Bombay High Court
Dadaso Balaso Awad And Anr vs State Of Maharashtra And Anr on 5 December, 2023
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2023:BHC-AS:36867-DB
Tauseef 503-WP.12592.2023.J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12592 OF 2023
1. Dadaso Balaso Awad,
Age : 37 years, Occupation : Sports Coach,
Residing at : At post 29 Phata, Gunawadi,
Tal-Baramati RO: Bhavaninagar,
Sub-District : Indapur, District: Pune - 413104.
2. Yogesh Prakash More,
Age : 39 years, Occupation : Service/Sports Coach,
Residing at : C, 304 Yashwant Complex Katrap,
Badlapur East, Tal-Badlapur,
District: Thane- 421503. ...Petitioners
Versus
1. State of Maharashtra,
Sports Ministry, Mantralaya,
Mumbai - 400 081.
2. The Directorate of Sports and Youth Services,
Shiv Chhatrapati Sports Complex,
Mahalunge, Balewadi, Pune-411045,
through its authorised person.
3. The District Sports Officer, Pune,
Having its office at Divisional Sports Complex,
Shastri Road, Yerawada, Pune-411006. ...Respondents
********
Mr. Shekhar Jagtap a/w. Ms. Sairuchita Chowdhary and Mr. Ishan
Paradkar i/by M/s. J. Shekhar & Co. for the Petitioners.
Mr. N. C. Walimbe, AGP for the Respondent (State).
********
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Tauseef 503-WP.12592.2023.J.doc
CORAM : G. S. KULKARNI,
JITENDRA JAIN, J.J.
RESERVED ON : 6th NOVEMBER, 2023.
PRONOUNCED ON : 5th DECEMBER, 2023.
JUDGMENT:
(Per Jitendra Jain, J.):
1. By this petition under Article 226 of the Constitution of India,
the Petitioners have challenged the advertisement published on 19 th July
2023 for the post of Sports Coach. The substantive prayers reads as
under:-
"A. The Hon'ble Court may kindly issue writ of mandamus and/or any
other appropriate writ and/or direction and/or order and thereby
examine the constitutional validity of the advertisement published
on 19.07.2023, annexed at Exhibit E herein, and direct that the
impugned advertisement is arbitrary, unfair and causing a
discrimination to the Petitioners by compelling them to compete
with candidates holding a degree in physical education as well as
state level sportsperson, who are not professionally trained as a
coach under the National Institute of Sport and therefore the
impugned advertisement ultra vires to the constitution to the
extend of appointment of Sports Coach posts, the Hon'ble High
Court may kindly quash and set aside the impugned advertisement
dated 19.07.2023;
B. The Hon'ble Court may kindly issue writ of mandamus and/or any
other appropriate writ and/or direction and/or order and thereby
direct that the Respondent No.2 has made an illegal addition of
criteria, more particularly mentioned in clause 7.2 of an impugned
advertisement, by adding degree holders in the Physical Education
and the State level Sportspersons and thereby further direct to
allow only candidates holding a Diploma in Sports Coach and
candidates who are international as well as national sportsperson
in a specific sport activity;"
Brief facts:-
2. The Petitioners are the Diploma holders in Sports Coaching
from Netaji Subhash National Institute of Sports, Patiala (for short
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"NIS"). They have also participated at National and State level in
Kabaddi and Kho-kho Sports. The Petitioners have completed one year
Diploma Education Programme from NIS. On 19 th July 2023, the
Respondents issued an advertisement for the post of Sports Coach for
50 vacancies. Translated paragraph 7.2 of the said advertisement
provides for qualification of the candidate for the said post of Sports
Coach, which reads thus:-
"7.2 Sports Instructor :-
(1) Candidate should have passed degree examination of a
recognized Institution in physical education alongwith the degree
examination in Arts/ Science/ Commerce /Law faculty of Constitutional
University,
OR
(2) Candidate should have passed Diploma examination (Instructor)
in Sports Field held by the Kolkata, Bangalore and Gandhinagar
Divisional Centres of Netaji Subhashchandra National Sports Academy,
Patiyala or by any recognized Institutions similar thereto,
OR
(3) Candidate should have passed Degree examination (B.P.E.) in
Physical education with the main subject viz. Physical education.
OR
(4) Candidate should have received State/National Award in any
specific sport."
3. The Petitioners have challenged the above qualifications in
the present petition and prayed that only a diploma holder from NIS
should be considered for the said post.
4. The Petitioners contend that the candidates holding Bachelor
in Physical Education course are eligible to be appointed as teacher in
schools and colleges and the training given to these candidates pursuing
Bachelor of Physical Education (for short "BPE") is of soft skills, such as
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leadership, students physic and psyche and overall physical training.
