Calcutta High Court (Appellete Side)
State Of West Bengal & Ors vs Nilmadhab Thakur & Ors on 5 August, 2016
Author: Nishita Mhatre
Bench: Nishita Mhatre
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Justice Nishita Mhatre
And
The Hon'ble Justice Tapash Mookherjee
AST 181 of 2015
State of West Bengal & Ors
... Appellants
vs.
Nilmadhab Thakur & Ors
... Respondents
For the Appellants : Mr. Lakshmi Kumar Gupta
Mr. Pantu Deb Roy
Mr. Subrata Guha Biswas
For the Respondent No.1 : Mr. Aswini Kumar Bera
Mr. Arijit Bera
Mr. Hemraj Adhikari
For the Respondent No.4 : Mr. Avirup Chatterjee
Heard on : 01.07.2016
Judgment on : 05.08.2016
Nishita Mhatre, J.:
1. The appellants are the State Government and its officers who deal with the committees constituted under the Juvenile Justice (Care and Protection of Children) Act, 2000 and the West Bengal Juvenile Justice (Care and Protection of Children) Rules, 2009. The Respondent No.1 who was the petitioner before the learned Single Judge was aggrieved because he was not appointed to the District Juvenile Justice Board although his name figured in the original panel prepared for selection of the social worker associated with the committee. Respondent No.2 is the Union of India. Respondent No.3 is the Superintendent of Police. Respondent No.4 is the person who was appointed to the aforesaid District Juvenile Justice Board although his name was not on the select list and he was the last wait-listed candidate. Respondent No.5 is the Principal Magistrate, Juvenile Justice Board, Birbhum.
2. An advertisement was issued on 5th November, 2014 inviting applications from eligible persons for the posts under the Juvenile Justice Board (hereinafter referred to as "JJB") and Child Welfare Committee (hereinafter referred to as "CWC"), Birbhum. The tenure was for a period of 3 years. Respondent Nos. 1 and 4 applied for the post of social worker to be associated with the JJB. They underwent a selection process. A merit list was prepared on 31st December, 2014. Respondent No.1 was second in the merit list. He and another person were found suitable for being selected to the post of social workers for the JJB. Respondent No.4 Atanu Kumar Dutta was the 5th person in the waiting list prepared on the same day. However, on 9th March, 2015 a notification was issued by the Government of West Bengal declaring the names of the persons who would constitute the JJB for the District of Birbhum for 3 years. The Principal Magistrate was the principal officer of the Board. Saswati Saha who was first on the merit list and Respondent No.4 Atanu Kumar Dutta were the two social workers appointed to the Board. Being aggrieved by that notification, the Respondent No.1 challenged the same in WP 7763(W) of 2015. The learned Single Judge allowed the writ petition and set aside the appointment of Respondent No.4 and directed the appellants to ensure that Respondent No.1 was appointed as the second social worker on the JJB. The State was directed to pay costs assessed to the petitioner, i.e., the Respondent No.1 herein.
3. The present appeal has been preferred by the State against the judgment of the learned Single Judge. The main issue raised by Mr. Lakshmi Kumar Gupta, learned Additional Advocate General, appearing for the appellants is that the learned Single Judge has ignored the provisions of Rule 5(4)(b) of the West Bengal Juvenile Justice (Care and Protection of Children) Rules, 2009 which empower the State Government to appoint any person to the JJB. He submitted that a person could be appointed by the State to the Board regardless of whether he had participated in the selection process, if the State found that the person was more suitable for the job than those who had succeeded in the selection process. He also submitted that a selection committee merely recommends the names of the persons who are suitable for being appointed to the Board under Sub-Rule (1) of Rule 92 of the aforesaid Rules. He pointed out that it is not incumbent on the Government to appoint those persons who have been selected if it finds that more suitable persons are available for the job. The learned Counsel then submitted that because of the haste with which the learned Single Judge decided the writ petition, the aforesaid issue was not considered by him.
