Shekhar Chander vs State of H.P. and Others

H.S. Thakur, J.—The State of Himachal Pradesh does not have any Engineering/Architectural College. However, such colleges run by other State Governments and the Central Government have reserved some scats for the nominees of the State of Himachal Pradesh for four years and five years degree courses for 1982-83 session. In all 51 seats have thus been made available.

The Himachal Pradesh Public Works Department by an advertisement, copies whereof have been filed with the aforesaid writ petitions, invited applications from bona fide Himachali candidates for nomination in Engineering and Architectural Degree Courses for the session 1982-83 so as to reach the office on or before 22nd July, 1982 upto 5.00 P.M., complete in all respects. It was specified in the said advertisement that Himachal Pradesh Government would nominate candidates purely on merit on the basis of marks obtained in the qualifying examination and according to rules and regulations of concerned college. Reservations were, however, made. Category ''A'' relates to reservation for students belonging to Scheduled Castes, Scheduled Tribes, and Backward Classes. A certain percentage of total seats have been reserved for each class. Category ''B'' shows reservations made for the ''Wards of Freedom Fighters and Social Workers'' and ''Wards of Defence Serving Personnel/Ex-servicemen''. Two seats were also reserved for ''Sports Candidates''. One such seat was reserved in 4-Years Course and the other in 5-Years Course of Engineering. In order to entertain the applications of the candidates for the reserved category it was specified that "they should clearly mention in their application forms that they belong to the reserved category and they should attach a certificate to this effect from the Magistrate 1st Class. The seats reserved for the above categories will be treated as un-reserved if eligible candidates of these categories are not available. The wards of Freedom Fighters/Social Workers for reserved seats for this category should submit their certificates in support thereof alongwith their application forms. Such certificates will not be entertained after the expiry of the last date for the receipt of application forms." It was further specified that "the nomination will be made on the basis of merit to be determined on total marks obtained in the subjects of Physics, Chemistry and Mathematics." In respect of the seats reserved for ''Sports Candidates'', it was specified that "two seats have been reserved in 4/5 Years Engineering Degree Courses (i.e. one seat in each course) for the Best Sportsmen nominated by the Director of Sports, Himachal Pradesh, Simla-171004, subject to fulfilment of the educational qualifications. Priority will be as under:

The candidate must be a National level player who has represented the Nation in International events.

The candidate must be a State level player who has participated in National events.

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In these writ petitions, nominations of the candidates in the category of ''Wards of Freedom Fighters and Social Workers'' and ''Sports Candidates'' have been challenged. As such, it is not necessary to refer to the nominations made from other categories.

In C.W.Ps. Nos. 183 of 1982 (Shekhar Chander v. State and Ors.)and C.W.P. No. 220 of 1982 (Dharmender Kumar Malhotra v. State and Ors.), the Petitioners have challenged the nomination of candidates from the category of ''Wards of Freedom Fighters/Social Workers'' and have claimed their own nomination from this category. However, in C.W.P. No. 193 of 1982 (Rajeshwar Singh Jaswal v. State and Ors.), the Petitioner besides assailing the nominations from the category of ''Wards of Freedom Fighters and Social Workers'' and claiming nomination from thi. category for himself, has also challenged the nomination of Amitabh Bansal from the category of ''Sports'' and has prayed that Respondent No. 7, that is Rajeev Ghauhan, be nominated in his place and that the said Rajeev Chauhan''s nomination from the category of ''Wards of Freedom Fighters and Social Workers'' be excluded. In C.W.P. No. 262 of 1982 (Anil Pathik v. State and Ors.) and C.W.P. No. 271 of 1982 (Narinder Paul v. State and Ors.), the Petitioners have challenged the nomination of Respondent No. 5, Rahul Sharma, from the category of''Sports Candidates''.

As stated earlier above, the challenge in these writ petitions is confined to the nominations from the categories of ''Wards of Freedom Fighters and Social Workers'' and ''Sports Candidates''.

