Punjab-Haryana High Court
Kirandeep D/O Harwinder Singh And Anr. vs Chandigarh Rowing Association And Ors. on 11 March, 2004
Equivalent citations: AIR2004P&H278
Author: Swatanter Kumar
Bench: Swatanter Kumar, Amar Dutt
JUDGMENT Swatanter Kumar, J.
1. Every person from whichever walk of life he comes from, is entitled to ex debito justitiae, of course, with the exception of droit ne done pluis que soit demaunde. Indispensable conditions to administrative action arc fairness and adherence to rules governing the subject. Infringement of these rudiments would normally invite judicial criticism and the Courts would be obliged to remedy the wrong by granting necessary relief to the person concerned. Reference in some elucidation to the concept of fairness in administrative action is necessary in the present case as the principal contention raised on behalf of the petitioners is a challenge to the action of the respondents in electing the team for Coxless Fours event for participation in the Junior National Rowers Championship, which was to be held in March, 2004 on the ground of arbitrariness and discrimination.
2. The Hon'ble Apex Court in the case of State of Punjab v. V. K. Khanna (2000) 5 Serv LR 734 : (AIR 2001 SC 343) enunciated the law that administrative action should be free from malice, beyond reasonable suspicion and should satisfy the test of real likelihood. Their Lordships held as under :--
"The concept of fairness in administrative action has been the subject-matter of considerable judicial debate but there is total unanimity on the basic element of the concept to the effect that the same is dependent upon the facts and circumstances of each matter pending scrutiny before the Court and no straight-jacket formula can be evolved therefor. As a matter of fact, fairness is synonymous with reasonableness. And on the issue of ascertainment of meaning of reasonableness, common English parlance referred to as what is in contemplation of an ordinary man of prudence similarly placed it is the appreciation of this common man's perception in its proper perspective which would prompt the Court to determine the situation as to whether the same is otherwise reasonable or not."
3. While keeping the above precepts applicable to the principle of fairness in administrative action in mind, we would refer to the facts of the case in hand. Both the petitioners are sports women of recognition in the event of rowers, Both these petitioners arc very young and are looking for a bright sports career. Petitioner No. 1 won the gold medal in Coxless Pair in Junior National Rowers Championship held in 2001 in Orissa. She won gold medal in Coxless Pair in National Championship 2000 held at Pune. She also won bronze medal in Cox-less Pair in National Games, Hyderabad. She claims to have participated in First Asian Rafting and won two gold medals in All India University Championship held at Lake Club, Chandigarh in the year 2003. Besides this she also claims to have won various medals in her event in the field of Rowing. Petitioner No. 2 won silver medal Coxless Four in All India University at Chandigarh, 2002. She participated in Coxless Pair and Coxless Fours in Senior National Championship at Pune in 2003. She won gold medal in Coxless Pair and Coxless Four in All India Inter-University Championship at Chandigarh in 2003.
4. On 4-2-2004 a news item was published, obviously on behalf of Secretary, Chandigarh Rowing Association, indicating that the City team for the 24th Open Senior National Rowing Championship which was to be held next month, the team would be selected on the basis of performance in those trials for different events including Single Scull, Double Scull, Coxless Pairs and coxless four events. The entries were to be made on 6th of February. However, no such selection took place on 6-2-2004 and the event was postponed, On 22-2-2004 the petitioners participated in the Coxless Pair. They were declared first and respondent Nos. 4 and 5 were declared second. According to the petitioners, they being the first pair in the Coxless Pair event, were eligible and entitled to participate in the Coxless Four and respondent Nos. 4 and 5 were not even eligible. Because of less participants no test/ trial for selection of Coxless Four were performed on that date and the respondents in an arbitrary manner clubbed respondents Nos. 4 and 5 with Gurpreet and Gurnoor, who were first in Double Scull event. The conflict and attitude of the coach and the manner in which selections were conducted appears to have been subjected to criticism and in this regard an article was published in the Hindustan Times, Chandigarh on 22-2-2004 with a title, "CITY ROWERS FAIL TO GIVE THEIR BEST". A communication was also sent by the participants to the event to the Governor, Punjab and Administrator, U. T. Chandigarh on 26-2-2004 making grievance in regard to the method of selection and arbitrariness being adopted in the process of selection. According to the petitioners, they were ignored despite their better performance and higher merit and best past sports record, just to adjust respondent Nos. .4 and 5 and the action of the respondent Nos. 1 to 3 was arbitrary, discriminatory and result of bias. In these circumstances these petitioners challenge the selection of respondent Nos. 4 and 5 and pray that the same be quashed and the respondents be ordered to consider the claim of the petitioners.
