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1986 DIGILAW 785 (ALL)

Bharat Dubey v. State of. U. P.

1986-10-14

S.SAGHIR AHMAD, U.C.SRIVASTAVA

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JUDGMENT S. Sagir Ahmad J. 1. The petitioner had appeared in the Combined PreMedical Test in 1985. He was admitted in Rani Laxmi Bai Medical College, Jhansi. 2. The petitioner claimed that be being an outstanding sportsman was governed by the provisions of G.O. Chikitsa Anubhag: 14, dated 19.3.84 and since in accordance with the said G.O., he had exercised his option of transfer to K.G, Medical College, Lucknow within one month of his admission In Rani Laxmi Bai Medical College, Jhansi, he was entitled to be transferred to K. G. Medical College, Luaknow. It was claimed that two students, namely, Kumari Sapna Khanna and Sri Rajeev Agarwal, who were admitted in the Kanpur Medical College, had been transferred to K.G. Medical College, Lucknow on the basis of the above G.O. as they were treated to be outstanding sportsmen. The petitioner claimed that he had better record in the field of sports than Kumari Sapna Khanna and Sri Rajeev Agarwal and that he was also entitled to be transferred to K.G. Medical College, Lucknow. 3. The petitioner had earlier filed Writ Petition No. 269 of 1986 in this Court on 15.1.1986 in which he had claimed that a direction be issued to the respondents to transfer him from Medical College, Jhansi to K.G. Medical College, Lucknow. This writ petition was allowed by a Division Bench of this Court Comprising of brothers D.N. Jha and D.S. Bajpai, JJ. by judgment and order dated 22.5.1986 in which a finding was recorded to the following effect: and we have no hesitation observing that 'the State has miserably failed to convince us that Kumari Sapna Khanna was more famous than the petitioner who, in our opinion, according to assertions, was head and shoulders above Kumari Sapna Khanna. It would not be out of plate to mention here that even the discipline in which Kumari Sapna Khanna achieved fame has not been mentioned in the counteraffidavit. It would not be out of plate to mention here that even the discipline in which Kumari Sapna Khanna achieved fame has not been mentioned in the counteraffidavit. We, therefore, think it to be a fit case to quash the order of rejection passed by the State Government with a direction to look into the matter again giving weight to the certificate of merit achieved by the petitioner, annexure2 to the writ petition and if at all necessary the Secretary to Government of U.P., Medical and Health Department may call the petitioner and satisfy himself with respect to outstanding merit achieved by the petitioner in the field of sports specially tennis. 4. After remand, the State Government by its order dated 11th June, 1986 Rejected the petitioner's claim for transfer. The petitioner has now filed the present writ petition. 5. The petitioner has contended that he was better placed in the field of sports than Kumari Sapna Khanna and Sri Rajeev Agarwal and that opposite party no. 1 had no jurisdiction to upset the findings recorded by this Court in the earlier writ petition that the petitioner was head and shoulder above Kumari Sapna Khanna. The petitioner has further contended that he had participated in the National Championship and was, therefore, entitled to be given the benefit of G. O. dated 19.3.1984. His claim for transfer could not, it is claimed, have been rejected on the ground that he had not won a medal in the said championship. 6. This petition was filed on 25th August, 1986 and it was directed that the petition shall come up for admissionhearing on 2nd September, 1986. The Standing Counsel was directed to obtain instructions. The petition was listed thereafter on several occasions but the opposite parties did not file a counteraffidavit. 7. We have heard the learned counsel for the parties. 8. The learned counsel for the petitioner has pointed out that the relevant documents indicating that the petitioner was an outstanding sportsman, were filed in writ petition No. 269 of 1986. We sent for the paper book of that writ petition which indicated that the petitioner was awarded a Certificate of Merit in 198384 as CaptainLawnTennis of the Colvin Taluqdars' College. He was also Hockey Captain and a member of the CricketXI of the same College, He was also awarded a Certificate of Merit of being an outstanding Badminton player. We sent for the paper book of that writ petition which indicated that the petitioner was awarded a Certificate of Merit in 198384 as CaptainLawnTennis of the Colvin Taluqdars' College. He was also Hockey Captain and a member of the CricketXI of the same College, He was also awarded a Certificate of Merit of being an outstanding Badminton player. In 198485 he had won the Lucknow University Lawn Tennis Tournament. He also participated in the Subroto Cup Football Tournament at the divisional level in 1980 and 198081. This Tournament is organised at the All India level. He had also participated in National Tennis Junior Championship held in Lucknow in 1980. This was also an All India Tournament held under the auspices of the U.P. Lawn Tennis Association which had also awarded to the petitioner a certificate indicating that he had participated in the selection trials for the U.P. Team for the National Game:, held on 2nd and 3rd November, 1985. These documents as also some of the documents filed in the present writ petition fully support the finding recorded by the Division Bench earlier in Writ Petition No. 269 of 1936 that the petitioner was head and shoulder above Kumari Sapna Khanna, at least. 9. The State Government in the impugned order had not taken into consideration the fact that the Football Tournament in which the petitioner had participated at the State level was the Subroto Cup which is an All India Tournament. The lawn tennis tournament was also an All India Tournament for Juniors. It cannot, therefore, be denied that the petitioner had participated in the National level games. In fact, the attempt on the part of the Health Secretary, who has passed the impugned order, appears to be to whittle down the merits of the petitioner. Since the petitioner had participated in the National Championship it is immaterial that he had not won a medal as the requirement of the Government order of which benefit is being claimed by the petitioner is not that he should have won the medal but that he had participated in the above games. Since the petitioner had participated in the National Championship it is immaterial that he had not won a medal as the requirement of the Government order of which benefit is being claimed by the petitioner is not that he should have won the medal but that he had participated in the above games. We are supported in our decision by the decision of the Supreme Court in State of Punjab v. Bhagwant Singh, ( AIR 1985 SC 981 ) in which it was laid down that the matches at the Zonal level of an Ail India Tournament are part of the said tournament and the teams which participated in the Zonal matches have to be treated to have participated in the All India Tournament. 10. It is also apparent from a perusal of the impugned order contained in Annexure2 that the State Government had not made any comparison between the petitioner and Sri Rajeev Agarwal who was also transferred to K. G. Medical College, Lucknow, The merits of the petitioner were compared with those of Kumari Sapna Khanna regarding which a finding had already been recorded by a Division Bench of this Court that the petitioner was better placed. In this view of the matter the order of the State Government contained in Annexure2 cannot be sustained. 11. The writ petition is, accordingly, allowed and the order contained in Annexure2 is hereby quashed with the direction that the petitioner shall be transferred from Rani Laxmi Bai Medical College, Jhansi to K. G. Medical College, Lucknow without any delay so as to enable the petitioner to participate in the course of studies in the K.G. Medical College, Lucknow. No order as to costs.