Bombay High Court
Sushant Ulhasrao Kawade vs State Of Maharashtra And Others on 5 August, 2016
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2090 OF 2015
Sushant s/o. Ulhasrao Kawade,
Age: 26 yers, Occ.: Nil,
R/o. Sankalp, Sai Vihar,
Behind Hotel Prasad,
Ghulewadi, Tq.Sangamner,
Dist.: Ahmednagar PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Womens and Child Welfare Department,
Mantralaya, Mumbai
2. Maharashtra Service Public Commission,
Bank of India Building,
3rd Floor, Mahatma Gandhi Marg.
Hutatma Chowk, Mumbai 01.
3. Sandip Sambhaji Yadav,
Age: 39; Occ.: Service,
R/o. Vrindavan Bunglow,
Shivaji Nagar,
At Post Chendhre, Taluka Alibag,
Dist. : Raigad.
4. The Director of Sport and Youth
Services, Pune 5. RESPONDENTS
...
Ms.Pradnya Talekar, Advocate holding for
Mr.S.B.Talekar, Advocate for the petitioner
Mr.S.B.Yawalkar, AGP for Respondent - State
Mr.Avinash Deshmukh, Advocate for respondent
no.3
Respondent no.2 served
...
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2
CORAM: S.S.SHINDE &
SANGITRAO S.PATIL,JJ.
Reserved on : 01.07.2016
Pronounced on : 05.08.2016
JUDGMENT: (Per S.S.Shinde, J.):
Heard.
2. Rule.
ig Rule made returnable
forthwith, and heard finally with the consent
of the parties.
3. This Petition takes exception to the
impugned judgment and order dated 28.01.2015
in Original Application No.383/2013 passed by
the Maharashtra Administrative Tribunal,
Bench at Aurangabad, to the extent that the
petitioner is held to be ineligible for being
considered from the Sports Category. There is
further prayer seeking directions to
respondent no.2 to recommend the name of the
petitioner for appointment to the post of
CDPO, and further direction is sought to
respondent nos.1 and 4, to appoint the
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petitioner as Child Development Project
Officer (Group-A) w.e.f. 20.12.2013 and grant
all other consequential benefits including
arrears of pay and seniority.
4. It is the case of the petitioner
that the petitioner applied for the post of
Child Development Project Officer (Group-A)
pursuant to the advertisement no.221 of 2012
dated 23.02.2012 issued by the Maharashtra
Public Service Commission (for short 'the
Commission'). Out of total 11 posts of CDPO
(Group-A); one was reserved for sports
person. The Commission selected respondent
no.3 and recommended his name, vide
communication dated 28.03.2013. As a result,
respondent no.3 came to be appointed as a
Deputy Chief Executive Officer, Raigad, which
is equivalent to CDPO (Group-A), vide order
dated 20.12.2013. The petitioner, in support
of his claim of belonging to sports category,
submitted certificate issued by the Chairman,
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Vice-Chairman, Organizing Secretary, Honorary
Secretary General of Cricket Federation of
India.
5. It is further the case of the
petitioner that the 1st International Rajiv
Gandhi League Cricket Championship at
Panchkula, Haryana (India) was organized by
the Cricket Federation of Haryana under the
aegis of Cricket Federation of India. It is
submitted that the Cricket Federation of
India is affiliated to Kuala Lumpur Cricket
Association (KLCA), Malaysia. Kuala Lumpur
Cricket Association (KLCA), Malaysia, has
issued a declaration stating that it is an
affiliate of Malaysian Cricket Association,
which is an Associate Member of the
International Cricket Council (ICC). It is
further the case of the petitioner that out
of 15 players in the team representing India,
three belong to State of Maharashtra. The
petitioner was one of those three players,
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who were representing India in the 1st
International Rajiv Gandhi U-23 League
Cricket Championship. The Tribunal was wrong
in holding against his eligibility. The
cricket is not covered in the Olympic games
and, therefore, the question of affiliation
with the Olympic Committee did not arise.
Neither the Cricket Federation of India, nor
the Board of Cricket Control in India (BCCI),
nor the International Cricket Council (ICC)
is affiliated to Indian Olympic Association
(IOA) as well as International Olympic
Committee (IOC). It cannot be said that the
representation or participation in the
international team or national level team is
to be ruled out. The Indian Team could not
have participated in the International
Cricket Championship unless it is affiliated
to the International Cricket Council (ICC).
The petitioner secured the second position
being Runner-up, as a player of the Indian
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cricket team, at the 1st International Rajiv
Gandhi U-23 League Championship held at
Panchkula (Haryana). The eligibility criteria
prescribed for Group-A post in the Government
Resolution dated 30.04.2005 is two-fold.
