Allahabad High Court
Assistant Superintendents, Govt. ... vs State Of U.P. & Others on 21 July, 2017
Author: Sudhir Agarwal
Bench: Sudhir Agarwal, Shashi Kant
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on 13.12.2016 Judgment delivered on 21.07.2017 Court No. - 34 Case :- WRIT - A No. - 19416 of 2000 Petitioner :- Assistant Superintendents, Government Observation Homes Union & others Respondent :- State of U.P. and others Counsel for Petitioner :- Anil Kumar Bajpai, Suneet Sharma, Umesh Narain Sharma Counsel for Respondent :- C.S.C. S.K. Mehrotra Hon'ble Sudhir Agarwal,J.
Hon'ble Shashi Kant,J.
1. Heard Sri Anil Kumar Bajpai, learned counsel for petitioners and Sri S.K. Mehrotra, learned Standing Counsel.
2. This writ petition under Article 226 of Constitution of India has been filed by an Association, namely, "Assistant Superintendents, Government Observation Homes Union, Uttar Pradesh" through its President, Beni Deen Patel, impleaded as petitioner 1 and two individuals namely Beni Deen Patel and K.B. Singh, who are working as Assistant Superintendents in Government Observation Homes, U.P. and are also office bearers of the Association. Petitioner nos. 2 and 3 i.e. Beni Deen Patel and K.B. Singh have joined this petition for protection of their own rights as well as members of petitioner-1, Association, in regard to their terms and conditions with context to the provisions of Juvenile Justice Act, 1986 (hereinafter referred to as "J.J. Act, 1986") replaced by Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as "J.J. Act, 2000").
3. Basic challenge thrown by petitioners is to Item 6 to appendix, U.P. Women Welfare Department (Non-Clerical) Employees Service Rules, 1998 (hereinafter referred to as "Rules 1998") which relate to the cadre of "Assistant Superintendent (Observation Homes and Bal Sadan)" (hereinafter referred to as "ASOHBS). It is contended that the same is ultra vires of the provisions of J.J. Act, 1986 and subsequently enacted statute namely J.J. Act, 2000.
4. We may notice at this stage that though petitioners have not sought any amendment in the writ petition but it would be necessary to place on record that J.J. Act, 2000, has already been repealed by Section 111 of Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "J.J. Act 2015) and J.J. Act, 2015 now has replaced earlier statutes.
5. The dispute raised in this writ petition relates to designation, status and conditions of service of petitioners working as Assistant Superintendents but since entire dispute is in the context of three statutes relating to Juvenile Justice, in order to appreciate controversy, it would be appropriate to have a retrospect of the relevance of principal legislations.
6. Parliament enacted J.J. Act, 1986 (Act No. 53 of 1986) which received assent of President on 01.12.1986 and was published in Gazette of India, (Extra Ordinary) dated 03.12.1986. By notification dated 13.08.1986 published with reference to Section 3 (i) of J.J. Act, 1986, it was given effect from 02.10.1987. The statute was enacted to provide for care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for adjudication of certain matters relating to, and disposition of, delinquent juveniles. It required constitution of Juvenile Welfare Board (hereinafter referred to as "JWB"). Section 4 of J.J. Act, 1986 provides that one or more Juvenile Welfare Boards may be constituted by State Government for any area specified in the notification for exercising powers and discharging duties, conferred or imposed on such Board in relation to neglected juveniles under J.J. Act, 1986. It also contemplates constitution of Juvenile Courts under Section 5, which shall consist of such number of Metropolitan Magistrates or Judicial Magistrates of First Class, as are notified, forming a Bench, and one of them designated as Principal Magistrate. Every Bench shall have powers, conferred by Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") on a Metropolitan Magistrate or Judicial Magistrate of First Class. Every Juvenile Court is to be assisted by panel of two Honorary social workers possessing such qualifications as prescribed and one of such social worker must be a woman. J.J. Act, 1986 contemplates different kinds of homes for the purpose of J.J. Act 1986, i.e;
(i) Juvenile homes.
(ii) Special home.
(iii) Observation homes.
7. These homes are established, certified or recognized by State Government under Sections 9, 11 and 10, respectively. A Juvenile home is for reception of neglected juveniles. A Special home is for reception of "delinquent juveniles" and Observation home is for temporary reception of juveniles during pendency of inquiry under J.J. Act, 1986. A "delinquent juvenile" and "neglected juvenile" is such as defined under Section 2 (e) and (l) which reads as under;
2. Definitions-
"(a)...................................
(e) "delinquent juvenile" means a juvenile who has been found to have committed an offence;
(l) "neglected juvenile" means a juvenile who-
(i) is founded begging; or
(ii) is found without having any home or settled place of abode and without any ostensible means of subsistence and is destitute;
(iii) has a parent or guardian who is unfit or incapacitated to exercise control over the juvenile; or
(iv) live in a brothel or with a prostitute or frequently goes to any place used for the purpose of prostitution, or is found to associate with any prostitute or any other person who leads an immoral, drunken or depraved life;
(v) who is being or is likely to be abused or exploited for immoral or illegal purposes or unconscionable gain."
