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IN the GAUHATI HIGH COURT Writ Petition (C) No.3486/2014 Sri

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IN the GAUHATI HIGH COURT Writ Petition (C) No.3486/2014 Sri IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Writ Petition (C) No.3486/2014 Sri Dipankar Ghosh Son of Late Tarak Lal Ghosh Resident of Laxmi Bazar Road Ward No.6, Karimganj Post Office-Karimganj District-Karimganj, Assam …….Writ Petitioner -Versus- 1.The State of Assam represented by the Chief Secretary to the Government of Assam, Dispur, Guwahati-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 Page 1 of 11 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 W.P( C) No.3486 of 2014 Page 2 of 11 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 W.P( C) No.3486 of 2014 Page 3 of 11 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 India 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, Jorhat, Dibrugarh, Silchar 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. W.P( C) No.3486 of 2014 Page 4 of 11 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 Kamrup district, 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 W.P( C) No.3486 of 2014 Page 5 of 11 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.
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