SCA/957420/2008 1/106 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9574 of 2008 With SPECIAL CIVIL APPLICATION No. 9575 of 2008 With SPECIAL CIVIL APPLICATION No. 9576 of 2008 With SPECIAL CIVIL APPLICATION No. 9577 of 2008 With SPECIAL CIVIL APPLICATION No. 9596 of 2008 With SPECIAL CIVIL APPLICATION No. 9737 of 2008 To SPECIAL CIVIL APPLICATION No. 9740 of 2008 With SPECIAL CIVIL APPLICATION No. 9752 of 2008 To SPECIAL CIVIL APPLICATION No. 9754 of 2008 With SPECIAL CIVIL APPLICATION No. 9777 of 2008 To SPECIAL CIVIL APPLICATION No. 9780 of 2008 With SPECIAL CIVIL APPLICATION No. 9783 of 2008 With SPECIAL CIVIL APPLICATION No. 9808 of 2008 With SPECIAL CIVIL APPLICATION No. 9820 of 2008 With SPECIAL CIVIL APPLICATION No. 9824 of 2008 With SPECIAL CIVIL APPLICATION No. 9827 of 2008 With SPECIAL CIVIL APPLICATION No. 9828 of 2008 With SPECIAL CIVIL APPLICATION No. 9830 of 2008 To SPECIAL CIVIL APPLICATION No. 9837 of 2008 With SPECIAL CIVIL APPLICATION No. 9862 of 2008 With SPECIAL CIVIL APPLICATION No. 9863 of 2008 With SCA/957420/2008 2/106 ORDER SPECIAL CIVIL APPLICATION No. 9877 of 2008 To SPECIAL CIVIL APPLICATION No. 9883 of 2008 With SPECIAL CIVIL APPLICATION No. 9921 of 2008 With SPECIAL CIVIL APPLICATION No. 9922 of 2008 With SPECIAL CIVIL APPLICATION No. 9967 of 2008 With SPECIAL CIVIL APPLICATION No. 9968 of 2008 With SPECIAL CIVIL APPLICATION No. 9988 of 2008 With SPECIAL CIVIL APPLICATION No. 9989 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== PATEL TULSIBEN AMBALAL & ors. ­ Petitioner(s) Versus STATE OF GUJARAT & ors. ­ Respondent(s) ====================================== Appearance : Special Civil Application Nos. 9574, 9575, 9596, 9752 to 9754, 9777 to 9780, 9828, 9921, 9922, 9967 & 9968 of 2008 MR KB PUJARA for Petitioner(s) MR SUNIT SHAH, GOVERNMENT PLEADER for Respondent(s) : 1 ­ 3. BY POST for Respondent(s) : 4 ­ 6. MS VIRAJ S FOZDAR for Respondent(s) : 7 (in SCA 9574 of 2008) SCA/957420/2008 3/106 ORDER MR GM JOSHI for Respondent : 7 (in SCA 9575/08) Special Civil Application Nos. 9576, 9577, 9737, 9739, 9831­9837, 9988 & 9989 of 2008 MR SHALIN MEHTA for Petitioners MR SUNIT SHAH, GOVERNMENT PLEADER, for Respondent(s): 1,2 MR HS MUNSHAW for Respondent(s) : 3,4,7,8,10,13,18,19, 24,25 (SCA 9576/09) MR MANISH J. PATEL for Respondent : 11 (SCA 9576/08) MR MP PRAJAPATI for Respondent(s): 14, 15 (SCA 9576/08) MR RUTVIJ BHATT for Respondent: 22 (SCA 9576/08) MR MAYANK VORA for Respondent: 26 (SCA 9576/08) Special Civil Application No. 9738 of 2008 Ms. MAMTA VYAS for Petitioners MR SS SHAH, GP, for Respondent : 1 MR MAYANK VORA for Respondent (s): 2 Ms VIRAJ FOZDAR for Respondent: 3 Special Civil Application No. 9740, 9830 of 2008 MR MAHENDRA K. PATEL for Petitioners MR SS SHAH, GP, for Respondent(s): 1­2 MR MP PRAJAPATI for Respondnent(s) : (in SCA 9830/08) Special Civil Application No. 9783 of 2008 MR UTKARSH JANI for Petitioners MR SS SHAH, GP, for Respondent(s) : 1­2 MR HS MUNSHAW for Respondent(s): 3,4, 6, 8,9 MR MAYANK FOR for Respondent: 5 MR MP PRAJAPATI for Respondent(s): 7,11 Special Civil Application No. 9808, 9862, 9863 of 2008 MR V. GOSWAMI for Petitioners MR SS SHAH, GP, for Respondent(s) 1­2 Special Civil Application No. 9820, 9824, 9827 of 2008 MR PS PATEL for Petitioners MR SS SHAH, GP, for Respondent(s): 1, 2, 3, 5. Special Civil Application No. 9877 to 9883 OF 2008 MR D.A. ZALA for Petitioners MR MP PRAJAPATI for Respondent: 1 (in SCA 9877/08, 9879/08) MR SS SHAH, GP, for Respondent(s): 2,3 MR MANISH PATEL for Respondent: 1 (in SCA 9881/08,9882/08) SCA/957420/2008 4/106 ORDER MR HS MUNSHAW for Respondent: 1 (in SCA 9877, 9878, 9879, 9880, 9883 of 2008) ====================================== CORAM : HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 12/08/2008 ORAL JUDGMENT The present group of matters have been filed to challenge the decision of the respondent No. 2­Director of Primary Education dated 17.7.2008 directing all the District Primary Education Officers of the District Education Committees and the Administrative Officers of the Municipal School Boards to ignore/cancel the certificates of sports issued by respondent No. 7­Gujarat State Women's Football Association, Chandkheda, Dist. Gandhinagar (in Special Civil Application No. 9574 of 2008), Gujarat State Kabaddi Association/Gujarat State Athletic Association/Wrestling Association of Gujarat, Ahmedabad for the purpose of 5% additional marks as weightage to be given on the basis of such certificates of sports in the recruitment to the post of Vidhya Sahayak. 