Amit Kumar Dhankhar v. Union Of India And Others

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,

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 3 of 50

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

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 4 of 50

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 W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 5 of 50 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:

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 6 of 50

"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

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 7 of 50

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

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 8 of 50

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

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 9 of 50

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

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 10 of 50

16 02-06 March Gold Jammu 59th All India Police

2011

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 W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 11 of 50 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.

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 12 of 50

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 W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 13 of 50 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 W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 14 of 50 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 W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 15 of 50 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 W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 16 of 50 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, W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 17 of 50 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.

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 18 of 50

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

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 19 of 50

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

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

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 W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 20 of 50 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 W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 21 of 50 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) Nos.3914, 3943 & 3955 of 2014 Page 22 of 50 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 W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 23 of 50 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.

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 24 of 50

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 W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 25 of 50 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 W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 26 of 50 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 W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 27 of 50 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 W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 28 of 50 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 W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 29 of 50 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 W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 30 of 50 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 W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 31 of 50 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

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 32 of 50

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

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 33 of 50

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

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 34 of 50

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

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 35 of 50

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

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 36 of 50

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

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 37 of 50

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.

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 38 of 50

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

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 39 of 50

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

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 40 of 50

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,

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 41 of 50

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

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 42 of 50

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.

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 43 of 50

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.

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 44 of 50

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 W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 45 of 50 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 W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 46 of 50 (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.

W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 47 of 50

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 W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 48 of 50 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 W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 49 of 50 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 W.P.(C) Nos.3914, 3943 & 3955 of 2014 Page 50 of 50