Kanti Verdhan Sharma v. Union of India & Ors.

O R D E RWhen the Miscellaneous Petitions are listed for hearing,with consent of the learned counsel on either side, the main WritPetition itself is taken up for disposal.2. This Writ Petition has been filed, praying for issuanceof a writ of certiorarified mandamus, to call for the recordsrelating to the letter dated 01.03.2011 on the file of the secondrespondent and the consequential communication dated 04.03.2011 onthe file of the third respondent, quash the same and consequentlydirect the second respondent to amend the bye-laws in consonance withthe guidelines in proceedings in F.No.8-17/2009-SP-III, dated01.05.2010, issued by the first respondent, and thereafter to conductelections of the office bearers of the Swimming Federation of India,in short, "SFI". 3. Facts :3.1. The petitioner is a Co-opted Member of the HaryanaSwimming Association. He has been duly authorized by the Presidentand Secretary of the Haryana Swimming Association to participate inthe elections of the Swimming Federation of India, in short, "theFederation", and to attend the General Body Meeting of the Federationas an accredited representative. He has also filed nomination forthe post of General Secretary, without acquiescing to theirregularities in the proposed election.3.2. The Federation is affiliated to the Indian OlympicAssociation and Federation Internationale de Natation Amateur (FINA)and registered under the West Bengal Societies Registration Act. Itis receiving nearly about Rs.1.00 Crore every year as a grant fromthe Government of India. The Bye-laws of the Federation provide forGeneral Council and the Office bearers. The Office bearers arePresident, Vice-President, Hony.General Secretary, Hony.JointSecretaries, Hony.Treasurer and the term of the office thoughprescribed as three years in the Bye-laws, in practice, it is beingchanged to four years. 3.3. One of the functions of the General Council is toelect the Office bearers and the Managing Committee of theFederation. Though the bye-laws envisage a democratic process ofelection of the Office bearers, the actual functioning of theFederation has eroded the system and elections have not beenconducted in a fair and transparent manner. On account of the same,the object of establishing the Federation itself has been defeated.Since the number of tenures a person could be elected has not been https://hcservices.ecourts.gov.in/hcservices/ prescribed in the bye-laws, the very same person continued to beelected and re-elected time and again as President and GeneralSecretaries. The present General Secretary has been in post for thepast 27 years.3.4. That being so, the Government of India, Ministry ofYouth Affairs and Sports, the first respondent herein, by Proceedingsin F.No.8-17/2009-SP-III, dated 01.05.2010, addressed to all theNational Sports Federations, had issued a detailed guideline as tothe maximum period the President of a Sports Federation could holdoffice and similarly prescribed the number of years the Secretary andTreasurer to get elected. Further, the said proceedings alsodirected that the compliance to the above directions shall bemandatory and they shall form an integral part of theguidelines/regulations applicable to National Sports Federation.3.5. Further, vide Proceedings No.F.46-12/2009-SP-I, dated11.11.2010, the first respondent also observed that "it isunequivocally concluded that SFI has not only violated the Governmentguidelines, which make it liable to de-recognition, but has alsoviolated its own constitutional provisions in not following dueprocess in the conduct of elections of its office bearers, which makeit also liable for de-registration as the national sports federationfor swimming in India. However, taking into view the interests ofsports and sports persons, had granted 90 days time to amend itsconstitution and hold fresh election in a fair, democratic andtransparent manner. 3.6. The first respondent, vide proceedings No.F-46-12/2009-SP-I dated 24.02.2011, after taking into consideration thereply of the Federation dated 09.02.2011 to the letter dated11.11.2010, categorically came to the conclusion that the Federationhad failed to comply with the Government order and stated that theyshould give a reply within 10 days as to why the Federation shouldnot be de-recognized as the National Swimming Federation for Swimmingin India. The second respondent, without taking immediate steps tocomply with the directions of the Government of India, to avoid de-recognition, has proceeded to once again conduct election withoutadhering to the guidelines as mandated by the Government of India.Till-date, the bye-laws of the Federation have not been amended inconsonance with the guidelines formulated by the Government of India.3.7. The present General Secretary of the Federation, videletter dated 01.03.2011, addressed to all the State Associations, hasinformed that the election of the office bearers of SwimmingFederation of India will be held on 26.03.2011 at Chennai, followedby the General Body meeting of the Federation and has also informed https://hcservices.ecourts.gov.in/hcservices/ that Mr.Vinayak S.Borkar, Advocate, third respondent herein, has beenappointed as the Returning Officer to conduct the election process.The election process commenced with the letter of the ReturningOfficer dated 04.03.2011, addressed to various State Associations. 