Delhi High Court
Amit Kumar Dhankhar vs Union Of India & Ors. on 3 July, 2014
Author: V. Kameswar Rao
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on June 30 , 2014
Judgment delivered on July 03, 2014
+ W.P.(C) 3914/2014 & CM No. 7890/2014
AMIT KUMAR DHANKHAR ..... Petitioner
Through: Mr.Arun Bhardwaj, Advocate
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Ms.Sapna Chauhan, Advocate
with Mr.Abhijeet Negi, Adv. for
R-1
Mr.Parth Goswami, Advocate
with Mr.Hemant Phalpher, Adv.
for R-2
Mr.Rahul Khurana, Advocate for
Mr.Anil Grover, Advocate for R-3
Mr.Pradeep Dewan, Sr. Advocate
with Ms.Anupama Dhingra and
Mr.Rahul Jain, Advocates for R-4
with Mr.Vinod Tomar, Assistant
Secretary for R-4
Mr.Surender Chauhan, Adv. for
R-5 with R-5 in person
+ W.P.(C) 3943/2014 & CM No. 7935/2014
JOGINDER KUMAR & ORS
..... Petitioner
Through: Mr.Rahul Mehra, Advocate
with Ms.Roma Bhagat,
Advocate
versus
W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 1 of 50
UNION OF INDIA & ORS
..... Respondent
Through: Mr. Nishant Gautam,
Advocate for R1/UOI
Mr.Parth Goswami, Advocate
with Mr.Hemant Phalpher,
Adv. for R-2
Mr.Pradeep Dewan, Sr.
Advocate with Ms.Anupama
Dhingra, Mr.Surender
Chauhan and Mr.Rahul Jain,
Advocates for R-3 with
Mr.Vinod Tomar, Assistant
Secretary for R-3
+ W.P.(C) 3955/2014 & CM No. 7954/2014
RAJNEESH DALAL
..... Petitioner
Through: Mr.Raj Kumar Rajput,
Advocate with Mr.Ajit
Rajput, Advocate
Versus
UNION OF INDIA & ORS
..... Respondent
Through: Mr.A.K.Gautam, Advocate
for R-1
Mr.Parth Goswami, Advocate
with Mr.Hemant Phalpher,
Adv. for R-2
Mr.Pradeep Dewan, Sr.
Advocate with Ms.Anupama
Dhingra, Mr.Surender
Chauhan and Mr.Rahul Jain,
Advocates for R-3 with
W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 2 of 50
Mr.Vinod Tomar, Assistant
Secretary for R-3
CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.
1. This batch of three writ petitions involves a challenge to the
inaction of a National Sports Federation (NSF) in the country i.e.
Wrestling Federation of India (WFI) for not selecting Wrestling team for
Commonwealth Games 2014 in accordance with the National Sports
Code („Code‟ in short) as formulated by the Ministry of Youth Affairs
and Sports, Government of India.
2. The parties, more particularly, the respondents shall be referred to
as per their position in the memo of parties in W.P.(C) No. 3914/2014,
which would be, respondent No. 1 (Ministry of Sports), respondent No. 2
(Indian Olympic Association), respondent No. 3 (Sports Authority of
India), respondent No. 4 (Wrestling Federation of India), respondent No.
5 (Mr. Vinod Kumar, Chief Coach).
3. The aforesaid Code was a subject matter of a writ petition
[W.P.(C) No. 2310/2012] filed by the Indian Olympic Association
(OIA) wherein the competency of the respondent No. 1, Union of India
to formulate the same was challenged as being beyond its Executive
power. This Court, while holding the competency of respondent No. 1 in
para 86, has held as under:
"86. For the foregoing reasons, it is held that the
petitioners‟ contentions are rejected. The Court reiterates its
conclusions that international sports and regulation of NSFs,
and IOA, in respect of the matters which are the subject of
these proceedings, falls within Entry 97 of the First List to
the Seventh Schedule to the Constitute of India. The Central
Government can insist upon adherence to these provisions,
without the aid of legislation. It is also held that the Sports
Code does not violate the freedom under Article 19(1)(c) of
the Constitution. Neither are its provisions arbitrary. The
tenure restrictions impugned in this case can and are insisted
upon as a part of the public interest in efficient and fair
administration of such NSFs. This Court also specifically
notes the letter/notice dated 20.09.1975, which forms part of
the Sports Code, as modified by the later letter of 01.05.2010,
to the following extent:
"i. The President of any recognized National Sports
Federation, including the Indian Olympic Association can
hold the office for a maximum period of twelve years with or
without break:
ii. The Secretary (or by whatever other designation such as
Secretary General or General Secretary by which he is
referred to) and the Treasurer of any recognized National
Sports Federation, including the Indian Olympic Association,
may serve a maximum of two successive terms of four years
each after which a minimum „Cooling off period of four years
will apply to seek fresh election to either post.
iii. The President, the Secretary and the Treasurer of any
recognized National Sports Federation, including the Indian
Olympic Association, shall cease to hold that post on
attaining the age of 70 years.
iv. The other provisions in respect of the tenure limit as
contained in the letter of 1975 mentioned above shall remain
as it is.
v. The above dispensation will come into operation with
immediate effect."
This regulation (subject to any subsequent amendments)
should, till appropriate legislation is framed by Parliament,
bind the parties and all NSFs as a condition for recognition,
aid and crucially, for the use of the term "India" by any team
in International Olympic sporting event."
4. This Court has purposefully, referred to the judgment in the
aforesaid writ petition to show the relevancy/binding nature of the Code,
at least, insofar as the respondent No. 4 (Wrestling Federation of India)
and respondent No. 2 (Indian Olympic Association) are concerned.
SPORTS CODE
5. With a view to adopt good governance practices by National
Sports Federation including Indian Olympic Association, for a healthy
development of sports in the country, the respondent No. 1 issued
comprehensive guidelines in the years 1975, 1988, 1997 and 2001. Post
2001, several major initiatives were taken by the Government, which
included declaration of the NSF availing the government grant as public
authority under the Right to Information Act, 2005, introduction of
annual recognition for NSF, implementation of age and tenure limits in
respect of office bearers of NSF, Anti-doping Rules, holding of fair and
transparent elections in the NSF. All these
notifications/orders/instructions/circulars issued post 2001, have been
amalgamated with necessary modifications as one comprehensive Code
called as National Sports Development Code of India (NSCI), 2011
which was enforced with immediate effect.
6. Suffice to state, selection procedures of national teams for
participation in major international events have also been formulated.
The Code contemplates the role and responsibility of the; (a) Ministry of
Youth Affairs and Sports, Govt. of India (respondent No. 1) to include
determining the eligibility conditions for recognition of National Sports
Federation; (b) NSF; responsible and accountable for overall
management, direction, control, regulation, promotion, development of
sponsorship, for which, they are recognised by concerned International
Federation; (c) Sports Authority of India; to provide necessary support
for identifying the sports persons including the provisions of
infrastructures, equipments and such other assistance, as may be agreed
to.
7. The Code also includes a system of annual recognition of the NSF
with automatic renewals subject to submission of documents such as
annual sports, audited accounts, details of national championship etc.
8. The Code also provides, in order to be eligible for assistance and
for continuing the recognition of the Government, the National Sporting
Organizations must also require to adopt impartial and transparent
selection procedure. Para 10.5 of the Code (page 108 of W.P.C.
3743/2014) stipulates as under:
"For proposal at "No cost to government", National
Federation will not be required to obtain prior approval
of the Government unless it is a major, multi-discipline
international sports events like Asian
Games/Commonwealth Games and Olympic Games. The
selection procedure as laid down in the guidelines shall
apply".
9. Para 10.6 of the Code (page 108 of W.P.C. 3943/2014) stipulates
as under:
"For proposal "At Cost to the government", National
Federations should forward proposals in the prescribed
proforma (Annexure VI) to the Ministry of Youth Affairs
and Sports at least three months prior to the event along
with selection committee minutes. These proposals should
be in consonance with the LTDP already approved.
Generally speaking, and subject to the availability of
funds and the standards achieved by the team, the
Government will clear all proposals which have been
previously agreed upon in the meetings between the
MYAS and the NSF at the time of LTDP discussions."
10. On September 18, 2008, guidelines were issued by the Ministry of
Youth Affairs and Sports for efficient management of coaching camps,
selection of Coaches, selection of Athletes etc. These guidelines have
been made part of the Code as Annexure XXI. Para 3 of the said letter
dated September 18, 2008, stipulates as under:
"(i) The selection of sportspersons for participation
in major international events shall be the responsibility of
National Sports Federations (NSF) concerned, and
Government and the Sports Authority of India, will not
have direct involvement in the selection process, except to
ensure that it is fair and transparent.
(ii) The selection criteria/norms shall be clearly
communicated by the NSFs to all concerned vis., players,
coaches, Government Observers etc. well in advance and
be put up on the website of the NSF concerned and also be
forwarded to SAI and the Ministry to be put up on their
respective websites.
(iii) In case of measurable event, the minimum qualifying
norms may be fixed and announced along with the notice
for Selection Trials and be put up on the website of the
NSF concerned and also be forwarded to SAI and the
Ministry to be put up on their respective websites.
(iv) The holding of the selection trials should be
announced at least one month in advance of dates of the
trials.
