Patel vs State on 12 August, 2008

Gujarat High Court

Author: Rajesh H.Shukla,&Nbsp;

   Gujarat High Court Case Information System 

  
  
    

 
 
    	      
         
	    
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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,

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:

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*

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Patel vs State on 12 August, 2008

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