Madhya Pradesh High Court
Specialised Adoption Agency Kilkari ... vs Central Adoption Resource Authority ... on 19 March, 2020
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Writ Petition No. 28071/2018
Specialised Adoption Agency, Kilkari UDAAN
-Versus-
Central Adoption Resource Authority & others
Date of Order 19/03/2020
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay Dwivedi
Whether approved Yes/No
for reporting
Name of counsel for For Petitioner: Shri Shiv Kumar
parties Shrivastava, Advocate
For Respondents: Shri Rahul Jain,
Advocate for the respondents-
Government of India.
Shri Vikalp Soni, Government
Advocate for the Respondents-State.
Reserved on: 17/01/2020
Delivered on: 19/03/2020
ORDER
Invoking the jurisdiction under Article 226 of the Constitution of India, the petitioner, being the Director of Specialised Adoption Agency (in short 'SAA'), Kilkari (Udaan), has filed this petition, seeking following reliefs:
i) quashment of the recommendation dated 01.11.2018 (Annexure P-1), which is in the shape of an order;
2ii) to take action against respondents 1 and 2 for proceeding against the petitioner arbitrarily, in biased manner and in violation of principles of natural justice, without conducting independent enquiry;
iii) a direction to respondents 1 and 2 to act upon the object and spirit of Juvenile Justice (Care and Protection of Children) Act, 2015 (in short, 'the JJ Act'), and not to demoralise the stakeholders who are working procedurally as per law;
iv) to pass orders for displacement of the authorities, who are on key posts, from office;
v) a suitable direction for the upliftment of adoption in the State of Madhya Pradesh; and
vi) any other relief which can be granted in the facts of the case.
2. The impugned recommendation dated 01.11.2018 (Annexure-P-1), which is in the shape of an order, has been passed by respondent No.3- Joint Secretary, Member, Steering Committee, Central Adoption Resource Authority (in short 'CARA'), recommending to the Government of Madhya Pradesh to revoke the recognition granted to SAA Kilkari (Udaan) with immediate effect; transfer the children residing in the said SAA to another SAA and remove the linkages of the CCIs with the SAA for linking them to another SAA(s); and also to initiate further inquiry on the functioning of the Child Welfare Committee and to take punitive actions, as per the provisions of the JJ Act and other legal provisions.
3. The said recommendation has been assailed by the petitioner on several grounds, inter alia, stating that the reasons to make the recommendations, in the shape of an order, as referred, are on incorrect facts as explained in para 5.11 of the writ petition, and tainted with mala fide, in arbitrary exercise of power and in violation of the principles of natural justice. It is said, CARA demanded certain 3 information and papers from SAA, Kilkari (Udaan), vide Annexure P-17, dated 06.08.2018, which was submitted with details, vide Annexure P-18 on 14.08.2018. On receiving the same, surprisingly, without affording an opportunity of hearing to the petitioner, abruptly the order impugned has been passed by respondent No.3 on 01.11.2018, making recommendations against the SAA, Kilkari (Udaan), which are not in consonance to the provisions of law and also in excess to the power and the authority. It is further stated that the entire action is with a mala fide intention, because the inaction of the CARA has been reported to the Minister by the SAA, Kilkari (Udaan), and also to the High Court, on which the High Court has taken cognizance. The CARA had filed the reply in the said case, mentioning incorrect facts, which has been taken note by the High Court, making observations against the CEO, CARA. The Court, with intent to find out the truth in the allegations as alleged against the petitioner in the show- cause notice, observed that it may be looked into by the higher authority that includes Steering Committee because the CEO, CARA, is biased with it. The direction issued by the Court has been misinterpreted by respondent No.3 though it is not against the petitioner. It is urged that the allegations alleged in the show-cause notices dated 05.01.2018 and 10.01.2018 against the petitioner, as per the decision of the Civil Revision Nos.258 and 260 of 2017, dated 12.02.2018, were required to be examined by the higher authority, in view of the conduct of the CEO, CARA, but it has been dealt maliciously by Mr. Deepak Kumar, CEO, CARA, and Mr. Rajesh Kumar, Under Secretary to the Government of India, Ministry of Women & Child Development, therefore, they have been impleaded in their 4 personal capacity as respondents 5 and 6 respectively, with specific allegations against them.
4. It is very surprising that the Steering Committee, CARA, and respondent No.3, who issued the order impugned, have not chosen to file reply and relied upon the reply filed only on behalf of respondent No.1- CARA as well as respondent No.5- Deepak Kumar, on an affidavit of Assistant Director, CARA, namely Ashutosh, and all of them are represented through the Assistant Solicitor General. It is contended that if an officer has been joined by name as party, alleging bias against him and his response is sought, he cannot file the reply with the CARA through his subordinate officer. It is further contended that the Steering Committee is silent and also respondent No.6 has not filed any reply. In view of the foregoing submissions, it is urged that the recommendation impugned may be set aside and the reliefs as prayed may be granted.
5. On filing the present writ petition, this Court, vide interim order dated 05.12.2018, stayed the operation of the impugned order dated 01.11.2018 (Annexure P-1). For the whole financial year 2019-20, the funds have not been released, however, on filing an application for release of funds, the reply was sought by the Court on 16.09.2019 but no response by respondents 1 to 3 has been filed. While in the main reply of the State Government, with regard to release of the funds, it is said, it is the function of the Central Government and CARA, however, they have been wrongly joined as party in the case. On 25.09.2019, the High Court, after hearing the parties, allowed the application for release of the funds and directed the respondents to release the first instalment due, to the 5 institution, but the direction of Court has not been complied with. However, on 01.11.2019, by way of last indulgence, four weeks' time was granted to comply with the order, for release of the funds, otherwise the responsible officers were directed to mark their presence on the next date of hearing. Even after such order, the funds have not been released, defying the order of the High Court, showing utmost haste.
6. In view of the said, it is contended that the CEO, CARA, respondent No.5, wants to close the SAA Kilkari (Udaan), because the SAA has informed about his inaction to the then Minister, on which immediate answer has been given and thereafter, his inaction was brought to the notice of the Juvenile Justice Committee of the High Court of Madhya Pradesh. This Court has taken note of the complaint of the petitioner and issued certain directions, however, the CEO, CARA, who is joined as a party by name in the present case, has acted with mala fide and with biased intention, however, managed the affairs of the office of respondent No.2 and 3 against the petitioner and filed the reply through a subordinate officer on his behalf as well as on behalf of CARA. In such circumstances, appropriate orders may also be passed for immediate release of the funds.