4. Mr. Aswini Kumar Bera, the learned Counsel appearing for the Respondent No.1, submitted that the issue regarding Rule 5(4)(b) was never raised before the learned Single Judge and therefore the appellants cannot raise this issue at the appellate stage. He submitted that had the Government contended before the learned Single Judge that Respondent No.4 was appointed in exercise of its powers under Rule 5(4)(b), Respondent No.1 could have challenged the vires of that Rule before the learned Single Judge. He further submitted that the Respondent No.1 should be permitted to challenge the vires of the Rule in the Appeal Court as mentioned in the affidavit-in-opposition. The learned Counsel then submitted that Rule 5(4)(b) gives unguided powers to the State to appoint any person irrespective of whether that person had applied for being appointed to the JJB and this could lead to nepotism and favouritism. He then submitted that when the name of Respondent No.1 was on the merit list, there must be good and valid reasons for not appointing him. He submitted that the Government has not disclosed any reason for not appointing the Respondent No.1 or the grounds on which it found that Respondent No.4 was more suitable to be appointed to the post. The only reason given, according to the learned Counsel, is that the Respondent No.1 was a practising advocate and therefore would not have been able to devote any time for the work of the JJB. The learned Counsel pointed out that the Respondent No.1 was a social worker of the Board before his term ended and the notification was issued. There was no complaint about the Respondent No.1 or his working with the Board. The learned Counsel therefore urged that being an advocate cannot be a disqualification for the appointment to the Board as a social worker.
5. The learned Counsel for the Respondent No.4 adopted the arguments of the learned Additional Advocate General. He relied on certain provisions of the Rules which we will advert to in support of the choice of the Government to appoint Respondent No.4 as a social worker on the JJB, Birbhum.
6. The Government of West Bengal has framed West Bengal Juvenile Justice (Care and Protection of Children) Rules in 2009 which were published in the extraordinary Kolkata Gazette and have come into force on 3rd February, 2010. Under Chapter III of the Rules, Juvenile Justice Boards are to be set up in every district constituted by the State Government. The composition of the Juvenile Justice Board has been mentioned in Rule 5. It shall consist of a Metropolitan Magistrate or a Juvenile Magistrate of the first class and two social workers, one of whom must be a woman. These three persons who constitute a Bench have been conferred with the right to exercise powers under the Code of Criminal Procedure, 1973. Under Sub-Rule (3)(a) of Rule 5, a Magistrate with special knowledge or training in child psychology or child welfare shall be designated as the Principal Magistrate of the Board. If such a person is not available then under Rule 5(3)(b), the State Government shall provide training in child psychology or child welfare for such short term to that Principal Magistrate. Rule 5(4) reads as follows:
"5(4)(a) The State Government shall, subject to the provisions of Clause (b), appoint two social workers referred to in sub- rule (1).
(b) While appointing the social workers, the State Government may, at the time of considering the names recommended under sub-rule (1) of rule 92 by the Selection Committee, also take into consideration the name of any other person belonging to the concerned district, who is, in its opinion, suitable to be appointed as the social worker."
7. Sub-Rule (5) of Rule 5 provides that the State may ensure training and orientation in child psychology, child welfare and child rights, national and international standards for juvenile justice to all Members of the Board.
8. Rule 7 speaks about the qualification of the Members of the Board and reads as under:
"7. Qualification for Members of the Board - (1) The social worker to be appointed as a member of the Board shall be person not less than 35 years of age and not above 65 years of age, who has at least a graduate degree in social work, health, education, psychology, child development or any other discipline and has been actively involved and engaged in planning, implementing and administering measures relating to child welfare for at least seven years. (2) No person shall be considered for selection as a Member of the Board, if he -
(a) has been convicted under any law;
(b) have ever indulged in child abuse or employment of child labour or any other human rights violations or immoral act;
(c) is holding such other occupation that does not allow him to give necessary time and attention to the work of the Board;
(d) does not fulfill the qualification and experience prescribed in the Act and the rules made there under and in such a case the Selection Committee shall after due inquiry and on establishment of such fact, reject his application and recommend the name of the next person from the list of names prepared for filling the vacancies."