(v) In team events the Selection Trials should be held two
months in advance and in the case of contact games, the
selection trials should be held at least one month in
advance of the competition event.
(vi) The selection shall be done by a Selection Committee,
consisting of the President of the NSF as the chairman, the
National coach and eminent ex-sportspersons, preferably
Arjuna awardees. There shall be no Government
Observer/SAI nominee, as member, in the Selection
Committee.
(vii) The NSFs shall send invitation to the Government
Observer, for attending the selection trials, and the
selection committee meetings, as an Observer, atleast 15
days in advance, which shall further be followed up on
personal basis. The Government Observer must send
his/her report, directly to SAI and the Ministry, without
delay.
(viii) The national coach shall evaluate the progress and
performance of each player on regular basis and submit
the report to the selection trials, only in exceptional cases
with due justification.
(ix) The athletes who were not in the coaching camp
organized prior to the Selection may be allowed to
participate in the selection trials, only in exceptional cases
with due justification.
(x) The proceedings of the Selection should spell out in
detail, the selection criteria, the past performance of the
players, and their performance in the selection trials.
(xi) The team once finalized for a particular event shall not
be changed under any circumstances, unless warranted by
unavoidable situations with due justification and the
changes shall be informed to all the concerned.
(xii) NSFs shall keep the performance of each athlete on its
website. This should be updated at least once a month
along with rankings, if applicable.
(xiii) The athlete once selected for a team, shall be treated
with utmost dignity. In case of any doubt arising, the
athlete has to be taken into confidence. Proper appeal
mechanism shall be put in place, to ensure proper and
timely redressal of their grievance."
THE FACTS:
W.P.(C) 3914/2014
11. The petitioner Amit Kumar Dhankhar‟s case is that he is an Asian
Gold Medallist and World Police Gold Medallist in Freestyle Wrestling
in 65 kg category. In July 2014, at Glasgow (England), Commonwealth
Games-2014 are to be held wherein Wrestling is one of the sporting
events, in which, India would be participating by sending Wrestlers in
various categories including 65 kg Freestyle Wrestling. It is his case that
without holding trials, names will be forwarded by the respondent No. 4
to the respondent No. 2, which then would forward the names to the
Commonwealth Games Committee, latest by June 2014. It is his case
that if the trials are not held, the same will result in sending all such
players who have not competed with each other and in turn, would bring
a bad name to the nation. According to him, it is the Ministry of Sports,
Govt. of India, which is responsible to ensure that best talent is selected
to represent the country. He would highlight his credentials, at least
from the year 2009, in the following manner:
Sr.No. Date Medal Venue Events
12 17-20 Nov 2009 Bronze Jalandhar Senior Commonwealth Free
Style Wrestling Championship
13 06-10 April 2010 Gold Pune 58th All India Police
14 25-28 Dec 2010 Bronze Ranchi 55th Senior Free Style Wrestling
Championship
15 12-26 Feb 2011 Gold Ranchi 34th National Games
16 02-06 March Gold Jammu 59th All India Police
17 06-07 Aug 2011 Gold Melbourne Commonwealth Wrestling
(Australia) Championship
18 23-25 Dec 2011 Gold Hyderabad 45th Senior Wrestling
Championship
19 13-16 April 2012 Gold Jalandhar Shaheed Bhagad Singh
International Wrestling
Tournament
20 18-22 April 2013 Gold New Delhi Senior Asian Wrestling
Championship
21 19 June 2013 Gold Kolkata 58th Senior Wrestling
Championship
22 1-10 Aug 2013 Gold Ireland World police games
23 4-7 Dec 2013 Gold South Africa Commonwealth Wrestling
Championship
24 23-27 April 2013 5th Kazakistan Asian Wrestling Championship
12. The respondent No. 4 (Wrestling Federation of India), in its
counter affidavit, had taken a stand that the present petition has become
infructuous inasmuch as respondent No. 2 (Indian Olympic Association),
after the receipt of the list of the wrestlers selected by the respondent No.
4, has sent the list in seven weight categories on June 11, 2014 to the
Commonwealth Games Committee (CGC). The said list cannot be
changed unless a good cause is shown such as injury or sickness of a
wrestler. It is its stand that in fact, it is the discretion of the CGC to
accept or not to accept the change in the list of participants. It is the case
of respondent No. 4 (WFI) that the team of wrestlers selected, would
after attending the Training Camp at Minsk, Belarus, starting from July
09, 2014, shall leave for Commonwealth Games at Scotland. Insofar as
this petitioner (Amit Kumar Dhankhar) is concerned, it is the case of the
respondent No. 4-WFI that in last four international events which have
taken place in 2014, he has participated in the 70 kg category of
wrestling. That apart, it is its case that the trials were held on February
18, 2014 for selection of wrestlers for Senior Freestyle Indian Wrestling
team for participation in 2014 World Cup held at Los Angeles from 14-
16 March, 2014 and pursuant to the trials, the petitioner was selected for
70 kg category and pursuant to the said selection, he participated in the
tournaments held in Colorado Springs, USA during the period January
29, 2014 to February 02, 2014; World Cup Wrestling Tournament at
Los Angeles, USA from March 16 to March 18, 2014; Senior Asian Free
Style Wrestling Championship from April 22 to April 27, 2014 at
Kazakhstan; World Class International Tournament held at Italy between
May 28 to June 01, 2014. The petitioner Amit Kumar Dhankhar,
fearing his poor performance, did not participate in either 65 kg or 70 kg
category at Italy.
13. The respondent No. 4‟s case is that the FILA, which is the apex
body for sports events, modified the category from January 01, 2014.
Consequent upon the said modification, the existing category of 66 kg
was removed and a category of 65 kg was created, the next category
being 70 kg. It is the case of the respondent No. 4 that in the three
international events referred to above, the petitioner did not play well as
in none of them, he could reach to Quarter Final. The respondent No. 4
states that following seven wrestlers have been selected to represent
India in the Commonwealth Games, 2014, for which list has already
been sent :
"Name Weight category
i) Mr.Amit Kumar 57 kg.
ii) Mr.Bajrang 61 kg.
iii) Mr.Yogeshwar Dutt 65 kg.
iv) Mr.Sushil Kumar 74 kg.
v) Mr.Pawan Kumar 86 kg.
vi) Mr.Satyavert Kadian 97 kg.
vii) Mr.Rajeev Tomar 125 kg."
14. Against the 65 kg category, one wrestler namely Yogeshwar Dutt
has been selected. The respondent No. 4 has stated that there is no
comparison between Yogeshwar Dutt and the petitioner so far as their
performance and achievement is concerned. Yogeshwar Dutt is a Broze
Medallist in the last Olympic Games held at London. He is also the
recipient of the Rajiv Gandhi Khel Ratan, Arjuna Award and also been
conferred Padam Shree award in the year 2013. It is the case of the
respondent No. 4 that the FILA Rules does not permit any weight
tolerance inasmuch as in Asian Championship of 2009, Mr. Sushil
Kumar, whose name was included in 66 kg category could not
participate in the said category as his weight was beyond 150 gms., or
so.
15. Insofar as the allegations made by the petitioner Amit Kumar
Dhankhar that no trials have been held, it is the case of the respondent
no. 4 that the trials are done periodically i.e. once in 3 or 4 months or so.
There is no hard and fast rule that before any competition, trials must be
held without exception. It is logically not possible to hold the trials
before every tournament. Participation in the trials is a very complicated
issue for the participants. The participants have to adjust their weight
according to the category and invariably, they are required to either
reduce or increase their weight to match their category. It is the case of
the respondent No. 4 that repeated trials also adversely affects the
performance of wrestlers inasmuch as he cannot concentrate in his
performance and preparation for the tournament. Once trials are done
and evaluation of wrestlers is made on the basis of their achievements
and current performance, the Selection Committee, while acting in a fair
and transparent manner, selects the wrestlers for next following events
and a change of wrestlers is made only if it is called for. It is also the
case of the respondent No. 4 that the last trials were held on February 18,
2014 at Sonepat wherein, trials were held for 65 kg as well as 70 kg
category. The petitioner offered himself in trials in 70 kg category and
not in 65 kg category. The selections have been made for the
Commonwealth Games, 2014 keeping in view the performance of the
wrestlers at the said trials and their current performance in the camp
which is underway since November, 2013. It is the case of respondent
No. 4 based on the judgment of this Court in W.P.(C) 5034/2010, titled
Shumel Vs. Union of India and Ors. and connected writ petitions decided
on August 02, 2010, no interference is called for in the selection of the
team which is based on the performance, and the selection of players
should be left to the experts. The respondent No. 4 also relied upon the
judgment of this Court in W.P.(C) 7170/2010, titled Neha Rathi Vs.
Union of India and Ors., decided on November 10, 2010, wherein this
Court, has held that there is no rule to necessarily hold selection trials
and the selection of wrestlers on the basis of their past performance does
not call for fresh trials.