7. In the reply filed by respondents 1 and 5, it is, inter alia, stated that the recommendation dated 01.11.2018 has been made after giving opportunity of hearing to the petitioner and after issuance of show-cause notices dated 05.01.2018 and 10.01.2018 to which a reply was also submitted by the petitioner. It is said, vide communication dated 30.08.2018, the petitioner had been asked to participate in the enquiry proceedings scheduled to be held 6 on 06.09.2018, but she has not participated on the pretext of Bharat bandh and high alert in 35 districts of Madhya Pradesh and due to restricted movements in Bhopal on the date of hearing. The respondents contended that non- appearance of the petitioner is on an incorrect pretext and not justified; therefore, the order dated 01.11.2018 passed, as per the powers conferred under Section 70 of the JJ Act, read with Regulation 25 of Adoption Regulations, 2017, (in short, 'the Regulations') against the petitioner, SAA Kilkari Udaan, making recommendations to the State Government, is in conformity to law. The said order has been issued with the approval of the Minister, MWCD, and Chairperson, Steering Committee, CARA. In view of the foregoing assertions, it is prayed to dismiss the petition.
8. The State Government, i.e., respondents 4 and 7, by filing reply, referred all the averments of the petition from paras 1 to 6, and said, looking to the impugned order dated 01.11.2018, the communications, the show-cause notices vide Annexures P-12 and P-13 and the reply submitted by the petitioner, it is discernable that the adverse action has been proposed and taken against the petitioner by respondents 1 to 3. It is only in pursuance of the order impugned, action was required to be initiated by them, but because it is stayed by the Court, however, they have not taken any action against the petitioner. Therefore, the answering respondents are not contesting parties and only the respondents 1 to 3 are the main contesting parties to the case. It is further said that in case the impugned order is set aside by this Court, the State Government will proceed accordingly and as no relief has been claimed against the answering respondents, the petition deserves to 7 be dismissed as against them. In the matter of non- releasing the funds, it is stated in para 7 that after the order of this Court on 25.09.2019, a detailed letter has been sent by the answering respondents to respondent No.3, on 18.10.2019, requesting respondents 1 to 3 to release the fund for petitioner. Another letter dated 10.12.2019 has also been sent by the answering respondents to respondent No.1, in response to which, the Joint Director, CARA, communicated to the District Programme Officer, Women and Child Welfare, Bhopal District, on 11.12.2019, regarding the letter of Ministry of Women and Child Development dated 28.10.2019, through which CARA was requested to take necessary action against SAA and defend the interest of the Government of India. In view of the said, it is urged that the answering respondents, i.e., the State Government is no way concerned even in the matter of release of funds; therefore, they are not necessary party.
9. I have heard Shri Shiv Kumar Shrivastava, learned counsel appearing on behalf of the petitioner, Shri Rahul Jain, Advocate appearing on behalf of respondents- Government of India, Shri Vikalp Soni, the Government Advocate appearing on behalf of the Respondents-State and perused the record of the writ petition. The documents submitted by the learned counsel counsel for the petitioner during the course of hearing, since have material bearing and relate to the issue involved in the case, have also been taken note of. To rebut those documents, opportunity has been given to the counsel for the respondents to submit written synopsis, if they so desire, but the opportunity so provided has not been availed by them.
810. After perusal, it is evident that in the present case, order impugned has been passed on 01.11.2018 by the Government of India, Ministry of Women Development and Child Welfare. The counsel for Government of India has appeared on behalf of the Central Government, but he has only filed the reply on behalf of the CARA as well respondent No.5, who is the CEO of CARA, impleaded by name as party, against whom bias is alleged. In the reply, he has supported the order impugned (Annexure P-1), relying upon the proceedings of respondents 2 and 3. It is relevant to note that allegation of bias and malice is made against respondents 5 and 6 due to sending the e-mail to the Minister on 26.10.2017 vide Annexure P-6 and due to observations made by the High Court in the order dated 12.02.2018 in Civil Revision Nos.258 and 260 of 2017, which have not been explained by filing the personal affidavit. It is to be noted that the explanation given in para 5.11 by the petitioner in the writ petition and the reply to the allegations of the show-cause notices dated 05.01.2018 and 10.01.2018, has not been denied by the respondents controverting the same, except to refer the proceedings of the Committee (Annexure-F). It is also relevant to note that the averment in ground C of the writ petition regarding the e-mail to the Minister and of the order of the High Court due to which respondent No.5 got annoyed and threatened the petitioner of dire consequences has also not been denied, despite he being impleaded in his personal capacity. Thus, there is no denial to the above pleadings and documents by the respondents.
11. It is trite law that the pleadings made in a writ petition or a suit, if not denied specifically or denied vaguely, would 9 amount to admission of the facts so asserted. In GIAN CHAND & BROTHERS v. RATTAN LAL @ RATTAN SINGH reported in (2013) 2 SCC 606, the Apex Court, in para 22, held as under:
"It is obligatory on the part of the defendant to specifically deal with each allegation in the plaint and when the defendant denies any such fact, he must not do so evasively but answer the point of substance. It is clearly postulated therein that it shall not be sufficient for a defendant to deny generally the grounds alleged by the plaintiffs but he must be specific with each allegation of fact."
12. Similarly, in the case of ASHA v. PT. B.D. SHARMA UNIVERSITY OF HEALTH SCIENCES & OTHERS reported in (2012) 7 SCC 389, the Apex Court, in para 17, held as under:
"It is a settled principle of the law of pleadings that an averment made by the appellant is expected to be specifically denied by the replying party. If there is no specific denial, then such averment is deemed to have been admitted by the respondent. In the present case, it is evident that the above-noted averments in the writ petition were relevant and material to the case. In fact, the entire case of the appellant hinged on these three paragraphs of the writ petition. It was thus, expected of the respondents to reply these averments specifically, in fact to make a proper reference to the records relevant to these paragraphs. In view of the omission on part of the respondents to refer to any relevant records and failure to specifically deny the averments made by the appellant, we are of the considered view that the appellant has been able to make out a case for interference."
13. Further, in the case of NASEEM BANO v. STATE OF UTTAR PRADESH & OTHERS reported in 1993 Supp (4) SCC 46, in para 9, the Apex Court held as under:
"......Since no dispute was raised on behalf of respondents Nos. 1 to 4 in their reply to the averments made by the appellant in the writ petition that 40% of 10 the total number of posts had not been filled by promotion inasmuch as the said averments had not been controverted the High Court should have proceeded on the basis that the said averments had been admitted by respondents."
