Fazal-e-Roub and Ors. vs State of J&K and Others

Nargotra, J.—This letters patent appeal arises out of the judgment dated 8th August 2005, passed in OWP No. 1123/2004, whereby the

learned Single Judge has allowed the writ petition of respondent No. 5 and issued the following directions to the State:

(i) The respondentState is directed to modify/alter Govt. Order No. 163GAD as amended from time to time suitably in the light of observations

made above so as to give weightage for excellence in sports and a candidate having achievements at higher level be given preference than the

achievements at lower level;

(ii) Let the decision be taken in this regard within a week's time and the merit of the candidates who have applied in sports category be rearranged,

based upon such amended rule/guideline and the selection be made accordingly.

The dispute in the writ petition pertains to admission to Medical Colleges for Medical Courses for the seats reserved under Sports category.

The State of Jammu and Kashmir for providing reservation in sports category has enacted a provision in SRO 126 of 1994 dated 28th June 1994

issued in exercise of the power conferred by Section 124 and other relevant provisions of the Constitution of the Jammu and Kashmir read with

Articles 15(4) and 16(4) and other relevant provisions of the Constitution of India as applicable to the State (hereinafter called 'the Rules'). Rule 23

of the Reservation Rules provides for reservation of 2% of seats in each course or Professional Institutions for ""candidates possessing outstanding

proficiency in sports"". The reservation rules aforesaid, however, no where provide for the mechanism, methodology or criteria for determining as to

which of the candidates would be a candidate 'possessing outstanding proficiency in sports'. Before the Reservation Rules of 1994 came to be

framed, the provisions for reservation of seats for admission to Professional Colleges in favour of the candidates possessing outstanding proficiency

in sports was existing in SRO 272 dated 3rd July 1982. Like the present Rules of reservation, there were no guidelines/rules or procedure laid

down therein for grant of such proficiency certificates in favour of the candidates. Therefore, this Court in writ petition No. 737/1990, entitled

Subira Jan v. State of J&K and Ors directed the Government to frame Rules for grant of certificates in favour of the candidates possessing

outstanding proficiency in sports. The Government, therefore, pursuant to the directions of the Court, framed the rules called the Certification of

Outstanding Proficiency in Sports Rules 1992 vide Government Order No. 121GAD of 1992 dated 30th December 1992. In these rules, ""the

candidates possessing outstanding proficiency in sports"" came to be defined. The aforesaid Rules of 1992 also came to be challenged in case of

Ankur Mahajan v. State of J&K and Ors. in writ petition No. 867/1993. A learned Judge of this Court without expressing any opinion with regard

to the criteria adopted for determining the eligibility of a person to be certified as candidate possessing outstanding proficiency in sports, observed:

At the same time, I do wish to convey that the review of the criteria indeed is desirable so as to ensure that the objectives for which the

government order was issued are not defeated and frustrated, and that genuine sports persons of all hues are allowed to compete with each other

in the process of selection. If in this process, it is ever found that the J&K State has dearth of any genuine sports persons, apart from encouraging

the sports and providing infrastructural facilities, the efforts shall also have to be made to ensure that available sports persons are not only

accommodated, but also not discouraged from competing in the participation process. This in any manner should not be construed to be any

suggestion about the dilution of the standards or compromising with the quality. All these factors are relevant only for the consideration of experts

in the filed, in the light of the material available for such consideration. Periodical Reviews of such criteria is not only a healthy exercise, it also tends

to inspire confidence that the State functionaries are not obvious to the changing times, needs, requirement and other relevant factors.

The learned Judge while accepting the offer of the learned counsel for the respondents, disposed of the petition and issue the following

directions:

(1) The State shall constitute a Committee of representatives from General Administration Department, Education Department, J&K Sports

Council and the Competitive Authority to take stock of the past performance of the candidates in the sports category.

(2) This Committee shall review the consideration process in the sports category for the past three years and decide as to whether the eligibility

criteria in Govt. order dated 30th December 1992 is and has been keeping with the present trends in the field of sports and as to whether the

criteria needs any improvement, modification or correction. The Committee shall take into account all relevant facts and circumstances including the

past performance, the existence of infrastructural facilities in J&K State and future prospects as also the availability of sufficient number of eligible

candidates in the sports category. It shall be entirely up to this Committee to take decision on merits and in the overall interest of the community of

sports persons, keeping in view the special relevance and consideration for encouragement of sports and sportspersons.

(3) The committee shall not be influenced, directly or indirectly by any extraneous or outside considerations.

