Allowed

Athletics Federation of India v. Chitra P.U

Kerala HC3 Aug 2017WA/1636/2017

Case brief

AI extract

What is this about?

The Kerala HC allowed this appeal to vacate an interim order directing the Athletics Federation of India to include a gold-medal-winning athlete in the team for the London World Championship. The court held the order was futile as the entry deadline had passed and no late additions could be made.

What did the court decide?

The interlocutory order dated 28.7.2017 in W.P.(C) No.24620 of 2017 passed by the learned Single Judge, directing the Federation to ensure the petitioner's participation, is vacated.

Athletics Federation of India Vs Chitra P.U — Service and Employment | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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THURSDAY, THE 3RD DAY OF AUGUST 2017/12TH SRAVANA, 1939

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WA.No. 1636 of 2017 () IN WP(C).24620/2017 -------------------------------------------AGAINST THE ORDER IN WP(C) 24620/2017 of HIGH COURT OF KERALA DATED 28-07-2017

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APPELLANT/2ND RESPONDENT:

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ATHLETICS FEDERATION OF INDIA THROUGH ITS SECRETARY, WZ-72, FIRST FLOOR, TODA PUR MAIN ROAD, DEV PRAKASH SHASTRI MARG, NEW DELHI-110 012.

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BY ADV SRI.HRISHIKESH BAURUAH SRI.HEMANT PHALHPER . SRI.JOHN VARGHESE SRI.A.L.GEORGE

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RESPONDENTS/PETITIONER & RESPONDENTS 1 & 3 TO 5:

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1. CHITRA P.U AGED 22 YEARS, D/O.UNNIKRISHNAN, PALAKEEZH HOUSE, MUNDOOR POST, PALAKKAD-678592.

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2. UNION OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF YOUTH AFFFAIRS & SPORTS, SHASTRI BHAVAN, DR.RAJENDRA PRASAD ROAD, NEW DELHI-110 001. 3. G.S.RANDHAWA CHAIRMAN, ATHLETIC FEDERATION OF INDIA, WZ-72, FIRST FLOOR, TODA PUR MAIN ROAD, DEV PRAKASH SHASTRI MARG, NEW DELHI-110 012. 4. SPORTS AUTHORITY OF INDIA JAWAHARLAL NEHRU STADIUM COMPLEX (EAST GATE) LODHI ROAD, NEW DELHI-110 003, REPRESENTED BY SECRETARY.

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5. KERALA STATE ATHLETIC ASSOCIATION MAHARAJAS PAVALION, PT USHA ROAD, ERNAKULAM, REPRESENTED BY SECRETARY.

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R1 BY SRI.RAJIT R2 BY ADV. SMT.C.G.PREETHA, CGC R4. BY ADV. SRI.S.K.MADHU, SC

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03-082017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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VPS

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“C.R.”

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NAVANITI PRASAD SINGH, C.J. & RAJA VIJAYARAGHAVAN V., J.

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W.A. No.1636 OF 2017

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--------------------------------------------Dated this the 3^rd day of August, 2017

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JUDGMENT

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Navaniti Prasad Singh, C.J.

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1.The Athletics Federation of India (“the Federation” for short), the 2^nd respondent in the writ proceedings, is in appeal against the interim order dated 28.7.2017 in W.P.(C) No.24620 of 2017, passed by the learned Single Judge. The writ petitioner is the 1^st respondent herein.

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2.We have heard the learned Senior Counsel for the appellant and the learned counsel for the writ petitioner and with their consent are disposing of this writ appeal at this stage itself.

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3.A writ petition was filed by the 1^st respondent/writ petitioner, a young national level athlete who had displayed her potential at various venues. Her claim was

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that though she had qualified for the International Association of Athletic Federation World Championship (“IAAF World Championship” for short) to be held at London from 4.8.2017 to 13.8.2017, she was arbitrarily left out from the team selected to represent India. She claimed that recently in the Asian Athletic Championships held at Bhubaneswar from 6.7.2017 to 9.7.2017, she was the gold medalist in 1500m race, which automatically qualified her as the Area Champion. But for unknown reasons, she was left out.