We shall deal with the writ petitions relating to the nomination from the category of ''Wards of Freedom Fighters and Social Workers'' in the first instance. Since common questions of law and fact are involved in such writ petitions, they can conveniently be dealt with together. From this category, 5 candidates have been nominated. The names and marks obtained in the qualifying examination by them are as under:

Shri Parbhat Cliand .. 62% 2. Shri Gaveen John Desouza .. 57.67% 3. Shri Vikas Mahajan .. 63.56% 4. Shri Rajeev Chauhan .. 61.33% 5. Shri Rajeev Modgil .. 75.78%

The names and marks obtained by the Petitioners challenging the nomination of the above candidates are as under:

Shri Chander Shekhar .. 70.89% 2. Shri Dharmender Kumar .. 72.44% 3. Shri Rajesh war Singh .... 63.36%

The Petitioner in C.W.P. No. 183 of 1982 has filed certificate Annexure ''PD'' obtained from the President H.P.C.C. (I) Beopar Cell, Una Sudhar Sabha and H.P. Chemists and Doctors Association, Simla. According to this certificate, it has been certified that the father of the Petitioner is serving this organisation as social worker since 1980 and the work with which he was entrusted has received a wide-spread applause from one and all. This certificate has not been obtained from a Magistrate 1st Class nor it has been countersigned by such a Magistrate. In C.W.P. No. 220/82, Shri Dharmender Kumar Malhotra Petitioner has filed two certificates Annexures ''D'' and ''E''. Annexure ''D'' is a certificate given by Km. Vidya Malhotra, Secretary, Akhil Bhartiya Mahila Sangh, Mandi Unit, H.P. wherein it is certified that Manchali Devi w/o Shri Sansar Chand Malhotra is a social worker and is a member of Akhil Bhartjva Mahila Sangh, Mandi Unit. It is further certified that, she takes keen interest in various social welfare activities. Annexure ''E'' is a certificate obtained by the Petitioner issued by the Incharge, National Service Scheme, Government College, Mandi, H.P. that the Petitioner has been an active student of N.S.S. during the year 1981-82. Both these certificates too are neither issued by a Magistrate 1 st Class nor countersigned by such a Magistrate. In C.W.P. No. 193 of 1982, Shri Rajeshwar Singh Jaswal Petitioner has filed a certificate Annexure ''C issued by Shri Jagdev Chand, Advocate and Member of Legislative Assembly, Hamirpur Constituency, H.P. wherein it has been certified that late Shri Kapoor Singh Jaswal grand-father of Rajeshwar Singh Jaswal was an active social worker of the area and he has rendered meritorious service in rehabilitating the refugees who had come from Pakistan and later on served the ex-servicemen and their families till his death. This certificate is also not from a Magistrate 1st Class and is not even countersigned by such a Magistrate.

We have examined the original record produced in the Court. We find that Petitioner in C.W.P. No. 183 of 1982, besides the certificate indicated above, has also filed a certificate issued by Shri Bhaskara Nand, M.L.A to the effect that the Petitioner has been doing social work in the sphere of Education (Adult) in Simla district. This certificate does not pertain to the guardian of the Petitioner and is not from a Magistrate nor countersigned.

Five nominated candidates from the category of ''Wards of Freedom Fighters/Social Workers'' have also filed certificates with their application forms in respect of their claim from this category. They are reproduced below for a ready reference:

Shri Parbhat Chand, Respondent

CERTIFICATE.

It is certified that Smt. Krishna Kumari mother of Shri Parbhat Chand of Kangra is a social worker and has worked for the welfare of animals. She has helped the poor and S.C. people in I.R.D. Programme regarding rearing of cattle and poultry for the uplift and improving their standard of living.

Dated 1-5-1982.

Sd/- Dr. M.G. BHATTA, Vely. Assistant Supdt.�

This is to certify that Smt. Krishna Kumari mother of Shri Parbhat Chand is a social worker and is an active member of the Red Cross and Hospital Welfare Society. She has helped in raising funds and donation for the Red Cross Society.

She has always helped the poor and needy indoor patient in the hospital.

She takes very keen interest in family planning and welfare activities.

Sd/- Medical Officer, Sub-Divisional Hospital, Kangra (H.P.) 30-6-1982.

CERTIFICATE

This is to certify that Smt. Krishna Kumari mother of Shri Parbhat Chand of Kangra has worked. for the welfare of old and infirm and widows for getting financial assistance from this department like Pension etc., and she has been associating herself with other social welfare activities.

Sd/- Tehsil Welfare Officer, Kangra. 13-7-1982.

Certified that Smt. Krishna Kumari mother of Shri Parbhat Chand of Kangra is a social worker and has helped many poor families regarding horticulture, beekeeping and raising of vegetable kitchen garden.

She also takes keen interest in women welfare activities.