5. Upon notice, the respondents filed a reply questioning the maintainability of the writ petition on the ground that the respondent-Society was not amenable to writ jurisdiction of this Court, It is also stated that as there are no allegations of mala fide by impleading the office coach by name, the writ petition is not maintainable. On merits, the respondents have taken a stand in their reply that the. petitioners did not apply or submit any entry for the Coxless Four event and as such they could not be selected and could not challenge the selection of private respondents in the present writ petition. It is not disputed that the selection of the team was to be made at the Lake Club on 22-2-2004 at 7.30 a.m. The selection was to be made on the basis of the performance and entries were to be closed on 21-2-2004 at 6.00 p.m. According to the respondents, the selections were made on the basis of performance and the petitioners had not given entry for the said event, consequently, the private respondents were selected along with the pair who had stood first in Double Scull.
6. It is not disputed in the written statement filed before us that notice Annexure P/1 was issued in the newspaper but the process of selection was deferred from 7-2 2004. A fresh notice was issued and selections were held on 22-2-2004. Respondent Nos. 4 and 5 are stated to be eligible and according to the respondents the petitioners had submitted applications only for Coxless Pair and no entry was filed for Coxless Four event. On the other hand, Gurpreet, Saroj, Sukhman and Gurnoor had submitted entries for Coxless Four event. They being the sole team were selected. The respondents have placed on record Annexure 4/1, some details of Chandigarh Rowing Championship held on 22-2-2004.
7. In view of the above pleadings of the parties now we would proceed to examine the merits of the preliminary objections raised by learned counsel appearing for Chandigarh Rowing Association, hereinafter referred to as the Association, to the very maintainability of the writ petition. During the course of arguments it was not disputed that the Association receives funds from the Union Territory Administration, Chandigarh. and /or the Central Government for holding all events and is otherwise affiliated to the Rowing Federation of India, which in turn, is directly relatable to the concerned Ministry in the Union of India. The functions which the Association is discharging are to develop and hold different events in the sports of rowing at the State and the National level. In other words, this Association is not carrying on any private activity, but is aiding to the achievement of a public purpose, namely, the development of sports in the country. The Association receives partial funds from the Government or its instrumentalities and works for a public purpose. It in fact depends for its activities on the sanction of the State as even utilisation of such water resources which are to be utilised for conducting such events are to be carried out only with the leave of the State Administration. In view of the liberal interpretation and concept of locus standi having been enlarged by the various pronouncements of the Hon'ble Supreme Court, we have no hesitation in corning to the conclusion that the preliminary objections raised on behalf of the Association is without any merit. The Hon'ble Apex Court in the case of Sheela Barse v. Secretary, Children Aid Society, AIR 1987 SC 656, held as under :--
"The Children's Aid Society, Bombay, runs Remand Homes and Observation Homes for children. It is a society registered under the Societies Registration Act, 1860 and is treated as a public trust. It receives grants from the State. The Supreme Court gave certain directions relating to running of the Remand Homes."
"The Children Aid Society should have been treated as a State within the meaning of Article 12 as it is undoubtedly an instrumentality of the State. The Society has, therefore, to regulate its activities not only in accordance with the statutory requirements but also act in a manner satisfying the requirements of the Constitutional provisions in Articles 21 and 24 as also the Directive Principles of the State Policy."