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4.Upon the writ petition being filed and considering the urgency of the matter, it appears that a Single Judge of this Court, on 25.7.2017, directed notices to be issued to the Federation through their e-mail address as available. This was done and the matter was posted to 27.7.2017. On 27.7.2017, when the matter was listed before the learned Single Judge, there was no appearance on behalf of the Federation. But the Assistant Solicitor General was

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there representing the Union of India. The Court requested the Assistant Solicitor General to inform the Federation accordingly and the matter was posted to 28.7.2017 keeping in view the urgency of the matter. On 28.7.2017, it appears that a counsel appeared on behalf of the Federation and sought time to get instructions and to file their response. But in view of the urgency of the matter, the IAAF World Championship being scheduled to commence on 4.8.2017, the Court proceeded to hear the matter for interim relief.

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5.The learned counsel for the Federation placed on record an open letter issued by the Federation under the signature of the President of the Federation, as allegedly issued on 27.7.2017, which acknowledges that there were allegations and complaints against the Federation for the last few days by a section of media, officials and some fans in the social media in relation to the selections made by the Federation for the aforesaid IAAF World

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Championships in respect of the Indian contingent. At this stage, we would notice that this letter itself acknowledges that even prior to the writ petition, there was a strong public perception that all was not right in the selection process. This open letter, keeping in view the allegations being circulated, is virtually a counter defence placed in public domain to justify the decisions of the selection committee of the Federation. The learned Single Judge considered the arguments/averments as made in the writ petition, and as controverted in the open letter, and passed the impugned interim order on 28.7.2017 directing the Federation to ensure the participation of the petitioner, Chithra P.U, as part of the Indian contingent for the 1500m race in the IAAF World Championship, while adjourning the matter for further hearing.

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6.On behalf of the Federation, arrayed as the 2^nd respondent, the following submissions are advanced by the learned Senior Counsel:

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(i) Before passing the interim order, opportunity was denied to the Federation to put forth their contentions. This has resulted in gross prejudice;

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(ii) There is suppression of material fact as the writ petitioner asserted in the writ petition that she was the fastest runner in Asia. This was factually incorrect. Though

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she had secured the Gold medal in the Asian Championships, she could finish only second in the Nationals held subsequently at Guntur, Andhra Pradesh;

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(iii) By way of interim order virtually the final relief, as

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prayed for in the writ petition, was granted. This is impermissible;

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(iv) The writ issued by way of an interim order was a futile writ in as much as the last date for registration of entries was 24^th July, midnight Monaco time, which was long over, before the writ petition was filed and therefore, such a direction could not be issued.

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(v) The selection team consisted of eminent athletes and

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there were justifiable grounds for selection/non-selection. Courts should ordinarily refrain from interfering in such decision of an expert body. According to the federation, the decision was neither arbitrary nor discriminatory.

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7.On the other hand, the leaned counsel for the 1^st respondent /writ petitioner submits that the notice was sent from the Registry in the e-mail address as available on the web site of the Federation. Since the e-mail did not bounce back, it must be deemed to have been served. In any view, the Assistant Solicitor General also informed the Federation as directed by the Court, which fact is admitted. Therefore, considering the urgency of the matter, the Federation ought to have come prepared rather than seek for time. These facts justifies the manner in which the learned Single Judge proceeded with the matter. The learned Counsel would further point out that the writ petition was filed on 25.7.2017 and on 27.7.2017, the Assistant Solicitor General informed the Federation.