12-7-1982.

Sd/- Block Development Officer Kangra.

Shri Gaveen John Desouza, Respondent

TO WHOM IT MAY CONCERN:

Mrs. Melba Desouza mother of Master Gaveen John Desouza has been a member of the YWCA for a number of years. She is social worker and has been actively engaged in all the activities of this Association. She is a member of the Board of Management, and has been looking after the welfare activities of the Association, Adult Literacy Programme, assisting in running the Hostel for working women and students. She has been taking keen interest in starting a Secretarial Training Course, for young girls for providing them a trade in hand.

10th july, 1982.

Sd/- Mrs. S. SHIPSTONE, General Secretary, T.W.CA., Simla.� Countersigned.

Sd/- Executive Magistrate, G.A. to D.C., Simla.,

Shri Vikas Mahajan, Respondent

CERTIFICATE

Certified that Smt. Suman Gupta w/o Shri A.C. Gupta resident of Sanjauli, District Simla is Known to me for the last 5 years. She is an active social worker. She has been taking active interest in all kinds of social welfare activities of the Pradesh. She has been working hard for the uplift of weaker section of the society.

I wish her all success in life.

Sd/- Secretary, State Social Welfare Advisory Board, Himachal Pradesh." 7-7-1982.

Countersigned.

Sd/-" Executive Magistrate, G.A. to D.C., Simla.,

CERTIFICATE

This is to certify that Shrimati Suman Gupta wife of Shri A.C. Gupta of Sanjauli, Simla-171006, is an active social worker. She has been taking keen interest in all kind of social welfare activities in Simla area particularly uplift of weaker section of the society i.e. women and children.

Sd/- Secretary, Social Welfare, Advisory Board, H.P.

26-6-1982.

Sd/- City Magistrate, Simla.

Shri Rajeev Chauhan, Respondent

It is certified that Smt. Savitri Devi wife of Shri Jai Lal Chauhan resident of village Bohrar, Tehsil Jubbal, District Simla is a leading social worker for the last 10 years. She has done commendable work in the uphil welfare and development of backward and poor masses in the rural areas in various fields by creating in them an awareness about the progressive policies of the Govt. in the social and economic spheres. She has also been helpful in implementing various programmes of the Govt. under the 20-Point Economic Programme.

Sd/- Chairman, Social Welfare, Board, H.P., Simla

Shri Rajeev Modgil, Respondent

MANAV KENDRA-CUM-WORLD FAMILY

Freedom Fighters Home, Gole Post Office, New Delhi

Dated 22-2-1982

Dear Beti Inder,

I am sending Mrs. Sudesh Modgil, well-known, staunch woman of Martyred family. You already know Sufe Amba Prasad, Ajit Singh and Rikhi Kesr Latta, well-known Rcvolu-tioners. You know also that I was Chief Secretary of the Gadar Party which was founded in 1913 founded by Lala Hardyal. I know this family fully well. No man can deny her rights. I also strongly recommend this case.

I am sending this letter through Kr. Rajindri Bajpai.

Sd./- Chair man, All Freedom Fighters Committee. New Delhi

A perusal of the above certificates shows that Petitioners have not complied with the specific condition as contained in the advertisement inviting applications. A candidate seeking nomination from the reserved category of ''Wards of Freedom Fighters and Social Workers'' had to comply with the specific condition that "they should clearly mention in their application forms that they belong to the reserved category and they should attach a certificate to this effect from the Magistrate 1st Class". The Petitioners admittedly have not attached certificates from the Magistrate 1st Class. As such, the question arises whether this Court is legitimately competent to hold them eligible for nomination or not. The next point which arises for consideration is whether the candidates who have been nominated from this category had also complied with this condition or not. A perusal of the record shows that only two nominated candidates, that is, S/Shri Gaveen John Desouza and Vikas Mahajan have attached certificates which are countersigned by the Magistrate as indicated in the certificates reproduced above. Though these candidates do not strictly comply with the requirement of a certificate from a Magistrate, but the fact that the Magistrate countersigned the same, some authenticity is attached to them inasmuch as he has taken responsibility in respect of the validity of these certificates.

