{"id":179797,"date":"2008-08-12T00:00:00","date_gmt":"2008-08-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/patel-vs-state-on-12-august-2008"},"modified":"2018-06-24T10:12:18","modified_gmt":"2018-06-24T04:42:18","slug":"patel-vs-state-on-12-august-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/patel-vs-state-on-12-august-2008","title":{"rendered":"Patel vs State on 12 August, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Patel vs State on 12 August, 2008<\/div>\n
Author: Rajesh H.Shukla,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/957420\/2008\t 76\/ 106\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9574 of 2008\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9575 of 2008\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9576 of 2008\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9577 of 2008\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9596 of 2008\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9737 of 2008\n \n\nTo\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9740 of 2008 \n\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9752 of 2008\n \n\nTo\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9754 of 2008 \n\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9777 of 2008\n \n\nTo\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9780 of 2008 \n\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9783 of 2008\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9808 of 2008\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9820 of 2008\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9824 of 2008\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9827 of 2008\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9828 of 2008\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9830 of 2008\n \n\nTo\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9837 of 2008 \n\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9862 of 2008\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9863 of 2008\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9877 of 2008\n \n\nTo\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9883 of 2008 \n\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9921 of 2008\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9922 of 2008\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9967 of 2008\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9968 of 2008\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9988 of 2008\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9989 of 2008\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE RAJESH H.SHUKLA\n \n \n======================================\n\n\t \n\t\t  \n\t\t \n\t\t  \n\t\t\t \n\t\t\t\t \n\n1\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\t\n\t\t\n\t\n\n\n\t \n\t\t  \n\t\t \n\t\t  \n\t\t\t \n\t\t\t\t \n\n2\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nTo\n\t\t\t\tbe referred to the Reporter or not ?\n\t\t\t\n\t\t\n\t\n\n\n\t \n\t\t  \n\t\t \n\t\t  \n\t\t\t \n\t\t\t\t \n\n3\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\t\n\t\t\n\t\n\n\n\t \n\t\t  \n\t\t \n\t\t  \n\t\t\t \n\t\t\t\t \n\n4\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\tthis case involves a substantial question of law as to the\n\t\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\t\tmade thereunder ?\n\t\t\t\n\t\t\n\t\n\n\n\t \n\t\t  \n\t\t \n\t\t  \n\t\t\t \n\t\t\t\t \n\n5\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\tit is to be circulated to the civil judge ?\n\t\t\t\n\t\t\n\t\n\n \n\n \n======================================\n \n\nPATEL\nTULSIBEN AMBALAL & ors.  - Petitioner(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & ors. - Respondent(s)\n \n\n======================================\n \n\nAppearance\n: \n Special Civil Application Nos. 9574, 9575,\n9596, 9752 to 9754, 9777 to 9780, 9828, 9921, 9922, 9967 & 9968\nof 2008\n \n\nMR\nKB PUJARA for Petitioner(s)  \nMR SUNIT SHAH, GOVERNMENT PLEADER for\nRespondent(s) : 1 - 3. \nBY POST for Respondent(s) : 4 - 6. \nMS\nVIRAJ S FOZDAR  for Respondent(s) : 7 (in SCA 9574 of 2008)          \n       \n\n \n\nMR\nGM JOSHI for Respondent : 7 \t(in SCA 9575\/08)\n \n\n \n\n\n \n\n Special\nCivil Application Nos. 9576, 9577, 9737, 9739, 9831-9837, 9988 &\n9989 of 2008\n \n\nMR\nSHALIN MEHTA for Petitioners \nMR SUNIT SHAH,\nGOVERNMENT PLEADER, for Respondent(s): 1,2\n \n\n\nMR\nHS MUNSHAW for Respondent(s) : 3,4,7,8,10,13,18,19, 24,25 (SCA\n9576\/09)\n \n\n\nMR\nMANISH J. PATEL for Respondent : 11 (SCA 9576\/08)\n \n\n\nMR\nMP PRAJAPATI for Respondent(s): 14, 15 (SCA 9576\/08)\n \n\n\nMR\nRUTVIJ BHATT for Respondent: 22 (SCA 9576\/08)\n \n\n\nMR\nMAYANK VORA for Respondent: 26 (SCA 9576\/08)\n \n\n\n \n\n\n \n\n Special\nCivil Application No. 9738 of 2008\n \n\nMs.\nMAMTA VYAS for Petitioners\n \n\nMR\nSS SHAH, GP, for Respondent : 1\n \n\nMR\nMAYANK VORA for Respondent (s): 2\n \n\nMs\nVIRAJ FOZDAR for Respondent: 3\n \n\n \n\n\n \n\n Special\nCivil Application No. 9740, 9830 of 2008\n \n\n\nMR\nMAHENDRA K. PATEL for Petitioners\n \n\n\nMR\nSS SHAH, GP, for Respondent(s): 1-2\n \n\n\nMR\nMP PRAJAPATI for Respondnent(s) : \t(in SCA 9830\/08)\n \n\n \n\n\n \n\n Special\nCivil Application No. 9783 of 2008\n \n\n\nMR\nUTKARSH JANI for Petitioners\n \n\n\nMR\nSS SHAH, GP, for Respondent(s) : 1-2\n \n\n\nMR\nHS MUNSHAW for Respondent(s): 3,4, 6, 8,9\n \n\n\nMR\nMAYANK FOR for Respondent: 5\n \n\n\nMR\nMP PRAJAPATI for Respondent(s): 7,11\n \n\n \n\n\n \n\n Special\nCivil Application No. 9808, 9862, 9863 of 2008\n \n\n\nMR\nV. GOSWAMI for Petitioners\n \n\n\nMR\nSS SHAH, GP, for Respondent(s) 1-2\n \n\n \n\n\n \n\n Special\nCivil Application No. 9820, 9824, 9827 of 2008\n \n\n\nMR\nPS PATEL for Petitioners\n \n\n\nMR\nSS SHAH, GP, for Respondent(s): 1, 2, 3, 5.\n \n\n \n\n\n \n\n Special\nCivil Application No. 9877 to 9883 OF 2008\n \n\n\nMR\nD.A. ZALA for Petitioners\n \n\n\nMR\nMP PRAJAPATI for Respondent: 1 (in SCA 9877\/08, 9879\/08)\n \n\n\nMR\nSS SHAH, GP, for Respondent(s): 2,3\n \n\n\nMR\nMANISH PATEL for Respondent: 1 (in SCA 9881\/08,9882\/08)\n \n\n\nMR\nHS MUNSHAW for Respondent: 1 (in SCA 9877, 9878, 9879, 9880, 9883 of\n2008)\n \n\n======================================\n\n\t \n\t\t  \n\t\t \n\t\t  \n\t\t\t \n\t\t\t\t \n\nCORAM\n\t\t\t\t: \n\t\t\t\t\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nHONOURABLE\n\t\t\t\tMR.JUSTICE RAJESH H.SHUKLA\n\t\t\t\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n:  12\/08\/2008 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
\tThe
\npresent group of matters have been filed to challenge the decision of
\nthe respondent No. 2-Director of Primary Education dated 17.7.2008
\ndirecting all the District Primary Education Officers of the District
\nEducation Committees and the Administrative Officers of the Municipal
\nSchool Boards to ignore\/cancel the certificates of sports issued by
\nrespondent No. 7-Gujarat State Women’s Football Association,
\nChandkheda, Dist. Gandhinagar (in Special Civil Application No. 9574
\nof 2008), Gujarat State Kabaddi Association\/Gujarat State Athletic
\nAssociation\/Wrestling Association of Gujarat, Ahmedabad for the
\npurpose of 5% additional marks as weightage to be given on the basis
\nof such certificates of sports in the recruitment to the post of
\nVidhya Sahayak.\n<\/p>\n
2.\tSince
\nthe issues involved in all these petitions are more or less the same
\nand the challenge is to the impugned decision dated 17.7.2008 in all
\nthe matters, all these petitions are heard and disposed of together
\nby this common judgment.\n<\/p>\n
 F
\na c t s<\/p>\n
3.\tIn
\norder to fill up the post of Vidhya Sahayak in primary schools, the
\nDistrict Education Committees and the Municipal School Boards have
\nundertaken the recruitment in different districts.  This  exercise
\nhas been initiated or started pursuant to the previous litigation and
\nthe order passed by this Court in Special Civil Application Nos.
\n20049 of 2005 and allied matters. For such exercise for filling up of
\nthe posts as per the policy of the State government to promote the
\nsports and sports persons 5% weightage has been decided to be given
\nto such sports persons on the basis of the sports certificates issued
\nto them by the recognized sports associations of the State which are
\nin turn affiliated to the federation of the respective sports
\nrecognized by the Ministry of Youth Affairs and Sports, Govt. of
\nIndia.  It is also required to be mentioned that there were petitions
\nbeing Special Civil Application Nos. 4624 of 2007 and 3102 of 2008
\nfiled challenging this aspect of giving of 5% weightage on the basis
\nof such certificates on the ground that the State Government came to
\nknow about some associations\/institutions distributing bogus
\ncertificates which are not recognized. Therefore, the root cause of
\nthe controversy or the issue was regarding providing 5% additional
\nmarks\/weightage  to the candidates appearing for the post of Vidhya
\nSahayak on the basis of such certificates, which in turn are said to
\nhave been issued by the associations not complying with the norms,
\nwhich in turn prejudice the  meritorious candidates and thereby
\npreference is given to the candidates  with such certificates and the
\nmeritorious candidates are denied the opportunity of employment.\n<\/p>\n
4.\tIt
\nis in this context, when it came to the notice of the State
\nGovernment, the Commissioner, Youth Services and Cultural Activities,
\nGandhinagar, decided to have verification and trace out issuance of
\nsuch bogus certificates by organizing camps inviting all recognized
\nassociations\/institutions with their records about the activities\/
\nevents\/tournaments organized by them; the details of the candidates
\nwho have participated and other such details about the affiliations,
\netc. with an object to see that the real sports person, who are
\nrequired to be  given the benefit as per the Government policy\/Govt.
\nResolution receive the same, and does not  cause prejudice to the
\nmeritorious students whose claim would be denied when other
\ncandidates with such fake or bogus certificates of sports put forward
\nthe claim for accommodating them.  The policy of the Government qua
\ngiving 5% additional marks\/weightage  to the candidates appearing in
\nthe recruitment of Vidhya Sahayak on the basis of such sports
\ncertificates is laid down in the Government Resolution dated.
\n25.2.1980.\n<\/p>\n
5.\tIt
\nis during such exercise of verification or cross check of such
\ncertificates issued by different associations\/institutions which have
\nbeen called in the camps with the records, as stated above, some
\nirregularities are said to have been brought to the notice, which has
\nultimately culminated into the impugned decision by the respondent
\nNo. 2 which has been conveyed to all District Primary Education
\nOfficers that they may not approve such certificates given by the
\naforesaid associations\/institutions and treating such certificates as
\ncancelled for the purpose of recruitment of Vidhya Sahayak-2008.  It
\nis this decision dated 17.7.2008 which has been challenged in this
\ngroup of matters on various counts, inter alia, <\/p>\n
5.1\tThe
\ndecision is arbitrary and illegal and also in violation of the rules
\nof natural justice;\n<\/p>\n
5.2\tThe
\ndecision is not based on any material and is contrary to the policy
\nof giving 5% additional marks or weightage when the sports
\ncertificate is produced by the candidates from the recognized State
\nAssociations which in turn is affiliated to the Federation  at an
\nall-India level with the Ministry of Youth Affairs and Sports,  Govt.
\nof India.\n<\/p>\n
5.3\tIt
\nis also contended that once such sports certificates are issued to
\nthe candidates, the State government i.e. the Secretary, Youth
\nAffairs and Cultural Activities, Govt. of Gujarat, and Director of
\nPrimary Education have no authority  to ignore or cancel such
\ncertificates or treat the national tournaments held with the approval
\nof All India Federation as null and void.\n<\/p>\n
5.4\tIt
\nhas been further contended that it is only the Ministry of Youth
\nAffairs and Sports, Govt. of India, which can take such decision.
\nFurther, it has also been contended that the candidates who have
\nproduced the sports certificates and the Associations who have issued
\nthem have, in fact, participated during such camps for verification
\nwith material and if at all there was  any shortcoming, further
\nopportunity could have been given, but such a decision could not have
\nbeen taken, which will ultimately adversely affect the candidates.
\nThe learned advocates have emphasized that the word ‘verification’
\nwould imply the verification about the genuineness of the
\ncertificates issued and it is not in dispute that such certificates
\nare issued by the State Associations recognized and are affiliated to
\nthe respective Federations of the concerned sports at an All India
\nlevel whether it is women’s football or wrestling or kabaddi, etc.
\nTherefore, if the certificates are issued pursuant to the
\nparticipation in such event or tournament by the State Association
\nwith the approval of the Federation at an All India level, there is
\nno violation of any norms, rules, procedure and the impugned decision
\nis based on mere suspicion that there may be some irregularities and
\nit is an ipse dixit of the respondents which is not
\nonly arbitrary and illegal but also without any basis or foundation.\n<\/p>\n
6.\tAn
\naffidavit-in-reply has been filed on behalf of the Director of
\nPrimary Education referring to the need for organizing such camps for
\nverification. It has been contended that the State Government had
\nissued a Government Resolution to give benefit of 5% additional
\nmarks\/weightage to the candidates appearing for recruitment of Vidhya
\nSahayak who holds the certificate of sports for outstanding
\nperformance as per the Government Resolution\/Circular.  According to
\nsuch policy, the candidates have submitted the certificates. However,
\nit came to the notice of the State Government that some
\nAssociations\/institutions have issued bogus certificates or fake
\ncertificates not in accordance with the norms and therefore the
\nCommissioner, Youth Services & Cultural Activities, decided to
\norganize camps for scrutiny inviting all such
\nAssociations\/institutions to remain present with the records with
\nregard to the activities\/events\/tournaments organized, the details of
\nthe candidates who have participated and other necessary details with
\nan object to see that undue advantage on the basis of such bogus or
\nfake certificates is not taken by the candidates at the cost of the
\nmeritorious candidates and the merit is not compromised in the
\nrecruitment process. It is contended that during such exercise of
\ncamps organized for such purpose it was found that the certificates
\nproduced by the petitioners were not recognised on the ground that
\nthe certificates issued by the respective Associations was not in a
\nposition to establish that it  is affiliated to any national level
\nfederation recognized by the Central Government or  the Indian
\nOlympic Association.\n<\/p>\n
7.\tSimilarly,
\nan affidavit-in-reply has been filed by the Secretary, Youth Services
\nand Cultural Activities, Gandhinagar on the same lines.  It has been
\nspecifically contended, referring to this aspect, that every sport
\nhas only one recognized Association either at the national level a
\nFederation recognized by the Central Government affiliated with the
\nIndian Olympic Association and in the same way at the State level one
\nAssociation gets recognized from the national level Federation
\nrecognized by the Government of India.   It has been contended that
\nthe list of recognized Associations or Institutes downloaded from the
\nwebsite of the Ministry of Youth Affairs & sports, Govt. of
\nIndia, does not show the name of the two Associations who is said to
\nhave attended the camp.  It has been contended that  at such camps
\norganized by the Commissioner of Youth Services & Cultural
\nActivities, Gandhinagar was attended by 2 Women’s Football
\nAssociations but none of the Associations was able to establish its
\nrecognition.  Further, it has been contended that respondent No.
\n7-Gujarat State Women’s Football Association has admitted the same
\nvide letter dated 13.7.2008 (Annexure-D) to one of the affidavits in
\nSpecial Civil Application No. 9574\/08.    It has also been stated
\nthat one Mr. Natubhai Parmar, as President of the Gujarat State
\nWomen’s Football Association had addressed a letter stating that
\nthere is change in its office bearers and Mr. Sanjay Joshi is
\nappointed as Secretary of the Association and not to certify any
\ncertificates till the dispute between two associations are resolved.
\n Further, it has also been contended that even at the national level
\nthere are two Women’s Football Associations\/Federations having
\nconflict and there was a letter  by the Commissioner to the President
\nof Indian Olympic Association to provide a list of approved national
\nfederations.\n<\/p>\n
8.\tAn
\naffidavit has also been filed by a supporting respondent i.e. one Mr.
\nBhagwatiprasad Arya, Secretary of the respondent No.7-Gujarat State
\nWomen’s Football Association contending, inter alia, that the
\nrespondent No. 7 Association is blacklisted by the impugned
\ncommunication dated 17.7.2008 issued by the respondent No. 2 without
\nany show-cause notice or hearing.  The action of respondent No. 2 of
\nblacklisting the Association is therefore inconsistent and
\nincompatible with the decision of the Supreme Court  reported in
\n(1975) 1 SCC 70 and 1994 Supp. (2) SCC 699.  It has also been
\ncontended that the respondents have not taken into consideration and
\nsuppressed certain facts deliberately and referred to the
\ncorrespondence or the letters.  In some of the matters rejoinders
\nhave also been filed reiterating the same averments and also
\nclarifying the respective stand or position with reference to the
\ncontentions in the affidavit-in-reply.\n<\/p>\n
9.\tIt
\nis in this background, this group of petitions are contested on
\nvarious contentions submitted hereinafter.\n<\/p>\n
9.1\tLearned
\nadvocate Mr. Kaushik Pujara appearing for the petitioners in Special
\nCivil Application No. 9574 of 2008 submitted that the impugned
\ndecisions are arbitrary, illegal and in violation of the principles
\nof natural justice.  Learned advocate Mr. Pujara referred to the
\nbackground with regard to the recruitment process and the 5%
\nadditional marks to be given as weightage to the sports persons on
\nthe basis of sports certificates  possessed by them.  Therefore,
\nlearned advocate Mr. Pujara submitted that the certificates, which
\nhave been issued by the State Association cannot be straightway
\nrejected.  Learned advocate Mr. Pujara referred to the advertisement
\nand the requirement or qualifications required for the post of Vidhya
\nSahayak with 5% additional marks to be added as weightage on the
\nbasis of such sports certificates.  Learned advocate Mr. Pujara also
\nreferred to the certificates which have been produced in each of
\nthese matters like at page 49 in SCA No. 9574\/08, which is a
\ncertificate issued  by the  women’s Football Federation of India with
\nregard to Inter Zonal  Women’s Football Tournament for 2007-08 and
\nsubmitted that this certificate and the Form-2 clearly suggest that
\nit has been genuinely issued.  Learned advocate Mr. Pujara also
\nreferred to the railway tickets stating that it would suggest that
\nthe candidates have actually participated.  Learned advocate Mr.
