order are in the name of the Governor and, therefore, under Art. 161 it is a constitutional piece of paper. It has some significance attached to it and necessary importance should have been attached to it which it deserves and it cannot be ignored by such an arbitrary action that in spite of such policy to give promotion to the sports persons the Government may ignore the certificates for the sports.
57. Learned advocate Mr. Pujara submitted that it is well settled that action of the Government has to be fair and reasonable and the fairness would imply that fair opportunity is also given before the decision is taken. Therefore, learned advocate Mr. Pujara submitted that if the principles of natural justice has been violated the action would be bad and illegal.
58. For that purpose, the learned advocate submitted that since the case of State of Orissa v. Dr. Binapani Devi reported in AIR 1967 SC 1269 the law has been well settled and accepted and which has also been followed including in the case of Mohinder Singh Gill v. Chief Election Commissioner, New Delhi and ors. Reported in AIR 1978 SC 851.
59. Learned advocate Mr. Pujara submitted that for the sports of kabaddi and volley ball no reasons are given and there is highhandedness and in the same manner they are also treated.
60. Learned Government Pleader Mr. Shah, therefore, in response to the specific contention that the decision dated 17.7.2008 refers to only 3 Associations and therefore is required to clarify with regard to the certificates qua other sports. In response to this, learned Government Pleader Mr. Shah, on instructions from the Secretary, Primary Education and Secretary, Youth Affairs & Cultural Activities, has stated that it will apply to all other such certificates for other sports also as Gujarat State Volleyball Association has also disowned the certificates and clarifies specifically that no such certificates are valid and endorsement has been made by the Secretary that such certificates are not with regard to the tournament recognized by Gujarat State Volleyball Association. Similarly, learned Government Pleader Mr. Shah referred to Ball Badminton tournament and submitted that such a sports is not recognized and therefore it has no relevance. For that purpose he referred to SCA No. 9877 of 2008.
61. Learned Government Pleader has also produced the file for the perusal of the court satisfaction as to how the decision was taken for the scrutiny or verification of such certificates for which the camps were organized. He pointedly referred to the note by the Secretary, Primary Education, dt. 20.4.2008 and it has a reference to the certificates issued by the State Women's Football Association, Wrestling Association and on that basis it was reflected in the noting that it is an irregularity which would affect the recruitment process and ultimately the decision was taken that instead of debarring the candidates who produced such certificates for claiming preference in the recruitment process, such certificates may not be allowed and such candidates like the petitioners may be considered for the purpose of recruitment on merits along with other candidates. It has also reference to the communication dated 15.7.2008 which is a letter from the Dy. Secretary, Education Department, to the Director of Primary Education. The note dated 20.6.2008 refers to the camp organized for the scrutiny or verification on 3 days, 28.5.2008, 31.5.2008 and 18.6.2008. Therefore, the learned Government pleader stated that it is not a decision by any individual or one Secretary but has been considered at the highest level and the two departments have, after due verification and deliberation at the highest level, considered the issue and the impugned decision has been taken. Therefore, learned Government Pleader Mr. Shah has submitted that the decision making process is justified and if the conscious of the court is satisfied that it is a bona fide exercise considering the rights of the candidates (general candidates), can it be said to be an arbitrary and illegal action? Therefore, Mr. Shah further emphasized, referring to earlier submission, that if the decision making process is based on some material and cannot be said to be arbitrary, then, the scope of judicial review is well-defined and the court may not exercise the equitable discretion under Art. 226 of the Constitution of India.
62. He also referred to the group of petitions filed by learned advocate Mr. D.A. Zala and dealing with the submission of learned advocate Mr. Zala that the only objection was that such certificates were not produced along with Form No. 2 and therefore, the authorities may be directed to verify again along with Form No. 2. Learned Government Pleader Mr. Shah submitted that it is not possible and it would also not be fair as once they have not produced it will not be relevant and in any case the certificates are regarding the athletics or the games for which the certificates issued by the State Association have not been considered as valid. Therefore, the scrutiny along with Form No. 2 will not make any difference.
63. Learned advocate Mr. Maulin Raval has also appeared and submitted that he would submit presenting the other side of the picture also when the petitioners have come forward for equitable relief. He emphasized that though equitable relief is sought, the certificates issued by the Associations are required to be examined whether such Associations are affiliated to the National Federation and whether the National Federations are also recognized by the Ministry of Youth Affairs and Sports, Govt. of India. Therefore, learned advocate Mr. Raval submitted that referring to he pleadings and documents that railway concession has been given or railway tickets have been given, cannot be the criteria that the certificates are genuine or the sports or the tournaments are genuine. It was submitted that the candidates like the petitioners in whose favour such certificates are issued cannot claim a right or a vested right. He submitted that even if the select list is cancelled, no hearing is necessary as observed by the Hon'ble Apex Court in the case of Union Territory of Chandigarh v. Dilbagh Singh and ors., reported in AIR 1993 SC
796. He also referred to and relied upon the judgment of the Hon'ble Apex Court in the case of State of U.P. And anr. v. Om Prakash & Ors., reported in AIR 2006 SC 3080. He also referred to and relied upon the judgment of the Apex Court in the case of Khalid Hussain (Minor) v. Commissioner and Secretary to Government of Tamil Nadu, Health Department, Madras and ors., reported in AIR 1987 SC 2074 and submitted that if the right is claimed under the policy framed by the Government, then the Government has a right to supervise it for the implementation and to prevent any misuse or abuse of the same.