3.8. As per the existing bye-laws viz., bye-law No.19, 21clear days notice of the meeting should be issued to all members forthe meeting of the General Council and only in that meeting, theelection of office bearers could be conducted. Since the notice wasdispatched on 09.03.2011 and the elections are scheduled on26.03.2011, the provisions of Bye-law No.19 has been violated andelections are not being conducted in a free, fair and transparentmanner. Also, the quorum of the meeting shall be 1/3rd of the totalnumber of members. In the communication sent by the ReturningOfficer, Annexure-2 Sl.No.7, it has been stated that the election washeld between 12.00 Noon and 01.30 p.m. on 26.03.2011, whereas in thecommunication dated 04.03.2011 issued by the General Secretary, it isstated that the meeting will be held even in the absence of arequisite quorums during the General Council Meeting.3.9. Aggrieved over the alleged arbitrary, unilateral andunjust action of the Federation in proceeding to conduct election incontravention of the guidelines and directions issued by the firstrespondent and also in violation of the existing bye-laws, thepetitioner has filed this Writ Petition.4. First respondent has filed a counter, stating as follows:4.1. SFI is a society registered under the West BengalSocieties Registration Act,1961. The conduct of the day-to-dayaffairs is governed by its own constitution and a set of bye-lawsmade thereunder. First respondent does not interfere with theinternal functioning and day-to-day affairs of the National SportsFederations, which are responsible for the control, regulation andtechnical development of different sports and disciplines. However,the sports development being a national priority, the cooperation andpartnership between the first respondent and National SportsFederations and other stakeholders organizations is essential forproper development, promotion of sporting excellence, organization ofsporting events, promotion of athletes welfare, promotion of drugfree sports and the fights against all forms of corruption in sports.For this purpose, the first respondent grants several financialgrants, benefit and concessions from the Consolidated Fund of Indiato the National Sports Federations. The first respondent is thusunder a constitutional obligation to ensure that the National SportsFederations which avail themselves of a number of benefits andconcessions from the first respondent discharge their dutieseffectively and follow the highest standards of good governance inthe management of respective sports controlled by them as well as in https://hcservices.ecourts.gov.in/hcservices/ the management of their own internal affairs. On 01.05.2010, thefirst respondent circulated to all National Sports Federations,including SFI, a set of standard guidelines to be followed by them intheir internal functioning and for controlling their sportsactivities for being eligible to receive government assistance.These guidelines, inter alia, laid down certain limits with regard totenure and age limit of principal office bearers of National SportsFederations, as follows :i) The President of any recognized National SportsFederation, including the IOA, can hold office for a maximum periodof twelve years with or without break.ii) The Secretary (or whatever other designation such asSecretary General or General Secretary by which he is referred to)and the Treasurer of any recognized National Sports Federation,including the Indian Olympic Association, may serve a maximum of twosuccessive terms of four years each after which a minimum cooling offperiod of four years will apply to seek fresh election to eitherpost.iii) The President, the Secretary and the Treasurer of anyrecognized National Sports Federation, including the IOA, shall ceaseto hold that post on attaining the age of 70 years. 4.2. These guidelines were earlier approved by the HighCourt of Delhi by its decision dated 2nd March,2010, in Civil WritPetition No.7868 of 2005, in the matter of Indian Hockey Federation.The SFI conducted election of its Office bearers at the AGM held inGoa on 15.06.2010 and while holding that election, the aforesaidguidelines of the Government were not followed by the SFI.Accordingly, SFI was issued a show-cause notice on 28.07.2010 by thefirst respondent to explain why the recognition granted to theFederation by the Government may not be withdrawn for not followingthe guidelines. The reply furnished by SFI dated 13.08.2010 indicatedthat the issues raised in the show-cause notice would be discussed inthe General Body Meeting of the Federation. Not satisfied with theexplanation of SFI, the first respondent issued a final show-causenotice to SFI on 24.02.2011, for its derecognition. In reply to thesaid final notice, SFI, by letter dated 28.02.2011, informed that ithad decided to convene the General Body Meeting in the month ofMarch,2011, to consider the points of the Government's guidelines andto incorporate the same in its constitution. It was further informedthat the Federation had accepted in principle the said guidelines anddecided to initiate action to implement the same before the end ofMarch,2011. Shortly thereafter, the Federation also sent a letterdated 10.03.2011, informing that it was convening its General BodyMeeting at Chennai on 26.03.2011 and that it had decided to holdfresh election of its office bearers as per the Government'sguidelines for the next term of four years. With that letter, a copyof the notice dated 04.03.2011, for holding of the AGM and a copy of https://hcservices.ecourts.gov.in/hcservices/ the circular dated 04.03.2011, issued by Advocate Vinay S.Borkar, inhis capacity as Returning Officer, laying down the procedure forholding of the election of office bearers and also laying down theschedule for that election was enclosed. On receiving the saidletter, dated 10.03.2011 from SFI, the first respondent appointedShri S.K.Mendiratta, its Legal Consultant, as the Government Observerfor the General Body Meeting of SFI to be held at Chennai on26.03.2011. The said Government Observer attended the General BodyMeeting of SFI at Chennai on 26.03.2011. The report of the GovernmentObserver will show that the declaration and publication of result ofelection of office bearers of SFI held on 26.03.2011 at Chennai waskept in abeyance, in view of this Court's interim order dated25.03.2011. In the conduct of the election of office bearers of SFIat Chennai on 26.03.2011, the SFI followed the aforesaid Governmentguidelines dated 01.05.2010. The petitioner herein duly participatedin that election, cast his vote and also remained present at the timeof counting of votes by the Returning Officer. Hence, this WritPetition may be dismissed.5. Second respondent has filed a counter, stating asunder :5.1. The Writ Petition is not maintainable primarily on theground that SFI is not a "State" within the meaning of Article 12 ofthe Constitution of India. SFI is a registered society under theWest Bengal Societies Registration Act and, therefore, not a State.Union of India does not have all pervasive control or completefinancial control over SFI. SFI is a self-regulated body. WritPetition is also not maintainable owing to the