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Rajasthan High Court · body

2025 DIGILAW 84 (RAJ)

Shobha Soni v. State of Rajasthan

2025-01-13

DINESH MEHTA

body2025
Order 1. By way of the present writ petition, the petitioners have challenged the order dated 05.02.2024 issued by the respondent no.1 (Commissioner & Special Secretary & CEO, Rajasthan State Child Protection Society), whereby sanction has been given to take services of Protection Officers (12) and Outreach Workers (11) in various districts on ‘Job Work Basis’ through a placement agency. 2. The petitioners have challenged such decision of the respondent - State on the ground that such posts are required to be filled-in by way of regular recruitment; that as per the ‘Mission Vatsalya’ Guidelines (Annexure-10), the Protection Officers and Outreach Workers are required to be selected as per clause (i) of Para (B) of District Annexure-III, whereas, the respondents are going to engage persons to work as Protection Officers and Outreach Workers through a placement agency. 3. While maintaining that the duties of Protection Officers and Outreach Workers cannot be brought within the ambit of services, learned counsel for the petitioners argued that the State’s decision to engage persons under the provisions of Rajasthan Transparency in Public Procurement Act, 2012 (hereinafter referred to as ‘the Act of 2012’) read with Rajasthan Transparency in Public Procurement Rules, 2013 (hereinafter referred to as ‘the Rules of 2013’) is illegal and arbitrary. 4. Inviting Court’s attention towards the roles and responsibilities of Protection Officers and Outreach Workers, learned counsel argued that the nature, duties and responsibilities to be discharged by persons occupying these posts are such that regularly recruited candidates alone can discharge such function, as most of the responsibilities are part of welfare activities and further because their duties involve dealing with children. 5. Learned counsel raised a grievance that the State has neither created/sanctioned posts of Protection Officers (Institutional Care/Non-Institutional Care) and Outreach Workers, nor has it framed rules for appointment and service conditions in this regard. 6. Mr. Bhandari, learned counsel appearing for the respondent – State on the other hand argued that the petitioners cannot challenge the manner in which the State proposes to engage its workforce. He argued that while engaging Protection Officers and Outreach Workers under the Act of 2012 through a placement agency, due regard shall be given to their qualification and competence. It was also argued that in the guise of such challenge, the petitioners are continuing with the respondent-State without having any legal right. 7. He argued that while engaging Protection Officers and Outreach Workers under the Act of 2012 through a placement agency, due regard shall be given to their qualification and competence. It was also argued that in the guise of such challenge, the petitioners are continuing with the respondent-State without having any legal right. 7. He further argued that the Mission Vatsalya Guidelines issued by the Government of India is directory and the petitioners cannot claim any vested right from such guidelines. 8. Heard learned counsel for the parties and perused the record. 9. Before proceeding with the matter, it will be apt to reproduce roles, responsibilities and duties of Protection Officers and Outreach Workers, as under:- A. Roles and Responsibilities of Duty holder in DCPU 1) Protection Officer (Institutional Care) Under the supervision of the DCPO, the Protection Officer (Institutional Care) shall ensure effective implementation of child protection programs and policies relating to children in need of care and protection at the district and local levels. He/she shall be responsible for ensuring effective institutional/residential care services at the district level for all children in need of care and protection. Every district shall have a minimum of one Protection Officer, and maximum of three Protection Officers (Institutional Care) on the basis of number of blocks, geographical spread and case load of the district. In case the Child Welfare Committee has a heavy case load, the State Government can appoint one full time Protection Officer to the Committee. Every district shall have a minimum of one Protection Officer, and maximum of three Protection Officers (Institutional Care) on the basis of number of blocks, geographical spread and case load of the district. In case the Child Welfare Committee has a heavy case load, the State Government can appoint one full time Protection Officer to the Committee. The specific roles and responsibilities of a Protection Officer (Institutional Care) shall include:- i) Identify families and children at risk to prevent destitution of children and arrange/provide them necessary support services like counselling, access to health care, education, vocational skills etc., with the support of the outreach worker working under him/her; ii) Carry out a situational analysis of children in difficult circumstances, collect and