TARA VITASTA GANJU, J.:
TABLE OF CONTENTS
Preface……………………
Brief Background………………
Submissions of the Petitioner………………
Submissions of the Respondent/Federation......…
Submissions of the Respondent/UOI.....………
Issue Involved.....................
Analysis and Findings..........
Directions............................
PREFACE
CM Appl. 22593/2023 [Application seeking interim relief]
1. The Petitioner has filed the present Petition challenging the Minutes of Meeting dated 20.02.2023 held between the office bearers of the Respondent/Equestrian Federation of India [hereinafter referred as “Respondent/Federation”] and members of the Committee of Experts, in so far it seeks to draw an artificial distinction in the disciplines of Eventing and Dressage qua funding of the participants. Challenge has also been made to an email dated 17.04.2023 which sets out the schedule for participation of the “Probables” selected for the discipline of Dressage for the 19th Asian Games which are going to be held at Hangzhou, China from 23.09.2023 to 08.10.2023 [hereinafter referred as the “Asian Games”]. Directions have also been sought for funding on an urgent basis for leasing of an alternative horse and training of the Petitioner in Europe.
1.1 The Petitioner has impugned the acts of Respondent/Federation wherein, they have sought to foist the responsibility of funding, training and participation on the Petitioner herein. The Petitioner has, in the alternative, also prayed to direct the Respondent/Federation to consider the route of Petitioner's horse 'Escobar' through the United States of America and to take necessary steps in this regard.
2. The Petitioner contends that despite being the National Champion in the specialized field of Dressage for the past two consecutive years, he is actively being denied the logistical and financial wherewithal to appear in the selection process for the upcoming Asian Games. The Petitioner submits that he has qualified in the selection trials held by the Respondent/Federation under both the Selection Criteria Version-III as well as Selection Criteria Version-V [hereinafter referred to as “Criteria V3” and “Criteria V5”].
3. During the pendency of this Petition, the Petitioner approached this Court seeking ad-interim urgent relief by way of this Application. The prayers as sought in this Application read as follows:
"(a) Direct the Respondents to include the Applicant in the long list of probable players to be submitted to the International Olympic Association;
(b) Direct the Respondents to permit the Applicant to participate in the trials scheduled for 15.06.2023 to 18.06.2023 at Austria, as if the same were his 1st trial for the purposes of eligibility in terms of the email dated 17.04.2023;
(c) Direct the Respondent Federation to consider any additional venue for trials by the Applicant in the months of June/July, 2023, for the purpose of participating in 3 trials; and
(d) Pass any further or other orders as this Hon'ble Court may deem fit and appropriate in the facts and circumstances of the present case."
4. By order dated 20.05.2023 this Court, allowed Prayer (a) of the Application for the reasons as reproduced in the said order, directing the Respondent/Federation to include the name of the Petitioner in the Long List of Probables which had to be sent to the Federation Equestrian Internationale [hereinafter referred as the "FEI"].
BRIEF BACKGROUND
5. The 19th Asian Games were originally scheduled to be held in Hangzhou, China in 2022 between 10.09.2022 to 25.09.2022. The Equestrian team to represent India is selected approximately one year before the games in order to ensure that the selected team gets adequate amount of time to train for the Games. The Equestrian events include Dressage, Show-Jumping and Eventing.
5.1 It is averred that the Petitioner has been training in the equestrian field since 2007 and has been a National Champion in the specialized field of Dressage, for the past two consecutive years.
5.2 On 19.03.2021, the Respondent/Federation issued Notice inviting Applications for the selection trials that were to be conducted for the Asian Games between 01.09.2021 and 15.05.2022. The said Notice enclosed specific guidelines for the selection of participants for the Asian Games termed as Criteria V3. Clause 6 of the Criteria V3 provided that both the Horse and the Rider will be considered as a combination and that each rider will be allowed to participate in a maximum of 5 trials as follows:
“6. Horse and Rider Combination. For the purpose of selection for Asian Games 2022, the horse and rider as a combination will be considered. Each rider will be allowed to participate in a maximum of five trials or such fewer numbers as the individual may decide. A rider may participate in these trials in any discipline on more than one horse without any upper limit on the number of horses.”
5.3 Thereafter, another Notice was issued by the Respondent/Federation for selection trials, to be held between 15.08.2022 and 15.02.2023 by introducing a new Selection Criteria termed as V4 or Version 4.
5.4 The Respondent/Federation then issued another Notice on 17.08.2022 setting forth yet another Selection Criteria–termed as V5 or Version 5. It is this Version (V5), which is applicable at present for selection and training by the Respondent/Federation.
5.5 The Petitioner has averred that the principal difference between Criteria-V3 and V5, was that in Criteria V5, the Horse-Rider Combination needed to participate in 4 competitions whereas in Selection Criteria V3, they were required to participate in 5 competitions. Both Criteria further require that the condition of best of 3 attempts as the Minimum Eligibility Requirement (“MER”).
5.6 On 20.02.2023, the Respondent/Federation conducted a Meeting of Committee of Experts [hereinafter referred to as "20.02.2023 meeting"] wherein a merit list of Horse-Rider Combinations was prepared and the Petitioner was placed at the 2nd position of a total of 6 participants shortlisted. It is contended by the Petitioner that he was placed at the 2nd position as his individual scores in the trial were deliberately omitted. This was, however, only the beginning of the "step-motherly" treatment by the Respondent/Federation qua the Petitioner, it is averred.
5.7 It is also the case of the Petitioner that the 20.02.2023 meeting prioritized allotment of funds for the Equestrian discipline of Eventing, however, with regard to the discipline of Dressage, it was decided that the funding would commence after the day when the team enters Pre–Export Quarantine (PEQ) phase in Aachen, Germany and move to the Asian Games location and back.
