Yash Sehrawat vs Board Of Control For Cricket In ...
2013 Latest Caselaw 5914 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Judgment reserved on: 16.12.2013
                                          Date of Decision: 20.12.2013

+                W.P.(C) 5283/2013
YASH SEHRAWAT                                ..... Petitioner
            Through: Mr. Sanjeev Sindhawani, Sr. Adv. with
                      Ms. Sumati Anand & Mr. Sanjay
                      Sharma, Advs.

                                  versus

BOARD OF CONTROL FOR
CRICKET IN INDIA & ANR                   ..... Respondents
              Through: Mr. Amit Sibal, Ms. R.Rangaswamy,
                       Mr. R. Kumar & Mr. Pratek Chadha,
                       Advs. for R-1.
                       Mr. J.S. Bakshi & Mr A.S. Bakshi,
                       Advs. for R-2.

+                W.P.(C) 5284/2013
ARYAN SEHRAWAT                                ..... Petitioner
            Through: Mr. Sanjeev Sindhawani, Sr. Adv. with
                      Ms. Sumati Anand & Mr. Sanjay
                      Sharma, Advs.
                       versus

BOARD OF CONTROL FOR
CRICKET IN INDIA & ANR.                   ..... Respondents
              Through: Mr. Amit Sibal, Ms. R.Rangaswamy,
                        Mr. R. Kumar & Mr. Pratek Chadha,
                        Advs. for R-1.
                        Mr. J.S. Bakshi & Mr A.S. Bakshi,
                        Advs. for R-2.
CORAM:


W.P.(C) No5283/2013 & 5284/2013                   Page 1 of 18
 HON'BLE MR. JUSTICE V.K.JAIN

                                  JUDGMENT

V.K.JAIN, J.

The only issue involved in these writ petitions is as to whether the

respondents are entitled to determine the age of a person seeking to play

in an Under 16 Cricket Tournament, solely on the basis of a medical test

known as Tanner-White house-3 Method (TW-3 Method), even if the

determination on the basis of the aforesaid test is contrary to the age of

the candidate as reflected in documents, such as Birth Certificate,

Passport and School Certificate.

2. The petitioners before this Court seeking to play in an Under 16

Cricket Tournament organized by the respondents in the year 2012-13,

their father filled up forms provided by BCCI for verification of the age

of the petitioners. As per the norms of the respondents, those who are

born on or after 1.9.1996 were eligible to participate in the said

tournament.

The petitioners underwent the age determination through Tanner

- Whitehouse 3 (TW-3) method at Fortis Hospital, New Delhi and on

the basis of said test the age of the petitioner in W.P(C) No.5284/2013

as on 1.9.2012 was determined to be 16 years and 2 months, thereby

rendering him ineligible to participate in the Under -16 Cricket

Tournament in the year 2012-2013. The petitioner in W.P(C)

No.5283/2013 was determined as 16 years and 5 months on the said

date. However, he was given benefit of 6 months and held eligible to

play in Under-16 team. Though he was permitted to play in Under-16

Team, he is also aggrieved from the age determined from use of TW3

method since the age so determined is fed in the database of BCCI and

will remain valid throughout his career, meaning thereby that if he

wants to play in the under-19 cricket team, his age as on 1.9.2012 will

be taken as 16 years and 5 months. Being aggrieved from the said

determination, the petitioners are before this Court.

3. In its counter affidavit, the respondent no.1 - Board of Control for

Cricket in India (BCCI) has relied upon the order passed by this Court

on 11.10.2013 in CM No.14211/2013, thereby taking a stand that the

age determination by TW-3 method was carried out in accordance with

the aforesaid order of this Court. They have further stated in the said

counter affidavit that faced with the menace of players making false

representation with respect to their age and playing in age groups for

which they were not eligible to play, thereby denying the chance to the

players of appropriate age to play in various tournaments, BCCI felt

need for a scientific method for determination of age of the persons

seeking to play in such tournaments. The BCCI after several

deliberations, resolved to conduct the bone age test for age verification

of the players by the aforesaid TW3 method, which according to BCCI

has been adopted by various sports bodies across the world. It is also

stated in the counter affidavit that TW3 method of bone maturity is

being used in all ACC, Under-16 tournaments since 2005 and the

accuracy rate of the aforesaid test is +/- six (6) months. The BCCI has

accordingly recommended to all State Cricket Associations including

respondent No.2-DDCA, to adopt the aforesaid test, for determining the

age of the players seeking to play in such tournaments. The aforesaid

test, according to the respondent, rates the bone wrist and hand up to

16.5 years. The BCCI is giving benefit of doubt to the players up to six

(6) months since there can be an error of +/- six (6) months in the age

determined by use of the aforesaid method. TW3 method, according to

the respondents, measures skeletal maturity of a subject by making use

of the patterns of development of several bones in the hand and using

their shape and degree of fusing of the bones to arrive at the bone age of

the person in question, thus, concluding what the subject‟s actual age is.