\nPujara has also referred to some of the correspondence or letters by
\nwhich concession has been provided by the Railways and emphasized
\nthat it would suggest that the Ministry of Railway has also offered
\nthe concession and, therefore, the genuineness of such certificates
\nor the issuing Association cannot be doubted.  Learned advocate Mr.
\nPujara also referred to the Govt. Resolutions dated 25.2.1980 &
\n10.5.1982. He also referred to the Govt. Resolution dated 1.8.1990 at
\npage 80 to support the contention that it is pursuant to the
\nGovernment policy to give encouragement to the sports and the sports
\npersons that they have decided to give the benefit to the sports
\npersons and in substitution of the earlier Resolution dated
\n25.2.1980, another  Resolution dated 10.5.1982 has been passed that
\nthose who have participated at national level or even at the
\ninter-University competition would be regarded as meritorious
\nsportsmen.  The learned advocate also referred to the Govt.
\nResolution dated 1.8.1990 and thereafter GR dated 11.10.2005 which
\nstates that preference may be given to the sports persons while
\nfilling up class III & IV posts which has also a reference to
\ngiving 5% additional marks.  Learned advocate Mr. Pujara, therefore,
\nsubmitted that when the State Government has issued such policies in
\nthe form of Government Resolutions and circulars to provide
\nencouragement to the sports persons and the sports activity, such
\nimpugned decision is arbitrary.  Learned advocate Mr. Pujara also
\nreferred to the impugned communication dated 17.7.2008 (Annexure-F)
\naddressed by the Office of the Director of Primary Education to all
\nDistrict Primary Education Officers and and District Education
\nCommittees.  Further, learned advocate Mr. Pujara submitted,
\nreferring to Annexure-G p. 92 in SCA No. 9574\/08  that the State
\nWomen’s Football Association which has issued the certificates to the
\ncandidates has been recognized by the respondent authorities.
\nSimilarly, he referred to p. 93 which is again a communication dated
\n29.4.2005 stating that the State Women’s Football Association has
\nbeen recognized. Again, the certificate at p. 94 is a certificate
\nissued by the Commissioner of Youth Services and Cultural Activities,
\nGandhinagar,  for the recognition of the State Women’s Football
\nAssociation, Kankaria, Ahmedabad. Similarly, at p. 95 is a letter or
\ncommunication regarding recognition given by the Secretary, Youth
\nServices & Cultural Activities addressed to the Gujarat State
\nWomen’s Football Association, Chandkheda.  He also referred to
\nfurther such certificates (Annexures H & I) again for that
\npurpose and pointedly referred to the Annexure-I which is the
\nrecognized State level Association for different sports and referred
\nto the fact that the Gujarat State Women’s Football Association is
\nalso one of them.  Learned advocate Mr. Pujara referring p. 111
\n(Annexure-J) submitted that it has been clarified that the
\nrecognition is not compulsory and it was submitted that it cannot be
\ndisputed that respondent No.7-Association is recognized by the State
\nGovernment and also it has affiliation with the national federation
\ni.e. National Women’s Football Federation.  Learned advocate Mr.
\nPujara also referred to Annexure-R colly. in SCA No. 9574\/08 and
\nsubmitted that the Association was not intimated and thereafter
\nthough they had participated in the camp organized by the
\nrespondents, it was repeatedly requested that they may be informed.
\nHowever, the impugned decision has been taken without affording an
\nopportunity of hearing.  Learned advocate Mr. Pujara also contended
\nthat a participant from the State Association has also been a
\nrecipient  of the Arjuna Award as reflected in p. 158.\n<\/p>\n
9.2\tTherefore,
\nlearned advocate Mr. Pujara also referred to the communication dated
\n2.12.2005 at p. 120, which is a letter from the Secretary, Youth
\nServices and Cultural Activities, to the District Primary Education
\nOfficers, District Education Committee, Zilla Panchayats with regard
\nto the verification of the certificates issued for the game of
\nfootball. Learned advocate Mr. Pujara referred to Annexure-M p. 145
\nwhich is a letter from the Women’s Football Federation of India
\naddressed to Mr. Bhagwatiprasad Arya stating that Gujarat Women’s
\nFootball Association is recognized by the Federation.  He submitted
\nthat this is a letter addressed by the Federation stating about the
\nrecognition to the Gujarat Sate Women’s Football Association.
\nLearned advocate Mr. Pujara, therefore, submitted that when there is
\nno dispute about the candidates having participated in such
\ntournaments organized by the Gujarat State Women’s Football
\nAssociation on the basis of which certificates are issued to the
\ncandidates and there is no dispute about the recognition  of the
\nGujarat State Women’s Football Association by the Federation, which
\nis a national level body with whom the said Association is
\naffiliated, the impugned decision to cancel the certificates issued
\nby the Gujarat State Women’s Football Association is arbitrary and
\nillegal.\n<\/p>\n
9.3\tLearned
\nadvocate Mr. Pujara also submitted the decision is not only
\narbitrary, illegal, it is also violative of Art. 14 as it is in
\nviolation of the rules of natural justice.   Learned advocate Mr.
\nPujara submitted that no opportunity of hearing is given before the
\ndecision is taken and in fact there is no procedure or process
\nfollowed for arriving at such a decision and, therefore, it is
\narbitrary and illegal.\n<\/p>\n
9.4\tLearned
\nadvocate Mr. Pujara referred to the different petitions in this group
\nof matters for different sports and has also on the same line made
\nthe submissions.  He also referred to Special Civil Application No.
\n9575 of 2008, which is with regard to th sports of Wrestling and he
\nreferred the Government Resolutions dated 25.2.1980, 1.8.1990. He
\nalso referred to Annexure-H p. 115 which is a letter dated 11.6.2008
\nfrom the office of the Director of Primary Education to District
\nPrimary Education Officers with regard to verification of
\ncertificates and referring to p. 116 he emphasized that though this
\nletter is purported to be written with regard to scrutiny and before
\nthat exercise is made, it has already been decided that the
\ncertificates issued by the Wrestling Association of Gujarat, Gujarat
\nState Women’s Football Association, Chandkheda, Gujarat State Women’s
\nFootball Association, Vijaynagar are not to be considered.  Learned
\nadvocate Mr. Pujara therefore strenuously submitted that this
\nreflects the arbitrary and highhanded manner in which the decision is
\ntaken.  Learned advocate Mr. Pujara referred to Annexure-I (colly.)
\nand submited that the letter at p. 117 is addressed by the Indian
\nStyle wrestling Association of India, recognized by the Ministry of
\nYouth Affairs & Sports, Govt. of India) and at p. 118 is another
\nletter by the Ministry of Youth Affairs & Sports, Govt. of India,
\nto the Secretary General, Indian Olympic Association for including
\nthe sports of Wrestling in Olympics.  Learned advocate Mr. Pujara
\nalso referred to p. 121 which is Annexure to  Guidelines for
\nAssistance to National Sports Federations  issued by the Ministry
\nof Youth Affairs & Sports and submitted that there are
\ncategory-wise list of discipline which have been recognized and
\nreferred to the Guidelines providing for withdrawal of the
\nrecognition and the procedure for suspension or withdrawal of the
\nrecognition.  Learned advocate Mr. Pujara therefore submitted that
\nwhen the recognition of the State Association is not disputed,
\naffiliation with the Federation at the central level is not disputed,
\nand the tournament having been organized is also not in dispute,
\nthere is no reason for cancelling the certificates or doubting the
\ncertificates issued by the State Association.   Learned advocate Mr.
\nPujara also referred to the letters at p. 128, 131. Further, learned
\nadvocate Mr. Pujara referred to Annexure-K which is a latter
\naddressed by  the Wrestling Association of Gujarat to the Director of
\nPrimary Education stating that the record has been collected by them
\nand though they were required to submit further details, however, the
\nrecord has not been returned on a different excuse.  Further, it has
\nbeen stated that the Secretary of the Association had visited the
\noffice of the Youth Services & Cultural Activities, Gandhinagar
\non 14.4.2008 for verification but no verification has been made and
\nwas orally informed that now no verification is to be made.  It has
\nalso been stated in the letter that they are affiliated with the
\nNational Federation, which is recognized by the Ministry of Youth
\nAffairs & Sports, Govt. of India.  It is in these circumstances
\nlearned advocate Mr. Pujara submitted that the decision is arbitrary
\nand illegal.  Learned advocate Mr. Pujara also submitted that the
\nletter at p. 115\/116 (Annexure-H) would reflect  that the mind was
\nmade up for not considering the certificates. He also referred to the
\naffidavit-in-reply at p. 301-305.\n<\/p>\n
9.5\tLearned
\nadvocate Mr. Pujara referred to the affidavit-in-reply at p. 209 and
\nsubmitted that it has been contended that the Wrestling Association
\nof Gujarat was present on 29.5.2008 in the camp but failed to provide
\nnecessary details and asked the Government for some time.  Thereafter
\non 30.5.2008 a representative of the Association came with incomplete
\nrecord. Learned advocate Mr. Pujara submitted that as it is contended
\nthat again on 11.7.2008 the Association was called with the documents
\nand details  and thus an opportunity has been given and yet as they
\nhave not been able to give any details, the decision is taken.
\nHowever, learned advocate Mr. Pujara submitted that assuming that the
\nAssociation was called on 11.7.2008 and did not remain present or
\nfailed to produce the record, even then the communication or decision
\ndated 17.7.2008 of blacklisting the Association has been passed
\nwithout affording any opportunity inasmuch as, can it be blacklisted
\nwithout providing any opportunity or hearing?  It was also further
\nsubmitted that can such decision be taken which would affect not only
\nthe Association but the candidates to whom the certificates have been
\nissued without following any procedure or without complying with the
\nrules of natural justice?  Learned advocate Mr. Pujara referred to
\nand relied upon the judgments reported in 1975(1) SCC 70 (para 15 &\n<\/p>\n
20) and also judgments of the Hon’ble Apex Court reported in 1994
\nSupp. (2) SCC 699 (para 11 & 12).\n<\/p>\n
10.\tLearned
\nadvocate Mr. Shalin Mehta appearing for the petitioners in Special
\nCivil Application No. 9576 of 2008 submitted that some of the issues
\nare common and therefore they would apply to all the sports for which
\nthe petitions have been filed and some of the facts of the respective
\nsports will be emphasized separately for the appreciation of the
\nCourt.\n<\/p>\n
10.1\tReferring
\nto Special Civil Application No. 9836 of 2008, learned advocate Mr.
\nShalin Mehta submitted that the State Association i.e. Gujarat State
\nKabaddi Association is affiliated to Amateur Kabaddi Federation of
\nIndia, which is a national federation, recognized by the Ministry of
\nYouth Affairs & Sports, Govt. of India.  Learned advocate Mr.
\nMehta for that purpose referred to p. 148, which is a letter by
\nAmateur Kabaddi Federatrion of India dated 16.6.2008 stating that
\nAmateur Kbaddi Federation of India is affiliated to International
\nKabaddi Federation, Asian Amateur Kabaddi Federation and Indian
\nOlympic Association which has been also recognized by the Ministry of
\nYouth Affairs & Sports, Govt. of India. The Amaetur Kabaddi
\nFederation of  India is the sole body to look after the game of
\nKabaddi  and the allied events in India.  He also referred to p. 28
\nwhich also refers to such affiliation and the certificates issued to
\nthe candidates for the participation in the tournament. Learned
\nadvocate Mr. Mehta therefore submitted that all the petitioners have
\nparticipated in Kabaddi tournament at Vidyanagar, Anand which was an
\nAll-India Kabaddi tournament, and the certicicates have been issued
\nto the petitioners which are produced at p.28-29 and the certificates
\nhav been issued at p.30 by the State Association.  Again, learned
\nadvocate Mr. Mehta referred to the petitions and the documents
\nproduced in support of the contention that the Gujarat State Kabaddi
\nAssociation is affiliated to Amateur Kabaddi Federation of India
\nwhich in turn is recognized by the Ministry of Youth Affairs &
\nSports, Govt. of India. Therefore, it was submitted that the
\ncertificates issued by the State Association cannot be cancelled as
\nit fulfils the required norms or criteria that the State Association
\nis affiliated with the Federation at the national level, which is
\nrecognized by the Ministry of Youth Affairs & Sports, Govt. of
\nIndia.   Therefore, learned advocate Mr. Mehta submitted that the
\nimpugned decision, which is taken by the authorities, is arbitrary
\nand illegal and also in violation of the principles of natural
\njustice inasmuch as no opportunity or hearing has been given to the
\npetitioners before the impugned decision was taken which will affect
\nnot only the State Association but also the candidates to whom the
\ncertificates have been issued.\n<\/p>\n
10.2\tReferring
\nto Special Civil Application No. 9754 of 2008, learned advocate Mr.
\nPujara for the petitioners  also supplemented the submission
\nreferring to the recognition of the letters which have been produced
\nat p. 95-97 and submitted that the Railway Ministry has granted
\nconcession to the participants for which certificates are issued
\nwhich itself would suggest that the State Association is recognized
\nand its recognition and participation at the tournament at the
\nnational level are genuine and bona fide. The State Association has
\nbeen affiliated to the Amateur Kabaddi Federation of India which in
\nturn is recognized by the Ministry of Youth Affairs & Sports,
\nGovt. of India.  Learned advocate Mr. Pujara referred to p. 96 which
\nis a letter from the Amateur Kabaddi Federation of India dated
\n14.4.2008 to the State Association  granting permission to organize
\nsuch tournament at Vidyanagar, Anand from 28.4.2008 to 1.5.2008. He
\nalso referred to the letters at p. 99-100 that such tournament has
\nbeen arranged after the intimation and approval from the Commissioner
\nof Youth Services and Cultural Activities, Gandhinagar.  He also
\nreferred to the letter by the Gujarat State Kabaddi Asociation dt.
\n17.7.2008 at p. 101 and emphazied pointedly to the date which
\ncoincides with the date of the decision and submitted that this would
\nimply how the decision is arrived at.  Learned advocate Mr. Pujara
\nsubmitted that this letter specifically addressed by the Gujarat
\nState Kabaddi Association for the purpose of verification of the
\ncertificates issued by it and there is a specific clarification that
\nthe tournament was organized with the approval of Amateur Kabaddi
\nFederation of India  vide letter dated 16\/6\/2008 and there is no
\nlimitation about the participation of the teams of the host state.
\nHe also submitted that the State Association is having the
\naffiliation of the district level units.  He also referred to the
\nentry form and other details and submitted that the decision is
\narbitrary and illegal. Learned advocate Mr. Pujara therefore
\nsubmitted that there is nothing on record by which the benefit could
\nbe denied to the petitioners who have ben issued the certificates by
\nthe Gujarat State Kabaddi Association.\n<\/p>\n
10.3\tSimilarly,
\nlearned advocate Mr. Shalin Mehta referred to Special Civil
\nApplication No. 9831 of 2008 regarding the sports of athletics.  It
\nwas submitted that the Athletics Federation of India  is a national
\nbody recognized by the Ministry of Youth Affairs & Sports, Govt.