14. The Division Bench of this High Court, in the case of PRANI RAKSHA SANGH v. STATE OF MADHYA PRADESH & OTHERS reported in (2011) 2 MPHT 169, relying upon the judgment of NASEEM BANO (supra), held as thus:
"11. After having noticed the relevant provisions of the Act, we may advert to facts of the case. In Paragraph 5.4 of the petition, Petitioner has averred that any person on fulfilment of his wish or desire, can offer fruits, grains and sweets to the deity which is mentioned in booklet (Annexure P-1) published by the devotees. From perusal of the return filed on behalf of Respondent No.7, we find that in reply to Para 5.4 of the petition it has been stated that contents of the aforesaid para need no comments. Thus, the averment made in the petition that booklet which has been published by the devotees of the temple which provides that on fulfilment of a desire, a devotee can offer fruits, grains, or sweets to the deity, has not been specifically denied. It is also relevant to mention here that in Paragraphs 5.7 and 5.8 of the petition, the Petitioner has specifically mentioned the manner in which an animal is sacrificed. Return of Respondent Nos. 1 to 6 is silent with regard to manner in which an animal is sacrificed. From perusal of the return filed on behalf of Respondent No.7, we find that the manner in which an animal is sacrificed, has not been specifically denied. In Paragraph 14 of the return, it is only stated that Petitioner has nowhere disclosed wherefrom he got this baseless and false information. It has further been stated that devotees have not acted with the animals in a brutal manner. From the perusal of photographs filed along with writ petition pertaining to sacrifice of animals, averments made in the petition with regard to manner of sacrifice are substantiated, which brings the act of sacrifice the animal within the purview of Section 11 of the Act. It is trite law that any averment of fact made in writ petition if not specifically denied, is deemed to be admitted."11
15. In the case of RAJESH SINGH v. M.P. RAJYA KRISHI VIPNAN BOARD AND OTHERS reported in 2002 (4) MPHT 496, this High Court, in para 4, held as under:
"4. The case of the respondent No.4 is that the petitioner was appointed in April, 1989 and not on 1-1- 1988. As he was appointed after 31-12-1988 his services could not be regularised. According to the respondent No.4 there has been manipulation in service record, cash book and voucher file and the name of the petitioner has been written after scoring the name of Rajendra Singh. The return filed by the respondent No. 4 is cryptic. There is no parawise reply. Therefore, the averments made in the petition which have not been specifically denied will be deemed to have been admitted...."
16. The Delhi High Court, in the case of ALLORA ELECTRIC & CABLE CO. v. M/s. SHIV CHARAN & BROS. reported in MANU/DE/0373/1998 : 1998 III AD DELHI 487, observed as under:
"11.....The defendants in corresponding para 7 of the written statement have admitted that plaintiff had been supplying goods to them from time to time and accounts used to be settled at the end of each year. The total purchases made and the total payments made by defendants as pleaded in paras 8 to 19 of the plaint have been denied but not specifically. Only vague denial has been made stating that the contents of such paras are either incorrect or wrong and denied. Learned counsel for the plaintiff has strongly contended that in the absence of specific denial the above said averments made in these paras of the plaint should be deemed to have been admitted as provided under Order 8 Rule 5 CPC. The object of this provision is to narrow the issues to be tried in the case and to enable either party to know what the real point is to be discussed and decided. The word "specifically" qualifies not only the word "deny" but also the words "stated to be not admitted" and therefore a refusal to admit must also be specifically stated. A defendant can admit or deny the several allegations made in the plaint and if he decides to deny any such allegations, he must do so clearly and explicitly. A vague or evasive reply by the defendant cannot be considered to be a denial of fact alleged by the plaintiff. A party is expected to expressly 12 deny the fact which is within its knowledge and a general denial is not a specific denial.
12. Evasive or vague denial of fact in the written statement of such facts should be taken to be no denials and so deemed to be admitted. On that principle in the absence of specific and unambiguous denial and the denial here being vague, the averments made in paras 8 to 19 should be deemed to have been admitted by the defendants."
17. The aforesaid two judgements have been taken into consideration by the Delhi High Court in the case of CE CONSTRUCTION LIMITED AND OTHERS vs. INTERTOLL ICS INDIA (P) LIMITED reported in 219 (2015) DLT 667, wherein it was held that if the denial has not been made or it is not specific, the facts be deemed to be admitted.
18. In the present case, there is no denial to the pleadings as made in para 5.11 as well as ground C of the writ petition and the documents filed in support of those pleadings, as already discussed hereinabove. Thus, in view of the foregoing legal position, in the absence of any denial by the other side, the said pleadings as well as the documents would be deemed to be admitted and accepted.
19. In the above context and also to analyse the conduct of the authority, this Court is required to go through the contents and the reasons to make the impugned recommendation dated 01.11.2018, in the shape of the order.
20. In paras 1 and 2 of the order impugned, reference regarding various complaints and the show-cause notices dated 05.01.2018 and 10.01.2018 given to the petitioner, has been made. Thereafter, respondent No.3 has assumed jurisdiction in reference to direction No.6 in the order dated 13 12.02.2018 passed in Civil Revision No.258 of 2017. In the subsequent paragraph 4, the reference regarding formulation of the committee with the members has been made and thereafter, in para 5, the report of the committee dated 15.10.2018 referred to the Secretary, Ministry of Women and Child Development, has been mentioned with respect to various children, namely, "Rudrakash", "Shivansh", "Shivi", "Manas", "Riddhi", "Virat", "Shivira", "Sarita", "Neha", "Durga", "Karan" & "Arjun", "Mohit" & "Krishna", and "Mahima", alleging violation of the provisions of the Act/Rules/Regulations in their cases, and thereafter, making certain observations, the order has been passed. In the said context, it is clear that the order impugned dated 01.11.2018 is based on the allegations of the show-cause notices dated 05.01.2018 and 10.01.2018. In this regard, the show-cause notice dated 05.01.2018 is required to be perused, which is marked as Annexure P-12, in the context of the violations alleged, the response of the petitioner in the reply given to the said show-cause notice, vide Annexure P-16, and the finding on the respective issues in the order impugned and the averments made in the writ petition in relation thereto and its reply are required to be referred in serial-wise, which are discussed as under:
a) So far as first issue is concerned, in the case of child "Rudraksh", in the show-cause notice dated 05.01.2018, it is alleged that after being declared legally free for adoption on 30.11.2015, the child has been placed illegally with the Prospective Adoptive Parents (PAPs), Mr. Yashpal and Mrs. Savita Panvar. When the said fact came to the knowledge of the CARA, the child was referred through CARINGS to another registered PAPs, Mr. 14 Ghanshyam & Mrs.Soni Srivastava on 28.12.2015.
However, it was allegedly said to be in violation of Section 80 of the JJ Act. In the order impugned, it is observed in sub-para (vii) of para 6, that in the case of child "Manas", SAA filed a case challenging the adoption order of the Court directly obtained by parents, but similar action has not been taken in the case of "Rudraksh", thereby the petitioner agency committed violation of Regulation 25(2)(a) of the Regulations.
In this regard, on perusal of reply submitted by the petitioner to the show-cause notice, vide Annexure P-16, it is clarified that the child "Rudraksh", born on 10.02.2015, sent to the agency by Child Welfare Committee (CWC) on 16.04.2015 and declared legally free on 30.11.2015. The parents Mr.Yashpal Panvar & Mrs. Savita Panvar were registered parents with CARA on 30.03.2015. The Home Study Report was prepared on 04.05.2015. On receiving the child by the SAA Kilkari Udaan, as abandoned, he was hospitalised and at that time, the PAPs used to visit the hospital to see the child and developed affection towards the child. During this period, the new policy of the CARINGS was introduced on 01.08.2015, changing the previous procedure of referral, which was communicated to the PAPs, who have then filed a case in the Court of ADJ, Bhopal, on which the notice was received by the petitioner agency on 23.12.2015. Thereafter, order was passed in favour of those parents by the Court on 30.01.2016 and the child was taken in adoption by those parents. Since then, the said child is living with the adopted parents. All these facts were apprised to respondent No.5 when he had visited Indore in relation to an orientation programme and again on 28.06.2017 by email. It is also further stated that with 15 respect to non-registered parents, where direct adoption orders were passed by the Court, action has been taken by the agency challenging those orders only; whereas the parents Yashpal Panvar and Savita Panvar were registered parents with the CARA on 30.03.2015. Therefore, challenge to such order was not made.
