IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:03.09.2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.11101 OF 2009 and M.P.Nos.1 to 3 of 2009 .. Minor B.Praveena Devi rep. By her father and guardian Mr.P.Boopathy Raj .. Petitioner vs. 1.The State of Tamil Nadu rep. By Secretary to Government Health Department Fort St.George, Chennai 600 009. 2.The Director of Medical Education Teynampet, Chennai 600 018. 3.Selection Committee rep. By its Secretary Directorate of Medical Education No.163 Periyar E.V.R.Road Kilpauk, Chennai 600 010. 4.The Common Committee constituted for the Selection of Eminent Sports Persons at Anna University Chennai. (R.4 impleaded as per order dt.14.7.2009 in M.P.No.4/09) 5.S.Padmaja D/o.S.H.Srikumar (R.5 impleaded as per order dt.30.7.2009 in M.P.No.5/09) .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus as stated therein. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mr.R.Muthukumarasamy,Sr.Counsel for Mr.P.Gunaraj For respondents : Mrs.Dhakshayani Reddy,GA for R.1 to 3 Mr.Mani Sundaragopal for R.4 Mrs.Sumathy for R.5 ORDER The writ petitioner challenges a portion of the prospectus issued by the respondents 1 to 3 for admission to MBBS/BDS for academic session 2009-2010, that is, paras 1 and 2 of Appendix III and also for direction to the respondents to consider the academic achievements among the candidates falling under each category of sports or in the alternative to take into account the achievement in all the tournaments during the years 2005 to 2009 and make selection. 2. The said Appendix III relates to the selection of candidates under quota for eminent sports persons. The portions of the said Appendix impugned are clauses 1 and 2 which are as follows: “ 1. The purpose of this quota is to recognize and give weightage to the sports eminence of the candidates and hence marks for sports achievements alone will be considered in ranking the candidates. The candidates are expected to continue good performance in sports, even after selection. 2. The Highest achievement of the candidate in only one annual tournament in the sports disciplines in a year will be considered for awarding marks.” 3. The petitioner, who belongs to Backward Class Community, has developed her skill in swimming and has participated in the State level, Zonal Level and National level sports and has won 114 medals in all levels during the past 4 years. It is stated that the petitioner has secured first position and won 48 gold medals at the Divisional, Zonal, State and National levels, besides obtaining second position and secured 37 silver medals in the above said levels. She has also secured third position and 17 bronze medals having participated in number of national tournaments. She has passed in Plus Two examinations under CBSE pattern during March/April, 2009 and secured the following marks in science subjects: Biology ... 95/100 Chemistry ... 95/100 Physics ... 93/100 She was able to secure those marks in spite of her concentration in https://hcservices.ecourts.gov.in/hcservices/ swimming activities. She has applied for admission to First Year MBBS Course for the year 2009-10. Being an eminent sports person, she is aggrieved by the said two clauses in Appendix III which enable the selection authorities to take achievements in sports alone irrespective of qualifying marks and even among the achievements in sports only one annual tournament in the discipline would be considered for awarding marks for four years preceding 2009. 4. Six tables given in the Appendix III to the prospectus relate to marks for International achievements, marks for recognised National achievements, marks for recognised South Zone achievements, marks for recognised State Championship, marks for recognised State Level achievements and marks for Divisional Level achievements. According to the petitioner, such division is illegal. The clause staying that among them, only one highest achievement of one annual tournament should be taken into consideration is also irrational. The petitioner, though was shocked by the said provision, applied for first year MBBS course both under Open category and under eminent sportsmen, indicating her achievements in each of the four years preceding 2009 apart from setting out her marks in the academic examinations. 