8. Besides there is also a place or institution called "place of safety" defined under Section 2 (o) which reads as under;
Definitions- (a)...................................
"(o) "place of safety" means any place or institution (not being a police station or jail), the person in charge of which is willing temporarily to receive and take care of a juvenile and which, in the opinion of the competent authority may be a place of safety for the juvenile."
9. For the purpose of management of three kinds of homes, referred to above, power has been conferred upon State Government to make relevant provisions under Rules vide Section 9 (4), 10(4) and 11(4) which read as under;
9. Juvenile homes-
(1)...................................................
(4) The State Government may, by rules made under this Act, provide for the management of juvenile homes, including the standards and the nature of services to be maintained by them and the circumstances under which, and the manner in which, the certification of a juvenile home may be granted or withdrawn.
10. Special home-
(1)......................
(4) The State Government may, by rules made under this Act, provide for the management of special homes, including the standards and the nature of services to be maintained by them, and the circumstances under which, and the manner in which, the certification of a special home may be granted or withdrawn.
11. Observation homes-
(1)...................
(4) The State Government may, by rules made under this Act provide for the management of observation homes, including the standards and the nature of services to be maintained by them, and the circumstances under which, and the manner in which, an institution may be recognised as an observation home or the recognition may be withdrawn.
10. The other authorities, for the purpose of carrying out provisions of J.J. Act 1986, are "Advisory Board" vide Section 53; "Visitors" vide Section 54 and "Probation Officers", vide Section 57.
11. Section 57 (i) of J.J. Act, 1986 confers power upon State Government to make appointment of officers namely "Probation Officers" and such other officers as it may deem necessary for carrying out the purposes of Act and reads as under;
57. Appointment of officers-
(i) The State Government may appoint as many probation officers, officers for the inspection of special homes, juvenile homes, observation homes or after care organisations and such other officers as it may deem necessary for carrying out the purposes of this Act.
12. Section 58 of J.J. Act, 1986 declares that Probation Officer and other officers appointed, pursuant to J.J. Act, 1986, shall be deemed to be public servants within the meaning of Section 21 of Indian Penal Code (hereinafter referred to as ''IPC"). Section 62 confers rule making power upon State Government and sub Section 2 thereof deals with the rules pertaining to qualification, duties, recruitment, training etc. of the officers appointed to carry out the purpose, of J.J. Act, 1986. It reads as under;
62. Power to make rules-
62 (1).............
62 (2).................
(a)........................
(h) The qualifications and duties of probation officers ;
(i) The recruitment and training of persons appointed to carry out the purposes of this Act and the terms and conditions of their services .............................
(o) Any other matter which has to be, or may be, prescribed.
13. Sub section (3) of Section 62 says that every rule made by State Government under J.J. Act, 1986 shall be laid, as soon as may be, after it is made, before the legislature of concerned State.
14. Exercising powers under Section 62 of J.J. Act, 1986, Juvenile Justice (U.P.) Rules, 1987 were framed by State Government (hereinafter referred to as "J.J. Rules 1987"). J.J. Rules 1987 contemplated post of ''Superintendent' as an officer responsible for control of Juvenile Homes, Special Homes and Observations Homes or an aftercare organization or any other institution certified or recognized under J.J. Rules 1987. Rule 2 (i) defines ''Superintendent' and reads as under:-
"Superintendent means a person appointed by the Director on the recommendation of the Chief Inspector for the control and management of a juvenile home, a special home an observation home or an after care organization or any institution certified or recognized as such under the Act."
15. Various powers conferred upon Superintendents are described in sub rules 8,9,10 of Rule 5, sub rule 7 of Rule 8, Rules 11, 12, 13, 19, 21, 22, 23, 24, 25, 26, 27, 29, 35, 39, 40 and 43 of J.J. Rules 1987.
16. Rule 43, in general, deals with duties of Superintendents and reads as under:-
"43- Duties of the Superintendent - The general duties, functions and responsibilities of the Superintendent will be as follows namely;-
(a) Providing homely atmosphere of love, affection, care and welfare of juveniles;
(b) Planning, implementing and coordinating all institutional activities, programmes and operations;
(c) Maintaining minimum standards at the institution;
(d) Classification of juveniles, training and treatment programmes and correctional activities;
(e) Supervision over juveniles disciplines and moral;
(f) Allocation of duties to personnels;
(g) Attending to personnel welfare and staff disciplines;
(h) Preparation of budget and control over financial matters;
(i) Supervision over office administration;
(j) Monthly office inspection;
(k) Daily inspection and round of institution; and
(l) Inspecting and testing food prepared."
17. It is said that Government of U.P. set up ten Juvenile Homes, one Special Home and sixty two Observation Homes. Juvenile Homes and Special Homes were placed under administration of "Superintendent" but for control and management of Observations Homes, State Government appointed and posted officers with designation "Assistant Superintendent".