5.8 Although the Petitioner comes from a family of riders, it is averred that the Petitioner does not come from a family of means. The Petitioner, unlike the other Probables was short-listed in the 20.02.2023 meeting, was unable to expend the enormous costs that are entailed in training in Europe, and hence, for the purposes of Asian Games, he was training in India on his horse 'Escobar'. It is averred that the other Probables in the disciple of Dressage possessing the financial means and wherewithal were training in different countries abroad.
5.9 On 19.03.2023, the Petitioner was sent an email by the Respondent/Federation inter-alia informing him that he is required to lease a suitable Dressage Horse through a foreign coach expert in Europe and start his training. It was stated therein that in the event of funds being received from Sports Authority of India, Respondent/Federation would support the Petitioner towards his training and leasing of suitable Dressage horse abroad. The email dated 19.03.2023 states:
“1. We wish to inform you that we have projected for funds to MYAS through SAI for the purpose of training and exposure in FEI events as our preparation for the 19th Asian Games till the finally selected horses by EFI move into PEO.
2. We request rider based abroad to continue to train on your horse which are based in Europe or lease a better horse.
3. For those rider based in India who had achieved requisite MER to be a probable we suggest you to explore the possibility of leasing a suitable Dressage Horse through your foreign coach/expert in the said discipline and start your training. In case funds are received by the federation from MYAS, the NF shall support you or else this arrangement will be at no cost to EFI. It is also pertinent to note that no payments will be made to you on account of hiring of coach either by Govt. authorities or by this NF at any stage of training prior and during the Asian Games please.
4. The said Horse can move after undergoing 7 days Pre Export Quarantine (PEQ) in Aachen, Germany as stipulated by HAGOC and then move to China if the combination is finally selected based on a few FEI events in which your participation is mandated by EFI which will be intimated in due course. "
[Emphasis supplied]
5.10 It is contended by the Petitioner that this email did not contain any dates or deadlines and also was understood to be relevant qua other riders, as the Petitioner had already achieved his MER on his horse 'Escobar'.
5.11 In the meantime, on 15.04.2023, the Petitioner received another email from Respondent/Federation giving the deadline for submissions for trials to be held in Europe on 17.04.2023. The Respondent/Federation in this email also identified the first event for participation as CDI – Redefin, Germany from 04, May 2023 and 07, May 2023 [hereinafter referred to as "1st event"]. The Petitioner was also required to give details qua his horse for participation and he was also informed that no change would be permitted for the horse once selected by this email of 17.04.2023.
5.12 On 16.04.2023, the Petitioner addressed an email to Respondent/Federation requesting them to clarify about the documents for his travel to Europe. It is the Petitioner's contention that no support was provided for the formalities qua his travel abroad, and in fact, by email dated 17.04.2023, the Petitioner was informed that it was his personal responsibility to obtain Visa, etc. The Petitioner contends that his Visa application was rejected twice by the Consular Authorities in Sweden and France and this delayed matters further.
5.13 In continuation of the email dated 15.04.2023, the Petitioner received another email on 17.04.2023 as follows:
“Dear Sir,
1. Please refer to this NSF letter No. 043/19AG/EFI dated 28 Feb 2023 vide which we had confirmed to you that you are one of the propbables [sic: probables] selected in the Dressage discipline for 19th Asian Games based in your performance between 15 Aug 2022 to 15 Feb 2023 as stipulated in Selection Criteria Version -5.
2. The federation shall info [sic:inform] you well in time [sic: of] the CDI events in Europe in the months of May, June and July which are mandatory for you to participate so that selection of team can be made based on your performance. Thereafter, post 15 Jul 2023, you will be required to take part in one/two events so as to ensure the fitness of the combination and validation of your selection. In these confirmatory/ selection test all six riders are required to participate.
3. The first event identified is CDI-Redefin, Germany wef 04 to 07 May, 2023. You are requested to please forward your request for entry to EFI accordingly by 17 Apr 2023.
4. The horse you take part in your first final selection trial will be your final horse and no changes are permitted.
5. The selected team horses shall move in quarantine on 12 Sep 2023 tentatively.
6. We wish you the very best of luck.
7. Please acknowledge.
Regards
Secretary General
Equestrian Federation of India.”
5.13.1 On 17.04.2023, the Respondent/Federation thus, identified two additional FEI-CDI events for participation of the Probables as follows:
(a) Achleiten, Austria from 15 June to 18 June, 2023 [hereinafter referred to as "2nd event"];
(b) Falsterbo, Sweden from 13 July to 16 July, 2023 [hereinafter referred to as "3rd event"];
5.13.2 The Respondent/Federation further stated in this communication dated 17.04.2023 that the two confirmation tests post selection of Team India are as follows:
(a) Crozet, France from 03 August, 2023 to 06 August, 2023;
(b) Waregem, Belgium from 07 September, 2023 to 10 September, 2023.
5.14 The Respondent/Federation on 18.04.2023 changed the 3rd event from Falsterbo, Sweden on 13.07.2023 to 16.07.2023 to Kronbrg, Germany on 13.07.2023 to 16.07.2023.
5.15 The Petitioner initially approached the Respondent/Federation for financial assistance, but on receiving no adequate response approached this Court. On 21.04.2023, the Petitioner filed an intervention application seeking urgent interim reliefs in an already pending Appeal (CM No.20225/2023 in LPA No. 175/2023) filed by other aggrieved Equestrian event players.
5.16 A Division Bench of this Court by its order dated 24.04.2023 in LPA 175/2023 permitted the Petitioner to withdraw his intervention Application to file a separate independent Petition.