reason that 14 othercontestants (15 in all, including the writ petitioner) have not beenarrayed as respondents. SFI is governed by a set of bye-laws, whichis referred to as the Constitution of SFI. SFI consists of 27 units.As per the Constitution of SFI, six units have one vote each and theremaining 21 units have 2 votes each (6+42= 48 in all) for electing12 office bearers viz., one President, five Vice-Presidents, oneGeneral Secretary, four Joint Secretaries and one Treasurer.5.2. The Government of India, Ministry of Youth Affairs andSports, provides grant for various activities of SFI. Besides grant,there are several other support systems provided by the Government ofIndia. There are also other benefits such as railway concession,customs duty exemption for import of sports equipment for theathletes and for training, support for the coaching camps andinternational participation. SFI is recognized by the Government ofIndia for sports activity/discipline-Swimming. The Government ofIndia had sent a communication dated 11.11.2010 to SFI, calling forcertain clarifications and the same were given by SFI videcommunication dated 09.02.2011. Thereafter, the first respondentissued proceedings dated 24.02.2011 in which one aspect was conduct https://hcservices.ecourts.gov.in/hcservices/ of elections for electing above said 12 office bearers for SFI.Pursuant to the same, the second respondent issued an electionNotification dated 01.03.2011 and circulated the same to all theaffiliated units inter alia notifying that the third respondent wasappointed as the Returning Officer. As per the directions of thethird respondent, Returning Officer, the list of units and theaccredited members were duly hosted in the official website of SFI.Thereafter, the second respondent issued a Notification dated04.03.2011, convening the General Body Meeting of SFI on 26.03.2011and the same was communicated to all the units of SFI. The thirdrespondent, who was appointed as Returning Officer, in discharge ofhis duties, had issued a notification dated 04.032001, enclosing aproforma for proposal, election programme and nomination form. Thelast day for receiving nomination form was 20.03.2011 at 05.30 p.m.The scrutiny of nomination forms was done on 21.03.2011 as perschedule. The last date for withdrawal is 22.03.2011 at 02.00 p.m.The list of candidates in the fray was published on 22.03.2011 by05.00 p.m. On the whole, there were 15 contestants in the fray for 12posts/office bearers of SFI. With regard to President and Treasurer,there were only one nomination each and therefore on the publicationof the list of candidates on 22.03.2011, the two contestants for thepost/office bearer of President/Treasurer stood elected unopposed.Therefore, the election on 26.03.2011 in Chennai between 12.00 Noonand 01.30 p.m. was only for 5 Vice-Presidents (6 contestants), 1General Secretary (2 contestants) and 4 Joint Secretaries (5contestants). The election was by secret ballot. On 26.03.2011. atthe polling venue in Chennai, out of 48 electors, 47 were present andthey cast their votes for electing the office bearers. The entireprocess of polling and counting was done in the presence of thecontestants, including the writ petitioner. The calendar yearcommencing from 01.01.2011 is a Olympics qualifying year for the nextOlympic Games scheduled to be held in August 2012 in London.Therefore, there is no irregularity in the action of the respondents.6. Third respondent has also filed a counter, on similarlines with that of the second respondent.7. Learned Counsel for the petitioner would contend thatthere is no necessity to conduct the election for the office bearersof the Federation in haste; even as per the existing bye-laws 21clear days notice is required for conducting the General CouncilMeeting; the election scheduled to be held on 26.03.2011 is beingconducted without following the mandatory guidelines issued by theGovernment of India and also in violation of the bye-laws of theFederation and, therefore, the election proposed to be conducted byrespondents 2 and 3 is per se illegal, arbitrary, mala fide andcontrary to the established principles of democracy. In support ofhis contention, the learned counsel has relied upon the following https://hcservices.ecourts.gov.in/hcservices/ decision :Sun TV Limited, Chennai vs. Tata Sky Limited, New Delhi andanother, 2007 (5) MLJ 277, wherein this Court has held as under :"6. With regard to his contention that a part ofcause of action has arisen in Chennai by virtue of thefact that the first meeting towards settlement was held inChennai as per the direction of the Tribunal and that issufficient to maintain this writ petition on the aspect ofterritorial jurisdiction, the learned Senior Counsel forthe petitioner has placed reliance on a judgment of theSupreme Court reported in (2006) 6 SCC 207 in the case ofOm Prakash Srivastava vs. Union of India and another:(para 8)“Two clauses of Article 226 of theConstitution on plain reading give clearindication that the High Court can exercise powerto issue direction, order or writs for theenforcement of any of the fundamental rightsconferred by Part III of the Constitution or forany other purpose if the cause of action whollyor in part had arisen within the territories inrelation to which it exercises jurisdictionnotwithstanding that the seat of the Governmentor authority or the residence of the personagainst whom the direction, order or writ isissued is not within the said territories.”22.As far as the first point for consideration isconcerned, it is no doubt trite, as has been held by theSupreme Court in its catena of judgments, that even if afraction of a cause of action has arisen within theterritorial jurisdiction of a court, that is sufficientfor the court concerned to entertain a petition whichcannot be dismissed on the ground that the court does nothave territorial jurisdiction to deal with the saidpetition. In the instant case, admittedly, while thepetitioner is having its registered office in Chennai andcarrying on its business in Chennai, the first respondentis having its office in New Delhi and also the Tribunalwhich has passed the impugned orders is housed in NewDelhi. Mr. Habibulla Badsha, learned Senior Counsel forthe first respondent, by placing reliance on the judgmentreported in