Earlier the BCCI was adopting a method called Greulich & Pyle

(GP method) in which a margin of error could be +/- two (2) years. The

respondents have also relied upon the decision of this Court dated

3.8.2012 in WP (C) No.3789/2012 titled Rajender Kumar Vs. Union of

India & Ors. in support of the stand taken by them.

4. The first question which comes up for consideration in this writ

petition is as to whether the orders of this Court dated 31.5.2012 and

12.10.2012 passed in WP (C) No.612/2011 Lokniti Foundation versus

UOI and others are applicable to this case or not.

A perusal of the aforesaid order dated 31.5.2011 would show that

the petitioner before this Court alleged series of instances where the age

of the player was found to be inaccurate leading to the players above a

particular age managing to get themselves categorized in a lower age

category, and thereby gaining an unfair advantage over the other players

playing in the tournament meant for the players of a particular age

category. The requirement of creating a level playing field for

determination of age was, therefore, highlighted in the said petition.

During the course of hearing, DDCA informed the Court that medical

examination of all the players entering competition for the first time

would be conducted by the Medical Board comprising of three doctors.

The aforesaid judgment would show that a consensus amongst the

parties to the writ petition emerged during the course of hearing. One of

the points emerged as a result of the said consensus was that the medical

examination would be carried out by the Board of three doctors on the

basis of inter alia the radiological examination / MRI/CT Scan indicated

in Annexure - II of the National Code, but it would be open to the

Medical Board to adopt any particular examination which it felt

necessary for a particular candidate. The Board, apart from radiological

examination was also to conduct dental examination and general

physical examination for arriving at the age of the concerned player.

Another point which emerged during the consensus was that once the

age is determined in the above indicated manner that would be

maintained in the data base of the DDCA and would be strictly adhered

to by it throughout the entire career of the player.

An application being CM No.16933/2012 was filed seeking

certain modifications and the directions given by the Court on

31.5.2011. Directions were sought in view of the availability of TW3

method, in respect of the persons in the Under-16 Category. This time

also, there was a consensus amongst the learned counsel for the parties

that insofar as the category Under-16 was concerned, the test by the

Board of three doctors shall be conducted as per the guidelines

contained in the BCCI‟s Age Verification Progarmme as per TW3

method of bone age maturity, as per the brochure enclosed with CM

16933/2012.

It would thus be seen that both the above referred orders, to which

the petitioner before this Court was not a party, were the result of a

consensus amongst the parties to the writ petition. The aforesaid orders

therefore, do not constitute a binding precedent. The following

observations made by the Hon‟ble Supreme Court in Municipal

Corporation of Delhi versus Gurnam Kaur [ AIR 1989 SC 38 are

appropriate in this regard:

"10. It is axiomatic that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle. Quotability as „law‟ applies to the principle of a case, its ratio decidendi. The only thing in a Judge‟s decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided.

5. Rule 12 (3) of the Juvenile Justice (Care & Protection of

Children) Rules, 2007, (Model Rules) which the Central Government

has framed in exercise of powers conferred upon it by proviso to Section

68 of the Juvenile Justice (Care and Protection of Children) Act, 2000,

contains the following procedure for determination of age to decide

whether an accused person a juvenile on the date of commission of the

offence or not:

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit

to the child or juvenile by considering his/her age on lower side within the margin of one year.

It would thus be seen that under the aforesaid rules, the age of the

person claiming to be a juvenile, is to be determined on the basis of the

matriculation or equivalent certificate, if such a certificate is available.

In case the matriculation or equivalent certificate is not available, the

age of the juvenile is to be determined on the basis of the birth

certificate issued from the school, other than the play school first

attended by him. If neither the certificate of the first nature nor the

certificate of the second nature is available, the age is to be determined

on the basis of the birth certificate given by the corporation or municipal

authorities or Panchayat. It is only in the absence of matriculation or

equivalent certificate, the date of birth certificate from school first

attended and the birth certificate given by the corporation or a municipal

authority or Panchayat that the medical opinion can be sought with

respect to the age of a person claiming to be a juvenile in conflict with

law. The obvious reason behind giving preference to certificates over

the medical opinion appears to be that, the documents, if found to be

genuine, would reflect the precise age of the person claiming to be a

juvenile whereas the medical opinion, cannot be said to be absolutely

error free. Even TW3 method, which the respondents have adopted,

admittedly has error margin of +/- by six months.