compile data on different dimensions of the child protection problems in terms of number of children requiring support, number of children in institutions and the kind of services they need; iii) Carry out a resource mapping exercise and develop a District Child Protection Plan and resource directory of child related services at the district level on the basis of data collected; iv) Ensure setting up and management of the child tracking system of all institutional care program including Open Shelters in the district; v) Support CWC in the process of inquiry and restoration of children; vi) Ensure registration of all child care organizations/institutions/agencies housing children under the Juvenile Justice Act, 2015; vii) Supervision and monitoring of all child care organizations/institutions/ agencies, both Govt. & NGO run (with or without support), housing children and ensure implementation of minimum standards of care; viii) Supervision and monitoring of other child welfare and protection programs being implemented at district level; ix) Identify training need and arrange for training and capacity building of personnel (both Governmental and Non-Governmental) involved in institutional care at district level in coordination with State Child Protection Society; x) Ensuring that documents of each child like Birth Certificate, Aadhar Card, School going Certificate, Vaccination certificates, Health Check-up cards etc., of all the children are made available by the CCI. xi) Ensure that Registration Certificates of CCIs under Juvenile Justice (Care and Protection of Children) Act, 2015, are verified and updated timely and to carry out registration of new CCIs as per standards of care laid down in Juvenile Justice Act/Rules. xi) Ensure that Registration Certificates of CCIs under Juvenile Justice (Care and Protection of Children) Act, 2015, are verified and updated timely and to carry out registration of new CCIs as per standards of care laid down in Juvenile Justice Act/Rules. xii) Ensure NGOs running CCIs must be registered on Darpan portal maintained by the NITI Aayog and follow all government stipulations including Foreign Contribution Regulation Act (FCRA) compliances. xiii) Ensure background verification of all NGO run CCI (funded and non-funded) staff to ensure their credentials. xiv) Prepare and submit a monthly assessment of CCIs in the district report to the DCPO. xv) Any other task assigned by the DCPO for attaining the objectives of the Mission. 2) Protection Officer (Non-Institutional Care) Under the supervision of the DCPO, the Protection Officer (Non-Institutional Care) shall ensure effective implementation of the non-institutional components of Mission Vatsalya relating to Sponsorship, Foster Care, adoption, After Care and cradle baby scheme. Every district shall have a maximum of three Protection Officers (Non- Institutional Care) on the basis of number of blocks, geographical spread and child population of the district. The specific roles and responsibilities of a Protection Officer (Non-Institutional Care) shall include: - i) Identify families and children at risk to prevent destitution of children and arrange/provide them necessary support for non-institutional care, where required; ii) Support District Magistrate in identifying adoptable children from the district and preparing a district-level database of adoptable children; iii) Promote and facilitate adoption in the district with the help of SAA by: a) Registering and maintaining database of adoptable children and PAPs for in-country adoption; b) Promoting in-country adoption within the district; c) Monitor adoption placement and ensure that the SAAs provide post placement support and follow up. iv) Ensure that all adoptable children in all Child Care Institutions (CCIs) are brought into the adoption system; v) Carry out family based non-institutional care through Foster Care, Sponsorship and After Care programs; vi) Carry out resource mapping and contribute in development of a District Child Protection Plan and a resource directory of child related services for noninstitutional care at the district level on the basis of data collected; vii) Function as the Nodal Officer for the uploading details of the Children on Vatsalya portal in the district; viii) Support CWC in the process of inquiry and restoration of children; ix) Supervise and monitor all child care institutions including SAAs in the district x) Coordinate with SARA and SCPS for training and building capacities of all personnel (Government and Non-government) involved in non-institutional service to children; and xi) Submit quarterly report to SARA on status of adoption program in the district. xii) Any other task assigned by the DCPO for attaining the objectives of the Mission. … … … … … … 9) Outreach Worker Each Child Protection Unit at district level shall have two Outreach Workers reporting to Protection Officers and Legal-cum-Probation Officer. Each Outreach Worker shall assist their respective Officer in carrying out their roles and responsibilities. The number of Outreach Workers can be increased up to a maximum of five (05) on the basis of number of blocks, geographical spread, population of the district and case load. They shall work as a link between the community and the District Child Protection Unit and shall be responsible for identifying families and children at risk and offer necessary support services. The Outreach Workers shall also be responsible for developing good networking and linkages with the Anganwadi workers and members of panchayat/local bodies at community/block levels. They should also encourage volunteerism amongst the local youth and involve them in the child protection program at block and community levels. 