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Home , Karimganj district

IN THE

(THE HIGH COURT OF , NAGALAND, AND )

Writ Petition (C) No.3486/2014

Sri Dipankar Ghosh Son of Late Tarak Lal Ghosh Resident of Laxmi Bazar Road Ward No.6, Post Office-Karimganj District-Karimganj, Assam …….Writ Petitioner

-Versus-

1.The State of Assam represented by the Chief Secretary to the , , -781006.

2.The Commissioner and Secretary to the Government of Assam Social Welfare Department, Dispur, Guwahati-781006

3.The Deputy Secretary to the Government of Assam Social Welfare Department, Dispur, Guwahati-781006

4.The Director of Social Welfare , Assam, Uzanbazar, Guwahati-781001

5.The Deputy Commissioner, Karimganj, Assam

6. The District Level Selection Committee for selection of Members or Chairpersons of Child Welfare Committee of Karimganj District, represented by the Chairperson, Deputy Commissioner, Karimganj, Assam.

7. The State Child Protection Society, Assam, represented by its Member-Secretary, Survey, Guwahati-781028

8. Mrs. Gita Mukherjee Wife of Nandeswar Mukherjee Gach Kalibari Road, Karimganj P.O. & Dist.Karimganj, Assam

……. Respondents

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BEFORE THE HON’BLE MR. JUSTICE NELSON SAILO

For the Petitioner : Ms. M Dev, Advocate

For the Respondents : Mr. D Nath, Advocate (For respondent Nos. 1 to 7) Ms. R Devi, Advocate (For respondent No.8)

Date of Hearing :9.3.2017

Date of Judgment :24.3.2017

JUDGMENT AND ORDER( CAV)

The case of the petitioner is that the Member Secretary, State Children Protection, Society Assam published an Advertisement on 22.10.2013 (Annexure-1) in a local daily inviting application from interested persons for member of Children Welfare Committee (CWC for short) under the Juvenile Justice(Care and Protection of Children) Act, 2000 (JJ Act for short) for various districts in Assam for a period of 3 years. In respect of Karimganj district, the vacancy position was shown as five posts. In terms of Rule 22 of the Assam Juvenile Justice (Care and Protection of Children) Rules, 2011 (the ‘Rules of 2011’ for short) the criteria and qualification to be a member of the CWC was also provided.

2. The Advertisement provided that the Chairperson or the Member of the CWC should not be less than 35 years of age and preferably should be a post graduate in Social Work, Education, Psychology, Child

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Development, Law, Sociology, Criminology or any other Social Science discipline with active involvement and engagement in Planning, Implementing and administering works relating to child welfare for at least 7 years. 3. The petitioner responded to the Advertisement and pursuant to the selection that was held vide meeting minutes dated 18.11.2013 (Annexure-2), the petitioner was recommended for the post of Chairman as applied by him and the respondent No. 8 was recommended as Member in terms of her application by the District Level Selection Committee (DLSC for short).

4. The recommendation of the DLSC was thereafter placed before the State Level Selection Committee (SLSC for short) which was constituted in terms of Rule 91 of the Rules of 2011. Consequently, vide notification dated 24.6.2014 (Annexure-3) issued by the respondent No. 2, the respondent No. 8 was selected and appointed as the Chairman (CWC) for Karimganj district. Being aggrieved the writ petitioner is before this court.

5. According to the writ petitioner, he was a Chairperson of CWC in the district of Karimganj and social activist with experience in child protection and care and therefore he fulfilled the criteria that was stipulated in the Advertisement dated 22.10.2013. The petitioner contends that the DLSC recommended five persons for the CWC in order of merit and in which he was recommended as the Chairperson. However, the SLSC in total disregard of such recommendation re-constituted the CWC of Karimganj district by recommending and appointing the respondent No. 8 as a one man committee. In fact the respondent No. 8 had not applied for the post of Chairperson of the CWC and the respondent authority in appointing her Chairperson have denied the petitioner of her Fundamental

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Rights and other legal rights. The petitioner contends that such action on the part of the said respondents amounts to violation of Article 15(3), 39 (e), 39(f), 45 and 47 of the Constitution of and therefore the Notification dated 24.6.2014 so far as the Karimganj district is concerned is liable to be interfered with while upholding the recommendation of the DLSC dated 22.10.2013. The writ petition was taken up for motion on 18.7.2014 whereby the court while issuing notice of motion stayed the Notification dated 24.6.2014 impugned by the petitioner.

6. Against the writ petition, the Deputy Secretary to the Government of Assam, Social Welfare Department (Respondent No.3) filed his affidavit on 3.11.2014 contending inter-alia that the State respondents under the Social Welfare Department has notified the guidelines for selection of Chairman/ Members of CWC and constituted the DLSC under the Chairmanship of the Deputy Commissioner of the District. Under the said guidelines, the DLSC is required to scrutinize the application received from the individuals on the basis of the criteria prescribed and thereafter prepare a panel for each post separately and submitted the same to the Director of Social Welfare (Respondent No.4) for finalization of the selection.