Now we shall deal with the certificates attached by the other nominated candidates from this category. The certificate which is attached by Shri Rajeev Chauhan is issued by the Chairman, Social Welfare Board, H.P., Simla. Shri Parbhat Chand has attached the certificates issued by Veterinary Assistant Superintendent, Medical Officer, Kangra, Tehsil Welfare Officer, Kangra, and Block Development Officer, Kangra. Shri Rajeev Modgil has not attached any certificate but has only attached a letter from the Chairman, Freedom Fighters Committee, New Delhi. The certificates attached by the Petitioners with their application forms have been elaborated earlier above and it is not necessary to discuss the same over again.

From the above discussion, it can be reasonably inferred that two of the nominated candidates, that is, S/Shri Gaveen John Desouza and Vikas Mahajan though'' did not strictly comply with the condition of a certificate from a Magistrate, at least got the certificates countersigned by a Magistrate. As such, these two Respondents may constitute a separate class for the purpose. The certificate that has been attached by Shri Rajeev Chauhan is issued by a recognised Social Welfare Board of Himachal Pradesh known as ''Social Warfare Board of Himachal Pradesh''. It is a matter of common knowledge that such a certificate has a reasonable validity so far as the social work in Himachal Pradesh is concerned. Shri Parbhat Chand has attached four certificates as reproduced earlier above. Two of the certificates have been issued by Tehsil Welfare Officer, Kangra, and Block Development Officer, Kangra respectively, whereas other two certificates are issued by Medical Officer, Kangra, and Veterinary Assistant Superintendent, Kangra. All the four officials who issued the certificates are Government officials and are connected to a reasonable extent, with the social welfare work in Himachal Pradesh. Particularly, Tehsil Welfare Officer is directly concerned with such type of work. So far as Rajeev Modgil is concerned, he has not filed a certificate, but a letter in which the name of Mrs. Sudesh Modgil has been described as a well-known staunch woman of martyrs'' family. After perusing the application form, we find that Mrs. Sudesh Modgil is the mother of Rajeev Modgil.

The merits of the certificates filed by the Petitioners may now be noticed. Shri Rajeshwar Singh Jaswal has attached a certificate from Shri Jagdev Chand, who is an Advocate and Member of Legislative Assembly. It is certified by him that the grand-father of this Petitioner was an active social worker of the area. The said grand-father of this Petitioner is not alive and, as such, the Petitioner cannot be considered the ward of a dead person. Shri Shekhar Chander, Petitioner, has filed a certificate from the President of Beopar Cell, Una Sudhar Sabha and Chemists and Doctors Association, Himachal Pradesh, that the father of the Petitioner is working for this Association since 1980. The father of this Petitioner is a Government servant. It is not known what type of social work is done by this organisation and whether this is a registered or recognised body, or not. Similarly, the certificates attached by Shri Dharmender Kumar Malhotra Petitioner are from Km. Vidya Malhotra, Secretary, Akhil Bhartiya Mahila Sangh, Mandi Unit, and also the Incharge National Service Scheme, Government College, Mandr. It is not indicated in the writ petition what type of social work is done by these bodies and whether they are registered and recognised bodies or not.

Faced with the above position, it is to be seen as to what value and authenticity is to be attached to the certificates of the Petitioners as compared to the certificates of the nominated candidates. The next question to be considered is whether the Petitioners who have not complied with the specific condition of the advertisement of obtaining a certificate from a Magistrate can be recommended for nomination from this category or not. It is contended by the, learned Counsel for the Petitioners that if the Respondents can be nominated in spite of this defect, the Petitioners on similar ground cannot be debarred from consideration. It is further contended that in the advertisement, it is not clearly specified as to from which authority or organisation the certificates for the purpose had, to be obtained. According to the learned Counsel, for the Petitioners, the condition was vague and the Petitioners cannot be penalised on account of this defect in the advertisement.

