Legal Awareness & Information.

Sportsmen Preference Not Absolute: Punjab & Haryana HC Upholds Dismissal of Plea Despite Ad Omission

Chandigarh: The Punjab and Haryana High Court, in a significant ruling, has held that a preference clause for sportsmen in recruitment rules does not grant an absolute right to appointment over more meritorious candidates if their marks are not equal. The Court dismissed an appeal by Harvinder Singh Nain , who challenged his non-selection for the post of Assistant Superintendent Jails, arguing that a preference for sportsmen under Rule 6, Note 1 of the Punjab Jails Department State Service (Class-III Executive) Rules, 1963, was wrongly omitted from the recruitment advertisement.

The Division Bench, comprising Justice Deepak Sibal and Justice Sukhvinder Kaur , delivered the judgment on August 23, 2023, in LPA No. 680 of 2022, upholding the Single Judge's decision dated August 3, 2022, which had dismissed Nain 's writ petition (CWP No. 15076 of 2022).

Case Background

Harvinder Singh Nain , a national-level cricketer, applied for the post of Assistant Superintendent Jails advertised by the Haryana Public Service Commission (HPSC) on July 6, 2020. The advertisement, however, did not mention Note 1 to Rule 6 of the 1963 Rules, which stipulates that "Preference will be given to those persons who are sportsmen and are otherwise eligible for appointment in accordance with the provisions of these Rules."

Nain participated in the selection process but was unsuccessful. He subsequently challenged the selection, primarily contending that the omission of the sportsmen preference clause in the advertisement was erroneous and that he, being an outstanding sportsperson, should have been given preference.

Arguments Presented

Appellant's Contentions ( Harvinder Singh Nain ): * The HPSC committed an error by not including the sportsmen preference clause ( Note 1 to Rule 6) in the advertisement. * As an outstanding sportsperson, he was entitled to preference, arguing that sportsmen often cannot be expected to be as academically outstanding due to their commitment to sports. * The post of Assistant Superintendent Jails is "essentially carved out" for sportsmen. * Vacant posts were still available, and his candidature should be considered.

Respondents' Contentions (State of Haryana & HPSC): * While admitting the omission of Note 1 to Rule 6 from the advertisement, they argued that the appellant was estopped from challenging the selection process at a belated stage. * Nain had participated in the selection process without protest and only challenged it after the results were unfavorable, citing Madan Lal and others vs. State of J&K and others . * The appellant's total score (34.06 marks) was significantly lower than the last selected candidate in the General Category (55.22 marks). * The records of the selection process were reportedly destroyed by the Haryana Staff Selection Commission (HSSC) after the prescribed retention period, as per an affidavit.

High Court's Analysis and Reasoning

The High Court meticulously examined the relevant rules and precedents. It acknowledged that the HPSC was legally obliged to include Note 1 of Rule 6 in the advertisement and that its omission was an admitted error.

However, the Bench invoked the principle of estoppel by conduct , stating: > "Even otherwise advertisement Annexure P-1 inviting the applications for appointment to the above-referred post was issued on 06.07.2020... However, there is nothing on the record to show that the appellant had ever challenged the non-inclusion of Note -1 of Rule 6... throughout during the above-mentioned period of almost two years... It being so, he cannot be allowed to raise the afore-said plea or to challenge the entire selection process on subsequently finding that the result did not favour him."

Crucially, the Court interpreted the scope of "preference" under Note 1 to Rule 6. It clarified that such preference is applicable only when candidates have secured equal marks . > "...the element of preference as envisaged under Note -1 of Rule 6 is to be applied only in the eventuality when two or more candidates have equal scores and only one is supposed to be chosen out of them."

The Court cited Bedanga Talukdar vs. Saifudaullah Khan and others , (2011) 12 SCC 85, which emphasizes that selection criteria must be prescribed in advance and advertised. However, it distinguished the current case by noting that the rule itself provided for preference, but its omission from the advertisement did not ultimately prejudice the appellant due to his significantly lower marks. The appellant secured 34.06 marks, whereas the last selected candidate in his category scored 55.22 marks.

The judgment highlighted: > "Undisputedly, the appellant secured 34.06 marks in aggregate... whereas the last selected candidate in General Category under which the candidature of the appellant also falls, secured 55.22 marks. Thus, there is a considerable difference between the marks obtained by them... In such circumstances, if the appellant is granted the relief... there is every possibility that the candidates who had secured the marks lesser than the last selected candidate but higher than those of the appellant... may get deprived..."

The Court concluded that no prejudice was caused to the appellant by the omission of Note 1 in the advertisement, as he would not have benefited from the preference clause given his lower score.

The Verdict

Finding no cogent or valid reason to interfere with the impugned judgment, the High Court dismissed the appeal. The Court held that even if the preference clause had been included in the advertisement, the appellant, due to his significantly lower marks compared to the selected candidates, would not have been selected.

This judgment reiterates the principle that candidates who participate in a selection process without protest are generally estopped from challenging its terms later if unsuccessful. It also provides a clear interpretation of "preference" clauses in recruitment, limiting their application to situations of equal merit.