6. The Lt. Governor of Delhi, in exercise of the powers conferred

upon him by Section 68 of the Juvenile Justice (Care and Protection of

Children) Act, 2000 has framed Rules known as Delhi Juvenile Justice

(Care and Protection of Children) Rules, 2009. Rule 12(3) of the

aforesaid Rules reads as under:

"(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining - (a) i. the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

ii. the birth certificate given by a corporation or a municipal authority or a panchayat; iii. the matriculation or equivalent certificates, if available;

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may

be, record a finding in respect of his age and either of the evidence specified in any of the clauses

(a)(i), (ii), (iii) or in the absence whereof, clause

(b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."

It would be seen that the aforesaid Rules framed by the Lt.

Governor of Delhi envisage determination of age on the basis of the

birth certificate from the school, other than the play school first attended

by the person claiming to be a juvenile. If such a certificate is not

available, the age is to be determined on the basis of birth certificate

given by the corporation or municipal authorities or a Panchayat. If

neither the date of birth certificate issued by the school nor the birth

certificate given by the corporation or the municipal authorities or

panchayat is available, the age is to be determined on the basis of the

matriculation or equivalent certificate. The medical opinion can be

sought from a duly constituted medical board only if none of the

documents referred above i.e. date of birth certificate from the school,

birth certificate from the corporation or municipal authorities or

panchayat or matriculation or equivalent certificate is available.

7. The concern of the respondents to ensure that only the children

falling in a particular age group are able to participate in the tournament

meant for the children of that particular age group is absolutely genuine

and well-founded. The case of the respondents is that there have been

several instances particularly in Asian countries, where the documents

containing false date of were submitted by the persons who do not

actually fall into a particular age group. They have in this regard

referred to the experience of the Asian Cricket Council (ACC), as

reflected in the Annexure R-1/1 to the counter affidavit which shows

that during ACC Cup Under-15, played in April-2005 14 out of 22

finalists were born over age whereas during ACC Cup Under-17, 15

players were not eligible by bone age, 21 players were not eligible

during ACC Under 15 Cup played in August, 2006. During the aforesaid

tests, the bone age was determined by using TW2 method. During ACC

Cup Under-15 played in November 2007 at Kathmandu, ACC Cup

Under-15 played in December 2007 at Bangkok, ACC Under-16 Elite

Cup played in March 2010 in Nepal, ACC Under-16 Challenge Cup

played in Malaysia in July, 2010, ACC Under-16 Elite Cup played in

Malaysia in May, 2012 and ACC Under-16 Cup played in March, 2012

in Thailand, the bone age of the players was determined on the basis of

TW3 method. 35, 30, 49, 59, 60 and 32 players respectively were not

found eligible by bone age, when determined using TW3 method.

8. It would be unrealistic to say that all the documents produced in

support of age of a player seeking to play a tournament meant for a

particular age group would be authentic documents. There is a

reasonable possibility of some of the documents being forged or

tampered with. However, such instances, cannot, in my view, be a good

ground to outrightly reject all such documents, when the age determined

by use of TW3 method is not in conformity with the age indicated in the

documents.

There may be cases where the documents produced are absolutely

genuine and the age recorded therein is absolutely correct. It would be

highly unreasonable and unfair to the players if despite submitting such

authentic and genuine documents, they are denied opportunity to play in

a tournament meant for their age group, merely because in the medical

opinion their age could be more than 16 years, after giving benefit up to

six months on either side. Till date, we have not been able to device a

medical test which would determine the age of a person with 100%

accuracy. The case of the respondents is that the age determined through

use of TW3 method can be higher or lower by not more than six months.

The extent of error, in computation of age through TW3 method is also

a matter of opinion and there can be no unanimity in this regard. It is not

as if TW3 method is being universally adopted by all sports bodies, even

in the face of authentic, genuine and unimpeachable documentary proof

of age. FIFA for instance, is using MRI Test for age verification in

Under-17 Soccer competition, though MRI of the left wrist used by

FIFA and AFC is stated to be expensive and not practical in large

numbers.