18. For laying down provisions for recruitment and conditions of services of "Assistant Superintendents", besides others, State of U.P. framed U.P. Rules, 1998 in purported exercise of powers under proviso to Article 309 of Constitution of India. There are several cadres of Assistant Superintendents namely, Assistant Superintendent, Observation Home and Bal Sadan, Assistant Superintendent (District Shelter and Reception Centre) (Women), Assistant Superintendent (a) Working Women Hostel (b) Government Protective Home (c) Government After Care Home (d) Government Rescue Home. There is another cadre under Rules 1998 at item 11 of Schedule i.e. "Deputy Superintendent (Government Juvenile Home, Lucknow)". The cadre of "Assistant Superintendent" at item 6 under Schedule is in the pay scale of Rs. 4500-125-7000 while that of Deputy Superintendent (Government Juvenile Home) at item 11 is in pay scale of Rs. 4000-100-6000. Recruitment to the post of "Assistant Superintendent", at Item 6 is, 75 percent by direct recruitment and 25 percent by promotion from amongst substantially appointed "Supervisors" and "Deputy Superintendents" who have completed fifteen and ten years of service respectively, on the first day of year of recruitment.
19. J.J. Act, 2000 came into force w.e.f. 01.04.2001. The necessity of aforesaid enactment felt in view of provisions contained in clause 3 of Article 15, clauses (e) and (f) of Article 39, Articles 45 and 47 of Constitution which imposed on State a primary responsibility of ensuring that all the needs of children are met and that their basic human rights are fully protected. Preface of statute also refers to adoption of General Assembly of United Nations Convention on the Rights of Child, on 20.11.1989, which prescribes a set of standards to be adhered to by all State, parties, in securing best interests of child. The said Convention was ratified by Government of India on 11.12.1992. Parliament found it expedient to re-enact existing law relating to juveniles bearing in mind standards prescribed in the Convention on the Rights of the Child, United Nations Standard Minimum Rules for the administration of Juvenile Justice, 1985 (the Beijing Rules), United Nations Rules for Protection of Juveniles deprived of their Liberty (1990) and other relevant international instruments.
20. The Statement of Objects and Reasons, in para 2, said as under:
"2. In this context, the following further proposals have been made;
(i) to lay down the basic principles for administering justice to a juvenile or the child in the Bill;
(ii) to make the juvenile justice system meant for a juvenile or the child more appreciative of the development needs in comparison to criminal justice system as applicable to adults;
(iii) to bring the juvenile law in conformity with the United Convention on the Rights of the Child;
(iv) to prescribe a uniform age of eighteen years for both boys and girls;
(v) to ensure speedy disposal of cases by the authorities envisaged under this Bill regarding juvenile or the child within a time limit of four months;
(vi) to spell out the role of the State as a facilitator rather than doer by involving voluntary organizations and local bodies in the implementation of the proposed legislations;
(vii) to create special juvenile police units with a humane approach through sensitization and training of police personnel;
(viii) to enable increased accessibility to a juvenile or the child by establishing Juvenile Justice Boards and Child Welfare Committees and Homes in each district or group of districts;
(ix) to minimize the stigma and in keeping with the developmental needs of the juvenile or the child, to separate the Bill into two parts - one for juveniles in conflict with law and the other for the juvenile or the child in need of care and protection;
(x) to provide for effective provisions and various alternatives for rehabilitation and social reintegration such as adoption, foster care, sponsorship and after care of abandoned, destitute, neglected and delinquent juvenile and child."
21. J.J. Act 2000 contemplates different 'Homes' namely Children's Homes (Section 34), Observation Homes (Section 8), Shelter Homes (Section 37), Special Homes (Section 9) and define these terms:-
"2. Definitions- In this Act, unless the context otherwise requires-
(a)..........................(d)
(e) "children's home" means an institution established by a State Government or by voluntary organization and certified by that Government under Section 34;
(f)..................(n)
(o) "observation home" means a home established by a State Government or by a voluntary organization and certified by that State Government under section 8 as an observation home for the juvenile in conflict with law;
(p)............................(t) (u) "shelter home" means a home or a drop-in-center set up under section 37;
(v) "special home" means an institution established by a State Government or by a voluntary organization and certified by that Government under section 9."
22. Besides, it also defines ''fit institution' ''fit person' and ''place of safety' under Section 2 (h) (i) and (q) of J.J. Act, 2000 which read as under:-
"2(h) "fit institution" means a governmental or a registered non-governmental organization or a voluntary organization prepared to own the responsibility of a child and such organization is found fit by the State Government on the recommendation of the competent authority;
(i) "fit person" means a person, being a social worker or any other person who is prepared to own the responsibility of a child and is found fit by the competent authority to receive and take care of the child."
23. Section 2 (s) defines the term' probation officer' and reads as under:-
"2(s)- "probation officer" means an officer appointed by the State Government as a probation officer under the Probation of Offenders Act, 1958 (20 of 1958)."