With the aforesaid directions, the learned Judge directed the Committee to finalize the report in all respects within two months and depending

upon the report so submitted directed the General Administration Department to decide for future course of action with regard to the eligibility

criteria.

Pursuant to the aforesaid directions, the Government in pursuance of Government order No. 1215GAD of 1992 dated 30th December 1992

issued Government order No. 163GAD of 1996 dated 22.2.1996. By the time this Government order came to be issued, the reservation Rules of

1994 had come into force. In Government Order No. 163GAD of 1996, the Government framed the Rules called The Jammu and Kashmir

Certification of Outstanding Proficiency in Sports Rules 1996. Rule 2 of the Rules of 1996 defined the candidates possessing outstanding

proficiency means;

(i) A person who has represented India at the Olympic Games/SAARC Games/common Wealth Games/Asian Games or other officially

recognized test matches/world cup competitions in any of the games/sports mentioned in Scheduled 1 annexed hereto; or

(ii) A person who has participated and secured one of the first three positions in the individual events or was a member of the team which obtained

first or 2nd position or has participated twice or more in the same discipline in the National championship for junior or senior events in any sports

or games as mentioned in the Scheduled1 annexed to these rules for such of the courses where prescribed qualification is 10+2....

The case of the writ petitioner was that the aforesaid Government order which regulates the admission to sports category does not provide any

guideline for giving preference to the persons who possess outstanding and exceptional proficiency in sports and all the persons irrespective of the

level of their participation in the events whether International, National at junior or senior level and irrespective of the fact whether such person

participated in the event or was a nonplaying member of the team, treats all of them alike. According to the petitioner, that in the rules no distinction

has been made between the persons who played at international level and a person who played at national level, between the persons who has

earned medals and the persons who have simply participated in any of the event as a nonplaying member and, therefore, criteria adopted by the

rules that certifying member is a candidate possessing outstanding proficiency in sports is unjustified and arbitrary.

The petitioner claimed that since she has represented the country in international meet and won number of medals and for having been adjudged

best athlete in junior Rhythmic Gymnast in the country in the year 2002, has a right of preference for consideration in the sports category in

comparison to other sports persons who have participated in the national event or below the same. It will be pertinent to mention here that when

the petitioner filed the writ petition, the question of her consideration under sports category for admission to any Professional College had not

arisen at all. It is only during the pendency of the writ petition, the Board of Professional Examination issued Notification in the month of July 2005

for holding common entrance test. The petitioner applied for appearing in the common entrance test against the sports category seats after

obtaining the certificate certifying her to be possessing outstanding proficiency in sports. Along with her, other candidates who were possessing

outstanding proficiency in sports, which in all number to 120 appeared in the entrance test conducted by the Board of Professional Entrance

Examination. The petitioner also filed a CMP seeking interim directions after issuance of the notification. The learned Single Judge by his order

dated 9th June 2005, issued the following directions :

In view of the above, I direct that the Board of Professional Entrance Examinations shall proceed to make selection to the professional courses

pursuant to the Notification already issued. However, the result of the sports category shall not be declared. In the meanwhile the Staterespondents

shall frame the guidelines as recommended by the Sports Council. This order is however, subject to objections from other side. List on 7.7.2005.

Objections may also be filed in the meanwhile to the main petition as also the CMP.

Pursuant to the interim directions, the Government considered the recommendations of Sports Council in which it had recommended for the

change in criteria. The recommendations of the Sports Council did not find favour with the Government and the same were rejected vide its

communication dated 19th July 2005.

The stand of the Government before the learned Single Judge was that the existing Government policy provides a detailed comprehensive

procedure for issuance of certificates to the sports persons and the said Government order does not suffer from any vice. It was further submitted

by the respondentsState that the representation of the petitioner was examined and deliberated upon in the meeting held on 8th July 2005 where

the representatives of the Sports Council and Board of Professional En trance Examination also participated and after discussions, it was found

that in the existing rules, there is no provisions for grading sports persons as they are all treated as one category and selection for professional

courses is made essential on the basis of merit obtained in the entrance examination. The Government is of the opinion that any change in the

system and gradation of sports persons or sports events would raise more complicated questions and introduce an element of subjectivity in the

whole process of reservation. It was further stated that if the existing system is not altered, sports persons with very low merit may qualify for

admission just on the basis of performance in sports whereas sports persons with superior academic merit may be left out.