16. The respondent No. 1, Ministry of Youth Affairs & Sports, Govt.
of India has also filed its affidavit. Suffice to state, that the respondent
No. 1 has taken a stand that it does not interfere in the day to day
functioning of the respondent No. 4 (WFI) including selection of players
and teams to represent in international tournaments, which is the
responsibility of respondent No. 4 (WFI) and it does not have a direct
involvement in the selection process. Similarly, Indian Olympic
Association, the respondent No. 2 has averred that on April 28, 2014, an
email communication was received from the Sports Entries Coordinator,
Organizing Committee, Glasgow Commonwealth Games, intimating the
deadline for the submission of the final entries for each sport i.e. June
11, 2014. The Indian Olympic Association has sent reminders to all
sports federations from whom entries were not received. The entries for
all weight categories for men and women were received from respondent
No. 4 (WFI) vide email dated June 11, 2014, wherein, 14 names have
been listed as their entry for the games. The entries for all the sports,
were sent before the deadline time on June 11, 2014 and a confirmation
was also received from the Organising Committee, Commonwealth
Games, 2014, confirming the receipt of the entries for all sports. An
email dated June 18, 2014 was received from the Sports Entries
Coordinator, Organising Committee, Glasgow Commonwealth Games,
providing the Indian Olympic Association, port Entries Athlete
Replacement Request Forms and Athlete Replacement
Policy/Procedures wherein various conditions have been outlined for the
withdrawal and replacement of athletes after sending the final names of
players by any Commonwealth Games Association. The change,
according to the respondent No. 2 (IOA), is the discretion of
Commonwealth Games Federation Executive Board which is decided by
them on a case to case basis after consultation with the concerned
International Federation.
W.P. (C) 3943/2014
17. This petition has been filed by the three petitioners, inter alia,
seeking a prayer for derecognising the respondent No. 4 (WFI) for
violation of the Code, with a further direction to the Indian Olympic
Association not to forward the names of any players without selection
trials for the forthcoming Commonwealth Games, Glasgow, 2014 and
for direction to the Wrestling Federation of India to hold trials for
upcoming Commonwealth Games in terms of the Guidelines issued on
September 18, 2008. It is their case that they have been participating in
the national and international events in 125, 57 and 97 kg categories.
They were invited to participate in Coaching Camps organised by
respondent No. 4 (WFI) in order to prepare for the forthcoming
Commonwealth Games, 2014. The petitioner No. 1 Joginder Kumar had
to leave the camp midway for medical reasons and he did so by
informing the authorities and by supplying a medical certificate. He has
also submitted his Fitness Certificate thereafter. It is also the case of the
petitioners that prior to this contingent, all contingents have been
finalised on the basis of selection trials which have been conducted by
the respondent No. 4 (WFI) and which has also been announced in the
Times of India‟s Article dated May 28, 2014 that they would be
conducting selection trials from 15th to 20th June, 2014. Instead of
holding trials, they have held selection trials for women on June 15,
2014 in Lucknow. The respondent No. 4 (WFI) is under a mandate in
terms of the past practice, to hold the selection trials to ensure free, fair
and transparent selections in terms of the Code which is mandatory as
declared by Division Bench of this Court. It is their case that the trials
are particularly significant and important as few months prior to this, the
International Wrestling Federation has reshuffled the weight categories
by increasing the weight in 5 out of 7 categories and reducing the weight
in one of the seven categories.
18. The stand of the respondent No. 4-Wrestling Federation of India in
this writ petition is almost on the same lines as taken in W.P.(C) No.
3914/2014.
19. The respondent No. 4 (WFI) has also taken a stand that on
February 18, 2014, trials were held for selection of wrestlers for Senior
Freestyle Indian Wrestling Team for World Cup held at Los Angeles and
for 2014 Senior Free Style Wrestling Asian Championship from 22 to 24
April 2014 at Kazakhstan. The said trials were held in the presence of
Selection Committee to select wrestlers in the 8 categories. After
watching the performance, a team was selected which included the name
of Amit Dhankhar, one of the petitioners in 70 kg category. The
petitioner No. 1 Joginder Kumar did not participate in the trial as he was
absent on the pretext of physical injury. The petitioner No. 2 Rahul
Aware participated in the said trials in the category of 57 kg weight and
he lost the trial to Amit Kumar, who has been selected in his place. The
petitioner No. 3 Mausam Khatri and Mr. Rajeev Tomar were relieved
from Doping Charges by NADA. Taking into account the past
performance, trials were held for petitioner No. 3 Mausam Khatri and
Mr. Rajeev Tomar along with trials for Greco Roman Style on April 02,
2014. In the said trials, petitioner No. 3 Mausam Khatri lost to Mr.
Satyavarat Kadyan who has been selected. It is also the stand of the
Wrestling Federation of India that the NADA team came to the ongoing
training camp at Sonepat on June 21, 2014 to conduct the Dope test on
the participants, whose dope has not so far been conduct. Mr. Amit
Dhankhar and petitioner No. 3 Mausam Khatri and Mr. Ajit were
present in the camp but, they refused to submit themselves for Dope
Test.
20. Insofar as Joginder Kumar, petitioner No. 1 is concerned,
according to the respondent No. 4 (WFI), he did not attend the camp for
5 months from January to May 2014. According to the Code, an athlete,
who did not participate in the coaching camp prior to selection cannot be
allowed to participate in the selection trials, except in exceptional cases
with due justification. In the absence of petitioner No. 1 Joginder Kumar
in the camp, it was necessary to bring another wrestler to the training
camp in 125 kg category. It is the case of the respondent No. 4 (WFI),
that it is impermissible to allow wrestlers, who have not attended the
training camp to participate in the selection trials, much less an
international event. Further, it would be inappropriate for the respondent
No. 4 (WFI) to replace a wrestler who has been training himself for the
specific weight category for over 7 months or to ask him to undergo
fresh trials. A comparative statement has been filed, reflecting the
contention of petitioner No. 1 and of Rajeev Tomar. The petitioner No.
2 lost to Amit kumar in 55 kg category in the selection trials held on
February 18, 2014 at Sonepat. Despite losing to Amit Kumar, who is
also an Olympian and a Silver Medallist of 2013 Senior World Wrestling
Championship, Budapest, the respondent No. 4 (WFI) gave another
chance to petitioner No. 2 for participation in International Wrestling
Tournament held at Italy from 29.05.2014 to 01.06.2014. However, just
before the team was to leave for Italy, the petitioner submitted an
application on May 26, 2014 expressing his inability to participate in the
event on the pretext of fitness. It appears that the petitioner No. 2
avoided to participate in the tournament fearing defeat. The respondent-
WFI filed a comparative chart showing the merits of the petitioner No. 2
Rahul Aware and Mr. Amit Kumar, who have been selected in that
category.
21. Insofar as the petitioner No. 3 is concerned, he is of 97 kg free
style wrestler. After being relieved by NADA, he participated in the
special selection trial held on April 03, 2014 and lost the bout to Mr.
Satyavarat Kadyan, who has been selected. According to respondent No.
4 (WFI), he did not show good performance in recent times. It is the case
of WFI that in the past also, the team consisting of winners in National
Championship and on the basis of the performance in the International
events and current performance, have been sent to many international
tournaments. They would justify the trials in the women‟s category
because of the inconsistent performance of the women wrestlers and also
because of injury of Geeta Phogat. The respondent No. 1 (Ministry of
Youth Affairs and Sports) and the respondent No. 2 (Indian Olympic
Association) have reiterated the stand as taken by them in W.P.(C)
3914/2014.
W.P.(C) 3955/2014
22. The case of the petitioner in this writ petition is that he is a
wrestler and has been participating and winning national and
international wrestling tournaments in the 55 kg, 60 kg and 65 kg
categories since the year 2006. He won Gold Medal, Silver Medal and
Bronze Medal and participated each at National Wrestling
Championship, National games, Commonwealth Games Wrestling
Championship, International Wrestling Tournaments, Asian
Championship. Now, he intends to participate in Olympic Wrestling in
the category of 55-60 kg weight. According to him, the following are his
achievements:
S.No. Name of the Date of Place Weight Position
Competition the Competition Category Secured
1. 26th Junior Boys 28th to 30th Pune, 55 Kg Bronze
National Wrestling May, 2006
Maharashtra Free Style Medal
Championship
2. 27th Junior Boys nd
22 to 25 th
Puri, Orissa 60 Kg Silver
National May 2008
Free Style Medal
Wrestling Championship
3. 54th Senior National Men th
8 to 11 th
Bhopal, M.P 60 Kg Gold Medal
And Women Wrestling October 2009
Championship
4. 55th Senior National 25th to 28th Ranchi 60 Kg Silver
Men and Women 2010
Jharkhand Medal
Wrestling Championship
th th
5. National Games 16 to 26 Ranchi 60 Kg Gold Medal
February 2011
Jharkhand Free Style
st th
6. Golden Grandprix 1 to 4 Tashkent 55 Kg Participated
International Wrestling March 2007
Uzbekistan Free Style
Tournament
Championship
7. Shaheed Bhagat Singh 30th October Julandhar 60 Kg Gold Medal
International Wrestling to 1st November
India Free Style
Tournament 2009
8. Hargobind Singh 6th to 7th Surrey 60 Kg Silver
International Wrestling November 2009
Cananda Free Style Medal
Tournament
th th
9. Commonwealth 17 to 20 Julandhar 60 Kg Bronze
Wrestling Championship December 2009
India Free Style Medal
th th
10. Dave Schultz Memorial 5 to 8 Colorado 60 Kg 9th Position
International Wrestling February 2010
Springs Free Style
Tournament
USA
nd th th
11. 2 Shaheed Bhagat 9 to 12 Julandhar 60 Kg Gold Medal
Singh International February 2011
India Free Style
Wrestling Tournament
th nd
12. Asian Championship 19 to 22 Tashkent 60 Kg Participated
May 2011
Uzbekistan Free Style
th th
13. Commonwealth 6 to 7 Australia 60 Kg Gold Medal
Wrestling Championship August 2011
Free Style
th th
14. World Cup Wrestling 15 to 16 Los Angles 65 Kg Participated
Championship March 2014
California Free Style
USA
23. According to him, the selection for the Commonwealth Games
2014 to be held in Glasgow in July 2014 has to be by holding selection
trials. He would also state that because of the change in the weight
requirements suggested by the international body, coupled with the fact
that there is no well established precedent by reason of past performance
to establish how the combatants will perform in the new weight
categories. In other words, it is his case that because of introduction of
new weight categories, selection trials are even more imperative.