\nof India. He also submitted that the Gujarat State Amateur Athletics
\nAssociation is the state level Association with which the Track
\nTrotters Sports Club is also affiliated for which the documents are
\nproduced and this Association is affiliated to the national level
\nfederation, which is recognized by the Ministry of Youth Affairs &
\nSports, Govt. of India.  Referring to p. 335, 336, 337 & 339
\nlearned advocate Mr. Mehta also submitted that as reflected from the
\nletter at p. 335 which is addressed by the Secretary, Champion Sports
\nClub to the Secretary, Track Trotters Sports Club, Mehsana, Gujarat,
\nfor sending the entries or nominations for national level cross
\ncountry championship under the auspices of AFI & MAAA at Thane,
\nMaharashtra.  He referred to p. 336 which is a letter by Maharashtra
\nAmateur Athletic Association  to emphasize that the Maharashtra
\nAmateur Athletic Association had organized an all-India tournament
\nand the participants from Gujarat had participated.  He referred to
\nthe letter at p. 337 by Gujarat State Amateur Athletics Association
\nto the Secretary, Track Trotters Sports Club, Gandhinagar  and
\nfurther correspondence to substantiate that the participants have
\nactually participated. He referred to p. 339\/A which is a letter by
\nthe Athletic Federation of India, New Delhi to the General Secretary,
\nMaharashtra Amateur Athletics Association which has granted
\npermission to conduct such tournament.\n<\/p>\n
10.4\tLearned
\nadvocate Mr. Pujara also made submissions on the same lines referring
\nto Special Civil Application No. 9780 of 2008 and other matters with
\nregard to the sports of Volleyball.  He referred to Annexure-F
\n(colly.) which is a letter from Gujarat State Volleyball Association
\nregarding grant of permission for organizing tournament and at p. 81
\nwhich is a letter by the Volleyball Federation of India dated
\n22.1.2008 which is regarding invitation for participation in All
\nIndia Volleyball Tournament which was to be conducted from 7.2.2008
\nto 10.2.2008.  He also referred to Annexure-E (colly.) which is again
\na letter by the Department of Youth Services and Cultural Activities,
\nGandhinagar to all District Primary Education Officers, District
\nEducation Committee, District Panchayat, with regard to verification
\nof the certificates issued and submitted that this letter is dated
\n9.3.2008. He also referred to the affidavit-in-reply filed by the
\nGovernment in Special Civil Application No. 9574 of 2008 and
\nsubmitted that the same criteria has been applied and the decision is
\ntaken which is arbitrary.  It was submitted that in the present case
\nalso the Gujarat State Volleyball Association is affiliated to the
\nVolleyball Federation of India, which in turn is recognized by the
\nMinistry of Youth Affairs & Sports, Govt. of India.  Therefore,
\nthere is no reason why the certificates issued by the said State
\nAssociation should be rejected.\n<\/p>\n
11.\tMr.\n<\/p>\n
Sunit S. Shah, learned Government Pleader, referred to the Government
\nResolutions dated 25.2.1980, 1.8.1990 and submitted that it refers to
\nthe scheme or the policy of the Government to promote sports and
\nsports persons and with a view to giving encouragement to the sports
\nand sports persons a policy has been evolved by which 5% additional
\nmarks is given as a preference to such sports persons in the
\nrecruitment of Vidhya Sahayak.  Learned Government Pleader Mr. Shah
\nsubmitted that this scheme does not provide for any reservation and
\ndoes not contemplate that large number of sportsmen should be
\navailable.  He referred to the orders passed in Special Civil
\nApplication No. 9577 of 2008 (Coram: Bhagwati Prasad, J.) and the
\norder passed in Special Civil Application No. 4624 of 2007 and other
\nallied matters (Coram: H.K. Rathod, J.) and submitted that there were
\nsome grievances with regard to irregularity or bogus certificates
\nissued by the Sports Associations or the Clubs on the basis of which
\n5% additional marks is claimed which will have the effect of marching
\na steal over the other meritorious\/general candidates.  Learned
\nGovernment Pleader Mr. Shah submitted that as there was no uniformity
\nin the recruitment  process which were undertaken by different
\ndistricts, there was a litigation and therefore, now, about 10225
\nposts of Vidhya Sahayak are to be filled up by different districts
\nand about 26000 candidates have applied.   Learned Government Pleader
\nMr. Shah submitted that the same candidates may have applied in
\ndifferent districts and therefore there would be multiple
\napplications by the candidates.\n<\/p>\n
12.\tLearned
\nGovernment Pleader Mr. Shah submitted that in background of these
\nfacts it is required to be appreciated whether the impugned decision
\ncan be said to be arbitrary and illegal.  He submitted that when
\ncertain facts were brought to the notice of the Government, it was
\ndecided to have a scrutiny by a committee.  For that purpose, he
\nreferred to Form No.2 and pointedly emphasized the manner in which it
\ncould be issued to the candidates and by whom it could be issued.
\nFor that purpose he referred to the Government Resolution dated
\n25.2.1980 and submitted that as referred to in this Government
\nResolution, 5% marks is to be given as a preference on the basis of
\nthe certificates which will be issued and clause (4) of the
\nResolution provides that as per Schedule ‘kh’ such a certificate
\ncould be issued by the authority specified therein i.e. for national
\nlevel sports the Secretary of the National Federation or the State
\nAssociation.  Again, it refers to the aspect of verification and
\nscrutiny of the certificates by the said authority.  Therefore,
\nlearned Government Pleader Mr. Shah submitted that the scrutiny or
\nverification is a right as well as an obligation of the Government to
\nverify that only genuine certificates and genuine candidates get the
\npreference.  He also referred to  Government Circular dated
\n11.10.2005 which is also referring to the earlier Resolutions
\nclarifying that it will have the same policy.  However, it has a
\nreference to the earlier litigation being Special Civil Application
\nNo. 14097 of 2004 that this Court had made an observation with regard
\nto the uniformity.\n<\/p>\n
13.\tLearned
\nGovernment Pleader Mr. Shah  therefore submitted that it is the right
\nas well as an obligation of the respondent Government to verify or
\nscrutinize the certificates on the basis of which the preference is
\nclaimed.  Mr. Shah, learned Government Pleader, submitted that for
\nthat an exercise was carried out by the committee  and the State
\nlevel sports Associations which have issued the certificates were
\ncalled upon with the relevant material.  For that purpose he referred
\nto the records in different petitions including Special Civil
\nApplication No. 9574 of 2008 pertaining to Gujarat State Women’s
\nFootball Association and submitted that when the said Association
\ncould not produce the record with the relevant details and the
\ncertificates are issued which in the scrutiny are found fake and
\nhave, therefore, led to the decision about non-approval or
\ncancellation of such certificates.  He referred to the
\naffidavit-in-reply p. 155 filed by the Director of Primary Education,
\nGandhinagar and submitted that when the Government came to know that
\nsome Associations\/institutions were distributing bogus certificates
\nwhich were utilized by the candidates for the purpose of this
\npreference in the recruitment   of Vidhya Sahayak, the
\nverification\/scrutiny was made. He pointedly referred to para 5 and
\nsubmitted that as contended every sport has only one recognized
\nAssociation either the National Federation, which is recognized by
\nthe Ministry of Youth Affairs & Sports, Govt.  of India or the
\nIndian Olympic Association. Similarly, at the State level, there is
\nonly one Association which would be affiliated to the National
\nFederation.  However, in the camp organized by the Commissioner of
\nYouth Services & Cultural Activities for verification of
\ncertificates, 2 Women’s Football Associations had attended and none
\nof them was able to establish its recognition or affiliation with the
\nNational Federation.  Learned Government Pleader Mr. Shah referred to
\nAnnexures-C & D for that purpose. He also pointedly referred to
\nthe letter at Annexure-D dated 13.7.2008 by the Gujarat State Women’s
\nFootball Association, Chandkheda addressed to the Commissioner, Youth
\nServices & Cultural Activities, Gandhinagar, stating that the
\nAssociation is affiliated to national level Federation but no letter
\nor certificate could be produced and the participants have
\nparticipated through the Association.    Again, he referred to
\nanother letter dated 13.7.2008 which has a different address and
\nagain it is addressed to the Commissioner, Youth Services &
\nCultural Activities and he pointedly referred to p. 192 to emphasize
\nthat it is stated that this Association is associated with the State
\nlevel Association or national level federation or Indian Olympic
\nAssociation. No certificate or evidence is produced and it would be
\nproduced shortly.  He also submitted that the President of Gujarat
\nState Women’s Football Association Mr. Natubhai Parmar had addressed
\na letter about the change in the office bearer and Mr. Sanjay Joshi
\nis appointed as Secretary of the Association and it is also stated
\nthat there was dispute between the two Associations and not to issue
\nany certificate till their dispute is resolved.  Similarly,  there
\nare other letters.  Learned Government Pleader Mr. Shah submitted
\nthat therefore the Commissioner, Youth Services & Cultural
\nActivities had addressed a letter to the President, Indian Olympic
\nAssociation to provide the list of national federations as there are
\n2 federations at the national level and there are 2 Women’s Football
\nAssociations at the State level for which also there is a dispute.
\nMr. Shah for that purpose referred to the letter dated 29.8.2002 at
\np. 185  addressed by one M.P. to another M.P. with regard to the
\naspect of merger of the 2 Federations.\n<\/p>\n
14.\tIt
\nis in these circumstances, learned Government Pleader Mr. Shah
\nsubmitted that it is necessary that the court may also examine the
\nrecord and it would be evident that the Associations, particularly,
\nthe 3 Associations whose certificates are not approved or cancelled,
\nhave been called to submit the record and as they have failed to
\nsubmit the record, the impugned decision has been taken.  Therefore,
\nMr. Shah strenuously submitted that, can it be said that the decision
\narrived at by the committee was wrong or biased?  Mr. Shah submitted
\nthat when it came to the notice of the Government about the
\nirregularities the scrutiny\/verification was undertaken by the
\ncommittee at the camps and after giving an opportunity, as the
\nAssociations have failed to submit the relevant record, the decision
\nhas been taken and, therefore, the submission regarding the
\narbitrariness or violation of rules of natural justice cannot be
\naccepted.\n<\/p>\n
15.\tFor
\nthis purpose, Learned Government Pleader Mr. Shah referred to and
\nrelied upon the judgments of Hon’ble Apex Court in the case of
\nMunicipal Corporation of Delhi v. Qimat Rai Gupta and ors.<\/a>,
\nreported in 2007 (7) SCC 309.\n<\/p>\n
16.\tLearned
\nGovernment Pleader Mr. Shah submitted that whether the decision is
\nright or wrong is a separate aspect, but can it be said that the
\ndecision making process is not justified?  It was submitted that the
\nscope of judicial review is also well-defined and limited and the
\ncourt can examine the decision making process which will reflect
\nabout the reasonableness of the decision and the fact that it was not
\nbiased or arbitrary.\n<\/p>\n
17.\tLearned
\nGovernment Pleader Mr. Shah, therefore, submitted that few points are
\nrequired to be highlighted or borne in mind that the recruitment to
\nthe post of Vidhya Sahayak is in the nature of public employment.
\nSecondly, the recruitment to the post of Vidhya Sahayak being a
\npublic employment, transparency and merit are the two criteria, which
\nis required to be appreciated.  Third, nobody could be permitted to
\nperpetuate any well designed mischief or the irregularity for taking
\nany undue advantage, which in turn would defeat the rights of the
\nmeritorious candidates. Fourthly, role of the Government.  Learned
\nGovernment Pleader Mr. Shah submitted that the Government lays down
\nthe policy and the policy has to be implemented and supervised.
\nTherefore, in order to see that there is some uniformity and there is
\nno malpractice, the exercise has been undertaken for the verification
\nand during the scrutiny\/verification certain irregularities have been
\nfound on the basis of which the impugned decision is taken.  Learned
\nGovernment Pleader Mr. Shah for that purpose referred to the
\ndifferent petitions and also dealt with in detail letter addressed by
\nthe State Associations like Gujarat State Women’s Football
\nAssociation to the Women’s Football Federation as well as for the
\nsports like wrestling, kabaddi, athletics, etc. seeking permission to
\norganize the tournaments and referring  Special Civil Application No.
\n9574 of 2008 & Special Civil Application No. 9575\/08, he
\nhighlighted the manner in which the tournament was organized and
\nconducted inasmuch as even before the tournament was concluded, the
\ncertificates are issued which is evident from the dates.    He
\ntherefore emphasized and pointedly referred to this aspect that after
\nthe decision or the advertisement with regard to the recruitment for
\nthe post of Vidhya Sahayak was published in March by a public
\nadvertisement, these tournaments are said to have been organized by
\nthe Sports Associations for which letters are addressed to the
\nFederations which have given permission without knowing these aspects
\nand on that basis the so-called tournaments have been organized and
\nthe certificates are distributed on the basis of which the claim is
\nmade.  Again, he referred to the nature of the tournaments and the
\nparticipation pointing out that there is no proper participation even
\nthough it was a national tournament inasmuch as only a few teams have
\nparticipated and more than one team from the Gujarat State itself has
\nparticipated.  Therefore, again he emphasized that keeping in
\nbackground this aspect, the Government is required to consider its
\npolicy for which he again referred to the Government
\nResolutions\/Circulars dated 25.2.1980, 1.8.1990, 11.10.2005.\n<\/p>\n
18.\tIt
\nwas submitted that the policy has been made but the requirement or
\ncriteria fixed has to be fulfilled.  In the facts of the present
\ncase, it is required to be examined whether such criteria or norms
\nhave been fulfilled and whether the Government has a right to verify
\nand supervise such a scheme or not?    Mr. Shah also submitted that
\nas some of the Associations which have issued the certificates have
\nnot fulfilled the criteria or the norms, they were called upon to
\nsatisfy and they have failed to satisfy the required norms which has
\nled to the impugned decision for non-approval or cancellation of the
\ncertificates issued by them.\n<\/p>\n
19.\tFor
\nthat purpose,  Mr. Shah also referred to the Guidelines in the form
\nof Government Resolutions as stated above as well as the Guidelines
\nissued by the Ministry of Youth Affairs & Sports, Govt. of India,
\nwhich refers,  Guidelines for Assistance to National Sports
\nFederations.   He pointedly referred to the introduction and
\nemphasized that even these Guidelines also refer to the policy to
\ngive encouragement to the sports persons. Mr. Shah also referred to
\npara 8.7 which refers to the ‘National Championship’ and emphasized
\nthat the court may examine whether the tournaments can be said to be
\nof the standard of a national championship.\n<\/p>\n
20.\tLearned
\nGovernment Pleader Mr. Shah submitted that the candidates like the
\npetitioners have a right to be considered and they have claimed the
\nbenefit under the policy. However, can the decision taken by the
\nGovernment be said to be biased? It was submitted that while taking
\nsuch decision whether the relevant circumstances and material is
\nconsidered before arriving at the decision or not is required to be
\nexamined by the court.\n<\/p>\n
21.\tLearned
\nGovernment Pleader Mr. Shah therefore submitted that as it appears
\nfrom the Guidelines, this principle has been accepted  that there has
\nto be only one team for the State representation at the national
\nlevel and one national team for the representation at the
\ninternational level and this criteria is not observed inasmuch as
\nthere are number of teams having participated in the national
\ntournaments, which itself is illegal.  Moreover, he pointedly
\nreferred to clause (c) which reads,  National Tournament
\nSchedules. . He also referred to para 8.7 to suggest as to how the
\nnational level tournaments and the participation should be organized.
\n It was submitted that it is clearly observed that the Federations
\nshall take steps to ensure that the participants of all the
\naffiliated units participate in the national level championship and
\nin case less than 75% of the affiliated units participate, then the
\nscale assistance will be reduced by 25% and no grant shall be
\nprovided in case less than 50% of the affiliated units participate.
\nHe submitted that it is not in dispute that at the national level
\ntournaments more than one team from Gujarat has participated and only
\na few teams from outside the State have participated.\n<\/p>\n
22.\tLearned
\nGovernment Pleader Mr. Shah pointedly referred to some of the
\npetitions like SCA No. 9754 of 2008 regarding Kabaddi and submitted
\nthat the sports certificates regarding participation are issued
\nsuggesting the dates from 28.4.2008 to 1.5.2008.  The tournament is
\nscheduled hurriedly after announcement of the recruitment process.
\nFor that purpose he referred the letter at p. 96 by the Amateur
\nKabaddi Federation of India dt. 14.4.2008 giving approval for
\norganizing such tournament.  He also referred to p.99 for that
\npurpose.  He also referred to p. 142-143 and strenuously submitted
\nthat date of the certificates  would show that they were issued
\nbefore the closure of the tournament.  He also referred to p. 116 in
\nanother petition regarding Kabaddi Association where the same letter
\ndt. 16.4.2008 of the Gujarat State Kabaddi Association is produced
\naddressed to Amateur Kabaddi Federation of India and learned
\nGovernment Pleader Mr. Shah submitted that by this letter they seek
\nthe approval of the Federation for organizing such national
\ntournament and vide communication dated 14.4.2008 at p. 96, the
\nAmateur Kabaddi Federation of India grants approval. Therefore, he
\nsubmitted that this shows how the tournament or the national
\nchampionship tournament is organized.  Again, he emphasized,
\nreferring to the guidelines by the Ministry of Youth Affairs &
\nSports, Govt. of India and referring to para 8.7 he submitted that it
\nrefers to ‘National Championships’ which clearly provide that
\napplication in a proforma (Annexure VII) has to be sent three months
\nbefore the date of such championship.  He also referred to ‘XII.
\nMiscellaneous’ and emphasized that for the national level tournament
\nwidespread domestic tournament is expected and therefore in order to
\nhave widespread participation  the number of teams as far as possible
\nwho participate is also provided. He therefore submitted that if the
\npapers and the number of teams which have participated is verified,
\nit would show how many teams have participated and in fact more than
\none team from the State of Gujarat has only participated.\n<\/p>\n
23.\tAgain,
\nhe referred to SCA No. 9574 of 2008 which is regarding women’s
\nfootball and the certificates issued by the Gujarat State Women’s
\nFootball Association.  He pointedly referred to the draft amendment
\nand Annexure-R colly. produced at p. 155 and submitted that a letter
\ndt. 13.7.2008 addressed by Gujarat State Women’s Football
\nAssociation, Chandkheda addressed to the Commissioner, Youth Services
\n& Cultural Activities, makes it clear that for such national
\nlevel tournament trial competitions are held and on that basis a team
\nrepresenting the State is selected for participation at the national
\ntournament.  He also referred to the affidavit-in-reply at p. 165 and
\nreferring to para 5 of the said affidavit he also submitted that
\nthere are two such associations and in fact there has been an inter
\nse dispute with regard to election or the claim and recognition. Not
\nonly that, referring to para 5 of the affidavit-in-reply he
\nemphasized that the Gujarat State women’s Football Association
\n(having same name). Gandhingar, addressed a letter to the
\nCommissioner, Youth Affairs & Cultural Activities and has
\nspecifically stated that they have not been able to produce any
\ncertificate or any document with regard to affiliation with the level
\nFederation and it has a reference to their communication or the
\nletter on earlier occasion.   Therefore, learned Government Pleader
\nMr. Shah submitted that it thus suggests that sufficient opportunity
\nhas been given.  He also  referred to the letter at p. 199, 196
\naddressed by the Gujarat State Football Association, Chandkheda and
\npointedly referred to the fact that there is a specific mention that
\nanother women’s football association of which one Mr. Sanjay Joshi is
\nthe Secretary , is not recognized and the Gujarat State Women’s
\nFootball Association, Chandkheda has the recognition and has
\norganized tournaments.  Mr. Shah, therefore, submitted that the
\ncertificates issued by another State Women’s Football Association
\nwould necessarily mean that they are not reliable as per this letter.\n<\/p>\n
24.\tHe
\nfurther referred to p. 111 (Annexure-J) and emphasized that there is
\na litigation with regard to Amateur Athletics Association for which
\nsuits are filed in the City Civil Court and the orders have been also
\npassed restraining from carrying out any proceedings in connection
\nwith the activities of the Association by any person either as
\nPresident or Secretary of the Association. The learned Government
\nPleader also submitted that though emphasis has been given to
\nAnnexure-M, p. 145 (in SCA 9574 of 2008), which is sought to be
\nprojected as a recognition given by the Women’s Football Federation
\nof India. In fact the recognition of the Federation itself  has some
\ncloud as there are 2 MPs, Mr. Kirti Jha Azad who has addressed a
\nletter to another MP pointing out the dispute as regards merger of
\nthe two Federations even at the national level.  For that purpose, he
\nreferred to SCA No. 9577 of 2008 and the letter at p. 180 & 185
\npointing out that there are 2 women’s football federations and even
\nthere is some dispute with regard to the federation itself inasmuch
\nas one MP Mr. Kirti Jha Azad has addressed a letter to another
\nFederation of another MP Mr. P.R. Dasmunshi.  Learned Government
\nPleader Mr. Shah also referring to the letter at Annexure-M p. 145 as
\nwell as the letter of the Federation at p. 142 (in SCA 9574 of 2008)
\nsubmitted that even if it is considered, it is evident that p. 142
\nsays that women’s football tournament has been scheduled from
\n15.3.2008 to 18.3.2008 at Kanpur, U.P.\n<\/p>\n
25.\tHe
\nalso referred to p. 140 which is a letter by Women’s Football
\nFederation of India with regard to National Federation Cup Women’s
\nFootball Tournament 2007-08 scheduled between 28.12.2007 to 30.1.2008
\nat Chhatisgarh. Therefore, the learned Government Pleader submitted
\nthat if such a national tournament or championship is already
\norganized at one place, how there could be another such national
\nlevel tournament within a few months in Gujarat?\n<\/p>\n
26.\tSimilarly,
\nhe also referred to the petitions with regard to the certificates
\nissued for the sports of athletics and he pointedly referred to the
\nletter dated 12.6.2008 by Gujarat State Amateur Athletics Association
\nwhich is a letter by the Secretary of the Association stating that
\nfor any national level tournament only their Association is
\nrecognized and has a right to send the team for participation at
\nnational level tournament and any other Association or Club can send
\nthe team with their approval only. Learned Government Pleader Mr.