In para 5.11 (a) of the writ petition also, the petitioner has stated that the entire proceedings and the order of the Court regarding child "Rudraksh" were sent to respondent No.1, as desired, as per Annexure- P16-A. All the above facts stated by the petitioner were neither denied nor rebutted by the authority and even in the reply filed by the CARA, there is no denial to the above facts. In the light of the admitted facts, it is clear that the parents Yashpal Panvar and Savita Panvar were the PAPs registered with the CARA, in whose favour the Court passed the order of adoption of the child "Rudraksh", who is residing with them. It is said, in the case of child "Manas", direct adoption order was sought from the Court by non-registered parents, which was challenged. The said fact has not been denied or disputed by the CARA, thus, findings on the said issue, so recorded in the order impugned, with regard to the child "Rudraksh" are arbitrary, unjust, without application of mind and mala fide; therefore, unsustainable.
b) The second issue raised in the show-cause notice dated 05.01.2018 is with regard to a complaint of PAPs, Mr. Santosh Kumar Patel and Mrs. Anita Patel, regarding soliciting of unauthorised gifts and donations from them, when they were referred the child "Shivansh". It is alleged that the PAPs had submitted number of audio recordings of their conversation with the office bearers of the SAA, from 16 which it may be gathered that a demand of Rs.10,000/- as legal fees has been made, apart from the fees of Rs.40,000/-, which itself include the legal fees. It is also alleged that the background information of the child was revealed to the PAPs, which is a violation of Section 74 of the JJ Act. On this issue, in the order impugned, it is said that sensitive/confidential information about the child was disclosed to the PAPs, which impacted their decision of adopting the child. The show-cause notice is not on the said point, however, violation of Regulation 24(2)(k) of the Regulations and Section 74 of the JJ Act is alleged. It was further observed that as per the audio transcripts sent by the complainant and available with the authority, it appears the SAA has demanded additional amount of Rs.10,000/- for legal expenses apart from the prescribed adoption fees of Rs.40,000/-, which is punishable offence under Regulation 25(2)(h) of the Regulations.
On this issue, in para 5.11(b) of the writ petition, the petitioner agency stated that the complaint regarding demand of unauthorized gratifications and audio recordings have never been supplied to them. In the reply to show- cause notice, it is clarified that Mr.Santosh Kumar Patel and Mrs. Anita Patel, vide their letters dated 08.10.2016, 09.10.2016 and 11.10.2016, have stated that the child is not matching physically with them; therefore, did not want to accept the child "Shivansh". Copies of those letters dated 08.10.2016 and 09.10.2016, addressed to the petitioner agency and also to the Secretary, CARA, were attached with the reply and filed at page Nos.155 and 156 of the writ petition. On perusal of the said letters, it would reveal that the PAPs have clearly stated that they are not interested in the child "Shivansh". In the letter dated 17 11.10.2016, attached as page No.157, they made a request to the CARA to maintain their seniority as earlier, even after rejecting the child "Shivansh". In response thereto, CARA informed them on 10.11.2016 that their seniority shall not be maintained. From the above, it is clear that the PAPs themselves were not interested in the child and informed to the agency and CARA. After rejection of the child by them, for the reasons best known to them, they made allegations against the petitioner agency for demand of legal fee in addition. Be that as it may, in the reply filed by the CARA, there is no denial to the averment of non-supply of documents or audio transcripts to the petitioner. By non- supply of the relevant material, making the recommendation, as stated in the order impugned, would amount to violation of principles of natural justice. The CARA is unable to produce any document or audio transcript even in the Court. It is most important that the CARA recorded the finding in the order, that due to supply of sensitive and confidential information, it impacted the decision of PAPs. The show-cause notice is not on the said issue. More so, the said child is given by the SAA to another PAPs with whom the child is living since then. In view of this factual backdrop, the recommendation made by the authority for invoking Regulation 25(2)(k) and 25(2)(h) of the Regulations, on the allegation of demand of gratification and disclosure of sensitive information of the child, is biased, without any basis, mala fide, and also in violation of principles of natural justice, therefore, unsustainable.
c) The third issue raised in the show-cause notice dated 05.01.2018 is regarding the child "Shivi", referred to the PAPs, Mr.& Mrs. Gaurav Shah, on 23.08.2017, and 18 reserved by them on 24.08.2017. It is said that on the date of referral, the child was aged one year and two months, and as per Para (3)(c) of Schedule IV of the Regulations, screening for sickle cell anaemia by conducting Haemoglobin electrophoresis and other tests were mandatory, but those tests of the child were not conducted. It is said that the PAPs requested for those tests on approaching to the SAA for matching, but they were harassed and even on intervention by the CARA, the required tests were not conducted on time and the reports were not shared with PAPs. In the order impugned, the reference of the said issue finds place in sub-para (ix) of para 6 and it is observed that because the PAPs have not been facilitated for conducting necessary tests, which is the responsibility of the SAA under Regulation 29(3) of the Regulations, it would show the violation of Regulations 29(1)
(f) and 29(3)(g) of the Regulations.
In response to the aforesaid issue, in para 5.11 (c) of the writ petition, the petitioner stated that in the case of child "Shivi", referral was made on 23.08.2017 and the child was reserved on 24.08.2017 by the PAPs. The MER and CSR were uploaded within ten days. The sickle cell test was conducted on 27.09.2017, though the time as given by the CARA was upto 03.10.2017, and the same were mailed to respondent No.1 as per Annexure P-16-D. In the reply to the show-cause notice by the petitioner, it is clarified that after reserving the child "Shivi", the PAPs visited on 30.08.2017, 31.08.2017, 01.09.2017 and 02.09.2017. They requested to conduct so many medical tests, including HB electrophoresis examination test again. It was clarified to them, when the MER of the child was done, she was below the age of one year, however the tests of the child were 19 conducted as per Schedule 3 (B) of the Regulation. Schedule 3 (C) applies in a case where the child is more than one year. It is stated that at the instance of the PAPs, various tests of child were conducted, having its report normal, but the PAPs have not processed the case in time. The tests of the child for third time was not in the best interest, however, the PAPS, Mr.& Mrs. Gaurav Shah, were requested to get the H.B. Electrophoresis examination test done after some time. Later, on the insistence of CARA, on 27.09.2017, H.B. Electrophoresis examination test, LFT/RFT tests were conducted of the child and reports were sent to the CARA as well as to the PAPs through mail on 03.10.2017, i.e. prior to the time specified by CARA. But, those PAPs have not accepted to take the child "Shivi" in adoption. It is important to note that immediately thereafter, the child was reserved by another parents, Mr. Vishal Gwalwansh & Smt. Preeti Gwalwansh, and as per the orders of the Court, they have taken the said child on successful adoption and the child is residing with them.
