IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.2390 of 2008. Decided on: December 04, 2008. Manju Kumari …..Petitioner. VERSUS State of H.P. & Ors. …..Respondents. Coram The Hon’ble Mr.Justice Jagdish Bhalla, Chief Justice. The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Petitioner : Mr T.S.Chauhan, Advocate. For Respondents : Mr R.K.Bawa, Advocate General with Mr.Ankush Sood, Addl. Advocate General, for respondents No.1 & 2. Mr.G.D.Shrama, Advocate for respondent No.3. Ms.Jyotsna Rewal Dua, Advocate for respondents No.4 to 9. Jagdish Bhalla, Chief Justice (Oral) In response to advertisement contained in Annexure P-1 the petitioner, along with several other applicants, applied for JBT Test 2008 against the reserved category of sports person. It has been contended that there was no provision of bringing on record any document to show the requisite qualification of the candidates / applicants who were 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… distinguished sports persons and excelled at District / State / National Sports Meets / Games. Accordingly, neither the petitioner nor anyone of the applicants had supported their contention being distinguished and excelled sports persons in the field of sports along with their respective applications. After the declaration of result, according to the Board, the names were sent for counseling to the representative of the State Government i.e. Deputy Director. During the course of arguments, the learned counsel for the Board had submitted that the counseling was done by the Deputy Director, Elementary Education and thereafter the list was sent to the Director for his approval. Today, at the time of dictating the judgment, learned counsel said that the counseling was not done by the Deputy Director but by the District Institutes of Education and Training (herein-after referred to as ‘DIET’). However, he could not show any documentary evidence in support that the counseling was done by the DIET. We further take a serious view of the fact that the learned counsel has changed his stand at the time of dictation of the judgment. We deprecate such action of the Board. 2. The results were declared by the Board and opposite parties No.4 to 9 were declared successful against the sports quota. …3… 3. It has been contended that the petitioner, who is a national level distinguished / excelled sports person, was not even called for the counseling for the reason that the petitioner had not obtained minimum requisite marks of 40%. The learned counsel and the Secretary of the Board, during the course of arguments, had conceded that since the sports person also belongs to reserved category, therefore, the minimum requisite marks are 35% instead of 40% and even has prayed that 40% minimum requisite marks for sports person be read as 35% in the response. 4. The learned counsel for the petitioner has drawn our attention to the sports merit of the petitioner which is evident from the contents of Annexure P-3 to Annexure P-8. From the perusal of the same, it is crystal clear that the petitioner in XXXII National Sports Festival for Women Group –III stood first in 1500 meters race with timing of 4:39.4 seconds. In the same meet in 3000 meters, the petitioner secured second place with timing of 10.29.4 seconds. The Association of Indian Universities organized Athletic Championship Meet at Bangalore between 25.1.2007 to 29.1.2007 wherein the petitioner had won 5000 meters race by securing first position with the timing of 17:28.47 seconds. In the similar meet, in 1500 meters the petitioner again stood first with timing of 4:35.33 seconds. By comparing Annexure P-3 and Annexure P-6, it is crystal clear that the petitioner improved upon her own timing within almost two months of her earlier achievement. The petitioner …4… was runner up in the All India Inter University Cross Country Tournament held at Warangal vide certificate dated 6.4.2006 annexure P-8 in the same Athletic Meet. 5. Over and above, we find that in the same meet, referred herein-above, at Bangalore, the petitioner was declared as an individual champion in All India Inter University Athletic Championship with 10 points which is an achievement of great merit and it can be easily said that the petitioner is not only a distinguished but a sports person who has excelled in the sports meet with her achievement for which any father can feel proud of such daughter. In spite of the same, the Board did not care to look into her achievements at any level, the reason? The faulty system, cry of every sports person may it be District level or the Olympic level. 6. The learned counsel for the Board has categorically contended that the duty of the Board was only to conduct the examination. It was emphatically contended that it was not the duty of the Board to ensure to look into the merit of any sports person if somebody has applied as a sports person, without verifying his / her credentials they allowed him / her in written examination, although only those sports persons were eligible to appear in the written examination, who were distinguished & excelled at District level / State level / National level sports and games. Nothing has been placed on record by the Board that …5… when and before whom counseling took place and which authority had looked into the documents to come to the conclusion whether the applicants who had qualified for counseling were distinguished and excelled sports persons. One of the reason, given on behalf of the Board, is that it is the duty of the Board to hold examination as far as rest of the process is concerned i.e. the counseling and preparation of merit list is the duty of the State Government. 