\nShah therefore submitted that this Association itself has disowned
\nany such certificates issued by any such club or association.\n<\/p>\n
27.\tSimilarly,
\nlearned Government Pleader Mr. Shah referred to the letter from the
\nMember-Secretary, Wrestling Sub-Committee, Mysore Dasara Mahotsava
\nwhich is addressed to District Primary Education Officer, Anand,
\nregarding participation of women wrestlers  at Mysore Dasara
\nWrestling Tournament, which clearly states that Gujarat State was
\nalso one of the States which was invited. However, it clearly
\nmentions that a few other women wrestlers from Gujarat had come to
\nparticipate in the tournament but they were not allowed to
\nparticipate in the actual tournament\/bouts because only 7 wrestlers
\nfrom each invited State will be allowed to take part in the
\ntournament.  However, some of the women wrestlers who had gone to
\nparticipate in the said tournament had requested to issue at least
\nparticipation certificate.  Therefore, by this letter addressed in
\nresponse to the letter by the District Primary Education officer it
\nhas been clarified that name of the women wrestlers referred to in
\nthe letter have not in fact participated.\n<\/p>\n
28.\tAgain,
\nreferring to the petitions, learned Government Pleader Mr. Shah
\nemphasized with reference to the dates that as to how the national
\nlevel tournaments have been organized after the publication of the
\nadvertisement for the recruitment to the post of Vidhya Sahayak. It
\nwas submitted that after the advertisement for the post of Vidhya
\nSahayak was published in March, 2008, the State Associations have
\nsought to organize national level tournaments for which they have
\naddressed letters to the Federations and as late as in April, 2008
\nthe permission is granted to organize such tournaments or even
\nthereafter.  Therefore, referring to para 8.7 he emphasized that an
\napplication has to be first submitted in the prescribed form
\n(Annexure-VII) to MYAS with a copy to ED, SAI  3 months before the
\ndate of championship (emphasis supplied).  Therefore, learned
\nGovernment Pleader Mr. Shah submitted that there has to be at least a
\npermission before 3 months before the date of the event or
\ntournament, whereas in the facts before the court, the tournaments at
\nthe so-called national level  are organized in a hurried manner only
\nwith a view to see that such tournaments are used for the purpose of
\nissuing certificates to the participants, which in turn are the
\npersons like the petitioners claiming for the preference by 5%
\nadditional marks in the recruitment to the post of Vidhya Sahayak.\n<\/p>\n
29.\tTherefore,
\nthe learned Government Pleader submitted that whether the petitioners
\ncan claim any relief and whether the court can consider it under the
\njudicial review.  For that purpose, learned Government Pleader Mr.
\nShah submitted that the scope of judicial review is very limited. For
\nthat purpose he referred to and relied upon the judgment in the case
\nof Jayrajbhai Jayantibhia Patel v. Anilbhai Nathubhai Patel &
\nOrs.,<\/a> reported in (2006) 8 SCC 200 and referring to Head Note B
\nand the observations in paras 12 & 18 he pointedly emphasized, <\/p>\n
\t Having
\nregard to it all, it is manifest that the power of judicial review
\nmay not be exercised unless the administrative decision is illogical
\nor suffers from procedural impropriety or it shocks th conscience of
\nthe court in the sense that it is in defiance of logic or moral
\nstandards but no standardised formula, universally applicable to all
\ncases, can be evolved.  Each case has to be considered on its own
\nfacts, depending upon the authority that exercises the power, the
\nsource, the nature or scope of power and the indelible effects is
\ngenerates in the operation of law or affects the individual or
\nsociety. Though judicial restraint, albeit self-recognized, is the
\norder of the day, yet an administrative decision or action which is
\nbased on wholly irrelevant considerations or material; or excludes
\nfrom consideration the relevant material; or it is so absurd that no
\nreasonable person could have arrived at it on the given material, may
\nbe struck down.  In other words, when a court is satisfied that there
\nis an abuse or misuse of power, and its jurisdiction is invoked, it
\nis incumbent on the court to intervene. It is nevertheless, trite
\nthat the scope of judicial review is limited to the deficiency in the
\ndecision-making process and not the decision.\n<\/p>\n
29.\tHe
\nalso emphasized the observations in para 12 referring to the scope of
\njudicial review in administrative matters and the exercise of power
\nunder Art. 226 of the Constitution  and emphasized that, <\/p>\n
\t the
\njudicial quest has been to find and maintain a right and delicate
\nbalance between the administrative discretion and the need to remedy
\nalleged unfairness in the exercise of such discretion.\n<\/p>\n
30.\tLearned
\nGovernment Pleader Mr. Shah therefore submitted that in the present
\nfacts, can it be said that the decision is not based on any material
\nor is illogical? He also emphasized that <\/p>\n
\t under
\nthe guise of preventing the abuse of power, be itself \tmay \tnot be
\nguilty of usurping power.\n<\/p>\n
31.\tThe
\nlearned Government Pleader also referred to and relied upon the
\njudgment of the Hon’ble Apex Court in the case of Ajit Kumar Nag
\nv. General Manager (PJ) IOC Ltd., Haldia & ors.<\/a> reported in
\n2005(7) SCC 764 and referring to Head Note C and the observations in
\npara 1 strenuously emphasized the observations, <\/p>\n
\t The
\nprinciples of natural justice are not rigid or immutable and hence
\nthey cannot be imprisoned in a straitjacket. They must yield to and
\nchange with exigencies of situations. They must be confined within
\ntheir limits and cannot be allowed to run wild. While interpreting
\nlegal provisions, a court of law cannot be unmindful of the hard
\nrealities of life. The approach of the Court in dealing with such
\ncases should be pragmatic rather than pedantic, realistic rather than
\ndoctrinaire, function rather than formal and practical rather than
\n precedential . It was emphasized that, as observed,  the
\nprinciples of natural justice can be modified and even excluded.
\nAgain, it was submitted that the principles of natural justice has to
\nbe decided with reference to the facts and circumstances of the case.\n<\/p>\n
32.\tLearned
\nGovernment Pleader Mr. Shah again emphasized that there must be a
\nlegal right before a writ of mandamus can be asked.  He strenuously
\nsubmitted that what is the legal right of the petitioners is required
\nto be examined inasmuch as it is only a policy which has been evolved
\nfor the purpose of giving a preference.  He again emphasized that 5%
\nadditional marks which are given as a preference to the sports
\npersons in the matter of recruitment has to be subject to the norms
\nand which in turn makes it obligatory for the Government to see that
\nthe certificates on the basis of which the preference or weightage is
\nclaimed is not misused to the detriment or prejudice of other general
\ncandidates.    Learned Government Pleader Mr. Shah  submitted that in
\nthe facts of the case after the scrutiny if it is found that the
\ncertificates cannot be relied upon and the impugned decision is
\ntaken, can it be said that it is in violation of the rules of natural
\njustice or is arbitrary?  The learned Government Pleader submitted
\nthat in fact even if the person is selected, he does not have a
\nvested right and even the select list can be cancelled.\n<\/p>\n
33.\tIn
\nsupport of his submission, learned Government Pleader Mr. Shah has
\nreferred to and relied upon the judgment of the Hon’ble Apex Court in
\nthe case of Mohd. Sartaj and anr. v. State of U.P. and ors.,
\nreported in 2006(2) SCC 315 and submitted that it is a case regarding
\nservice matter for the appointment  where the select list was
\ncancelled and the court has considered the aspect of compliance with
\nthe natural justice and referring to the observations it was
\nemphasized that as observed in this case it would not violate the
\nprinciples of natural justice even if the list is cancelled.  Mr.
\nShah submitted that in this matter of giving 5% additional marks or
\nweightage are not to be considered, but yet if the certificates
\nissued by the Associations, on verification, are found to be not
\ngenuine, the same may be ignored and, therefore, the challenge to the
\ndecision on the ground of violation of principles of natural justice
\nis without any basis.\n<\/p>\n
34.\tIt
\nwas submitted that one has a right to be considered but cannot claim
\nany right for the preference and they have no right to challenge
\nafter participating in the recruitment process. For that purpose
\nlearned Government Pleader Mr. Shah referred to and relied upon the
\njudgment of the Hon’ble Apex Court in the case of Bihar Public
\nService Commission and ors. v. Kamini and others<\/a>, reported in
\n(2007) 5 SCC 519 and submitted that as observed in this judgment, <\/p>\n
 ordinarily,
\nthe court would not interfere with the opinion of expert committee as
\nregards qualification and eligibility of candidates.\n<\/p>\n
35.\tAgain,
\nMr. Shah emphasized with regard to the process and submitted that in
\nthis case also for the purpose of recruitment process when the
\nscrutiny or verification is undertaken for the purpose of 5% marks as
\na preference cannot be said to be arbitrary.  He also emphasized that
\nas observed in this judgment, <\/p>\n
 because
\nin the past some candidates possessing a particular qualification has
\nbeen erroneously considered could to be a ground for another
\ncandidate possessing the same qualification to claim the appointment
\nin a subsequent recruitment.\n<\/p>\n
36.\tTherefore,
\nMr. Shah submitted that the submission that the same Associations
\nwhich have issued similar certificates in the past which have been
\naccepted on earlier occasions and therefore the non-acceptance or
\ncancellation of the certificates in the present recruitment process
\nviolates Art. 14 is also misconceived. It was submitted that if some
\nirregularity is brought to the notice of the authority, that
\nirregularity has to be corrected and it cannot be allowed to be
\nperpetuated.\n<\/p>\n
37.\tAgain,
\nlearned Government Pleader Mr. Shah referred to the judgment of the
\nHon’ble Apex Court reported in 2007(8) SCC 100 in the case of Union
\nof India v.  S. Vindodkumar and Ors.  and referring to the
\nobservations in para 16 he emphasized that even if the candidates are
\nselected they do not have any vested right.\n<\/p>\n
38.\tAgain,
\nlearned Government Pleader Mr. Shah referred to and relied upon the
\njudgment of the Hon’ble Apex Court in the case of A.P. SRTC &
\nOrs. v. G. Srinivas Reddy and ors.<\/a>, reported in (2006) 3 SCC 674
\nand emphasized the observations and discussion with regard to the
\nright of the candidate to be considered and he emphasized that even
\nthe Apex Court has observed that the direction given by the authority
\nto consider was not justified.  Learned Government Pleader Mr. Shah
\nsubmitted that, as observed, the High Court cannot proceed to
\nsubstitute its own decision in the matter as it will amount to
\nexercising appellate power. Mr. Shah, referring to the observations
\nin para 15 observed,  <\/p>\n
 the
\npower of judicial review under Art. 226 concentrates and lays
\nemphasis on decision making process, rather than the decision
\nitself.\n<\/p>\n
39.\tTherefore,
\nreferring to these observations and the principles laid down, learned
\nGovernment Pleader Mr. Shah strenuously submitted that, can it be
\nsaid that the impugned decision arrived at is arbitrary, illegal or
\nin violation of Art. 14 and\/or in violation of the principles of
\nnatural justice?\n<\/p>\n
40.\tAgain,
\nlearned Government Pleader referred to and relied upon the judgment
\nof the Hon’ble Apex Court in the case of Mohd. Sartaj and anr. v.
\nState of U.P. and ors. (supra) and emphasized the observation
\nmade that it is a matter regarding the discretion and the court, at
\nthe best, can examine the fairness of the procedure and the material
\nand the method of arriving at the decision.  He also referred to the
\njudgment of the Apex Court reported in (2004) 5 SCC 588 and also in
\nthe case of M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and ors.<\/a>,
\nreported in 1999(6) SCC 464 in support of his submissions.\n<\/p>\n
41.\tTherefore,
\nlearned Government Pleader Mr. Shah submitted that in this background
\nthe decision making process or the discretion exercised for the
\npurpose of arriving at such a decision can be examined and if, on the
\nbasis of material after the scrutiny and after affording the
\nopportunity to the respective Associations, a decision is taken, it
\ncannot be termed as arbitrary or illegal.  The State function under
\nArt. 14 can be subject to the scrutiny by the courts but it has to be
\nonly for a limited purpose that the court has to be satisfied that
\nthe decision making process is based on material and the method
\nadopted is not arbitrary.  Learned Government Pleader also emphasized
\nthat if the impugned decision is set aside by the court and if the
\ncertificates given by the Associations in the manner as highlighted
\nhereinabove are permitted resulting in the preference of 5%
\nadditional marks to the petitioners would in fact cause prejudice to
\nthe other candidates and it would amount to denial of the fairness in
\nthe recruitment process by the Government and also it would allow the
\npetitioners with such irregularly issued certificates taking
\nadvantage or rather undue advantage to steal a march over the other
\ngeneral candidates whose rights would be prejudiced. Therefore, he
\nsubmitted that all these petitions deserve to be dismissed.\n<\/p>\n
42.\tLearned
\nadvocate Mr. Shalin Mehta referring to the rejoinder affidavit in
\nSpecial Civil Application Nos. 9577 of 2008 and 9574 of 2008
\nregarding the Gujarat State Women’s Football Association submitted
\nthat the State Association is affiliated to the Women’s Football
\nFederation of India which in turn is recognized by the Ministry of
\nYouth Affairs and Sports, Govt. of India and there cannot be any
\ndispute about it.  Therefore, the impugned decision amounts to
\nblacklisting. For that he, again, reiterated and submitted that for
\nthe decision of blacklisting no opportunity has been given either to
\nthe petitioners or to the Association.  He also submitted that the
\npetitioners should be treated with fairness for which fair procedure
\nis required to be followed before they can be condemned.\n<\/p>\n
43.\tLearned
\nadvocate Mr. Mehta, referring to the scope of judicial review,
\nsubmitted that it is always open to the court to examine whether the
\nprocedure followed is fair. Again, he referred to the pleadings to
\nemphasize the submission  that an opportunity has not been given to
\neven the Association.  He submitted that the Government has a right
\nto verify but the procedure is required to be followed and rules of
\nnatural justice ought to have been followed.  Again, emphasizing that
\nthe impugned decision amounts to blacklisting, he tried to submit
\nthat though the learned Government Pleader has stated that the
\ndecision does not amount to blacklisting, he referred to the
\ndefinition of ‘blacklisting’ in Collin’s Dictionary and submitted
\nthat it is a consequence that the petitioners would be denied the
\npreference and their certificates re cancelled.\n<\/p>\n
44.\tLearned
\nadvocate Mr. Mehta also referred to Special Civil Application No.
\n9576 of 2008 which is with regard to Wrestling and submitted that the
\ndecision for the Wrestling Association has been taken because they
\nhave not bothered to produce the documents and the State Government
\nhad no option but to cancel the certificates. Again, he referred to
\nthe pleadings at p. 225, 226 and submitted that the petitioners have
\nnot been given any opportunity to produce the certificates for
\nverification.  Referring to the correspondence and the pleadings it
\nwas submitted by him that if the Association has not gone to the camp
\nas directed, whether the petitioners should be thrown out or made to
\nsuffer.  It was emphasized as to what would have been the fair
\nprocedure. Learned advocate Mr. Mehta submitted that it is expected
\nof the Government to call the candidates by giving public notice and
\nverify and could have asked them to submit the documents.  It was
\nsubmitted that if at all it is the State Association which has failed
\nto comply with the requirements, the petitioners cannot be made to
\nsuffer.\n<\/p>\n
45.\tLearned
\nadvocate Mr. Mehta submitted that though submissions have been made
\nabout the promotion of sports, in fact, there is no policy and
\nsubmitted that on the one hand the Government has made a policy for
\npromoting the sports and sports persons and such attitude would on
\nthe contrary frustrate the very policy.  It was also incidentally
\nsubmitted that though the submissions have been made that there is a
\nwidespread irregularity by issuing such certificates, in fact,
\nreferring to the statistics and the number of certificates issued by
\neach State Association, he tried to emphasize that the number is not
\nso large and it could have been verified through each of the
\nparticipants who had submitted the certificates.\n<\/p>\n
46.\tReferring
\nto Special Civil Application No. 9831\/08 which is again regarding the
\nsports of athletics and the letter dated 12.6.2008 referred to by the
\nGovernment Pleader, it was submitted by learned advocate Mr. Mehta
\nthat it is a flip flop of the Government for which he again referred
\nto the letter dated 17.4.2008 and the policy at p. 337 in Special
\nCivil Application No. 9831 (athletics) and submitted, referring to p.