Thus the case of the petitioner was that for granting benefit of reservation in the sports category, the candidates should be graded as per their

achievements in International level, National level and State level. The stand of the respondents was that no such gradation is necessary as with the

adoption of the said system, the sports persons with low merit are likely to steal a march over the sports persons having a superior merit and,

therefore, putting of all the sports persons who come within the definition of sports persons possessing outstanding proficiency in sports as defined

in Rule 2 of 1996 Rules in one bracket and to be considered for selection on the basis of their merit obtained in the entrance examination is proper

and the best method.

The learned Single Judge after noticing the dictionary meaning of the words 'outstanding' and 'proficiency' occurring in Rule 2 of 1996 Rules,

has observed in the judgment impugned ""the use of words, 'outstanding' and 'proficiency' for the candidates belonging to the sports category clearly

indicate the legislative intent of the rule making authority that the reservation is for such of the sports persons who have excelled in sports and have

remarkable and creditable achievements to sports. If any person(s) whosoever has/have participated in any sport/event as specified in ScheduleI is

to be provided consideration and his/their academics are to be given the preference then the reservation loses its significance, relevance and

purport for which the reservation is made. From the Rules itself, it is evident that paramount consideration is the 'Outstanding performance and

achievements' in sports and the academics take a back seat

From the aforesaid observations, the view of the learned Single Judge appears to be that the sports persons who can be graded best amongst

the class of sports persons should be selected under the reserve category even if his merit in the entrance examination is the lowest in comparison

to the other candidates pitted against him in the said category, meaning thereby that even if in entrance examination such best sports person has

obtained a zero percentage of marks, in the entrance examination he is to be preferred in comparison to those who have achieved the lower level in

sports but obtained much higher percentage of marks in the entrance examination in comparison to him and performance of such candidates in the

entrance examination should take the back seat. The learned Single Judge has further observed that:

The object and purport of reservation to sports personal is in the nature of a compensation to the sports person who has devoted time and energy

for acquiring proficiency in sports and earned name for himself, the Institution, the State and the Country to which he belongs. Therefore, what is to

be rewarded is excellence in sports by providing reservation. This obviously means that best amongst the persons for whom reservation is made.

In the opinion of the learned Single Judge, the persons belonging to different categories cannot be treated alike and on the same level when

their achievements are clearly distinct and distinguishable. According to the learned Judge, a person who has participated in National

Championship cannot be equated with a person who participated in a junior or senior level at the International level. If the entrance test is to be

given precedence over the achievements in the sports then this in itself would mean the selection primarily on the basis of academic merit or merit in

the entrance test and there would be no purpose of reservation for the proficiency that too out standing in sports of a candidate.

The learned Single Judge after taking note of the Rules framed in this behalf by the State of Punjab, Kerala, Tamil Naidu, came to the view that

rules prevalent in the State deserve to be recasted for providing grading to the sports persons in reference to their participation/achievements in the

International, National or State event etc.

On the aforesaid premises, the learned Single Judge has issued directions to the State as quoted above. The appellant herein, who is one of the

candidates amongst 120 candidates competing for selection under sports category. He was not party to the writ petition. However, in view of the

fact that he was likely to be affected by the judgment of the learned Single Judge, he has been allowed to appeal against the judgment and hence

the present letter patent appeal. The State has also filed an appeal being aggrieved of the judgment of learned Single Judge.

We have heard learned counsel for the respective parties in both the appeals at length. The source of power for the executive for making

reservation in sports category in the matter of admissions to the Professional Colleges cannot be tranced to Articles 15(4) and 16(4) of the

Constitution of India. It can at the best be in Article 14 of the Constitution of India. In Article 14 of the Constitution, the right of equality has been

enshrined which is manifestation of celebrated principle of rule of law, a pervading spirit of the Constitutions all democratic countries in the world;

that every man whatever be his rank or condition is subject to the ordinarily law of realm and amenable to the jurisdiction of ordinary Tribunals.

Article 14 provides that:

Equality before law. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of

India.

The first part of the Article guarantees equality before law while the second part provides for equal protection of laws. But this rule of equality

amongst all enshrined in the Article is not absolute rule as a Constitution itself in other provisions entitles the State for according differential

treatment to different classes of individuals. The guarantee enshrined in Article 14 in view of the exceptions attached to the guarantees granted in

the latter Articles of part III of the Constitution can be said to free from the recognition of the exceptions to the Rule of equality before law and

equal protection of laws. The Courts in India have followed the general principle of equal protection of laws, to mean the right of equal treatment in

similar circum stances. This means that State cannot treat similarly situated persons differentially and likes are to be treated alike in law. As a

necessary corollary to this it would mean that differently situated persons may be treated differentially by the State in law. Thus, though Article 14

contains the rule of equality, yet this rule is subject to exceptions in which a class discrimination is permissible, however subject to the condition that

such discrimination is on reasonable grounds, By 'reasonable' it is meant that the classification for discrimination must be free from arbitrariness and

must also be rational and the test for judging the reasonableness of the class discrimination to be the satisfaction of two conditions.