First and foremost, the candidate must have
participated in International sports and
secured first, second or third position i.e.
gold, silver or bronze medal in sports
organized by the International Olympic
Committee. In the alternative, the candidate
must have participated in International
sports organized by a recognized Association,
whereas his selection should have been made
from the national team. The case of the
petitioner falls in the second category.
6. The learned counsel for the
petitioner submits that the learned Tribunal
did not consider the alternative criterion of
eligibility that being the participation in
International sports organized by a
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recognized Association when the candidate has
been selected from the national team. As a
matter of fact, the Deputy Director of Sports
and Youth Services, Aurangabad, had clarified
the alternative criterion of eligibility in
para 5 of the additional reply filed on
behalf of respondent no.4 on 11.12.2014. The
Tribunal was not correct in holding that no
document was tendered by the petitioner
showing that he fulfilled the eligibility
criterion, and therefore, he was not eligible
for the appointment against sports quota
reservation. However, the learned Tribunal
has rightly held that respondent no.3 was not
eligible to be considered to avail the
benefit of reservation from sports category.
It is submitted that the petitioner
represented India in International Sports
Competition, and therefore, was eligible to
avail the reservation meant for sports
category. The Government Resolution dated
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30.04.2005 provides two different categories
of eligibility criteria, such as the
candidate must have participated in
International sports and secured first,
second or third position i.e. gold, silver or
bronze medal in sports organized by Olympic
Committee. In the alternative, the candidate
must have participated in International
sports organized by a recognized Association
and his selection should have been made from
the national team. The Tribunal committed an
error in not considering the case of the
petitioner in second category, as per the
Government Resolution dated 30.04.2005.
The Cricket Federation of India was
affiliated to the International Cricket
Council (ICC) and at the same time, the
Cricket Tournament held at Panchkula
(Haryana) by the Kuala Lumpur Cricket
Association (KLCA), Malaysia, which is in
turn associated to Malaysian Cricket
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Association. Admittedly, the Malaysian
Cricket Association is not only associated
with but it is a member of the International
Cricket Council (ICC). Therefore, the
Tribunal ought to have appreciated the
aforesaid contention of the petitioner.
The Tribunal ought to have appreciated that
the teams of as many as 4 countries
participated in the Cricket Tournament held
at Panchkula (Haryana) by the Kuala Lumpur
Cricket Association (KLCA), whereas the
petitioner participated in the Indian team,
which was Runner-up, and therefore, had
secured the silver medal. As such, the
petitioner was eligible to be considered for
appointment to the post of CDPO from the
sports category. The Tribunal has not
properly appreciated that the qualifying
standard or the benchmark prescribed for
reserved categories has to be different, than
the benchmark prescribed for the General
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category candidates. The Tribunal ought to
have relied on the judgments of the Supreme
Court cited by the counsel for the petitioner
holding that the qualifying standards need to
be relaxed in respect of reserved categories,
particularly when there is no other eligible
candidate. The MPSC had relaxed the
qualifying marks prescribed for interview,
since except the petitioner no other
candidate was eligible to be considered for
appointment as CDPO, particularly when the
petitioner has secured just one mark less
than the qualifying marks prescribed.
7. It is submitted that the very object
for providing reservation for the candidate
from sports category would get defeated in
case the said policy which is meant for the
benefit of the sports person is not
interpreted liberally. The learned counsel
for the petitioner invites our attention to
the said Government Resolution, which is
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placed on record at Exhibit-O Page 80 of the
Compilation of the Writ Petition and submits
that the clause 4A of the said Government
Resolution provides that the candidate who
has participated in the International
Tournament in individual capacity or as a
member of team to represent the India and if
has secured first, second or third place or
gold, silver, bronze medal, then such sports
person is entitled for the benefits granted
by the said Government Resolution so as to
get appointment in the State Employment. It
is submitted that the Tournament in Kuala
Lumpur was organized; it was International
Tournament under the aegis of International
Cricket Council, and therefore, the benefit
of aforementioned Government Resolution ought
to have been given to the petitioner. It is
submitted that the petitioner secured highest
marks in written examination from the sports
category. However, the petitioner could not
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secure minimum 40 marks and the petitioner
was short by one mark. The learned counsel
for the petitioner relying on the judgment of
the Hon'ble Supreme Court in the case of Ram
Bhagat Singh and another Vs. State of Haryana
& another1 and on particular para 2 and 3 of
the said judgment, submits that the Supreme
Court in the facts of that case considered
the issue of fixation of the standard of
marks and observed that prescribing 45% of
marks in the aggregate in all the written
papers for the candidates from reserved
category has resulted in denial of
opportunity to the candidates from SC & ST
thus amounting to denial of equality of
opportunity in the jobs. The learned counsel
for the petitioner also invites our attention
to para 6 of the said judgment and submits
that the Supreme Court in the interest of
justice and keeping in view the
constitutional mandates, directed the
1 (1997) 11 SCC 417
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Government concerned to consider this
question as to what should be the minimum
percentage of marks necessary for the
administration. It was further directed to
the Government to make conscious decision
objectively before the next selections for
the posts in Haryana Judicial Service take
place, and determine a minimum percentage of
marks consistent with efficiency and the need
for ensuring equality of opportunity to
Scheduled Castes and Scheduled Tribes.