\n335-339, does the State Government policy require that the candidates
\nshould be given certificates for the sports in Gujarat only?  It was,
\ntherefore, submitted that once there is no dispute about the
\nrecognition and affiliation, the decision to cancel such certificates
\nor the tournaments behind the back of the petitioners and the
\nAssociations is in violation of the principles of natural justice and
\nfair play.  Again, he referred  to the letter from the Amateur
\nKabaddi Federation  at p. 83 in SCA No. 9754 and 9836 of 2008 and
\npointed out that the letter of Amateur Kabaddi Federation clarifying
\nthat there is no limitation of number of teams to be participating in
\nall India kabaddi tournaments from the host state which is Gujarat.
\nTherefore,  learned advocate Mr. Mehta submitted that the submission
\nof the learned Government Pleader that more than one team has
\nparticipated in the national tournament from Gujarat is also
\nmisconceived as the Federation has accepted and allowed such
\nparticipation of more than one team from the host State and therefore
\nit is merely an eye wash.\n<\/p>\n
47.\tLearned
\nadvocate Mr. Mehta submitted that the action of the respondent State
\nGovernment is required to be tested on the Wednesbury’s Test
\n(reasonableness). For that he submitted that it has to fulfill the
\nfollowing criteria:\n<\/p>\n
\t\t\tprocedural
\n\t\t\timpropriety<\/p>\n
\t\t\tillegality<\/p>\n
\t\t\tirrationality<\/p>\n
\t\t\tproportionality<\/p>\n<\/blockquote>\n
48.\tIt
\nwas submitted, emphasizing on this aspect, that it would be subject
\nto the judicial review.  He submitted that there is no procedure
\nfollowed before cancelling the certificates and it was merely on
\nassumption and presumption the impugned decision has been taken and
\ntherefore it is illegal. Again, he emphasized that it would also
\namount to illegality inasmuch as principles of natural justice have
\nnot been followed.  No show-cause notice or no opportunity has been
\nprovided which is in violation of Art. 14 of the Constitution. He
\nemphasized that this decision is also irrational inasmuch as it is on
\nassumption and presumption or suspicion and there is no basis,
\nmaterial or foundation for arriving at such a decision.  Referring to
\nthe proportionality, it was submitted that, whether the candidates
\nhave been given any show cause notice as to why the certificates
\nshould not be rejected? As they have not been given such opportunity,
\nit amounts to violation of the rules of natural justice inasmuch as
\nit involves civil consequences.\n<\/p>\n
49.\tLearned
\nadvocate Mr. Mehta, in support of this submission, referred to and
\nrelied upon the judgment of the Hon’ble Apex Court in the case of
\nGulzar Singh v. Sub-Divisional Magistrate and<\/a> anr., reported
\nin 1999(3) SCC 107 where the scheduled caste certificate was
\ncancelled and the Apex Court has observed that without issuance of
\nshow-cause notice, such an action of cancellation of the scheduled
\ncaste certificate was bad and in violation of the principles of
\nnatural justice.\n<\/p>\n
50.\tHe
\nalso referred to and relied upon the judgment of the Hon’ble Apex
\nCourt in the case of Rajesh Kumar & Ors. v. Dy. CIT and ors.,
\nreported in 2007(2) SCC 181 and referring to Head Note B and para 26,
\n23 and 48 pointedly referred to the observations, <\/p>\n
\t In
\nany event, when civil consequences ensue, there is hardly any
\ndistinction between an administrative order and a quasi-judicial
\norder. There might have been difference of opinions at one point of
\ntime, but it is now well settled that a thin demarcated line between
\nan administrative order and quasi-judicial order now sand
\nobliterated.\n<\/p>\n
Therefore,
\nhe emphasized that even if it is an administrative decision, bare
\nminimum principles of natural justice ought to have been followed.\n<\/p>\n
51.\tLearned
\nadvocate Mr. Mehta  also submitted that, therefore, the impugned
\ndecision dated 17.7.2008 violates every canons of fair play. It was
\nsubmitted that no reasons are also mentioned in the order itself
\nwhich is a necessary imperative.  In support of the submission, he
\nhas referred to and relied upon the judgment of the Hon’ble Apex
\nCourt in the case of Hindustan Petroleum Petroleum Corpn. Ltd. v.
\nDarius Shapur Chenai and ors.<\/a> reported in 2005(7) SCC 627 and
\nreferring to para 25 he submitted that the State cannot be permitted
\nto construe subsequently what has not been there in the order.  It
\nwas submitted that otherwise it would amount to encouraging
\nhighhandedness or arbitrariness.\n<\/p>\n
52.\tLearned
\nadvocate Mr. Mehta submitted that the contention which has been
\nraised is with regard to  whether the mandamus would lie and the
\nright of the petitioners. He strenuously submitted that the matter
\npertains to public employment and therefore  Art. 14, 19 and 21 would
\napply.  It was submitted that
\n5% marks which are claimed as a preference, which is sought to be
\ngiven to the sports persons like the petitioners would benefit them,
\nand therefore if such certificates are cancelled arbitrarily, it
\nwould cause prejudice and therefore they have a right to challenge
\nthe State action.\n<\/p>\n
53.\tIn
\nsupport of his submission, learned advocate Mr. Mehta has referred to
\nand relied upon the judgments of the Hon’ble Apex Court in the cases
\nof Bihar Public Service Commission (supra),  A.P. SRTC
\n(supra),  Union of India & ors. v. S. Vinodhkumar &
\nors. reported in (2007) 8 SCC 100 and Indian Airlines
\nOfficers’ Assn. v. Indian Airlines Ltd. & ors.<\/a>, (2007) 10 SCC\n<\/p>\n
684.  Therefore, he submitted that it would fall within the scope of
\njudicial review and the writ of mandamus would lie to set aside such
\narbitrary action of the respondent-Government.\n<\/p>\n
54.\tLearned
\nadvocate Mr. Kaushik Pujara submitted that he would supplement the
\nsubmissions made by learned advocate Mr. Shalin Mehta. It was
\nsubmitted that an impression is sought to be created there is
\nlarge-scale irregularity committed in issuing such certificates.
\nHowever, he submitted that if the facts are examined, it is contrary
\nto the facts. Learned advocate Mr. Pujara submitted that the decision
\nmaking process could be examined and what was the material before the
\nauthority to come to such conclusion and the respondents have failed
\nto establish that there was any basis or material to come to such
\nconclusion.  Again, he referred to the policy of the Government as
\nreflected in the Government Resolutions dated 25.2.1980, 1.8.1990
\netc. and submitted that on the one hand it is meant to encourage the
\nsports and sports persons and on the other such a decision is taken
\nwhich would cause prejudice to the candidates who are the sports
\npersons.  Learned advocate Mr. Pujara submitted that the verification
\nsaid to have been undertaken is also erroneous as it has to be in
\nlight of the Government policy in the form of Government Resolutions
\ndated 25.2.1980, 1.8.1990 etc.  These are the parameters within which
\nthe respondents are required to function and not beyond.  Therefore,
\nthe right of verification cannot be for a fishy inquiry.  Learned
\nadvocate Mr. Pujara submitted that there is no record as to which
\ncommittee, under what authority or power, has been made and who are
\nthe persons in the committee. What is the procedure followed and
\nthere has to be some minutes or record for such proceedings of the
\ncommittee. Therefore, learned advocate Mr. Pujara submitted that the
\nso-called exercise is merely a paper exercise and nothing is brought
\non record.\n<\/p>\n
55.\tAccording
\nto learned advocate Mr. Pujara, the so-called exercise for
\nverification is in fact for not giving sufficient opportunity to the
\ncandidates and he emphasized that once the affiliation of the State
\nAssociation with the national level Federation for different sports
\nis established, which is recognized by the Ministry of Youth Affairs
\n& Sports, Govt. of India, the matter would end there and the
\nGovernment has no business to make further scrutiny.\n<\/p>\n
56.\tAgain,
\nlearned advocate Mr. Pujara submitted referring to the Government
\nResolutions that this policy and the order are in the name of the
\nGovernor and, therefore, under Art. 161 it is a constitutional piece
\nof paper. It has some significance attached to it and necessary
\nimportance should have been attached to it which it deserves and it
\ncannot be ignored by such an arbitrary action that in spite of such
\npolicy to give promotion to the sports persons the Government may
\nignore the certificates for the sports.\n<\/p>\n
57.\tLearned
\nadvocate Mr. Pujara submitted that it is well settled that action of
\nthe Government has to be fair and reasonable and the fairness would
\nimply that fair opportunity is also given before the decision is
\ntaken. Therefore, learned advocate Mr. Pujara submitted that if the
\nprinciples of natural justice has been violated the action would be
\nbad and illegal.\n<\/p>\n
58.\tFor
\nthat purpose, the learned advocate submitted that since the case of
\nState of Orissa v. Dr. Binapani Devi<\/a> reported in AIR 1967 SC
\n1269 the law has been well settled and accepted and which has also
\nbeen followed including in the case of Mohinder Singh Gill v.
\nChief Election Commissioner, New Delhi and ors. Reported<\/a> in AIR
\n1978 SC 851.\n<\/p>\n
59.\tLearned
\nadvocate Mr. Pujara submitted that for the sports of kabaddi and
\nvolley ball no reasons are given and there is highhandedness and in
\nthe same manner they are also treated.\n<\/p>\n
60.\tLearned
\nGovernment Pleader Mr. Shah, therefore, in response to the specific
\ncontention that the decision dated 17.7.2008 refers to only 3
\nAssociations and therefore is required to clarify with regard to the
\ncertificates qua other sports.  In response to this, learned
\nGovernment Pleader Mr. Shah, on instructions from the Secretary,
\nPrimary Education and Secretary, Youth Affairs & Cultural
\nActivities, has stated that it will apply to all other such
\ncertificates for other sports also as Gujarat State Volleyball
\nAssociation has also disowned the certificates and clarifies
\nspecifically that no such certificates are valid and endorsement has
\nbeen made by the Secretary that such certificates are not with regard
\nto the tournament recognized by Gujarat State Volleyball Association.
\nSimilarly, learned Government Pleader Mr. Shah referred to Ball
\nBadminton tournament and submitted that such a sports is not
\nrecognized and therefore it has no relevance.  For that purpose he
\nreferred to SCA No. 9877 of 2008.\n<\/p>\n
61.\tLearned
\nGovernment Pleader has also produced the file for the perusal of the
\ncourt satisfaction as to how the decision was taken for the scrutiny
\nor verification of such certificates for which the camps were
\norganized.  He pointedly referred to the note by the Secretary,
\nPrimary Education, dt. 20.4.2008 and it has a reference to the
\ncertificates issued by the State Women’s Football Association,
\nWrestling Association and on that basis it was reflected in the
\nnoting that it is an irregularity which would affect the recruitment
\nprocess and ultimately the decision was taken that instead of
\ndebarring the candidates who produced such certificates for claiming
\npreference in the recruitment process, such certificates may not be
\nallowed and such candidates like the petitioners may be considered
\nfor the purpose of recruitment on merits along with other candidates.
\n It has also reference to the communication dated 15.7.2008 which is
\na letter from the Dy. Secretary, Education Department, to the
\nDirector of Primary Education. The note dated 20.6.2008 refers to the
\ncamp organized for the scrutiny or verification on 3 days, 28.5.2008,
\n31.5.2008 and 18.6.2008. Therefore, the learned Government pleader
\nstated that it is not a decision by any individual or one Secretary
\nbut has been considered at the highest level and the two departments
\nhave, after due verification and deliberation at the highest level,
\nconsidered the issue and the impugned decision has been taken.
\nTherefore, learned Government Pleader Mr. Shah has submitted that the
\ndecision making process is justified and if the conscious of the
\ncourt is satisfied that it is a bona fide exercise considering the
\nrights of the candidates (general candidates), can it be said to be
\nan arbitrary and illegal action?  Therefore, Mr. Shah further
\nemphasized, referring to earlier submission, that if the decision
\nmaking process is based on some material and cannot be said to be
\narbitrary, then, the scope of judicial review is well-defined and the
\ncourt may not exercise the equitable discretion under Art. 226 of the
\nConstitution of India.\n<\/p>\n
62.\tHe
\nalso referred to the group of petitions filed by learned advocate Mr.
\nD.A. Zala and dealing with the submission of learned advocate Mr.
\nZala  that the only objection was that such certificates were not
\nproduced along with Form No. 2 and therefore, the authorities may be
\ndirected to verify again along with Form No. 2.  Learned Government
\nPleader Mr. Shah submitted that it is not possible and it would also
\nnot be fair as once they have not produced it will not be relevant
\nand in any case the certificates are regarding the athletics or the
\ngames for which the certificates issued by the State Association have
\nnot been considered as valid. Therefore, the scrutiny along with Form
\nNo. 2 will not make any difference.\n<\/p>\n
63.\tLearned
\nadvocate Mr. Maulin Raval has also appeared and submitted that he
\nwould submit presenting the other side of the picture also when the
\npetitioners have come forward for equitable relief. He emphasized
\nthat though equitable relief is sought, the certificates issued by
\nthe Associations are required to be examined whether such
\nAssociations are affiliated to the National Federation and whether
\nthe National Federations are also recognized by the Ministry of Youth
\nAffairs and Sports, Govt. of India.  Therefore, learned advocate Mr.
\nRaval submitted that referring to he pleadings and documents that
\nrailway concession has been given or railway tickets have been given,
\ncannot be the criteria that the certificates are genuine or the
\nsports or the tournaments are genuine.  It was submitted that the
\ncandidates like the petitioners in whose favour such certificates are
\nissued cannot claim a right or a vested right.  He submitted that
\neven if the select list is cancelled, no hearing is necessary as
\nobserved by the Hon’ble Apex Court in the case of Union Territory
\nof Chandigarh v. Dilbagh Singh and ors.<\/a>, reported in AIR 1993 SC\n<\/p>\n
796.  He also referred to and relied upon the judgment of the Hon’ble
\nApex Court in the case of State of U.P. And anr. v. Om Prakash &
\nOrs., reported in AIR 2006 SC 3080.  He also referred to and
\nrelied upon the judgment of the Apex Court in the case of Khalid
\nHussain (Minor) v. Commissioner and Secretary<\/a> to Government of Tamil
\nNadu, Health Department, Madras and ors., reported in AIR 1987 SC
\n2074 and submitted that if the right is claimed under the policy
\nframed by the Government, then the Government has a right to
\nsupervise it for the implementation and to prevent any misuse or
\nabuse of the same.\n<\/p>\n
64.\t\tIn
\nview of the rival submissions, few facts, which are required to be
\nappreciated, are that the petitioners are the candidates, who have
\nbeen issued certificates of sports by the State Sports Association
\nfor their participation in different sports like women’s football,
\nvolley ball, athletics, wrestling, etc. and on the basis of such
\ncertificates, 5% mark as a weightage or preference is claimed in the
\nrecruitment process for the post of Vidhya Sahayak, for which an
\nadvertisement has been given and produced on record. The process of
\nrecruitment of Vidhya Sahayak has been undertaken in light of the
\ndirections given by this Court in the earlier Special Civil
\nApplication and therefore, different districts have issued public
\nadvertisements in or about March-2008. As stated in the advertisement
\nand on the basis of the policy of the Government to promote and
\nencourage sports as well as sports persons, 5% marks or preference is
\nto be given to such sports persons in the recruitment. Therefore, it
\nis on the basis of such policy in the form of the Government
\nResolutions dated 25th February, 1980, 1st
\nAugust, 1990 and 11th October, 2005 that such preference
\nis sought to be claimed by the petitioners  on the basis of the
\nsports certificate held by them. However, as it came to the notice of
\nthe respondents that there were some irregularities in issuance of
\nthe certificates of sports, exercise of scrutinising such
\ncertificates has been undertaken by the Committee by holding camps
\nand the State Sports Associations, which had issued the certificates,
\nwere called upon to produce the relevant material. For that purpose,
\nfiles were produced and a note dated 20th June, 2008 with
\nregard to verification reflects that how the irregularities came to
\nthe notice on scrutiny and what could be further measures and steps
\nwere considered and ultimately, two aspects were considered as to
\nwhether the applications of the applicants\/petitioners for
\nrecruitment of the post should be itself cancelled or only the
\ncertificates which have been produced should be treated as cancelled
\nand in the recruitment process even such candidates may be allowed to
\nbe considered on merits with others and on the contrary, the second
\noption was preferred considering the fact that for the irregularities
\nof its associations, the candidates like the petitioners may not
\nsuffer and they should be considered for the purpose of recruitment.