5. She has stated that she secured one gold medal in 2007-08, two silver medals during 2006-07 and 2008-09 and one bronze medal in 2005-06. Therefore, as per the other terms of the prospectus if the achievements of the petitioner in four years are taken into consideration, she would be entitled for 7195 marks, however, if the impugned provisions are applied, that is, if only one annual tournament is taken into account, she would be getting only 600 marks. If the tournaments for four preceding years are taken into consideration, she would be selected surely under the quota, eminent sportsmen category. In these circumstances, the said impugned portion of the prospectus is challenged on various legal grounds including that the eminence at all levels, viz., International, National, Zonal, Divisional levels should be taken into consideration altogether and among such persons, the persons with higher marks in academic examinations alone are entitled for selection, as per the judgment of the Supreme Court reported in Asif Hameed vs. State of Jammu & Kashmir [(1989) Supp (2) SCC 364] and therefore, the impugned provision is violative of Article 14 of the Constitution of India. Even if the first impugned clause is acceptable, the second clause is irrational since even in respect of eminent sports persons only one tournament is taken into consideration for awarding marks. According to the petitioner, if one tournament is taken into consideration, it would be irrational in not taking into account the number of achievements by a candidate for the past four years and restricting it to only one tournament which is the highest achievement. Such concept would result in a person with lesser sports achievements getting selected. Taking into consideration only the participation in International tournaments and marks awarded therein is grossly https://hcservices.ecourts.gov.in/hcservices/ arbitrary since the same may result in denial of seat to participation in National and State level sportsmen who secured distinction and gold or silver medals. 6. The fourth respondent, the Common Selection Committee for Sports, Anna University, who was subsequently impleaded, has filed a counter affidavit. It is stated in the counter affidavit that the Government of Tamil Nadu has constituted a Common Committee by the Government of Tamil Nadu vide G.O.(ID).No.76 dated 3.4.2009. It is stated that as per clause 42 of the prospectus special categories are mentioned and its sub-clause (iii) enables three persons to be selected for MBBS course from eminent sports persons. It is also stated that under the Appendix III to the prospectus which speaks about the methodology of selection among eminent sports persons, six tables are given classifying the achievements into gold, silver and bronze medals in International, National, State and Zonal levels and that the achievements can be taken only on respect of one annual tournaments among them during preceding four years, i.e., 1.6.2005 to 31.5.2009. (a) It is stated that the petitioner has been awarded 600 marks in the eminent sportsmen category and placed at 5th place in overall rank list. The first person in the list, Agnishwar.J was awarded 825 marks, opted for Engineering course even though he was eligible for a medical seat and therefore, the petitioner has been placed in 4th rank in the rank list under the eminent sportsmen category. The particulars of five candidates including the petitioner at 5th place, as given in the counter affidavit, are as follows: Sl.No. Application No. Name Total Rank 1. 516 AGNISHWAR J. 825 1 2. 54 KARTHIK B. 650 2 3. 282 ABINAYAA V. 650 3 4. 523 PADMAJA S. 625 4 5. 294 PRAVEENA DEVI B. 600 5 (b). It is stated that in respect of third respondent Abinayaa V, since she was able to produce the certificate for sports on the last date for submission of application to medical course i.e., on 17.6.2009, she was given 650 marks for medical course and since the last date for submission of application to engineering course was 31.5.2009 and she could not produce the said certificate within the said date, she was awarded only 525 marks for engineering course and therefore, she was considered for medical admission, being the 4th person in the above list. It is stated that three persons were already granted seats and hence, the petitioner is not entitled to medical seat. https://hcservices.ecourts.gov.in/hcservices/ (c). It is denied that there has been deviation in the prospectus from the previous year. According to the said respondent, the practice has been in existence from 2003 onwards. It is stated that awarding of marks for the highest achievements in a particular year is a rational one and it is essential for the purpose of choosing eminent sports persons from several hundreds of applications. Since the number of achievements conducted by the organising bodies vary from one discipline to another discipline of sports, taking all achievements in the years in respect of each candidate will prevent the candidates from taking part in a particular sports activity which is not frequently done and therefore, it is the case of the 4th respondent that the method is not irrational. 7. In the additional counter affidavit filed by the 4th respondent it is stated that in respect of some sports activities, there are inherent possibilities of winning several medals while in some other sports it is not possible and for example, the eminent persons in swimming can obtain medals in various categories like butterfly, free style, back-stoke etc. in addition to different sub- categories like, 50 meter free style, 100 meter free style, etc. whereas a person participating in basket ball can get one medal in the given sports meet. In the said counter affidavit, the particulars are given to show that in some sports disciplines number of medals are possible to win whereas in some other sports disciplines it is not, and the said particulars are as follows: Sl. No. Sports Disciplines where opportunity to win multiple medals in a given event. Sports disciplines where only one medal could be achieved in a given event. 