9. The learned AGP appearing for the
respondent - State relying upon the averments
in the affidavit-in-reply submits that in
view of the findings recorded by the
Maharashtra Administrative Tribunal, which
are in consonance with the documents placed
on record, the petition deserves no
consideration.
10. The learned counsel appearing for
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respondent no.2 relying upon the averments in
the affidavit-in-reply submits that as per
the provision mentioned in para 3.10.3 of the
General Instructions to the candidates given
on the website, the candidates who secured
41% and above in the interview are only
considered for recommendation. As the
petitioner secured 39 marks in the interview
the question of considering him for
recommendation does not arise. Respondent no.
3 secured 48 marks. While sending the
recommendations to the concerned Government
Department, the Commission specifically
mentions in the recommendation letter that
the certificates and other eligibility claims
of candidates be verified and only thereafter
the decision to appoint the candidate be
taken. In this case also, the Commission
specifically mentioned this fact in the
recommendation letter sent to the Government.
It is submitted that 3 candidates were called
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for the interview against 1 post reserved for
the sports category. The three candidates
namely (1) Smt. Deokate, (2) Shri Yadav i.e.
respondent no.3, and (3) Shri Kawade i.e. the
petitioner attended the interview and were
accordingly interviewed. Respondent no.3
secured 48 marks, therefore, his name was
recommended to the Government for
appointment. Smt. Deokate secured 41 marks
in the interview, however, due to
unavailability of the post, her name was not
recommended to the Government. The name of
the petitioner was not recommended as he
could secure only 39 marks; below the
qualifying marks of 41. It is submitted that
since the petitioner was disqualified in the
interview of the said post, and therefore,
the question of considering his case as
regards other aspects raised by the
petitioner does not arise.
11. The learned counsel appearing for
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respondent no.3 relying upon the averments in
the affidavit-in-reply submits that the writ
petition filed by the petitioner does not
deserve to be entertained, since the
petitioner did not secure minimum qualifying
marks. It is submitted that the petitioner
had represented the Team of Cricket
Federation of India and not the Indian Team.
The certificate placed on record by the
petitioner itself establishes beyond doubt
that he had not represented team India and /
or Team of the country, but had only
represented Team of Cricket Federation of
India. The petitioner having never challenged
muchless sought quashment of the decision of
respondent no.4 of declaring him to be
ineligible to claim the benefit of sports
reservation cannot pray for a direction to
appoint him as CDPO particularly on a post
reserved for the sports category person. It
is submitted that the petitioner has not
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added International Cricket Council as a
party respondent either before the Tribunal
or before this Court.
12. A bare reading of para 4 (A) of the
Government Resolution dated 30.04.2005
clearly shows and establishes that only such
tournaments / competitions are recognized by
the Government of Maharashtra, which are
conducted either by the International Olympic
Committee on its own or by the International
Federations of the concerned sport, which are
affiliated to the International Olympic
Committee. Therefore, when the said clause
is made applicable to petitioner's case, it
becomes explicit that the above named
competition held at Panchkula in Haryana was
neither conducted by the International
Olympic Committee on its own, nor was it
conducted by the International Federation
concerning the game of Cricket viz. the ICC
and therefore, it goes without saying that
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the petitioner does not fulfill the said
eligibility for claiming Sports reservation
as mentioned in the first part of para 4 (A)
of the Government Resolution dated
30.04.2005. The tournament held at Panchkula
in Haryana in which the petitioner claimed to
have participated was not conducted by the
ICC. Therefore, on this count also, the
petitioner does not fulfill the requirement
even under the said second part of para 4 (A)
of the Government Resolution dated
30.04.2005. The communication dated
16.12.2014 sent by respondent no.4 to the
Divisional Deputy Director of Sports and
Youth Services, Aurangabad, clearly conveys
not only that the ICC was / is the
International governing body of Cricket, but
it was only the Cricket Federation of India
had the Membership / Affiliation with the ICC
that the person like the present petitioner
was / is eligible to get the benefit of 5%
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job reservation under the sports category.
