Karnataka High Court
H C Raghavendra vs The State Of Karnataka on 4 June, 2024
Author: S G Pandit
Bench: S G Pandit
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WA No. 100064 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
WRIT APPEAL NO.100064 OF 2024 (GM-RES)
BETWEEN:
H.C. RAGHAVENDRA
AGE. 45 YEARS, OCC. CHILD RIGHTS ACTIVIST TRAINER),
R/O. S/O. H.CHANDRASHEKAHAR, 2NDWARD,
RAMASAGARA POST, KAMPLI TALUK,
BELLARI DISTRICT-583132.
- APPELLANT
(BY SRI VISHWANATH S.BICHAGATTI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
DEPARTMENT OF WOMEN AND CHILD WELFARE
BY ITS PRINCIPAL SECRETARY,
VIDHAN SOUDHA, BENGALURU-560001.
2. THE PRESIDENT,
DIRECTORATE OF CHILD PROTECTION
AND MEMBER SECRETARY,
Digitally signed STATE LEVEL SELECTION COMMITTEE,
by VINAYAKA B V
3RD FLOOR, VISHWESHWARAIAH MINI TOWER,
Location: HIGH
COURT OF DR. AMBEDKAR VEEDHI, BENGALURU-560001.
KARNATAKA - RESPONDENTS
(BY SRI MADANMOHAN M.KHANNUR, AGA FOR R1 AND R2)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE
ORDER DATED 13.02.2024 MADE IN W.P. NO. 100656/2024 PASSED
BY THE LEARNED SINGLE JUDGE, TO ISSUE A WRIT OF MANDAMUS
DIRECTING THE RESPONDENT NO.2 TO CONSIDER THE
REPRESENTATION OF THE PETITIONER AND DIRECT THE
RESPONDENT NO.2 TO INTERVIEW THE APPELLANT TO THE POST OF
CHAIRPERSON FOR CHILD WELFARE COMMITTEE, BALLARI AND
ETC.,
THIS WRIT APPEAL, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, S G PANDIT, J., DELIVERED THE FOLLOWING:
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WA No. 100064 of 2024
JUDGMENT
This intra Court appeal under Section 4 of the Karnataka
High Court Act, is directed against the order dated 13.02.2024
in W.P. No. 100656/2024 wherein the appellant/ writ petitioner
prayed for a writ of mandamus to consider his representation
dated 20.10.2023 (Annexure-E) and to direct the respondent
no.2 to consider his application for appointment as
Chairperson, District Child Welfare Committee, Ballari, is
rejected.
2. Heard Sri Vishwanath S. Bichagatti, learned counsel for
appellant and Sri Madanmohan M. Khannur, learned HCGP for
respondents no.1 and 2 and perused writ appeal papers.
3. Brief facts of the case are that the petitioner being
qualified to become Member and Chairperson, District Child
Welfare Committee, applied in pursuance to notifications dated
14.07.2022 and 17.11.2022, to the post of Chairperson,
District Child Welfare Committee, Ballari. It is pertinent to note
that under Section 27 of the Juvenile Justice (Care and
Protection of Children) Act, 2015, (for short '2015 Act') every
State Government is required to constitute for each District, a
Child Welfare Committee, for implementation of the provisions
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of the 2015 Act. The appellant/petitioner's application was
received, but the petitioner was not called for interview, at that
stage the petitioner filed writ petition before this Court praying
for a writ of mandamus directing the first and second
respondent to interview the petitioner for the post of Chairman
of District Child Welfare Committee, Ballari. Learned Single
Judge under the impugned order held that the appellant/
petitioner could not have applied to be appointed as a
Chairperson having already completed a term as Chairperson,
and declined to issue mandamus to consider the appellant's
representation. Aggrieved by the same, appellant/ petitioner is
before this Court in this appeal.
4. Learned counsel for the appellant/petitioner contended
that the order of the learned Single Judge is erroneous and is
the result of non appreciation of Rule 15 of the Juvenile Justice
(Care and Protection of Children) Rules, 2016 (2 of 2016).
Learned counsel taking through Rule 15 of 2016 Rules would
submit that Sub Rule (4) of Rule 15 would state that a Member
of the Committee shall be eligible for appointment for a
maximum of two terms but not continuously and he further
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submits that there is no such prohibition to become
Chairperson of the Committee.
5. Learned counsel would further submit that a Member of
the Committee could be appointed as a Chairperson or a person
could directly be appointed as a Chairperson. It is submitted
that appellant had functioned as Member for one term and as a
Chairperson for another term. Further, the appellant would be
entitled to be appointed as Chairman as well as Member to the
District Child Welfare Committee as he has not completed two
terms as Member. Thus he prays for allowing appeal by setting
aside the impugned order of the learned Single Judge.