7. The learned Advocate General, while replying, had submitted that in fact there is 40% minimum requisite qualification even for the sports person because it is a sub category of the general category. Further, it has been submitted that the complete process up to declaration of result is the duty of the Board and not of the State Government. In support, it has been indicated that the Board has only communicated the select list of the candidates to the State Government. A responsible officer on behalf of the State has filed response to this petition wherein it has been admitted that respondents No.4 to 9 have been selected on the basis of their merit secured in CET (Combined Entrance Test), therefore, the petition filed by the petitioner is not maintainable. From the perusal of the stand taken by the State in their response, it appears that even the State has not taken into consideration the condition of being distinguished and excelled sports …6… persons. The stand taken by the State is also of merit for securing marks. 8. We will further subsequently deal with this issue in question again in the judgment after considering the arguments of the private respondents. We have perused the rules contained in Annexure R-3/1 i.e. most immediate letter dated 13.6.2008 from Principal Secretary (Elementary Education) to the Government of Himachal Pradesh to Director, Elementary Education, Himachal Pradesh with regard to the conduct of the Combined Entrance Test for admission to 2 years JBT Course / Session 2008-10. The complete process of the selection has been indicated in this letter. There is a clause (e) which deals with the reservation:- “e. Reservation / Reservation Roster: Reservation as prescribed by the H.P. Government shall be given to SC / ST/ OBC/ IRDP/ Ex-Servicemen (including wards of Ex-servicemen/Dependants of the family of those defence personnel killed in action or disabled and rendered unfit for civil employment), Children/Grand children of Freedom Fighters/Physically handicapped / distinguished sports persons who have excelled at District / State/ National sports meets / games. …7… JBT cadre is a district cadre, hence district-wise reservation roster will be applied against the total intake of a particular district in respect of DIET Institutes while in respect of private institutes combined merit and reservation roster will be drawn, out of the common merit list of the State to fill Subsidized and Non-Subsidized Seats in 50:50 ratio.” From the perusal of the above, it does not indicate that in the general category there is sub category for reservation. In the reservation Clause, there is a reservation not only for the sports person but physically handicapped, children / grand children of freedom fighters and SC/ST/OBC/IRDP/ Ex- Servicemen (including wards of Ex-servicemen/Dependants of the family of those defence personnel killed in action or disabled and rendered unfit for civil employment). From the perusal of the same, it is crystal clear that there is no sub category, therefore, the reservation applies to sports persons and the minimum requisite marks to be obtained in the test is 35% as indicated in clause (c) of the said letter. Therefore, in such circumstances, the petitioner, who had obtained 38 marks, had qualified the written examination. The most interesting part of the said letter is with respect to the …8… counseling. In the background of the argument advanced on behalf of the Board as contained in clause (n): “n. Counseling of Candidates for Private Institutes: In order to allot candidates for the 2 years JBT Course to private institutes as per their approved intake capacity counseling will be done by the examining body i.e. H.P. Board of School Education for Subsidized and non- subsidized seats, by constituting a committee for the purpose after including senior officers in the committee from the Directorate of Elementary Education as member. The H.P. Board of School Education will make every possible effort to finish the counseling process within one month from the date of declaration of result of the CET. The Board will at the first instance sponsor candidates to the 12 DIETs of the State strictly in order of district-wise merit of the respective categories as per the reservation roster approved by the Government and thereafter counseling will be held for the private institutes out of the common merit list of the State allowed by the Government to fill their Subsidized and non-subsidized seats respectively as per the intake capacity of the institute.” …9… From the perusal of the aforesaid clause, we find that it is the duty of the H.P.Board of School Education to make every possible effort to finish the counseling process within one month from the date of declaration of result of CET. Further, the Board is required at the first instance to sponsor candidates of 12 DIETS of the State strictly in order of District-wise merit of the respective categories as per reservation roster approved by the Government. Thereafter, counseling will be held by the private institutions out of the common merit list. The learned counsel for the Board could not substantiate whether method of counseling provided has been followed. There appears to be confusion because at the first instance it was submitted that it was the Deputy Director, Elementary Education and finally it was DIET who conducted the counseling. Neither any record has been shown to the Court in this respect nor it has been indicated in the pleadings. The Board cannot get away by informing the Court that it was the duty of the State Government. In the circumstances, it can be easily said that the Himachal Pradesh Board of School Education failed in its duties to carry out the counseling as required. 