AIR 1997 SC 1125 (supra) has vehementlycontended that since the Tribunal is located in Delhi, the https://hcservices.ecourts.gov.in/hcservices/ present petitions which have been filed before this Courtand that too before a Single Judge, cannot be maintainedon account of lack of territorial jurisdiction by thisCourt. While attacking this contention of Mr. HabibullahBadsha, Mr. P.S. Raman has contended that the judgmentrelied on by the former cannot be made applicable to thefacts of this case since the Tribunal is not a bodyinstituted under Article 323A or 323B of the Constitutionbut under a statute and this reply given by Mr. Ramansounds to be convincing. Further, it is to be seen thatthe reach of the package offered by the petitioner is notrestricted to one particular area only. Rather, it isgoing to have a nation-wide coverage. That apart, as perthe direction of the Tribunal, the petitioner and thefirst respondent have also held a meeting in Chennai tocome to an amicable settlement, but in vain and this isnot disputed by the first respondent. In this case, thepetitioner has pleaded every aspect of cause of action andthe facts pleaded do have some nexus and relevance withthe issue involved in this case. Moreover, the ultimaterelief if it is granted, it will have an effect of givingsignals from the channels owned by Sun TV. Therefore,there is at least a part of cause of action which doesoffer jurisdiction to this Court as per clause 2 of theArticle 226 of the Constitution of India."8. On the other hand, Mr.R.Muthukumarasamy, learned SeniorCounsel for the second respondent, would contend that this WritPetition is not maintainable, as the Federation is a society,registered under the West Bengal Societies Registration Act, and itis not a State within the meaning of Article 12 of the Constitutionof India; the year 2011 is a Olympics qualifying year for the nextOlympic Games scheduled to be held in August 2012 in London; theentire process of election was done only as per the procedure and inthe presence of the contestants, including the writ petitioner, and,therefore, there is no irregularity in the action of the respondents.He would rely upon on the following Supreme Court decisions:(i) State of Assam vs. Ajit Kumar Sarma, 1965 (1) SCR 890 :"12.The main question which falls for decision in thisappeal is whether the High Court is right in issuing a writof mandamus to the State through the Director directing itnot to give effect to the letter of March 20, 1962. It hasnot been contended on behalf of the appellants that theRules have no statutory force and are mere executiveinstructions given by the Government to private colleges asa condition for the implementation of pay scales etc.recommended by the University Grants Commission for private https://hcservices.ecourts.gov.in/hcservices/ colleges, these scales being apparently higher than thoseexisting from before. It seems to us that the High Courtwas in error in granting a writ of mandamus against theState through the Director once it found that the Rules hadno statutory force and were mere administrativeinstructions for the purpose of giving grant-in-aid toprivate colleges. What grants the State should make toprivate educational institutions and upon what terms arematters for the State to decide. Conditions of these grantsmay be prescribed by statutory rules; there is however nolaw to prevent the State from prescribing the conditions ofsuch grants by mere executive instructions which have notthe force of statutory rules. ... Where such conditions ofgrant-in-aid are laid down by mere executive instructions,it is open to a private college to accept thoseinstructions or not to accept them. If it decides not toaccept the instructions, it will naturally not get thegrant-in-aid which is contingent on its accepting theconditions contained in the instructions. On the otherhand, if the college accepts the conditions contained inthe instructions, it receives the grant-in-aid. If howeverhaving accepted the instructions containing the conditionsand terms, the college does not carry out the instructions,the Government will naturally have the right to withholdthe grant-in-aid. That is however a matter between theGovernment and the private college concerned. Suchconditions and instructions as to grant-in-aid confer noright on the teachers of the private colleges and theycannot ask that either a particular instruction orcondition should be enforced or should not be enforced. Itis only for the Governing Body of the College to decidewhether to carry out any direction contained in mereadministrative instructions laying down conditions forgrant-in-aid. Further it is open to the Governing Body notto carry out any such instruction which is not based onrules having statutory force, and it will then be naturallyopen to the State to consider what grant to make. But ifthe Governing Body chooses to carry out the instruction, itcould hardly be said that the instruction was being carriedout under any threat. It is certainly not open to ateacher to insist that the Governing Body should not carryout the instruction. The rules for the purpose of grant-in-aid being – as in this case – merely executiveinstructions confer no right of any kind on teachers andthey cannot apply to the High Court for a mandamus askingfor the enforcement or non-enforcement of the rules, evenif indirectly there may be some effect on them because ofthe grant-in-aid being withheld in whole or in part. Such https://hcservices.ecourts.gov.in/hcservices/ mere administrative instructions even though called rulesare only a matter between the Governing Body and the Statethrough the Director and cannot in our opinion form thebasis of a petition for writ under Article 226 by ateacher. "(ii) Cyril E.Fernandes vs. Sr.Maria Lydia and others, 1977 (4 )SCC 94 : "4. The main contention of Mr R.K. Garg for the appellanthas been that the Judicial Commissioner was in error in issuing awrit to enforce the provisions of the grant-in-aid code which haveno statutory force. We do not think it is a question which can beraised in this appeal at the instance of the teacher. The writpetition questioned the validity of the direction on the managementof the school to reinstate the teacher and the stoppage of the grant-in-aid as a penal measure when the management