6. Learned HCGP on the other hand would support the order
passed by the learned Single Judge and would submit that the
appellant has served for two terms, once as a member and
once as a Chairman. As he has completed two terms in the
Committee, he would not be entitled for appointment. He
further submitted that proviso to Rule 15(4) was inserted in the
year 2022 wherein it is stated that nothing contained in Sub
Rule (4) shall be a bar in case a Member is appointed as a
Chairman. Thus he submits that the Rule existing as on the
date of calling application would be applicable and in terms of
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unamended Rules, the Selection shall have to be proceeded
since the notification issued calling application for appointment
as a member and Chairperson is dated 14.07.2022, prior to the
coming into force of amended proviso to Sub Rule (4) of Rule
15. Thus, learned HCGP would pray for dismissal of the appeal.
7. Having heard the learned counsel for the parties and on
perusal of the writ appeal papers, the only point which falls for
consideration is as to:
Whether the appellant/petitioner would be entitled for a
writ of mandamus?
8. Our answer to the above point is 'in the affirmative' for
the following reasons.
9. A writ of mandamus under Article 226 of the Constitution
of India could be issued if a person establishes his legal right
and if he further establishes the failure of the authority to
perform its legal duty. In the instant case we are of the
opinion that the petitioner has established his right to consider
his case for appointment as Chairperson, District Child Welfare
Committee, Ballari and because of failure on the part of
respondent authorities to consider his representation, he would
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be entitled for a writ of mandamus. To appreciate the case of
the appellant/petitioner it would be necessary to go through
Rule 15 of the 2016 Rules.
"15. Composition and Qualifications of Members of the
Committee - (1) There shall be one or more Committees in
each district to be constituted by the State Government
through a notification in the Official Gazette.
(2) The Chairperson and members of the Committee shall be
appointed by the State Government on the recommendation of
the Selection Committee under rule 87 of these rules.
(3) The Chairperson and the members shall be above the
age of thirty-five years and shall have a minimum of seven
years of experience of working with children in the field of
education, health, or welfare activities, or should be a
practicing professional with a degree in child psychology or
psychiatry or social work or sociology or human development
or in the field of law or a retired judicial officer.
(4) A member of the Committee shall be eligible for
appointment of maximum of two terms, which shall not be
continuous.
(5) All persons, on selection shall mandatorily be given
training under rule 89 within a period of sixty days from the
date of appointment.
(6) The Chairperson and the members may resign at any
time by giving one month's notice in writing to the State
Government."
Following is inserted as proviso to Sub Rule (4) of Rule 15
under Notification dated 01.09.2022 of the Ministry of Women
& Child Development, Government of India.
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"Provided that nothing contained in this sub-rule shall be
a bar in case of a member being appointed as
Chairperson."
10. A reading of Rule 15 along with inserted proviso it is clear
that Sub Rule (4) restricts or prohibits a person to become a
Member of the Child Welfare Committee of a District for more
than two terms that too the term shall not be continuous. The
proviso would further makes it abundantly clear that nothing
contained in Sub Rule (4) shall be a bar in case a Member
being appointed as a Chairperson. The Rule would not state
that only a Member of the Child Welfare Committee to be
appointed as a Chairperson. Any person other than the
Member also could be appointed as Chairperson of a District
Welfare Committee.
11. Admittedly, appellant/petitioner functioned as Member of
District Child Welfare Committee, Ballari District for one term,
i.e., from 2007 to 2010 and subsequently as Chairperson for
the period from 2014 to 2017. Therefore, learned Single Judge
was not right in observing that the petitioner could not have
once again applied to be appointed as Chairperson having
already completed the term as a Chairperson. There is no bar
for a person to become Chairperson any number of terms. But
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a person cannot be appointed as Member for more than two
terms. For appointment as a Chairperson, there is no such
restriction. Therefore, in terms of Rule 15 of 2016 Model Rules,
the appellant/petitioner has a right for consideration of his case
for appointment as a Chairperson, District Child Welfare
Committee, Ballari.
12. It is settled position of law that selection process shall
proceed in accordance with the Rules existing as on the date of
the notification. The amended proviso, which has come into
force subsequent to the issuance of notifications in question,
would have no application to the facts of the present case. The
selection shall have to be proceeded in terms of the
Notifications dated 14.07.2022 and 17.11.2022. Hence, we
pass the following order.
ORDER
(i) Writ appeal is allowed;
(ii) Order dated 13.02.2024 in W.P. No. 100656/2024
by the learned Single Judge is set aside;
(iii) A writ of mandamus is issued to respondents no.1
and 2 to consider the representation of the
petitioner dated 20.10.2023 (Annexure-E) and if
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the petitioner is otherwise eligible and qualified to
be appointed as Chairperson, District Child Welfare
Committee, Ballari, consider his application for the
said post along with applications of other persons
and interview him, if he falls within the zone of
consideration;
(iv) In view of disposal of appeal on merit, pending IAs
stand disposed off.
Sd/-
JUDGE
Sd/-
JUDGE
BVV