5.17 Pursuant to order dated 24.04.2023 passed in LPA 175/2023, the Petitioner filed the present Petition on 26.04.2023 praying for the reliefs as set forth in paragraph 3 above, which was listed for hearing before this Court initially on 27.04.2023 and thereafter on 01.05.2023, after being received on transfer.
6. Faced with the grave possibility of being eliminated from the list of Probables and despite financial exigencies, the Petitioner travelled on his own expenses to Europe, arriving on 03.05.2023 in France, to take part in the "1st Event". Since the Petitioner was denied travel with his horse 'Escobar', he was required to select a horse and participate in the trials which were scheduled the very next day i.e., 04.05.2023 at Redefin, Germany, an impossible task to achieve, as is averred by the Petitioner.
7. The present Application was thus thereafter filed by the Petitioner inter-alia seeking directions to permit him to participate in the "2nd trial" scheduled from 15.06.2023 to 18.06.2023 at Achleiten, Austria as if it were his "1st trial", and also, to direct the Respondent/Federation to consider additional venues for the participation in order to compete for the MER for 3 trials as required by the email of 17.04.2023. The Petitioner submits that, in the meantime, he made all preparations for participation in the "2nd event" scheduled from 15.06.2023 to 18.06.2023 in Achleiten, Austria.
8. By order dated 11.05.2023, arguments were heard in this Application and orders were reserved in the present Application on 11.05.2023. Thereafter, both parties filed their written submissions in the matter.
9. In the meantime, the Petitioner was constrained to file another Application for interim relief being C.M. Appl. 27225/2023 as the shortlist for selection termed as "Long List of Probables" was to be submitted by Respondent/Federation to the FEI by 2400 hours [Beijing Time] on 24.05.2023 and the Respondent/Federation were not permitting the Petitioner to take the requisite steps for being on the shortlist.
9.1 CM Appl. 27225/2023 was filed relying upon the order dated 19.05.2023 passed by the Supreme Court in a Petition filed by another athlete/rider, who represents the Country in Equestrian sports titled, “Chirag Khandal vs. Equestrian Federation of India (EFI) & Ors". (SLP No. 11305/2023). By order dated 19.05.2023, directions have been passed by the Supreme Court to include the name of a similarly placed athlete/rider namely Chirag Khandal in the Long List of Probables which was to be sent by the Respondent/Federation to the FEI on 20.05.2023.
10. By order dated 20.05.2023, this Court, for the reasons stated therein, directed Respondent/Federation to include the name of the Petitioner in the Long List of Athletes/ Horses Combination by Respondent/Federation for submission to the FEI, which will serve as a main reference for the Asian Games at Hangzhou, China to be held in September, 2023. Thus, allowing prayer (a) of the present Application.
10.1 It was further directed that the interim relief sought for in other prayers of the present Application, on which judgment had been reserved on 11.05.2023, would follow.
11. On 26.05.2023, while judgment was reserved in the matter, the Respondent/Federation decided to change the venue of the selection trial for the "2nd event". An Additional Affidavit was filed by Respondent/Federation on 29.05.2023 before this Court, after urgent mentioning, inter-alia, submitting that based on the requests of other eligible Probables, the venue and dates of the "2nd event" has been changed from Achleiten, Austria from 15.06.2023 to 18.06.2023 to Hagen, Germany from 11.06.2023 and 13.06.2023.
12. At the request of the parties, this Court by its order dated 30.05.2023, permitted both the parties to make additional submissions, in view of the Additional Affidavits filed by the Respondent/Federation. Both parties were heard on 30.05.2023 and also on 01.06.2023.
SUBMISSIONS OF THE PETITIONER
13. Learned Counsel for the Petitioner, Ms. Rohini Musa has made the following submissions:
13.1 The Petitioner contends that not only he is a national champion of the country but also his performance has been ranked at the first or second position in the Equestrian competitions for the last two years. In this regard, the Petitioner seeks to rely on Annexure A-4 appended to the present Application.
13.2 The Respondent/Federation being the apex body for equestrian sports in the country bears the onus and responsibility to facilitate and fund the athletes/riders to successfully compete in the events in Europe prior to their participation in the Asian Games, however, the Respondent/Federation is taking steps to, in fact, ensure that the Petitioner is not able to even qualify to participate in the Asian Games.
13.3 An artificial distinction/bias has been created by the Respondent/Federation between the disciplines of Dressage and Eventing for the purposes of funding creating a situation where, despite being a national champion, the Petitioner is on the verge of being eliminated from the trials/events.
13.4 The Respondent/Federation in its Reply to the present Application admits and acknowledges that winning in the discipline of Dressage is "completely dependent upon the scores achieved by a horse rider combination". However, the Respondent/Federation has not acted in a manner which is beneficial to the sport as it is it's duty being the national body for equestrian events and has created a situation where 'the best rider and horse team' of the Petitioner and his horse 'Escobar' will not be able to participate in the Asian Games.
13.5 It is further contended that in the Equestrian Events of Eventing and Show-Jumping, the Respondent/Federation has not prescribed any schedule of trials, training or competitions for the purposes of participation in the Asian Games and these trials are peculiar only to the event of Dressage.
13.6 The condition of compulsory securing of the requisite MER in the 1st trial being mandatory to even participate in the 2nd and 3rd Trials is not a condition imposed by the FEI, but is an arbitrary condition introduced by the Respondent/Federation only recently, that too in the middle of the selection process for the Asian Games.
13.7 The Additional Affidavit dated 29.05.2023 filed by the Respondent/Federation did not contain any Minutes of Meeting qua the last minute change for the venue of the scheduled "2nd event". The Petitioner was not even intimated about the said change in the venue prior to the filing of this affidavit in Court. The Petitioner has already taken the necessary steps and incurred substantial expenses for his participation in the “2nd event” as was scheduled in Achleiten, Austria from 15.06.2023 to 18.06.2023. The Petitioner made all arrangements for this participation on 07.05.2023 itself and the Respondent/Federation was intimated about this on 18.05.2023.