declined to comply withthat direction. The authorities who were responsible for making theimpugned orders and against whom the writ has gone, have notappealed. The dispute was between the management of the school andthe Government relating to some of the rights and obligations theyhave against each other under the grant-in-aid code; the teacher,termination of whose services gave rise to this dispute, wasimpleaded as a proper party in the writ petition. The scope of theappeal is limited to what the judgment contains by which theappellant can be said to be aggrieved. A person can claim to beaggrieved if his legal rights are directly affected. In State ofAssam v. Ajit Kumar Sharma1 this Court observed:“Where such conditions of grant-in-aid are laid down by mereexecutive instructions, it is open to a private college to acceptthose instructions or not to accept them. If it decides not toaccept the instructions it will naturally not get the grant-in-aidwhich is contingent on its accepting the conditions contained inthe instructions. On the other hand, if the college accepts theconditions contained in the instructions, it receives the grant-in-aid. If however having accepted the instructions containing theconditions and terms, the college does not carry out theinstructions, the Government will naturally have the right towithhold the grant-in-aid. That is however a matter between theGovernment and the private college concerned. Such conditions andinstructions as to grant-in-aid confer no right on the teachers ofthe private colleges and they cannot ask that either a particularinstruction or condition should be enforced or should not beenforced.”On the authority of State of Assam v. Ajit Kumar Sharma it is clearthat the appellant is not directly concerned with the question https://hcservices.ecourts.gov.in/hcservices/ whether the rules in the grant-aid code conferred on the managementof the school an enforceable right against the Government which isentirely a matter between the management and the Government. Theappellant who has no say in the matter cannot challenge the findingon the point. The question as to the enforceability of the grant-in-aid code does not thus arise in this appeal and we express no opinionon it. The scope of the appeal must therefore be limited to whatdirectly concerns the appellant in the impugned judgment. TheJudicial Commissioner has held that this was a case of termination ofservice under Rule 74(2) which does not require a regular enquiry asin a case to which Rule 74(3) is applicable. In spite of thisfinding, the judgment contains some remarks like “the behaviour ofthe fifth respondent was immodest and immoral” and that though anopportunity was given to him to answer the charges levelled againsthim, he did not avail of that opportunity. There has been no properenquiry to find out the truth of the allegations against theappellant; indeed, there was no occasion for any such enquiry as theappellant's services were terminated by applying Rule 74(2) of thegrant-in-aid code. We hold that the remarks on the conduct of theappellant are unjustified and should not have been made. Subject tothis, the appeal is dismissed. We express no opinion as to whetheron the facts of the case the appellant has any legal claim againstthe management of the school; if he has, he is free to enforce it inan appropriate forum."(iii) Narendra Kumar Maheshwari vs. Union of India, AIR1989 SC 2138 :"107. We would also like to refer to one more aspect ofthe enforceability of the guidelines by persons in theposition of the petitioners in these cases. Guidelines areissued by governments and statutory authorities in varioustypes of situations. Where such guidelines are intended toclarify or implement the conditions and requirementsprecedent to the exercise of certain rights conferred infavour of citizens or persons and a deviation therefromdirectly affects the rights so vested the persons whoserights are affected have a clear right to approach thecourt for relief. Sometimes guidelines control the choiceof persons competing with one another for the grant ofbenefits, largesses or favours and, if the guidelines aredeparted from without rhyme or reason, an arbitrarydiscrimination may result which may call for judicialreview. In some other instances (as in the Ramana Shettycase1), the guidelines may prescribe certain standards ornorms for the grant of certain benefits and a relaxationof, or departure from, the norms may affect persons, not https://hcservices.ecourts.gov.in/hcservices/ directly but indirectly, in the sense that though they didnot seek the benefit or privilege as they were not eligiblefor it on the basis of the announced norms, they might alsohave entered the fray had the relaxed guidelines been madeknown. In other words, they would have been potentialcompetitors in case any relaxation or departure were to bemade. In a case of the present type, however, theguidelines operate in a totally different field. Theguidelines do not affect or regulate the right of anyperson other than the company applying for consent. Themanner of application of these guidelines, whether strictor lax, does not either directly or indirectly, affectthe rights or potential rights of any others or deprivethem, directly or indirectly, of any advantages or benefitsto which they were or would have been entitled. In thiscontext, there is only a very limited scope for judicialreview on the ground that the guidelines have not beenfollowed or have been deviated from. Any member of thepublic can perhaps claim that such of the guidelines asimpose controls intended to safeguard the interests ofmembers of the public investing in such public issuesshould be strictly enforced and not departed from;departure therefrom will take away the protection providedto them. The scope for such challenge will necessarily bevery narrow and restricted and will depend to aconsiderable extent on the nature and extent of thedeviation. For instance, if debentures were issued whichprovide no security at all or if the debt-equity ratio is6000: 1 (as alleged) as against the permissible 2:1 (orthereabouts) a court may be persuaded to interfere. Acourt, however, would be reluctant to interfere simplybecause one or more of the guidelines have not been adheredto even where there are