10. The Outreach Workers shall also be responsible for developing good networking and linkages with the Anganwadi workers and members of panchayat/local bodies at community/block levels. They should also encourage volunteerism amongst the local youth and involve them in the child protection program at block and community levels. 10. On consideration of roles, responsibilities and duties of Protection Officers and Outreach Workers and considering the vision, mission and objective of ‘Mission Vatsalya’, particularly what has been provided in clause (i) and (ii) of Part (B) of Mission Vatsalya Guidelines (Page No. 105), this Court is of the firm opinion that it is enjoined upon the State to create sanctioned posts and encadre these posts, which are necessary for the welfare of children and their overall development to achieve the avowed objects enshrined under the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as ‘the Juvenile Justice Act’), the Protection of Children From Sexual Offences Act, 2012, etc. 11. True it is, that these posts have not been sanctioned so far and rules have not been framed. However, in absence of sanctioned posts and rules, if the State is in requirement of suitable persons to discharge the duties of Protection Officers and Outreach Workers, then engaging a placement agency for such purpose is like outsourcing a sovereign function. That apart, when the ‘Mission Vatsalya’ Guidelines provides a manner of selection as given in clause (i) of Para No. (B) of the District Annexure-III of the Guidelines, the State cannot device its own mode of recruitment. Relevant part of the Guidelines reads thus:- “ B. Selection Process of staff under District Child Protection Unit (DCPU) i) A Selection Committee constituted by the State Principal Secretary/Secretary headed by District Magistrate shall head the Selection Committee for selection and appointment of the staff of DCPU. The district Selection Committee may include district level officers e.g. District Program Officer (ICDS), District Social Welfare Officer, Chairperson/Members of CWC, Members of JJB etc. Once the District Child Protection Officer (DCPO) is appointed, either by deputation or contract, he/she shall also be part of the Selection Committee for appointment of other personnel of the DCPU.” 12. It is not in dispute that the budget and finance to the extent of 60% is provided by the Central Government and 40% is borne by the State Government. It is not in dispute that the budget and finance to the extent of 60% is provided by the Central Government and 40% is borne by the State Government. The State can neither shirk from its statutory obligations to create these posts nor can it ignore the mandate of the Scheme. 13. This Court is of the view that the State cannot engage personnel on the post of Protection Officers and Outreach Workers through a placement agency, as the job and responsibilities being undertaken by the Protection Officers and Outreach Workers cannot be said to be services within the meaning of the Act of 2012 read with the Rules of 2013. 14. These posts are mentioned in the Juvenile Justice Act and the duties they are supposed to discharge are statutory. Hence, engaging these persons on Job Work Basis is wholly untenable and arbitrary. Having regard to the job responsibilities of Protection Officers and Outreach Workers, their emoluments cannot be determined and paid on the basis of job they have performed; persons occupying such posts are supposed to discharge continuous duties and responsibilities. 15. As an upshot of discussion foregoing, the impugned order dated 05.02.2024 is, hereby quashed. 16. The respondent-State is directed to take up requisite exercise of sanctioning requisite number of posts of Protection Officers and Outreach Workers and other incidental posts and frame Rules in this regard. 17. Until such exercise is undertaken and regular recruitment takes place, the State shall be free to engage these persons on contract basis, obviously in accordance with, more particularly following what has been noted in clause (i) of Para (B) of the District Annexure-III of the Mission Vatsalya Guidelines, of course after following due procedure including issuing of a public notice. 18. Till such exercise is undertaken and new persons are engaged through the process to be adopted, the petitioners shall not be disengaged save if they incur some disqualification or they are guilty of some misconduct. 19. The writ petition so also the stay application stand disposed of, accordingly.