The learned Advocate-General, who has appeared on behalf of the State and its authorities, has opposed these writ petitions. It is contended by him that in the counter-affidavits filed on behalf of the Respondents the position has been amply elaborated and there is no reasonable ground to disbelieve and ignore the stand taken by the State and its authorities. It is further contended that the Petitioners have not complied with the specific condition contained in the advertisement of filing a certificate from a Magistrate and on that account alone the writ petitions deserve to be dismissed. It is also pointed out that on account of this vital defect, their applications did not even deserve consideration. It is moreover emphasised that the Petitioners due to this defect have otherwise also no locus standi to sustain these writ petitions. According to the learned Advocate-General the Court in the exercise of its extra-ordinary writ jurisdiction would not direct the Respondents to nominate the Petitioners when their application forms are not accompanied by valid certificates. It is, however, contended by him that only two of the Respondents as disclosed above had attached certificates which were counter-signed by a Magistrate. In the alternative, conceiving certain situations, he has contended that in this category, S/Shri Parbhat Chand, Rajeev Chauhan and Rajeev Modgil can be eliminated as they did not even get the certificates filed by them countersigned from a Magistrate. In that situation, it is contended that Rajeev Chauhan is entitled to be considered, for nomination from the category of ''Sports'' and Amitabh Bansal is to be eliminated from that category. In this way, according to him, three seats out of the category of ''Wards of Freedom Fighters and Social Workers'' may fall vacant. It is, however, stressed by him that the alternative view is not likely to be adopted by the Court but the stand taken by the State and its authorities in their counter affidavits is the only legal and reasonable view.

Shri P.N. Nag, who has appeared on behalf of the P.W.D. Minister, has controverted the allegations made against the Minister concerned. He has supported the nomination of Gaveen John Desouza, and has pointed out that his father is not directly concerned with the Public Works Department but is only a Technical Advisor in the Electricity Board. On this account, it is asserted that the P.W.D. Minister had no direct concern with him and had no reason to oblige his son. Mr. Nag has also argued that the Minister concerned acted in good faith and without any extraneous considerations.

We have perused the record produced by the Respondents and have also considered the respective contentions of the learned Counsel for the parties. It may be pointed out that Rajeev Chauhan and Amitabh Bansal had applied for their nomination from the categories of ''Wards of Freedom Fighters and Social Workers'' and ''Sports''. The application of Rajeev Chauhan was only considered in the category of ''Wards of Freedom Fighters and Social Workers'' whereas the application of Amitabh Bansal was considered only in the category of ''Sports''. We shall touch this aspect while dealing with the nomination from the category of ''Sports''.

At this stage, we are considering the nominations from the category of''Wards of Freedom Fighters and Social Workers'' as indicated earlier above. The Petitioners have not complied with the condition of filing certificates from a Magistrate. Similarly, the nominated candidates have also not complied with this condition. However, two of the nominated candidates from this category as also Amitabh Bansal have got their certificates countersigned from a Magistrate. It may be pointed out that Amitabh Bansal has been nominated from the category of ''Sports'', Faced with this situation, it is to be considered as to in what manner we can do justice to the parties. It is not disputed that the nominated candidates have already got admission to the institutions. However, that consideration alone would not debar us from doing justice to the Petitioners.

No definitions of the terms "Social Worker" and "Freedom Fighter" have been given. Both are extremely Vague Any type of work in a given circumstances may be termed as ''Social Work". Similar is the case of "Freedom Fighters". Nor any guidelines in respect of these terms have been laid down. We are not even shown what weighed with the authorities concerned to accept a particular certificate and to reject another. The absence of definitions of the terms and guidelines has indeed resulted in a great confusion as is evident from the types of certificates produced by various candidates. Some of the candidates, who are the wards of some Government officials, have succeeded in getting their certificates countersigned by the Magistrates. In order to be fair to the candidate it was necessary for the Government to lay down the definitions of these terms so that the candidates would have known what type of work was to be treated as "Social Work". It should have also provided various authorities who could have given such certificates. If the intention of the authorities was that a certificate issued by a Magistrate has to be considered, then no candidate has produced such a certificate. May be the intention was that a Magistrate of an area, in the performance of his official functions, would know whether a person is a social worker or not. Of course, a Magistrate should also have guidelines as to what would constitute "Social Work". Whatever the intention was, since it was not expressed in the advertisement specifically, the result has been the present confusion giving an absolute discretion to the authorities concerned to pick and choose. It is this type of discretion which has been condemned by the Courts in various decisions. Similar is the case of "Freedom Fighters". As there is no definition of "Freedom Fighters", anyone can claim that his forefathers were "Freedom Fighters". We know that the State recognises the "Freedom Fighters" by issuing TamraPatras. If that was the intention, it could have been specifically stated in the advertisement in order to ensure that no one succeeds in duping the authorities.