24. Section 8 of J.J. Act, 2000 talks of establishment and maintenance of observation homes and Section 9 talks of establishment and maintenance of special homes and read as under:-
"8. Observation homes:- 1. Any State Government may establish and maintain either by itself or under an agreement with voluntary organizations, observation homes in every district or a group of district, as may be required for the temporary reception of any juvenile in conflict with law during the pendency of any inquiry regarding them under this Act.
2. Where the State Government is of opinion that any institution other than a home established or maintained under sub-section (1), is fit for the temporary reception of juvenile in conflict with law during the pendency of any inquiry regarding them under this Act, it may certify such institution as an observation home for the purpose of this Act.
3. The State Government may, by rules made under this Act, provide for the management of observation homes, including the standards and various types of services to be provided by them for rehabilitation and social integration of a juvenile and the circumstances under which, and the manner in which, the certification of an observation home may be granted or withdrawn.
4. Every juvenile who is not placed under the charge of parent or guardian and is sent to an observation home shall be initially kept in a reception unit of the observation home for preliminary inquiries, care and classification for juveniles according to his age group, such as seven to twelve years, giving due considerations to physical and mental status and degree of the offence committed, for further induction into observation home."
"9. Special homes:- 1. Any State Government may established and maintain either by itself or under an agreement with voluntary organizations, special homes in every district or a group of districts, as may be required for reception and rehabilitation of juvenile in conflict with law under this Act.
2. Where the State Government is of opinion that any institution other then a home established or maintained under sub-section (1), is fit for the reception of juvenile in conflict with law to be sent there under this Act, it may certify such institution as a special home for the purposes of this Act.
3. The State Government may, by rules made under this Act, provide for the management of special homes, including the standards and various types of service to be provided by them which are necessary for re-socialization of a juvenile, and the circumstances under which, and the manner in which, the certification of a special home may be granted or withdrawn.
4. The rules made under sub-section (3) may also provide for the classification and separation of juvenile in conflict with law on the basis of age and the nature of offences committed by them and his mental and physical status."
25. Section 34 of J.J. Act, 2000 talks of Children homes and 37 talks of Shelter homes and read as under:-
"34. Children's homes:-1. The State Government may establish and maintain either by itself or in association with the voluntary organizations, children's homes, in every district or group of districts, as the case may be, for the reception of child in need of care and protection during the pendency of any inquiry and subsequently for their care, treatment, education, training, development and rehabilitation.
2. The State Government may, by rules made under this Act, provide for the management of children's homes including the standards and the nature of services to be provided by them, and the circumstances under which, and the manner in which, the certification of a children's home or recognition to a voluntary organization may be granted or withdrawn.
3. Without prejudice to anything contained in any other law for the time being in force, all institutions, whether State Government run or those run by voluntary organisations for children in need of care and protection shall, within a period of six months from the date of commencement of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, be registered under this Act in such manner as may be prescribed."
37. Shelter homes:- 1. The State Government may recognize, reputed and capable voluntary organizations and provide them assistance to setup and administer as many shelter homes for juveniles or children as may be required.
2. The shelter homes referred in sub-section (1) shall function as drop-in-centers for the children in the need of urgent support who have been brought to such homes through such persons as are referred to in sub-section (1) of section 32.
3. As far as possible, the shelter homes shall have such facilities as may be prescribed by the rules."
26. Section 68 of J.J. Act 2000 confers power of framing rules upon State Government and proviso inserted by Act 33 of 2006 to Section 68(1), which confers upon Central Government to frame model rules in respect of all or any of the matters with respect to which the State Government may make rules and where any particular State has not framed rules, it provides that model rules framed by Central Government shall apply to such State until rules in respect of the matter is made by State Government. Section 68(1) reads as under:-
"68. Power to make rules.-
1. The State Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act.
Provided that the Central Government may, frame model rules in respect of all or any of the matters with respect to which the state government may make rules under this section, and where any such model rules have been framed in respect of that any such matter, they shall apply to the state until the rules in respect of that matter is made by the state government and while making any such rules, so far as is practicable, they confirm to such model rules."
27. We find that U.P. Government framed "Uttar Pradesh Juvenile Justice (Care and Protection of Children) Rules, 2004" (hereinafter referred to as "J.J. Rules 2004), which came into force on the date of publications and the same, were published in U.P. Gazette on 01.05.2004.
28. Rule 2(h) of J.J. Rules, 2004 defines the term ''Superintendent" and reads as under:-
"2. Definition- In these rules, unless the context otherwise requires-
(a)...................................
(h) "Superintendent" means a person appointed for the control and management of the institution and includes Deputy Superintendent and Assistant Superintendent also."
29. The duties of ''Superintendent' are detailed in Rule 17 of J.J. Rules, 2004 and reads as under:-
"17. Duties of the Superintendent- (1) The Superintendent shall be responsible for the following, namely-
(a) security measure and periodical inspection thereof.
(b) proper maintenance of buildings and premises.
(c ) prompt, firm and considerate handling of all disciplinary matters.
(d) careful handling of plant and equipment.
(e) accident preventive measure.
(f) fire preventive measures.
(g) segregation of a juvenile or child suffering from contagious or infectious diseases.
(h) proper storage and inspection of food stuffs.