64. In view of the rival submissions, few facts, which are required to be appreciated, are that the petitioners are the candidates, who have been issued certificates of sports by the State Sports Association for their participation in different sports like women's football, volley ball, athletics, wrestling, etc. and on the basis of such certificates, 5% mark as a weightage or preference is claimed in the recruitment process for the post of Vidhya Sahayak, for which an advertisement has been given and produced on record. The process of recruitment of Vidhya Sahayak has been undertaken in light of the directions given by this Court in the earlier Special Civil Application and therefore, different districts have issued public advertisements in or about March-2008. As stated in the advertisement and on the basis of the policy of the Government to promote and encourage sports as well as sports persons, 5% marks or preference is to be given to such sports persons in the recruitment. Therefore, it is on the basis of such policy in the form of the Government Resolutions dated 25th February, 1980, 1st August, 1990 and 11th October, 2005 that such preference is sought to be claimed by the petitioners on the basis of the sports certificate held by them. However, as it came to the notice of the respondents that there were some irregularities in issuance of the certificates of sports, exercise of scrutinising such certificates has been undertaken by the Committee by holding camps and the State Sports Associations, which had issued the certificates, were called upon to produce the relevant material. For that purpose, files were produced and a note dated 20th June, 2008 with regard to verification reflects that how the irregularities came to the notice on scrutiny and what could be further measures and steps were considered and ultimately, two aspects were considered as to whether the applications of the applicants/petitioners for recruitment of the post should be itself cancelled or only the certificates which have been produced should be treated as cancelled and in the recruitment process even such candidates may be allowed to be considered on merits with others and on the contrary, the second option was preferred considering the fact that for the irregularities of its associations, the candidates like the petitioners may not suffer and they should be considered for the purpose of recruitment. However, ignoring such certificate of sports which they might have produced for the purpose of preference. There is also recommendation for taking necessary steps against the associations and this has been approved at the highest level. Further, on the basis thereof, again the Education Department addressed a letter to the Director of Primary Education dated 15th July, 2008 again focusing on this aspect of verification of such certificates.
65. It appears that on the basis of scrutiny, the decision has been arrived at that irregularities have been committed in issuance of the certificates, which has led to issuance of general instructions in the form of the impugned decision dated 17th July, 2008, which is challenged by the petitioners in the present group of petitions before this Court. It is in this background of these facts and circumstances that the rival submissions are required to be appreciated.
66. The submissions advanced by the learned Advocates appearing for the petitioners are summarised as under:
(i) The impugned decision dated 17th July, 2008 is arbitrary, illegal and in violation of the principles of natural justice and therefore, is violative of Article 14 of the Constitution of India.
(ii) The impugned decision is without any basis or material and it is based only on the presumptions and assumptions.
(iii) It has also been contended that the verification would imply only verification as to whether the certificates are issued by the State Associations and are genuine or not and not beyond that. In other words, it has been submitted that once it is established and accepted that the State Associations have issued certificates of sports to the petitioners, the State Association is the competent authority to issue such certificate and no further scrutiny can be made and the Government must follow their own policy for giving preference or weightage of 5% marks in the recruitment.
(iv) It is also contended that the respondent-authority and the State Government has no right or authority to question the certificates or its genuineness once it is established that they have been issued by the State Sports Associations, which have been duly affiliated to the Federation at the National level, which is recognised by the Ministry of Youth Affairs and Sports, Government of India.
(v) The submissions have also been made that for same event or tournament, on the earlier occasion, certificates issued by some sports association have been accepted as valid for the purpose of recruitment, but, there is no reason why there is change in the attitude at the whims and caprice of the respondent authorities.
67. On the other hand, Mr. Suneet Shah, learned Government Pleader for the respondent-State, has raised the contentions that recruitment for the post of Vidhya Sahayak is in the nature of public employment and there has to be transparency and merits. It is the role of the Government to see that the once any policy is framed by the Government, then, it is supervised in letter and spirit and the Government would have right and obligation to verify the genuineness and authenticity of the certificates and to see that the certificates are according to the norms or not.
68. The contention has been raised, referring to the details of the certificates issued by the State Sports Associations and more particularly, three associations for which reference is made in the impugned decision dated 17th July, 2008, that illegality has been noticed in issuance of the certificates and organisation of tournaments, and therefore, an opportunity has been given to such associations to clarify and when they had failed to submit necessary details or material, the impugned decision has been taken. Therefore, it is the contention that whether the decision of the Government can be said to be arbitrary, illegal and in violation of principles of natural justice and/or Article 14 of the Constitution of India.
69. It has also been contended that the decision making process may be considered and scrutinised by the Court and if there is any arbitrariness, the Court may interfere with. However, at the same time, the learned Government Pleader has emphasised and submitted about the scope of judicial review in exercise of powers under Article 226 of the Constitution of India. He has also emphasised as to what right the petitioners have to challenge the decision. Regarding approval or cancellation of the certificates issued by the State Sports Associations, the learned Government Pleader has gone to the extent of submitting that it was a large scale irregularity and fraud on the system, which was sought to be scrutinised, and after giving an opportunity, it was decided that such certificates were irregularly issued by the State Associations for Sports and the benefits cannot be given as it would amount to giving undue advantage to the petitioners, who, in turn, would steal a march over the meritorious general candidates.
70. Therefore, to appreciate the rival submissions of the learned Advocates for the parties, it is not in dispute that it is the policy of the Government in the form of the aforesaid three Government Resolutions, that was evolved to give encouragement and promotion to the sports and sports persons and it is on the basis of such policy of giving 5% preference that the petitioners have claimed 5% additional mark as preference in the recruitment to the post of Vidhya Sahayak. Therefore, there cannot be a dispute about the policy, which has been made with a good object. The trouble is said to have started at the later stage of implementation on some occasion. The petitioners, who are claiming this benefit or preference under the policy on the basis of the certificates issued by the Sports Associations of the State, are, in fact, the beneficiaries of the policy and therefore, they can claim the benefit under the policy, but, they cannot be permitted to say that even if some policy is abused or mischief is played, the Government will not have any say and the Government cannot monitor or regulate the implementation of the policy, nor they can do scrutiny to detect any such mischief.