24. The stand of the respondent No. 4 (WFI) in its counter affidavit is
on similar lines as taken W.P.(C) Nos. 3914 & 3943 of 2014. That apart,
it is the stand that the Federation selects only national winner wrestler
for participation in the national coaching camps, but, since one wrestler
in 66 kg weight category did not report in the national camp, the
respondent No. 4 (WFI), in order to further promote the petitioner,
despite his poor performance, after the year 2012, Copa Brazil
Tournament held at Re Dio Janeiro (Brazil), gave an opportunity to the
petitioner to attend National Camp in place of injured wrestler. The WFI
has also taken a stand that the petitioner participated in the selection
trials held on February 18, 2014 and was trained to participate in 2014
World Cup Wrestling Championship held at Los Angeles from March 14
to March 16, 2014, in Senior Asian Wrestler Championship held at
Kazakhstan from April 22 to 27, 2014, but, in both the tournaments, his
performance in 65 kg category was not upto the mark and the petitioner
stood 12th position in Senior Asian Wrestling Championship & in World
Cup. He won only one bout out of four. The national coach and foreign
coach shortlisted one Mr. Bajrang in 61 kg weight category for
Commonwealth Games 2014, who won Silver Medal in Senior Asian
Wrestling Championship and again won Silver Medal in recently
concluded International Tournament held in Italy from 30-31st May,
2014. The team having been finalized, the present petition is not
maintainable. Suffice to state, the respondent No. 1 i.e. Ministry of
Youth Affairs and Sports, Govt. of India and Indian Olympic
Association (Respondent No. 2) have taken identical stands as taken in
the other two writ petitions i.e. W.P.(C) Nos. 3914 & 3943 of 2014.
THE SUBMISSIONS:
25. Mr. Raj Kumar Rajput, learned counsel appearing for the
petitioner in W.P.(C) 3955/2014 would submit that the petitioner is in
camp since January, 2014 at SAI Centre, Sonepat. He would highlight
the achievements of the petitioner by taking me through Annexure P-1 of
the writ petition to contend that as late as August 2011, the petitioner has
won Commonwealth Wrestling Championship. He would state that
earlier he has been participating in 60 kg category and because of the
change in the weight category as suggested by international body, he has
been preparing himself for getting selected in the 61 kg category. He
would state, in terms of the Code, the selection trials are imperative
before a team is selected. Unfortunately, the same have not been held.
He would also state, such a selection trial must follow a criteria having
been laid down by the respondent No. 4 (WFI) and put on the website. It
is his submission that the writ petition has not become infructuous as the
list sent is temporary and as per the instructions of the IOA, the list can
be changed in accordance with the athlete replacement policy due to
injury, illness and other special circumstance subject to approval by the
Commonwealth Games Federation Executive Board (CGF). He would
also state that the deadline for athlete replacement request is till 4.00
p.m. local time of July 22, 2014. He states that list of athletes prepared
by the Selection Committee, which is alleged to have been sent by
respondent No. 4/respondent No. 2 to the Commonwealth Games
Committee is illegal, contrary to the Code and need to be recalled back
and a fresh list, in terms of the Code, need to be prepared.
26. Mr. Rahul Mehra, learned counsel appearing for the petitioners in
W.P.(C) 3943/2014 would, at the outset, submit that the date of June 11,
2014 was not a sacrosanct date so as to send the list by that date. He
would point out to the list sent by the respondent No. 4 (WFI) in the case
of female wrestlers initially on June 10, 2014, had only five names
(Annexure R3/23). Subsequently, in terms of email dated June 11, 2014,
two new names were added. According to him, this list was in fact, sent
to the Commonwealth Games Committee on June 15, 2014. He has also
drawn my attention to paras 10.5 and 10.6 of the Sports Code, which
have already been reproduced above, to contend that in view of these
provisions, the selection trials, at least for major international sports
events like Asian Games/Commonwealth Games/Olympic Games, are
imperative. Since the Commonwealth Games are at "cost to the
Government" (Tax Payers Money), the respondent No. 4 (WFI) should
have forwarded the Minutes of the Selection Committee to the Ministry
of Youth Affairs and Sports at least 3 months in advance. According to
him, clause 3 of the guidelines issued vide letter dated September 18,
2008 are mandatory in nature. He has taken me to all sub-clauses under
clause 3 to support his contention. According to him, the objective of
these guidelines is to ensure fair and transparent selection. No criteria
was ever communicated to the players, coaches, government observers
nor has been put on website. The Commonwealth Games being a
measurable event, the qualifying norms were to be fixed along with
notice for selection trials. He would also state that the petitioner No. 1
Joginder Kumar has excellent credentials inasmuch as he won a Gold
Medal in 120 kg Free Style Wrestling category in the Commonwealth
Games Wrestling Championship held between 5th to 7th November, 2013
at Johannesburg, South Africa. That apart, he would state that he was a
Silver Medallist in the last Commonwealth Games held in Delhi in the
said category. According to him, the gentleman selected namely Mr.
Rajeev Tomar had serious doping charges against him, for which, he was
debarred from participating in any of the wrestling matches. Rajeev
Tomar could be relieved of the charges only recently in the year 2014.
According to him, a special trial in Greco Roman Style was held for him
on April 02, 2014, and the last Gold Medal was won by him was in the
year 2009 in Commonwealth Wrestling Championship held at Jalandhar
between September to December, 2009. He would state that if the
criteria adopted by the respondent should be the basis, then, it was the
petitioner No. 1 who was to be selected and not Rajeev Tomar. It is also
his case that from January to May 2014, because of the injury suffered
by him, he, under medical advise remained out of the camp. In May
2014, after fully recovering from the injury, he has submitted his medical
fitness certificate, on which, according to him, no decision has been
taken. According to him, it is not the case of the respondent No. 4 (WFI)
that he has feigned his injury.
27. Insofar as petitioner No. 2 Mr. Rahul Aware is concerned, learned
counsel would draw my attention to page 386 of the W.P.(C) 3943/2014
to submit that he is a Gold Medallist in 60 kg category and since
December 2013, he is attending the camp at SAI Centre, Sonepat. In
terms of the change in the weight category, the petitioner No. 2 would be
qualified to participate in 61 kg Free Style Wrestling. The selection has
been made of Yogeshwar Dutt in 65 kg category and Mr. Bajrang in 61
kg category. According to him, the petitioner No. 2 was a Gold
Medallist in 2011 Commonwealth Free Style Greco Roman Style and
Female Wrestling Championship held at Melbourne in the year 2011.
He was also a bronze medallist in 2011 in Senior Asian Free Style
Championship held at Uzbekistan. He participated in the Dave Schultz
Memorial International Free Style in the months of January- February,
2014.
28. That insofar as petitioner No. 3 Mausam Khatri is concerned, he
would state that Mausam Khatri has been participating earlier in 96 kg
category, which has now been changed to 97 kg category. He would
also highlight the performance of Mausam Khatri. According to him,
there is no comparison between the petitioner No. 3 and Satyavarat
Kadyan, who has now found his place in the list. He has drawn my
attention to the different provisions of the Code, which have already
been highlighted above. He has also placed reliance on para 1, para 33
and para 86 of the judgment of the Division Bench of this Court in
W.P.(C) No. 2310/2012 to contend that till such time a legislation is
formulated by the Parliament, the Code would hold the field and the
selection necessarily be in accordance with the Code. In the last, he
would state that the stand of the respondent, relying upon the trials held
on February 18, 2014 and April 02, 2014, is totally misplaced as the said
trials on those dates were only for selecting a team for participation in
2014 World Cup held at Los Angeles from 14 to 16th March, 2014 and
for selecting team for participation in 2013 Senior Asian Free Style
Greco Roman Style and Female Wrestling Championship held at
Kazakhstan from 22 to 27th April, 2014. According to him, there was no
indication that the trials held on February 18, 2014 and April 02, 2014
would hold good for selecting the team for participating in the
Commonwealth Games, 2014. According to him, by that analogy, one
of the petitioners namely Amit Dhankhar, who was selected in those
trials, should necessarily be selected to participate in the Commonwealth
Games, 2014. Since the selection trials need to be held afresh, no
reliance could have been placed by the respondents only on the selection
trials on those dates. He would submit that it is a case where the
respondent No. 1 Ministry of Youth Affairs and Sports has failed to
discharge its obligation under the Code to ensure a fair and transparent
selection.
