Vivek Balkrishna Mahajan vs The State Of Maharashtra And ...
2016 Latest Caselaw 2301 Bom

                                                             9395.2015WP.odt
                                           1




                                                                       
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                              BENCH AT AURANGABAD




                                               
                             WRIT PETITION NO.9395 OF 2015 


              Vivek Balkrishna Mahajan,  




                                              
              Age 25 Years, Occu. Education,  
              R/o. 19-B, Ramanand Nagar,  
              Jalgaon, Taluka & 
              District Jalgaon                  PETITIONER




                                      
                        VERSUS 
                             
              1]       The State of Maharashtra 
                       Through its Secretary,  
                            
                       School Education & Sport Department,  
                       Mantralaya, Mumbai.  

                       [Copy to be served on Government 
                       Pleader, High Court of Bombay,  
      


                       Bench at Aurangabad] 
   



              2]       The Director,  
                       Directorate of Sports & Youth Services,  
                       State of Maharashtra, Pune  





              3]   The Controller,  
                   Rationing & Director of Civil Supply,  
                   Mumbai 
                                                  RESPONDENTS
                                     ...





              Mr.S.S.Jadhavar, Advocate for the Petitioner 
              Mr.S.B.Yawalkar, AGP for Respondent Nos.1  to 
              3.      
                                     ...
                               CORAM:  S.S.SHINDE & 
                                       V.K.JADHAV,JJ.       

Reserved on : 21.04.2016 Pronounced on : 05.05.2016

9395.2015WP.odt

JUDGMENT: [Per S.S.Shinde, J.]:

Rule. Rule made returnable

forthwith, and heard finally with the consent

of the parties.

2] Heard the learned counsel appearing

for the respective parties.

3]

It is the case of the petitioner

that the petitioner is entitled to claim

benefit of reservation of sportsmen category.

MPSC had issued an advertisement for the

posts of clerk-cum-typist, providing

reservation of sportsmen category to some of

the posts. The petitioner, being eligible

for reservation of sportsmen, submitted an

application claiming reservation of sportsmen

category, in response to the said

advertisement.

4] It is further the case of the

petitioner that after following due process

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of selection, the petitioner was selected as

against a post reserved for sportsmen

category. In view of the selection of the

petitioner as against a post reserved for

sportsmen category, his claim of sportsmen

category was referred by respondent no.3 to

the office of respondent no. 2 for

verification. It is the case of the

petitioner that without verifying relevant

aspects of the matter, respondent no.2 was

pleased to reject claim of the petitioner as

against sportsmen category, and the claims of

other similarly situated candidates have been

validated by respondent no.2. In the light

of rejection of the claim of the petitioner

as against sportsmen category, respondent no.

3 was pleased to cancel selection of the

petitioner by the impugned order.

5] The learned counsel appearing for

the petitioner submits that the office of

respondent no.2 has verified and approved the

9395.2015WP.odt

claim of other similarly situated candidates

for entitlement for additional marks /

weightage of the reservation of sportsmen

category. It is submitted that the petitioner

was selected for the post of clerk/typist in

view of the advertisement dated 20th February,

2013, and his name was recommended along with

other selected candidates to the State

Government. In view of the recommendation

made by the MPSC, respondent no.1 has issued

a Government Resolution dated 7th April, 2014,

declaring list of the candidates, who have

been selected for the post of Clerk / Typist

in the office of the State Government,

proposing issuance of appointment order in

their favour in view of their selection made

by the MPSC. The petitioner's name was at

serial no. 139 in the select list published

along with the Government Resolution dated 7th

April, 2014. The petitioner was selected

against a seat reserved for sportsmen

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category. Therefore, his claim was forwarded

by respondent no.3 to the office of

respondent no.2 for verification by covering

letter dated 22nd April, 2014. It is

submitted that the Maharashtra Administrative

Tribunal [in short 'MAT'] has not properly

considered the contentions of the petitioner

that the petitioner, being a member of

successful team in the State Level Softball

Championship is entitled for reservation of

the sportsmen category. It is submitted that

the similarly situated candidates have been

granted benefit of reservation of sportsmen

category, who have been participated in the

softball Championship arranged by the

Maharashtra State Softball Association. It

is submitted that respondent no.2 cannot

treat similarly situated persons in different

way. Therefore, relying upon the pleadings

in the Petition, annexures thereto, the

learned counsel appearing for the petitioner

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submits that, the Petition deserves to be

allowed.