9. The learned counsel appearing for the private parties had argued the matter very fairly and had conceded that there is a judgment of Indra Sawhney & Others versus Union of India & Others, 1992 Supp (3) SCC 217, which …10… can be read against private respondents. We feel that the fairness is advocate like quality and today Ms.Jyotsna Rewal Dua while making the above statement had passed the test of fairness with flying colours. However, she addressed this Court on merit with all vigor and in the process submitted that respondents No.4 to 9 are distinguished sports persons at district level. Further, it has been contended that once a person is eligible to appear in the examination as sports person thereafter it is only her/his merit in the written examination which is to be considered and not his/her achievements in the sports field. Accordingly, it has been indicated that respondents No. 4 to 9 have secured more marks than the petitioner, therefore, they have been rightly selected pursuant to two years course of JBT. In support of this Ms. Joytsna Rewal Dua, learned counsel for opposite parties No.4 to 9 has relied upon Abhishek versus H.P. University & Others, 2006 (Suppl.) Cur.L.J.(HP) 328 wherein according to the petitioner a co-ordinate Bench of this Court has held that it is the merit of written examination which will have the influence over the achievements in cultural activities and finally it is the merit which will prevail at the cultural achievement. 10. We have perused the judgment of the co-ordinate Bench and find that clause 7A.3 of Hand Book of Information …11… lays down the criteria of admission and reservation which is as follows:- 7A.3 Basis of Admission & Reservation: The admission to the course will be made strictly on the basis of marks obtained in the entrance test and interview shall be open to all persons irrespective of race, creed, caste or class subject to the reservations approved by the university. The merit will be determined on the basis of written examination to be conducted by the Himachal Pradesh University, Shimla. The entrance test shall consist of one paper of 100 marks and of 1 hour duration and shall include three sections viz. (i)General knowledge and Current Affairs 30 marks (ii) English Comprehension 30 marks (iii) Media Awareness 40 marks (iv) Interview ( on the day of admission 10 marks Note: The minimum qualifying marks at the Entrance Test shall be 35 percentage ( in case of SC/ST candidates the minimum qualifying marks shall be reduced until the fall SC/ST quota for admission has been exhausted).” 11. Clause 8.3 of Hand Book of Information lays down the criteria of admission and reservation which is as follows:- “8.3 Rules for Admission for outstanding Cultural Activists: 1. Admission against outstanding cultural quota at par with sports quota would only …12… be made once in the beginning of the academic session. No forms for such admission would be entertained after the expiry of the last date of the submission of forms for admission in the University. 2. Candidates who are employed are not eligible for admission against cultural quota in any of the courses. 3. Only those students will be eligible for admission against outstanding cultural quota who are having at least I,II and III position in Inter-College youth Festival in any item in any of the previous three years. Other things being equal preference will be given to those who have represented this university in inter- Varsity Festival. 4. While considering admissions against cultural quota only the following cultural items will be considered. (1) Debate (2) Indian Folk Dance (3) Indian Classical Music (Vocal) (4) Indian Classical Music (Instrumental) (5) Light Vocal Music (6) Vadya Vadan (7) Group Singing (8) Indian Classical Dance (9) One Act Play/Short Play/Skit (10) Symposium (11) poetic Symposium ( 12) Sport Painting and (13) Quizzing, Western Group Song, Western Solo, Rangoli, Clay, Modeling, Elocution, Poetic …13… Recitation, Cartooning, Collage and Poster Making. Note: The distinction in the individual items will have preference over the Team Items. The students seeking admission against outstanding cultural quota should also qualify the minimum eligibility condition for admission in that course provided under rules”. 12. We are of the considered opinion that the view expressed by the Division Bench in the facts and circumstances is absolutely correct. However, we find in the case in hand neither there is any such criteria, as referred to here-in-above, which indicates that the merit will prevail but against the sports quota distinguished and excelled achievements of the sports person, as referred to hereinabove, will prevail. The guideline has emphasized that a sports person should be of distinguished sports who has excelled at District/State/National levels. When we examined who are the distinguished sports person who have excelled at District/State/National sports meets and games, therefore, the eligible sports person for this examination in light of the guidelines is not only a sports person but he/she should not only be a distinguished but must have excelled in his/her field of sports and games. The petitioner is totally covered under the aforesaid criteria. At no level achievements of the …14… petitioner was taken into consideration. The criteria for reservation for SC/ST/OBC/IRDP/Ex-Servicemen (including wards of Ex-Servicemen/Dependants of the family of those defence personnel killed in action or disabled and rendered unfit for civil employment) etc. is different in nature vis-à-vis to sports persons who are distinguished and have excelled in the field of sports and games at District/State/National levels. The aforesaid categories are not reserved categories because of their births or they are handicapped or dependant of the persons who achieved some distinction in his career or contributed something for the nation. 