It is to observe that conducting medical test on the date of referral is wrongly asked in terms of Schedule IV (3) (C) of the Regulations. As per the said provision, the date of referral is not relevant; in fact, the date of declaring the child legally free for adoption and the date of uploading of the MER on the CARINGS is relevant. Here, at the time of submitting the MER, the child was below one year, therefore, the reference of Clause 3(C) of Schedule IV as made on the basis of the date of referral by the CARA is contrary to law. As per Regulation 29 (1)(f), medical tests have to be conducted within seven days from the date the child is declared legally free and MER be uploaded in CARINGS within the time so specified. The date of referral 20 for conducting medical test is not relevant. More so, the functions of SAA towards the PAPs, as specified in Regulation 29(3), impose no obligation on the SAA to conduct medical tests again and again of the child on demand by the PAPs. It is also required to be noticed that as per Regulation 6(15), the MER of the child must be updated every six months or whenever appreciable physical changes were observed in the child. It is also to be noted that as per Clause 10(15) of the Regulation, the PAPs can get the medical reports of the child reviewed through a doctor of their choice, but the said Clause does not cast any liability on SAA to have another report or to facilitate PAPs. Further, as per Clause 10 (7), after reserving the child, the entire process of matching must be completed within a maximum period of 20 days. But, surprisingly, the CARA, on the pretext of making some demand by the PAPs, asked for the reports to which the SAA was not bound as per clause 6 (15) and taken cognizance against the SAA, at the instance of the PAPs who were not willing to adopt the child. It is relevant to note that within a short span after detachment with that PAPs, another PAPs came forward to reserve the said child and the orders have already been passed by Court. In view of the foregoing, it is clear that the said ground is flimsy and wrongly alleged by the CARA without any basis, only to facilitate the non-bona fide PAPs, who are not interested in the child. It is the duty of the CARA to see the best interest of the child, but it continued to show the said reserved child for about two months to the PAPs and on that pretext, the SAA has been dealt with. The said action shows the malice in fact and law both, which is arbitrary and illegal.
21d) In the show-cause notice dated 05.01.2018, at Sl.No.7, the issue of child "Karan", whose real name is "Manas", has been referred, inter alia stating that the SAA filed appeal maliciously, which was dismissed due to non- appearance, despite being summoned by the Court twice. It is said, details have also not been furnished to CARA despite numerous e-mails. However, it appears that the SAA colluded with the family who have taken the child "Karan" illegally. The reply on this issue is in para 5.11 (d) of the writ petition, inter alia, stating that the parents, Mr. & Mrs. Amit Saraf, were the non-registered parents, therefore, the child "Manas" was not handed over to them and the appeal was filed. The reply of the petitioner to the show-cause notice reflects that the unregistered parents, Mr. & Mrs. Amit directly filed a case in the District Court, Sagar. On passing the order by the Court, an appeal was preferred in the High Court by SAA, wherein stay was granted, but due to non-appearance of the Advocate, it was dismissed. On coming to know about dismissal, MCC No.291 of 2018 was filed by SAA, however allowing the said MCC, the Miscellaneous Appeal No.1599 of 2013 was restored to its file by the High Court, vide order dated 06.04.2018. The said MA was also decided on 16.08.2018 by the Division Bench, setting aside the order of adoption passed by the District Court, Sagar, directing the CARA to make the referral of the said child. Thus, all the allegations, as alleged to the child "Manas", are baseless and contrary to the orders of the Court, Thus, the findings on this issue are arbitrary and mala fide. It is argued by the petitioner, during the course of hearing, that till the last date, the said child was not shown by the CARA on the CARINGS for referral, but in the order impugned, no finding has been 22 recorded in this regard, therefore, this Court is not inclined to deal with the said contention.
e) So far as the show-cause notice dated 10.01.2018 is concerned, in which three issues have been raised, one is regarding child "Riddhi", another is with regard to child "Virat" and the third is about child "Shivira". It is relevant to refer that no finding has been recorded in the order impugned with respect to the child "Virat", however, the explanation in respect of the said child showing false allegation shall be discussed at last.
f) So far as the child "Riddhi" is concerned, it is alleged in the show-cause notice that the said child has been registered on CARINGS as a special need child due to poor health condition since birth, which is unfair. It is stated that most of the children, who were abandoned, would be malnourished and would have low birth weight than the normal birth weight and on due care, they would recover, in those cases, MER of the child needs to be updated. However, categorising the said child "Riddhi" as a special need child, was not justified; more so, the MER of the child has not been updated by conducting all the medical tests as per Schedule IV, to take decision, in spite of e-mail dated 30.11.2017 followed by reminders, which is in violation of Regulation 24(1)(b), 25(2)(d) & (e) and 29 of the Regulations.
The reply on this issue is in para 5.11 (e) of the writ petition, stating that respondent No.1 has not registered the child "Riddhi" as special need child and the MER was uploaded when the child was in hospital and later, she died, the said fact has not been disputed by the respondents in their reply. Therefore, the petitioner urged that there is no 23 violation of any of the Regulations, the finding as recorded in the order impugned regarding non-supply of information towards the child "Riddhi" is primarily unsustainable. It is further required to observe that the allegation in the show- cause notice is that the said child was wrongly tried to be categorised as special need child on account of low birth weight, which is a normal phenomena in the cases of abandoned children due to malnourishment. As per discussion, it reveals that the CARA fist of all want to say that the SAA has wrongly attempted to get the said child registered as a special need child, but when the said child died, then finding is recorded as to non-updation of information about the death of the child on CARINGS immediately, diverting from main allegation. These findings primarily show bias and arbitrary exercise of power by the authority making a ground for recommendation, maliciously.
g) So far as the child "Shivira" is concerned, in the show-cause notice dated 10.01.2018, it is alleged that the uploading of the MER of this child was made after two months of the child becoming legally free, which is in violation of Regulation 6(15). But, in the order impugned, in para 6(iii), no specific finding is recorded regarding the child "Shivira" and a common finding is recorded with respect to the children, "Rudraksh", "Manas", "Shivi", "Mohit", "Krishna", "Shivira" and "Sarita". A detailed reply was submitted to the CARA, specifying the date of birth of the child "Shivira" as 22.02.2017. She was declared legally free on 07.06.2017 and MER was uploaded on 03.08.2017, because she was blind to whom repeated tests are required. As she was blind, numerous eye tests were to be done, 24 however, MER was submitted after completion of necessary tests, thereafter she was categorised as special need child. Therefore, the common finding so recorded, so far as the child "Shivira" is concerned, is wholly unsustainable.