71. The first aspect, which is required to be considered, is as to what is the decision making process, which would be relevant for the purpose of deciding the submissions with regard to arbitrariness, illegality and violation of the principles of natural justice and Articles 14 to 20 of the Constitution of India. The Government, which has framed the policy, has right and in fact, obligation not only to implement but also to monitor and see to it that the object for which the policy is made or framed, is achieved and if in the observance or implementation of the policy, it has come to the notice of the Government that some mischief or irregularity is committed, which would be counter-productive and would run rather counter to the object or purpose sought to be achieved by the policy, then, it is obligatory on the part of the Government to take suitable measures to avoid any such mischief, which frustrates or runs counter to the very basic purpose of the policy. It is in light of this, referring to various details by both the sides, that the submissions have been made. However, as discussed hereinabove, while recording the submissions of both the sides, the facts, which have emerged, are that the State Sports Associations, which have affiliation to the Federation, like in the case of State Women Football Association having affiliation with All India Womens Federation recognised by the Ministry of Youth Affairs and Sports, Government of India, and similarly, other sports associations are having affiliation with the Federation at National level, but, the issue or point which needs to be focused is not as regards the recognition or affiliation of the State level Association with the Federation or Federation at National level itself, but, the issue is with regard to the manner and method in which the State Associations for different sports have issued certificates on the basis of the tournament or national level championship said to have been organised, which has been highlighted. For that purpose, a reference can be made to few documents like in Special Civil Application No.9574 of 2008, which is regarding State Women Football Association, the certificates are issued on the basis of the tournament, which is said to have been organised at Anand. Referring to Special Civil Application No.9574 of 2008 with regard to State Women Football Association, a pointed attention was drawn at Pages 178 and 191 whereby the State Women Football Association was called upon to clarify that a particular candidate had a participation in the national level tournament. Similarly, few certificates are there with regard to the State level tournaments, which are said to have been organised in January-2007. The certificate at page 70 refers to the fact that a particular participant has participated in the State Women Football Championship held at Ahmedabad on 16th January, 2007 and thereafter, from which period to which period, it was held. Similarly, as highlighted, after announcement of the recruitment process, permission is sought for organising the national level tournament, which is granted by the federation in April and the date of the certificate is even before the concluding date of such national tournament. Further, the details and statistics about the number of certificates issued by different associations during the same period in the past have also been highlighted. Therefore, it is required to be examined that whether the certificates, which have not been approved or cancelled by the State, could be in the first place verified or scrutinised by the Government or not. As stated above, affiliation and recognition of the State Sports Association is a separate issue, which may be considered at an appropriate level by the concerned Ministry of Youth Affairs and Sports, Government of India, but, at the same time, it is also required to be appreciated that the Secretary, Youth Affairs and Cultural Activities, State of Gujarat, which is the authority for giving effect to and implementing the aforesaid Government Resolutions and the policy, would undoubtedly have the right to scrutinise and monitor implementation of the policy. Therefore, during the scrutiny, when it has come to the notice, the camps have been organised for the purpose of verification. The respective State Associations have been called upon on different dates with the details and materials so as to justify and verify as to whether the so called tournaments or national level championships have been properly organised and was there any sufficient participation as expected or required for the national level championship or tournament.
72. The learned Government Pleader has referred to the guidelines of the Ministry of Youth Affairs and Sports, Government of India, which reads as Guidelines for Assistance to National Sports Federations and more particularly, paragraph 8.7, which provides that how the national level championship could be organised and it provides that application on the prescribed proforma (Annexure VII) will be sent to MYAS with a copy to the ED (teams), SAI, three months before the date of the championship (emphasis supplied). Further, it provides that the Federations shall take steps to ensure participation of all the affiliated units in the national level championship and in case less than 75% of the affiliated units participate, the scale assistance will be reduced by 25% and no grant shall be provided in case less than 50% of the affiliated units participate/Federations who will fail to organise championship for junior and sub-junior categories will not be entitled for grant of Senior category.
73. Though these guidelines have been referred to by the learned Government Pleader, it has been contended by the learned Advocates for the petitioners disputing these guidelines that these guidelines are only for the financial assistance and it has no application. Moreover, it has also been contended that once the State level Association has organised the event or national level tournament with the approval of the national level federation, the same cannot be disputed and the certificates of participation issued to the candidates cannot be doubted, even if such a tournament is organised within a very short span of time after seeking the approval. The submission that it has no relevance or has reference to only the financial assistance, is misconceived. The first paragraph, which refers to the introduction, reads as under:
Sports and games have been widely recognised as an essential ingredient of Human Resource Development. The Government of India attaches considerable importance to development of sports in general and achieving excellence in the Olympics and other international events in particular. Performance of Indian team in important International Sports events has, however, remained for from satisfactory, which is a matter of serious concern for the Government. It has been the endeavor of the Government to streamline the procedures for effective coordination among various agencies involved in promotion of sports and extend required infrastructure, training and other facilities to the sports persons for achieving excellence in the international events in the coming years.
Over the years a number of National Sports Federations (NSFs) have come up for development of specific games/sports disciplines. The Government of India in achieving their objectives has actively supported these Federations. Existing Guidelines for assisting National Sports Federations had been reviewed and revised based on the experience of our preparation for Asian Games, 1994 and Olympic Games, 1996 as well as recommendations of the Committees set up for promotion of sports. The revised Guidelines were given effect from 10th July, 1997.
The submission that the guidelines are only for the financial assistance cannot be accepted. On the contrary, these guidelines are also for promotion and encouragement of the sports and sports person and it appears that on the basis of such guidelines issued by the Ministry of Youth Affairs and Sports, Government of India, the State Government has evolved a policy in the form of the aforesaid Government Resolutions.
74. Another facet with regard to the manner and method of organising the tournament, which has reference to the same kind of procedural aspect for holding such national level tournament, also has to be appreciated. Paragraph 8.7 of the aforesaid guidelines which provides that application on the prescribed proforma (Annexure VII) has to be sent to MYAS and copy to the ED (teams), SAI, three months before the date of the championship . This again would clearly suggest that the period of three months has been stipulated or contemplated in the guidelines for having wide participation in such national level championship or tournament and the same, in turn, will have to be conveyed to different State Associations or such Sports Association in the State having further affiliation at the district level, who, in turn, can call for the entries from the participants, can have preliminary rounds for the selection of the candidates for the purpose of finalising the State's team at the national level tournament, which again will consume time, and therefore, a period of three months is contemplated, otherwise it may not be possible for different States, which are supposed to participate in the national level tournament, to organise this by calling the entries from various participants, including the district units which are affiliated to the State Association, and have a selection procedure on the basis of which they can select the State's team for participation at the national level tournament. It is in light of this manner, in which the tournament, more particularly, as referred to in Special Civil Application No.9574 of 2008, has been organised raises doubt about the whole organisation of the national level tournament. Further, as can be seen from the participation, even it is evident that only few states had participated and more than one team from the State of Gujarat had participated. Therefore, the first issue which is raised is with regard to whether it can be said to be a national level tournament with such a poor participation at different States or units. Another aspect is that more than one team from the State of Gujarat have participated and therefore, more number of participants have got certificates from the same tournament for their having participated. Though the learned Government Pleader, referring to the aforesaid guidelines, has strenuously submitted that the idea is to have only one team for the State and only one team at the national level championship for the purpose of participation, which is again disputed referring to other guidelines therein. The federation at the national level has clarified that more than one team can have the participation qua the host State (State which organises the national level tournament).