13. We are of the considered opinion that at no stage of selection the criteria of achievement of a sports person has been taken into consideration. In light of the above discussion, we are of the further opinion that in the present scheme, the admission has to be considered on the basis of achievements of sports person in the sports field. Otherwise in the rules, there would have specific guidelines for example marks would have been given for a distinguished sports person who excelled at District/State/National level and such marks would have been counted along with the marks obtained by them on merit and thereafter in totality their marks of written examination and the marks with respect of the achievements would have been added to make out their merit. We do not …15… find any such provision / clause in the guidelines. The guidelines only speak of a distinguished sports person who has excelled in her / his field. Another judgment, relied upon by learned counsel for the private respondents No.4 to 9, is Sanjay Kumar and Others versus Narinder Verma and Others, (2006) 6 SCC 467, wherein it has been held as follows:- “Having heard the learned counsel on both sides for the different contending parties, we are of the view that the impugned judgment of the High Court needs to be interfered with. As already observed, there was no challenge to the Rules in writ petition. The learned Single Judge was, therefore, justified in applying the Rules and upholding the selection process made by the State authorities. It was wholly unjustified on the part of the Division Bench to have interfered with the selection process on the basis of the criteria which were not laid down in the rules and that too on an erroneous appreciation of the rules. The High Court failed to see that the Rules made no distinction, whatsoever, between degree- holders and diploma holders at the stage of recruitment for the purpose of minimum qualifications. In other words, no distinction was made between the two categories at the stage of recruitment, but a greater weightage was given to the degree-holders in the post- …16… recruitment period in the form of a higher starting pay and also lesser number of years of service requirement for qualifying for promotion to the higher post. We agree with the contention expressed by the learned counsel for the appellants that there was sufficient inbuilt balance maintained between the two categories of candidates and the impugned judgment of the High Court completely throws the Rules out of balance. What the executive did not think fit to do by prescription in the Rules, could not have been done by a judicial fiat.” The decisions of the Apex Court are binding upon us in light of Article 141 of the constitution of India. However, in the present controversy the authorities had not examined the criteria referred to herein-above for the sports person at any level while granting admission to private respondents. We are of the further opinion that for the reserved category for sports persons there is no other guidelines indicated in the scheme and in the process the Board has failed to examine the eligibility of the applicants who had applied against the said reserved category. 14. Further the counseling, which should have been carried out on its own by the Board, has not been carried out by the Board but by some different authority. …17… 15. We further find that neither there is any thing on record nor there is any indication that the status of opposite party No.4 to 9 has been verified by the Board in light of the guidelines for the sports persons, as indicated herein-above, at any stage. Further, the Board has failed to produce any record to show that the Board was satisfied with respect to the achievements of the private respondents. It is unfortunate that the Board who had all the responsibilities, wanted to get away by one stroke of pen from the controversy by informing this Court that the Board is only the body conducting examination and nothing more, which is against the scheme altogether. 16. In view of the above discussion and stand taken by the parties, it is crystal clear that the Board has failed to carry out its obligation. No efforts were made at any stage to verify whether any of the applicants, which we have been informed 106 in number, are eligible to appear as sports persons in the written examination. Thereafter those, who were called for the alleged counseling, were only who had secured more than 40% marks accordingly the petitioner was excluded inspite of the fact that the reserved candidates belonging to the reserved category were eligible to the counseling at 35% marks. 17. We further find that the Board had not asked for any documentary evidence right from the date of birth, educational qualification and any special qualification as in the …18… case of sports persons along with the application form. Why it has not been asked is a serious question and why the Board has not carried out its responsibilities, as referred to herein- above, is a question of inquiry and it would be open for the State Government to look into the matter and find out why the Board has failed to carry out its duties in light of the directions issued by the State Government. We hope and trust that the State Government will ensure that there are guidelines / rules framed for all times to come. 18. The opposite parties No.4 to 9 were selected and they joined the course by 15th November, 2008. This Court has sympathy with the young sports persons, who have been given admission but without following the guidelines of the State Government with respect to the eligibility in the criteria of the sports persons. 19. In light of the above discussion and circumstances the petition succeeds and is allowed. The admissions of opposite parties No.4 to 9 are quashed with the specific direction to the Board to adhere to the guidelines given by the State Government in examining all those who have applied against the reserved category of sports persons and have obtained 35% minimum marks in the written examination. The respondent Board has agreed that the process for examining the matter in light of the observation in the judgment would be …19… completed within 15 days and in case the respondents No.4 to 9 succeed, they be allowed to continue. However, unfortunately if they could not then the fee remitted by them be returned to them. 20. Costs easy. ( Jagdish Bhalla ), C.J. December 04, 2008. ( Kuldip Singh ), J. (sks/soni)