h) So far as the other children "Rudraksh", "Manas", "Shivi" are concerned, the findings have already been recorded on appreciation of the facts and the allegations in the show-cause notice dated 05.01.2018, therefore reiterating those findings is not necessary by this Court, except to observe that with a biased intention, repeatedly they have been referred in para 6(iii) along with other children, namely, "Mohit", "Krishna" and "Sarita", to whom there were no allegations in the show-cause notice dated 05.01.2018 or in the show-cause notice dated 10.01.2018. Thus, it shows that arbitrarily repeated reference is made in the order impugned by the authority, in violation of the principles of natural justice and with mala fide intention.
i) It is also required to be noted here that though there is a reference of child "Virat" in the show-case notice dated 10.01.2018, but findings have not been recorded in the order impugned. But, to demonstrate the malice on the part of the authority, it would be appropriate to refer the reply to the show-cause notice on this issue, submitted and attached with the petition, thereby the said child was declared legally free on 20.11.2017, MER was uploaded on 28.11.2017, which was repeatedly communicated to CEO, CARA, on 30.11.2017, 05.12.2017 and 07.12.2017 as well as the Consultant Mini George, even then, the referral was not given to the said child for a long time. It is brought to the notice of the Court that due to inaction of the CARA, 25 after a long time, the child is now given in adoption and living with the parents. In such fact situation, the action of the authorities issuing show-cause notice on this issue, is for the reasons best known to them, but reflects the bias and mala fides on their part.
j) Further, it is to be noted that in para 6(i) of the order impugned, the reference of the cases of "Rudraksh", "Shivi", "Manas" and "Shivira" has been made, based on the details provided by SAA Kilkari Udaan, on being asked by the authority. In respect of these children, findings have already been recorded in the above paragraphs, therefore, it is not required to be repeated except to observe that the purpose of repeated reference of these children is arbitrary and illegal.
k) So far as the children, "Sarita", "Karan", "Arjun", "Mohit", "Krishna", "Durga", "Neha" and "Mahima" are concerned, there is no mention about them in the show-cause notices dated 05.01.2018 and 10.01.2018 and no show-cause notice has been issued alleging any violation on the part of SAA Kilkari (Udaan) in their cases. In the absence of any show-cause notice having been issued and affording an opportunity, no finding can be recorded, therefore, the findings so recorded cannot be sustained in view of violation of principles of natural justice.
l) In para 6 (ii) of the order impugned, the reference of "Manas", "Rudraksh" and "Mahima" has been made, alleging that these abandoned children were found in the District Sagar and though there is a SAA at Damoh, in the vicinity of the CWC before which they were produced and sent to the SAA, Udaan, Bhopal. From the allegation itself, 26 it is clear that the fault of the CWC is alleged, but not of the SAA Kilkari (Udaan), and despite there being no fault on the SAA Kilkari (Udaan), it has been arbitrarily dealt with by the authorities.
m) So far as the observations made at paras 6 (iv) and (v) of the order impugned regarding the issue of declaring the children "Neha" and "Durga" legally free for adoption in short timeframe contrary to the Regulations and adoption fees collected in respect of 15 children, are concerned, it is to be noted that the said issues were not the part of the show-cause notices dated 05.01.2018 and 10.01.2018. Thus, the findings, if any, recorded on the said issues cannot form the basis for issuing the order impugned. That apart, the finding regarding adoption fees has already been dealt with while dealing with the case of "Shivansh" hereinabove, stating that it cannot be sustained in the absence of production of any material, i.e., CD of mobile conversation, and without its supply and affording opportunity. Therefore, it is not required to be reiterated again, except to say that the action of the authority in repeatedly mentioning the same facts amounts to malice in law as on fact also.
n) So far as the observations made in para 6 (vi) of the order impugned are concerned, it may be noted that they are not part of the show-cause notices dated 05.01.2018 or 10.01.2018, and though it was wrongly mentioned in the order, such observations were not based on the said show-cause notices. More so, no explanation whatsoever has ever been asked so far as the child "Neha" is concerned. Therefore, it can safely be held that the repeated mentioning of the name of the children to allege 27 violation on the part of the SAA Kilkari (Udaan) reflects the bias and malice on the part of the authority.
o) So far as the observations made in paras 6(xi) and 6 (xii)(a) to (h) are concerned, they are based on the report of the District Child Protection Officer dated 05.09.2018. It is to be noted here that the order impugned reflects that the action has been taken in furtherance to the order dated 12.02.2018 passed by this Court in Civil Revision Nos.258 and 260 of 2017. By the time of passing of the said order, the show-cause notices dated 05.01.2018 and 10.01.2018 were issued but the aforesaid report dated 05.09.2018 was not on record. More so, the reply of the petitioner to the show-cause notices was sought for, vide communication dated 10.05.2018 (Annexure-P15), and the same was furnished on 18.05.2018, vide Annexure-P17. Therefore, on the date of reply also, the aforesaid report of District Child Protection Officer was not on record. In such circumstances, merely because respondent No.3 was required to pass an order, he referred the inspection report of the DCPO dated 05.09.2018. This reflects the preconceived mind of the authority.
21. Further, it is relevant to mention here that the order impugned dated 01.11.2018 (Annexure P-1) has been initiated in furtherance of the observation of this Court in Civil Revision Nos.258 and 260 of 2017, dated 12.02.2018. In para 3 of the order impugned, direction Nos.6 and 7 issued in the aforesaid order dated 12.02.2018 have been referred. Though direction No.7 is not relevant in the context of the issue involved, but direction No.6, as mentioned therein, is relevant, which is reproduced as under:
28"6. After filing the reply of the show cause notice the SAA UDAAN who reported a right cause to this Court may be examined by the officer higher than the C.E.O of CARA independently without his intervention and to take a final decision in accordance with law."
22. To appreciate under what circumstances, the aforesaid direction was issued by this Court, it would not be out of place to refer the observations made in the order dated 12.02.2018 in the Civil Revisions, at paragraphs 34, 35 and the relevant part in paragraph 38, which reads as thus:
"34. It is to be noted here that the Juvenile Justice Committee of the High Court has received the complaint sent by SAA UDAN dated 4.1.2018 on which the response was sought from CARA on 10.1.2018. On the same day, in the present cases, the similar issue cropped up. After the complaint and prior to taking the cognizance, the CARA has issued the show cause notice to SAA UDAN. On asking the reply by the High Court from CARA in Paragraph No.6 of their return, the comparison of the adoption of SAA UDAN and SAA MATRUCHHYAYA has been portrayed for the year 2016-2017 and said that the SAA MATRUCHHAYA is on better footing. It was not the issue on which the reply was sought by the High Court infact the issue was why a referral on due time from the CARINGS is not possible and what the CARA is doing, which is a complaint received to the High Court.
