J.Venkat Balaji, vs The State Of Andhra Pradesh,
2021 Latest Caselaw 2708 AP

        *HONOURBLE SRI JUSTICE D.V.S.S. SOMAYAJULU


                       +   W.P.No.11057 of 2021


% 29.07.2021
# J.Venkat Balaji
                                                    ... Petitioner


        Vs.
$ The State of Andhra Pradesh,
Rep. by the Chief Secretary,
Velagapudi,
Guntur District and another.
                                                  ... Respondents




! Counsel for the petitioner : Sri B.Adinarayana Rao
! Counsel for the Respondent No.1: Government Pleader for GAD
! Counsel for the Respondent No.2: Sri N.A.Ramachandra Murthy,
                                      Standing counsel.


> Head Note:


? Cases referred:
    1
        (1986) 1 SCC 264
    2
        (2016) 1 SCC 454
    3
      (2019) 8 SCC 67
    4
      (1986) 1 SCC 264
    5 2000 SCC Online Bombay 875
    6
     (1974) 2 SCC 323
    7
      (2011) 2 SCC 1
                                 2




       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU


                    WP.No.11057 of 2021
O R D E R:

"Whether the dog can wag the tail or the tail will wag the

dog" is the question in this case.

With the consent of both the learned counsel, the writ

petition is taken up for hearing.

Factual Matrix in Brief:

The petitioner is a candidate seeking employment in

Group-I of the State services. He has cleared the preliminary

and the main written examination. He is a sportsman, who

has played Competitive Tennis at a certain level. He seeks

employment under the 2% Sports quota. After qualifying in

the main examination, the petitioner was asked to submit his

eligibility certificates/sports certificates by an email dated

03.06.2021. The same were referred to a committee

constituted by respondent No.2. The said committee by its

order dated 31.05.2021 rejected the petitioner‟s case on the

ground that he has not represented India in an International

Competition, Multinational Competition as prescribed in

Form-1 of Annexure-III.

The stipulation in Form-1 is that he should have

represented the country in an International tournament is the

bone of contention. Rejecting his candidature on the basis of

what is mentioned in Form-1 only is not correct as per the

petitioner.

For Petitioner:

Learned senior counsel, Sri B.Adinarayana Rao,

appearing for the petitioner has taken this Court through the

relevant clauses of the notification dated 31.12.2018. He

draws the attention of this Court to clause 4 of the

notification which deals with reservations and in particular to

clauses 4.4 and 4.9 which are as follows:

4.4: The meritorious sportsman means a sportsman who has represented the State or the Country in a national or international competition or Universities in the Inter- University tournaments conducted by the Inter- University Boards or the State School team in the national sports/games/for schools conducted by the All India School Games Federation in any of the games, sports, mentioned below and any other games/sports as may be specified by the Government from time to time, in terms of Rule 2(10) of A.P.State and Subordinate Service Rules. (emphasis supplied) 4.9: The reservation to meritorious sports persons will apply as per G.O.Ms.No.13, GA (Ser-D) Dept., dated 23.01.2018, read with G.O.Ms.No.74, Youth Advancement, Tourism and Culture (Sports) Dept., dated 09.08.2012 & G.O.Ms.No.473, Youth Advancement, Tourism and Culture (Sports & YS) Dept., dated 03.12.2018.

All the three Government Orders mentioned in the

clause 4.9 are filed by the respondents. Of these,

G.O.Ms.Nos.13 and 473 are clarificatory in nature and amend

the existing G.O.Ms.No.74.

G.O.Ms.No.74 is the main G.O. that deals with

incentives to sportspersons and reservations of 2% of posts.

Learned senior counsel draws the attention of this Court to

clauses (ii), (ix) (x) (xii) and (xiv) which are as follows:

(ii) The performance of the individual in having obtained Medals/ participation in disciplines for deciding a meritorious sportsperson, against two percent (2%) sports quota as mentioned in Annexure-II to this order, shall be the criterion, keeping in view the participation in recognized sports disciplines as per Annexure-I to this order, or as may be revised by the Government from time to time.

(ix) In the quota of two percent (2%) set apart for sports reservation for meritorious sports persons, individual events have to be given preference over team events within a priority.