substantial deviations, unless suchdeviations are, by nature and extent such as to prejudicethe interests of the public which it is their avowed objectto protect. Per contra, the court would be inclined toperhaps overlook or ignore such deviations, if the objectof the statute or public interest warrant, justify ornecessitate such deviations in a particular case. This isbecause guidelines, by their very nature, do not fall intothe category of legislation, direct, subordinate orancillary. They have only an advisory role to play and non-adherence to or deviation from them is necessarily andimplicitly permissible if the circumstances of anyparticular fact or law situation warrants the same.Judicial control takes over only where the deviation eitherinvolves arbitrariness or discrimination or is sofundamental as to undermine a basic public purpose which https://hcservices.ecourts.gov.in/hcservices/ the guidelines and the statute under which they are issuedare intended to achieve.9. Mr.M.Ravindran, learned Additional SolicitorGeneral of India, has relied on a decision of this Court dated13.10.2009 made in the case of A.Rajaram vs. State of Tamil Nadu,wherein, it is held as follows :"9. In this context, it is necessary to refer tothe judgment of the Supreme Court in Election Commissionof India vs. Dr.Subramaniam Swamy reported in (1996) 4SCC 104. The extreme example pointed out by the SupremeCourt as found in paragraph 16 extracted hereunder is notavailable to the case of the first respondent herein. Wemust have a clear conception of doctrine. It is wellsettled that the law permits certain things to be done asa matter of necessity which it would otherwise notcountenance on the touchstone of judicial propriety.State differently, the doctrine of necessity makes itimperative for the authority to decide and considerationsof judicial property must yield. It is often invoked incases of bias where there is no other authority or Judgeto decide the issue. If the doctrine of necessity is notallowed full play in certain unavoidable situations, itwould impede the course of justice itself and thedefaulting party would benefit therefrom. Take the caseof a certain taxing statute which taxes certainperquisites allowed to Judges. If the validity of such aprovision is challenged who but the members of thejudiciary must decide it. If all the Judges aredisqualified on the plea that striking down of such alegislation would benefit them, a stalemate situation maydevelop. In such cases the doctrine of necessity comesinto play. If the choice is between allowing a biasedperson to act or to stifle the action altogether, thechoice must fall in favour of the former as it is theonly way to promote decision-making. In the present casealso, if the two Election Commissioners are able to reacha unanimous decision, there is no need for the ChiefElection Commissioner to participate, if not the doctrineof necessity may have to be invoked."10. I have heard the learned counsel for the parties andalso given my thoughtful consideration to their submissions. https://hcservices.ecourts.gov.in/hcservices/

11. This Writ Petition requires adjudication on two aspectsviz., (i) maintainability and (ii) merit. The question of going intothe second aspect arises only if the Writ Petition succeeds on thefirst point. Therefore, let me first examine, whether the WritPetition is maintainable ?12. It is not in dispute that the Federation is a society,registered under the West Bengal Societies Registration Act,1961, andits internal functioning and the conduct of the day-to-day affairsare governed by its own constitution and a set of bye-laws madethereunder. At the same time, it is also not debated that the saidFederation is getting several financial grants, benefits andconcessions from the Government of India. Therefore, the firstrespondent is under a constitutional obligation to ensure that theFederation, which avails a number of benefits and concessions fromthe Government, discharges its duties effectively and follows higheststandards of good governance in the management of respective sportscontrolled by it as well as in the management of its own internalaffairs. As such, the Federation is a "State", within the meaning ofArticle 12 of the Constitution of India. That apart, the petitioneris a Member of the Haryana Swimming Association, having residence atKarnal, Haryana, and has come down to Chennai, armed with a letter ofauthorisation by the General Secretary of the Association, as adelegate to participate in the election process to be held inChennai. Respondent 1 being the Union of India; second respondenthaving its headquarters at Calcutta and its members spread all overthe country, including Chennai, and the entire election processhaving been scheduled, held and concluded in Chennai, cause of actionarose within the territorial jurisdiction of this Court. Hence, thisWrit Petition is maintainable.13. Coming to the second point of merit, on going throughthe entire records, what transpires is that on 01.05.2010, the firstrespondent circulated to all National Sports Federations, includingSFI, a set of standard guidelines to be followed by them in theirinternal functioning and for controlling their sports activities forbeing eligible to receive government assistance. The guidelines,inter alia, laid down certain limits with regard to tenure and agelimit of principal office bearers of National Sports Federations. Theguidelines were framed, following the direction of the High Court ofDelhi, in the matter of Indian Hockey Federation. The SFI conductedelection of its Office bearers at the AGM held in Goa on 15.06.2010and while holding that election, the aforesaid guidelines of theGovernment were not followed by the SFI. Accordingly, SFI was issueda show-cause notice on 28.07.2010 by the first respondent to explainwhy the recognition granted to the Federation by the Governmentshould not be withdrawn for not following the guidelines. The replyfurnished by SFI dated 13.08.2010 indicated that the issues raised in https://hcservices.ecourts.gov.in/hcservices/ the show-cause notice would be discussed in the General Body Meetingof the Federation. Not satisfied with the explanation of SFI, thefirst respondent issued a final show-cause notice to SFI on24.02.2011, for its derecognition. In reply to