35. Looking to the averments made in the return, the said stand does not appear to be a fair or unbiased act of the authority single out two agencies only. It reflects that on account of a complaint of SAA UDAN on which the High Court has taken the cognizance of these cases, the Chief Executive Officer of CARA was not happy and became bias, therefore, tried to justify their act making the comparison. Such act cannot be acknowledged in a right perspective. It is to observe here that the show cause notice issued by CARA to SAA UDAN may be replied by such agency, which may be looked into by the authorities but considering the aforesaid, the caution is required to be observed to say that the reply of SAA UDAN and show cause notice may be looked into by any officer posted in Women & Child Development Department MW & CD higher than the Chief Executive Officer independently and to take a decision on the said show cause notice uninfluenced by the intervention of the Chief Executive Officer of CARA.29
38......The return projects the incorrect information of law shifting the responsibility of CARA on the other stakeholders though it is the duty and function of CARA. The return also indicates the biased approach of the Chief Executive Officer of CARA. Therefore, all these facts are required to be looked into by MW&CD and Steering Committee constituted under Section 69 of the J.J. Act..."
In the context of the said discussion by this Court, direction No.6, as referred hereinabove, was issued.
23. In view of the above, it is clear that because the SAA Kilkari (Udaan) brought the inaction on the part of the CARA to the notice of the Juvenile Justice Committee of the High Court and the High Court has taken cognizance of it, it was found by the Court that the CEO, CARA, was not happy by such gesture of the SAA and became bias. Therefore, it was directed that the reply of the SAA may be examined by the officer higher than the CEO, CARA, independently to take a decision on the said show cause uninfluenced by the intervention of the CEO, CARA.
24. In the context of the observations as referred hereinabove, this Court is not having any hesitation to say that in the order impugned, reference of the order of this Court so made is solely misplaced and the order of this Court is misinterpreted. Surprisingly, despite representation by the Assistant Solicitor General on behalf of respondents 1 to 3 and 5, reply has been filed on behalf of respondents 1 and 5 only. The CARA has filed the reply justifying the action of respondent No.5, who is joined by name as a party to the proceedings on account of the malice alleged against him, while respondent No.5 has not come forward to file the reply on affidavit, controverting the allegations made against him. Therefore, the allegations made against respondent 30 No.5, which are not denied and remain unrebutted, as discussed hereinabove, can be held to be true and correct. Thus, it becomes clear that the initiation of the action to pass the order impugned dated 01.11.2018, on flimsy and palpably wrong grounds, is based on the mala fides of respondent No.5.
25. It is further relevant to point out here that the order impugned is based on the report dated 15.10.2018 of the inquiry Committee submitted to the Secretary, Ministry of Women and Child Development (ex-officio Chairperson of the Steering Committee of the Authority). The said report is not made part of the case. If any report was prepared, which is required to be relied upon in the order impugned, it should be supplied to the petitioner and an opportunity of hearing must be afforded, but neither the report has been supplied nor a show-cause notice was given to the petitioner on the said report. Therefore, for this reason also, the order impugned is wholly unjustifiable.
26. One more thing, which is very relevant, is that in column 6(xi) of the order impugned, the case of child "Durga", who was given in inter-country adoption has been referred, in which on the point of issue of age, unbecoming situation arose in the State. In the said case, the allegation was alleged against the SAA Kilkari for furnishing wrong age of the child, due to which inter-country adoption was not succeeded and various acts were proposed and it appears that the note sheet of the then Minister, Women & Child Development, as referred in the reply of CARA (Annexure-C) is also based on misguiding facts. When the issue regarding this child was highlighted in the newspapers, the JJC, High Court of Madhya Pradesh, has taken up the 31 matter on the issue and an enquiry was conducted asking all particulars from the SAA, CWC and CARA. The CARA, except filing reply, has not come forward to participate in the enquiry. The statements of various witnesses were recorded and the JJC submitted its report on 21.01.2019, in which it was found that in the case of "Durga", the adoption agency SAA Kilkari is not at all responsible, and the date of birth so furnished was not incorrect.
27. In addition to the non-denial of the facts, despite pleading in the writ petition, in the facts of the present case, the malice has been alleged against respondents 5 and 6 joining them as party by name. The malice can be of two types, one is malice in fact and the other is malice in law. The Constitutional Bench of the Apex Court considered the issue of malice in the case of ADDITIONAL DISTRICT MAGISTRATE, JABALPUR v. SHIVAKANT SHUKLA reported in AIR 1976 SC 1207 and observed as under:
".....A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far as the state of his mind is concerned, he acts ignorantly, and in that sense innocently. Malice in fact is quite a different thing; it means an actual malicious intention on the part of the person who has done the wrongful act, and it may be, in proceedings based on wrongs independent of contract, a very material ingredient in the question of whether a valid cause of action can be stated...."
Thus, it is clear that if a person does any act in contravention of law, though he knows the law, he may be guilty of malice in law. So far as the malice in fact is concerned, this reflects the malicious intention on the part 32 of a person who acts wrongfully, contrary to the material ingredients.
28. In the case of STATE OF BIHAR AND ANOTHER v. P.P. SHARMA, IAS AND ANOTHER reported in 1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192, the Apex Court held as under:
"50. Mala fides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely, (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power."
On perusal thereto, it reveals that if any administrative action is not done in good faith and is done with improper motive for any ulterior purpose, contrary to the requirements of the statute or the basis of the circumstances contemplated by law, or the discretion so exercised to achieve some ulterior purpose, then it would fall within the purview of mala fide. In this regard, the personal bias, oblique motive and the contrary administrative action impermissible under the law have to be established.
29. The Apex Court, in the case of RAVI YASHWANT BHOIR v. DISTRICT COLLECTOR, RAIGAD & OTHERS reported in (2012) 4 SCC 407, in para 47 and 48, relying 33 upon the judgment of ADDITIONAL DISTRICT MAGISTRATE, JABALPUR (supra), observed as under:
"47. This Court has consistently held that the State is under an obligation to act fairly without ill will or malice- in fact or in law. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. "Legal malice" or "malice in law" means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite.
48. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for "purposes foreign to those for which it is in law intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law."
30. In view of the foregoing discussion as well as the various judgments of the Supreme Court, it is crystal clear that it is entirely the game plan of respondent No.5, because of the observations made by this Court in Civil Revision Nos.258 and 260 of 2017, decided on 12.02.2018, In the said civil revision, the reference of the complaint made by the SAA Kilkari (Udaan) is there. The Court observed in the said case that the CEO, CARA, is prejudiced and biased, however, with all fairness, liberty was granted to look into the allegations of the show-cause notices by the higher authority. To utter surprise, the higher authorities, having referred the direction No.6 of the said order, are unable to perceive why such direction was issued and for the reasons best known to them, they initiated the action referring the show-cause notices dated 05.01.2018 and 10.01.2018. As discussed hereinabove and as per the unrebutted facts in the writ petition as well as the documents, all the allegations 34 made in that show-cause notices were baseless, unsustainable on facts and in law and contrary to the factual aspects. The authorities, knowing law well, went to the extent of misinterpreting the facts and law. Therefore, this is a case of malice in fact and law both. While doing so, the authorities have not acted as per the spirit and object of the JJ Act. In this regard, this Court perceive that if the correct facts and legal aspects were placed before the Minister, the note sheet, as referred in the reply, by the Minister would not have been signed. Therefore, in the discussion made hereinabove, the entire action of the CEO, CARA, and the authorities is mala fide, which cannot be acknowledged in true sense and spirit of the object of the JJ Act.