\nHowever, ignoring such certificate of sports which they might have
\nproduced for the purpose of preference. There is also recommendation
\nfor taking necessary steps against the associations and this has been
\napproved at the highest level. Further, on the basis thereof, again
\nthe Education Department addressed a letter to the Director of
\nPrimary Education dated 15th July, 2008 again focusing on
\nthis aspect of verification of such certificates.\n<\/p>\n
65.\t\tIt
\nappears that on the basis of scrutiny, the decision has been arrived
\nat  that irregularities have been committed in issuance of the
\ncertificates, which has led to issuance of general instructions in
\nthe form of the impugned decision dated 17th July, 2008,
\nwhich is challenged by the petitioners in the present group of
\npetitions before this Court. It is in this background of these facts
\nand circumstances that the rival submissions are required to be
\nappreciated.\n<\/p>\n
66.\t\tThe
\nsubmissions advanced by the learned Advocates appearing for the
\npetitioners are summarised as under:\n<\/p>\n
(i)\t\tThe
\nimpugned decision dated 17th July, 2008 is arbitrary,
\nillegal and in violation of the principles of natural justice and
\ntherefore, is violative of Article 14 of the Constitution of India.\n<\/p>\n
(ii)\t\tThe
\nimpugned decision is without any basis or material and it is based
\nonly on the presumptions and assumptions.\n<\/p>\n
(iii)\t\tIt
\nhas also been contended that the verification would imply only
\nverification as to whether the certificates are issued by the State
\nAssociations and are genuine or not and not beyond that. In other
\nwords, it has been submitted that once it is established and accepted
\nthat the State Associations have issued certificates of sports to the
\npetitioners, the State Association is the competent authority to
\nissue such certificate and no further scrutiny can be made and the
\nGovernment must follow their own policy for giving preference or
\nweightage of 5% marks in the recruitment.\n<\/p>\n
(iv)\t\tIt
\nis also contended that the respondent-authority and the State
\nGovernment has no right or authority to question the certificates or
\nits genuineness once it is established that they have been issued by
\nthe State Sports Associations, which have been duly affiliated to the
\nFederation at the National level, which is recognised by the Ministry
\nof Youth Affairs and Sports, Government of India.\n<\/p>\n
(v)\t\tThe
\nsubmissions have also been made that for same event or tournament, on
\nthe earlier occasion, certificates issued by some sports association
\nhave been accepted as valid for the purpose of recruitment, but,
\nthere is no reason why there is change in the attitude at the whims
\nand caprice of the respondent authorities.\n<\/p>\n
67.\t\tOn
\nthe other hand, Mr. Suneet Shah, learned Government Pleader for the
\nrespondent-State, has raised the contentions that recruitment for the
\npost of Vidhya Sahayak  is in the nature of public employment and
\nthere has to be transparency and merits. It is the role of the
\nGovernment to see that the once any policy is framed by the
\nGovernment, then, it is supervised in letter and spirit and the
\nGovernment would have right and obligation to verify the genuineness
\nand authenticity of the certificates and to see that the certificates
\nare according to the norms or not.\n<\/p>\n
68.\t\tThe
\ncontention has been raised, referring to the details of the
\ncertificates issued by the State Sports Associations and more
\nparticularly, three associations for which reference is made in the
\nimpugned decision dated 17th July, 2008, that illegality
\nhas been noticed in issuance of the certificates and organisation of
\ntournaments, and therefore, an opportunity has been given to such
\nassociations to clarify and when they had failed to submit necessary
\ndetails or material, the impugned decision has been taken. Therefore,
\nit is the contention that whether the decision of the Government can
\nbe said to be arbitrary, illegal and in violation of principles of
\nnatural justice and\/or Article 14 of the Constitution of India.\n<\/p>\n
69.\t\tIt
\nhas also been contended that the decision making process may be
\nconsidered and scrutinised by the Court and if there is any
\narbitrariness, the Court may interfere with. However, at the same
\ntime,  the learned Government Pleader has emphasised and submitted
\nabout the scope of judicial review in exercise of powers under
\nArticle 226 of the Constitution of India.  He has also emphasised as
\nto what right the petitioners have to challenge the decision.
\nRegarding approval or cancellation of the certificates issued by the
\nState Sports Associations, the learned Government Pleader has gone to
\nthe extent of submitting that it was a large scale irregularity and
\nfraud on the system, which was sought to be scrutinised, and after
\ngiving an opportunity, it was decided that such certificates were
\nirregularly issued by the State Associations for Sports and the
\nbenefits cannot be given as it would amount to giving undue advantage
\nto the petitioners, who, in turn, would steal a march over the
\nmeritorious general candidates.\n<\/p>\n
70.\t\tTherefore,
\nto appreciate the rival submissions of the learned Advocates for the
\nparties, it is not in dispute that it is the policy of the Government
\nin the form of the aforesaid three Government Resolutions, that was
\nevolved to give encouragement and promotion to the sports and sports
\npersons and it is on the basis of such policy of giving 5% preference
\nthat the petitioners have claimed 5% additional mark as preference in
\nthe recruitment to the post of Vidhya Sahayak.  Therefore, there
\ncannot be a dispute about the policy, which has been made with a good
\nobject. The trouble is said to have started at the later stage of
\nimplementation on some occasion. The petitioners, who are claiming
\nthis benefit or preference under the policy on the basis of the
\ncertificates issued by the Sports Associations of the State, are, in
\nfact, the beneficiaries of the policy and therefore, they can claim
\nthe benefit under the policy, but, they cannot be permitted to say
\nthat even if some policy is abused or mischief is played, the
\nGovernment will not have any say and the Government cannot monitor or
\nregulate the implementation of the policy, nor they can do scrutiny
\nto detect any such mischief.\n<\/p>\n
71.\t\tThe
\nfirst aspect, which is required to be considered, is as to what is
\nthe decision making process, which would be relevant for the purpose
\nof deciding the submissions with regard to arbitrariness, illegality
\nand violation of the principles of natural justice and Articles 14 to
\n20 of the Constitution of India. The Government, which has framed the
\npolicy, has right and in fact, obligation not only to implement but
\nalso to monitor and see to it that the object for which the policy is
\nmade or framed, is achieved and if in the observance or
\nimplementation of the policy, it has come to the notice of the
\nGovernment that some mischief or irregularity is committed, which
\nwould be counter-productive and would run rather counter to the
\nobject or purpose sought to be achieved by the policy, then, it is
\nobligatory on the part of the Government to take suitable measures to
\navoid any such mischief, which frustrates or runs counter to the very
\nbasic purpose of the policy. It is in light of this, referring to
\nvarious details by both the sides, that the submissions have been
\nmade. However, as discussed hereinabove, while recording the
\nsubmissions of both the sides, the facts, which have emerged, are
\nthat the State Sports Associations, which have affiliation to the
\nFederation, like in the case of State Women Football Association
\nhaving affiliation with All India Womens Federation recognised by the
\nMinistry of Youth Affairs and Sports, Government of India, and
\nsimilarly, other sports associations are having affiliation with the
\nFederation at National level, but, the issue or point which needs to
\nbe focused is not as regards the recognition or affiliation of the
\nState level Association with the Federation or Federation at National
\nlevel itself, but, the issue is with regard to the manner and method
\nin which the State Associations for different sports have issued
\ncertificates on the basis of the tournament or national level
\nchampionship said to have been organised, which has been highlighted.
\nFor that purpose, a reference can be made to few documents like in
\nSpecial Civil Application No.9574 of 2008, which is regarding State
\nWomen Football Association, the certificates are issued on the basis
\nof the tournament, which is said to have been organised at Anand.
\nReferring to Special Civil Application No.9574 of 2008 with regard to
\nState Women Football Association, a pointed attention was drawn at
\nPages 178 and 191 whereby the State Women Football Association was
\ncalled upon to clarify that a particular candidate had a
\nparticipation in the national level tournament. Similarly, few
\ncertificates are there with regard to the State level tournaments,
\nwhich are said to have been organised  in January-2007. The
\ncertificate at page 70 refers to the fact that a particular
\nparticipant has participated in the State Women Football Championship
\nheld at Ahmedabad on 16th January, 2007 and thereafter,
\nfrom which period to which period, it was held. Similarly, as
\nhighlighted, after announcement of the recruitment process,
\npermission is sought for organising the national level tournament,
\nwhich is granted by the federation in April and the date of the
\ncertificate is even before the concluding date of such national
\ntournament. Further, the details and statistics about the number of
\ncertificates issued by different associations during the same period
\nin the past have also been highlighted. Therefore, it is required to
\nbe examined that whether the certificates, which have not been
\napproved or cancelled by the State, could be in the first place
\nverified or scrutinised by the Government or not. As stated above,
\naffiliation and recognition of the State Sports Association is a
\nseparate issue, which may be considered at an appropriate level by
\nthe concerned Ministry of Youth Affairs and Sports, Government of
\nIndia, but, at the same time, it is also required to be appreciated
\nthat the Secretary, Youth Affairs and Cultural Activities, State of
\nGujarat, which is the authority for giving effect to and implementing
\nthe aforesaid Government Resolutions and the policy, would
\nundoubtedly have the right to scrutinise and monitor implementation
\nof the policy. Therefore, during the scrutiny, when it has come to
\nthe notice, the camps have been organised for the purpose of
\nverification. The respective State Associations have been called upon
\non different dates with the details and materials so as to justify
\nand verify as to whether the so called tournaments or national level
\nchampionships have been properly organised and was there any
\nsufficient participation as expected or required for the national
\nlevel championship or tournament.\n<\/p>\n
72.\t\tThe
\nlearned Government Pleader has referred to the guidelines of the
\nMinistry of Youth Affairs and Sports, Government of India, which
\nreads as  Guidelines for Assistance to National Sports Federations
\nand more particularly, paragraph 8.7, which provides that how the
\nnational level championship could be organised and it provides that
\n application on the prescribed proforma (Annexure VII) will be sent
\nto  MYAS with a copy to the ED (teams), SAI, three months before
\nthe date of the championship  (emphasis supplied). Further, it
\nprovides that the Federations shall take steps to ensure
\nparticipation of all the affiliated units in the national level
\nchampionship and in case less than 75% of the affiliated units
\nparticipate, the scale assistance will be reduced by 25% and no grant
\nshall be provided in case less than 50% of the affiliated units
\nparticipate\/Federations who will fail to organise championship for
\njunior and sub-junior categories will not be entitled for grant of
\nSenior category.\n<\/p>\n
73.\t\tThough
\nthese guidelines have been referred to by the learned Government
\nPleader, it has been contended by the learned Advocates for the
\npetitioners disputing these guidelines that these guidelines are only
\nfor the financial assistance and it has no application. Moreover, it
\nhas also been contended that once the State level Association has
\norganised the event or national level tournament with the approval of
\nthe national level federation, the same cannot be disputed and the
\ncertificates of participation issued to the candidates cannot be
\ndoubted, even if such a tournament is organised within a very short
\nspan of time after seeking the approval. The submission that it has
\nno relevance or has reference to only the financial assistance, is
\nmisconceived. The first paragraph, which refers to the introduction,
\nreads as under:\n<\/p>\n
 Sports
\nand games have been widely recognised as an essential ingredient of
\nHuman Resource Development. The Government of India attaches
\nconsiderable importance to development of sports in general and
\nachieving excellence in the Olympics and other international events
\nin particular. Performance of Indian team in important International
\nSports events has, however, remained for from satisfactory,\u00a0
\nwhich is a matter of serious concern for the Government. It has been
\nthe endeavor of the Government\u00a0 to streamline the procedures for
\neffective coordination among various agencies involved in promotion
\nof sports and extend required infrastructure, training and other
\nfacilities to the sports persons for achieving excellence in the
\ninternational events in the coming years.\n<\/p>\n
Over
\nthe years a number of National Sports Federations (NSFs) have come up
\nfor development of specific games\/sports disciplines. The Government
\nof India in achieving their objectives has actively supported these
\nFederations. Existing Guidelines for assisting National Sports
\nFederations had been reviewed and revised based on the experience of
\nour preparation for Asian Games, 1994 and Olympic Games, 1996 as well
\nas recommendations of the Committees set up for promotion of sports.
\nThe revised Guidelines were given effect from 10th July, 1997.\n<\/p>\n
\t\tThe
\nsubmission that the guidelines are only for the financial assistance
\ncannot be accepted. On the contrary, these guidelines are also for
\npromotion and encouragement of the sports and sports person  and it
\nappears that on the basis of such guidelines issued by the Ministry
\nof Youth Affairs and Sports, Government of India, the State
\nGovernment has evolved a policy in the form of the aforesaid
\nGovernment Resolutions.\n<\/p>\n
74.\t\tAnother
\nfacet with regard to the manner and method of organising the
\ntournament, which has reference to the same kind of procedural aspect
\nfor holding such national level tournament, also has to be
\nappreciated. Paragraph 8.7 of the aforesaid guidelines which provides
\nthat  application on the prescribed proforma (Annexure VII) has to
\nbe sent to MYAS and copy to the ED (teams), SAI, three months before
\nthe date of the championship . This again would clearly suggest
\nthat the period of three months has been stipulated or contemplated
\nin the guidelines for having wide participation in such national
\nlevel championship or tournament and the same, in turn, will have to
\nbe conveyed to different State Associations or such Sports
\nAssociation in the State having further affiliation at the district
\nlevel, who, in turn, can call for the entries from the participants,
\ncan have preliminary rounds for the selection of the candidates for
\nthe purpose of finalising the State’s team at the national level
\ntournament, which again will consume time, and therefore, a period of
\nthree months is contemplated, otherwise it may not be possible for
\ndifferent States, which are supposed to participate in the national
\nlevel tournament, to organise this by calling the entries from
\nvarious participants,  including the district units which are
\naffiliated to the State Association, and have a selection procedure
\non the basis of which they can select the State’s team for
\nparticipation at the national level tournament. It is in light of
\nthis  manner, in which the tournament, more particularly, as referred
\nto in Special Civil Application No.9574 of 2008, has been organised
\nraises doubt about the whole organisation of the national level
\ntournament. Further, as can be seen from the participation, even it
\nis evident that only few states had participated and more than one
\nteam from the State of Gujarat  had participated. Therefore, the
\nfirst issue which is raised is with regard to whether it can be said
\nto be a national level tournament with such a poor participation at
\ndifferent States or units. Another aspect is that more than one team
\nfrom the State of Gujarat have participated and therefore, more
\nnumber of participants have got certificates from the same tournament
\n for their having participated. Though  the learned Government
\nPleader, referring to the aforesaid guidelines, has strenuously
\nsubmitted that the idea is to have only one team for the State and
\nonly one team at the national level championship for the purpose of
\nparticipation, which is again disputed referring to other guidelines
\ntherein. The federation at the national level has clarified that more
\nthan one team can have the participation qua the host State
\n(State which organises the national level tournament).\n<\/p>\n
75.\t\tThere
\nis also reference to the guidelines by Indian Olympic Association and
\nits constitution, and more particularly, referring to Article-XXVII
\ntitled as  Miscellaneous , on page 23, the learned Government
\nPleader has emphasised on the aspect that for any camp, only one
\nsport association will have to be permitted in one State and it
\nimplies that it will be one State, one Unit. Clause (b) provides that
\n no national sports federation\/association shall affiliate a sports
\nUnit of any State\/Department that has not been affiliated\/recognised
\nby the State Olympic Association which is affiliated to the I.O.A.
\nAgain, a strong issue has been joined by the learned Advocates for
\nthe petitioners that the Indian Olympics Association and these
\nguidelines or the rules, have no application or bearing as it is
\nconfined to the Olympic games only. However, the list of members
\nprovided to these guidelines, which, in turn, include National Sports
\nFederation\/Association\/State Olympics Association and there is a
\nreference to the Gujarat Olympics Association. However, the larger
\nissue with regard to whether this Indian Olympics Association, its
\nconstitution and its guidelines will be applicable or not and if they
\nare strictly followed  and every State will have only one State level
\nteam  and again it will have an affiliation to the State level
\nOlympics Association, are the issues which are not required to be
\ngone into much details at this stage.\n<\/p>\n
76.\t\tAssuming
\nthat the Indian Olympics Association and the guidelines are not
\napplicable or even strictly one team for the State Unit is not to be
\nselected, still, the manner in which the tournament is organised and
\nthe certificates are issued by the State Sports Associations for
\nparticipation in the tournament has to be considered and therefore,
\nfor such reason, when it was brought to the notice of the Government,
\nthey have undertaken the scrutiny and camps were organised. The State
\nlevel Associations for different sports, as stated above, have been
\ngiven an opportunity to remain present for the purpose of
\nverification and verification was for this very purpose that when
\nthey are organising such tournament and issuing the certificates to
\nthe participants, then, they should have been in a position to supply
\nnecessary details for organising the tournaments and when it was
\nfound deficient that the national level championship or tournament,
\nas contemplated, was not organised  and when the respective
\nassociations have failed to satisfy the committee during the
\nscrutiny, that the impugned decision has been taken. Therefore, it is
\nat this stage that the submissions have been made with much emphasis
\nabout the scope of verification that the respondents have no
\nauthority to verify and ask for the details once it is shown that the
\ncertificates have been issued to the participants by the respective
\nState Associations, which are, in fact, having affiliation at the
\nnational level. This submission is misconceived as the verification
\ncannot be restricted to the only aspect of  issuance of the
\ncertificates by the respective State Associations, but, the real
\ncontroversy or the issue is with regard to the propriety, manner and
\nmethod of issuance of these certificates and it was to be scrutinised
\nas to whether the tournaments were organised by the State level
\nAssociation. Therefore, the scrutiny is not as to the factum of
\nissuance of the certificates by the State level Associations, but, it
\nis as to the propriety of issuing such certificates by the
\nassociations and in turn, the manner and method and genuineness of
\norganisation of tournaments by such State Associations on the basis
\nof which they have issued the certificates to the participants. It is
\non the basis of such certificates that the participants claim 5%
\nadditional mark as a weightage or preference in the recruitment.