2. Since the issues involved in all these petitions are more or less the same and the challenge is to the impugned decision dated 17.7.2008 in all the matters, all these petitions are heard and disposed of together by SCA/957420/2008 5/106 ORDER this common judgment. F a c t s 3. In order to fill up the post of Vidhya Sahayak in primary schools, the District Education Committees and the Municipal School Boards have undertaken the recruitment in different districts. This exercise has been initiated or started pursuant to the previous litigation and the order passed by this Court in Special Civil Application Nos. 20049 of 2005 and allied matters. For such exercise for filling up of the posts as per the policy of the State government to promote the sports and sports persons 5% weightage has been decided to be given to such sports persons on the basis of the sports certificates issued to them by the recognized sports associations of the State which are in turn affiliated to the federation of the respective sports recognized by the Ministry of Youth Affairs and Sports, Govt. of India. It is also required to be mentioned that there were petitions being Special Civil Application Nos. 4624 of 2007 and 3102 of 2008 filed challenging this aspect of giving of 5% weightage on the basis of such certificates on the ground that the State Government came to know about some associations/institutions distributing bogus certificates which are not recognized. Therefore, the root cause of the controversy or the issue was regarding providing 5% additional marks/weightage to the candidates appearing for the post of Vidhya SCA/957420/2008 6/106 ORDER Sahayak on the basis of such certificates, which in turn are said to have been issued by the associations not complying with the norms, which in turn prejudice the meritorious candidates and thereby preference is given to the candidates with such certificates and the meritorious candidates are denied the opportunity of employment. 4. It is in this context, when it came to the notice of the State Government, the Commissioner, Youth Services and Cultural Activities, Gandhinagar, decided to have verification and trace out issuance of such bogus certificates by organizing camps inviting all recognized associations/institutions with their records about the activities/ events/tournaments organized by them; the details of the candidates who have participated and other such details about the affiliations, etc. with an object to see that the real sports person, who are required to be given the benefit as per the Government policy/Govt. Resolution receive the same, and does not cause prejudice to the meritorious students whose claim would be denied when other candidates with such fake or bogus certificates of sports put forward the claim for accommodating them. The policy of the Government qua giving 5% additional marks/weightage to the candidates appearing in the recruitment of Vidhya Sahayak on the basis of such sports certificates is laid down in the Government Resolution dated. 25.2.1980. SCA/957420/2008 7/106 ORDER 5. It is during such exercise of verification or cross check of such certificates issued by different associations/institutions which have been called in the camps with the records, as stated above, some irregularities are said to have been brought to the notice, which has ultimately culminated into the impugned decision by the respondent No. 2 which has been conveyed to all District Primary Education Officers that they may not approve such certificates given by the aforesaid associations/institutions and treating such certificates as cancelled for the purpose of recruitment of Vidhya Sahayak­2008. It is this decision dated 17.7.2008 which has been challenged in this group of matters on various counts, inter alia, 5.1 The decision is arbitrary and illegal and also in violation of the rules of natural justice; 5.2 The decision is not based on any material and is contrary to the policy of giving 5% additional marks or weightage when the sports certificate is produced by the candidates from the recognized State Associations which in turn is affiliated to the Federation at an all­India level with the Ministry of Youth Affairs and Sports, Govt. of India. SCA/957420/2008 8/106 ORDER 5.3 It is also contended that once such sports certificates are issued to the candidates, the State government i.e. the Secretary, Youth Affairs and Cultural Activities, Govt. of Gujarat, and Director of Primary Education have no authority to ignore or cancel such certificates or treat the national tournaments held with the approval of All India Federation as null and void. 5.4 It has been further contended that it is only the Ministry of Youth Affairs and Sports, Govt. of India, which can take such decision. Further, it has also been contended that the candidates who have produced the sports certificates and the Associations who have issued them have, in fact, participated during such camps for verification with material and if at all there was any shortcoming, further opportunity could have been given, but such a decision could not have been taken, which will ultimately adversely affect the candidates. The learned advocates have emphasized that the word 'verification' would imply the verification about the genuineness of the certificates issued and it is not in dispute that such certificates are issued by the State Associations recognized and are affiliated to the respective Federations of the concerned sports at an All India level whether it is women's football or wrestling or kabaddi, etc. Therefore, if the certificates are issued pursuant to the participation in such event or tournament by the State Association with the approval of SCA/957420/2008 9/106 ORDER the Federation at an All India level, there is no violation of any norms, rules, procedure and the impugned decision is based on mere suspicion that there may be some irregularities and it is an ipse dixit of the respondents which is not only arbitrary and illegal but also without any basis or foundation. 