29. Mr. Arun Bhardwaj, learned counsel appearing for the petitioner
in W.P.(C) 3914/2014 has referred to the instructions issued by the
Commonwealth Games Committee to contend that in terms of the
replacement policy, the Commonwealth Games Association i.e. the
concerned country will be permitted to submit a preliminary squad by
close of entries on June 11, 2014 with final squads to be confirmed on
July 07, 2014. According to him, the list which has been sent on June
11, 2014 is only a temporary list, subject to change. He has also drawn
my attention to para 3.1.9 of Athlete Replacement Policy to contend that
under exceptional circumstances, after close of entries and upto the time
of relevant sport technical meeting, athlete replacements may be
approved by the Commonwealth Games Federation Executive Board, in
consultation with the relevant International Federation. According to
him, the deadline for athlete replacement request is July 22, 2014 till
4.00 p.m. local time. He would also show the credentials of the petitioner
Amit Dhankhar at page 29-30 of the writ petition to contend that the
petitioner required to be selected. He would state, in the past, he had
participated in 70 kg category but the same is of no relevance. According
to him, the petitioner today falls in 65 kg weight category. Depending
upon the weight of the persons at a particular point of time, he gets
eligibility to participate in that category. A person with lesser weight can
participate in higher weight category. According to him, today he is
entitled to participate in 65 kg category, for which, the trials necessarily
have to be held. He would also state that the past performance would
only be an input for selecting the team. The overall selection need to be
made by taking the performance at the trials. He quotes an example of
Mary Kom, who despite winning a medal in the last Olympics could not
be selected for the Commonwealth Games because of her performance in
the trials.
30. On the other hand, Mr. Pradeep Dewan, learned Senior Counsel
appearing for the respondent No. 4 (WFI) in all the three writ petitions,
would urge that insofar as the petitioner Amit Dhankhar in W.P.(C)
3914/2014 is concerned, he is not entitled to any relief as he has
concealed material facts that in the past, the said petitioner was
participating in 70 kg category, by referring to the tournaments, which
the said petitioner has participated in the past. In this regard, he has
taken me through the counter affidavit filed by the respondent No. 4
(WFI) wherein, it has detailed the number of tournaments participated by
this petitioner in the 70 kg category. On Code, it is his submission that
the same would be binding on the Ministry of Youth Affairs and Sports
(respondent No. 1), the IOA (respondent No. 2) and the Wrestling
Federation of India (respondent No. 4) and the same cannot be read as a
Statute. He would also state that the Federations not being a government
bodies but societies, their working is very informal, inasmuch as every
meeting/selection does not necessarily has recorded minutes. Further,
discretion is vested with them to evolve its own procedure for selection.
He would justify the selection of the Men‟s Wrestling Team in Free
Style Wrestling. He has also drawn my attention to letter dated June 23,
2014 written by the foreign expert annexed to page 399 of W.P.(C)
3943/2014, wherein, the foreign expert has highlighted that the team
selected for Commonwealth Games 2014 is the best possible team by
considering the following factors:
"1. Past performance in major events like Olympic and
world wrestling championship.
2. Including iconic players like Olympic medal winners
Sushil Kumar and Yogeshwer Dutt which leads a high
stature of team.
3. Discipline, commitment, dedication and hard work
exhibited during the coaching camps at NRC, Sonepat.
4. Future development of the team with 2016 Rio
Olympic Games in view and giving exposure during
important games to wrestlers who are likely to qualify
for the 2016 Rio Olympic Games.
5. Performance shown during the periodical trials held
during the last one year and also during the training
camps."
31. He would also state that the wrestlers whose names have been sent
to the Commonwealth Games Committee are necessary parties and in
their absence, no orders can be passed. He would also state that the
selection list is a final list as replacement is permitted only under certain
circumstances like injury or any illness and that too, it is within the
discretion of the Commonwealth Games Federation Executive Board to
allow such replacement. The final list, even if prepared, would be in
accordance with the instructions issued by the Commonwealth Games
Federation and not otherwise. He would also draw my attention to the
certificate issued by camp doctor dated June 24, 2014 to suggest that
loosing weight would have serious impact like loss of energy, strength,
endurance, which may enable a wrestler to give his best performance. He
has also suggested that it is advisable that a wrestler gain weight rather
than reduce the weight. He would also submit that in the past also, the
petitioners namely Joginder Kumar, Rahul Aware and Amit Dhankhar
have been the beneficiaries of the same process as has been undertaken
by the Selection Committee for Commonwealth Games 2014. He would
point out that for 2013 Commonwealth Wrestling Championship which
was held at Johannesburg, South Africa, the selection was done on the
basis of their past performance. He has also drawn my attention to the
meeting of the Selection Committee held on July 04, 2013 for selecting
the team for participation in 2013 Asian Cadet Free Style Greco Roman
and Female Wrestling Championship held in Ulaanbaatar, Mongolia
from 25-28th July, 2013; so also, the meeting of the Selection Committee
held on June 07, 2012 for participation in the 2012 Asian Cadet
Wrestling Championship held at Bishkek (Kyrgyzstan) held between 5 to
8th July, 2012 and meeting of the Selection Committee held on 7th June
2012 for selecting the wrestling teams for participation in the special
training camp held in Colorado, Springs, USA; the meeting of the
Selection Committee held on May 21, 2012 for selecting the team for
participation in 1st Hari Ram Indian Grand Prix International Wrestling
Tournament held in New Delhi between 25-27 May, 2012; meeting of
the Selection Committee of the WFI held on April 10, 2012 to select the
team for participation in the 2012 1st World Olympic Games Qualifier
Wrestling Tournament held at Taiyuan, China from 27 to 29th April,
2012, without holding any trials. Similarly, meeting of the Selection
Committee dated June 13, 2011 held in New Delhi for selection of the
wrestlers for participation in the International Wrestling Tournament
„Grand Prix‟ held at Madrid from 9 to 10th July, 2011 without holding
trials. He has also justified the selection of seven wrestlers for
participating in the Commonwealth Games 2014, on merits, by taking
me through their credentials. He would further state, the judgment of
this Court in W.P. (C) No. 2310/2012 is binding intra-parties and no writ
of mandamus can be issued, on a petition filed by a third party, to the
authorities for holding trials as per Code, which has no statutory force.
He would rely upon the following judgments:
(i) The State of Assam and another Vs. Ajit Kumar Sarma
and Ors., AIR 1965 SC 1196 (V 52 C 188)
(ii) J.R. Raghupathy and Ors. Vs. State of A.P. and Ors. and
connected civil appeals (1988) 4 SCC 364
(iii) Kumari Regina Vs. St. Aloysius Higher Elementary
School and Anr., (1971) Supp. S.C.R.
32. Learned Senior Counsel would also rely upon the judgment of the
Single Judge of this Court in W.P.(C) No. 5034 of 2010 and connected
writ petitions decided on August 02, 2010 and W.P.(C) 7170/2010
decided on December 10, 2010 in support of his contention that the
selection of the team must be left to the expert body and the Court must
not interfere. In the last, he would submit that any directions at this
juncture for holding trials would unnerve wrestlers and put in
unnecessary physical strain on them who are undergoing coaching under
the supervision of the experts. He seeks the dismissal of the writ
petitions.
33. Learned counsel appearing for the respondent No. 1 in the writ
petitions would reiterate the stand taken by the Ministry of Youth Affairs
and Sports in its short affidavit and he would also state that no
representations was ever made by the petitioners to the Ministry to look
into the process of selection. He would state, on instructions, if Court is
of the view that the selection has to be made through trials, the
respondent No. 1 would be open to appoint an Observer to oversee the
selection.
34. Learned counsel appearing for the Indian Olympic Association
(respondent No. 2) has only drawn my attention to the sports entries
athlete replacement request form to submit that the replacement is not
automatic and subject to being approved by the Commonwealth Games
Federation in accordance with the Commonwealth Games Federation
Obligation SPT 18, which is decided on case to case basis after
consultation with relevant international Federation.
35. In rejoinder, Mr. Rahul Mehra, learned counsel would only submit
that even if the petitioners were beneficiary of the same selection
process, that was only in international event, but, not for selection for
Commonwealth Games. According to him, never in the past, team for
Commonwealth Games has been selected without trials. He would
further state, the selection being void-ab-initio, the persons in the select
list are not necessary parties.
36. Mr. Arun Bhardwaj, learned counsel also in rejoinder would
distinguish the judgments relied upon by the learned Senior Counsel for
WFI and states that in those cases, one; trial was not held and in other
case, it was not brought to the knowledge of this Court that in terms of
the Sports Code, trials were mandatory.
37. Having considered the submissions made by the learned counsel
for the parties, at the outset, I may state here that in two writ petitions i.e.