1. Athletics Atya Patya 2. Badminton Ball Badminton 3. Body Building Baseball 4. Boxing Basketball 5. Carrom Beach Volleyball 6. Cycling Billiards and Snookers 7. Fencing Chess 8. Gymnastics Cricket 9. Judo Football 10. Karate-Do Golf 11. Malkhamb Handball 12. Motor Sports Hockey 13. Power lifting Kabaddi https://hcservices.ecourts.gov.in/hcservices/ Sl. No. Sports Disciplines where opportunity to win multiple medals in a given event. Sports disciplines where only one medal could be achieved in a given event. 14. Roller Skating Kho-Kho 15. Rowing Korf Ball 16. Sailing Net Ball 17. Shooting Rugby 18. Silambam Sepak Takraw 19. Squash Soft Ball 20. Swimming Throw Ball 21. Table Tennis Volleyball 22. Taek-Won-Do Wushu 23. Tennikot 24. Tennis 25. Triathlon 26. Weightlifting 27. Wrestling 28. Yachting 29. Yogasanas It is also stated that in respect of some of sports disciplines events are organised at the State and National levels frequently and in some other disciplines due to absence of frequent sports events, it may not be possible for sports persons to participate and only considering all those aspects, the said clauses have been included. 8. The 5th respondent, S.Padmaja, who was in third place in the list of selected candidates under eminent sportsmen category has been impleaded as a party. 9. Mr.R.Muthukumarasamy, learned senior counsel appearing for the petitioner while fairly submitting that another learned Single Judge of this Court has held that when the excellence in sports activities has been taken into consideration by which a candidate is found eligible, there is no question of including the academic marks for the purpose of making selection and the said judgment has been reported in Minor S.Sunayana vs. The State of Tamil Nadu & Others [2004 WLR 228], would submit that in that case the judgment relied upon by the learned Judge viz., the judgment in Khalid Hussain vs. Commissioner and Secretary, Government of Tamil Nadu, Health Department, Madras and others [AIR 1987 WLR 91] was taken to the Supreme Court and the Supreme Court in Khalid Hussain vs. https://hcservices.ecourts.gov.in/hcservices/ Commissioner and Secretary, Government of Tamil Nadu, Health Department, Madras and others [{1987) Supp. SCC 329] held that in the absence of guidelines to decide about the eminence in sports, the academic excellence should be taken into consideration. 9(a). It is his submission that in the absence of proper guidelines for selecting candidates from eminent sports persons, the selection should be made on the basis of the performance in the qualifying examinations, in addition to the marks granted under sports category. He would submit that ultimately the selection is to medical course which must be kept in mind while making such regulations. It is his submission that as far as the second clause in Appendix III is concerned, if the yardstick is taken as valid, it would mean that an eminent sports person who is able to participate a series of sports activities and secure many medals such as, gold, silver and bronze which alone should be given credence, will be relegated to back position, while a person participating in a very rare sports with low competition and getting gold medal will be getting first position. According to him, this would only discourage the persons who participate in many sports activities and cannot be the idea behind the selection of candidates under eminent sports categories. It is his submission that while the 5th respondent who has been selected got 164/200 marks in academic examinations in CBSE pattern and the petitioner got 189/200 marks and if that is taken into account, the petitioner would get a chance of selection. 10. On the other hand, it is the contention of Mr.Manisundaragopal, learned counsel appearing for the 4th respondent that the object of choosing eminent sports persons for medical admission is only to find out the real eminent sports persons to be accommodated in MBBS course and in choosing such persons, the guidelines have been prescribed by way of giving marks in various tables, which, according to him, are not arbitrary. He would submit that the second clause of Appendix III which is impugned, really takes care of eminent sports persons if such sports persons get gold medal in any one of four years in International/ National level and he/she would get the highest marks, either 500 or 300. He would submit that if the academic marks can be taken into consideration, it will only be in cases where two persons of sports excellence get equal marks with a view to decide one among them, by placing reliance on the same judgment relied upon by the learned senior counsel for the petitioner in Khalid Hussain vs. Commissioner and Secretary, Government of Tamil Nadu, Health Department, Madras and others [(1987) Supp.