We have already pointed out that no one has produced a certificate from a Magistrate. Countersigning a certificate was not the requirement. If the authorities were willing to consider the certificates which were only countersigned by Magistrates, then it should have been specifically stated in the advertisement. Indeed it has been contended by the Petitioners that they could have got their certificates countersigned by the Magistrate. There is a material difference between a person issuing a certificate and a person simply countersigning the same, issued by somebody else. The learned Counsel for the Petitioners have submitted that for the present year the certificates should not be discarded and we should treat all the certificates alike. In other words, the submission is that we should declare for future that unless proper guidelines are laid and definitions of the terms "Social Worker" and "Freedom Fighter" are given, no one should be allowed to occupy these seats.

As already stated, two seats have been reserved for ''Sports Candidates'' for the best sportsmen nominated by the Director of Sports, Himachal Pradesh. Admittedly, there is no Director of Sports in Himachal Pradesh. Why such a condition was put is best known to the authorities concerned. There is only a Deputy Director of Sports. It has been contended before us that the Director of Education being the head of the department of Education, and sports being a part of the education, he should be considered as Director of Sports. We are not impressed by this reasoning. If that was the intention, then the Government could have easily mentioned the Director of Education instead of Director of Sports. We fail to understand why the Director of Sports was at all mentioned when there was no such post. It has been strenuously contended on behalf of the Petitioners that the whole object of the authorities was to leave the matter so vague that they could oblige persons if the occasion so demanded. Indeed it is contended that the authorities concerned have obliged the sons of high-ups. We are constrained to remark that the present advertisement has given rise to genuine apprehensions in the minds of the Petitioners that the authorities have not been fair to them. To make the confusion worse confounded, as we will presently discuss, through the Deputy Director of Sports did prepare a list of the candidates according to his idea of ''Best Sportsmen'', the Director of Education left the whole matter to the authorities concerned. It has again been indirectly suggested to us that the Director of Education found himself in predicament because of various pressures brought on him and he, therefore, decided to wash his hands of the matter and leave it to the high-ups. Again, if we construe the advertisement, as we should, then except the Director of Sports nobody had the right to decide who the ''Best Sportsman'' was. However, we will now consider the cases of the Petitioners and the Respondents for this category of ''Sports Candidates''.

In his writ petition, Shri Rajeshwar Singh Jaswal has prayed that the nomination of Rajeev Chauhan from the category of "Wards of Freedom Fighters and Social Workers" be held invalid and he instead be recommended to be nominated from the category of'' Sports Candidates''. There is no dispute that Rajeev Chauhan had also applied for nomination from this category as well but he was nominated from the category of ''Wards of Freedom Fighters and Social Workers''. It may, however, be noticed that Rajeshwar Singh Jaswal has not prayed for his nomination from this category. As pointed out earlier above, Amitabh Bansal has been nominated from the category of''Sports Candidates'' to 4-Years Degree Course. Nomination from the category of ''Sports Candidates'' to 5-Years Degree Course has been challenged in the writ petitions Nos. 262/82 and 271/82 by S/Shri Anil Pathik and Narinder Paul Petitioners respectively. Both the Petitioners have prayed for quashing the nomination of Shri Rahul Sharma to the 5-Years Degree Course and have further prayed that Respondent No. 3 be directed to nominate them to this course.

The advertisement clearly mentions that "Two seats have been reserved in 4/5 Years Engineering Degree Courses (i.e. one seat in one course) for the Best Sportsmen nominated by the Director of Sports, Himachal Pradesh, Simla-171004, subject to fulfilment of the educational qualifications." It is contended by Shri Anil Pathik that there are large number of certificates of merit in his favour of various sports bodies to prove his merit. It is further contended by him that he has excelled in the sports of Rifle shooting and right from the beginning from various stages ultimately reached the National level and stood first in the National Rifle Shooting Championship in March, 1980 which is the highest certificate of National level awarded to any sportsman. He has filed numerous certificates in support of his claim which are Annexures ''PA'' to ''PG Similarly, Shri Narinder Paul has stated that he excels in the merit of sportsmanship which is supported by various certificates issued to him. According to him, he fell within the category of a State level player. He claims to be the player of the major game ''hockey1. His achievements have been specified in paras 3 to 7 of the writ petition. Certificates Annexures P-1 to P-7 have been filed by him with his petition.

The stand of the State is that the certificates attached by Shri Anil Pathik with the writ petition were not attached by him with his application except for Annexures PA, PB, and PC It is further stated that the sports merit of all the candidates of one level has first to be kept at par and their inter-se merit has thereafter to be determined on the basis of marks secured by each candidate in the subjects of Physics, Chemistry and Mathematics in the qualifying individual examination. In reply to the writ petition filed by Shri Narinder Paul, similar stand has been taken on behalf of Respondents 1 to 3.