13.8 The decision for a sudden change in the venue qua the “2nd event” appears to be a deliberate attempt by the Respondent/Federation to somehow prevent the Petitioner to take part in the Trials to qualify for the Asian Games, and reeks of malafides on the part of Respondent/Federation.
13.9 The last minute change in the venue of the "2nd event" by the Respondent/Federation has put the Petitioner in a complete financial crisis.
13.10 It is contended that the stand taken by the Respondent/Federation that since the Petitioner did not participate in the "1st event", he is automatically eliminated is misconceived and not supported by any documentary evidence. In spite of the order dated 20.05.2023 passed by the Court, the Respondent/Federation continues to treat the Petitioner as "not a probable".
13.11 Relying on the Counter-Affidavit of Respondent/UOI to submit that Respondent/UOI has stated that the primary responsibility of funding of the athletes lies with the Respondent/Federation as the National Sports Federation for promotion of Equestrian sports in the country. It is further stated that the financial support under the scheme of assistance as provided to the National Sports Federation is only supplemental in nature and the Respondent/Federation will have to take the primary responsibility for arranging the necessary resources for the players/riders.
13.12 The reliefs sought in the present Application are pursuant to aid in furtherance of the prayers in the Writ Petition and are in essence, consequential reliefs flowing from the present Writ Petition. Given the urgency in the matter and keeping in mind the fact that are as per the Respondent/Federation's schedule, the present Application for interim relief was filed.
SUBMISSIONS OF THE RESPONDENT/FEDERATION
14. Learned Counsel for Respondent/Federation, Mr. Kirtiman Singh at the outset, submits that the present Application is not maintainable and is a wholly independent cause of action. He further submits that the prayers made in the present Application are distinct to the prayers made in the Writ Petition.
14.1 The Petitioner has been aware since 19.03.2023 that he was required to go to Europe and explore the possibility of leasing a horse for the purposes of training for participating in FEI mandated events for the final selection, but took no steps in time. Subsequently, the Petitioner was also intimated of the venue for this participation by an email dated 15.04.2023 and 17.04.2023.
14.2 That Dressage is a subjective sport and completely dependent on the scores achieved by a Horse-Rider combination, therefore, it is imperative for all Probables to participate in the same event so that they could be judged by the same jury and a comparative list could be drawn up so as to assist the Respondent/Federation in selecting the final team to represent India at the Asian Games hence, permitting the Petitioner to enter into events scheduled would not be in the interest of team selection.
14.3 Relying on the following judgments, the Respondent/Federation submits that selecting the best possible candidates for representing India in an international event is best left to experts in the sports and that the Courts cannot be a substitute:
(i) Sushil Kumar v. Union of India & Ors. 230 (2016) DLT 427 [LQ/DelHC/2016/1207] ;
(ii) Shumel v. Union of India (Order dated 02.08.2010 in W.P.(C) 5034/2010 - Delhi High Court); and
(iii) Paralympic Committee of India v. Naresh Kumar Sharma & Anr 2018 SCC OnLine Del 8443.
14.4 The Petitioner being the national champion in the discipline of Dressage for the past two years running would not ipso facto entitle him to participate in the Asian Games.
14.5 Reliance is placed on the Additional Affidavit dated 31.05.2023 to submit that the change of venue for the "2nd event" happened only pursuant to various requests received from eligible Probables to change the venue as also advised by the Dressage Coach. It is further submitted that pursuant to the concurrence of the committee experts, Respondent/Federation wrote to all Probables on 26.05.2023 about the change in the venue and subsequently, the other four Probables have given their consent for this change in the venue.
14.6 It is reiterated that the Petitioner was not informed of this change in the venue as the Petitioner's non-participation in the "1st event" automatically eliminated him from the selection process.
14.7 Learned Counsel for Respondent/Federation has also submitted that the final outcome of the selection trials would have to be announced by 15.07.2023 by the Respondent/Federation and communicated to the FEI. So, time is of the essence in the selection process.
14.8 Lastly, it is submitted that Indian horses could not be exported directly or indirectly on account of the epidemiological situation in India and the prevalence of diseases such as Glanders and Herpes which does not permit transportation of horses from India to Europe. So there is no question of allowing the Petitioner's horse “Escobar” to be a part of the selection process being undertaken in Europe.
SUBMISSIONS OF RESPONDENT/UOI
15. Learned Counsel for Respondent/UOI, Mr. Vikram Jaitely, has submitted that the primary responsibility for funding and financial assistance lies with the Respondent/Federation and UOI only supplements this funding in accordance with provisions of the National Sports Development Code of India, 2011 [hereinafter referred to as the “Sports Code”].
ISSUE INVOLVED
16. Learned Counsel for the parties was initially heard on 11.05.2023, and thereafter, on 30.05.2023 and 01.06.2023, when arguments were concluded on this Application.
17. The Court has been called upon to adjudicate on:
(i) Whether the Petitioner should be allowed to participate in the trials scheduled for 15.06.2023 to 18.06.2023 at Austria, as if the same were his 1st trial for the purposes of eligibility in terms of the email dated 17.04.2023
(ii) Whether the Respondent/Federation should consider any additional venue for trials for the Petitioner in the months of June/July, 2023 to enable the Petitioner to compete in 3 trials as per MER
ANALYSIS & FINDINGS
18. It is undisputed that Respondent/Federation is the sole authority and the body for conducting all local, regional, national and international equestrian events for the country. The Respondent/Federation is the only decision-making body in all matters of selection of players for participating in national and international equestrian sports. The Respondent/Federation is thus amenable to judicial review in terms of the law as settled by the Supreme Court in the case of Board of Control for Cricket in India (BCCI) vs. Cricket Association of Bihar (2015) 3 SCC 251 [LQ/SC/2015/112 ;] .