(a) The classification must be founded on an intelligible differential which distinguishes those that are grouped together from others; and

(b) The differential must have a rational relation to the object sought to be achieved by the law.

The State in order to provide incentives to the sports persons excelling in games has provided reservation to the extent of 2% of the seats for

the sports persons ""possessing outstanding proficiency in sports"". Thus the sports persons possessing outstanding proficiency have been identified

as a separate class for the purpose of reservation by the State. They have been made to be treated differentially as a class than the candidates of

open category. Whether classification is legally valid or invalid is not an issue in the present case. The issue in the present case is whether the

differential treatment which is sought to be given to them is justified and if justified what should be the criteria for adjudging their inter se merit for

being selected in the reserved category. By giving them differential treatment, they are given the advantage of competing amongst themselves in the

reserve seats, meaning thereby that they have not to compete with all the candidates for all the seats but they have to compete only amongst

themselves for the reserved seats. The object sought by this differential treatment to them is that the students are encouraged to participate in

games and excel therein so that there is a proper development in their individual personality. The benefit is in recognition of the importance of

games in the life. For identifying/certifying a candidate of outstanding proficiency in sports, the State has made the 1996 Rules. There is no denial of

the fact that it is the field of the experts to identify the games and the level of participation in the event by sports persons for which due recognition

should be given. It cannot be decided by the Courts as to which game or which event should take precedence over the other. It is the prerogative

of the State to lay down the criteria by framing rules and the State has exercised the power and defined the expression ""a candidate possessing

outstanding proficiency in sports"" exhaustively. Once the expression has been defined exhaustively then the definition given is to be treated to be as

hard and fast without admitting any other meaning to it than the one given by the definition. There is no dispute to the definition provided by the rule

making authority to the expression 'candidate possessing outstand proficiency'.

The writ petitioner is only aggrieved of nonincorporation of rule of preference amongst the candidates so identified and it is the submission of Mr.

Sethi, learned counsel for the petitioner that all the candidates so identified and defined by Rule 2 should not have and cannot be put in a single

bracket for availing the benefit of reservation rules. He has contended that 1996 Rules are contrary to the directions issued in Ankur Mahajan's

case in the first place and further that these Rules run counter to the purpose of reservation as bracketing of all in one category, ignores the

individual excellence of a player which he has achieved in comparison to the other sportsmen competing with him. He argues that the purpose of

providing reservation in the sports category is to provide incentive to personal achievement of a sports person and not to create a separate

indivisible class than the said category. He submits that in Rule 2 of 1996 Rules, the words 'outstanding' and 'proficiency' have been used which are

indicative of the fact that the performance of a sports person cannot be ignored when his merit is to be considered with the other sports persons.

He argues that in the State of Punjab, Kerla and Tamil Naidu, the rules prevalent provide for weightage to the individual event played and

preference given to the sports persons on the basis of his performance for which due weightage is given in making the selection.

As against this, the contention of Mr. Z.A. Shah, learned counsel for the appellant and Mr. B.S. Salathia, learned AAG for the State is that

preference of sports persons on the basis of his individual performance is irrelevant. They submit that rule of preference is irrelevant. All the

candidates who fall in any of the categories mention in Rule 2 of 1996 Rules are entitled to be certified to be possessing outstanding proficiency in

sports. After being so certified they become eligible for competing for the reserved seats in the sports category. The certificate in this behalf can

only be treated as eligibility criteria. The selection is made thereafter on the basis of their individual merit. The mode is best and cannot be faulted

with.