\nTherefore, the verification does not necessarily imply verification
\nqua the factum of issuance of the certificate by the State
\nAssociation only.\n<\/p>\n
77.\t\tAnother
\nfacet of the argument, which has been made with much emphasis, is
\nwith regard to the aspect of verification, the manner and procedure
\nfollowed for verification, contending that it is arbitrary and in
\nviolation of the principles of natural justice, is required to be
\nappreciated. In view of the discussion made hereinabove, one is
\nrequired to pose a question as to whether the decision, which has
\nbeen taken by the committee after scrutiny after giving an
\nopportunity to the State Associations, can be said to be arbitrary or
\nin violation of the principles of natural justice. It is required to
\nbe emphasised that the petitioners are the beneficiaries as they have
\nbeen issued certificates as participants by the State Associations,
\nbut, the certificates of the State Associations are not approved or
\ncancelled by the respondents, which, in turn, may have the effect,
\nbut, if the certificates are not treated as valid one, then, it
\ncannot be claimed as a matter of right that the certificates have to
\nbe accepted. Moreover, for the purpose of verification of these
\ncertificates, there was no need to call the participants inasmuch as
\nthey would not have been able to give any further details or
\nmaterial, except the fact that they have been issued the certificates
\non their participation in the tournament held by the State
\nAssociations. However, at the cost of the repetition, it is required
\nto be emphasised that the verification was done for the purpose of
\nchecking the manner of organising the tournament and the method in
\nwhich the certificates have been issued, for which again the
\nrespective Sports Association only could have given the clarification
\nwith the material, which they are supposed to maintain as a sports
\nassociation and when they have failed to provide the material, that
\nthe impugned decision has been taken. Therefore, the associations
\nhave been given an opportunity in compliance of the principles of
\nnatural justice. The petitioners, who are only the beneficiaries or
\nclaiming right only on the basis of such certificates, cannot claim
\nany right and there is no question of violation of the principles of
\nnatural justice. They may have to accept and suffer the consequences,
\nwhich may follow, but, at the same time, one is also required to bear
\nin mind the other side of the coin that such certificates issued
\nwould be giving an opportunity to claim the preference to such
\ncandidates, which, in turn, would  cause prejudice to the general
\ncandidates. Therefore, though the submissions have been made with
\nmuch emphasis on the aspect of arbitrariness, violation of the
\nprinciples of natural justice and violation of Article 14 of the
\nConstitution of India, the same are without any substance.\n<\/p>\n
78.\t\tThe
\nlearned Advocates for the petitioners, as discussed above, have
\nreferred to various judgements, including the one in the case of Dr.
\nBina Pani Devi (supra), to emphasis on the aspect of
\nthe principles of natural justice, by contending that no order or
\naction could be taken without providing an opportunity of hearing if
\nit involves civil consequences or adversely affects the person. There
\nis no quarrel on this aspect and the proposition of law, which has
\nbeen time and again propounded and discussed by the Honourable Apex
\nCourt in the catena of decisions, but, the short point is with regard
\nto the standard or criteria of the principles of natural justice,
\nwhich is required to be applied or considered for the purpose of
\ndeciding the present group of matters. In other words, it is required
\nto be considered that whether the criteria or standards of principles
\nof natural justice have to applied for the purpose of the impugned
\ndecision and can it be said that there is violation of the rules of
\nnatural justice. It is also to be considered that whether any
\njustification or right with the petitioners to claim the personal
\nhearing even if the cancellation or non-approval of such certificate
\nmay have a bearing in light of the aforesaid observations of the
\nHonourable Apex Court in the case of Ajit Kumar Nag (supra).
\n The first aspect, which needs to be emphasised, is that direct
\nimpact of the decision would be on the association, whose
\ncertificates are not approved or cancelled, and they have not come
\nforward and in fact, they have supported the petitioners. The
\npetitioners, who are the beneficiaries of such certificates, cannot
\nbe permitted to say that irrespective of any irregularities or manner
\nand method in which the certificates are issued, once the State
\nAssociation has issued the certificates, they are entitled to the
\nbenefit and the respondent authorities or the Government has no right
\nwhatsoever to make any further verification and also even if they
\nhave found some irregularities after verification, they cannot
\ndisapprove or cancel the certificates so that persons like the
\npetitioners, who have been issued the certificates on participation
\nin the sports by the respective sports associations, can claim
\npreference in the recruitment. If that is accepted, it would rather
\namount to giving a go-by to the merits inasmuch as on the basis of
\nsuch certificates, the petitioners would be allowed to steal a march
\nover the general candidates. Therefore, again one has to keep in mind
\nthat the purpose or object of the policy of the Government is only to
\npromote sports and sports person, which cannot be permitted to be
\nabused or misused by any mischief, which, in turn, runs counter to
\nthe very purpose and object of the policy.\n<\/p>\n
79.\t\tA
\nuseful reference can be made to the judgment of the Honourable Apex
\nCourt in the case of Ajit
\nKumar Nag vs. General Manager (PJ), Indian Oil Corporation Ltd.,
\nHaldia & Ors.,<\/a> reported at (2005) 7 SCC 764
\nreferring to the aspect of principles of natural justice are required
\nto be appreciated. It is observed in paragraph-1 in the said
\njudgement  as under:\n<\/p>\n
 The
\nprinciples of natural justice are not rigid or immutable and hence
\nthey cannot be imprisoned in a straitjacket. They must yield to and
\nchange with exigencies of situations. They must be confined within
\ntheir limits and cannot be allowed to run wild. While interpreting
\nlegal provisions, a court of law cannot be unmindful of the hard
\nrealities of life. The approach of the Court in dealing with such
\ncases should be pragmatic rather than pedantic, realistic rather than
\ndoctrinaire, functional rather than formal and practical rather than
\n‘precedential’. In certain circumstances, application of the
\nprinciples of natural justice can be modified and even excluded. Both
\nin England and in India, it is well established that where a right to
\na prior notice and an opportunity to be heard before an order is
\npassed would obstruct in the taking of prompt action, such a right
\ncan be excluded. It can also be excluded where the nature of the
\naction to be taken, its object and purpose and the scheme of the
\nrelevant statutory provisions warrant its exclusion. The maxim audi
\nalteram partem cannot be invoked if import of such maxim would have
\nthe effect of paralysing the administrative process or where  the
\nneed for promptitude or the urgency so demands. The principles of
\nnatural justice have no application when the authority is of the
\nopinion that it would be inexpedient to hold an inquiry and it would
\nbe against the interest of security of the Corporation to continue in
\nemployment the offender workman when serious acts were likely to
\naffect the foundation of the institution.\n<\/p>\n
\t\tFurther,
\nas rightly emphasised while appreciating on this aspect about the
\njudicial review by the learned Government Pleader, the Honourable
\nApex Court has laid down the guidelines in its judgement in the case
\nof Bihar Public Service Commission & Ors. vs. Kamini &
\nOrs.,<\/a> reported in (2007) 5 SCC 519. In that
\ncase also, the Honourable Court was considering the aspect of
\nrecruitment process, eligibility conditions and qualification of the
\ncandidates and it was observed that the Court ordinarily would not
\ninterfere with the opinion of the expert committee. The Honourable
\nApex Court in this judgement has observed as under:\n<\/p>\n
 Therefore,
\neven if in 1993, some ineligible candidates were wrongly treated as
\neligible, the first respondent cannot insist that she also must be
\ntreated eligible though she is ineligible. In our considered opinion,
\n such an action cannot give rise to equality clause enshrined by
\nArticle 14 of the Constitution. It is well settled and needs no
\nauthority that misconstruction of a  provision of law in one case
\ndoes not give rise to similar misconstruction in other cases on the
\nbasis of the doctrine of equality. An illegality cannot be allowed to
\nbe perpetuated under the so-called ‘equality doctrine’. That is  not
\nthe sweep of Article 14.\n<\/p>\n
\t\tThese
\nobservations completely answer the contentions raised by the learned
\nAdvocates for the petitioners that similar other certificates issued
\nby the State Association with regard to the same tournament, have
\nbeen accepted by the respondents on the earlier occasion for the
\npurpose of recruitment and therefore, it would amount to violation of
\nArticle 14 of the Constitution of India, unless some of the
\ncandidates, who have already relied upon such certificates, are in
\njob on the basis of such certificates and therefore, it would deny
\nthe right to equality or equal treatment in the present recruitment
\nprocess of Vidhya Sahayak in the year 2008.\n<\/p>\n
80.\t\tFurther,
\nit is required to be addressed as to whether the petitioners can be
\nsaid to have any vested right to claim the preference under the
\npolicy based on such sports certificates. As discussed above, it is
\nrequired to be appreciated that the candidates have a right to be
\nconsidered in the recruitment and if there is a policy by the
\nGovernment for the additional weightage or preference, the same can
\nbe availed of subject to fulfillment of the criteria or norms laid
\ndown in the policy. For that purpose, the candidate has to fulfill
\nthe requirement of law and the Government shall have the right to
\nverify that whether the claim for preference made on the basis of the
\npolicy, satisfies the required norms or the criteria. Therefore,
\nagain it has a reference to the policy and the claim based on the
\npolicy subject to fulfillment of the required norms. In the present
\ncase, therefore, the claim made for preference on the basis of the
\ncertificates and the right to claim such preference is not denied
\nunder the policy, but, the claim of the petitioners is based on the
\ncertificates of sports irregularly issued by the State Associations,
\nwhich, in turn, have not been approved or cancelled referring to the
\nfactual aspect of scrutiny and verification. It is pertinent to note
\nthat in the recruitment process for Vidhya Sahayak, candidates like
\nthe petitioners are not debarred, nor they have been denied an
\nopportunity for applying and being considered for the post, but,
\ntheir claim for preference has been subjected to scrutiny and after
\nverification and scrutiny, it is denied on the ground that 5% marks
\nor preference cannot be claimed on the basis of the certificates
\nirregularly issued by the State Associations. In other words, the
\npetitioners cannot have any right to claim preference in absolute
\nterms that once the certificates are issued by the State
\nAssociations, they must get preference irrespective of the fact that
\nthe certificates were irregularly issued by the State Associations on
\nthe basis of the participation at the tournament or national level
\ntournament, as required under the policy. Therefore, one can have a
\nright to be considered in the recruitment process or for the post,
\nbut, he cannot claim preference or weightage in absolute terms. As a
\nmatter of fact, it is by way of an additional weightage or special
\ntreatment in favour of the persons like the petitioners to have an
\nadditional preference of 5% marks depending upon the genuineness of
\nthe certificate on the basis of which the claim is made.\n<\/p>\n
81.\t\tA
\nuseful reference can be made to the judgement of the Honourable Apex
\nCourt in the case of Mohd. Sartaj & Anr. vs. State of U.P.
\n& Ors.,<\/a> reported in (2006)2 SCC 315, which
\nis again regarding the service law in which the contention before the
\nCourt was that the appointment could not have been cancelled without
\nissuing prior notice or without giving an opportunity of hearing and
\ntherefore, it is in violation of the principles of natural justice.
\nThe Honourable Apex Court has negatived such contention observing
\nthat the appellant in that case did not hold any right over the post
\nand therefore, no hearing was required before cancellation of his
\ncertificate.  Therefore,  the submissions made by the learned
\nAdvocates for the petitioners relying upon various judgments of the
\nHonourable Apex Court regarding the principles of natural justice,
\narbitrariness and violation of Article 14 of the Constitution of
\nIndia, will not have any application and the submissions are devoid
\nof any merits.\n<\/p>\n
82.\t\tIn
\nthe case of Ajit Kumar Nag (supra), the
\nHonourable Apex Court has observed as under:\n<\/p>\n
 The
\nprinciples of natural justice are not rigid or immutable and hence
\nthey cannot be imprisoned in a straitjacket. They must yield to and
\nchange with exigencies of situations. They must be confined within
\ntheir limits and cannot be allowed to run wild. While interpreting
\nlegal provisions, a court of law cannot be unmindful of the hard
\nrealities of life. The approach of the Court in dealing with such
\ncases should be pragmatic rather than pedantic, realistic rather than
\ndoctrinaire, functional rather than formal and practical rather than
\n‘precedential’. In certain circumstances, application of the
\nprinciples of natural justice can be modified and even excluded. Both
\nin England and in India, it is well established that where a right to
\na prior notice and an opportunity to be heard before an order is
\npassed would obstruct in the taking of prompt action, such a right
\ncan be excluded. It can also be excluded where the nature of the
\naction to be taken, its object and purpose and the scheme of the
\nrelevant statutory provisions warrant its exclusion. The maxim audi
\nalteram partem cannot be invoked if import of such maxim would have
\nthe effect of paralysing the administrative process or where  the
\nneed for promptitude or the urgency so demands. The principles of
\nnatural justice have no application when the authority is of the
\nopinion that it would be inexpedient to hold an inquiry and it would
\nbe against the interest of security of the Corporation to continue in
\nemployment the offender workman when serious acts were likely to
\naffect the foundation of the institution.\n<\/p>\n
83.\t\tAnother
\nfacet of the argument, which has been emphasised, is that
\nnon-approval or cancellation of the certificate would amount to
\nblacklisting the association, which, in turn, will have civil
\nconsequences, is misconceived inasmuch as in support of this
\ncontention, a reference has been made to various judgements and
\npronouncements of the Honourable Apex Court. The learned Advocate has
\nemphasised referring to the judgement of the Honourable Apex Court in
\nthe case of Rajesh Kumar & Ors. vs. Dy. CIT & Ors.\n<\/p>\n
reported at 2007(2) SCC 181 and emphasising Head Note
\n(B), has submitted that it is observed in the said judgement as
\nunder:\n<\/p>\n
 In
\nany event, when civil consequence has ensued, there is hardly any
\ndistinction between an administrative order or quasi judicial order.
\nThere might have been difference of opinion at one point of time,
\nbut, it is now well settled that a thin demarcated line between an
\nadministrative order and quasi judicial order now stands
\nobliterated.\n<\/p>\n
\t\tMr.\n<\/p>\n
Mehta, learned Advocate, therefore, relying upon these observations
\nsubmitted that even though the impugned decision is an administrative
\ndecision, still it has to be in compliance with the principles of
\nnatural justice. He has also emphasised that the principles of
\nnatural justice are based on two basic pillars. There is no quarrel
\nwith regard to the proposition, but, this judgement was given in the
\nfacts of that case and will not have application in the present case
\ninasmuch as these observations are with regard to the procedure or
\nprinciples of natural justice to be observed by the statutory
\nauthority while exercising the powers under the statute, whereas in
\nthe facts of the present case, it is the claim made under the policy
\nwhich will have reference to the fulfillment of the norms and on the
\nfactual verification of such aspect, if sports certificates issued to
\nthe candidates like the petitioners are found not in consonance with
\nthe policy, then, the same may not be permitted to be relied upon.
\nTherefore, it cannot be said that there is any violation of the
\nprinciples of natural justice.\n<\/p>\n
84.\t\tFurther,
\nthe learned Advocate, Mr. Shalin Mehta, for the petitioners has also
\nreferred to the dictionary meaning of the word  blacklisting  to
\nemphasis that it would amount to excluding. These submissions are
\nagain misconceived inasmuch as the certificates are disapproved or
\ncancelled has a reference to the association, whose certificates are
\nnot approved, and only the association can have a grievance that
\nbefore taking such decision, bare minimum principles of natural
\njustice have to be kept in mind that they are not given any
\nopportunity of hearing. In the facts of the present case, the
\nrespective State Associations have been given sufficient opportunity.
\nNot only that, but, some of the associations have remained present,
\nbut, they could not fulfill or satisfy with material, which has led
\nto the impugned decision. Moreover, the very concept of blacklisting
\nwill not have any application in the facts of the present case
\nbecause, as contended by the learned Advocates for the petitioners
\nthemselves, the said authorities have no right to take any action for
\nthe respective associations or affiliation and if any further action
\nis required to be taken, then, it is a matter to be taken care of by
\neither the Secretary, Youth and Cultural Activities, State Government
\nor National Federation with whom such Sports Associations are
\naffiliated, meaning thereby, the recognitions of the State Sports
\nAssociations have not been affected or cancelled or suspended, their
\ngrant is also not affected or suspended and the petitioners, who
\nclaim only 5% marks as a preference in the recruitment process on the
\nbasis of the certificates issued by the State Associations, cannot
\nclaim that they have been blacklisted. The observations of the
\nHonourable Apex Court referring to the aspect of blacklisting in
\nseries of the judgements referred to and relied upon has no bearing
\nto the facts of the present case.  In this case, it was the same firm
\nor party, which was blacklisted, which will have some consequences
\nfor the purpose of its business, etc. and in that context, the
\nobservations have been made that before such an action, the
\nprinciples of natural justice have to be followed and an opportunity
\nhas to be given. In the facts of the present case, the respective
\nState Associations have been given an opportunity. Even if it is
\nassumed that it amounts to having some consequence, but, the impugned
\n decision for not approving or cancelling the certificates issued by
\nthem is taken after providing an opportunity of hearing in compliance
\nof the principles of natural justice. The principles of natural
\njustice cannot be stretched too far that it amounts to blacklisting
\nthe petitioners and therefore, before the non-approval or
\ncancellation of such certificates for the purpose of recruitment and
\nthe preference or weightage claimed by the petitioners on the basis
\nof such certificates, the petitioners should have been given an
\nopportunity of hearing. The submission that it is a civil consequence
\ninasmuch as it will deny the right to claim 5% weightage or
\npreference is, in fact, not the civil consequence, as observed in
\nthis judgement because the petitioners are only the beneficiaries of
\nthe certificates issued by the State Associations and if the benefit
\nis not allowed for the justified and valid reasons, the petitioners
\ncannot make any grievance that irrespective of the fact that the
\ncertificates issued by the State Associations are not approved or
\ncancelled, they had a vested right and therefore, such certificates
\nissued irregularly have to be accepted for the purpose of preference
\nor weightage in the recruitment. If that is allowed, it would amount
\nto encouraging the irregularity and abuse of the system. Though the
\nlearned Government Pleader has used harsh words of fraud on the
\nsystem, the Court would not go into the details minutely, but, it is
\nsuffice to say that merit cannot be permitted to be compromised and
\npersons like the petitioners cannot be permitted to claim 5% marks as
\nweightage or preference on the basis of irregularly issued
\ncertificates by the respective State Associations. It would rather
\nmar the chances of general candidates and give an undue preference,
\ndenying the very idea of equality and equal treatment under Article
\n14 of the Constitution of India. Therefore, the submissions, which
\nhave been made referring to the various judgements, have no
\napplication to the facts of the present case.\n<\/p>\n
85.\t\tMr.\n<\/p>\n
Shalin Mehta, learned Advocate for the petitioners, has also referred
\nto the judgement of the Honourable Apex Court in the case of Gulzar
\nSingh vs. Sub-Divisional Magistrate & Anr.,<\/a> reported in
\n1999(3) SCC 107 to emphasis that the scheduled caste
\ncertificate which was cancelled was not approved by the Honourable
\nApex Court and it was observed that it was incumbent upon the
\nauthority to issue a show cause notice. Again, this judgement will
\nnot have application to the facts of the present case inasmuch as the
\ncaste certificate, which was produced by the candidate himself in the
\nappointment, was then not accepted, whereas in the present case, the
\ncertificate issued by the State Sports Association for the purpose of
\npreference has a reference to the sports association which has issued
\nthe certificate and the manner and method as well as genuineness of
\nthe certificate issued on the basis of which the claim is made.
