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PETITIONER: KHALID HUSSAIN (MINOR), REPRESENTEDBY FATHER DR. AKTHAR HUSS

       Vs.

RESPONDENT: COMMISSIONER & SECRETARY TO GOVERNMENT OFTAMIL NADU, HEALTH

DATE OF JUDGMENT19/08/1987

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) RAY, B.C. (J)

CITATION:  1987 AIR 2074            1987 SCR  (3)1049  1987 SCC  Supl.  329     JT 1987 (3)   370  1987 SCALE  (2)351

ACT:     Professional  Colleges--Admission to: Category of  ’emi- nent  sportsmen’--Selection of--Validity of--Selection  must necessarily depend upon academic merit.     Constitution  of India, Arts. 226 & 136: Powers  of  the Court--Not  obligatory  to interfere unless justice  of  the case so demands.

HEADNOTE:     The State Government of Tamil Nadu reserved three  seats for  the category ’eminent sportsmen’ for admission  to  the MBBS Course for 1986-87 in the Government Medical  Colleges. Category  (iii)  in Annexure I to the  prospectus  indicated their  order of preference as participation at (a)  Interna- tional  level,  (b)  National level, and  (c)  State  level. Candidates  securing 50 per cent aggregate marks in  science subjects  in the qualifying examination were made  eligible. The Selection Committee adopted participation at the nation- al  level to be the criterion and selected three  candidates on  the basis of merit in the qualifying  examination.  Four candidates  were  placed  in the waiting list  in  order  of merit.  The  petitioner who was next in order of  merit  and could  not be selected, filed a petition under Art.  226  of the  Constitution assailing the select however, struck  down the selection of respondent No. 6 placed third in the select list since he had actually not played at the national level, and directed the Selection Committee to fill up the  vacancy from the waiting list and go by the order of merit. Dismiss- ing  the  appeal by the petitioner the Division  Bench  held that  the  decision of the Selection Committee  was  reached bona fide on the basis of academic merit and that it was not just  and proper that the respondent No. 6 should  lose  his seat  in the medical college for no fault of his but at  the instance  of the petitioner who stood no chance compared  to the other candidates in the waiting list.     In this special leave petition, it was contended for the petitioner  that the only criterion for selection  was  pre- eminence in sports and not 1050 academic  excellence,  and that the Division  Bench  was  in error  in not sustaining the order of the Single Judge  set-

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ting aside the selection of respondent No. 6, who had played in the Zonal tournament which was not of national level. Dismissing the special leave petition,     HELD:  1. All that Category (iii) does is to lay down  a rule  of  preference. A candidate who  had  participated  at international level would exclude a candidate  participating at  National  level  and a person who  had  participated  at National level would exclude a person participating at State level. There are no guidelines provided for determination of comparative eminence as between candidates belonging to  the same class, e.g. at National level. Nor does it provide  for any  guidelines by which the choice has to be  made  between the  candidates who have excelled in a particular  field  of sports,  e.g.  acquatics,  or when there is  more  than  one candidate  who have excelled in their respective  fields  of sports e.g. cricket, football, hockey etc. and the number of seats reserved are less than the candidates found  eligible. All of them being more or less equal, the best method is  to go  by  marks obtained at the  qualifying  examination.  The selection  must,  therefore, necessarily depend  upon  their academic  merits.  If  the adjudging  of  comparative  merit amount the eligible candidates is left to the discretion  of the Executive that would necessarily introduce an element of subjectivity, which would introduce arbitrariness. [1055B-F]     2.  It is not obligatory for the Court to  interfere  in all  cases  unless justice of the case so  demands.  In  the instant  case the High Court was entitled to take  the  view that the Court ought not to, in the facts and  circumstances of  the case, exercise its discretionary powers  under  Art. 226  of the Constitution at the instance of  the  petitioner who  was  not entitled to any relief. Any other  view  would have been manifestly unjust. [1056C-D]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Special  Leave  Petitions (Civil) Nos. 5535-36 of 1987.     From  the  Judgment and Order dated 28.4.  1987  of  the Madras High Court in W.A. No. 1302 and 1307 of 1986.     Nalini  Chidambaram and Ms. Seita Vaidyalingam  for  the Petitioner.     1051     B.  Datta, Additional Solicitor General, Shanti  Bhushan S.  Padmanabhan,  M.A’. Krishnamurthy, K.K. Mani,  K.  Swami anti A.V. Rangam for the Respondents. The Judgment of the Court was delivered by     SEN,  J.  The short question involved in  these  special leave petitions is whether the proper criterion to adopt for selection  of candidates belonging to the category  ’eminent sportsmen’,  for  admission to the MB.B.S. course,  is  pre- eminence  in  sports, and not academic  excellence.  In  the prospectus issued by the State Government of Tamil Nadu  for admission to the M.B.B.S. course for 1986-87 in the  Govern- ment Medical Colleges in the State, there was reservation of three  seats for the category ’eminent sportsmen’ as  speci- fied  in category (iii) to Annexure I, also  indicating  the order of preference. The relevant provision reads:               "(iii) Eminent Sportsmen,               The order of preference is as follows: -               (a) participation at International level,  the               candidate being sponsored by a national body.               (b)  participation  at  National  level,   the               candidate  being sponsored by a State Body  or               University.