(x) Participation at higher level shall be considered only when it is supported by winning medals at the lower level.

(xii) The appointing authorities shall call for applications by publishing in leading news papers in English/Telugu/Urdu languages from meritorious sportspersons along with the certificates in Form-I, Form-II, Form-III and Form-IV as the case may be, vide Annexure-III enclosed to this notification and shall submit the same to the Sports Authority of Andhra Pradesh. After scrutiny by the Sports Authority of Andhra Pradesh, like genuineness of the certificates, verifying medals/ranks etc., the applications will be forwarded to a Committee at Government level in Youth Advancement, Tourism and Culture (Sports) Department and the said Committee shall finalise the proposals. The said Committee shall issue eligibility certificate for appointment under Sports quota.

(xiv) The eligibility certificate issued by the Committee shall be forwarded to the Recruiting Agency / Appointing Authority for appointment under sports quota in various categories of posts in different Departments on the basis of Merit-Cum- Sports Eligibility Certificate against the notifications issued by them.

Learned senior counsel also drew the attention of this

Court to the A.P. State and Subordinate Service Rules, which

are issued by the State by virtue of the powers conferred by

Article 309 of the Constitution of India. He draws the

attention of this Court particularly to the definition of a

meritorious sportsman in clause 2.19. The clause is as

follows:

2(19) Meritoirous Sportsman: - "Meritorious Sportsman" means a sportsman who has represented the State or the Country in a national or international competition or Universities in the Inter-University tournaments conducted by the Inter-University Boards or the State School team in the national sports/ games/for schools conducted by the All India School Games Federation in any of the games, sports, mentioned below:

and any other games/sports as may be a specified by the Government from time to time. (emphasis supplied)

Relying on all these clauses, learned senior counsel

argues that a meritorious sportsman is defined as a person

who has represented the State or Country in a national or

International competition, Inter-University tournaments or in

the national sports and games for schools conducted by the

All India Games Federation. Relying upon the petitioner‟s

certificates, the learned senior counsel points out that the

petitioner participated in the 54th National School Games,

Inter-University tennis tournament in 2011- 2012 and 2012-

2013. He also draws the attention of this Court to the

certificate dated 03.04.2021, which shows that the petitioner

represented the A.P. State School Team in „Lawn Tennis‟ in

the National Games for School at Delhi in December, 2008.

On the basis of these certificates and the definition of a

meritorious sportsman, it is argued that the petitioner meets

the requisite criteria. Relying upon G.O.Ms.No.74, the

learned counsel argues that Annexure-I of this G.O. describes

the 29 recognised sports disciplines. Annexure-II specifies

the priorities for recruitment on 2% reservations. It starts

with a Gold Medal in Olympics Games at item-1 and ends

with the Participation in State/Inter District Championship

for School Games at item-90. As per him, one excludes the

other. Learned senior counsel points out that nowhere in the

G.Os referred to above or in the advertisement, it is

mentioned that a person applying for Group-I post in the

APPSC under the Sports Quota should represent the Country

in an Olympics or in a Multinational competition only. It is

only in the Form-1 which is annexed to G.O.Ms.No.74 that it

is stated that the said Form-1 is for employment to Group-I

and Group-II services. The learned senior counsel submits

that the definition of a meritorious sportsman and the criteria

including the priorities do not limit the recruitment in Sports

Quota for Group-I only to people who have participated in

International competition or Multinational competition. He

submits that the Form cannot control the substantive portion

of the notification or the G.Os. The criteria fixed in the G.Os

and the notification cannot be curtailed/restricted by the

Form as per the learned senior counsel.

Relying upon the leading judgment of the Supreme

Court of India in Life Insurance Corporation of India vs.

Escorts Ltd. and Ors.1, the learned senior counsel argues

that the form cannot control substantive portion and draws

this Courts attention to the phrase that „the dog can wag its

tail and not vice versa‟. According to him, the form cannot

restrict or limit the criteria that is already fixed in the

notification and the G.O.