19. The Respondent/Federation has not denied the fact that the Petitioner is a national champion for the last two years. It is also not disputed that the participation in these events will not automatically guarantee a place in the national team to the Petitioner. However unless the Petitioner is permitted to participate in the 'trial events' as scheduled in Europe under a foreign coach (who is yet to be appointed, the Court is informed), the Petitioner's name will not be included in the final list of players, as drawn up by the Respondent/Federation for Team India.
20. Thus, at this juncture, the Court is only being called upon to decide whether to permit the Petitioner to participate in the trials as scheduled by the Respondent/Federation in the training events in Europe.
21. A preliminary objection has been raised by the Respondent/Federation that the prayers in the present Application are outside the scope of the Writ Petition. We find this objection to be untenable. The record reflects that the reliefs as set forth in the present Application have arisen pursuant to the email/communication dated 17.04.2023. The email is one in a series of communications that identifies and sets out the FEI mandated CDI Events for participation of the Probables in the "trials/events" scheduled in Europe [hereinafter referred to as "Trial Events"]. The Petition as filed, seeks inter-alia, to challenge the email/communication dated 17.04.2023. Since, prayers in the present Application inter-alia emanate from the email/communication dated 17.04.2023, all emails/communications sent by the Respondent/Federation are pursuant to the email dated 17.04.2023 would have to form part of the relief.
21.1 The Respondent/Federation thus, initially fixed one Trial Event and thereafter changed it to 3 Trial Events and 2 additional events for final qualification for Team India. Subsequently, the schedule as set forth in the email/communication dated 17.04.2023 was revised by the Respondent/Federation on at least two occasions thereafter.
21.2 The record shows that the email/communication dated 17.04.2023 was superseded by an email dated 18.04.2023, when the "3rd event" was re-scheduled from Falsterbo, Sweden from 13.07.2023 to 16.07.2023 to Kronberg, Germany for the same dates.
21.3 The "2nd event" as finalized by the emails dated 17.04.2023 and 18.04.2023, has on 26.05.2023 been revised from Achleiten, Austria from 15 June to 18 June, 2023 to Hagen, Germany from 11 June to 13 June, 2023, a change of both venue and date.
21.4 For the purposes of clarity, the scheduled events as notified at present, by the Respondent/Federation are :-
(a) Hagen, Germany from 11 June to 13 June, 2023 [hereinafter referred to as "revised 2nd event"];
(b) Kronberg, Germany from 13 July to 16 July, 2023 [hereinafter referred to as "revised 3rd event"].
(c) Crozet, France from 03 August to 06 August, 2023;
(d) Waregem, Belgium from 07 September to 10 September, 2023.
21.5 The Trial Events that form part of the subject matter of this case are dynamically evolving during its pendency. The Trial Events have been, on two or more occasions, changed by the Respondent/Federation including at the request of one of the Probables, as was intimated to the Court in the Additional Affidavits dated 29.05.2023/31.05.2023, filed by the Respondent/Federation, after judgment was reserved in this Application. The preliminary objection of the Respondent/Federation, thus cannot be sustained.
22. It is sought to be contended by the Respondent/Federation that the name of the Petitioner cannot be included in the 2nd and 3rd Trial Events that have been scheduled by the Respondent/Federation, as the Petitioner's non-participation in the 1st event has automatically eliminated him from the Long List of Probables.
22.1 This Court in its order dated 20.05.2023 had held that, neither paragraph 37 of the Criteria V5, nor the subsequent emails dated 19.03.2023, 15.04.2023 or 17.04.2023 of the Respondent/Federation set forth any criteria for automatic disqualification or elimination from the Trial Events. No other document has been placed on record by the Respondent/Federation to show the elimination/disqualification of the Petitioner.
22.2 This Court had thus, by its order dated 20.05.2023, granted interim relief to the Petitioner, directing the Respondent/Federation to include the name of the Petitioner in the Long List of Probables to be sent to Hangzhou, China in September, 2023 for Asian Games.
22.3 This contention of the Respondent/Federation that the Petitioner is automatically eliminated is thus, without any legal basis and holds no merit.
23. The Petitioner contends that the selection trials were conducted in India with a combination of the Petitioner and his horse Escobar and based on those trials already conducted in India during the period from 15.08.2022 to 15.02.2023, the combination of the Petitioner and his Horse was already eligible having achieved the requisite MER for training under a foreign coach in Europe. It is for this reason that the Petitioner was under the assumption: (i) that the Petitioner would not require to take part in any other Event/Trial; and (ii) that the Respondent/Federation would take steps to facilitate the transportation of the Petitioner's Horse 'Escobar' keeping the Equestrian code of best horse and rider team sacrosanct. Reliance is also placed on email dated 19.03.2023 received from the Respondent/Federation.
23.1 The Respondent/Federation has, in response, averred that the Petitioner was aware from 19.03.2023 that he would have to mandatorily take part in the FEI-CDI Trial Events. The Petitioner was intimated about these events via an email dated 17.04.2023 sent by the Respondent/Federation for the final Horse-Rider combination to be selected in Europe.
23.2 A careful perusal of paragraph 2 of the email dated 19.03.2023 shows that a request was made to riders already based abroad that they were required to continue to train on their horses in Europe.
23.3 Paragraph 3 of the email dated 19.03.2023 was made applicable to the riders based in India, such as the Petitioner, who had already achieved the requisite MER to be a Probable. The instructions in paragraph 3 of this email were as follows:
(i) That they will explore the possibility of leasing a suitable Dressage horses through their foreign coach and expert and start their training;
(ii) If funds were received by the Respondent/Federation, they will support the riders; and
(iii) That no payments on hiring of coach shall be made at any stage of the training.