8. Furthermore, the sports in the present day are being treated and in fact are an indefeasible part of the education programme of various authorities of the State including the Department of Education, a Five-Judges Bench of this Court in the case of Ranveet Kaur v. State of Punjab, 1997 (3) SCT 210 indicated the scope of the expression, "State" within the meaning of Article 12 of the Constitution of India. A Bench of this Court in CWP No. 11232 of 2000 (reported in 2003 (2) Scrv LR 269) titled as Surinder Singh and Ors. v. State of Haryana and Ors., held as under :--
"I have already referred to above rules, which are stated to be governing the affairs of the respondent-Parishad. In fact, "Parishad" is nothing but an instrumentality of the State. Funds come to the hands of the State Government which are then disbursed for utilisation to the "Parishad" to carry on the project in terms of the State guidelines. The whole constitution of the Executive Committee is of the Ministers, Officers of the Government and the persons nominated by the State. From the facts, as they emanate from the record, and particularly stated in the written statement, it cannot be disputed that the administrative, executive and functional control is exclusively that of the State and the respondent-"Parishad" has to carry on its project in terms of the instructions issued by the Government. The finance control does not have much of significance in the facts and circumstances of the case. It is not an external agency which controls the finance. The finances are provided by the world Bank to carry out specific project but the money is transmitted under the effective and actual control of the Executive Committee as per necessity of the State.
Five-Judges Bench of this Court in the case of Ravneet Kaur v. State of Punjab, 1997 (3) SCT 210, has clearly enunciated the principles which squarely cover the present ease so as to bring the "Parishad" as State or its instrumentality within the ambit and scope of Article 12 of the Constitution of India. Furthermore, the Court has to take notice of another significant fact that the respondents and the "Parishad" functions under it is discharging a public purpose imparting primary education in the State, which has attained status of a fundamental right under Article 45 of the Constitution of India."
9. Vide our order dated 2-3-2004 we had directed the respondent-Association to produce the complete original records in Court which were not available on that date: Records were produced before the Court on 4-3-2004. The records produced before us consisted only of four pages which included the entry form for the 24th Open Nationals, undated notice for holding Chandigarh State Senior Rowing Championship for men and women on 22-2-2004 and the original of document Annexure R. 1 as referred to above. The records produced do not further the cause and in fact only re-affirm certain doubts which have been expressed by the petitioners in their writ petition. The sports profile of the petitioners and their achievements have not been disputed. The stand taken by the respondents before us is also falsified to a large extent even by the limited record produced by them before the Court. In the entry-sheet (copy of which has been annexed to the reply as Annexure R. 1) itself shows that no entry for women had been made for event of Coxless Four. Under serial No. 4, names of girls including respondent Nos. 4 and 5 were written and a cross was put in front thereof clearly showing that no entry was made. Just an entry above that for Coxless Pair, names of both the petitioners were entered and who actually participated in that event. It is difficult for us to understand why the sports women of such record would not opt to participate in the event which they had already won at different levels. The record in fact shows that even Gurpreet Kaur, Gurnoor, Saroj and Sukhman have been inducted to this item without any proper selection. The falsehood of the stand taken by the respondents is further established from the entry sheet produced by the respondents themselves in Court wherein the petitioner No. 1 along with Ms. Keerti have been shown as spare for the same event of Coxless Four in which, according to the respondents, they have neither given an entry nor participated. We are at loss to understand why should an Association of sports event act in such an arbitrary, bias and unhealthy manner. The basic phenomenon of a sport is fairness. Every sports person and the people involved in the process of selection and coaching are required to act most fairly, objectively and in the interest of the sport.
10. Why selections were held in such an undue haste is again a question which has been left to the imagination of any one. Admittedly, an advertisement and news was given in the newspaper of 7-2-2004 for holding of selections and competition, Annexure P/1 to the writ petition. Thereafter it was deferred and no news or publication, much less a news or advertisement was given in the newspaper. Not even a proper notice was displayed or circulated to different institutions. The notice annexed to the reply and produced on record is an undated document. Even if the document is taken on its correct face value, the championship for Chandigarh was to be held on 22-2-2004, entries were to close in the evening on 21st and as it appears from the record, the publication of this notice and its intimation to the number of Rowers is unknown.