For the respondent:

In reply to this, Sri N.A.Ramachandra Murthy, learned

standing counsel argues that the respondent No.2 is an

employment agency; that as per the terms of the

advertisement, the sports certificates will be analysed/studied

by the Sports Authority of India, which will take a decision in

the matter. Thereafter, the matter will be referred to a

committee consisting of four (4) members. He relies upon

clauses (xii) and (xiii) of G.O.Ms.No.74. Learned counsel also

argues that the petitioner who participated in the selection

process and tried to get a selection cannot now turn around

and state that the conditions prescribed are incorrect. He

points out that Forms-1 to 4 are part of G.O.Ms.No.74 and

therefore, as per the conditions stipulated in Form-1, only a

(1986) 1 SCC 264

person who has participated in International competitions or

Multinational competitions can apply for Group-I post. He

relies upon the judgments reported in Madras Institute of

Development Studies and Ors. v. K. Sivasubramaniyan

and Ors.2 and Municipal Corporation of Delhi v. Surender

Singh and others3 to plead and argue that an unsuccessful

candidate, who has participated in the selection process

cannot question the clauses or the criteria/cut off marks that

are fixed. He presses into service the rule of estoppel to

defend respondent No.2.

Consideration by Court:

The short question for decision therefore is: whether the

contents of the form will prevail over the contents of the

notification?

Learned senior counsel Sri B.Adinarayana Rao stresses

the point and rightly submits that in the entire notification

that is issued, it is not mentioned that a person is eligible for

a Group-I post under the Sports Quota; only if he participated

in an International or Multinational competition. There is a

reference to G.O.Ms.No.74 in the advertisement in clause 4.9.

The body of the G.O.Ms.No.74 also does not state that only a

person, who has participated in an International or a

Multinational competition shall be entitled to apply for

(2016) 1 SCC 454

(2019) 8 SCC 67

Group-I post only. However, in Form-1 of the annexure, it is

mentioned as follows "Certificate to a meritorious

sportsperson for employment to Group-I and II posts service

under the State Government". Even the State and the

Subordinate Rules which are framed under Article 309 of the

Constitution of India do not limit the definition of a

meritorious sportsman to only a person who has participated

in an International or Multinational competitions. It is a

settled principle of interpretation that what is mentioned in a

note/form cannot be used with restrict or curtail to provisions

of the main Notification/G.O. or the State and Subordinate

Service Rules. A purposive interpretation is also necessary.

The contention of the State can only be accepted, if it

specifically mentioned that the Group-I posts are limited to a

certain category of meritorious sportsman only. The definition

of a meritorious sportsman in clause 4.4 of the notification

dated 31.12.2018 clearly states that meritorious person is

one who has represented the State or Country or Universities

or State School Games in any of the games mentioned and

any other games that are defined in clause 2(19) of A.P. State

Subordinate Service Rules. The A.P.State and Subordinate

Service Rules again define a „meritorious sportsman‟ as one

who has participated in national or International competition;

represented the Universities in Inter-University tournament or

State School Team in the national sports or games conducted

by the All India School Games. This Court notices that for

certain posts the notification is very clear. For example,

women reservation is not applicable to post code 4/5 (Rule

4.1). Physically Handicapped reservation is restricted to HH

and OH for post code 2; to OH for post code OH (4.2);

percentage of hearing impairment is defined in 4.5. Certain

certificates which are to be produced are defined with clarity

(4.3) (4.6) (4.11). Clause 5 and 6; define with clarity the rule

of "local" reservation; „local candidates‟ etc. The age limitation

for various posts; relaxation possible in this etc., are defined

for certain posts in clause 7 (para 7). Specific posts/ post

codes and age limits are given in the notification. Nowhere is

it stated in the notification or the G.O. that Group-I posts

under Sports Quota are reserved for participants in

international events only.

Therefore, it is clear that respondent No.2 is not right in

relying upon the fine print in an annexure/Form in

G.O.Ms.No.74 to deny the candidature of the petitioner on the

ground that for a Group-I post, he should have participated in

an International competition/Multinational competition. The

following case law also supports this conclusion. Para 69 of

Life Insurance Corporation of India v. Escorts Ltd.4

69.................The submission of Shri Nariman was twofold. He urged that para 24-A.1 was a statutory direction issued under Section 73(3) of the Foreign Exchange Regulation Act and, therefore, had the force of law and required to be obeyed. Alternately, he urged that it was the official and contemporary interpretation of the provision of the Act and was, therefore, entitled to our

(1986) 1 SCC 264

acceptance. The basis for the first part of the submission was the statement in the preface to the Exchange Control Manual to the effect:

"The present Edn. of the Manual incorporates all the directions of a standing nature issued to authorised dealers in the form of circulars up to May 31, 1978. The directions have been issued under Section 73(3) of the Foreign Exchange Regulation Act which empowers the Reserve Bank of India to issue directions necessary or expedient for the administration of exchange control. Authorised dealers should hereafter be guided by the provisions contained in this Manual."