The marks obtained by the Petitioners and the nominated candidates may now be mentioned. Shri Narinder Paul Petitioner is stated to have secured 72.17% marks whereas Shri Anil Pathik Petitioner is stated to have obtained 50% marks. Respondent Rahul Sharma is stated to have obtained 80.83% marks in the qualifying examination.

In order to form an opinion about the merit of the Petitioners from this category, we examined Shri T.L. Vaidya, Deputy Director of Sports, Himachal Pradesh. His statement is on the record of C.W.P. No. 193 of 1982. According to him, he had sent a list of the candidates who applied for the nomination from the category of ''Sports'' in order of merit and according to the list in respect of 5-Years Degree Course, Anil Pathik was placed at No. 1, Narinder Paul at No. 4, and Rahul Sharma at No. 12- It is further stated by him that after he had sent his recommendation, the matter was not referred back to him. He has stated that principles applied for determining the merit of each candidate was purely on their achievement in the filed of sports. He has clarified that by achievement in the field of sports, he meant achievement at various levels in various types of tournaments. According to him, a person playing at the National level gets preference over a person playing at the State level. He has specifically stated that there is no such thing known as ''major'' or ''minor'' games. He has also pointed out that all other things being equal, he would prefer the one who had represented the State at National level for greater number of times than the other. In his view, Anil Pathik has been preferred by him because he got gold medal at the National level whereas Narinder Paul has only participated at the National level. According to him, there is no Director of of Sports in Himachal Pradesh and the Director of Education cannot discharge the functions of Director of Sports, since the post does not exist. It is, however, admitted by him that Director of Education is the head of the Education Department and sports is a part of the Education Department.

It is contended by Shri Bhawani Singh, learned Counsel for Anil Pathik, that in the absence of a Director of Sports it was the Deputy Director of Sports who had the power to nominate a candidate from this category and the Respondents 1 to 3 have illegally assumed such power. According to him, the nomination so made is without jurisdiction. It is further contended that the Petitioner, Anil Pathik, being No. 1 in sports had to.be nominated from this category to 5-Years Degree Course. Similarly, Mr. M.C. Mandhotra on behalf of Narinder Paul Petitioner has contended that Rahul Sharma could not be nominated as he was down below in merit. It is also contended that the Director of Education could not delegate the power to the Public Works Department. He has emphasised that hockey, football and cricket are the major games and the Petitioner was" a national level player in major games.

In respect of the dispute pertaining to the nomination from the category of ''Sports'', it is contended by the Advocate-General that the authorities have acted fairly and reasonably and considering the case of candidates of National level at par, the nomination has been made on the basis of their respective merit in the qualifying examination. It is pointed out by him that the Deputy Director (Sports) was not a proper authority to make nomination out of this category but it was only the Director of Sports, who was so authorised in terms of the advertisement. Since there was no Director of Sports, the Director of Education had to be considered as incharge of the Sports. Because he did not choose to make nomination from this category and referred the matter to the Government, the Government as the highest authority made the nomination from such category.

On behalf of Shri Amitabh Bansal, it is contended by Shri Chhabil Dass that Shri Rajeshwar Singh Jaswal has no locus standi to challenge the nomination of Amitabh Bansal from the category of ''Sports'' as he was not a candidate for this category. It is further contended by him that since the Director of Education, failed to exercise the power of nomination, it was necessary for the Government to exercise this power. The position of the Government, according to him, is that of a principal, and other authorities, at the most are its agents. The principal is always competent to exercise the powers even if delegated to an agent. It is emphasised by him that the Deputy Director of Sports had not named specific candidates to be nominated but had simply drawn up a list and had left the matter of nomination to the authorities concerned. The view taken by him in his statement is at the most his own opinion and the Government is not bound by it.

The only guidelines given in the advertisement relate to the priority to be given between the ''Sportsmen''. A national level player was to have priority over a State level player who in turn will have priority over District level player. The players of major games were to be given preference over the players of minor games. However, it is not mentioned as to what were to be considered as major games. The Deputy Director of Sports, as already stated, informed us that there is no such thing as major games and minor games as far as he is concerned.