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An open letter was issued by the Federation on 27.7.2017, which was published in the public domain, and the same was placed on record before the learned Single Judge on 28.7.2017. This was clearly with the intention to build a defence, to the averments in the writ petition. According to the learned Counsel, in view of the notice that was served by e-mail on the appellant, much emphasis could not have been given to the open letter. He then submits that the open letter emphatically discloses the issues which are serious that plagued the selection process. He would submit that it would also show the whimsical and callous manner in which decisions were taken by the Federation.

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8.The learned counsel would further submit that there was no suppression nor any statement was made by the writ petitioner with intent to secure a favourable order. According to him , the rule of suppressio veri suggestio falsi would not apply on facts.

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9.It was then submitted that when on the one hand the stand taken by the Federation is that midnight of 24^th July Monaco Standard time was the last date for entries to be filed, the open letter would show otherwise. In the case of G.Lakshmanan, who was included in the team for two events, it is stated that it was quite unlikely that he would be allowed to participate in the 10000m event. According to the learned Counsel, this showed that things were still open on 24.7.2017 at least. Expatiating further it was submitted that though one Sudha Singh was shown as not included in the team in the 3000m steeplechase Womens event, her name figures in the list of participants/competitors put up by the International Association of Athletics Federation in their website on the 29^th and 30^th of July, 2017. How was that possible? If on 24^th July, 2017, the entries were closed and the open letter issued on 27.7.2017 says that she was not sent, she could not have figured in the list of Athletes representing

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India released by the International Association of Athletics Federation on 29^th and 30^th of July, 2017. According to the learned counsel, her name figures in the list even on this day. He submits that these facts would show that there were scope for names to be added even later than the 24^th of July, 2017.

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10.According to the learned Counsel, the learned Single Judge had evaluated all these aspects and to secure the interest of justice and to prevent the writ petition from becoming infructuous, interim order was issued which does not call for any interference. It is pointed out that even at the stage of hearing, the fact that the last day for filing entries was closed long back was not disclosed in any manner. Had that been disclosed, then the writ petition itself would have been dismissed as virtually infructuous. The learned Single Judge cannot thus be blamed or criticized for the orders as passed is the submission.

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11.In our view, the fact of the matter is that the 24^th of July, 2017, midnight Monaco time was the last day for receipt of entries to be filed. That being so, the interim order was a futile exercise and courts do not issue futile writs. We have noted the fact that Sudha Singh was not sent for the Championships according to the Federation figures in the list published by the International Association of Athletics Federation. This would be a matter for the Federation to

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explain. But by and large it is not in dispute that 24^th of July, 2017 was the official closure of entries and that being so, the writ could not have been issued. We do not fault the learned Single Judge because this fact was not brought to his notice.

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12.In respect of the plea being taken by the appellant with regard to suppression of material fact, the said submission is based on the fact that in the National Inter State Championship held from 15.7.2017 to 18.7.2017 at Guntur, the writ petitioner had come second. It is

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undisputed that the Petitioner is the Area Champion as she had finished first in the Asian Athletics Championship held from 6.7.2017 to 9.7.2017. Exhibit P2 Qualification System and Entry Standards of the IAAF clearly defines who an Area Champion is. It also states that the Area Champion automatically qualifies for the World Championships, irrespective of whether her performance has reached the entry standard. We note that all that the petitioner had stated in the writ petition was that she was the fastest runner in Asia in the 1500m event and the same was based on her achievement as the Gold medal Winner in the Asian Event. On facts, we do not think that there is any suppression of any material fact. Even otherwise, the learned Single Judge had not passed the order merely on this averment. The Court examined the open letter which showed that the petitioner had come second in the national championship and notwithstanding the same, had passed the order, as it did. Therefore,

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stating that she was the fastest runner in Asia was not a material fact which actuated the court to pass the order or which influenced the court to pass the order. We are cognizant of the legal position of the principle suppressio veri suggestio falsi dis-entitling a person from getting relief. But this surely is not such a case.