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             (c)  participation at State level, the  candi-               date  being  sponsored by  Zonal  or  District               Association.               Sponsorship Certificate should be produced. If               not produced, candidate will not be considered               under this category.               Note:  Candidates  applying for  admission  to               categories  (i),  (ii)  and  (iii)  must  have               secured  50% aggregate marks in  science  sub-               jects in the qualifying examination." It  appears that the petitioner along with 2 16  others  ap- plied for the sports quota reserved for ’eminent sportsmen’. The  petitioner  who  is a champion in  acquatics  had  been sponsored  by  the  Tamil Nadu  State  Acquatic  Association showing  participation  in several tournaments  at  National level. The Selection Committee adopted participation at 1052 National  level to be the criterion and thus  16  candidates were left in the field. It selected respondents nos. 4-6 for the  three  seats reserved for ’eminent  sportsmen’  on  the basis  of marks obtained by them at the qualifying  examina- tion.  The petitioner having obtained 174.50 marks  was  not placed either in the select list or in the waiting list.  It is necessary to set out the marks obtained by the petitioner as well as respondents nos.4-6 as also.the candidates placed in the waiting list:      1.  Khalid Hussain, Petitioner      174.50      2.  R. Vijaya Sree, 4th Respondent  215.40      3.  Seshasayee Narasimhan, 5th res. 202.95      4.  K. Subramaniam, 6th res.        200.90 Waiting List Candidates      1.  T. Jayaraj                 196.55      2.  Suja Ramakrishnan          192.80      3.  Praveen Kumar David        190.58      4.  G. Rajalakshmi             186.60     Aggrieved by the non-inclusion of his name in the select list, he moved the High Court of Madras by a petition  under Art. 226 of the Constitution. A learned Single Judge (Mohan, J.) by his judgment dated December 2, 1986 observed that the whole purpose of reservation of three seats for the category ’eminent sportsmen’ was to encourage sports and held that in order  to  show some distinction with regard  to  individual achievements,  three categorisations had been made, such  as participation  at  International level, National  level  and State level and beyond that, he saw absolutely no scope  for importing the concept of determining eminence inter se among the  candidates  falling within a  particular  category.  He further observed that the decision of a Division Bench in P. Sabitha  v. The Director of Medical Education & Ors.,  (W.P. No.  9406/83  decided  on April 6, 1984)  which  upheld  the validity  of such reservation of seats for sportsmen was  of little  avail  to the petitioner. The learned  Judge  struck down  the  selection of respondent no. 6 as invalid  on  the ground that the Selection Committee proceeded on a  wrongful assumption that he had actually played at National level  in the  V. Pattabhiraman Trophy Tournament, while he  had  only been  selected to play at the Tournament. He, however,  dis- missed the writ petition and declined to grant the petition- er any relief since he had no chance of getting admission as there  were candidates in the waiting list who had  obtained higher  marks than him and made a direction that the  Selec- tion  Committee would fill up the vacancy from  the  waiting list and go by the order of merit. 1053     Being  dissatisfied  with the judgment,  the  petitioner