(i) stand-by arrangements of water storage, power plant, emergency lighting, etc. (2) In the event of an escape of a juvenile or a child, the following action shall be taken, namely:-
(a) The Superintendent shall immediately send the guards in search of the juvenile, at places like railway stations, bus stands and other places where the juvenile is likely to go.
(b) The parents or guardians shall be informed immediately about such escape.
(c ) A report shall be sent by the Superintendent to the area Police Station along with the details and description of the juvenile or the child, with identification marks and a photograph, with a copy to the Board and to the District Magistrate.
(d) The District Magistrate shall hold a preliminary inquiry about such escape and send his report to the Board and the controlling officer.
(e) The Controlling Officer shall conduct a detailed inquiry on the report of the District Magistrate to find out whether an employee had knowingly or connived or inducted a juvenile to escape.
(3) On the occurrence of any case of death or suicide the procedure to be adopted shall be as under:-
(a) If a juvenile or child dies within twenty-four hours of his admission to the institution an inquest and post-mortem examination shall be held as the earliest.
(b) Whenever a sudden or violent death, or death from suicide or accident takes place immediate information shall be given to the Superintendent and the Medical Officer.
(c ) The Superintendent and the Medical Officer shall examine and inspect the dead body and in case a juvenile dies due to causes other than natural causes, or if the cause of death is not known, or if the death has occurred due to suicide, violence or accident, or whenever there is any doubt or complaint or question concerning the cause of death of any juvenile, the Superintendent shall inform the Officer Incharge of the Police Station having jurisdiction.
(d) The Superintendent shall also give intimation to nearest Magistrate empowered to hold inquests immediately.
(e) The Medical Officer shall report to the Superintendent about the happening of the natural death of a juvenile and see that the body is decently removed to the mortuary.
(f) In case of the natural death due to illness of a juvenile or child of an observation home or special home, the Superintendent shall obtain a report of the Medical Officer stating the cause of death and a written intimation about the death shall be given immediately to the nearest Police Station, the Board, the State Human Rights Commission and the authorities concerned.
(g) The parents or guardians of the deceased juvenile shall be contracted and the Superintendent shall wait for at least twenty-four hours for the arrival of relatives.
(h) As soon as the inquest is held, the body shall be disposed of in accordance with the known religion of the juvenile.
(4) In the event of any custodial rape or sexual abuse, the following action shall be taken, namely-
(a) In case a resident makes any complaint, or occurrence of such rape or abuse comes to the knowledge of the Superintendent, a report shall be placed before the Board immediately, who shall order for special investigation and direct the local police station to register case against the person(s) found guilty under the relevant provisions of the Indian Penal Code.
(b) The Special Juvenile Police Unit shall also take due cognizance of such occurrences and conduct necessary investigations permissible under law.
(5) In the event of any other offence committed in respect of residents, the Board shall take cognizance and arrange for necessary investigation to be carried out by Special Juvenile Police Unit."
30. We are not going in details of J.J. Rules, 2004 for the reason that there are different powers, obligations, authorities, duties etc of "Superintendent" under different provisions, besides Rule 17, which is general in nature. Therefore, it is not necessary to refer all the said provisions. Rule 46 talks of personal strength of a home, which is to be determined by State Government but a suggested staffing pattern for an institution with a capacity of 100 juveniles or children is given in sub rule 9. Rule 46 of J.J. Rules, 2004 reads as under:-
"46. Personel/Staff of a Home- (1) The personnel strength of a home shall be determined by the State Government according to the duty, posts, hours of duty per day as the base for each category of staff.
(2) The institutional organizational set up shall be fixed in accordance with the size of the home, the capacity, work load, distribution of functions and requirements of programmes.
(3) The whole-time staff in a home may consist of Superintendent/Project Manager, Probation Officer (in case of observation home or special home) Case Workers (in case of Children's home or shelter home or after organization) Child Welfare Officers, Counsellor, Educator Vocational Training Instructor, Medical Staff, Administrative Staff, Care Takers, House Father and House Mother, Store Keeper, Cook, Helper, Washerman, Safai Karamchare, Gardener as determined by the State Government.
(4) The part-time staff, shall include Psychiatrist, Psychologist, Occupational Therapist, and other professionals as determined by the Government may be required from time to time.
(5) The staff of the home shall be subject to control and overall supervision of the Superintendent, who by order, shall determine their specific responsibilities and shall keep the concerned authority informed of such order made by him from time to time.
(6) The duties and responsibilities of the staff under the Superintendent shall be fixed in keeping with the statutory requirements of the Act.
(7) The Superintendent and such other staff who may be required, shall live in the quarters provided for them within the premises of the home.
(8) The number of posts in each category of staff shall be determined by the Government.