7. The respondent No. 3 in his affidavit further contends that nowhere in the Notification dated 24.6.2014 has it been provided that a one man committee for the district of Karimganj has been constituted. In fact a resolution was taken by the SLSC that the remaining vacancies are to be re-advertised in all leading newspapers published from Guwahati, , , and circulated to all the registered NGOs with a request to forward applications from eligible candidates and the same was accordingly published on 7.8.2014 in a local daily.

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8. The respondent No. 3 further contends that there is no mandate for advertising only the post of Chairman of CWC. The Advertisement was made for the post of Member, CWC and the qualification and other criterias for the post of Chairperson is the same with that of a Member of the CWC. The respondent No.3 contends that upon selection of a Members of the CWC, the Chairperson is selected as a subsequent step from amongst the selected members. The SLSC having found the respondent No. 8 to be the only qualified candidate, therefore recommended her for the post of Chair person while deciding to re- advertised the remaining post of Member, CWC. Furthermore, respondent No. 3 contends that the SLSC in its meeting held on 28.1.2014 resolved that the State Government be moved for amending Rule 22 of the Rules of 2011 so that the selection committee may be vested with the powers for recognition of qualification of CWC Chairperson and members as suitable candidates were not available for all the district for filling up the vacancy.

9. The respondent No. 3 in her affidavit thus contends that amongst the five application in the panel as recommended by the DLSC, only the respondent No. 8 fulfilled the qualification in terms of the Advertisement dated 22.10.2013 and therefore the other four names including that of the petitioner was rejected.

10. The Deputy Commissioner of , respondent No. 5 also filed her affidavit on 1.12.2015 whereby she has adopted the contention of the respondent No. 3 in her affidavit. She contends that as per the guidelines the DLSC is to prepare a panel list which in turn is to be forwarded to the SLSC for final selection. In fact such procedure was clearly provided in the Advertisement dated 22.10.2013. Such being the

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case, the writ petitioner cannot have any legitimate grievance in the action taken by the official respondents.

11. The petitioner in reply to the affidavit filed by the respondent Nos. 3 and 5, filed his affidavit-in-reply on 9.12.2014 wherein he has reiterated his stand taken in the writ petition. Besides such reiteration, he has stated that tenure of the CWC in terms of the Advertisement is for 3 years and the respondent No. 8 having declared herself to be 63 years as can be seen from the recommendation of the DLSC, is not qualified to hold the post of Chairperson or the Member of the CWC. The respondent No. 8 is also not a Post-Graduate in the discipline mentioned in the Rules 2011 and therefore the State respondents have acted arbitrarily in selecting and appointing her as Chairperson of CWC, Karimganj district. The petitioner also contends that the State respondents have acted arbitrarily in selecting the respondent No. 8 without recommending or returning the panel of the select list prepared by the DLSC for further new selection. Further, the basis of merit. The proceeding of the SLSC nowhere mentioned that the previous committee is to continue till a new committee is formed as was done in respect of other districts which only goes to show the arbitrary exercise of power by the SLSC and the State respondents.

12. Appearing for the writ petitioner and supporting the above contentions, Ms. M Dev submits that the DLSC duly recommended the name of the petitioner to the post of Chairperson of CWC, Karimganj district and the same ought to have been acted upon by the SLSC in as much as the petitioner is qualified in terms of the Advertisement. The petitioner in fact has experience on being a Member of the Juvenile Justice Board as Ex-Chairman of CWC etc. She submits that the SLSC in selecting only the respondent No. 8 vide the impugned Notification dated 24.6.2014

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has created a one man committee since no mention has been made as to whether the existing CWC would continue as has been done in respect of other districts where only a new Committee is constituted. She therefore submits that impugned action of the respondents in publishing the Notification dated 24.6.2015 cannot be sustained. The respondents are therefore liable to be directed to act upon the recommendation of the DLSC dated 18.11.2013 by this Court after setting aside the impugned Notification dated 24.6.2015.

13. The learned Additional Senior Government Advocate, Assam, Mr. D Nath, appearing for the respondent Nos. 1 to 7, contends that although the DLSC made its recommendation for composition of the CWC on 18.11.2013, the same is not binding upon the SLSC and the State Government. As was advertised on 22.10-.2013, the recommendation of the DLSC by making a panel list was forwarded to the SLSC. The SLSC after scrutinizing and finalizing the select list placed the same for approval of the State Government. It was only after such process that the notification dated 24.6.2014 was issued by the respondent No.2. The State respondents therefore has not acted beyond their powers and jurisdiction as provided by the JJ Act and the Rules of 2011 including the guidelines made in this regard. Therefore he submits that interference in the selection process is not called for.

14. Ms. R Devi, the learned counsel appearing for respondent No.8 supporting the Government Advocate submits that the respondent No. 8 is duly qualified and has experience as required and stipulated in the Advertisement as well as under the Rules of 2011 and the JJ Act. She submits that the respondent No. 8 was a Member of the JJB, an ex- member of the Assam State Social Welfare Advisory Board. She has also

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received the President’s Award for teaching and has enough experience in affairs relating to children. The respondent authorities therefore have rightly selected her as Chairperson of the CWC. She further submits that the Advertisement dated 22.10.2013 only stipulated the minimum eligibility age as 35 years and there is no question of her disqualification on account of her age. Ms. R Devi submits that the respondent No. 8 had filed MC No.3314 of 2014 to vacate the interim order passed on 18.7.2014 and since the same is still pending, the same may be treated as the affidavit –in-opposition of the respondent No. 8.