W.P.(C) Nos. 3943 and 3955 of 2014, a prayer for derecognising the
respondent No. 4 has been made. I do not think that the learned counsel
for the petitioners in the said writ petitions have seriously made any
submissions in that regard. Now, the first and foremost issue which
would arise is, whether, in view of the nature of Code, a writ of
mandamus can be issued to enforce non-statutory guidelines. Suffice to
state, recently, the Supreme Court in the case reported as AIR 2010 SCC
1955, Secretary, Cannanore District Muslim Educational Association
Vs. State of Kerala and Ors., after referring to its various judgments
including J.R.Raghupathy‟s case (supra), held as under:
"37. The same view was also expressed subsequently by
this Court in J.R. Raghupathy v. State of A.P. [(1988) 4
SCC 364 : AIR 1988 SC 1681] Speaking for the Bench,
Justice A.P. Sen, after an exhaustive analysis of the trend
of Administrative Law in England, gave His Lordship's
opinion in para 29 at p. 1697 thus: (SCC p. 386, para 30)
"30. Much of the above discussion is of little or academic
interest as the jurisdiction of the High Court to grant an
appropriate writ, direction or order under Article 226 of
the Constitution is not subject to the archaic constraints
on which prerogative writs were issued in England. Most
of the cases in which the English courts had earlier
enunciated their limited power to pass on the legality of
the exercise of the prerogative were decided at a time
when the courts took a generally rather circumscribed
view of their ability to review ministerial statutory
discretion. The decision of the House of Lords in Padfield
case [Padfield v. Minister of Agriculture, Fisheries and
Food, 1968 AC 997 : (1968) 2 WLR 924 : (1968) 1 All ER
694 (HL)] marks the emergence of the interventionist
judicial altitude that has characterised many recent
judgments."
This extract is taken from Cannanore District Muslim
Educational Assn. v. State of Kerala, (2010) 6 SCC 373
at page 382
38. In the Constitution Bench judgment of this Court in
LIC v. Escorts Ltd. [(1986) 1 SCC 264] this Court
expressed the same opinion that in Constitutional and
Administrative Law, law in India forged ahead of the law
in England (SCC p. 344, para 101).
39. This Court has also taken a very broad view of the
writ of mandamus in several decisions. In Comptroller
and Auditor General of India v. K.S. Jagannathan
[(1986) 2 SCC 679 : 1986 SCC (L&S) 345 : (1986) 1
ATC 1 : AIR 1987 SC 537] a three-Judge Bench of this
Court referred to Halsbury's Laws of England, 4th Edn.,
Vol. I, para 89 to illustrate the range of this remedy and
quoted with approval the following passage from
Halsbury about the efficacy of mandamus:
"89. Nature of mandamus.-- ... is to remedy defects of
justice; and accordingly it will issue, to the end that
justice may be done, in all cases where there is a specific
legal right and no specific legal remedy, for enforcing
that right; and it may issue in cases where, although
there is an alternative legal remedy, yet that mode of
redress is less convenient, beneficial and effectual." (See
SCC p. 692, para 19 of the report)
In SCC para 20, in the same page of the report, this
Court further held: (K.S. Jagannathan case [(1986) 2
SCC 679 : 1986 SCC (L&S) 345 : (1986) 1 ATC 1 : AIR
1987 SC 537] , p. 693)
"20. ... and in a proper case, in order to prevent injustice
resulting to the parties concerned, the court may itself
pass an order or give directions which the Government or
the public authority should have passed or given had it
properly and lawfully exercised its discretion."
40. In a subsequent judgment also in Shri Anadi Mukta
Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti
Mahotsav Smarak Trust v. V.R. Rudani [(1989) 2 SCC
691 : AIR 1989 SC 1607] this Court examined the
development of the law of mandamus and held as under:
(SCC p. 701, para 22)
"22. ... mandamus cannot be denied on the ground that
the duty to be enforced is not imposed by the statute.
Commenting on the development of this law, Professor de
Smith states: „To be enforceable by mandamus a public
duty does not necessarily have to be one imposed by
statute. It may be sufficient for the duty to have been
imposed by charter, common law, custom or even
contract.‟ (Judicial Review of Administrative Action, 4th
Edn., p. 540). We share this view. The judicial control
over the fast expanding maze of bodies affecting the
rights of the people should not be put into watertight
compartment. It should remain flexible to meet the
requirements of variable circumstances. Mandamus is a
very wide remedy which must be easily available „to
reach injustice wherever it is found‟. Technicalities
should not come in the way of granting that relief under
Article 226. We, therefore, reject the contention urged for
the appellants on the maintainability of the writ petition."
(emphasis supplied) (See AIR p. 1613, para 21.)"
38. Even this Court in the case reported as ILR 2009 (IV) Delhi 280,
M/s. Narinder Batra Vs. Union of India, on an issue, whether the writ of
mandamus can be issued to enforce non-statutory guidelines, has, while
referring to the judgments relied upon by the learned Senior Counsel for
the respondent No. 4, has held as under:
"200. So far as the jurisdiction to lay down
conditions and enforce the guidelines for grant of
financial assistance and recognition is concerned, an
issue with regard to permissibility of University/State
providing for a condition for granting
recognition/affiliation was raised before the Apex Court
in the judgment reported at AIR 2003 SC 3724 Islamic
Academy of Education v. State of Karnataka. The Apex
Court in para 17 of the judgment held that such
provisions/conditions prescribing merit base selection
can be made at the time of granting recognition or
affiliation as well as subsequently after the grant of such
recognition or affiliation.
201. It is, therefore, trite that though it may not be
possible to assert a right based on
administrative/executive instructions and non-statutory
guidelines, however, a challenge may be available to a
person to assail an action by the authority concerned on
grounds of arbitrariness, malafide for breach thereof.
The prayers made by the petitioner have to be tested in
this background.
202. The respondent no. 1 has stated that the
Indian Hockey Federation is the national level federation
recognised by the Government for the game of hockey. It
is further stated by the Government on affidavit that the
Indian Hockey Federation is one of the national sports
federations getting financial assistance exceeding Rs. 1
crore in a year through the Comptroller General of India
as per the provisions of „guidelines for assistance to
National Sports Federation‟ and that has been issued
necessary instructions for audit of its accounts. A
statement showing grants released by the Ministry of
Youth Affairs & Sports to the Indian Hockey Federation
between 1995 to the year 2005 shows that in the year
1995 an amount of Rs. 80,54,831/- was released which in
the year 1999, went up to Rs. 1,09,12,796/- and in 2004-
2005 has further increased to Rs. 1,94,21,032/-.
203. The respondent no. 2 though has not given the
details of the amounts advanced by the respondent no. 1,
however it accepts that respondent no. 1 is giving
financial assistance have identified activities of the
players. It is also stated that apart from the grants made
by the Government of India, the respondent federation is
receiving funds through sponsorship and royalties from
sale of broadcasting rights of matches.
XXX XXX XXX
206. In the case reported at State of Assam v. Ajit
Kumar Sharma (supra), Mr. Ajit Kumar Sharma was a
teacher in the Hindu Girls College at Gauhati which
received a grant from the State of Assam. Certain
conditions had been imposed by the State Government of
Assam while giving such a grant to private colleges to
enable them to give higher scales of pay etc. to their
teachers in accordance with the recommendations of the
University Grants Commission. The petitioner was
seeking enforcement of these rules as binding on the
college and seeking a mandamus based thereon as an
entitlement to the benefits under the rules.
In the judgment reported at AIR 1965 SC 1196
State of Assam v. Ajit Kumar Sharma, the Apex Court
clearly held that there was no law to prevent the state
from prescribing the conditions of the grants made by it
by mere executive, instructions which do not have the
force of statutory rules. Such conditions of grant in aid
laid down by executive instructions were open to the
private college to accept or not to accept them. If it
decides not to accept the instructions, it would naturally
not get the grant and aid which was contingent on it
accepting the conditions contained in the instructions.
It was held that the state could prescribe
instructions laying down condition of grant. However it
was not open to a teacher to insist that the governing body
should carry out the instructions as they conferred no right
of any kind on teachers and consequently they could not
apply to the High Court for a mandamus seeking the
enforcement or non-enforcement of the rules, even if
indirectly there may be some effect on them because of the
grant and aid being withheld in whole or in part.
207. The pronouncement of the Apex Court reported
at (1988) 4 SCC 364 J.R. Raghupati v. State of Andhra
Pradesh & Ors. was concerned with a challenge to a
pronouncement of the Andhra Pradesh High Court
involving a question of principle relating to location of
mandal headquarters in the state of Andhra Pradesh
under section 3(5) of the Andhra Pradesh Districts
(Formation) Act, 1974. The issue raised before the court
was whether location of the Mandal Headquarters was a
purely governmental function and therefore not amenable
to the writ jurisdiction of the High Court under article
226 of the Constitution. The High Court quashed the
Government notification issued after consideration of
objections and a detailed consideration by the authorities
on the ground that the government acted in breach of
guidelines. In this case the court was of the view that
mandamus could not be issued to enforce the guidelines
which were in the nature of administrative instructions
not having a statutory force and not giving any legal
right in favour of the writ petitioners.
In this case, the Apex Court set aside the
interference by the High Court in cases where it had
directed relocation of the Mandal Headquarters inter alia
for the reason that the location of the Mandal
Headquarters by the Government was on a consideration
by the Cabinet Sub-committee of proposals submitted by
collectors concerned and objections and suggestions
received from local authorities like the Gram Panchayat
and the general public keeping in view the relevant
factors. The court was of the view that even if breach of
the guidelines laid down by the Government was
justiciable, the utmost that the high Court could have
done was to quashed the impugned notification in a
particular case and direct the Government to reconsider
the question. It was further observed by the court that
there was nothing on record to show that the decision of
the State Government in any of the cases was arbitrary or
capricious or was one not urged in good faith or actuated
with improper consideration or influenced by extraneous
considerations. The issues raised before the Supreme
Court in this case do not arise for consideration in the
present case.