(2) SCC 329]. 11. The 5th respondent who was served and has appeared through counsel has not chosen to file counter affidavit. 12. The petitioner in the typed-set of papers has given the details of sports certificates enclosed showing that she has https://hcservices.ecourts.gov.in/hcservices/ participated in XXXI National Sports Festival for Women in October, 2005 in 100 mts. breast-stroke, apart from her participation at the National level in January, 2007 in 50 mts. breast-stroke and in January, 2009 in 4x100 mts. free style relay. For the said participation, as per the impugned provisions under Appendix III, she was given 600 marks. On the other hand, she has given sports performance certificates from 1.6.2005 to January 2009 at various State level, National level, South Zone level, Divisional level, etc. numbering to 114 events and on that basis, if marks are awarded as per Appendix III to the prospectus, according to her, she would be entitled for 7195 marks. No doubt, it shows that she has been continuously participating in sports activities. However, she has chosen to challenge clause 1 of Appendix III on the ground that in academic examinations she has secured 189/200 marks while the 5th respondent has secured 164/200 marks. 13. A similar provision which was available in the prospectus for admission to medical course for the academic year 2003-04 was questioned before this Court. In the year 2003-04, Appendix III was relating to selection of candidates among eminent sports persons in the year 2003. This Court considered the clause in S.Sunayana vs. The State of Tamil Nadu & Others [2004 WLR 228] and held as follows: “ Appendix – III Selection of Candidates under Quota for Eminent Sports Persons – 2003. 1. As the purpose of this quota is to recognise and give weightage to the sports eminence of the candidate, sports mark alone will be considered in ranking the candidate. The candidate is expected to show performance in sports, if selected. 2. Selection of the candidates will be based on the marks obtained by the candidates following the guidelines given in the table below: (A) Marks for (each) Participation: Category International (Representing Nation) National (Representing State) Individual 20 10 Team 10 5 (B) Marks for (each) achievement: International (Representing Nation) National (Representing State) State (Representing Revenue District) Category Gold Silv er Bronze Gold Silve r Bronze Gold Silver Bronze https://hcservices.ecourts.gov.in/hcservices/ International (Representing Nation) National (Representing State) State (Representing Revenue District) Individu al 60 40 20 40 27 13 27 18 9 Team 30 20 10 20 13 7 13 9 5 Other Recognised National/State Level Sports Meet: (C) Marks for (each) achievement: Sl. No. Sponsor Category Gold Silver Bronze 1. School Games Federation of India (SGFI) (National Level) Individu al Team 30 15 20 10 10 5 2. All India Rural Sports (National Level) Individu al Team 30 15 20 10 10 5 3. Bharathiyar Day Sports (State) Individu al Team 20 10 13 7 - 4 4. Republic Day Sports Meet (State Level) Individu al Team 20 10 13 7 7 4 (D) Marks for over all Championship: Category International (Representing Nation) National (Representing State) State (Representing Revenue District) Championship 30 25 20 14. In that case, a contention was raised relying upon the judgment in Khalid Hussain vs. Commissioner and Secretary, Government of Tamil Nadu, Health Department, Madras and others [AIR 1987 WLR 91] which was ultimately decided by the Supreme Court in Khalid Hussain vs. Commissioner and Secretary, Government of Tamil Nadu, Health Department, Madras and others [1987 Supp.SCC 329] wherein the clause impugned was, Annexure I-(iii) to prospectus for admission for academic year 1986-87 relating to eminent sports persons which is as follows: “Annexure -I (iii) Eminent Sportsman Special Category” In the sub-column (iii) under the Caption Eminent Sportsman, https://hcservices.ecourts.gov.in/hcservices/ there are three Categories, namely, (a) Participation at International Level the candidate being sponsored by national body; (b) Participation at National level the candidate being sponsored by a State body or University; (c) Participation at State level the candidate being sponsored by Zonal or District Association.” When such contention was made relying upon the judgment of the year 1987 based on the prospectus of the year 1986-87 to question the relevant prospectus for the year 2003-04 as stated above, D.Murugesan,J. by comparing the said two prospectus, held as follows: “ 7. From the above, it is seen that specific regulations, guidelines are prescribed for awarding marks to the participation, achievements and overall championship. When the method for award of marks is provided and the guidelines prescribed, the judgements relied upon by the learned counsel for the petitioner cannot be made applicable to the facts of this case. As already pointed out, the said judgment was rendered in a case where no guidelines for warding marks to judge the comparative eminence in sports were prescribed. 