Full Text
HIGH COURT OF DELHI
Date of Decision: 28th JULY, 2023 IN THE MATTER OF:
ALPHIA JAMES ..... Petitioner
Through: Mr. Ashwin Kumar Naim, Advocate
Through: Mr. Azim H. Laskar, Mr. Bikas Kargupta, Advocate for R-1
Mr. Naveen Kumar Chaudhary, Advocate for R-2 Mr. Vineet Dhanda, CGSC with Ms. Archana Surve, GP for UoI
JUDGMENT
1. The Petitioner, who is a Para athlete, has approached this Court invoking Article 226 of the Constitution of India challenging the decision taken in a meeting dated 23.06.2023 and the notification dated 04.07.2023, issued by the Respondent No.1 laying down the criteria for participation in the selection trials to select a team for the Asian Para Games 2023 which are scheduled to be held in Hangzhou China from 20-28 October 2023.
2. It is stated that the Petitioner met with an accident whereby her lower limbs were paralysed but she fought back and started her career as a para athlete in the sports of Badminton. It is stated that she has won National Para Badminton Championship 2021 which was held in Odisha by wining Gold Medal in both singles and doubles event. It is stated that the Petitioner has participated in several international para badminton tournaments as well.
3. It is the contention of the Petitioner that on 21.06.2023 Respondent No.1 published a list of probables for the Indian Para Badminton Team for the Asian Para Games 2023 wherein 55 para athletes were finalized, including the Petitioner herein. It is stated that within two days of publishing the said list, Respondent No.1 & 2 introduced a new criteria for selection trials for Asian Para Games, 2023 which made it impossible for several players especially single wheelchair players both men and women to get selected even for trials.
4. Notice in the Writ Petition was issued on 21.07.2023. Replies have been filed.
5. Learned Counsel for the Petitioner contends that the Paralympic Committee of India (PCI), also referred as National Paralympic Committee by the International Paralympic Committee (IPC), is the sole organization in India as per IPC Handbook for promotion and development of Para Sports for the persons with disabilities, including intellectually and visually impaired persons. He states that PCI, which has been formed for the promotion and development of Para Sports can alone lay down the criteria for selecting the teams and no other organization can be permitted to have any say in the matter of selection of team to represent the country in the Para Games across the world. He further states that once a list of 55 probables has been finalized on 21.06.2023 then only those 55 probables could have participated in the selection trials and the criteria could not have been changed and that too at the instance of a third party who cannot have any say in the matter of selection of a team of para athletes. Learned Counsel for the Petitioner stresses on the point that the rules of the game cannot be changed after the game has begun and that new candidates cannot be brought in for the purpose of selection of a team after a list of 55 probables has been finalized.
6. On 27.07.2023 it was stated by the learned Counsels for the PCI, the Badminton Association of India and the Union of India that the team to represent India in the Asian Para Games 2023 is selected as per the criteria fixed by the Badminton Association of India and the PCI only forwards the names as stated by the Badminton Association of India. This Court directed the Counsel for the PCI to file an affidavit to this effect. In compliance to the said order, an affidavit dated 27.07.2023 has been handed over in Court by the Counsel for the PCI. Learned Counsel for the PCI has been directed to ensure the affidavit is also placed on record. Relevant portions of the said affidavit reads as under:
National Para Games for those disciplines. Minutes of Meeting April 26, 2017 of the Sports Authority of India at New Delhi is annexed as ANEXXURE R-1/2
3. Considering the IPC guidelines it is the Respondent No. 1 (Badminton Association of India) who set their selection criteria adhering to the limitation of overall selection criteria/qualifying standard set by IFS/SAI and NPC India and select the players pertaining to Para Badminton for their recommendation to Respondent No. 2. "
7. It is stated by the learned Counsel for the Union of India that a decision has been taken on 10.07.2023 that for participation in the forthcoming Asian Para Games only those players will be considered whose performance in the individual events during the last twelve months prior to the commencement of the event is not be less than the performance achieved by the 8th position holder of the 2018 Asian Games in measurable sports and for team events, only those sports which have achieved a ranking up to 8th among participating countries of Asia in the last one year should be considered for participation in Asian Games 2022.