We have considered the respective contentions of the learned counsel for the parties raised at the Bar. In our opinion, the view of the learned

Single Judge that merit has to take the back seat is not right. The merit plays the basic role in judging the entitlement of a candidate for selection

against a seat for professional course. The today's candidates if selected would be the doctors of tomorrow on whose competence the health care

of the Society is to depend. More over, if only merit is to be the only criteria for selection then reservation of any kind would be unjustified for the

medical courses. But in view of the social conditions prevailing in India and the State founding fathers of the Constitution of India and Constitution

of Jammu and Kashmir have made provision in the Constitution for permitting the reservations in educational Institutions and in the matter of

employment under State. Though Rule of absolute academic merit and Rules for reservation are in contradiction to each other yet both have to

coexist in regard to the reserved seats reserved for reserved categories in whose favour reservation is permissible. In the case of reserved

candidates the question of selection has to be decided on the basis of inter se merit of the candidates competing each category for which

reservation has been made. This way the reserved category candidates compete with each other and only candidates possessing comparative

better merit would be selected. Thus the advantage arising out of the reservation made in favour of a particular class of candidates of reserved

category is that they have not to compete with whole lot of the candidates but their competition is restricted to amongst the candidates of that

reserved category only.

In the present case the reservation is only for the candidates ""possessing outstanding proficiency in sports"" and significantly is not for 'Sports

persons'. Rule 2 of 1996 Rules framed by the Govt. defines the candidate who can be said to be a person possessing ""Outstanding Proficiency in

Sports"" as the one who comes within the categories mentioned in the rule. By putting the candidates falling in the specified categories mentioned in

the rule, all of them have been brought in one category of ""Out standing Proficiency in sports"" for the purpose of considering them for selection for

the seats reserved for that category. Whether bracketing them all in one category irrespect of one's individual level of outstanding proficiency is

reasonable and legally justified?

As already said the reservation is for the candidates possessing outstanding proficiency in sports and not for the sports persons in general. The

expression outstanding proficiency in the competition itself contemplates a player's outstanding performance. The level of outstanding performance

can vary from player to player depending upon his performance in the event. As per Rule 2 all the players who have participated/played in

specified events at different levels have been declared to be candidates possessing outstanding proficiency irrespective of the level at which they

participated/played and have been treated alike. This in our considered opinion is arbitrary. The candidates falling in the same category can be

treated alike but not the candidates of different categories who have played at different levels can be treated alike for the purposes of determining

level of their outstanding proficiency. After all a candidate who has played in an International level would be a different class than a person who has

played in national level. For judging the level of outstanding proficiency of a person, he can only be pitted against a candidate who has played in the

same level. Therefore, in our view the individual performance of a candidate at particular level of sports in which he has participated cannot be

legally ignored while considering his level of proficiency in sports. The levels of the competition being different, the achievements of the candidates

at different levels also different then how can they be treated equal. Every one has to be adjudged on his own merits for determining the level of his

outstanding proficiency by keeping in view the level of competition played by him. At the same time we cannot agree with the preposition that merit

has to take the back seat. In our view, the merit of a candidate competing in reserved category cannot be ignored. The merit of the candidate in

sports as well as his merit in Entrance Examination both have to be given due weightage for judging the entitlement of a candidate for selection to

the professional courses for the seats reserved. Though in the existing Rules of 1996 the games and the levels of participation on the basis of which

a candidate's outstanding proficiency is to be judged, have been specified but as they treat all the players alike on the question of outstanding

proficiency, they in our considered opinion are not free from the vice of arbitrariness and as such are manifestly unjust and unreasonable and

therefore cannot legally be sustained. We therefore, quash the same and leave it open for the State to reframe the same.

By quashment of the rules, an anomalous situation resulting into jeopardizing of the right of consideration of all the candidates who are

competing for the seats in reserved category until new rules are framed, is bound to arise resulting into the seats reserved for the said category

remaining unfilled as in view of the directions of the Supreme Court all the seats are to be filled up before 30th of September.

We, therefore, in the peculiar circumstances of the case for meeting ends of justice issue the following directions:

(a) Till the rules are reframed, the admission in the category of candidates possessing outstanding proficiency in sports shall be given on the

following criteria:

(i) There shall be 100 Units in all for deciding the merit of a candidate for selection. Out of 100 Units, 60 Units shall be for merit obtained in

common entrance and 40 Units for the outstanding proficiency in sports.

(ii) For allotment of units for outstanding proficiency in sports the 40 units allotted shall be distributed equally between the two levels i. e

International level games/events and National level games/events. A candidate who has played/participated in both the levels shall be given the

credit of both the levels.. However, even if a player has played/participated in more than one event/game at the same level he shall only be given

credit on the basis of the level and not on the basis of the number of games he has played.

(a) The merit of each candidate competing in sports category shall be redrawn as above and consequently selection shall be made accordingly

forth with.

(b) The select list if any already issued shall stand cancelled.

For the aforesaid reasons, we, therefore, partly allow the appeal and modify the judgment of learned Single Judge accordingly.