75. There is also reference to the guidelines by Indian Olympic Association and its constitution, and more particularly, referring to Article-XXVII titled as Miscellaneous , on page 23, the learned Government Pleader has emphasised on the aspect that for any camp, only one sport association will have to be permitted in one State and it implies that it will be one State, one Unit. Clause (b) provides that no national sports federation/association shall affiliate a sports Unit of any State/Department that has not been affiliated/recognised by the State Olympic Association which is affiliated to the I.O.A. Again, a strong issue has been joined by the learned Advocates for the petitioners that the Indian Olympics Association and these guidelines or the rules, have no application or bearing as it is confined to the Olympic games only. However, the list of members provided to these guidelines, which, in turn, include National Sports Federation/Association/State Olympics Association and there is a reference to the Gujarat Olympics Association. However, the larger issue with regard to whether this Indian Olympics Association, its constitution and its guidelines will be applicable or not and if they are strictly followed and every State will have only one State level team and again it will have an affiliation to the State level Olympics Association, are the issues which are not required to be gone into much details at this stage.
76. Assuming that the Indian Olympics Association and the guidelines are not applicable or even strictly one team for the State Unit is not to be selected, still, the manner in which the tournament is organised and the certificates are issued by the State Sports Associations for participation in the tournament has to be considered and therefore, for such reason, when it was brought to the notice of the Government, they have undertaken the scrutiny and camps were organised. The State level Associations for different sports, as stated above, have been given an opportunity to remain present for the purpose of verification and verification was for this very purpose that when they are organising such tournament and issuing the certificates to the participants, then, they should have been in a position to supply necessary details for organising the tournaments and when it was found deficient that the national level championship or tournament, as contemplated, was not organised and when the respective associations have failed to satisfy the committee during the scrutiny, that the impugned decision has been taken. Therefore, it is at this stage that the submissions have been made with much emphasis about the scope of verification that the respondents have no authority to verify and ask for the details once it is shown that the certificates have been issued to the participants by the respective State Associations, which are, in fact, having affiliation at the national level. This submission is misconceived as the verification cannot be restricted to the only aspect of issuance of the certificates by the respective State Associations, but, the real controversy or the issue is with regard to the propriety, manner and method of issuance of these certificates and it was to be scrutinised as to whether the tournaments were organised by the State level Association. Therefore, the scrutiny is not as to the factum of issuance of the certificates by the State level Associations, but, it is as to the propriety of issuing such certificates by the associations and in turn, the manner and method and genuineness of organisation of tournaments by such State Associations on the basis of which they have issued the certificates to the participants. It is on the basis of such certificates that the participants claim 5% additional mark as a weightage or preference in the recruitment. Therefore, the verification does not necessarily imply verification qua the factum of issuance of the certificate by the State Association only.
77. Another facet of the argument, which has been made with much emphasis, is with regard to the aspect of verification, the manner and procedure followed for verification, contending that it is arbitrary and in violation of the principles of natural justice, is required to be appreciated. In view of the discussion made hereinabove, one is required to pose a question as to whether the decision, which has been taken by the committee after scrutiny after giving an opportunity to the State Associations, can be said to be arbitrary or in violation of the principles of natural justice. It is required to be emphasised that the petitioners are the beneficiaries as they have been issued certificates as participants by the State Associations, but, the certificates of the State Associations are not approved or cancelled by the respondents, which, in turn, may have the effect, but, if the certificates are not treated as valid one, then, it cannot be claimed as a matter of right that the certificates have to be accepted. Moreover, for the purpose of verification of these certificates, there was no need to call the participants inasmuch as they would not have been able to give any further details or material, except the fact that they have been issued the certificates on their participation in the tournament held by the State Associations. However, at the cost of the repetition, it is required to be emphasised that the verification was done for the purpose of checking the manner of organising the tournament and the method in which the certificates have been issued, for which again the respective Sports Association only could have given the clarification with the material, which they are supposed to maintain as a sports association and when they have failed to provide the material, that the impugned decision has been taken. Therefore, the associations have been given an opportunity in compliance of the principles of natural justice. The petitioners, who are only the beneficiaries or claiming right only on the basis of such certificates, cannot claim any right and there is no question of violation of the principles of natural justice. They may have to accept and suffer the consequences, which may follow, but, at the same time, one is also required to bear in mind the other side of the coin that such certificates issued would be giving an opportunity to claim the preference to such candidates, which, in turn, would cause prejudice to the general candidates. Therefore, though the submissions have been made with much emphasis on the aspect of arbitrariness, violation of the principles of natural justice and violation of Article 14 of the Constitution of India, the same are without any substance.
78. The learned Advocates for the petitioners, as discussed above, have referred to various judgements, including the one in the case of Dr. Bina Pani Devi (supra), to emphasis on the aspect of the principles of natural justice, by contending that no order or action could be taken without providing an opportunity of hearing if it involves civil consequences or adversely affects the person. There is no quarrel on this aspect and the proposition of law, which has been time and again propounded and discussed by the Honourable Apex Court in the catena of decisions, but, the short point is with regard to the standard or criteria of the principles of natural justice, which is required to be applied or considered for the purpose of deciding the present group of matters. In other words, it is required to be considered that whether the criteria or standards of principles of natural justice have to applied for the purpose of the impugned decision and can it be said that there is violation of the rules of natural justice. It is also to be considered that whether any justification or right with the petitioners to claim the personal hearing even if the cancellation or non-approval of such certificate may have a bearing in light of the aforesaid observations of the Honourable Apex Court in the case of Ajit Kumar Nag (supra). The first aspect, which needs to be emphasised, is that direct impact of the decision would be on the association, whose certificates are not approved or cancelled, and they have not come forward and in fact, they have supported the petitioners. The petitioners, who are the beneficiaries of such certificates, cannot be permitted to say that irrespective of any irregularities or manner and method in which the certificates are issued, once the State Association has issued the certificates, they are entitled to the benefit and the respondent authorities or the Government has no right whatsoever to make any further verification and also even if they have found some irregularities after verification, they cannot disapprove or cancel the certificates so that persons like the petitioners, who have been issued the certificates on participation in the sports by the respective sports associations, can claim preference in the recruitment. If that is accepted, it would rather amount to giving a go-by to the merits inasmuch as on the basis of such certificates, the petitioners would be allowed to steal a march over the general candidates. Therefore, again one has to keep in mind that the purpose or object of the policy of the Government is only to promote sports and sports person, which cannot be permitted to be abused or misused by any mischief, which, in turn, runs counter to the very purpose and object of the policy.