31. Coming to the exercise of power by the CARA in issuing the order impugned, Regulation 25 of the Regulations is relevant. The relevant provisions contained in the said Regulation, being sub-clauses (1), (3) and (5), are reproduced as under:
"25. Suspension or revocation of recognition of Specialised Adoption Agency.- (1) The State Government, shall act upon, suo-motu or on the recommendation of State Adoption Resource Agency or the Authority, either suspend or revoke the recognition granted to a Specialised Adoption Agency on any of the grounds specified in sub-regulation (2).
(2) ......
(3) No order for suspension or revocation of authorisation shall be passed without giving an opportunity to the agency to offer its explanation.
(4) ......
(5) In case of revocation of recognition of a Specialised Adoption Agency, the State Government concerned shall prepare an alternative rehabilitation plan for the children in that home, including shifting them to another Specialised Adoption Agency, within thirty days."35
32. On perusal thereto, it is clear that the authority is with the State Government for suspension and revocation of the recognition of a Specialised Adoption Agency either suo- motu or on the recommendation of the SARA or CARA on the grounds specified in sub-clause (2). As discussed hereinabove on facts, none of the grounds on which the order impugned could be substantiated; therefore, they are found not proved, mala fide, arbitrary, illegal, bias, and in violation of principles of natural justice. As per sub-clause (3), it is clear that the State Government shall not pass any order either of suspension or revocation of authorisation, without giving an opportunity to the agency to offer explanation. Sub-clause (5) makes it clear that in case revocation is ordered by the State Government, then such Government shall prepare a rehabilitation plan for the children in that home, including shifting them to another Specialised Adoption Agency, within thirty days. Therefore, the power is vested with the State Government, but, looking to the texture of the order impugned, it is apparent that the CARA has exercised the powers as conferred under 25(1), (3) and (5) of the Regulations to pass the same. It cannot be said to be a recommendation, but it is an order passed by the CARA, though not vested with such power.
33. In view of the foregoing discussion, it can safely be observed that when the CARA is not vested with the power of revocation, which has to be exercised by the State Government in terms of Regulation 25(1), (3) and (5) of the Regulations, then the action of respondent No.3 making recommendation in terms of passing the order impugned on the non-est grounds, is bad in law. As per the discussion made hereinabove, repeatedly mentioning the cases of some 36 children and referring the issues, which are not part of the notices dated 05.01.2018 and 10.01.2018, for which no opportunity of hearing was provided to the petitioner to offer its explanation, clearly indicates mala fides on the part of respondent No.3 and 5. In the above backdrop, the State Government has rightly mentioned in their return that the entire action has been taken by respondents 1 to 3 and they have not taken any action and therefore, at present, they are not concerned with the issue. I appreciate the said stand of the State Government. But, simultaneously, it is to observe that in view of the foregoing discussion, when none of the grounds exists, the State Government is supposed to pass the order to nullify the recommendation impugned.
34. Now the issue regarding non-release of funds, despite the orders of this Court, has to be dealt with. In this regard, looking to the undisputed facts, it is to be noted here that by order dated 05.12.2018, the operation of the order impugned dated 01.11.2018 (Annexure-P1) has been stayed. Even after passing of the stay order, the funds were not released to the SAA Kilkari (Udaan) for the financial year 2019-20. Therefore, an application, vide I.A.No.10796 of 2019, was filed, on which time was sought for by the State Government to file the reply. The State Government has not filed the reply to the said I.A, but furnished explanation in the main reply, inter alia, stating that the entire adverse action has been proposed by the CARA and the funds are not being released on the instructions of the CARA and despite recommendation for release of the fund, CARA insisted to support them, therefore fund could not be released. On 25.09.2019, the Court allowed I.A.No.10796 of 2019, directing the respondents to release the first 37 instalment due to the petitioner as provided under the Scheme. But, the said order has not been complied with. Thereafter, on 01.11.2019, as a last indulgence, this Court granted four weeks' further time to release the fund, otherwise the responsible officer would remain present. In the said context and the reply of the State Government, it is the officers of the CARA who should remain present before the Court, but they remain absent and the State Government is not releasing the fund on account of the reply filed by the CARA, vide Annexure-R2, dated 11.12.2019. Therefore, it appears that on account of mala fide, bias, arbitrary, illegal act of respondents 1 to 3, to which respondent No.5 is solely responsible, the funds could not be released and with utmost haste, respondent No.5 has not released the funds in utter disregard to the orders of the Court.
35. In this context, the object of the JJ Act is required to be looked into. The JJ Act is a beneficial legislation to the children bringing special provisions to them, having regard to the Articles 39 (e) and (f), 45 and 47 of the Constitution, which confer powers and impose duty on the State to ensure that all the needs of children are met and that their basic human rights are fully protected, as per the United Nations Conventions on the right of the children to which India is the signatory. In such a case, it is the duty of the Central Government, State Government as well as CARA to observe the mandate of the JJ Act. This Court does not have any hesitation to say that if the institution makes a complaint to the Court, showing violation of the provisions of the JJ Act, on which the High Court has passed the order issuing certain direction, and on account of the order of this 38 Court, if the said institution would be dealt with maliciously by the authorities, it cannot be acknowledged in the perspective to achieve the object of the JJ Act. It is seen, despite the orders of the Court, funds are not being released to the petitioner agency and the authorities are least bothered as to how the institution can run in the present days of rising prices, without getting the funds since more than one year. This is an issue to be introspected by the authorities who are dealing with the agencies in an unbecoming manner as discussed hereinabove and they have no respect towards the orders of the Court. In such a situation, their acts must be deprecated and it is expected from the Department to take up the matter at their own level against such authorities.
36. In view of the foregoing discussion, this Court is inclined to allow this petition with the following directions:
1) The order impugned dated 01.11.2018 (Annexure-P1) is hereby quashed, being illegal, biased, arbitrary and mala fide.
2) Respondent No.3 is directed to look into the observations of the order dated 12.02.2018 passed in Civil Revision Nos.258 and 260 of 2017 as well as the observations made hereinabove against respondent Nos.5 and 6 as well as the officers of respondent No.2 and to do the needful, and if necessary, appropriate departmental action may be taken.
3) It is to further observe that respondent No.1 may look into the fact whether continuation of respondent No.5 as CEO, CARA, is in the interest 39 of the children in the agencies; if it is not, appropriate orders may be passed.
4) Respondents 1 to 3, 4 and 7 are directed to release the funds to the petitioner SAA Kilkari (Udaan) for the financial year 2019-2020, within seven (7) days from the date of communication of copy of this order.
Let copy of this order be sent to the Central Ministry as well as to the State Ministry and the JJC, High Court of Madhya Pradesh, by the registry of this Court for production before the Minister concerned and departmental authority concerned.
(SANJAY DWIVEDI) JUDGE Raghvendra RAGHVENDRA SHRAN SHUKLA 2020.03.20 15:59:53 +05'30'