6. An affidavit­in­reply has been filed on behalf of the Director of Primary Education referring to the need for organizing such camps for verification. It has been contended that the State Government had issued a Government Resolution to give benefit of 5% additional marks/weightage to the candidates appearing for recruitment of Vidhya Sahayak who holds the certificate of sports for outstanding performance as per the Government Resolution/Circular. According to such policy, the candidates have submitted the certificates. However, it came to the notice of the State Government that some Associations/institutions have issued bogus certificates or fake certificates not in accordance with the norms and therefore the Commissioner, Youth Services & Cultural Activities, decided to organize camps for scrutiny inviting all such Associations/institutions to remain present with the records with regard to the activities/events/tournaments organized, the details of the candidates who have participated and other necessary details with an object to see that undue advantage on the basis of such bogus or fake SCA/957420/2008 10/106 ORDER certificates is not taken by the candidates at the cost of the meritorious candidates and the merit is not compromised in the recruitment process. It is contended that during such exercise of camps organized for such purpose it was found that the certificates produced by the petitioners were not recognised on the ground that the certificates issued by the respective Associations was not in a position to establish that it is affiliated to any national level federation recognized by the Central Government or the Indian Olympic Association. 7. Similarly, an affidavit­in­reply has been filed by the Secretary, Youth Services and Cultural Activities, Gandhinagar on the same lines. It has been specifically contended, referring to this aspect, that every sport has only one recognized Association either at the national level a Federation recognized by the Central Government affiliated with the Indian Olympic Association and in the same way at the State level one Association gets recognized from the national level Federation recognized by the Government of India. It has been contended that the list of recognized Associations or Institutes downloaded from the website of the Ministry of Youth Affairs & sports, Govt. of India, does not show the name of the two Associations who is said to have attended the camp. It has been contended that at such camps organized by the Commissioner of Youth Services & Cultural Activities, Gandhinagar was SCA/957420/2008 11/106 ORDER attended by 2 Women's Football Associations but none of the Associations was able to establish its recognition. Further, it has been contended that respondent No. 7­Gujarat State Women's Football Association has admitted the same vide letter dated 13.7.2008 (Annexure­D) to one of the affidavits in Special Civil Application No. 9574/08. It has also been stated that one Mr. Natubhai Parmar, as President of the Gujarat State Women's Football Association had addressed a letter stating that there is change in its office bearers and Mr. Sanjay Joshi is appointed as Secretary of the Association and not to certify any certificates till the dispute between two associations are resolved. Further, it has also been contended that even at the national level there are two Women's Football Associations/Federations having conflict and there was a letter by the Commissioner to the President of Indian Olympic Association to provide a list of approved national federations. 8. An affidavit has also been filed by a supporting respondent i.e. one Mr. Bhagwatiprasad Arya, Secretary of the respondent No.7­Gujarat State Women's Football Association contending, inter alia, that the respondent No. 7 Association is blacklisted by the impugned communication dated 17.7.2008 issued by the respondent No. 2 without any show­cause notice or hearing. The action of respondent No. 2 of SCA/957420/2008 12/106 ORDER blacklisting the Association is therefore inconsistent and incompatible with the decision of the Supreme Court reported in (1975) 1 SCC 70 and 1994 Supp. (2) SCC 699. It has also been contended that the respondents have not taken into consideration and suppressed certain facts deliberately and referred to the correspondence or the letters. In some of the matters rejoinders have also been filed reiterating the same averments and also clarifying the respective stand or position with reference to the contentions in the affidavit­in­reply. 