79. A useful reference can be made to the judgment of the Honourable Apex Court in the case of Ajit Kumar Nag vs. General Manager (PJ), Indian Oil Corporation Ltd., Haldia & Ors., reported at (2005) 7 SCC 764 referring to the aspect of principles of natural justice are required to be appreciated. It is observed in paragraph-1 in the said judgement as under:
The principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. While interpreting legal provisions, a court of law cannot be unmindful of the hard realities of life. The approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than 'precedential'. In certain circumstances, application of the principles of natural justice can be modified and even excluded. Both in England and in India, it is well established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct in the taking of prompt action, such a right can be excluded. It can also be excluded where the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion. The maxim audi alteram partem cannot be invoked if import of such maxim would have the effect of paralysing the administrative process or where the need for promptitude or the urgency so demands. The principles of natural justice have no application when the authority is of the opinion that it would be inexpedient to hold an inquiry and it would be against the interest of security of the Corporation to continue in employment the offender workman when serious acts were likely to affect the foundation of the institution.
Further, as rightly emphasised while appreciating on this aspect about the judicial review by the learned Government Pleader, the Honourable Apex Court has laid down the guidelines in its judgement in the case of Bihar Public Service Commission & Ors. vs. Kamini & Ors., reported in (2007) 5 SCC 519. In that case also, the Honourable Court was considering the aspect of recruitment process, eligibility conditions and qualification of the candidates and it was observed that the Court ordinarily would not interfere with the opinion of the expert committee. The Honourable Apex Court in this judgement has observed as under:
Therefore, even if in 1993, some ineligible candidates were wrongly treated as eligible, the first respondent cannot insist that she also must be treated eligible though she is ineligible. In our considered opinion, such an action cannot give rise to equality clause enshrined by Article 14 of the Constitution. It is well settled and needs no authority that misconstruction of a provision of law in one case does not give rise to similar misconstruction in other cases on the basis of the doctrine of equality. An illegality cannot be allowed to be perpetuated under the so-called 'equality doctrine'. That is not the sweep of Article 14.
These observations completely answer the contentions raised by the learned Advocates for the petitioners that similar other certificates issued by the State Association with regard to the same tournament, have been accepted by the respondents on the earlier occasion for the purpose of recruitment and therefore, it would amount to violation of Article 14 of the Constitution of India, unless some of the candidates, who have already relied upon such certificates, are in job on the basis of such certificates and therefore, it would deny the right to equality or equal treatment in the present recruitment process of Vidhya Sahayak in the year 2008.
80. Further, it is required to be addressed as to whether the petitioners can be said to have any vested right to claim the preference under the policy based on such sports certificates. As discussed above, it is required to be appreciated that the candidates have a right to be considered in the recruitment and if there is a policy by the Government for the additional weightage or preference, the same can be availed of subject to fulfillment of the criteria or norms laid down in the policy. For that purpose, the candidate has to fulfill the requirement of law and the Government shall have the right to verify that whether the claim for preference made on the basis of the policy, satisfies the required norms or the criteria. Therefore, again it has a reference to the policy and the claim based on the policy subject to fulfillment of the required norms. In the present case, therefore, the claim made for preference on the basis of the certificates and the right to claim such preference is not denied under the policy, but, the claim of the petitioners is based on the certificates of sports irregularly issued by the State Associations, which, in turn, have not been approved or cancelled referring to the factual aspect of scrutiny and verification. It is pertinent to note that in the recruitment process for Vidhya Sahayak, candidates like the petitioners are not debarred, nor they have been denied an opportunity for applying and being considered for the post, but, their claim for preference has been subjected to scrutiny and after verification and scrutiny, it is denied on the ground that 5% marks or preference cannot be claimed on the basis of the certificates irregularly issued by the State Associations. In other words, the petitioners cannot have any right to claim preference in absolute terms that once the certificates are issued by the State Associations, they must get preference irrespective of the fact that the certificates were irregularly issued by the State Associations on the basis of the participation at the tournament or national level tournament, as required under the policy. Therefore, one can have a right to be considered in the recruitment process or for the post, but, he cannot claim preference or weightage in absolute terms. As a matter of fact, it is by way of an additional weightage or special treatment in favour of the persons like the petitioners to have an additional preference of 5% marks depending upon the genuineness of the certificate on the basis of which the claim is made.
81. A useful reference can be made to the judgement of the Honourable Apex Court in the case of Mohd. Sartaj & Anr. vs. State of U.P. & Ors., reported in (2006)2 SCC 315, which is again regarding the service law in which the contention before the Court was that the appointment could not have been cancelled without issuing prior notice or without giving an opportunity of hearing and therefore, it is in violation of the principles of natural justice. The Honourable Apex Court has negatived such contention observing that the appellant in that case did not hold any right over the post and therefore, no hearing was required before cancellation of his certificate. Therefore, the submissions made by the learned Advocates for the petitioners relying upon various judgments of the Honourable Apex Court regarding the principles of natural justice, arbitrariness and violation of Article 14 of the Constitution of India, will not have any application and the submissions are devoid of any merits.
82. In the case of Ajit Kumar Nag (supra), the Honourable Apex Court has observed as under:
The principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. While interpreting legal provisions, a court of law cannot be unmindful of the hard realities of life. The approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than 'precedential'. In certain circumstances, application of the principles of natural justice can be modified and even excluded. Both in England and in India, it is well established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct in the taking of prompt action, such a right can be excluded. It can also be excluded where the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion. The maxim audi alteram partem cannot be invoked if import of such maxim would have the effect of paralysing the administrative process or where the need for promptitude or the urgency so demands. The principles of natural justice have no application when the authority is of the opinion that it would be inexpedient to hold an inquiry and it would be against the interest of security of the Corporation to continue in employment the offender workman when serious acts were likely to affect the foundation of the institution.