Whereas the Petitioners who have obtained a Diploma from NIS in
'Coaching Programme', are eligible for the post of sports coaching. The
Petitioners further contend that equal status cannot be given to the
candidates holding BPE, and candidates holding diploma in sports
coach, and only candidates holding diploma in sports coach and no
other candidate should be made eligible for the post of sports coach. It,
therefore, the Petitioner's contention that the said qualifications are
ultra-vires.
5. The Petitioners further contend that a degree in physical
education provides a general training in sports, whereas a diploma
course for coaching is specific towards technical and practical
experience of a coach and, therefore, such candidates holding BPE
cannot be said to be fit for the post of sports coach, since they do not
possess the same level of knowledge as that of the diploma holder.
6. The Petitioners have also assailed the impugned
advertisement on the ground that same is violative of Article 16 of the
Constitution of India, since it prejudices the interest of the candidates
who have completed diploma course from NIS and who are only trained
to provide sports coaching, whereas the other candidates holding
degree course are only physical instructors in school/colleges. In
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support of the Petitioner's contention reliance is placed on the decisions
of the Supreme Court in the case of Chandan Banerjee & Ors. Vs.
Krishna Prosad Ghosh & Ors.1 and in Devesh Sharma Vs. Union of India
& Ors.2
7. On the other hand, the Respondents have opposed the
petition on various grounds. The Respondents contend that the sports
authorities are experts in deciding the qualification for the post of sports
coach and that being so, the writ Court ought not to interfere, when the
expert body has prescribed the qualifications for the particular post. The
Respondents further submitted that these are policy decisions which
also cannot be interfered in the proceedings under Article 226 of the
Constitution of India. The Respondents have also justified the
qualification as prescribed, by submitting that such qualification as
prescribed for the post requires the candidate to have been trained in
physical education and sports and this is the parameter which flows
commonly in all the qualifications prescribed. The Respondents
submitted that the decisions relied upon by the Petitioners are not
applicable to the facts of the present case and, therefore, prayed for
dismissal of the present petition.
1 2021 SCC Online SC 773
2 2023 SCC Online SC 985
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8. Heard learned counsel for the Petitioners and the
Respondents and with their assistance, have perused the documents
annexed to the petition.
9. Analysis:- The primary issue which requires consideration is
whether the power of judicial review under Article 226 of the
Constitution of India can be exercised insofar as the fixing of the
qualification for appointment of "Sports Coach" is concerned. The
qualification for the said post is prescribed by Directorate of Sports and
Youth Services-Respondent No.2. It is not the case of the Petitioners
that Respondent No.2 is not authorised or lacks jurisdiction for
prescribing the qualification, however, the case of the Petitioners is that
except diploma holders in NIS, no other qualification should be
prescribed. We do not agree. In our view, Respondent No.2 is an expert
body to decide as to what qualifications needs to be fixed for the post in
question and as to who are the candidates best suited for such posts.
The Petitioners herein are not challenging the decision making process
but what has been challenged is the decision itself.
10. In our view, the qualification for appointment to a particular
post is for the employer to decide. The employer may prescribe
additional or desirable qualifications. It is the employer who is best
suited to decide the requirements a candidate must possess according to
the needs of the employer and the nature of work. This Court cannot
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lay down the conditions of eligibility, much less can it deal with the
issue of whether the desirable qualifications is on par with the
prescribed other qualification. This would amount to re-writing the
advertisement by the Court which is not permissible. Question of
equivalence/non-equivalence will also fall outside the domain of the
Court.
11. In so far as the judicial review of any such decision is
concerned, this Court cannot substitute its own decision to the decision
taken by the employer for the reasons that the expertise for such test
lies only with the employer this Court is hardly equipped to do so.
12. The Petitioners have not raised any challenge on the ground
that decision of Respondent No.2 is malafide. The expert body -
Respondent No.2 have prescribed the qualification for the post of sports
coach and the common thread passing through all the four
qualifications are expertise of the candidate in the sports. The
candidates possessing the qualification prescribed are those who are
related to sports in one way or the other. The Petitioners, except stating
that they are qualified for the post, have not shown us any material on
record to submit that the other qualifications are not at all relevant for
the said post.
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13. The decision in the case of Chandan Banerjee & Ors. Vs.
Krishna Prosad Ghosh & Ors. (supra), relied upon by the Petitioners
would not assist the Petitioner, inasmuch as, the issue before the
Supreme Court was with respect to promotion of the candidates who
were already in the employment and it was not a case of recruitment as
in the present case. Similarly, the Petitioner's reliance on Devesh
Sharma Vs. Union of India & Ors. (supra) is also not well founded. The
issue in such case was whether a person holding B.Ed. Qualification can
be considered for the post of primary teacher for which the qualification
is D.Ed. The Supreme Court held that B.Ed. is a different qualification
and the candidates holding such qualification would not be suitable
qualification for primary level of classes. It is on these facts that the
Supreme Court held that the persons holding B.Ed. Qualification cannot
be considered for the post of primary teacher.