11. Learned counsel appearing for the Association vehemently argued that the four participants had come together for this event and that being the sole team, were selected as it was the option of the Rowers to form a team of themselves. He also contended that the petitioners had not made any entry. This argument is not only misconceived, besides being contrary to the records of the respondents, suffers from an inbuilt contradiction. We have already held that no team had given entry for the Coxless Four even as per the record produced before us. Secondly, the record shows that both the petitioners were present and had participated in other events and won medals. If the argument of the learned counsel is to be taken of some value that the petitioners had not given an entry as such could not be considered for the event, then there can be no justification for including one of the petitioners a "spare" to the same event. We also fail to appreciate that it is for the players to choose their team. There are single, pair and four Coxless events. All other players have to perform in pair or individual and it is for the selecting body to select the best co-ordinating four Rowers for Coxless Four event. Apparently, no such trials were taken and the interest of the sports has been ignored. As per the advertisement itself, selections were to be made on the basis of the performance i.e. to give fair competition to all before selecting a final team which was to participate at the national level. To our mind, the respondents, particularly, the authorities involved in the process of selection have erred in discharging their duties in a fair and upright manner. We may also notice that in the detailed reply filed by the respondents, it is nowhere averred that the other pair which stood first in Double Scull had refused to team up with the petitioners. The petitioners who were first in their event of Coxless Pair, could be tried with the pair which had got first position in Doubt Scull. No reasons, whatsoever, have been stated in the reply or during the course of arguments as to why all the six participants could not be tried and best team selected for that purpose. Such arbitrariness in the action of the authorities concerned, particularly when it denies the right of consideration to other eligible players with distinguish record of sports would ex facie vitiate the process of selection. The respondents appear to have ignored relevant considerations and have acted in an undue haste.
12. Upon perusing the records before us and keeping in mind the pleadings of the parties we are of the considered view that the element of "malice in fact" or "legal malice" is apparent in the process of selection as well as in the ultimate decision by the concerned authorities in that behalf. There does not appear to be any lawful excuse for the respondents to proceed in the manner they have actually done. The actions have been done wrongly and wilfully without reasonable or probable excuse in obvious disregard to the rights of the petitioner (State of Andhra Pradesh v. Goverdhanlal Pitti, (2003) 5 JT (SC) 74: (AIR 2003 SC 1941). We are of the considered view that selection of the rowers for the event in question has not been conducted in a fair manner so as to avoid judicial criticism. Such selection in sports imposes a heavier obligation upon the selectors and authorities in position to act with complete rectitude and ensure fairness in the process of selection. To provide opportunity of competing to all the eligible aspirants and particularly the sports persons with baroque record of sports is the implicit duty of all concerned. Necessarily the authorities must not act in a manner which would adversely affect the interests and enthusiasm of the sports and sports-persons. No persuasive reasoning particularly supported by no record can justify such an attempt by the concerned authorities. Normally we would have quashed the selection of respondent Nos. 4 and 5 in the event of Coxless Four and directed the respondents to conduct the selection afresh as per their procedure and advertisement, however, learned counsel appearing for the respondent-Association informed the Court that the event at the entry level was over and the selected team had performed quite well. In these circumstances, we do not propose to grant the petitioners the relief prayed as the event is over.
13. However, in the facts and circumstances of the case we hereby direct the respondent-Association as well as the Rowing Federation of India, they being the expert bodies, to issue guidelines for proper selection of the teams at the State and National level. Such guidelines must specify the procedure and methodology which should be adopted by its different constituents while holding the selection. Due care should be taken that all sports persons are informed in time and are given due opportunity to participate in the process of selection so as to achieve the object of selecting the best team in the interest of the sport and country. Let copy of this judgment be sent to Rowing Federation of India for compliance of the afore-noticed directions.
14. We dispose of this petition in the above terms while leaving the parties to bear their own costs.