23.4 Thus, the email dated 19.04.2023, also sought to make a distinction between those riders who were already abroad and those riders who are based in India and have already achieved the requisite MER to be a Probable like the Petitioner.
23.5 In view of the above, the decision taken by the Respondent/Federation to then address an email on 15.04.2023 and thereafter on 17.04.2023 requiring all riders to participate in additional (FEI-CDI) Trial Events, prima facie does not appear to have a sound legal basis.
24. The Petitioner has also challenged the validity of email dated 17.04.2023 qua the MER. In this regard, the Petitioner has relied on email dated 18.04.2023 which was addressed by the Petitioner to the Respondent No.5 and the response received from the Respondent No.5 qua the approval of the Executive Committee of the Respondent/Federation of the schedules was received by the Petitioner on 15.04.2023 and 17.04.2023. The Respondent No.5 as in its email dated 18.04.2023 categorically stated that:
“Dear Gaurav,
Please refer to your mail dated 18th April (11,20)
THIS DOES NOT HAVE MY APPROVAL. As member executive and member dressage.
Regards,
Col SS Ahlawat VSM Retd
Member Executive Committee(Dressage).”
[Emphasis Supplied]
25. The Respondent/Federation contends that they took various steps to advance the export of the horses to Europe, however, the said exercise has not led to any fruition and thus no horses can be exported from India for the Asian Games including 'Escobar'. Thus, the best Horse-Rider combination as is mandated for the event of Dressage has not been followed by the Respondent/Federation itself.
25.1 The Respondent/Federation has, however, failed to explain, why upon receiving this information, several months ago, they chose not to share the information with the players including the Petitioner. This information was crucial for the Petitioner. The Petitioner has averred that being oblivious, he continued to train on his horse 'Escobar'.
25.2 No explanation was forth coming from the Respondent/Federation as to why the Petitioner was not informed about the same. No document has been placed on record by the Respondent/Federation to controvert this submission of the Petitioner either. Clearly, this evidences a bias against the Petitioner.
26. The Respondent/Federation has now contended that the Petitioner cannot seek to participate separately in Trial Events, and will be required to participate along with the other Probables in these Trial Events to qualify in terms of the email/communications of 19.03.2023 and 17.04.2023 of the Respondent/Federation.
27. The Petitioner has been complying with all the requirements as set forth by the Respondent/Federation diligently. That too, despite the fact these financially onerous requirements for taking part in Trial Events in Europe was only intimated in the middle of the training by the Respondent/Federation by its email dated 19.03.2023. The email dated 19.03.2023 which, as rightly pointed out by the Petitioner, did not even contain any dates or details as to when this training was required to be done.
28. Initially, the Criteria V3 dated 19.03.2021 of the Respondent/Federation provided for conduct of trials in the following manner:
“3. Conduct of Trials
(a) During the above period (01 Sep 2021 to 15 May 2022), the EFI shall nominate five competitions for each discipline in India for conduct of selection trials. A horse-rider combination is permitted to participate in any, or a maximum of five trials, at any of the venues chosen by the rider, in order to achieve the desired scores or to improve on them. Only the results of the best of three attempts in which Minimum Eligibility Requirements (MERs) have been met by the horse-rider combination will be counted towards preparation of the comparative merit.
(b) A combination needs to attain at least one Minimum Eligibility Requirement (MER) in any of the trials chosen by him/ her, to be considered for selection as a 'Probable' to be prepared and trained for the games. Only the scores / penalties achieved by a horserider combination in a trial(s) in which the MER has been attained, will be counted towards computation of the comparative merit.
(c) Six riders (to be called 'Probables') shall be selected per discipline (Dressage, Eventing and Show Jumping). These six riders per discipline will be selected based on the comparative merit of the horse-rider combination having the least cumulative penalties in venting and Show Jumping, and the most cumulative score in Dressage in the best of three trials in which they have attained MERs. The process of drawing up the merit list is elucidated in paragraph 29.
(d) The order of merit as computed on completion of the selection trials will be adhered to while choosing the final team for each discipline subject to the stipulations laid down in paragraphs 29 to 34 herein.…..”
[Emphasis Supplied]
28.1 Paragraph 11 provided that to be selected, a minimum of 66% marks were required in at least one selection trial as the MER:
“11. The test for selection of Dressage Team will be Prix St-Georges (Test). For consideration for selection to the team, a rider will have to score a minimum of 66% marks in at least one selection trial as the MER.”
[Emphasis Supplied]
28.2 In the middle of these Trials, on 17.08.2022, a new Criteria V5, was notified by the Respondent/Federation. Clause 5 of Criteria V5 held as follows:
“5. Conduct of Trials
(a) During the period 15 August 2022 to 15 February 2023, the EFI shall organize Four competitions for each discipline in India to be considered as selection trials. A horse-rider combination can participate in all four in order to achieve the qualifying scores. The results of the best of three competitions in which Minimum Eligibility Requirements (MERs) have been met by the horse-rider combination will be counted towards preparation of the comparative merit for selection of probables.
(b) Six riders (to be called 'Probables') shall be selected per discipline (Dressage, Eventing and Show Jumping). These six riders per discipline will be selected based on the comparative merit of the horse-rider combination having the least cumulative penalties in Eventing and Show Jumping, and the most cumulative score in Dressage in the three trials in which they have attained MERs. The process of drawing up the merit list is elucidated in paragraph 32.….."