8. Heard the counsels and perused the material on record.
9. The short question which arises for consideration is that after the list of 55 probables is brought out then can the respondents introduce a new criteria for selection of the team or not and whether this Court must exercise its discretion under Article 226 of the Constitution of India to quash such decision. The contention of the Petitioner that the Respondents could not have changed the rules of the game after the game has begun cannot be accepted. The present case is not one of appointment on a post but for selecting the best team to represent the country in the Asian Para Games where the prestige of the country is involved and, therefore, considerations which are applicable for selection/appointment to a post cannot be made applicable for selection of a team to represent the country.
10. At this juncture it is apposite to reproduce the minutes of meeting dated 23.06.2023 and the same reads as under: " Minutes of the meeting held on 23-06-2023 with the Representatives of Paralympic Committee of India and Badminton Association of India through virtual medium to take the decision on the criteria to invite players for selection trials to select team for Asian Para Games 2023 to be held in Hangzhou China from 20-28 October 2023. Committee Members: Shri Gursharan Singh - General Secretary-PCI Shri Prabhakar Rao - Jt. Secy-BAI and Chairman (Para -- Badminton) - BAI Shri Mayur Parikh - Jt. Secy-BAI and Member (Para Badminton)-BAI Competition to be covered: Asian Para Games 2023 to be held in Hangzhou China from 20-28 October 2023. Time line for the event: 31 March 2022 Deadline for NPCs to Submit the Entry by number to BWF, APC & HAPGOC 31 July 2023 Deadline for NPCs to Submit the Entry by Name to BWF, APC & HAPGOC 22-28 October 2023 Asian Pnra Games 2022 Total number of slot available in each category as per organizing committee of Hangzhou Asian Para Games 2023 is as follows: • Maximum 18 Males • Maximum 18 Females An open trial will be organized and the Team will be formed based on the merit list decided on performance during trials. In order to invite the players for Selection Trials in above Asian Para Games 2023, the following criteria has been decided by the committee:
1. Subject to the condition that entries should not increase to. 3 in singles and 2 pairs in doubles, the following criteria has been considered in the following order for the selection trials of athletes to represent the country in Para Badminton in APG 2023: a. The Players under TOPs; b. The medal winners players in Level 1 & Level 2 Paralympic qualification competitions held during 2023; c. Medal winners of BWF Para Badminton World Championship 2022. a. The players of World rank uptill 1Oth/Asian Rank uptill 5th in singles/Doubles/Mixed Doubles will be considered in the order of merit; b. The players/pair who has defeated any athlete/pair under World rank 10 in recent Level 1 & Level 2 Paralympics qualification events of 2023. Note: a. Only highest ranked regular pairs playing doubles at International level will be considered; b. In case Regular pair is not available among the selected players, the next pair will be formed by the committee among the, available players already selected in singles; c. Players selected in Doubles/Mixed Doubles would be permitted to play singles if slots are vacant. This is in line with Paralympics regulations. IMPORTANT: Only achieving above criteria will not be the assurity to get slot in Indian Team to represent APG 2023. The athletes representing the country in APG 2023 must have the recent credential to prove their strength to win medals in Asian Para Games. To prove credentials, the athlete must have defeated any athlete under World rank 10 in recent Paralympics qualification events. Basis of forming above criteria: Only the players having· probability of winning medals in APG 2023 will be considered on Govt. cost. Above criteria will be observed as on the cutoff date of 20 June, 2023 to finalize the Team for APG 2023. Athletes falling under above mentioned criteria are entitled to attend the trial. The Complete list of the athletes who are eligible to attend trial, Date and Venue of the Trial will be informed by next week."