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13.To the submission that the appellant was not granted adequate opportunity, all that we can say is that what is adequate depends on the facts of the case. The Federation was already facing grave media criticism. The notice of the writ proceedings were sent to the Federation on their e-mail address and was not bounced. It could be that whoever received the e-mail, did not consider it important enough to bring it to the notice of the responsible office bearers. But nevertheless, two days thereafter they received intimation from the Assistant Solicitor General. On 28.7.2017, a counsel had appeared for the Federation and sought for time. In the course of

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hearing on 28.7.2017, the parties produced the open letter. All that was required to be said in defence to the allegations as made in the writ petition were all there in the open letter produced before the court. In our view it cannot be urged that adequate opportunity was not granted to represent the case, because virtually even at this appellate stage nothing new has been brought on record. Thus, we do not agree that the appellant was denied adequate opportunity to defend the case.

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14.However, when we come to the next submission with

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regard to the nature of interim order that was passed, there is some substance, for, it is well established that the final relief cannot be granted by way of an interim order. But that is not an inflexible rule or an absolute rule. A singular illustration would demonstrate the same.

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15.An individual's house is to be demolished. The final relief

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is to quash the order of demolition and save the house. What is the nature of interim order that would be granted,

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if any, staying the demolition itself or staying the order, ordering demolition, which is the final relief? It all depends upon the exigency of the situation. If by passing an interim order an irreparable loss can be prevented, then interim order has to be passed. If by not passing an interim order, an irreparable damage may occur, then an interim order ought to be passed. That is the fundamental rule.

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16.While passing the interim order, the learned Single Judge was conscious of the fact that if the name of the petitioner was not included, the petition would have become infructous. The athlete would also have been denied her legitimate and precious right to represent the Country and the tricolour which is the dream of every sports person. That could not be redressed by any other mode other than by granting the relief as prayed for at the interim stage. The writ petition could not have been filed earlier because the decision of the selection committee was published only

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on 24.7.2017 and on the next day itself the writ petition was filed. The competitions were scheduled to start from the 4^th of August, 2017. In such a situation, the submission that the learned Single Judge ought not have passed the interim order on the 28^th of July, 2017 can only be repelled. Though several contentions can be advanced touching on legal nuances and technicalities, the fact situation being what it is, no exception can be taken to the order passed by the learned Single Judge. Monetary compensation as damages or exemplary damages or compensation in any manner can never be sufficient retribution for denial of opportunity to the writ petitioner to represent the country in a world meet.

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17.Now coming to the question of arbitrary and hostile discrimination, before proceeding, we must note that we are aware of the law that when there is an expert body for selection, the courts do not substitute their views, for, the expert body is presumed to exercise its discretion in a

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lawful and non-arbitrary manner. But, if the public perception of an action of a public body, may it be an expert body, raises many questions, then the courts are not shut out from making enquiries. As noted above, the open letter itself admits that there are serious allegations and complaints from a section of media, officials and fans on the social media against the Federation. Thus, there was a public perception concerning the case of the writ petitioner, which questioned the exercise of discretion or the manner thereof by the expert body. That being the situation, it would be the duty of the court to seek an explanation, at least to clear the air surrounding the acts of the expert body, even if there is no truth in the allegations raised. After going through the materials, we feel that the public perception was not misconceived.

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18.The submission, as made by the learned counsel for the

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appellant, is that the committee comprised of eminent athletes. But that does not mean that eminent athletes

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can never make a mistake. There is no such presumption in law. The only caveat is that the courts should be cautious while disbelieving or doubting the decision taken by such an eminent committee, nothing more. It is then submitted that adequate reasons have been given in the open letter as to why a person was selected and why a person was not selected. We shall examine some of them to show that the moment a rule was laid by the committee, exceptions were also set simultaneously. 19.The stand taken is that at the Asian Athletics Championship held at Orissa from 6.7.2017 to 9.7.2017 all the athletes were told that in order to qualify for the world championship at London, notwithstanding their star performance at Bhubaneswar, it was necessary for them to participate at the National Inter State Championship, which was held from 15.7.2017 to 18.7.2017 at Guntur. If this was the stand, then it is questionable as to how G.Lakshmanan, who did not participate in the 10000m