[Emphasis Supplied]
28.3 On the merit list of Probables, it provides the following:
" 32. Order of Merit for Probables
(a) Only the horse-rider combinations that have achieved the laid down MER as per Selection Criteria laid down for the Asian Games trials, will be considered for selection.
…..
(f) Riders who have attained MERs in Individual category will be placed higher in merit over those who have attained only team category MERs for Show Jumping and Dressage only, even if such riders may not have attained MERs at team level.….."
[Emphasis Supplied]
28.4 Paragraph 33 provides for training conducted in “India or abroad” as per the availability of budget and other conditions as below:
" 33. Based on the order of merit, a team of six riders including reserves as set out above, will be selected for each discipline for further training under the aegis of the EFI. These riders will be trained in India or abroad as per availability of budget and other conditions, as determined by the EFI. ”
[Emphasis Supplied]
28.5 Clause 34 also provides for the riders and horses selected, to attend the coaching camps at designated locations and under the coaches organised by EFI.
29. An analysis of these provisions shows that; (i) there is no prior intimation as contained within these provisions qua the training/Trial Events to be conducted in Europe; and (ii) the training can be done in India or abroad albeit based on budget availability.
30. Further, the condition of compulsory securing of the requisite MER in the 1st Trial being mandatory to participate in the 2nd and 3rd Trial Events also does not appear to form part of Criteria V5 guidelines.
30.1 The MER for the discipline of Dressage in Criteria V5 Rules is as per paragraph 12 and 13 which are reproduced below:
" 12. All participants competing in the Dressage discipline are required to participate in all three tests (Prix St Georges, Intermediate-I and Intermediate Free Style to Music) progressively in each trial in India in case they achieve the minimum standards laid down for each test. For riders based abroad, in case the competitions do not have any one or two of these three tests, they may participate in these tests in other competitions to acquire MERs for the Team or Individual categories. For an individual / team selection, a horse-rider combination shall attempt in four trials to be conducted under the aegis of the EFI in India and in FEI CDI competitions to be held abroad. A horse-rider combination will only be considered for selection if they achieve three laid down MER as per Selection Criteria for either Team or Individual category as elucidated below.
13. The test for selection of Dressage Team will be Prix St-Georges (Test). For consideration for selection to the team, a rider will have to score a minimum of 66% marks in atleast three selection trial as the MER. Best scores achieved in three trials held wef 15 August 2022 to 15 February 2023 in which MERs have been achieved will be counted towards the computation of relative merit.……"
[Emphasis Supplied]
30.2 The Petitioner has contended that the 3 Trial MER Rule was already achieved by him during the Trials conducted by the Petitioner between 15th August, 2022 and 15th February, 2023, as per the details of score-sheet provided to him by the Respondent/Federation titled “Details of Dressage Selection Trials of Rider Based in India”. Reliance in this regard is placed on the score sheet to submit that the Petitioner had already achieved the required MER on four occasions while training in India. Thus, the Respondent/Federation was imposing onerous and harsh conditions on the Petitioner in terms of the email of 17.04.2023 and related correspondence as below:
31. Relying on the judgments of this Court as set forth in paragraph 14.3, learned Counsel for the Respondent/Federation has raised an objection to the present Application to submit that it is settled law that selection of athletes and sports persons is best left to the experts and the Courts should not interfere in the process of selection.
31.1 No doubt, the Court will not go into the realm of selection of athletes/riders for participation in the sporting events, being the domain of the experts. However, the Respondent/Federation as the national federation for Equestrian sports of the country is required to conduct its administrative actions in a fair and just manner. It is trite that where arbitrariness or mala fides are alleged or where there is an element of malice, this Court is constrained to exercise its discretion under Article 226 of the Constitution.
31.2 A Division Bench of Punjab and Haryana High Court [In Kirandeep d/o Harwinder Singh & Anr. v. Chandigarh Rowing Association & Ors. 2004 SCC OnLine P&H 257] while deciding a Petition filed by national rowers, qua an event for participation in Junior National Rowers Championship, relied on the Supreme Court judgment in the case of State of Punjab v. V.K. Khanna AIR 2001 SC 343 [LQ/SC/2000/1868] to enunciate that the law that administrative action should be free from malice and beyond reasonable suspicion as under:
“The concept of fairness in administrative action has been the subject-matter of considerable judicial debate but there is total unanimity on the basic element of the concept to the effect that the same is dependent upon the facts and circumstances of each matter pending scrutiny before the Court and no straight-jacket formula can be evolved therefore. As a matter of fact, fairness is synonymous with reasonableness. And on the issue of ascertainment of meaning of reasonableness, common English parlance referred to as what is in contemplation of an ordinary man of prudence similarly placed it is the appreciation of this common man's perception in its proper perspective which would prompt the Court to determine the situation as to whether the same is otherwise reasonable or not.”
[Emphasis Supplied]
31.3 The Punjab and Haryana High Court while, inter-alia, directing the Rowing Federation of India to issue guidelines for the proper selection of teams at the State and National level, further held the following:
“Due care should be taken that all sports persons are informed in time and are given due opportunity to participate in the process of selection so as to achieve the object of selecting the best team in the interest of the sport and country. Let copy of this judgment be sent to Rowing Federation of India for compliance of the afore-noticed [sic:afore-noted] directions.”
[Emphasis Supplied]
31.4 It is, therefore, trite that all sports persons are intimated about all requirements by sports authorities like the Respondent/Federation in time and give proper opportunities to enable the selection of the best team for the country.
32. The Respondent/Federation is, however, seen to be not acting in a manner as is fair and reasonable as is elucidated herein. On one hand acknowledges that winning in the discipline of Dressage is “completely dependent upon the scores achieved by a horse-rider combination”, to further their contention that it is necessary for all Probables to take part in the same events in Europe.