11. Pursuant to the said Meeting, a notification dated 04.07.2023 was brought out by the Badminton Association of India. Relevant portions of the said notification reads as under: " Following players falling under the criteria as per the Joint circular dated 23rd June 2023 published on PCI website, are being invited to attend the selection trial on mentioned dates:
12. The decision that for participation in the forthcoming Asian Para Games only those players will be considered whose performance in the individual events during the last twelve months prior to the commencement of the event is not be less than the performance achieved by the 8th position holder of the 2018 Asian Games in measurable sports and for team events, only those sports which have achieved a ranking up to 8th among participating countries of Asia in the last one year should be considered for participation in Asian Games 2022 cannot be found fault with. The minutes of meeting clearly indicates that the basis of forming the criteria is only to have players having probability of winning medals in the Asian Para Games
2023.
13. The jurisdiction of this Court for exercising its discretion under Article 226 of the Constitution of India in the matter of sports and the jurisdiction of the Court to interfere with the decision taken by the authorities while laying down the criteria has been crystallized by the Apex Court in a number of judgments. It is well settled that writ courts must not substitute their opinions to the opinions arrived at by the experts unless the court is satisfied that the decision taken by the experts is perverse or illegal. The function of the Court is only to see that the decision has been arrived at in a good faith and the experts have acted reasonably. It is not the function of the courts to sit in judgment over the decision arrived at by the experts, if the said decision has been taken in good faith and is not perverse, as it would be risky for the Courts to tread an unknown path while upsetting such decisions.
14. A co-ordinate Bench of this Court in Shumel v. Union of India and Ors., 2010 SCC OnLine Del 4706, has observed as under:
15. The said judgment has been quoted with approval in Sushil Kumar v. Union of India & Ors., 2016 SCC OnLine Del 3660, wherein it was once again held that a writ court will not interfere in exercise of discretion of National Sports Federation and substitute its own judgment except where discretion is shown to have been exercised in an arbitrary or capricious or perverse manner or contrary to settled principles or practices. Relevant portion of the said judgment reads as under:
16. In a latest judgment in Swastika Ghosh v. Table Tennis Federation of India, (2022) 4 HCC (Del) 213, a co-ordinate bench of this Court, after considering various decisions of the Apex Court and this Court, has observed as under:
8. It is a settled proposition of law that issuance of a writ is a discretionary remedy and the court can refuse to exercise its jurisdiction even if the petitioner may have a claim in law. The scope of jurisdiction under Article 226 of the Constitution of India in a matter pertaining to conferring of Maulana Abul Kalam Azad Trophy was discussed by this Court in Punjabi University v. Union of India [Punjabi University v. Union of India, 2011 SCC OnLine Del 3496] and it was inter alia held as under:
13. The court must resist adopting a one-size-fitsall approach. In other words, any one single performance at one competition or trial cannot be used as a barometer to make the decision of whether to select an athlete. In sports, as the impugned order also notes, same players perform differently on different occasions and a number of factors influence an athlete's performance. Therefore, the petitioner's performance at the court ordered trial cannot, by and of itself, be considered sufficient to warrant his selection for particular events. The Committee has to take a broader view and analyse the performances of the athletes/sportspersons over different competitions and trials. As such therefore, the court does not find any infirmity with the reasoning of the Committee, insofar as all events other than R-7 are concerned (to which we will turn subsequently).
14. This Court is conscious that the Committee has to consider a wide variety of other factors, including logistical and practical considerations, in selecting athletes. For instance, age is a pertinent consideration; in order to promote budding talent and to ensure that through exposure over periods of time athletes become better prepared and in turn are likelier to win medals for the country, the Committee has found it necessary to give younger athletes a chance over some older athletes. This could for example explain preferring Avani, who is 16 years old, over the petitioner for event R-6 for the 2018 Al Ain Championship, even though the petitioner had a higher score than her in the 61st NSC in the said event. However, in the 2018 Al Ain Championship, Avani's score was higher than all the other athletes (even when compared to the petitioner's performance in the court ordered trial), and that too by a significant margin, thereby in some ways justifying the Committee's decision to send her over the petitioner.