9. It is in this background, this group of petitions are contested on various contentions submitted hereinafter. 9.1 Learned advocate Mr. Kaushik Pujara appearing for the petitioners in Special Civil Application No. 9574 of 2008 submitted that the impugned decisions are arbitrary, illegal and in violation of the principles of natural justice. Learned advocate Mr. Pujara referred to the background with regard to the recruitment process and the 5% additional marks to be given as weightage to the sports persons on the basis of sports certificates possessed by them. Therefore, learned advocate Mr. Pujara submitted that the certificates, which have been issued by the State Association cannot be straightway rejected. Learned advocate Mr. Pujara referred to the advertisement and the requirement SCA/957420/2008 13/106 ORDER or qualifications required for the post of Vidhya Sahayak with 5% additional marks to be added as weightage on the basis of such sports certificates. Learned advocate Mr. Pujara also referred to the certificates which have been produced in each of these matters like at page 49 in SCA No. 9574/08, which is a certificate issued by the women's Football Federation of India with regard to Inter Zonal Women's Football Tournament for 2007­08 and submitted that this certificate and the Form­2 clearly suggest that it has been genuinely issued. Learned advocate Mr. Pujara also referred to the railway tickets stating that it would suggest that the candidates have actually participated. Learned advocate Mr. Pujara has also referred to some of the correspondence or letters by which concession has been provided by the Railways and emphasized that it would suggest that the Ministry of Railway has also offered the concession and, therefore, the genuineness of such certificates or the issuing Association cannot be doubted. Learned advocate Mr. Pujara also referred to the Govt. Resolutions dated 25.2.1980 & 10.5.1982. He also referred to the Govt. Resolution dated 1.8.1990 at page 80 to support the contention that it is pursuant to the Government policy to give encouragement to the sports and the sports persons that they have decided to give the benefit to the sports persons and in substitution of the earlier Resolution dated 25.2.1980, another Resolution dated 10.5.1982 has been passed that those who have SCA/957420/2008 14/106 ORDER participated at national level or even at the inter­University competition would be regarded as meritorious sportsmen. The learned advocate also referred to the Govt. Resolution dated 1.8.1990 and thereafter GR dated 11.10.2005 which states that preference may be given to the sports persons while filling up class III & IV posts which has also a reference to giving 5% additional marks. Learned advocate Mr. Pujara, therefore, submitted that when the State Government has issued such policies in the form of Government Resolutions and circulars to provide encouragement to the sports persons and the sports activity, such impugned decision is arbitrary. Learned advocate Mr. Pujara also referred to the impugned communication dated 17.7.2008 (Annexure­F) addressed by the Office of the Director of Primary Education to all District Primary Education Officers and and District Education Committees. Further, learned advocate Mr. Pujara submitted, referring to Annexure­G p. 92 in SCA No. 9574/08 that the State Women's Football Association which has issued the certificates to the candidates has been recognized by the respondent authorities. Similarly, he referred to p. 93 which is again a communication dated 29.4.2005 stating that the State Women's Football Association has been recognized. Again, the certificate at p. 94 is a certificate issued by the Commissioner of Youth Services and Cultural Activities, Gandhinagar, for the recognition of the State Women's Football Association, Kankaria, SCA/957420/2008 15/106 ORDER Ahmedabad. Similarly, at p. 95 is a letter or communication regarding recognition given by the Secretary, Youth Services & Cultural Activities addressed to the Gujarat State Women's Football Association, Chandkheda. He also referred to further such certificates (Annexures H & I) again for that purpose and pointedly referred to the Annexure­I which is the recognized State level Association for different sports and referred to the fact that the Gujarat State Women's Football Association is also one of them. Learned advocate Mr. Pujara referring p. 111 (Annexure­J) submitted that it has been clarified that the recognition is not compulsory and it was submitted that it cannot be disputed that respondent No.7­Association is recognized by the State Government and also it has affiliation with the national federation i.e. National Women's Football Federation. Learned advocate Mr. Pujara also referred to Annexure­R