83. Another facet of the argument, which has been emphasised, is that non-approval or cancellation of the certificate would amount to blacklisting the association, which, in turn, will have civil consequences, is misconceived inasmuch as in support of this contention, a reference has been made to various judgements and pronouncements of the Honourable Apex Court. The learned Advocate has emphasised referring to the judgement of the Honourable Apex Court in the case of Rajesh Kumar & Ors. vs. Dy. CIT & Ors.
reported at 2007(2) SCC 181 and emphasising Head Note (B), has submitted that it is observed in the said judgement as under:
In any event, when civil consequence has ensued, there is hardly any distinction between an administrative order or quasi judicial order. There might have been difference of opinion at one point of time, but, it is now well settled that a thin demarcated line between an administrative order and quasi judicial order now stands obliterated.
Mr. Mehta, learned Advocate, therefore, relying upon these observations submitted that even though the impugned decision is an administrative decision, still it has to be in compliance with the principles of natural justice. He has also emphasised that the principles of natural justice are based on two basic pillars. There is no quarrel with regard to the proposition, but, this judgement was given in the facts of that case and will not have application in the present case inasmuch as these observations are with regard to the procedure or principles of natural justice to be observed by the statutory authority while exercising the powers under the statute, whereas in the facts of the present case, it is the claim made under the policy which will have reference to the fulfillment of the norms and on the factual verification of such aspect, if sports certificates issued to the candidates like the petitioners are found not in consonance with the policy, then, the same may not be permitted to be relied upon. Therefore, it cannot be said that there is any violation of the principles of natural justice.
84. Further, the learned Advocate, Mr. Shalin Mehta, for the petitioners has also referred to the dictionary meaning of the word blacklisting to emphasis that it would amount to excluding. These submissions are again misconceived inasmuch as the certificates are disapproved or cancelled has a reference to the association, whose certificates are not approved, and only the association can have a grievance that before taking such decision, bare minimum principles of natural justice have to be kept in mind that they are not given any opportunity of hearing. In the facts of the present case, the respective State Associations have been given sufficient opportunity. Not only that, but, some of the associations have remained present, but, they could not fulfill or satisfy with material, which has led to the impugned decision. Moreover, the very concept of blacklisting will not have any application in the facts of the present case because, as contended by the learned Advocates for the petitioners themselves, the said authorities have no right to take any action for the respective associations or affiliation and if any further action is required to be taken, then, it is a matter to be taken care of by either the Secretary, Youth and Cultural Activities, State Government or National Federation with whom such Sports Associations are affiliated, meaning thereby, the recognitions of the State Sports Associations have not been affected or cancelled or suspended, their grant is also not affected or suspended and the petitioners, who claim only 5% marks as a preference in the recruitment process on the basis of the certificates issued by the State Associations, cannot claim that they have been blacklisted. The observations of the Honourable Apex Court referring to the aspect of blacklisting in series of the judgements referred to and relied upon has no bearing to the facts of the present case. In this case, it was the same firm or party, which was blacklisted, which will have some consequences for the purpose of its business, etc. and in that context, the observations have been made that before such an action, the principles of natural justice have to be followed and an opportunity has to be given. In the facts of the present case, the respective State Associations have been given an opportunity. Even if it is assumed that it amounts to having some consequence, but, the impugned decision for not approving or cancelling the certificates issued by them is taken after providing an opportunity of hearing in compliance of the principles of natural justice. The principles of natural justice cannot be stretched too far that it amounts to blacklisting the petitioners and therefore, before the non-approval or cancellation of such certificates for the purpose of recruitment and the preference or weightage claimed by the petitioners on the basis of such certificates, the petitioners should have been given an opportunity of hearing. The submission that it is a civil consequence inasmuch as it will deny the right to claim 5% weightage or preference is, in fact, not the civil consequence, as observed in this judgement because the petitioners are only the beneficiaries of the certificates issued by the State Associations and if the benefit is not allowed for the justified and valid reasons, the petitioners cannot make any grievance that irrespective of the fact that the certificates issued by the State Associations are not approved or cancelled, they had a vested right and therefore, such certificates issued irregularly have to be accepted for the purpose of preference or weightage in the recruitment. If that is allowed, it would amount to encouraging the irregularity and abuse of the system. Though the learned Government Pleader has used harsh words of fraud on the system, the Court would not go into the details minutely, but, it is suffice to say that merit cannot be permitted to be compromised and persons like the petitioners cannot be permitted to claim 5% marks as weightage or preference on the basis of irregularly issued certificates by the respective State Associations. It would rather mar the chances of general candidates and give an undue preference, denying the very idea of equality and equal treatment under Article 14 of the Constitution of India. Therefore, the submissions, which have been made referring to the various judgements, have no application to the facts of the present case.
85. Mr. Shalin Mehta, learned Advocate for the petitioners, has also referred to the judgement of the Honourable Apex Court in the case of Gulzar Singh vs. Sub-Divisional Magistrate & Anr., reported in 1999(3) SCC 107 to emphasis that the scheduled caste certificate which was cancelled was not approved by the Honourable Apex Court and it was observed that it was incumbent upon the authority to issue a show cause notice. Again, this judgement will not have application to the facts of the present case inasmuch as the caste certificate, which was produced by the candidate himself in the appointment, was then not accepted, whereas in the present case, the certificate issued by the State Sports Association for the purpose of preference has a reference to the sports association which has issued the certificate and the manner and method as well as genuineness of the certificate issued on the basis of which the claim is made. Therefore, this judgement will not have application to the facts of the present case. In that view of the matter, this judgement is also required to be appreciated in light of the judgement of the Honourable Apex Court on the point of the principles of natural justice in the case of Ajit Kumar Nag (supra), which is a three Judge Bench decision.
86. Though the submission has been made referring to the judgement in the case of Gulzar Singh (supra), however, the judgement of the Honourable Apex Court in the case of Union of India vs. Dattatray & Ors., reported in (2008) 4 SCC 612, also requires to be considered wherein it has been specifically stated that the appointment made on the false caste certificate deprived the genuine candidate from employment and therefore, referring to the earlier judgement in the case of State of Maharashtra vs. Milind, reported in (2001) 1 SCC 4, it has been observed that it does not laid down any proposition of law that wrongful appointment can be continued.