208. Again in Kumari Regina v. Saint Aloysius
Higher Elementary School and Anr. reported at (1972) 4
SCC 188 the Supreme Court held that if the terms of the
appointment letter issued by the school were different
from the conditions of the affiliation to be fulfilled by a
school as imposed by the State Government, a teacher
aggrieved thereby may not be entitled to seek a relief in
his favour on the basis of the conditions of affiliation. At
the same time, the Apex Court held that, the state
administration was fully empowered to enforce the
fulfilment of the conditions towards affiliation against the
school. It is noteworthy that in para 24 of the
pronouncement, the Apex Court has clearly stated that
the Government has the power to admit schools to
recognition and grants in aid; and it cannot be gainsaid
that de hors the statutory enactment, the Government can
lay out conditions under which it would grant recognition
and aid. It is further held by the Supreme Court that "to
achieve uniformity and certainty to the exercise of such
executive power and to avoid discrimination, the
Government would have to frame rules which, however,
would be in the form of administrative instructions to its
officers dealing with the matters of recognition and aid. If
such rules were to lay down conditions, the Government
can insist that satisfaction of such conditions would be a
condition precedent to obtaining recognition and aid and
that a breach or non-compliance of such conditions
would entail either denial or withdrawal of recognition
and aid. The management of a school, therefore, would
commit a breach or non-compliance of the conditions
laid down in the rules on pain of deprivation of
recognition and aid. The rules thus govern the terms on
which the Government would grant recognition and aid
and the Government can enforce those rules upon the
management.
209. It is noteworthy that the conclusions of the
Apex Court in the case were based on the well settled
principles that non-statutory administrative/executive
conditions and instructions would confer no right on the
teachers of private college and they cannot ask that either
a particular instruction or condition should be enforced
or should not be enforced to assert a right in his favour
based thereon. However, the Apex Court reiterated its
earlier view that the Government is entitled to insist on
compliance with such conditions for affiliation,
recognition and aid; that breach or non-compliance
would vest the consequence of denial or withdrawal
thereof.
210. A closer look at the guidelines dated 14th
August, 2001 would show that they have been framed
with the objective of defining the areas of responsibility
of the various agencies involved in promotion and
development of sports in India; to identify national sports
federations/associations eligible for recognition and
coverage under the guideline; set out priority in sport; to
detail procedures to be followed by the national
federations/associations to avail financial assistance
sponsorship and all other assistance which the
Government advances; to state clearly the conditions for
eligibility which the Government would insist upon for
recognition of the sports federations/associations as well
as those which it would insist upon for releasing grants to
sports federations/associations. The sports authorities
and bodies which are involved include the Sports
Authority of India; Indian Olympic Association etc.
211. It is well settled that a judgment or a judicial
precedent is law for the facts in which it was rendered. In
the instant case, the petitioner is not asserting entitlement
to any individual rights in his favour. Detailed
submissions have been made on acts and omissions of the
respondent no. 2 and complaints have been made by the
petitioner that there is violation of the guidelines dated
14th August, 2001. The petitioner has made a prayer for
initiation of necessary action in accordance with the
guidelines for withdrawal of the recognition conferred on
the respondent no. 2 as a national level sports federation
as well as a prayer for withdrawal of the financial
assistance rendered by the Central Government.
212. Malfunctioning on the part of a recognised
national level sports federation or association causes
irreparable damage to the progress of the sport in the
country. There can be no comparison of the private
interest of an individual teacher seeking the benefit of a
particular level of salary or entitlement to a notice
provided under administrative instructions against his
employer against the damage which would result to the
sport of hockey and national interest. Effective and
efficient working of the national sports federation impacts
the status, standing and reputation of the entire nation in
the arena of sports.
XXX XXX XXX
214. Before this court, it is an admitted position that
the Indian Hockey Federation derives substantial
financial assistance from the Government of India. The
Indian Hockey Federation stands formally recognised as
a national sports federation also by the Government of
India. The respondent no. 2 effectively controls the
functioning of its members.
215. The guidelines framed by the Government enable
the National Sports Federations recognised thereunder to
derive substantial financial assistance and other facilities
from the Government. Apart from purchase of valuable
equipment, this assistance includes training/coaching
camps; assistance for organisation and participation in
national and international competitions and training
abroad; appointment, availability and expenditure on
foreign coaches for training of sports person, assistance
of the Sports Authority of India as well as facilities at the
state owned sports set ups. To enable meaningful
utilisation of its assistance, the Government has framed
guidelines for recognition of national sports federations.
216. As part of its initiative, the Ministry of Youth
Affairs and Sports operates a number of independent
schemes alongwith the Sports Authority of India which
are apart from the financial grants to the national
federations. These schemes have a direct bearing on the
promotion and development of sports in the country and
include (i) Exchange of Physical Education Teachers
etc(CEPs); (ii) Rural Sports programme, (iii) National
Championships for Women, (iv) Grants for Creation of
Sports infrastructure, (v) Grants to Universities and
Colleges, (vi) Assistance for synthetic surfaces and (vii)
Scholarships for training abroad. The Government has
recognised that the National Sports Federations are
primarily responsible for judicious selection of sports
persons for participation in major international events
based on merit and with the objective of enhancing
national prestige and bringing glory to the world. Such
federation is also required to be concerned with the
development and encouragement of the sport in the
country.
217. The Apex Court has not prohibited the High
Court in exercise of its jurisdiction under article 226
from issuing a mandamus requiring the Government from
ensuring compliance with the guidelines or conditions
which it has fixed for grant of recognition and affiliation.
The absolute prohibition urged by the respondents to the
maintainability of the writ petition seeking directions on
a complaint of breach of statutory guidelines certainly is
not legally tenable is hereby rejected.
218. The Government of India is dispensing not
only financial assistance but also providing other
facilities in terms of the guidelines; has recognised
national level federations; framed priorities in sports and
has effected dispensation of state largesse based thereon.
219. In view of the principles laid down by the
Apex Court in the aforenoticed judicial pronouncements,
there can be no dispute that the Government is entitled to
frame the guidelines for dispensation of its largesse
which will take the nature of financial assistance;
assistance in the nature of expert coaches, national level
facilities etc. Certainly, the Government is entitled to
notify and evolve a procedure for dispensation of the
financing assistance which runs into crores of rupees as
well as guidelines for recognition of the national sports
federation and cannot permit the same to be disbursed
arbitrarily without any clear directives in this behalf. The
guidelines issued by the Government and modified from
time to time have been therefore validly issued and are
binding for the purpose for which they have been issued.
In view of the above discussion, it has to be held
that a National Sports Federation regulating the game of
hockey in the country can be compelled by the
Government in discharge of its executive powers and
functions to abide by the rule of law as well as executive
guidelines framed for such recognition and
dispensation."
39. Further, I note the following conclusion of the Division Bench of
this Court in para 73 of the W.P.(C) No. 2310/2012, filed by the IOA, a
reference of which has been given above:
"73. State or social concern in regard to regulation of
sports can be achieved, inter alia, through the method of
requiring certain definitive policies to be followed by the
NSFs and the IOA to ensure its representative character,
aimed at the larger common good in the world of sport and
to avoid development of cliques or cabals in sporting
federations or bodies. Such cabals beget not only
concentration of power, but thrive in opaqueness in all
their dealings- functioning, finances and most importantly
selection of sportspersons to represent the country in the
concerned field of sport. The overriding concern of the
Central Government in ensuring that the decision making
are by bodies which such cabals operate, is sought to be
achieved by such tenure restrictions. So long as the
Central Government has the authority to recognize the
national sporting federations and the IOA, even for the
purpose of funding and declaring which of them is entitled
to use the national emblem or use the term "India",
insistence on such regulations, is legitimate. The important
aspect here is that the Central Government, through the
not saying that absent such compliance, there would be
any deprivation of an existing right; all that it suggests is
that if recognition and funding for various purposes is
sought (towards travel, boarding and lodging, coaching
facilities, tax exemptions, etc) the NSF has to comply with
these guidelines. In other words, it is not as if the violation
of such norms leads to any adverse consequence, in the
form of a penal sanction, or blacklisting. The body simply
cannot claim to select a team that represents "India" or
hold itself out as "Team India". The Petitioners‟
argument that Sports Code provisions are unenforceable,
as they are not "law" therefore, is without merit".
40. I hold, keeping in view the position of law referred above, the
petitioners can seek, and this Court in its jurisdiction under Article 226
of the Constitution issue a writ of mandamus, requiring the respondent
No. 1, to ensure compliance of the guidelines issued by it vide letter
dated September 18, 2008.
41. Having held that, a writ of mandamus can be sought by the
petitioners for holding selection trials in accordance with the Code, the
next issue, which falls for consideration is whether the process followed
by the respondent No. 4 (WFI) in selecting the team is justified. A
perusal of para 10.5 (page 108 of W.P.C. 3743/2014), 10.6 (page 108 of
W.P.C. 3943/2014) and para 3 of the letter/guidelines dated September
18, 2008, issued by the Ministry of Youth Affairs and Sports would
reveal the following position:
(i) The Asian Games/Commonwealth Games/Olympic Games are major
multi-discipline international sports events.