(9) The suggested staffing pattern for an institution with a capacity of 100 juveniles or children could be as mentioned below:
Serial no.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
Designation Superintendent Counsellor Case Workers or Probation Officer House Mother or House Father Educator (Voluntary or part time) Vocational Instructor Doctor (Part time) Paramedical Staff Stock-keeper-cum-Accountant Driver Cook Helper Sweeper Art and Craft-cum-Music Teacher (Part time) Garderner No. of Posts 1 2 2 2 2 1 1 1 1 1 2 2 2 1 1 Total 22 (emphasis added)
31. Rule 50 of J.J. Rules, 2004 talks of duties of "Superintendent" of Homes. Rule 51 talks of duties of a "Probation Officer" and other rules like 52 and 53 provide duties of "Case Workers/Child Welfare Officer" and duties of "House Father/House Mother/Caretaker." Rule 58 permits re-designation with existing staff sanctioned at the Headquarters and reads as under:-
"Deployment of existing staff- The State Government shall re-designate and deploy the existing staff sanctioned at the Headquarters and Field level to supervise, control and ensure effective implementation of the Act and scheme, so however the officers and staff appointed for an institution shall not be attached or deployed elsewhere under any circumstances. However, they shall be liable to transfer outside district after five years of posting under the orders of director. Government in special circumstances may extend the period of posting in a District up to seven years and no more."
32. J.J. Act 2000, as already said, is now replaced by Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "J.J. Act 2015") but existing provisions of J.J. Rules 2004 are protected by Section 111 (2), unless replaced by any new set of rules.
33. By virtue of Section 1 (4) of J.J. Act 2015, overriding effect is given to the said Act over any other law for the time in force, concerning children in need of care and protection and children in conflict with law. It reads as under:-
"1. Short title, extent, commencement and application-
(1)......
(4) Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all matters concerning children in need of care and protection and children in conflict with law, including-
(i) apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social re-integration of children in conflict with law;
(ii) procedures and decisions or orders relating to rehabilitation, adoption, re-integration, and restoration of children in need of care and protection."
34. The work ''child in conflict with law' has been defined in Section 2 (13) and (14) and reads as under:-
"13. "child in conflict with law" means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence;
14. "child in need of care and protection" means a child--
i. who is found without any home or settled place of abode and without any ostensible means of subsistence; or ii. who is found working in contravention of labour laws for the time being in force or is found begging, or living on the street; or iii. who resides with a person (whether a guardian of the child or not) and such person--
a. has injured, exploited, abused or neglected the child or has violated any other law for the time being in force meant for the protection of child; or b. has threatened to kill, injure, exploit or abuse the child and there is a reasonable likelihood of the threat being carried out; or c. has killed, abused, neglected or exploited some other child or children and there is a reasonable likelihood of the child in question being killed, abused, exploited or neglected by that person; or iv. who is mentally ill or mentally or physically challenged or suffering from terminal or incurable disease, having no one to support or look after or having parents or guardians unfit to take care, if found so by the Board or the Committee; or v. who has a parent or guardian and such parent or guardian is found to be unfit or incapacitated, by the Committee or the Board, to care for and protect the safety and well-being of the child; or vi. who does not have parents and no one is willing to take care of, or whose parents have abandoned or surrendered him; or vii. who is missing or run away child, or whose parents cannot be found after making reasonable inquiry in such manner as may be prescribed; or viii. who has been or is being or is likely to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts; or ix. who is found vulnerable and is likely to be inducted into drug abuse or trafficking; or x. who is being or is likely to be abused for unconscionable gains; or xi. who is victim of or affected by any armed conflict, civil unrest or natural calamity; or xii. who is at imminent risk of marriage before attaining the age of marriage and whose parents, family members, guardian and any other persons are likely to be responsible for solemnisation of such marriage."
35. The word ''child' for the purpose of J.J. Act 2015 is a person who had not completed 18 years of age.
31. The subordinate staff who are specifically assigned certain duties under J.J. Act 2015 are ''Child Welfare Officer' and ''Child Welfare Police Officer', defined under Section 2 (17) and (18), and read as under:-
"2. Definitions-......
(1)....................(16) (17) "Child Welfare Officer" means an officer attached to a Children's Home, for carrying out the directions given by the Committee or, as the case may be, the Board with such responsibility as may be prescribed;
18. "Child Welfare Police Officer" means an officer designated as such under sub-section (1) of section 107."
36. J.J. Act 2015 has a little wider category of Institutions for child care and their protection as child care institution as defined under Section 2 (21) and reads as under:-
"2. Definitions-...............
(1)..............................(20)
21. "child care institution" means Children Home, open shelter, observation home, special home, place of safety, Specialised Adoption Agency and a fit facility recognised under this Act for providing care and protection to children, who are in need of such services."
37. The term ''Children's Home", ''open shelter', ''observation home', ''special home', ''place of safety', ''Specialised Adoption Agency' are defined in Section 2 (19) (41) (40) (56) (46) and (57) respectively and reads as under:-
"2. Definitions-.....................
19. "Children's Home" means a Children's Home, established or maintained, in every district or group of districts, by the State Government, either by itself, or through a voluntary or non-governmental organisation, and is registered as such for the purposes specified in section 50.
41. "open shelter" means a facility for children, established and maintained by the State Government, either by itself, or through a voluntary or non-governmental organisation under sub-section (1) of section 43, and registered as such, for the purposes specified in that section.