\nTherefore, this judgement will not have application to the facts of
\nthe present case. In that view of the matter, this judgement is also
\nrequired to be appreciated in light of the judgement of the
\nHonourable Apex Court on the point of  the principles of natural
\njustice in the case of Ajit Kumar Nag (supra),
\nwhich is a three Judge Bench decision.\n<\/p>\n
86.\t\tThough
\nthe submission has been made referring to the judgement in the case
\nof  Gulzar Singh (supra),
\nhowever, the judgement of the Honourable Apex Court in the
\ncase of Union of India vs. Dattatray & Ors.,<\/a>
\nreported in (2008) 4 SCC 612, also requires to be
\nconsidered wherein it has been specifically stated that the
\nappointment made on the false caste certificate deprived the genuine
\ncandidate  from employment and therefore, referring to the earlier
\njudgement in the case of State of Maharashtra vs. Milind,<\/a>
\nreported in (2001) 1 SCC 4, it has been observed that
\nit does not laid down any proposition of law that wrongful
\nappointment can be continued.\n<\/p>\n
87.\t\tThe
\nlearned Advocates for the petitioners have also strenuously submitted
\nthat the petitioners are not considered fairly and they have  a right
\nto be considered fairly and therefore, since these certificates are
\nnot approved or cancelled, it will have the effect for the purpose of
\nclaiming the weightage in the public employment and therefore,
\nArticles 14, 19 and 21 of the Constitution of India would apply. It
\nwas submitted that 5% marks claimed as preference ought to be given
\nand since the certificates are not approved or cancelled, it will
\ntake away their right to claim such preference, which, in turn, will
\nhave adverse effect and therefore, they have not been considered
\nfairly. In support of this contention, the learned Advocate, Mr.
\nShalin Mehta, for the petitioners has referred to and relied upon the
\njudgements of the Honourable Apex Court reported at (2007)
\n5 SCC 519, Bihar Public Service Commission & Ors. vs.
\nKamini & Ors.,<\/a> (2006)
\n3  SCC 674, A.P.SRTC & Ors. vs. G.\n<\/p>\n
Srinivas Reddy & Ors., (2007) 8 SCC 100, Union of
\nIndia &  Ors. vs. S. Vinodh Kumar & Ors<\/a> , and
\n(2007)<\/span>
\n10 SCC 684, Indian Airlines Officers’ Association
\nvs. Indian Airlines Ltd. & Ors. There<\/a> is no quarrel with
\nregard to the concept of right to be considered and right to be
\nconsidered fairly in the matter of public employment. However, it
\ncannot be stretched to the extent that they have a right to claim
\nsuch additional marks as a preference based on such certificate
\nissued irregularly irrespective of the manner and method in which the
\ncertificates are issued by the associations. The judgements referred
\nto and relied upon by the learned Advocate, Mr. Mehta, relate to the
\naspect of eligibility and it does not deal with the preference or
\nclaim based on some policy, which again will require fulfillment of
\nthe criteria of the norms for making such claim. Therefore, the
\njudgements cited will not apply to the facts of the case.\n<\/p>\n
88.\t\tAt
\nthe cost of the repetition, it is required to be mentioned that the
\ncandidates like the petitioners are not altogether excluded or not
\nallowed to participate in the recruitment process and they have also
\nequal right or opportunity, but, what has been denied is that they
\ncannot take undue advantage of 5% marks as a preference based on the
\ncertificates issued irregularly by the State Associations.\n<\/p>\n
89.\t\tThough
\nthe submissions have been made by the learned Advocate, Mr. Shalin
\nMehta, that the action of the State is required to be tested on
\nWednesbury’s test (reasonableness) and what would be the criteria of
\nreasonableness is (i) procedural impropriety, (ii) illegality, (iii)
\nirrationality, and (iv) proportionality, however, in light of the
\ndiscussions and submissions, it cannot be said that the impugned
\ndecision can be said to be arbitrary or illegal nor it can be said
\nthat the decision making process was without any basis and arbitrary
\nor based only on presumptions and assumptions, as sought to be
\ncanvassed. It is also required to be appreciated that for each and
\nevery aspect, there may not be any rules of procedure and in a given
\nsituation like in the present case, where the recruitment procedure
\nis required to be completed according to the schedule, which has been
\nundertaken for different districts and when such issue crops up, the
\nrespondent authorities may evolve their own procedure to verify in
\nthe larger interest of the candidates, it cannot be said that there
\nwas any procedural failure or that no opportunity was given inasmuch
\nas the committee has been formed and camps have been admittedly held
\nfor the purpose of verifications, notices have been given to the
\nrespective sports association to produce the records and the
\ncertificates and after giving such opportunity, if the decision is
\ntaken the same cannot be termed as arbitrary or in violation of the
\nprinciples of natural justice.\n<\/p>\n
90.\t\tThe
\nnext aspect  which is required to be considered which has been much
\nemphasised by the learned Government Pleader is with regard to the
\nscope of judicial review and interference under Article 226 of the
\nConstitution of India. He has referred to various decisions including
\nthe judgement of the Honourable Apex Court reported in 2006 (8)
\nSCC 200 with much emphasis on Head Note (B) and the
\nobservations made in paragraphs 12 and 18. There is no quarrel in
\nthat regard. It is observed in this judgement itself that the
\njudicial system is self restrained and in this paragraph, it has been
\nalso emphasised that if administrative decision or action is based on
\nirrelevant considerations or it  is excluded from consideration of
\nrelevant material, then, the interference would be justified. It has
\nalso been observed that when the Court is satisfied that there is
\nabuse or misuse of power and its jurisdiction is invoked, it is
\nincumbent upon the Court to intervene. Further, the observations
\nwhich need to be emphasised is it is needless trite that the scope of
\njudicial review is limited to the definition in the decision making
\nprocess and not the decision.\n<\/p>\n
91.\t\tIn
\nview of the submissions made by the learned Advocates for the
\npetitioners that the decision to hold such camps for verification has
\nbeen taken at whims and caprice or in fact, it is only a paper
\nexercise without any application of mind and there is nothing on
\nrecord to suggest as to how this exercise was undertaken and how the
\ncommittee was formed. Therefore, the original files were called,
\nwhich were placed for the perusal of the Court and the Court had,
\nover and above the affidavits, perused the files for the satisfaction
\nabout the decision making process which has been much emphasised by
\nthe learned Advocates. Therefore, to satisfy the Court  the files
\nwere perused in order to verify and examine the submissions made by
\nthe learned Advocates, as stated above. However, when the files were
\nproduced and examined, the learned Advocates have on one hand
\nconceded that it is the privilege of the Court to examine the files
\nor call for the files and on the other hand, have stated that it may
\nbe noted that nothing has been supplied to them, meaning thereby, the
\ncorrespondence or this confidential letter or notings has\/have not
\nbeen supplied to them.\n<\/p>\n
92.\t\tIn
\nthe opinion of this Court, it would be stretching too far in the
\nguise of principles of natural justice. It is in such circumstances
\nthat the observations of the Honourable Apex Court in the case of
\nAjit Kumar Nag (supra) are required to be
\nappreciated which have been quoted hereinabove.\n<\/p>\n
93.\t\tFurther,
\nit has been again emphasised that the decision dated 17th
\nJuly, 200 refers to only three associations and there is no decision
\nor reference about other associations and how the same could be made
\napplicable,  is again misconceived as the learned Government Pleader
\nhas clarified in light of the decision taken by the Government and
\nhas pointedly drawn the attention stating that for the Gujarat State
\nKabaddi Association, the tournament at Anand was not accepted as
\ngenuine and after verification it has been decided. The Gujarat State
\nKabaddi Association has addressed a letter to the Secretary Youth
\nServices and Cultural Activities dated 12th June, 2008,
\nwhich is placed on recored and  it is self explanatory inasmuch as it
\nis stated that recognised association will have a right to send a
\nteam for participation in the national level tournament or any such
\ntournament can be organised by the State Association. The Gujarat
\nState Amateur Athletics Association has not approved any such
\ntournament or allowed any club to participate in any tournament.
\nSimilarly, the Gujarat State Volley Ball Association has made an
\nendorsement, at the time of verification that they have disowned such
\ncertificate and it has been clearly stated that such certificates are
\nnot regarding any recognised tournament by the Gujarat State
\nVolleyball Association. Further, the Ball Badminton Association has
\nalso similarly given the certificate, but, the ball badminton is not
\na recognised sport by the State. Therefore, it has been made clear
\nthat the decision regarding non-approval or cancellation of the
\ncertificates will apply to all the sports, as stated hereinabove.\n<\/p>\n
94.\t\tThere
\nare few matters of the learned Advocate, Mr. Zala, where he has
\nstated that his clients are ready to go for verification inasmuch as
\nthe only objection was that Form No.2 was not submitted and
\ntherefore, the certificates are cancelled. However, the learned
\nGovernment Pleader has also clarified that it has reference to two
\ncertificates one is with regard to ball badminton and judo, which is
\nnot recognised, and the other is with regard to athletics, which has
\nbeen produced again has a reference to the same  limitations and
\ntherefore, there is no question of further verification that whether
\nForm No.2 was submitted or not.\n<\/p>\n
95.\t\tIt
\nis required to be noted that earlier Special Civil Application No.
\n4624\/07 was filed wherein also similar issue with regard to
\npreference claim of 5% marks was challenged and certificates issued
\nby Gujarat Wrestling Association was not found acceptable by the
\nDistrict  Primary Education Officer, Anand and there was a dispute as
\nto how such certificates can be rejected and, in fact, there was an
\nissue raised that the petitioners in those petitions were already
\nappointed claiming the benefit of 5% marks as a preference on the
\nbasis of the certificates and the Director of Primary Education was
\npermitted to make an inquiry and take appropriate decision.
\nSimilarly, in another petition filed being Special Civil Application
\nNo. 3102 of 2008 and Special Civil Application No. 3103 of 2008, this
\nCourt (Coram: Bhagwati Prasad, J.) had also observed that there is a
\nconsequence of the inquiry held earlier pursuant to the order passed
\nin the aforesaid Special Civil Application No. 4624\/07 and it was
\nalso emphasised that if the meritorious persons are losing at the
\nhands of the fake certificates, the State will formulate suitable
\npolicy so that meritorious persons may not become casualty.\n<\/p>\n
96.\t\tIt
\nis these circumstances, coupled with the fact that it has been
\nbrought to the notice of the Government that certificates by the
\nState Association have been issued irregularly or improperly, which
\nhas led to the exercise of scrutiny by organizing the camp and on
\nthat basis if it has been found that such certificates are issued not
\nproperly or as per the norms which would defeat the purpose or object
\nof the policy of the State Government for promoting sports and sports
\npersons and also at the same time causing prejudice to the rights of
\nthe general candidates for the recruitment process, in the opinion of
\nthe Court such an exercise cannot be said to be arbitrary, illegal
\nand in fact it has been done in compliance with and in proper spirit
\nof the directions and the orders of this Court in earlier litigation.\n<\/p>\n
97.\t\tAs
\nreflected and discussed hereinabove from the files  particularly the
\nnote dated 20.6.2008 by the Secretary, Primary Education and also
\nfurther letters and the notings, to which attention of the court has
\nbeen invited, it also makes it clear that it cannot be said to be
\narbitrary. The decision making process which has been challenged
\nemphasizing that it is arbitrary and\/or in violation of Art. 14 of
\nthe Constitution about rules of natural justice has no merit inasmuch
\nas such a decision has not been by any single individual or by one
\ndepartment, but it has been a process at different stages till the
\nhighest level and considering the different aspects , on the
\ncontrary, a lenient view has been taken that the candidates like the
\npetitioners who have produced such certificates for claiming
\npreference may not be debarred from the recruitment process but only
\nsuch certificates may be ignored or may not be considered and they
\nmay be allowed to  be considered along with other candidates in the
\nrecruitment process according to merits.  The submissions, therefore,
\nmuch emphasizing about the aspect of rules of natural justice or that
\nsuch a decision has been taken at the whims or without following any
\nprocedure or rules of natural justice and, therefore, is arbitrary
\nand in violation of Art. 14, is ill-founded.\n<\/p>\n
98.\t\tAs
\na matter of fact, as discussed hereinabove, the 5% marks claimed as
\nand by way of preference by the petitioners in the recruitment
\nprocess pursuant to the policy is, in fact, only a benefit which they
\nare claiming and they cannot have such a preference or any such
\nvested right to claim such preference regardless of the propriety and
\nscrutiny of the certificates of sports produced by them on the basis
\nof which they are claiming preference.  If that is permitted, it
\nwould amount to violating the principles of equality and fairness qua
\nthe general candidates and it would not be in consonance with the
\ndoctrine of legitimate expectation of the general candidates in such
\npublic employment.\n<\/p>\n
99.\t\tA
\nuseful reference is required to be made to the judgment of the
\nHonourable Apex Court in the case of Khalid Hussain
\n(supra),  in which
\ncase even for admission to MBBS, such claim  has been made for
\npreference based on the sports certificate and the same had been
\ndenied as observed by the Apex Court.  The Honourable Apex Court had
\nobserved that there is no guideline and therefore, such claim based
\non such certificate was declined. The same situation would also be
\nreflected even for this recruitment process inasmuch as in the
\npresent case also, the guidelines are issued by the State Government
\nfor promoting the sports and sports persons, which are also perhaps
\nin consonance with the guidelines of the Central Government referred
\nto hereinabove. However, the manner and method for accepting the
\ncertificates or the authority which will have a final say about the
\nvalidity of the certificate has been the bone of contention.
\nTherefore, though such policy has been evolved to give preference to
\nthe sports and sports persons in public employment, the Government
\nneeds to address the issues and in any case if at all the policy is
\nmaintained, it would require more clarity and details. Therefore,
\nthough it is a matter of policy to be considered by the Government,
\nbut, to avoid any such heartburning and also to avoid repeated rounds
\nof litigation, the entire policy requires reconsideration.\n<\/p>\n
100.\t\tFurther,
\neven if there is any such policy for the sports persons, then again
\nthere has to be specific guidelines which would be in consonance with
\nArticle 14 of the Constitution and also equality qua the general
\ncandidates.\n<\/p>\n
101.\t\tTherefore,
\nin light of the aforesaid submissions, it is required to be
\nconsidered that whether any relief should be granted qua only
\nthese petitions inasmuch as it would then again amount to allowing
\nsuch certificates partly and that would not be permissible. Even if
\nthe Government is directed to verify the certificates and takes its
\nown decision on the basis of Form No.2, as discussed above, the
\nAthletics Association itself has addressed a letter and therefore,
\nany such exercise would be futile. Therefore, the submissions made by
\nMr. Jhala, learned Advocate, that only on the ground that the
\ncertificates which have not been accepted may be directed to be
\nverified again cannot be accepted.\n<\/p>\n
102.\t\tIn
\nthe facts of the present case, therefore the process by which the
\nimpugned decision has been taken cannot be said to be arbitrary,
\nillegal or abuse or misuse of power. Therefore, in light of the
\ndiscussions made hereinabove, this Court is of the opinion that there
\nis no merit in the submissions advanced by the learned Advocates for
\nthe petitioners in this group of matters and the petitions deserve to
\nbe dismissed. Accordingly, all the petitions are dismissed in
\nlimine without any order as to costs.\n<\/p>\n
103.\t\tAt
\nthis stage, Mr. Pujara and Mr. Mehta, learned Advocates for the
\npetitioners, jointly submits that the Court vide the order
\ndated 23rd July, 2008 directed the State Authority to go
\nahead as per the GR or Circular dated 17th July, 2008,
\nbut, whatever list and process carried out has to be considered
\ntentative till July 28, 2008. The learned Advocates for the
\npetitioners submit that as the petitions  are dismissed, the
\npetitioners are desirous to pursue their remedy further. They,
\ntherefore, requested that the statement made by the learned
\nGovernment Pleader before the Court may be continued for a period of
\ntwo weeks. On the other hand, Mr. Shivang Shukla, learned AGP, has
\nstated that the learned Government Pleader is not available and
\ntherefore, in any case, when the petitions are dismissed, the interim
\nrelief or statement cannot be continued any further.\n<\/p>\n
104.\t\tAs
\nthe interim relief was granted earlier permitting the respondents to
\nproceed further and prepare the tentative list and thereafter, as
\nthis group of matters has been decided finally, interim relief
\nnormally would not have been required to be extended. However, as the
\npetitioners are desirous to challenge this judgement in appeal and
\neven otherwise, the process itself may take some time, it is directed
\nthat the respondent   State shall continue with the recruitment
\nprocess for Vidhya Sahayaks, but, no orders regarding
\nappointment to the post of Vidhya Sahayak shall be issued for
\na period upto 26th August, 2008.\n<\/p>\n
\tThe
\nRegistry is directed to keep the first 2 pages and the last page
\ncontaining the operative part of the  judgment in each of the group
\nmatters.\n<\/p>\n
[Rajesh
\nH. Shukla, J.]<\/p>\n
hari\/kamlesh*<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Patel vs State on 12 August, 2008 Author: Rajesh H.Shukla,&Nbsp; Gujarat High Court Case Information System Print SCA\/957420\/2008 76\/ 106 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9574 of 2008 With SPECIAL CIVIL APPLICATION No. 9575 of 2008 With SPECIAL CIVIL APPLICATION No. 9576 of 2008 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-179797","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nPatel vs State on 12 August, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/patel-vs-state-on-12-august-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Patel vs State on 12 August, 2008 - 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