16. Though the jurisdiction of the court under Article 226 of the Constitution of India is very wide but it has to be used with circumspection. The names in the present case have been finalised by the Committee of Administrators appointed by this Court in Manika Batra v. Table Tennis Federation of India [Manika Batra v. Table Tennis Federation of India, 2021 SCC OnLine Del 4479] vide judgment dated 11-2-2022. Learned counsel for the petitioners have taken this Court through the findings of the Committee of Administrators. A bare perusal of the findings of the Committee of Administrators makes it clear that the Committee has threadbare examined the entire issue and then after taking into account all aspects finalised the names to be sent for participating in the Commonwealth Games. The court in the present jurisdiction cannot substitute its own view with the view arrived into by the Committee of Administrators and the Selection Committee. The courts do not have any expertise to get into the selection and finalisation of players for participation at the international level. This Court is conscious of the fact that any such findings can be interfered with only if there is any perversity or arbitrariness in the findings arrived into by the Federation concerned. However, I do not find any such arbitrariness or perversity in the such order and furthermore, Mr Moazzam Khan, learned counsel for Respondent 1 has stated at bar that the names have already been finalised and sent to the Indian Olympic Association.
17. The court has to take into account that the Selection Committee/Expert Committee has to take account numerous factors while taking decision of selecting sportsperson to represent the country. This exercise cannot be as simple as comparing scores based on individual performances. In the present case also Committee of Administrator has weighed different factors and therefore, this Court finds itself unable to interfere in exercise of its power of judicial review. This Court also finds complete absence of any arbitrariness or mala fide in the decision arrived at by the Committee of Administrators.
18. To represent a nation and to participate, perform and excel in the arena of international sports, a player must not only possess physical but great mental and emotional strength and agility. It is thus pivotal that there should be no uncertainty in the minds of the players. Such litigations may disrupt and impact the preparation and performance of the players.” (emphasis supplied)
17. All these judgments have also been considered by this Court in its judgment dated 22.07.2023 in W.P.(C) 9593/2023 titled as Sujeet & Anr. v. Union of India & Ors. wherein this Court has held that the High Court while exercising its jurisdiction under Article 226 of the Constitution of India does not interfere with the decision arrived at by the experts but it only examines as to whether the decision taken is just, fair and reasonable.
18. A perusal of the above judgments shows that in matters of selecting the best person to represent the country in the international events the Courts should not interfere with the criteria set out by the experts in the field. The affidavit filed by the PCI states that in the discipline of Badminton the matters are handled by the respective members of the National Sports Federation and the PCI acts only as a nodal agency in case of multiple disciplinary sports events like the Asian Para Games. The decision taken by the representatives of the Badminton Association of India and the PCI in restricting the selection trials for selection of the Indian teams in order to finalise the Indian Para Badminton Team for the Asian Para Games 2023 only to those players whose performance in the individual events during the last twelve months prior to the commencement of the event is not be less than the performance achieved by the 8th position holder of the 2018 Asian Games in measurable sports and for team events, only those sports which have achieved a ranking up to 8th among participating countries of Asia in the last one year should be considered for participation in Asian Games 2022 cannot be found fault with. The minutes of meeting clearly indicates that the basis of forming the criteria is only to have players having probability of winning medals in the Asian Para Games 2023 cannot be said to be against national interest and as stated above, the basis for finalising the criteria is only to ensure that players having probability of winning medals in the Asian Para Games are selected and, therefore, it does not require any interference.
19. With this observation, the Writ Petition is dismissed. Pending applications, if any, also stand disposed of.
SUBRAMONIUM PRASAD, J JULY 28, 2023