colly. in SCA No. 9574/08 and submitted that the Association was not intimated and thereafter though they had participated in the camp organized by the respondents, it was repeatedly requested that they may be informed. However, the impugned decision has been taken without affording an opportunity of hearing. Learned advocate Mr. Pujara also contended that a participant from the State Association has also been a recipient of the Arjuna Award as reflected in p. 158. SCA/957420/2008 16/106 ORDER 9.2 Therefore, learned advocate Mr. Pujara also referred to the communication dated 2.12.2005 at p. 120, which is a letter from the Secretary, Youth Services and Cultural Activities, to the District Primary Education Officers, District Education Committee, Zilla Panchayats with regard to the verification of the certificates issued for the game of football. Learned advocate Mr. Pujara referred to Annexure­M p. 145 which is a letter from the Women's Football Federation of India addressed to Mr. Bhagwatiprasad Arya stating that Gujarat Women's Football Association is recognized by the Federation. He submitted that this is a letter addressed by the Federation stating about the recognition to the Gujarat Sate Women's Football Association. Learned advocate Mr. Pujara, therefore, submitted that when there is no dispute about the candidates having participated in such tournaments organized by the Gujarat State Women's Football Association on the basis of which certificates are issued to the candidates and there is no dispute about the recognition of the Gujarat State Women's Football Association by the Federation, which is a national level body with whom the said Association is affiliated, the impugned decision to cancel the certificates issued by the Gujarat State Women's Football Association is arbitrary and illegal. 9.3 Learned advocate Mr. Pujara also submitted the decision is not SCA/957420/2008 17/106 ORDER only arbitrary, illegal, it is also violative of Art. 14 as it is in violation of the rules of natural justice. Learned advocate Mr. Pujara submitted that no opportunity of hearing is given before the decision is taken and in fact there is no procedure or process followed for arriving at such a decision and, therefore, it is arbitrary and illegal. 9.4 Learned advocate Mr. Pujara referred to the different petitions in this group of matters for different sports and has also on the same line made the submissions. He also referred to Special Civil Application No. 9575 of 2008, which is with regard to th sports of Wrestling and he referred the Government Resolutions dated 25.2.1980, 1.8.1990. He also referred to Annexure­H p. 115 which is a letter dated 11.6.2008 from the office of the Director of Primary Education to District Primary Education Officers with regard to verification of certificates and referring to p. 116 he emphasized that though this letter is purported to be written with regard to scrutiny and before that exercise is made, it has already been decided that the certificates issued by the Wrestling Association of Gujarat, Gujarat State Women's Football Association, Chandkheda, Gujarat State Women's Football Association, Vijaynagar are not to be considered. Learned advocate Mr. Pujara therefore strenuously submitted that this reflects the arbitrary and highhanded manner in which the decision is taken. Learned advocate Mr. Pujara referred to SCA/957420/2008 18/106 ORDER Annexure­I (colly.) and submited that the letter at p. 117 is addressed by the Indian Style wrestling Association of India, recognized by the Ministry of Youth Affairs & Sports, Govt. of India) and at p. 118 is another letter by the Ministry of Youth Affairs & Sports, Govt. of India, to the Secretary General, Indian Olympic Association for including the sports of Wrestling in Olympics. Learned advocate Mr. Pujara also referred to p. 121 which is Annexure to “Guidelines for Assistance to National Sports Federations” issued by the Ministry of Youth Affairs & Sports and submitted that there are category­wise list of discipline which have been recognized and referred to the Guidelines providing for withdrawal of the recognition and the procedure for suspension or withdrawal of the recognition. Learned advocate Mr. Pujara therefore submitted that when the recognition of the State Association is not disputed, affiliation with the Federation at the central level is not disputed, and the tournament having been organized is also not in dispute, there is no reason for cancelling the certificates or doubting the certificates issued by the State Association. Learned advocate Mr. Pujara also referred to the letters at p. 128, 131. Further, learned advocate Mr. Pujara referred to Annexure­K which is a latter addressed by the Wrestling Association of Gujarat to the Director of Primary Education stating that the record has been collected by them and though they were required to submit further details, however, the record has not SCA/957420/2008 19/106 ORDER