8. The Government being the funding agency, is entitled to identify the source for admission. Reservation for special category is made under Article 15(4) of the Constitution of India and is “Horizontal Reservation”. Even while filling the seats earmarked as “Horizontal Reservation” social reservation under Article 15(1) is followed only when such reservation is “Compartmentalised Horizontal Reservation” and not “Overall Horizontal Reservation”. Such Reservation for eminent Sports Persons is only to recognise the excellence/achievements in sports and to encourage sports and games among students. Once the eligibility for admission under Sports Category is determined, the selection and admission shall be based on the marks obtained for the excellence in sports only. There cannot be a further classification on the basis of academic marks for selection and admission. Hence, the arguments of the learned counsel for the petitioner deserve to be rejected.” 15. A reference to the prospectus of the year 2003-04 shows that under the eminent sportsmen category, marks which are given for participation in International/National/State level with achievements in gold, silver and bronze, for each of the achievements have been directed to be included. The word, 'each' either in respect of participation or achievement shows that the marks were to be given to the candidates in respect of participation and achievement in every participation. Therefore, there was certainly no possibility of any arbitrariness in choosing persons among eminent sports persons and in that context, it was held that there was no scope for arbitrariness and the selection is within the pure guidelines intended to select the excellent sportsmen among the candidates. The learned Judge (D.Murugesan,J.) has also referred to the earlier prospects of the year 1986-87 elicited above wherein there was absolutely no https://hcservices.ecourts.gov.in/hcservices/ guidelines for choosing the persons and in those circumstances it was held in Khalid Hussain vs. Commissioner and Secretary, Government of Tamil Nadu, Health Department, Madras and others [1987 WLR 91] by S.Mohan,J.(as he then was) as follows: “ 9. ..... Therefore by and large I take it that the policy of reservation seems to be to encourage sports and by classifying it as eminent sportsmen, as otherwise there will be hundreds of persons claiming as sportsmen. Therefore, this is an accent on eminence. In order to show some distinction with regard to the individual achievements, three categorisation as International level, National level and State level have been made. Beyond that I see absolutely no scope for importing the concept of deciding eminence inter se in a particular category. ....” 16. The Supreme Court, on appeal, against the said judgment in Khalid Hussain vs. Commissioner and Secretary, Government of Tamil Nadu, Health Department, Madras and others [1987 Supp.SCC 329] again confirmed that in the absence of guidelines for selection among the eligible candidates falling under the eminent sports persons, the comparative merit has to be adjudged by academic excellence, taking into account the marks obtained in the qualifying examinations. The relevant portion of the judgment of the Supreme Court is as follows: “ 5. The argument of learned counsel for the petitioner does not take note of the fact that the decision in P.Sabitha's case proceeded on an interpretation of a provision for reservation of seats for the category 'eminent sportsmen' which was altogether different. The importance of the decision in P.Sabitha's case lies only on the view that a provision for reservation of seats in professional courses for sportsmen was not irrational or arbitrary but had reasonable nexus to the object sought to be achieved in public interest, namely, promotion of sports. In the prospectus for the year 1986-87, the State Government has brought about a change. The provision, as it now stands, provides for a rule of preference. Category (iii) like categories (i) and (ii) must have secured 50 per cent aggregate marks in science subjects in the qualifying examination. The rule nowhere provides for any determination of comparative eminence. All that the rule does is to lay down a rule of preference. A candidate who had participated at International level would exclude a candidate participating at National level and a person who had participated at National level would exclude a person participating at State level. It has to be pointed out that the rule itself does not provide for determination of comparative eminence as between different candidates falling within the same class but as between sportsmen who have participated at International level, National level and State level. It only provides for the rule of exclusion of one by the other.