15. I have considered the rival contention of the parties and have perused the materials on record. Section 29 of the JJ Act prescribed for the composition of the CWC. Besides mentioning that such committee would constitute a Chairperson and four other members as found appropriate by the State Government, it prescribes that there should be at least one woman in the Committee as well as an expert on matters concerning children. The State of Assam in exercise of the power conferred by the Section 68 (1)of the JJ Act has framed the Rules of 2011. Rule 19-20 of the Rules of 2011 provides for the CWC and its composition. Rule 21 (1) provides that the Committee shall have a tenure for 3 years and the tenure of the Chairperson and the Member will be co-terminous with the tenure of the Committee. Further, Rule 22 provides for the qualification for Chairperson and the Members of the Committee. There is no line of distinction drawn for the qualification of Chairperson or a Member of the WC. Relevant provision of Rule 22 (1) and (2) may be reproduced as below for ready reference:

“...... 22. Qualifications for Chairperson and Members of the Committee:

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(1) A person to be selected as a Chairperson or Member of the Committee shall have either of the following qualifications, in addition to a minimum of seven years experience in their respective field:

(i) a person with post graduate degree in social work, psychology, child development, education, sociology, law, criminology and, where such a person is not available, a person with at least a graduate degree in any of the social science disciplines; (ii) a teacher, doctor or a social worker who has been involved in work concerning children. (2) The Chairperson or Member of the Committee shall be a person not less than 35 years of age. ………………………………………………………………………………………...”

16. From a perusal of the above quoted Rules, it can be seen that the respondent No. 8 having the qualification and experience as can be seen from the meeting minutes of the DLSC dated 11.2013 cannot be said to be under qualified for the post of Chairperson or members of the CWC. The SLSC in their proceeding dated 28.1.2014 selected the respondent No. 8 as the Chairperson of the CWC for Karimganj district while resolving that the remaining vacancy be re-notified in the leading newspaper published from Guwahati , Joraht, Dibrugarh and Silchar. It is an admitted position in law that the selection committee or the screening committee has its own freedom for choosing candidates in term of the norms and guidelines. The SLSC in coming to its conclusion also be said to have formed a one man committee as alleged by the petitioner. In fact it has found only the respondent No. 8 to be qualified and for the remaining vacancy it was decided that same should not be notified.

17. At this stage, it can be noticed that the State respondents in the meantime on 8.8.2014 had issued an Advertisement for four vacant posts of members of CWC besides various other district through an Advertisement in the local daily. The petitioner on coming to learn about such Advertisement had filed Misc. Case No.2365 of 2014 in the writ

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petition and this Court vide order dated 8.9.2014 permitted the respondents to continue with the selection for four member of CWC in the Karimganj district but directed that no appointment should be made without the leave of the Court. Further the petitioner filed Misc. Case No.3471 of 2014 in the writ petition for impleading the SLSC as the respondent No.9 which was permitted vide order dated 8.6.2015. The SLSC was thus impleaded as respondent No.9. However, besides the respondent No.3, the other respondents have not filed their affidavits.

18. It can also be seen that the Rules of 2011 do not provide a separate qualification for Chairperson and Member of the CWC. The advertisement dated 22.10.2013 was floated in inviting application from the interested persons to be member of CWC. Although the respective applicants pursuant to the advertisement may have applied for either the post of Chairperson or Member of the CWC and the DLSC may have prepared a panel list in order of their merit as per the application of the candidates, the SLSC can nevertheless be bound by such panel list. As per the Rules of 2011 and the relevant guidelines including the Advertisement dated 22.10.2013, the DLSC is empowered to finalize the select list and thereafter with the approval of the State Government, the Chairperson and members of the CWC are to be appointed. The SLSC having followed the aforesaid procedure cannot be said to have committed any illegality in finalizing the select list and thereafter in the issuance of the notification dated 24.6.2014. The contention of the writ petitioner that the said respondents have constituted a one man committee is also misconceived in as much as the SLSC resolved to re-advertise the remaining vacant posts of Member of CWC after having not found qualified persons. The same was then processed and re-advertised on 8.8.2014. However, due to

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the interim order passed by this Court on 8.9.2014 such process could not be completed.

19. Having found that the SLSC in preparing the final select list dated 28.1.2014 did not commit any mistake, the same is not interfered with. The notification dated 24.6.2014 also does not call for any interference as well. In the result, the official respondents are directed to process and finalize the selection process in terms of the Advertisement dated 8.8.2014 and appoint the selected candidates as Member of the CWC for the Karimganj district as expeditiously as possible. It is also hereby provided that the term of the CWC will commence from the date on which the members to the CWC are appointed. The writ petition thus being without any merit, the same is dismissed.

20. All the interim orders passed in connection with the instant case will stand merged with the disposal of this writ petition. No costs.

JUDGE

Nivedita

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