40. "observation home" means an observation home established and maintained in every district or group of districts by a State Government, either by itself, or through a voluntary or non-governmental organisation, and is registered as such, for the purposes specified in sub-section (1) of section 47.
56. "special home" means an institution established by a State Government or by a voluntary or non-governmental organisation, registered under section 48, for housing and providing rehabilitative services to children in conflict with law, who are found, through inquiry, to have committed an offence and are sent to such institution by an order of the Board.
46. "place of safety" means any place or institution, not being a police lockup or jail, established separately or attached to an observation home or a special home, as the case may be, the person in-charge of which is willing to receive and take care of the children alleged or found to be in conflict with law, by an order of the Board or the Children's Court, both during inquiry and ongoing rehabilitation after having been found guilty for a period and purpose as specified in the order.
57. "Specialised Adoption Agency" means an institution established by the State Government or by a voluntary or non-governmental organisation and recognized under section 65, for housing orphans, abandoned and surrendered children, placed there by order of the Committee, for the purpose of adoption."
38. Here also State Government is empowered to make rules for the purpose of management and monitoring of Child Care Institutions as contemplated in Section 47(3) with reference to "observation homes", Section 48(2) with reference to "special homes", Section 50(3) with reference to "children homes" respectively.
39. We have examined whether Rules 1998 framed under Proviso to Article 309 infringes any provisions of J.J. Act 1986, J.J. Act 2000 or J.J. Act 2015 so as to render ultra vires of the statute. No provision has been brought to our notice which debars State Government from providing appropriate designation with reference to the capacity, size and other particulars of Child Care Institutions. It is true that under Rules 1987, Rule 2(g) defines ''Superintendent' only and do not show anywhere that it includes "Deputy Superintendent" or "Assistant Superintendent" also but this defect has been done away by J.J. Rules 2004 wherein definition ''Superintendent' includes "Deputy Superintendent" and "Assistant Superintendent". In fact creation of a cadre with different designations is within realm of legislation exercise and rule framing authority. Unless it can be shown that power exercised by it is in the teeth of statute and is inconsistent in express or necessary implementation of a provision, power exercised by Rule framing authority in regard to nomenclature of a "cadre" cannot be said to be invalid.
40. Rules 1998 have been framed under proviso to Article 309, which empowers Governor to frame rules in absence of any rules regulating recruitment and conditions of service made by Provincial (State) or Central Legislature, and reads as under:-
"309. Recruitment and conditions of service of persons serving the Union or a State.-
........
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act."
41. If rules relating to "recruitment" and "conditions of services" of any post or cadre have been framed by Act of Provincial or Central Legislature, only then, and to the extent provisions have to be made by such legislation, Governor would cease to have power to frame rules under proviso to Article 309, otherwise Article 309 proviso is very wide and confers coextensive legislative power upon Governor or Government of India, as the case may be, to frame rules of recruitment and conditions of service of post or service in connection with State or Central as the case may be. The only restriction on the power under proviso to Article 309 is, provisions of Constitution namely, fundamental right etc. Rules framed under proviso to Article 309 are to be consistent with specific provisions of Constitution.
42. It has also been held, if an statute is promulgated by Provincial or Central legislation which may contemplate a specific service or post thereunder unless rules are framed under such Act, field can be covered by framing rules under Proviso to Article 309 of Constitution. It is only when field is occupied by either Provincial or Central legislation laying down provisions dealing with recruitment and conditions of service of a post or cadre or rules have been framed under such Provincial or State legislation covering field of services under such Act that power under Proviso to Article 309 would cease or arrest, but in absence of such provision the rules framed under Article 309 (Proviso) shall hold the field.
43. The question whether Rules framed under proviso to Article 309 of Constitution will prevail or Rules/Regulations framed under Police Act 1861, came up for consideration in Chandra Prakash Tiwari Vs. Shakuntala Shukla, AIR 2002 SC 2322. Court, while considering the above question in reference to U.P. Government Servants (Criterion for Recruitment by Promotion) Rules, 1994 framed under proviso to Article 309 qua Government Order dated 05.11.1965 issued under Section 2 of Act, 1861 held that Rules framed under proviso to Article 309 would not apply since field is covered by statutory order issued under Section 2 of Act, 1861. It may be noticed that before Apex Court, not a Rule framed under Act, 1861 was under consideration but only Government Order 05.11.1965 was up for consideration and question was whether such Government Order would prevail over Rules framed under proviso to Article 309. In that context, Court answered the question upholding superiority of statutory order dated 05.11.1965 and referable to Section 2 of Act, 1861, Court decline to give superiority to Rules framed under proviso to Article 309 of Constitution.
