There cannot be two posts with the same executive/management powers: Delhi High Court

There cannot be two posts with the same executive/management powers: Delhi High Court

The Delhi High Court ruled that there cannot be two posts with the same executive/management powers. 

Background 

The petitioner is a former Olympian. He excelled in the game of hockey as a member of Indian Hockey Team in the 1976 Summer Olympics. He was also a prominent member of the Indian Hockey Team which won the gold medal at the 1975 Hockey World Cup. For many years thereafter, he is stated to have contributed to the advancement of the cause of hockey in India. As a senior player and as a concerned citizen, he desires that the management of hockey in the country be run according to the rules and the guidelines laid-down by the Government of India (GOI).

He is also concerned that the continued presence of certain persons as office bearers or otherwise in supernumerary posts or under not so innovative nomenclatures, such as Life President, Life Member and CEO is unwarranted and illegal, therefore, the same be struck down as not being in consonance with the Sports Code, as has already been held by the court in Mahipal Singh vs. UOI.

Arguments 

Senior Advocate Sachin Datta, appearing for the Union of India, upon instructions, agrees with the contentions. However, he says that the GOI‟s letter should not be construed to mean that the Government has permitted the position of Life Member, Life President and CEO. 

Advocate Vanshdeep Dalmia, appearing for the petitioner, submitted that all NSFs will have to be treated alike. 

He contended that, that which is not permitted directly, cannot be introduced indirectly and illegally, yet this is what has been done by Hockey India. It is a brazen endeavour to make permanent positions for persons, who may have political, administrative or social influence over other members of the NSF, thereby, leading to the lop- sided and monopolistic administration of the sports body. 

He further submitted that the mere presence of such individuals even in non-voting capacity, asserts influence in the subsequent management of the NSF and in the fair and independent decision-making process and is an undaunted voting process during its General Body Meetings, etc. 

Decision 

The division bench of Justice Najmi Waziri and Justice Swarana Kanta Sharma said that it is not known what was the follow-up, if any ensued. The age and tenure restrictions of the Sports Code as well as the cooling-off period between successive terms in the Managing Committee of a NSF, coupled with the necessary 2/3rd votes for the second term, are clear safeguards against permanent positions in a NSF. What cannot be done “per directum” is not permitted “per obliquum” meaning thereby, that, whatever is prohibited by law cannot be effected by an indirect or circuitous contrivance.

The court observed that the administrative setup of R-2, is erroneously or illegally constituted because of the Life President and Life Members. The Government of India cannot grant recognition to a NSF whose constitution is not in consonance with the Sports Code. 

The court said that the posts of Life President, Life Member in the NSF are illegal, so is the post of CEO in the Managing Committee. These posts are struck-down. All such references in the Constitution/Memorandum of Association of R-2 will have to be removed. 

The court further added that mere presence of some persons in a Society as a Member or in a meeting, albeit without voting rights can influence independent decision-making and election process. Till such time it is brought in consonance with the Sports Code and as interpreted by the court, its affairs cannot be left in the hands of persons who have no legitimacy. In the absence of a Managing Committee, elected under a constitution strictly in consonance with the Sports Code and the court judgments, the interests of hockey, its development and the sentiments of the hockey-players, aspirants and enthusiasts should not suffer. 

The court held that it would be in the public interest that its affairs be put in the hands of a Committee of Administrators („CoA‟) as has been directed by the Supreme Court in the case of NSF in All India Football Federation vs. Rahul Mehra & Ors . 

The court observed that R-3 knew fully well that the post of Life President and Life Member in a NSF is illegal. He had been specifically intimated so by the Government of India. Yet when Hockey India was registered as a Society under the Societies Registration Act 1860, and was granted prompt recognition by the Government of India within a couple of days thereof, R-3 went ahead and had himself appointed as Life Member of Hockey India. 

The court stated that this smacks of brazen impertinence to the clear mandate of law. It was a less than honest but futile endeavour to institutionalize oneself in a body whose legitimacy itself is contingent upon conformity with the Sport Code and the law. What a paradox, to make oneself permanent in an entity whose tenure itself is impermanent. The illegal Post of Life President or Life Member cannot be the stepping-stone for any other position or benefit elsewhere, be it nationally (including in the Indian Olympic Association) or in international bodies. If R-3 has so benefitted, then such benefit or position shall end right away. 

The court ordered that let the CoA look into the matter, so would the Government of India.  It will be open to the petitioner and the CoA to approach the Court in case of any difficulty. 

Case title: Aslam Sher Khan v/s Union of India & Ors.

Citation: W.P.(C) 5703/2020 

Click here to read the Order/Judgment

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