9. Be that as it may, what I need to emphasize is that the

determination of age by medical test whether using TW3 method, MRI

test or any other method will only be an opinion and this is nobody‟s

case that such opinion would give exact and precise age of a person

undergoing medical test through use of such methods. Therefore, there

is no good reason to altogether discard the documentary evidence of

age, if otherwise found to be genuine and unimpeachable. In fact, I fail

to appreciate how the respondents can exclude the documentary

evidence wholly from consideration when even for the purpose of

determining the age of a person claiming to be a juvenile in conflict with

law or not, the determination is made primarily on the basis of the

documents and it is only in a case of non-availability of any of the

prescribed documents that the age can be determined on the basis of

medical test.

10. In my view, though there can be no objection to the respondents

subjecting a person seeking to play in a tournament meant for a

particular age group to TW3 test for the purpose of verification of his

age, but, if on such determination, and after giving benefit of margin of

error up to six months on either side, it is found that the age so

determined was resulting in the person concerned being held ineligible

to play in a tournament, the respondents should also take into

consideration the documentary evidence, if any, produced by him as

proof of his age. If the documents submitted by such a person are found

to be authentic and genuine, the respondents would not be justified in

giving preference to the age determined through use of TW3 method

over the age as reflected in such unimpeachable documentary evidence.

While determining the age of such a person, the respondents would also

be entitled to ask him to produce such other evidence as they may feel

necessary and appropriate in a given case. If a person seeking to play in

such a tournament does not produce documentary evidence which

should be available or can be obtained by him, the respondents would be

justified in relying upon the age determined through TW3 method and

ignoring the documents produced by him. If, however, such a person

produces all such documents which he could be reasonably expected to

produce as a proof of his age and such documentary evidence

establishes the age claimed by him, the respondents would not be

justified in discarding such documentary evidence and relying upon the

determination of age through the use of TW3 method.

11. In W.P(C) No.5284/2013, the petitioner has placed on record the

birth certificate issued to him under Section 17 of the Registration of

Births and Deaths act, 1969. In the aforesaid documents, his date of

birth is recorded as 27.2.1998. The names of both his parents as well as

his address have also been recorded in the said document. The birth of

the said petitioner was registered in the official record on 3.3.1998 i.e.

just 4 days after his birth. He has also placed on record his passport

which was issued to him for the first time on 15.6.2004. It is difficult

even to conceive that in June 2004 when the said petitioner was already

6 years old, his father would have given a wrong date of birth while

applying for a passport for him, anticipating that one day he would seek

to play cricket in Under-16 team. The said petitioner has also placed on

record a certificate issued by Delhi Public School, Gurgaon. In the

aforesaid certificate also his date of birth is recorded as 27.2.1998. If the

aforesaid documents are genuine and contain correct date of birth of the

said petitioner there would be no reason to prefer the age determined

through use of TW3 method, over the age reflected in the aforesaid

documents.

12. The petitioner in W.P(C) No.5283/2013 also submitted to the

respondents, the birth certificate issued under Section 17 of the

Registration of Births and Deaths Act, 1969, the transfer certificate

issued by Delhi Public School on 25.6.2012, the transfer certificate

issued by Masonic Public School on 2.4.2002 and the passport issued to

him on 16.9.2005. In W.P(C) No.5283/2013, a perusal of the birth

certificate issued to the petitioner by Municipal Corporation of Delhi

under Section 17 of the Registration of Births and Deaths Act, 1969

would show that his date of birth in the said documents was recorded as

3.10.1996. The aforesaid registration was made on 10.10.1996 i.e. one

week after his birth and the name of both his parents are recorded

therein. In the transfer certificate issued by Masonic Public School as

well as certificate issued by Delhi Public School, Gurgaon his date of

birth is given as 3.10.1996. Same is the date of birth recorded in the

passport issued to him on 16.9.2005.

13. For the reasons stated hereinabove, the writ petitions are disposed

of with direction to the respondents to verify the genuineness and

authenticity of the documents filed by the petitioners as proof of their

respective date of birth, within four weeks from today. If on such

verification, the respondents find that the aforesaid documents are

genuine documents, they would record the date of birth of the petitioner

in W.P(C) No.5284/2013 as 27.2.1998 and that of the petitioner in

W.P© No.5283/2013 as 3.10.1996 in their data base and would

accordingly consider them for playing in the tournaments for which they

are found to be eligible, taking their date of birth to be 27.2.1998 and

3.10.1996 respectively.

There shall be no orders as to costs.

DECEMBER 20, 2013/rd                                        V.K. JAIN, J.