There is no force whatever in this part of the submission. A perusal of the Manual shows that it is a sort of guide book for authorised dealers, money changers, etc. and is a compendium or collection of various statutory directions, administrative instructions, advisory opinions, comments, notes, explanations, suggestions, etc. For example, para 24-A.1 is styled as Introduction to Foreign Investment in India. There is nothing in the whole of the para which even remotely is suggestive of a direction under Section 73(3). para 24-A.1 itself appears to be in the nature of a comment on Section 29(1)(b), rather than a direction under Section 73(3). Directions under Section 73(3), we notice, are separately issued as circulars on various dates. No circular has been placed before us which corresponds to any part of para 24-A.1. We do not have the slightest doubt that para 24-A.1 is an explanatory statement of guideline for the benefit of the authorised dealers. It is neither a statutory direction nor is it a mandatory instruction. It reads as if it is in the nature of and, indeed it is, advice given to authorised dealers that they should obtain prior permission of the Reserve Bank of India, so that there may be no later complications. It is a helpful suggestion, rather than a mandate. The expression "prior permission" used in para 24-A.1 is not meant to restrict the range of the expression „general and special permission‟ found in Sections 29(1)(b) and 19(1)(b). It is meant to indicate the ordinary procedure which may be followed. Shri Nariman argued that none of the prescribed forms provided for the application and grant of subsequent permission. That may be so for the obvious reason that ordinarily one would expect permission to be sought and given before the act. Surely, the Form cannot control the Act, the Rules or the directions. As one learned judge of the Madras High Court was fond of saying "it is the dog that wags the tail and not the tail that wags the dog". We may add what this Court had occasion to say in VasudevRamchandraShelat v. PranlalJayanandThakar [(1974) 2 SCC 323 : AIR 1974 SC 1728 : (1975) 1 SCR 534] :

"The subservience of substance of a transaction to some rigidly prescribed form required to be meticulously observed, savours of archaic and outmoded jurisprudence."

Para 22 of Pramod Prabhakar Kulkarni v. Balasaheb

Desai Sahakari Sakhar Karkhana Ltd.,5.

22. The submission that the notice was invalid on the ground that it was not given in the form appended to the rules is equally without substance. The notice contained a clear statement of the grievances of the Petitioner and the manner in which he expected that it should be resolved. The employer responded to that notice in his reply as well. The forms contained in the rules cannot be elevated to a mandate. The notice must convey in substance what the status requires to be conveyed and that was what it conveyed in this case. In Life Insurance Corporation v. Escorts, [AIR 1986 SC 1370 : 1986 (2) SCC 264 : 1985 (3) Supp S.C.R. 909.] a similar insistence on form was rejected by the Supreme Court. Mr. Justice Chinnappa Reddy, speaking for the Court held thus: "Surely, the Form cannot control the Act, the Rules or the directions. As one learned Judge of the Madras High Court was fond of saying it is the dog that wags the tail and not the tail that wags the dog. We may add what this Court had occasion to say in Vasudev Ramchandra Shelat v. Pranlal Jayanand Thakar, [(1975) 1 S.C.R. 534 : AIR 1974 SC 1728 : 1974 (2) SCC 323 : 1975 (45) Com. Cas. 43.] :

"The subservience of substance of a transaction to some rigidly prescribed form required to be meticulously observed, sevours of archaic and outmoded jurisprudence."

Paragraph 15 of Vasudev Ramchandra Shelat v.

Pranlal Jayanand Thakar6, is also germane and relevant.