Mr. M.G. Mandhotra did refer to some rules of die Himachal Pradesh University to show what major games are. But then we are not concerned with the University. It was for the State to tell us what in practice have been treated as major games in the. department of Education. In view of the information given to us by the Deputy Director of Sports, we have to conclude that this was a distinction without substance and misleading for the candidates.

We do not find any definition for ''Best Sportsman''. In case more than one candidate fell in the category of National level player, then how the ''Best Spoitsman was to be selected. It is contended on behalf of the Respondents that the candidate with maximum marks in the qualifying examination was to be declared as ''Best Sportsman''. This may be a reasonable method but the candidates receiving the maximum marks may not be the ''Best Sportsman''. The very term indicates that the selection was to be on the basis of the candidate''s proficiency in sports. It was for that reason that the selection was left to the Director of Sports because of his expertise in sports. For example, a candidate who had represented more than once in the International events and another candidate who had represented only once in International events, though falling in the category of national level players, cannot be treated alike. Preference cannot be given to a candidate only on the basis of his marks. The preference has to be given on the basis of sports. The Deputy Director of Sports has given us some idea of his own as to how he was selecting the ''Best Sportsman''. However, the ideas ate his own. He seems to have formed his own guidelines. We would have accepted his decision as final but then, according to the advertisement, the decision was to be by the Director of Sports and not by the Deputy Director of Sports. The purpose of reserving seats for the ''Best Sportsmen'' seems to be that candidates who are spending most of their time in the sports and achieving proficiency therein, should not be denied the advantage of higher proficiency only on the ground that they could not achieve higher marks in the qualifying examinations.

We have given our earnest consideration to the submissions made by the parties. The question, however, that eventually survives for consideration is whether the nominations made out of the above categories of ''Wards of Freedom Fighters and Social Workers'' and ''Sports'', be struck down, on the basis of the observations made earlier above or the nominations as already made be upheld. It is also to be considered whether the Petitioners or any of them can be given any relief The position as it has now emerged may be examined. The nominated candidates have joined the respective institutions. They have also paid fees etc. and are pursuing their studies. By this time, they must have also covered part of their courses. The various colleges and institutions, in which the Respondents-students have been admitted have not been made parties. We cannot issue any directions to them. Under the circumstances, if the nominated candidates are to be replaced, it is not certain that the concerned institutions shall give admission to them due to one reason or the other. In that eventuality, the candidates already admitted to different institutions would suffer without any benefit to those who may now be nominated. In that event, the seats allotted to the nominees of this State would remain vacant. It is also not certain whether such of the candidates, who may be nominated if the nominations are struck down, may how be interested in joining the institutions or not. Consequently, the interests of the State are also likely to suffer. In order to avoid such consequences, we have to consider whether we may resort to a practical and pragmatic view in the matter.

We are fully conscious of the fact that we would not issue futile writs that may possibly not be implemented or may not be capable of being implemented, under the changed circumstances.

We have already discussed earlier above the comparative merits of the certificates submitted by the Petitioners and the nominated candidates with their application forms in the category of ''Wards of Freedom Fighters and Social Workers''. It appears that the certificates filed by the nominated candidates have an edge over the certificates filed by the Petitioners, even if the requirement of obtaining such certificates from a Magistrate is overlooked.

We have also examined the question of the comparative suitability of the nominated candidates from the category of ''Sports'' as compared to the Petitioners, seeking nomination from this category. The Government has treated them as players of National level and have eventually made nominations on the basis of the qualifying marks obtained by them. Such a basis of nomination cannot be termed as utterly unreasonable, especially in view of the position as it has now emerged with the passage of time. Accordingly, we are tempted to take a pragmatic and practical view in the matter. Under the circumstances, such a view Can be none else but to maintain the nominations already made from the above categories. We may, however, emphasise that we have taken this view under the peculiar circumstances as indicated earlier above. We have pointed out the ambiguity in the advertisement, especially the lack of clarity in respect of the definitions of the terms "Freedom Fighter" and "Social Worker". Such like ambiguity and lack of clarity have a far-reaching effect on the candidates. Any confusion in the minds of desirous candidates has to be eliminated. As observed earlier above, we have taken the aforesaid view under the peculiar circumstances of these cases and would not be a precedence for the future. Therefore, while striking down the reservations made for ''Wards of Freedom Fighters and Social Workers'' and ''Sports Candidates'' we would not, for the reasons already stated, strike down the present nominations made by the State.

The upshot of the above discussion is that the writ petitions arc dismissed with no order as to costs.