6] On the other hand, the learned AGP

appearing for the respondent - State and

State Authorities, relying upon the

affidavit-in-reply filed by one Mr. Rajkumar

Dattatraya Mahadawad, working as Deputy

Director of Sports and Youth Services,

Aurangabad Division, Aurangabad, made

following submissions:

7] Respondent no. 3 vide his letter

dated 22nd April, 2014, has submitted sport

certificate issued in favour of the present

petitioner to respondent no.2 for

verification. As per the directives of

Government Resolution dated 30th April, 2005,

the medal winner in the State Level

competition held to be eligible for the

benefits of 5% job reservation under the

sports category. The said competition /

9395.2015WP.odt

sport event has to be organized by the State

Association of the respective sports and

games, which is affiliated to the Maharashtra

Olympic Association during the competition

period. At the time of said competition, the

Maharashtra State Softball Association does

not have an affiliation of the Maharashtra

Olympic Association. Therefore, in view of

the provisions under the Government

Resolution dated 30th April, 2005, any player

who has secured medal in the said competition

does not fulfill the eligibility criteria as

specified in the said Government Resolution.

The learned AGP also invited our attention to

the Government Resolution dated 14th July,

2009, issued by the School Education and

Sports Department, Government of Maharashtra,

Mantralaya, Mumbai and submits that, as per

the provision in the said Government

Resolution, the present petitioner does not

fulfill the requirement of eligibility

9395.2015WP.odt

specified therein. The Indian Olympic

Association has amended its Constitution in

the Annual General Assembly, held on 12th

February, 2011 and accordingly the Indian

Olympic Association has de-recognized the

National Sports Federations which includes

the Softball Association of India, vide their

letter dated 11th July, 2011.

8] It is submitted that the tournament

in which the present petitioner has

participated and secured third position, was

not organized by the State Association, which

is affiliated to Maharashtra Olympic

Association. Further, the said tournament

was conducted by the Maharashtra State

Softball Association which is affiliated to

Softball Association of India. However, the

Indian Olympic Association vide letter dated

11th July, 2011 has de-recognized the Softball

Association of India. It is pertinent to

9395.2015WP.odt

note that without having recognition to

Softball Association of India, Maharashtra

State Softball Association has conducted the

said competition during the period from 8th to

10th December, 2012. Hence, the sports

certificate of the present petitioner was

treated as invalid and the decision was

communicated to the petitioner, and

therefore, the present petitioner is not

eligible to receive any benefit of 5% job

reservation scheme, prescribed for the

welfare of the meritorious sports person. It

is submitted that the present petitioner has

misread the provision in the Government

Resolution dated 30th December, 2013. It is

submitted that in the said Government

Resolution it was made clear that with effect

from 1st March, 2014, verification of the

sport certificate will be done. Therefore,

relying upon the averments in the affidavit-

in-reply, the learned AGP submits that the

9395.2015WP.odt

Petition is devoid of merit, and the same may

be rejected.

9] We have given careful consideration

to the submissions of the learned counsel

appearing for the petitioner and the learned

AGP appearing for the Respondent - State.

With their able assistance, perused the

pleadings and the grounds taken in the

petition, annexures thereto, affidavit in

reply and annexures thereto. Admittedly, the

petitioner's selection was in the year 2014.

There is no force in the contention of the

learned counsel appearing for the petitioner

that the similarly situated candidates have

been extended benefit of 5% reservation from

the sports category. It is not the case of

the petitioner that the candidates who have

been granted benefit of the Government

Resolution dated 30th December, 2013 were

selected from the selection process which was

9395.2015WP.odt

conducted after issuance of the said

Government Resolution.

10] It is true that by the Government

Resolution dated 30th December, 2013, as one

time measure the Government of Maharashtra

decided to re-examine the certificate if

submitted prior to 28th February, 2014, by

the concerned Department, since at the

relevant time the sports persons were not

aware about the decision taken by the Indian

Olympic Association withdrawing recognition

to the National Sports Federations under

whose supervision the sport activity was

conducted and the certificates are issued in

favour of such candidates. However, in the

said Government Resolution itself, it was

made clear that from 1st March, 2014, no

verification of the sports certificate will

be done. Therefore, upon perusal of the

contents of the said Government Resolution,

it appears that as one time measure the said

9395.2015WP.odt

exemption was granted to the sports person

who participated in the selection process for

re-verification for their sports certificate

provided that if certificate is submitted

through the concerned Department on or before

28th February, 2014. The petitioner's case

is not from the same selection process of the

candidates to whom aforementioned exemption

has been granted. Therefore, the contention

of the petitioner that there is

discrimination by the respondents, deserves

no consideration. It is not necessary to

reiterate the contentions raised by

respondent nos. 1 and 3 in their affidavit-

in-reply. Suffice it to say that those are

keeping in view the decision taken by the

Indian Olympic Association and the decision

taken by the State Authorities.