15. We find from the gift deed that both the donor and the donee have signed the document, under two headings respectively: "giver of the gift" and "accepter of the gift". Hence, we think that the broadly indicated requirements of Regulation 18 were also complied with by the contents of the gift deed. It is immaterial that the gift deed deals with a number of items so long as the requirements of Regulation 18 are fulfilled. After all, the observance of a form, whether found in the Transfer of Property Act or in the Companies Act, is meant to serve the needs of the substance of the transaction which were undoubtedly shown to have been completely fulfilled here. There is nothing in Regulation 18 or anywhere else in our

5 2000 SCC Online Bombay 875

(1974) 2 SCC 323

Company law to indicate that, without strict compliance with some rigidly prescribed form, the transaction must fail to achieve its purpose. The subservience of substance of a transaction to some rigidly prescribed form required to be meticulously observed savours of archaic and outmoded jurisprudence.

Lastly in Commissioner of Income Tax, Chennai v.

Tulsyan NEC Ltd.7 in para 20, it is reiterated that the form

prescribed under the rules can never have any effect on the

interpretation of the parent statute.

In the light of this case law, this Court is of the firm

opinion that what is printed in a form appended to the G.O

which is merely referred to in the advertisement/notification

cannot be used to deny the post to the petitioner in the

absence of a specific mention (in the notification or the G.O.)

that only people who participated in an International or

Multinational competition would be eligible for Group-I. It

cannot be said that the form will prevail over the content of

the advertisement/notification or the Government Order. The

e-mail issued by APPSC also directed the petitioner to submit

his certificates in „Form-I‟.

The two cases relied upon by the learned counsel for the

petitioner are also clearly distinguishable. In K.

Sivasubramaniyan's case (2 supra), the advertisement itself

contained a description of three qualifications that were to be

possessed. After the petitioner failed to get selected, he

challenged the said advertisement and the learned single

(2011) 2 SCC 1

Judge held that the petitioner having taken part in the

selection process without raising any objection cannot

challenge the selection process after being declared

unsuccessful. Similarly, in Surender Singh's case (3 supra)

also, the advertisement contained two clauses 25 and 26.

The prayer in the writ petition was to quash these two

clauses. The learned single judge held that the petitioners,

who are fully aware of clause 25, which provided discretion to

the Board to fix the marks, cannot challenge the same latter.

In the opinion of this Court, the fact situation obtaining in

this case is different from the two judgements relied upon by

the learned counsel for the petitioner.

This Court also opines that as a separate quota is

created and the 2% reservation for meritorious sportsman is

an exception to the general rule; there should be clear

language to exclude any person from the quota. Such clear

language is not found in the notification. This Court also

does not find any discernable rationale or reason to limit

Group-I posts only to sportsperson who participated in

International/Multinational competition. Annexure-II of

G.O.NO.74 lists the order of merit from a Gold Medal in

Olympics (Item 1) to Item 90 (Inter District School Games).

One excludes the other here too. In the opinion of this Court

as things stand this order of preference/elimination will apply

if many meritorious sportsmen apply for the posts.

The idea behind the Sports Quota is to encourage

meritorious sportsmen to get good jobs. In fact in India many

young men/women toil hard with wholly inadequate facilities

and against great odds to achieve a certain proficiency in

sports only with a view to get good employment. Apart from

playing Tennis at the University/National School Games, the

petitioner has also cleared the preliminary and main

examination of Group-I which is a highly competitive

examination and the prime examination for the State Civil

Services. His aspirations and dream for a secure Government

job in the opinion of this Court cannot be crushed by a

pedantic interpretation. A purposive interpretation to ensure

that the scheme serves its actual purpose is needed in the

circumstances.

CONCLUSION:

This Court holds that the tail cannot wag the dog and it

is the dog alone that can wag the tail. Therefore, as things

stand and as the present notification/G.O. do not fix any

clear criteria, the petitioner is entitled to a relief.

The writ petition is, therefore, allowed. The respondents

are directed to consider the case of the petitioner under the

meritorious sports category for the 44 carry forward posts

and 125 vacancies. No order as to costs.

As a sequel, the miscellaneous petitions, pending if any,

shall stand closed.

___________________________ D.V.S.S.SOMAYAJULU, J Date: 29.07.2021 Note: L.R. copy be marked.

KLP