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preferred  an  appeal, but the Division  Bench  declined  to interfere. In delivering the judgment of the Division Bench, M.N. Chandurkar, CJ speaking for himself and M.  Srinivasan, J. referred to P. Sabitha’s case which upheld reservation of seats  for the category ’eminent sportsmen’. As regards  the category ’eminent sportsmen’ appearing in the present  rule, the learned Chief Justice observed:               "It  has  to  be pointed out  that  the  rules               themselves do not provide for any  comparative               degree  of eminence between  different  candi-               dates in the same category. Such a  determina-               tion  of  comparative  eminence,  apart   from               introducing an element of subjective  determi-               nation  and providing a scope  for  discretion               which  would be capable of  being  arbitrarily               exercised  in the absence of  any  guidelines,               also  appears to us to be  impracticable.  The               reservation  for  ’eminent sportsmen’  is  not               restricted  to any particular game. There  are               different kinds of game and different kinds of               tournament.  In  some games,  tournaments  are               held  more frequently than in others. To  com-               pare  the performance, whether qualitywise  or               quantitywise, by a candidate proficient in one               game with the performance of a candidate in an               altogether different game is neither  possible               nor feasible. The proper approach to determine               which  of  the candidates  in  one  particular               category  should be given a preference in  the               selection  must therefore  necessarily  depend               only on their academic merit." We  are  in  agreement with the  observations  made  by  the learned Chief Justice.     In  support  of the petition,  Ms.  Nalini  Chidambaram, learned  counsel  for  the petitioner sought  to  raise  two points before us. The first was that a Division Bench of the High  Court in P. Sabitha v. The Director of Medical  Educa- tion  (supra)  laid  down a principle  that  preeminence  in sports  was the only criterion for select-ion of  candidates falling  under  the category ’eminent  sportsmen’,  and  not academic excellence. She pointed out that the learned  Advo- cate General in P. Sabitha’s case adopted the stand that the seats  were reserved for eminent sportsmen and therefore  it is only eminence attained in the field of sports that can be the  guiding  factor  for selection of  candidates  in  that category,  and not anything else, and submitted that it  was not open to the State Government to shift the stand now  and justify the action of 1054 the  Selection  Committee in selecting  candidates,  not  by their  distinguished  superiority as compared  with  others, fame or excellence in the field of sports, but merely on the basis  of higher marks obtained in the  qualifying  examina- tion.  The  contention was that the view  expressed  by  the learned  Judges that in case of professional  courses  merit alone  should be the criterion and therefore reservation  of seats  under  the  category  ’eminent  sportsmen’  could  be availed of only by deserving candidates which, it was  said, runs  counter  to  the principle laid down  by  the  earlier Division. Bench in P. Sabitha’s case. The second  contention was  that at any rate, the learned Judges were in  error  in observing  that though they were inclined to take  the  view that  respondent  no.  6 had really not  participated  in  a national  tournament as he had in fact played in  the  zonal tournament, that the Selection Committee had wrongly select-