(ii) A proposal at cost to the government should be sent three months
prior to the event along with the Selection Committee‟s Minutes.
(iii) Selection of sports persons for participation in major international
events shall be responsibility of NSF.
(iv) The selection criteria/norms shall be clearly communicated by NSF
to all concerned, players, coaches etc. and shall be put up on the website
and forwarded to the Ministry.
(v) The minimum qualifying norms may be fixed and announced along
with the notice for selection trials which shall be announced at least one
month in advance.
(vi) The selection shall be done by the Selection Committee consisting of
President of NFS as the Chairman, the national coach etc.
(vii) The national coach will evaluate the progress and performance of
each player on regular basis.
(viii) The proceeding of the selection should spell out in detail the
selection criteria, the past performance of the players and their
performance within trials.
42. The aforesaid is the well laid down procedure. It is not the case of
the respondent No. 4 (WFI) that the aforesaid procedure was followed
while making a list sent to the CGC on June 11, 2014.The schedule of
the Commonwealth Games must have been announced well in advance.
The wrestlers are in camp since November, 2013. The trials held on
February 18, 2014 and April 02, 2014 were specifically for selecting the
team for participation in 2014 World Cup held at Los Angeles, and Sr.
Asian Championship at Khazakstan in April, 2014. No reference to the
Commonwealth Games has been made. The respondent No. 4 could have
made the said trials as a trial for selection of the team for
Commonwealth Games. Interestingly, I find the name of one of the
petitioners namely Amit Dhankhar is in the list prepared pursuant to the
aforesaid two trials. Unfortunately, his name is not found in the list now
said to have been sent to CGC on June 11, 2014, which definitely shows
the reliance on the aforesaid trials is only a ploy to justify the selection
list. Further, I find the selection trials held in the past on which the
reliance was placed by the respondent No. 4 (WFI) was not for selection
of the team for Asian Games/Commonwealth Games/Olympic Games. I
agree with the submission of Mr. Rahul Mehra that the three games
being major international events, selection of athletes need to be made
through the procedure laid down in the guidelines issued vide letter dated
September 18, 2008. The submission of Mr. Rahul Mehra that every
selection in the past for CWG has been made through trials, has not been
controverted. The endeavour of Mr. Dewan to justify the selection on
merit, would be of no relevance on the failure on the part of the
respondent No. 4 (WFI) to follow the procedure contemplated in the said
letter. The past performance of the wrestlers, performance during the
camp and the trials are necessary input for the ultimate decision on
selection. In fact, the guidelines issued vide letter dated September 18,
2008 stipulates so and I note for convenience two clauses; (1) the
National Coach shall evaluate the progress and performance of each
player on regular basis and submit the report to the selection trials; (2)
the proceedings of the selection should spell out in detail the selection
criteria, the past performance of the players and their performance in the
selection trials. Suffice to note a submission of the counsel for the
petitioners that Mary Kom, a Medallist in the Olympic Games in Boxing
could not be selected for the Commonwealth Games during trials.
43. The submission of Mr. Dewan that three of the petitioners have
been the beneficiaries of a similar selection in the past is concerned, the
same is liable to be rejected in view of my aforesaid conclusion that the
guidelines issued vide letter dated September 18, 2008 need to be
followed for Asian Games/Commonwealth Games/Olympic Games.
The selection in which the petitioners were the beneficiaries were not for
the aforesaid major international events. Regrettably, I note the author
of the Code, the respondent No. 1 has abdicated its responsibility to
ensure the compliance of the Code by the respondent No. 4 herein
(WFI). The counter affidavit filed by it, except narrating the provisions
of the Code, does not deal with the allegations made in the writ petitions.
During the submission, it was pointed out by the counsel for the parties
that w.e.f. February 01, 2014, the procedure of appointing an Observer
for attending the selection trials, has been dispensed with. This also
demonstrate the indifference being shown by the respondent No. 1 to
have an effective supervision over the process of selection.
44. Insofar as the judgments relied upon by the respondent No. 4
(WFI) of this Court in W.P.(C) 5034/2010, Shumel Vs. Union of India
and connected writ petitions are concerned, the challenge in that case
was for not being found successful to the next level of selection trials. In
other words, the challenge was against the disqualification. This Court
has rightly dismissed the writ petitions by observing that relative merit of
different candidates should be evaluated by experts and not by the Court.
Insofar as the present case is concerned, the scope is very limited to the
extent of selecting the team through the trials. On facts, the judgment
relied upon can be distinguished.
45. Insofar as the judgment of this Court in W.P.(C) 7170/2010, Neha
Rathi Vs. Union of India is concerned, suffice to state that the challenge
in the said writ petition was selection of a wrestler on the basis of a
clincher which, according to the petitioner is not justified. The
respondent No. 4 (WFI) had justified its selection. It was also the case
of the petitioner that the selection must be held by way of a selection
trial. A submission was made before the Court that there is no rule for
holding a selection trial. It was also contended before the Court that the
same has been a past practice. The Court proceeded on a premise that
there is no rule for holding a selection trial. In the aforesaid context, this
Court had inter alia observed that the remedy for the petitioner is to have
a proper rule framed in that regard. It appears that the guidelines dated
September 18, 2008 were not brought to the notice of the Court. It is an
admitted stand of the parties herein that the guidelines issued vide letter
dated September 18, 2008 holds the field governing the selection, which
have not been followed in the present case. The judgment relied upon is
per incuriam and the reliance placed on the aforesaid judgment of this
Court, would not be justified.
46. The issue that selectees are necessary parties, would much depend
upon the answer whether the list sent is temporary or final in nature. In
this regard, reliance is placed by both the parties on the Wrestling Guide
(Annexure P-8, page 262) in W.P.(C) 3955/2014, which stipulates, light
for light, can be accepted with the approval of the Commonwealth
Games Federation Executive Board, following the consultation with
relevant International Federation and upto the time of relevant technical
meeting. The start time of Commonwealth Games Federation Technical
Meeting is July 28, 2004. Further, the athlete replacement request form
also stipulates, replacement is possible because of injury, illness or other
special circumstances. The special circumstances need to be decided by
the Commonwealth Games Federation Executive Board. In that sense,
list is temporary. If the replacement is not permitted, then the list sent on
June 11, 2014 is final. This Court would refrain itself from commenting
that the present circumstances are the special one. The discretion need to
be exercised by the Commonwealth Games Federation Executive Board.
Further, I may not agree with the submission of Mr. Rahul Mehra that
the list having been prepared in violation of the procedure contemplated
under the Code and as such, is a nullity and as such, they need not be
made parties inasmuch as there is a difference between an illegality and
an irregularity. Not following a procedure contemplated, would be an
irregularity. There may be a justification for the petitioners for not
making the selectees, parties, as the aspect of the list having been sent to
the Commonwealth Games Committee came to their knowledge only
through the counter affidavit. Be that as it may, in the given situation,
the question would be what relief/directions can be given. Normally,
when the conclusion is that the select list has been made without
following the procedure contemplated, as such bad, the necessary
consequences must follow. Surely, a Court exercising jurisdiction, more
particularly, under Article 226 of the Constitution of India, shall consider
subsequent developments to enable it to give definite directions, which
are implementable and do not lead to an uncertain situation. This I say
so for the reason that the list of selectees was sent on June 11, 2014.
Today, is July 03, 2014. It has come on record that on July 09, 2014, the
team is going to Belarus for training before embarking on a journey to
Glasgow. A direction to hold trial require framing of a criteria, holding
of bouts etc. This process may also take some time to be completed.
Even if the new list is made, the same need to be sent to the
Commonwealth Games Federation Executive Board for a decision on
replacement, which may or may not be accepted. Till such time a
decision is taken, uncertainty will prevail both for wrestlers and the
officials. This process may also delay the departure of the wrestlers to
Belarus for training. This would put an unnecessary strain on their
psyche and lower the morale of the wrestlers which may have a bearing
on their performance. This may not be in the larger public interest, as
every citizen in the country expects its sportsmen to win laurels for the
country. I do not think, it is case where this Court at this stage should
grant the relief sought for by the petitioners in the writ petitions. This
Court also would not like to interfere with the list already sent by the
respondent No. 4 to the Commonwealth Games Committee. At the same
time, this Court justify the filing of the writ petitions by the petitioners
for a just cause, seeking implementation of the Code as formulated by
the respondent No. 1 and considers it to be a fit case, where the
petitioners must be compensated by granting cost. I quantify the cost as
Rs. 25,000/- to be given to each of the petitioners by the respondent No.
4 (WFI). Before parting, this Court would like to remind the respondent
No. 1 not to abdicate its responsibility from ensuring the guidelines as
issued by it vide letter dated September 18, 2008 are followed in letter
and spirit.
47. The writ petitions are disposed of accordingly in terms of the
above.
CM Nos. 7890, 7935 & 7954 of 2014
In view of the order passed in the writ petitions, these applications
are disposed of as infructuous.
(V.KAMESWAR RAO)
JUDGE
JULY 03, 2014
akb