87. The learned Advocates for the petitioners have also strenuously submitted that the petitioners are not considered fairly and they have a right to be considered fairly and therefore, since these certificates are not approved or cancelled, it will have the effect for the purpose of claiming the weightage in the public employment and therefore, Articles 14, 19 and 21 of the Constitution of India would apply. It was submitted that 5% marks claimed as preference ought to be given and since the certificates are not approved or cancelled, it will take away their right to claim such preference, which, in turn, will have adverse effect and therefore, they have not been considered fairly. In support of this contention, the learned Advocate, Mr. Shalin Mehta, for the petitioners has referred to and relied upon the judgements of the Honourable Apex Court reported at (2007) 5 SCC 519, Bihar Public Service Commission & Ors. vs. Kamini & Ors., (2006) 3 SCC 674, A.P.SRTC & Ors. vs. G. Srinivas Reddy & Ors., (2007) 8 SCC 100, Union of India & Ors. vs. S. Vinodh Kumar & Ors , and (2007) 10 SCC 684, Indian Airlines Officers' Association vs. Indian Airlines Ltd. & Ors. There is no quarrel with regard to the concept of right to be considered and right to be considered fairly in the matter of public employment. However, it cannot be stretched to the extent that they have a right to claim such additional marks as a preference based on such certificate issued irregularly irrespective of the manner and method in which the certificates are issued by the associations. The judgements referred to and relied upon by the learned Advocate, Mr. Mehta, relate to the aspect of eligibility and it does not deal with the preference or claim based on some policy, which again will require fulfillment of the criteria of the norms for making such claim. Therefore, the judgements cited will not apply to the facts of the case.
88. At the cost of the repetition, it is required to be mentioned that the candidates like the petitioners are not altogether excluded or not allowed to participate in the recruitment process and they have also equal right or opportunity, but, what has been denied is that they cannot take undue advantage of 5% marks as a preference based on the certificates issued irregularly by the State Associations.
89. Though the submissions have been made by the learned Advocate, Mr. Shalin Mehta, that the action of the State is required to be tested on Wednesbury's test (reasonableness) and what would be the criteria of reasonableness is (i) procedural impropriety, (ii) illegality, (iii) irrationality, and (iv) proportionality, however, in light of the discussions and submissions, it cannot be said that the impugned decision can be said to be arbitrary or illegal nor it can be said that the decision making process was without any basis and arbitrary or based only on presumptions and assumptions, as sought to be canvassed. It is also required to be appreciated that for each and every aspect, there may not be any rules of procedure and in a given situation like in the present case, where the recruitment procedure is required to be completed according to the schedule, which has been undertaken for different districts and when such issue crops up, the respondent authorities may evolve their own procedure to verify in the larger interest of the candidates, it cannot be said that there was any procedural failure or that no opportunity was given inasmuch as the committee has been formed and camps have been admittedly held for the purpose of verifications, notices have been given to the respective sports association to produce the records and the certificates and after giving such opportunity, if the decision is taken the same cannot be termed as arbitrary or in violation of the principles of natural justice.
90. The next aspect which is required to be considered which has been much emphasised by the learned Government Pleader is with regard to the scope of judicial review and interference under Article 226 of the Constitution of India. He has referred to various decisions including the judgement of the Honourable Apex Court reported in 2006 (8) SCC 200 with much emphasis on Head Note (B) and the observations made in paragraphs 12 and 18. There is no quarrel in that regard. It is observed in this judgement itself that the judicial system is self restrained and in this paragraph, it has been also emphasised that if administrative decision or action is based on irrelevant considerations or it is excluded from consideration of relevant material, then, the interference would be justified. It has also been observed that when the Court is satisfied that there is abuse or misuse of power and its jurisdiction is invoked, it is incumbent upon the Court to intervene. Further, the observations which need to be emphasised is it is needless trite that the scope of judicial review is limited to the definition in the decision making process and not the decision.
91. In view of the submissions made by the learned Advocates for the petitioners that the decision to hold such camps for verification has been taken at whims and caprice or in fact, it is only a paper exercise without any application of mind and there is nothing on record to suggest as to how this exercise was undertaken and how the committee was formed. Therefore, the original files were called, which were placed for the perusal of the Court and the Court had, over and above the affidavits, perused the files for the satisfaction about the decision making process which has been much emphasised by the learned Advocates. Therefore, to satisfy the Court the files were perused in order to verify and examine the submissions made by the learned Advocates, as stated above. However, when the files were produced and examined, the learned Advocates have on one hand conceded that it is the privilege of the Court to examine the files or call for the files and on the other hand, have stated that it may be noted that nothing has been supplied to them, meaning thereby, the correspondence or this confidential letter or notings has/have not been supplied to them.
92. In the opinion of this Court, it would be stretching too far in the guise of principles of natural justice. It is in such circumstances that the observations of the Honourable Apex Court in the case of Ajit Kumar Nag (supra) are required to be appreciated which have been quoted hereinabove.
93. Further, it has been again emphasised that the decision dated 17th July, 200 refers to only three associations and there is no decision or reference about other associations and how the same could be made applicable, is again misconceived as the learned Government Pleader has clarified in light of the decision taken by the Government and has pointedly drawn the attention stating that for the Gujarat State Kabaddi Association, the tournament at Anand was not accepted as genuine and after verification it has been decided. The Gujarat State Kabaddi Association has addressed a letter to the Secretary Youth Services and Cultural Activities dated 12th June, 2008, which is placed on recored and it is self explanatory inasmuch as it is stated that recognised association will have a right to send a team for participation in the national level tournament or any such tournament can be organised by the State Association. The Gujarat State Amateur Athletics Association has not approved any such tournament or allowed any club to participate in any tournament. Similarly, the Gujarat State Volley Ball Association has made an endorsement, at the time of verification that they have disowned such certificate and it has been clearly stated that such certificates are not regarding any recognised tournament by the Gujarat State Volleyball Association. Further, the Ball Badminton Association has also similarly given the certificate, but, the ball badminton is not a recognised sport by the State. Therefore, it has been made clear that the decision regarding non-approval or cancellation of the certificates will apply to all the sports, as stated hereinabove.
94. There are few matters of the learned Advocate, Mr. Zala, where he has stated that his clients are ready to go for verification inasmuch as the only objection was that Form No.2 was not submitted and therefore, the certificates are cancelled. However, the learned Government Pleader has also clarified that it has reference to two certificates one is with regard to ball badminton and judo, which is not recognised, and the other is with regard to athletics, which has been produced again has a reference to the same limitations and therefore, there is no question of further verification that whether Form No.2 was submitted or not.