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Mens' event at Gundur, was recommended. The open letter itself says that as on 27.7.2017, he is unlikely to be allowed to participate, irrespective of being area winner. That part we will discuss later. Then, we have one Swapna Barman who did not participate in the Guntur Inter State meet in the Heptathlon event for women. However, she was selected because of her good performance at difficult conditions at a young age. This is yet another exception to the rule. Similar is the unresolved controversy of Sudha Singh, who also did not participate in the National Inter State Championship and as per the open letter she was not recommended. However her name appears in the list as released by the International Association of Athletic Federation at London, as one among the athletes in the Indian contingent.

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20.The rules of International Federation stipulate, as one of

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the qualifying conditions, that the area champion, would automatically qualify subject to local team selection. Now

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indisputably the petitioner was the area champion. She was the gold medalist at the Asian Athletics Championship at Bhubaneswar, which was held recently from 6.7.2017 to 9.7.2017. To disqualify her from selection, it is said that in the National Inter State Championship she finished only second and her timing was below the world qualifying mark as well as the Indian Junior National record. When it comes to one Ajay Kumar Saroj, he was the first all along in the Federation Cup Seniors, 2017 Asian Athletics Champion and National Inter State Champion in the 1500m Mens' event. But again on the ground that he was slower than the Indian Junior National record and below the qualifying marks, even though he was the national champion, was denied the opportunity. Incidentally he himself had set the national record. In all the persons who have been disqualified it is not noted that at Guntur they were participating in “ Hot and Humid ” condition, which is the expression used to justify inclusion of

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G.Laxmanan and the “ difficult condition” at

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Bhubaneswar when it comes to including Swapna Berman.

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21.If such justifications are given and such exceptions are

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made by an expert body, what would be the public perception? Will it not give a legitimate reason to the petitioner, who is an Asian Champion to raise a grievance? If we look to the charter of federation, what is it? Is it a competitive body to give prizes to the best performer? The object is otherwise. The object is to encourage sports. Is the expert committee encouraging sports? It gives an impression that they are picking faults and finding reasons to disallow someone. Will it not be demoralizing for the young athletes? A large contingents of officials can travel and enjoy luxury. But, a young athlete is denied the encouragement. Is that the rule of the federation? The petitioner is not the only one who is complaining. The open letter acknowledges the complaints raised by the media, officials and fans. If the acts of an expert body is

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bereft of non-arbitrariness and favoritism, its actions will not be questioned in public domain with such vehemence. We have shown only by way of illustration that the selection process did raise questions. There were more exceptions than the rule itself. A person performing under difficult conditions, even though she does not participate in the national meet, is sent up. The other, merely because on a particular day she does not perform well, even though she is the Asian Champion and Area Champion entitled to be qualified straight away, is not sent. These are facts placed on record by the appellant themselves. A responsible body must not only act responsibly, their actions must appear to be responsible. Be that as it may, in view of the fact that no new entries could have been filed after 24^th of July 2017, the writ virtually issued by an interim order is a futile one incapable of obedience.

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In view of the aforesaid, we have no option but to allow this appeal and vacate the interim order passed by the learned Single Judge in W.P.(C) No.24620 of 2017. This appeal is allowed and the interim order passed by the learned Single Judge in W.P.(C) No.24620 of 2017 is vacated.

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Sd/-

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NAVANITI PRASAD SINGH, CHIEF JUSTICE

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Sd/-

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RAJA VIJAYARAGHAVAN V., JUDGE

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vps 5/8

Athletics Federation of India v. Chitra P.U

Case brief

What is this about?

What did the court decide?

Athletics Federation of India v. Chitra P.U

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Parties & counsel

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