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ed him as a successful candidate on the impression that  the zonal tournament was of national level, even then they  were not  inclined  to sustain the order of  the  learned  Single Judge by which he set aside the selection of respondent  no. 6. The learned Judges held that the Selection Committee  was justified  in making the selection of respondents  nos.  4-6 under the category ’eminent sportsmen’ on the basis of their academic  merit. The learned Judges further held that  there were  no allegations of mala fides and the decision  of  the Selection Committee was reached bona fide and merely because respondent  no.  6 had been wrongly selected,  that  was  no ground  for  interference inasmuch as respondent no.  6  had been  admitted to the Medical College and undergone  studies for  the M.B.B.S. course for almost a period of six  months, and  had given up his seat in another technical  course  for which  he had been admitted, namely, in the  Regional  Engi- neering College, Kurukshetra and there was no change of  his getting back that seat, and it would not be just and  proper that  he should lose his seat in the Medical College for  no fault of his but at the instance of the petitioner who stood no  chance compared to the other candidates in  the  waiting list  having  secured much lesser marks.  In  ’taking  ’that view, the learned Judges observed that it was not obligatory for  the Court to interfere in all cases unless  justice  of the case requires interference. We are afraid, we are unable to accept any of the contentions.     The argument of learned counsel for the petitioner  does not take note of the fact that the decision in P.  Sabitha’s case proceed on an interpretation of a provision for  reser- vation  of seats for the category ’eminent sportsmen’  which was altogether different. The importance of the decision  in P. Sabitha’s case lies only on the view that a provision for reservation  of seats in professional courses for  sportsmen was 1055 not irrational or arbitrary but had reasonable nexus to  the object  sought  to be achieved in public  interest,  namely, promotion of sports. In the prospectus for the year 1986-87, the State Government has brought about a change. The  provi- sion,  as it now stands, provides for a rule of  preference. Category (iii) dealing with eminent sportsmen lays down  the order of preference as between candidates for selection  and makes  sponsorship certificate a condition prerequisite  for eligibility.  Further, candidates applying for admission  to category  (iii) like categories (i) and (ii) must  have  se- cured 50% aggregate marks in science subjects in the  quali- fying examination. The rule nowhere provides for any  deter- mination of comparative eminence. All that the rule does  is to  lay down a rule of preference. A candidate who had  par- ticipated  at International level would exclude a  candidate participating at National level and a person who had partic- ipated at National level would exclude a person  participat- ing  at State level. It has to be pointed out that the  rule itself  does  not provide for determination  of  comparative eminence as between different candidates falling within  the same class but as between sportsmen who have participated at International level, National level and State level. It only provides  for  the rule of exclusion of one  by  the  other. There  are no guidelines provided by which comparative  emi- nence  can be judged as between candidates belonging to  the same  class  e.g. at National level, as here.  Nor  does  it provide  for  any guidelines by which the choice has  to  be made  as between the candidates who have excelled in a  par- ticular field of sports e.g. acquatics. The real  difficulty arises  when there is more than one candidate who  have  ex-

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celled  in their respective fields of sports  e.g.  cricket, football,  hockey etc. and the number of seats reserved  are less  than the candidates found eligible. All of them  being more  or less equal, the best method is to go by  marks  ob- tained  at the qualifying examination. In such a  case,  the selection  must necessarily depend upon their academic  mer- its.  Even  in  P. Sabitha’s case, the  Court  realised  the difficulty to lay down any guidelines for adjudging compara- tive  eminence  between sportsmen falling  within  the  same class and it was said that when candidates are shown to have attained  equal proficiency in sports, then  their  academic superiority can be pressed into service as a tilting  factor in their favour.     In the absence of any guidelines for purposes of  selec- tion, the adjudging of comparative merits among the eligible candidates  falling under the category  ’eminent  sportsmen’ would  necessarily introduce, as the learned  Chief  Justice observed, "an element of subjectivity which would  introduce arbitrariness" in the selection of candidates 1056 because it would be left to the discretion of the  Executive in  making  the choice. In the absence  of  any  guidelines, there  is. nothing for the Selection Committee to fall  back upon  except  the marks obtained by the  candidates  at  the qualifying examination. The argument of the learned  counsel obviously  based  on the observations in P.  Sabitha’s  case that the proper test to adopt in the matter of selection  of candidates for admission to the M.B.B.S. course belonging to the category ’eminent sportsmen’ was pre-eminence in  sports and  not academic excellence, cannot be accepted. That  test cannot  obviously  be applied in  interpreting  the  present rule.     The  remaining contention does not merit  consideration. The  learned Judges although inclined to the view  that  re- spondent  no.  6 had really not participated in  a  National tournament,  were entitled to take the view that  the  Court ought  not to, in the facts and circumstances of  the  case, exercise  its  discretionary powers under Art.  226  of  the Constitution  at the instance of the petitioner who was  not entitled to any relief merely because the Selection  Commit- tee  was wrong in its view that respondent no. 6 had  played in a National tournament although he had in fact played in a zonal tournament. Any other view would have been  manifestly unjust  as respondent no. 6 though admitted to the  Regional Engineering College, Kurukshetra had given up his seat there on his being admitted to the M.B.B.S. course and had already undergone  his course of studies for more than  six  months. The learned Judges rightly observe that it is not obligatory for  the Court to interfere in all cases unless justices  of the case so demands.     In the result, the special leave petitions must fail and are dismissed. P.S.S                                              Petitions dismissed. 1057