11] The contentions raised by respondent

no.2 in the affidavit in reply opposing the

Petition are in consonance with the relevant

9395.2015WP.odt

Government policy prevailing at the relevant

time. It has come on record that the

Maharashtra State Softball Association does

not have an affiliation of the Maharashtra

Olympic Association and also the Indian

Olympic Association has de-recognized the

National Sports Federations which includes

the Softball Association of India in the year

2011.

12] The respondent has placed on record

inter se communication between the Secretary

General, Indian Olympic Association addressed

to the National Sports Federations, dated 11th

July, 2011, [Exhibit-R2 Page-69]. The

contents of the said letter reads thus:

IOA/Recogn./107/2011/316 July 11, 2011

To, The National Sports Federations (List attached)

This is to inform you all that the Constitution of the Indian Olympic

9395.2015WP.odt

Association was amended in the Annual General Assembly on 12th February, 2011.

As per the amended Constitution, the National Sports Federations and State Olympic Associations (list at annexure

'A') which are affiliated with the Indian Olympic Association will only be its members and none else. There shall be no

category of recognized members henceforth. Amended Constitution has been uploaded in

the website www.olympic.ind.in.

Yours faithfully,

(Randhir Singh) Secretary General

Therefore, what decision is to be

taken by the Indian Olympic Association is

within the domain of the said Association,

and aforementioned decision was taken by the

said Association in the year 2011 itself.

Upon perusal of the letter dated 7th August,

2014, written by the Joint Director, Sports

and Youth Activities, Maharashtra State, Pune

to the Controller, Rationing & Director of

Civil Supply, Mumbai, it clearly mentions

9395.2015WP.odt

in clause 9 (2) of the said letter as under:

vUo;s dzhMk izek.ki=kph iMrkG.kh dsyh vlrk] lnj [ksGkP;k la?kVusph ekU;rk फेबुवारी 2011 P;k ijhi=dkUo;s vk;-

vks-,- us dk<wu Vkdysyh vkgs- R;keqGs gs izek.ki= vik= vkgs- ;kLro शी िववेक बाळकृषण महाजन gs mesnokj vkj{k.kkarxZr inkdfjrk foghr dsysyh [ksGfo"k;d vgZrk iw.kZ

djhr ukghr

True translation of the clause 9 (2)

of the said letter done by the Translator, is

as under:

9 (2). When the Sport Certificate is verified, the

recognition of said Sport Organization has been

withdrawn by I.O.A. vide Circular dated Feb.2011.

Therefore this certificate is invalid. Hence the

candidate - Shri.Vivek Balkrishna Mahajan is not

fulfilling the sport related qualification required

under reservation provided to the Posts.

Upon careful perusal of the

aforementioned portion from the said

communication, it is abundantly clear that

9395.2015WP.odt

there is reference to the communication by

the Secretary General of Indian Olympic

Association wherein as per the amended

Constitution, the said Indian Olympic

Association decided to treat their members of

those National Sports Federations and State

Olympic Associations whose names are

mentioned in the list at Annexure-A of the

communication, which are affiliated with the

Indian Olympic Association will only be its

member and none else. Therefore, one such

decision was taken by the Indian Olympic

Association in the year 2011, it was not

possible for the respondent college to grant

benefit to the sport event / activity

performed by the petitioner. The contentions

of the learned counsel appearing for the

petitioner that keeping in view the object of

the Government Resolution dated 30th April,

2005, issued by the School Education and

Sports Department, the weightage of 5%

9395.2015WP.odt

available to the sports event / activity

wherein the petitioner participated ought to

have been continued deserves no consideration

which sport activity / event to be considered

for giving 5% marks would fall within the

domain of the respondent and it is not for

the Courts to rewrite the policy of the

Government.

13] Though the learned counsel appearing

for the petitioner placed reliance on the

unreported judgment in the case of Vinod

Khandoji Bhandare Vs. The State of Maharashtra

and others in Writ Petition NO.10280/2015

decided on 21st December, 2015, by the Bombay

High Court Bench at Aurangabad. Said judgment

in the case of Vinod Khandoji Bhandare is in

total different facts situation and has no

relevance in the context of the factual

aspects involved in the case of the

petitioner. In that view of the matter, we

are unable to persuade ourselves to grant any

9395.2015WP.odt

relief to the petitioner, hence, Petition

stands rejected. Rule discharged.

                       Sd/-                       Sd/-




                                          
                 [V.K.JADHAV]               [S.S.SHINDE]
                   JUDGE                       JUDGE  
              DDC