9. The social workers are to be selected by a Selection Committee constituted for every district under Rule 91. The Members of the selection committee are the District Magistrate, Superintendent of Police and the District Social Welfare Officer who is the principal convenor of the selection committee. Its functions are enumerated in Rule 92 which reads as follows:
"92. Functions of the Selection Committee - (1) The Selection Committee shall select and recommend a panel of names, within such period as may be fix by the State Government in this behalf, to the State Government for the appointment of social worker of the Board or Chairperson and Members of the Committee.
(2) While selecting the names of social worker of the Board and Chairperson and member of the Committee, due regard shall be given to the provisions of rule 7 and rule 22 of these rules."
10. As mentioned earlier the JJB must consist of two social workers, including one woman. It has been argued by learned Additional Advocate General that in view of the provisions of Rule 5(4)(b), the State Government in its discretion can consider the name of any other person belonging to the concerned district who in its opinion is suitable for being appointed as a social worker rather than those who have been selected by the Selection Committee. This argument of Mr. Gupta leaves a very wide and untrammelled discretion to the Government. The power is liable to be misused as it is unguided. The probability of such discretion being exercised arbitrarily, capriciously and whimsically cannot be ruled out. To suggest that a person other than those who were candidates before the Selection Committee can be included for appointment as social worker is, in our opinion, a dangerous portent. If Government is allowed to exercise such unguided power, the chances of nepotism and favouritism creeping into the selection process would be heightened.
11. Rule 7 prescribes the qualifications of the Members of the Board. It has been submitted by Mr. Gupta that since Respondent No.1 is a practising advocate, he would not be able to devote the necessary time and attention to the work of the Board and therefore he ought to have been disqualified by the Selection Committee. He placed reliance on Sub-Rule (2)(c) of Rule 7 in support of the aforesaid submission. It is true that a practising advocate may not be able to devote as much time as a person who has no other occupation to attend to the work of the Board. However, that does not necessarily mean that he would not be able to devote adequate time and attention to the work of the Board. An advocate can always adjust his work since he is not an employee. When the petitioner was selected by the Selection Committee functioning under Rule 92, it was aware that the Respondent No.1 was a practising advocate. The Selection Committee must have assessed, while interviewing him, that he was able to afford the necessary time for the work of the JJB. In any event, under Rule 9 a person is expected to have a minimum attendance of three quarters of the days in a year. Therefore, considering these provisions of law the Selection Committee had found that Respondent No.1 was more suitable for the job than those who were included in the waiting list.
12. It is true that the Government is not bound by the recommendations of the Selection Committee. However, there must be good, convincing and cogent reasons for rejecting the recommendations made be by the Selection Committee. We do not find that the Government has recorded any such reasons before rejecting the claim of Respondent No.1.
13. There is no material on record which shows why Respondent No.4 was preferred over Respondent No.1 although the Selection Committee had found that Respondent No.1 was more meritorious. In fact, Respondent No.4 was last in the waiting list having scored fewer marks than all the others. It is apparent that the Government has acted arbitrarily and capriciously while appointing Respondent No.4 instead of the recommended candidate. We therefore have no hesitation in upholding that part of the order of the learned Single Judge which set aside the appointment of the Respondent No.4. Respondent No.1 is therefore the only other candidate who has been recommended by the Selection Committee, apart from the candidate whose recommendation has already been accepted by the Government and an appointment letter has been issued.
14. The Government will therefore decide whether to appoint Respondent No.1 as the second social welfare officer within a period of four weeks from today in the light of our observations above. While deciding whether to accept the recommendation made by the Selection Committee, the Government must bear in mind that the Selection Committee has made the recommendation after considering the qualifications of each candidate and their draw-backs. If the Government does not wish to accept the recommendation made, it must record reasons for the same. These reasons would be subject to judicial review. However, if the Government decides to accept the recommendations, there is no need for recording reasons for the same.
15. This exercise must be carried out within four weeks from today, so that the JJB can start functioning at the earliest.
16. The appeal is disposed of accordingly.
17. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.
(Tapash Mookherjee, J.) (Nishita Mhatre, J.)