It is submitted that the International
Cricket Council (ICC) is only recognized body
governing Cricket and the Cricket Federation
of Haryana had conducted the tournament at
Panchkula under the aegis of the CFI.
13.
It is submitted that likewise, it
also needs consideration that the tournament
at Panchkula was clearly such a tournament
which was conducted either 'individually' or
on 'invitational basis' by the Cricket
Federation of Haryana and it had no
connection either with the ICC or with the
BCCI which is the Apex body of Cricket in
India. In a nutshell, it can be said that if
and when the petitioner's contention
regarding his eligibility is to be accepted
then it would mean rewriting of the very
policy of Sports Reservation introduced by
the State Government, because holding the
petitioner to be eligible would mean
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inclusion of even such tournament/s as the
one recognized in spite of the fact that the
same was/is not covered under the Government
Resolution dated 30.04.2005.
14. We have heard the learned counsel
appearing for the parties at length. With
their able assistance, perused the pleadings
in the Petition, grounds taken therein,
replies filed by the respective respondents,
short affidavit filed by the petitioner,
further affidavit and also rejoinder
affidavit. Upon considering the entire
material placed on record, we are of the
opinion that, Writ Petition No.2090/2015
deserves no consideration for the reasons set
out herein below:
15. The contention of the counsel for
the petitioner that he was part of the Indian
Team in the 1st International Rajiv Gandhi
U-23 League Cricket Championship organized by
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the ICC Youth Development Programme, and
therefore, the petitioner is entitled for the
appointment from the sports category is
devoid of any merits. It appears that the
petitioner participated in the sport of
Cricket conducted by the local affiliated
body of Cricket Federation of India, which
was affiliated to the Kuala-Lumpur Cricket
Association, which, in turn, was affiliated
to Malaysian Cricket Association. It appears
that the petitioner participated in the
sports of Cricket organized by the local
affiliated body, which cannot be considered
directly under the ICC or BCCI. The ICC is
an International Cricket Council. This is an
international body and all National Cricket
Councils have to be affiliated to the ICC.
BCCI is the Board of Control for Cricket in
India. This National body is affiliated to
the I.C.C. and all State Cricket Associations
have to be affiliated to the BCCI. National
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Test matches, one-day international matches
and 20-20 international matches are conducted
by ICC. The Maharashtra Cricket Association
is recognized as it is affiliated to BCCI.
The National Trophies like Ranji Trophy,
Irani Trophy, C.K. Naidu Trophy, Vijay Hazare
Trophy and Vijay Merchant Trophy are
conducted by the various State Cricket
Associations under the aegis of the BCCI.
Private Cricket tournaments not recognized by
ICC or BCCI or MCA and are not recognized by
any statutory cricket organization. Any
player who was played under any of the above
statutory bodies, is a recognized player by
the MCI / BCCIU / ICC. Therefore, it is only
when the player has participated in such
tournaments and secured first, second or
third position while participating in the
International tournaments for India, is
entitled to claim the benefit of provisions
of Government Resolution dated 30.04.2005 or
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06.05.2008 issued by the School Education and
Sports Department, Government of Maharashtra.
16. Therefore, in the facts of the
present case, the petitioner's participation
in the private cricket tournaments cannot be
considered for the purpose of granting
benefit of the Government Resolution dated
30.04.2005 issued by the School Education and
Sports Department.
The another contention of the
learned counsel for the petitioner that,
scoring 1 mark below the minimum standard
ought not to bar eligibility of the
petitioner has no any force and we are not
prepared to accept the said contention for
the simple reason that the petitioner
participated in the selection process,
knowing fully well that, securing 40 marks is
the Benchmark prescribed in the
advertisement. Therefore, having been
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participated in the selection process, it is
not open for the petitioner to contend that
the said criteria should be lowered down or
one grace mark should be given to the
petitioner when entire selection process is
over.
17.
In the light of discussions in the
foregoing paragraphs, we are unable to
persuade ourselves to cause interference in
the impugned judgment and order dated
28.01.2015 passed by the Maharashtra
Administrative Tribunal Mumbai Bench at
Aurangabad in Original Application No.383 of
2013 and grant any relief to the petitioner,
hence the Petition stands rejected. Rule
stands discharged.
Sd/- Sd/-
[SANGITRAO S.PATIL] [S.S.SHINDE]
JUDGE JUDGE
DDC