14. We may observe that our reasoning would stand fortified in
the view taken by the Supreme Court in the following decision:-
15. In Anand Yadav and Ors. Vs. State of Uttar Pradesh & Ors.,
(2021) 12 SCC 390, the issue before the Supreme Court was whether
for the purpose of appointment to the post of Assistant Professor, MEd
degree can be treated as equivalent to degree of MA (Education) and
even if it was treated as an equivalent, could it be said that an MEd is a
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post-graduation in the relevant subject. Supreme Court observed that in
a recruitment process, equivalence of MEd degree and the degree of
MA (Education) is essentially matters of policy and Judicial review must
tread warily. In paragraphs 32 to 35 of the decision the Supreme
Court observed that in matters of education, the view of educationists
must be preferred and it is not the function of the Court to sit as an
expert body over the decision of the experts and this aspect has received
judicial imprimatur even earlier. The Court further observed that it is
for the employer to consider what is the functionality of a qualification
and the content of the course of studies which leads up to the
acquisition of a qualification and such matters to be left to the
educationists.
16. In the case of State of Maharashtra Vs. Lata Arun, (2002) 6
SCC 252, the Supreme Court held that the prescribed eligibility
qualification for admission to a course or for recruitment to or
promotion in service are matters to be considered by the appropriate
authority. It is not for courts to decide whether a particular educational
qualification should or should not be accepted as equivalent to the
qualification prescribed by the authority.
17. In Dilip Kumar Garg & Anr. Vs. State of Uttar Pradesh & Ors.,
(2009) 4 SCC 753, Supreme Court held that the administrative
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authorities are in the best position to decide the requisite qualifications
for promotion from Junior Engineer to Assistant Engineer, and it is not
for this Court to sit over their decision like a Court of Appeal.
18. In case of Tajvir Singh Sodhi vs The State Of Jammu And
Kashmir in Civil Appeal Nos.2164-2172 of 2023 the Supreme Court
while dealing with almost a similar and identical question relying its
earlier judgments held thus:
"12. Before proceeding further, it is necessary to preface our judgment
with the view that Courts in India generally avoid interfering in the
selection process of public employment, recognising the importance of
maintaining the autonomy and integrity of the selection process. The
Courts recognise that the process of selection involves a high degree of
expertise and discretion and that it is not appropriate for Courts to
substitute their judgment for that of a selection committee. It would be
indeed, treading on thin ice for us if we were to venture into reviewing
the decision of experts who form a part of a selection board. The law on
the scope and extent of judicial review of a selection process and results
thereof, may be understood on consideration of the following case law:
i) In Dalpat Abasaheb Solunke v. Dr. B. S. Mahajan, (1990) 1 SCC 305 :
AIR 1990 SC 434, this Court clarified the scope of judicial review of a
selection process, in the following words:
"9... It is needless to emphasis that it is not the function of the
court to hear appeals over the decisions of the selection
committees and to scrutinise the relative merits of the
candidates. Whether the candidate is fit for a particular post or
not has to be decided by the duly constituted selection
committee which has the expertise on the subject. The Court
has no such expertise. The decision of the selection committee
can be interfered with only on limited grounds, such as illegality
or patent material irregularity in the constitution of the
committee or its procedure vitiating the selection, or proved
malafides affecting the selection etc...."
ii) In a similar vein, in Secy. (Health) Deptt. Of Health & F.W. v. Dr. Anita
Puri, (1996) 6 SCC 282, this Court observed as under as regards the
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sanctity of a selection process and the grounds on which the results
thereof may be interfered with:
"9. ... It is too well settled that when a selection is made by an
expert body like the Public Service Commission which is also
advised by experts having technical experience and high academic
qualification in the field for which the selection is to be made, the
courts should be slow to interfere with the opinion expressed by
experts unless allegations of mala fide are made and established.
It would be prudent and safe for the courts to leave the decisions
on such matters to the experts who are more familiar with the
problems they have than the courts. If the expert body considers
suitability of a candidate for a specified post after giving due
consideration to all the relevant factors, then the court should not
ordinarily interfere with such selection and evaluation......"
iii) This position was reiterated by this Court in M.V. Thimmaiah v.
Union Public Service Commission, (2008) 2 SCC 119, in the following
words:
"21. Now, comes the question with regard to the selection of the
candidates. Normally be challenged except on the ground of
mala fides or serious violation of the statutory rules. The courts
cannot sit as an Appellate Authority to examine the
recommendations of the Selection Committee like the court of
appeal. This discretion has been given to the Selection
Committee only and courts rarely sit as a court of appeal to
examine the selection of the candidates nor is the business of
the court to examine each candidate and record its opinion..."
19. In view of above discussion, there is no merit in the
contentions as urged by the Petitioner. We find no illegality in the
qualification as prescribed by the Respondents for the post of Sports
Coach. Petitioner is dismissed. No costs.
[JITENDRA JAIN, J.] [G. S. KULKARNI, J.]
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