the said finalnotice, SFI, by letter dated 28.02.2011, informed that it had decidedto convene the General Body Meeting in the month of March,2011, toconsider the points of the Government's guidelines and to incorporatethe same in its constitution. It was further informed that theFederation had accepted in principle the said guidelines and decidedto initiate action to implement the same before the end ofMarch,2011. Shortly thereafter, the Federation also sent a letterdated 10.03.2011, informing that it was convening its General BodyMeeting at Chennai on 26.03.2011 and that it had decided to holdfresh election of its office bearers as per the Government'sguidelines for the next term of four years, for which purposeMr.Vinay S.Borkar was appointed as the Returning Officer. With thatletter, a copy of the notice dated 04.03.2011, for holding of the AGMand a copy of the circular dated 04.03.2011, issued by the ReturningOfficer, laying down the procedure for holding of the election ofoffice bearers and also laying down the schedule for that electionwas also enclosed. On receiving the said letter, dated 10.03.2011from SFI, the first respondent appointed Shri S.K.Mendiratta, itsLegal Consultant, as the Government Observer for the General BodyMeeting of SFI to be held at Chennai on 26.03.2011. The saidGovernment Observer attended the General Body Meeting of SFI atChennai on 26.03.2011.In the election on 26.03.2011, thepetitioner herein duly participated, cast his vote and also remainedpresent at the time of counting of votes by the Returning Officer.Post polling, when the counting was under way, the petitioner, whowas one of the contestants for the office of General Secretary,circulated a photo copy of the order of this Court dated 25.03.2011,as per which, the election shall go on, but the results shall not bepublished until further orders from this Court. It means, even thisCourt on 25.03.2011, had not stayed the election and, instead, thesaid election was allowed to go on. The only observation made bythis Court was that the result of the said election should not bepublished until further orders. The entire process of polling andcounting was done in the presence of the contestants. Moreover, thesaid process was monitored by two observers, one appointed by thefirst respondent and the other by the Indian Olympics Association. Itis also significant to note that the observer appointed by the firstrespondent is a Legal Consultant of the Election Commission of India.14. The writ petitioner had participated in the electionand the entire electoral proceedings. He was personally present forscrutiny throughout polling and at the time of counting andtabulation of votes polled. In the given situation, he filed the writpetition at the eleventh hour, with an oblique motive, apparently https://hcservices.ecourts.gov.in/hcservices/ knowing that he had no chance of succeeding in the election. Theelection process was undertaken by the second respondent in view ofthe fact that the year 2011 is a Olympics Qualifying Year for thenext Olympic Games scheduled to be held in August,2012, at London.15. Law permits certain things to be done as a matter ofnecessity, which it would otherwise not countenance on the touchstoneof judicial propriety. Stated differently, the doctrine of necessitymakes it imperative for the authority to decide and considerations ofjudicial propriety must yield. It is often invoked in cases of biaswhere there is no other authority or Judge to decide the issue. Ifthe doctrine of necessity is not allowed full play in certainunavoidable situations, it would impede the course of justice itselfand the defaulting party would benefit therefrom. In such cases, thedoctrine of necessity comes into play. At the same time, if thechoice is between allowing a biased person to act or to stifle theaction altogether, the choice must fall in favour of the former as itis the only way to promote decision-making. This is the law laid downby the Supreme Court in Election Commission of India v. Dr.Subramaniam Swamy, (1996) 4 SCC 104. In the present case also, asalready stated above, the election process was undertaken by thesecond respondent in view of the fact that the year 2011 is aOlympics Qualifying Year for the next Olympic Games scheduled to beheld in August,2012, at London.16. It is also seen that in the recently concludedCommonwealth Games,2010, at New Delhi, 22 Indian swimmers came up tosemi-finals stage and 15 came up to finals. In the Asian Games 2010held at Gaunshou too, an Indian swimmer won the Bronze Medal and forthe first time put India in the international map in swimmingdiscipline. Therefore, if the interim order of keeping in abeyancethe publication of results is continued, it will amount to scuttlingthe young and talented swimmers, who are potential olympians, fromthe Olympic Games, and putting the country's pride at stake.17. In addition, on 01.03.2011, the second respondentissued a Notification to all affiliated Units of SFI and NationalSwimming Association, stating that as per the Ministry of YouthAffairs & Sports, Government of India guidelines and as directed byPresident, Swimming Federation of India, it had been decided toconduct the election of Office Bearers of Swimming Federation ofIndia on 26th March,2011, at Chennai, followed by General Body Meetingof the Federation. It was also stated therein that AdvocateMr.Vinayak Borkar was appointed as the Returning Officer to conductthe election process and he would send all necessary documents to allthe units for the same. Following that, the third respondent, whowas appointed as Returning Officer, in discharge of his duties, had https://hcservices.ecourts.gov.in/hcservices/ sent a communication, dated 04.03.2001, to the Haryana SwimmingAssociation, regarding the election, enclosing a proforma forproposal, election programme and nomination form. The last day forreceiving nomination form was 20.03.2011 at 05.30 p.m. The scrutinyof nomination forms was done on 21.03.2011 as per schedule. The lastdate for withdrawal was 22.03.2011 at 02.00 p.m. The list ofcandidates in the fray was published on 22.03.2011 by 05.00 p.m. Asthe Notification was dated 01.03.2011 and the subsequentcommunication was dated 04.03.2011 for the election dated 26.03.2011,it is clear that 21 clear days notice was given to the HaryanaSwimming Association. All the above events would indicate that theaction of the respondents in conducting the election coupled with theprocedure followed therefor does not suffer from any illegality,arbitrariness or mala fides, as contended by the learned counsel forthe petitioner. Therefore, the contention of the learned counsel forthe petitioner that there was no 21 clear days notice for theelection and the General Body Meeting is not correct. 