44. Again this matter was considered by a Full Bench in Vijay Singh and Ors. Vs State of U.P. and Ors. 2004(4) ESC 2209 with reference to applicability of U.P. Recruitment of Service (Age Limit) Rules, 1972. After having a retrospect on the entire case law on the subject, Full Bench held that 1972 Rules would not apply where matter is governed by provisions made under Act, 1861 and in para 64 of judgment, Full Bench said as under:
"As herein the field is already occupied by the provisions of Act, 1861 which is in operation by virtue of the provisions of Article 313 of the Constitution, thus, Rules 1972 could not be attracted at all. The Government orders issued for fixing the maximum age for recruitment on subordinate police posts operate in an entirely different field and are not in conflict with the Rules 1972. The case stands squarely covered by the Apex Court judgment in Chandra Prakash Tiwari (supra) and, thus, it is not possible for us to take any other view. The submissions made by Mr. Chaudhary that pre-Constitutional law stands abrogated altogether by commencement of the Rules 1972, is devoid of any merit. Therefore, our answer to question No. 1 is that the field stood occupied on account of the provisions of Section 2 of the Act 1861."
45. Same view was expressed earlier in Subhash Chandra Sharma v. State of U.P. 2000 AWC(3) 2367 as is evident from para 16 of the judgment, which is reproduced as under:
"Thus, there can be no doubt that if the appropriate Legislature has enacted a law regulating the recruitment and conditions of service, the power of the Governor is totally displaced, and he cannot make any Rule under proviso to Article 309 of the Constitution. In State of U.P. Vs. Babu Ram Upadhyaya, AIR 1961 SC 751, a decision rendered by a Constitution Bench, the Police Act and the U.P. Police Regulations came up for consideration and it was held as follows in paragraph 12 of the Reports:
"the result is that the Police Act and the Police Regulations made in exercise of power conferred on the Government under that Act, which were preserved under Section 243 of the Government of India Act, 1935, continue to be in force after the Constitution so far as they are consistent with the provisions of the Constitution. In paragraph 23, it was observed that the Police Act and the Rules made thereunder constitute a self-contained Code providing for appointment of the police officers and prescribing the procedure for their removal. In Nanank Chand Vs State of U.P. 1971 ALJ 724, a Full Bench of our Court held as follows: "it is not correct to say that no temporary posts can be created in the Police Force, Section 2 of the Police Act is certainly wide enough to permit such posts to be created, and it appears that it is now the general Rule in U.P. for all new recruits to be employed at first in a temporary capacity."
46. Again in Vijay Shanker Tripathi v. State Public Services Tribunal and Ors. Writ Petition No. 28767 of 1998 decided on 23.11.2005, another Division Bench referring to Full Bench decision in Vijay Singh (supra) in para 8, observed as under:
"Large number of issues have been agitated before us, but it is not necessary to entertain all the said pleas for the reason that there can be no doubt to the settled legal proposition that even a temporary employee is entitled to the protection of Article 311 of the Constitution. A Full Bench of this Court in Vijay Singh and Ors. v. State of U.P. and Ors. 2004 (4) ESC 2209, has held that Rules framed under proviso to Article 309 of the Constitution do not apply to Police personnel as their services are governed by the Police Act, 1861 and the U.P. Police Regulations. In view thereof, the U.P. Temporary Government Servants (Termination of Service) Rules 1975, may not be applicable. This view also stands fortified by large number of judgments of the Hon'ble Apex Court referred to and relied upon in Vijay Singh (supra) and also in Chandra Prakash Shahi v. State of U.P. and Ors. AIR 2000 SC 1706."
47. In the present case, the only argument is that under J.J. Act 2000, words "Superintendent" is used and not "Assistant Superintendent" or "Deputy Superintendent". However this argument loses shine when we go through the definition of "Superintendent" under J.J. Rules, 2004 which makes it very clear that the term "Superintendent" will include "Deputy Superintendent" and "Assistant Superintendent". Further the Act basically refers to Officer Incharge of a Child Care Institution. The appropriate designation and nomenclature is open, to the rule framing authority, to provide. It is not the case of petitioners that contrary rules have been framed under J.J. Act 2000 or J.J. Act 2015 which over ride provisions of Rules 1998.
48. In the absence of any provisions otherwise, we find no inconsistency in Rules 1998 insofar as it covers cadre of "Assistant Superintendent" hence by no stretch of imagination it can be said that nomenclature and designation of "Assistant Superintendent" provided by Schedule to Rules 1998 is ultra vires.
49. However, it is not disputed before us that petitioners have been recruited and appointed on the post of "Assistant Superintendent" either by direct recruitment or promotion as "Assistant Superintendent". It is nobody's case that they were actually recruited and appointed for a post of different designation but have been given designation of "Assistant Superintendent". That be so, it does not lie in the mouth of petitioners to claim that the status and provision under which they owe their birth and existence is ultra vires, else it will take away the very genesis i.e. own birth in service of petitioners and may be fatal to them. Having not been appointed to any other post petitioners cannot claim that though recruited and appointed as "Assistant Superintendent" they should have been given a different designation than "Assistant Superintendent". Therefore, also we find no merit in the submission advanced on behalf of petitioners.
50. Writ petition is thoroughly misconceived. It is accordingly dismissed with cost which we quantify to Rs. 50,000/-.
Order Date :- 21.07.2017 Pravin