95. It is required to be noted that earlier Special Civil Application No. 4624/07 was filed wherein also similar issue with regard to preference claim of 5% marks was challenged and certificates issued by Gujarat Wrestling Association was not found acceptable by the District Primary Education Officer, Anand and there was a dispute as to how such certificates can be rejected and, in fact, there was an issue raised that the petitioners in those petitions were already appointed claiming the benefit of 5% marks as a preference on the basis of the certificates and the Director of Primary Education was permitted to make an inquiry and take appropriate decision. Similarly, in another petition filed being Special Civil Application No. 3102 of 2008 and Special Civil Application No. 3103 of 2008, this Court (Coram: Bhagwati Prasad, J.) had also observed that there is a consequence of the inquiry held earlier pursuant to the order passed in the aforesaid Special Civil Application No. 4624/07 and it was also emphasised that if the meritorious persons are losing at the hands of the fake certificates, the State will formulate suitable policy so that meritorious persons may not become casualty.
96. It is these circumstances, coupled with the fact that it has been brought to the notice of the Government that certificates by the State Association have been issued irregularly or improperly, which has led to the exercise of scrutiny by organizing the camp and on that basis if it has been found that such certificates are issued not properly or as per the norms which would defeat the purpose or object of the policy of the State Government for promoting sports and sports persons and also at the same time causing prejudice to the rights of the general candidates for the recruitment process, in the opinion of the Court such an exercise cannot be said to be arbitrary, illegal and in fact it has been done in compliance with and in proper spirit of the directions and the orders of this Court in earlier litigation.
97. As reflected and discussed hereinabove from the files particularly the note dated 20.6.2008 by the Secretary, Primary Education and also further letters and the notings, to which attention of the court has been invited, it also makes it clear that it cannot be said to be arbitrary. The decision making process which has been challenged emphasizing that it is arbitrary and/or in violation of Art. 14 of the Constitution about rules of natural justice has no merit inasmuch as such a decision has not been by any single individual or by one department, but it has been a process at different stages till the highest level and considering the different aspects , on the contrary, a lenient view has been taken that the candidates like the petitioners who have produced such certificates for claiming preference may not be debarred from the recruitment process but only such certificates may be ignored or may not be considered and they may be allowed to be considered along with other candidates in the recruitment process according to merits. The submissions, therefore, much emphasizing about the aspect of rules of natural justice or that such a decision has been taken at the whims or without following any procedure or rules of natural justice and, therefore, is arbitrary and in violation of Art. 14, is ill-founded.
98. As a matter of fact, as discussed hereinabove, the 5% marks claimed as and by way of preference by the petitioners in the recruitment process pursuant to the policy is, in fact, only a benefit which they are claiming and they cannot have such a preference or any such vested right to claim such preference regardless of the propriety and scrutiny of the certificates of sports produced by them on the basis of which they are claiming preference. If that is permitted, it would amount to violating the principles of equality and fairness qua the general candidates and it would not be in consonance with the doctrine of legitimate expectation of the general candidates in such public employment.
99. A useful reference is required to be made to the judgment of the Honourable Apex Court in the case of Khalid Hussain (supra), in which case even for admission to MBBS, such claim has been made for preference based on the sports certificate and the same had been denied as observed by the Apex Court. The Honourable Apex Court had observed that there is no guideline and therefore, such claim based on such certificate was declined. The same situation would also be reflected even for this recruitment process inasmuch as in the present case also, the guidelines are issued by the State Government for promoting the sports and sports persons, which are also perhaps in consonance with the guidelines of the Central Government referred to hereinabove. However, the manner and method for accepting the certificates or the authority which will have a final say about the validity of the certificate has been the bone of contention. Therefore, though such policy has been evolved to give preference to the sports and sports persons in public employment, the Government needs to address the issues and in any case if at all the policy is maintained, it would require more clarity and details. Therefore, though it is a matter of policy to be considered by the Government, but, to avoid any such heartburning and also to avoid repeated rounds of litigation, the entire policy requires reconsideration.
100. Further, even if there is any such policy for the sports persons, then again there has to be specific guidelines which would be in consonance with Article 14 of the Constitution and also equality qua the general candidates.
101. Therefore, in light of the aforesaid submissions, it is required to be considered that whether any relief should be granted qua only these petitions inasmuch as it would then again amount to allowing such certificates partly and that would not be permissible. Even if the Government is directed to verify the certificates and takes its own decision on the basis of Form No.2, as discussed above, the Athletics Association itself has addressed a letter and therefore, any such exercise would be futile. Therefore, the submissions made by Mr. Jhala, learned Advocate, that only on the ground that the certificates which have not been accepted may be directed to be verified again cannot be accepted.
102. In the facts of the present case, therefore the process by which the impugned decision has been taken cannot be said to be arbitrary, illegal or abuse or misuse of power. Therefore, in light of the discussions made hereinabove, this Court is of the opinion that there is no merit in the submissions advanced by the learned Advocates for the petitioners in this group of matters and the petitions deserve to be dismissed. Accordingly, all the petitions are dismissed in limine without any order as to costs.
103. At this stage, Mr. Pujara and Mr. Mehta, learned Advocates for the petitioners, jointly submits that the Court vide the order dated 23rd July, 2008 directed the State Authority to go ahead as per the GR or Circular dated 17th July, 2008, but, whatever list and process carried out has to be considered tentative till July 28, 2008. The learned Advocates for the petitioners submit that as the petitions are dismissed, the petitioners are desirous to pursue their remedy further. They, therefore, requested that the statement made by the learned Government Pleader before the Court may be continued for a period of two weeks. On the other hand, Mr. Shivang Shukla, learned AGP, has stated that the learned Government Pleader is not available and therefore, in any case, when the petitions are dismissed, the interim relief or statement cannot be continued any further.
104. As the interim relief was granted earlier permitting the respondents to proceed further and prepare the tentative list and thereafter, as this group of matters has been decided finally, interim relief normally would not have been required to be extended. However, as the petitioners are desirous to challenge this judgement in appeal and even otherwise, the process itself may take some time, it is directed that the respondent State shall continue with the recruitment process for Vidhya Sahayaks, but, no orders regarding appointment to the post of Vidhya Sahayak shall be issued for a period upto 26th August, 2008.
The Registry is directed to keep the first 2 pages and the last page containing the operative part of the judgment in each of the group matters.
[Rajesh H. Shukla, J.] hari/kamlesh* Top