18. Another contention of the learned counsel for thepetitioner is that the guidelines issued by the Union of India are infurtherance of the implementation of the direction of the Delhi HighCourt and, therefore, it is mandatory on the part of the secondrespondent to incorporate the same, pursuant to which only they canproceed with the election process. It is also his contention that theguidelines aim at removing some discrepancies in the existing andunending period of continuance of office of some office bearers inthe bye-laws and, when that being the position, the existing bye-lawsof the second respondent will have adverse impact on the functioningof the Federation.19. The said contentions have been refuted by the learnedSenior Counsel for the second respondent, stating that the Federationis governed by the provisions of the Act and bye-laws made thereforand as long as the bye-laws are not in conflict with the guidelines,the respondent can always proceed with the election process.Further, he would contend that the second respondent is inclined toincorporate the guidelines in the bye-laws, for which it may takesome time. 20. To examine the above position, it is to be seen thatthe directions issued by the Delhi High Court have been taken intoconsideration by the Government of India and, accordingly, theyissued instructions under Article 73 of the Constitution of India.Any executive instruction is binding on the institution under thecontrol of Union of India and also it is incumbent upon aninstitution which depends on the funds and has regulatory mechanismof the Union of India to follow the guidelines and apply to its rulesand regulations. In this regard, a stand has been taken by thesecond respondent that the provisions of the Act, Rules and Bye-laws https://hcservices.ecourts.gov.in/hcservices/ are not in conflict with the guidelines, but, however, they wouldadopt the same in the course of time, and, as there was a compellingcircumstance, which they explained to the Union of India, the firstrespondent had agreed for the conduct of the election and sent anobserver to the election process.21. It is true, incorporation of the guidelines isnecessary to every member/unit of the association, but it cannotcompel the second respondent Federation to first incorporate andthereafter only proceed with the election, particularly when theUnion of India itself, though initially had issued show-cause noticeto the Federation, has impliedly consented for the conduct of theelection pre-incorporation and sent an observer thereto. It is notfor the individual member to stand on the technicality to stall thefunctioning of the Federation, when the entire process is to becarried out to tide over the international obligations and also whenthe selection process is to be completed within the time frame inorder to send various athletes and other sportspersons forparticipation in the Olympic Games. 22. Sports and games have been widely recognised as anessential ingredient of Human Resource Development. The Governmentof India attaches considerable importance to development of sports ingeneral and achieving excellence in Olympics and other internationalevents in particular. It is the endeavour of the Government tostreamline the procedures for effective coordination among variousagencies involved in promotion of sports and extend requiredinfrastructure, training and other facilities to the sportspersonsfor achieving excellence in the international events.23. In order to foster and promote international relationsand also to maintain just and honourable relations among the nations,guidelines have been framed and followed by the Federations fordecades together. With that aim, the Federations are makingselection process of the teams for their participation in the ensuingOlympic Games. Therefore, the aims and objectives of the Union ofIndia, National Sports Federations, Indian Olympics Association aswell as SFI are the matters for great concern. 24. Viewed at from that angle, in the case on hand, at atime when the process is undergone by the second respondentFederation in a circumstance of necessity to prepare themselves forthe ensuing Olympic Games by concluding the election to its officebearers and the publication of results awaited, this Court is of theconsidered opinion that the claim of the petitioner for quashing theaction of the respondents 2 and 3 in conducting the election woulddefinitely defeat the above very object. Therefore, there is no meritin the claim of the petitioner and the Writ Petition deserves https://hcservices.ecourts.gov.in/hcservices/ dismissal and the same is, accordingly, dismissed, with a directionto the third respondent to publish the results. If at all thepetitioner has any grievance, it is open for him to approach theHaryana Swimming Association, which is the competent authority totake up the matter with the appropriate forum, but not he, inindividual capacity. It is needless to say that the second respondentis entitled for grants from the first respondent, only subject tocompliance of the guidelines.25. To sum up, while answering the point ofmaintainability in favour of the petitioner, this Writ Petition isdismissed on merit, with the above observations and direction. Nocosts. Consequently, the connected M.P.Nos.2 and 3 of 2011 areclosed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.dixitTo1.The Secretary to Government, Union of India, Ministry of Youth Affairs and Sports, Department of Sports, Govt.of India, Shastri Bhawan, New Delhi-110 001.2.The General Secretary, Swimming Federation of India, "Krishna Villa" 128, Paraskunj Society-1, Satellite Road, Ahmedabad-380 015.1 cc to Mr.A.P. Jayapratap, Advocate, sr. 401234 ccs to Mr. Manishundar Gopal, Advocate, Sr. 404771 cc to Mr.L. Muralikrishnan, Advocate, Sr. 40124 W.P.No.7938 OF 2011SGL (CO)kk 26/7