32.1 However, in the same breath the Respondent/Federation has failed to acknowledge its responsibility as the national body of Equestrian sports, the best rider-horse combination should be the participants selected for Team India. The Petitioner and his horse 'Escobar' will not be able to participate in the Trials Events as scheduled in Europe, which are pre-cursor and pre-qualification for the Asian Games.
33. It is not disputed that the Petitioner is currently in Europe and has made all requisite arrangements for himself and for the two horses selected to participate in the events, and has communicated these details to the Respondent/Federation by an email dated 18.05.2023. The Petitioner is, however, not being able to participate in any of the events as scheduled in Europe on account of “hurdles” being unfairly created in this behalf by the Respondent/Federation.
34. Given the undisputed fact of the Petitioner being a National Champion in the event of Dressage, unless urgent relief is granted, the Petitioner will not be able to be eligible to participate in the Asian Games to be held in Hangzhou, China in September, 2023.
34.1 What is therefore to be seen is whether the reliefs sought if granted would prejudice the Event/Trials going on in any manner or cause any hardship or irreparable injury to the Respondents.
34.2 Admittedly, the Petitioner neither had the finances nor the wherewithal to train in Europe, the mode and manner in which the Respondent/Federation took the aforegoing steps is certainly prejudicial to the Petitioner. No prejudice shall, however, be caused to the other Probables who are training in Europe today and have been training there since almost one year.
35. The Court is sometimes, faced with a situation where withholding grant of an interim relief would amount to dismissal of the main Petition and result in an injustice being perpetuated. In such an event, the Court would be inclined to grant as an interim relief, part or the whole of the final relief. In such cases, the availability of a very strong prima facie case, considerations of balance of convenience and irreparable injury dilating the balance of the case in favour of the Applicant may persuade the Court to grant an interim relief which forms part of a final relief. The Supreme Court judgment Deoraj v. State of Maharashtra (2004) 4 SCC 697, [LQ/SC/2004/482] has observed that:
“12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case — of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice. Obviously, such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent.”
[Emphasis Supplied]
35.1 The Petitioner's case is one such case. The Respondent/Federation has shirked away from its responsibility of providing adequate financial support to deserving athletes/riders such as the Petitioner and on the other hand is taking all steps to ensure that the Petitioner is not even able to participate in the trials/events scheduled for the selection of the national team.
35.2 Based on the compelling circumstances as have been discussed herein, coupled with irreparable injury which will be caused, if relief is withheld, this Court is of the opinion that an interim relief, as is set forth below, is to be granted to the Petitioner.
35.3 This Court is of the opinion that prima facie, the Petitioner appears to have qualified for the MER under criteria V5 during his training in India as per the score-sheet as reproduced in paragraph 30.2 and given the fact that the Respondent/Federation has introduced the Trial Events by emails dated 15.04.2023/17.04.2023, it is necessary to pass directions to the Respondent/Federation to bear the Trial Event fee for two of the three events scheduled in Europe.
35.4 The directions are, however, been passed without prejudice to the rights and contentions of the parties.
DIRECTIONS
36. In the foregoing circumstances and given the facts of this case, the following directions are passed:
36.1 The Petitioner is permitted to participate in the revised 2nd event now being scheduled to be held at Hagen, Germany from 11.06.2023 to 13.06.2023.
36.2 Respondent/Federation is directed to include the name of the Petitioner in the entries for participation in this event by taking all necessary steps at the earliest.
36.3 In the event that the Respondent/Federation is unable to secure a place for the Petitioner at Hagen, Germany, the Respondent/Federation is directed to permit the Petitioner to have its Trial at Achleiten, Austria from 15.06.2023 to 18.06.2023 or at a venue and date as is set forth by the coach of the Indian team, at a place which is nearby to Hagen, Germany or Achleiten, Austria at the earliest possible date on or before 15.06.2023.
36.4 The Respondent/Federation is directed to treat the Trial Event in terms of paragraph 36.3 as if it were the 1st trial event of the Petitioner for the purposes of eligibility in terms of the 17.04.2023 email.
36.5 In view of the fact that the Respondent/Federation has changed the venue of the “revised 2nd event” from Achleiten, Austria to Hagen, Germany to facilitate the other four Probables, it shall make payment of entry fee for participation on behalf of the Petitioner for the said event at paragraph 36.3.
36.6 Respondent/Federation shall permit the Petitioner to participate at a "2nd event" on a date at least two weeks prior to the “revised 3rd event”, at a venue and date as is set forth by the coach of the Indian Team. This entry fee shall be paid and borne by the Petitioner.
36.7 The Petitioner shall also be permitted by the Respondent/Federation to participate in the “revised 3rd event” as presently scheduled in Kronberg, Germany from 13.07.2023 to 16.07.2023 or any alternative venue if so “re-scheduled” by Respondent/Federation.
36.8 The entry for the 3rd Trial Event shall be paid and borne by the Respondent/Federation.
36.9 The Respondent/Federation is directed to extend all necessary cooperation to the Petitioner to enable effective compliance of the aforesaid order/directions.
37. The Respondent/Federation, on instructions, has submitted that despite the last date of entries for the rescheduled event in Hagen, Germany having expired, the entries for participation are still being sent by the Respondent/Federation. Respondent/Federation shall make all endeavors to ensure that the Petitioner's entry to the Trial Events be not withheld on account of the pendency of the present Application or otherwise.
38. In the foregoing circumstances, prayers (b) and (c) of the present Application are allowed.
39. Parties will act based on the copy of the order.
W.P.(C) 5361/2023 & CM APPL. 20956/2023 [Application filed on behalf of Petitioner seeking interim relief]
40. List the matter for hearing on 19.07.2023 at 3:30 PM.
41. In the meantime, parties shall complete pleadings in the matter.
