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Judgment
Dr. S.K. Panigrahi, J.
Since common question of facts and law are involved in both the Writ Petitions, the same were heard together and are being disposed of by this common judgment. However, this Court felt it apposite to deal the W.P.(C) No.33459 of 2022 as the leading case for proper adjudication of both the cases.
The Petitioners, through W.P.(C) No.33459 of 2023, have challenged the office order dated 23.12.2022 and office order dated 21.06.2023, both issued by the Under Secretary to the Government of India and for the quashment of order dated 31.08.2023 issued by the Head Services of Childline India Foundation (CIF), Mumbai. The Petitioners also seek a direction from this Court to the Opposite Party Nos.3 to 5 in whose favour the Childline/ChildHelpline services got merged in the name of "Mission Vatsalya" by staff permanently Ministry of the Government of India for discharging, carrying out and operating the above services in the State to engage and continue with these Petitioners and other staffs permanently in their respective posts in such new transitional scheme without any break and to sanction their salaries/remunerations in the comparative pay-scale of the Government of Odisha without any discontinuation, break or discrimination.
I. FACTUAL MATRIX OF THE CASE:
The Petitioners, who are the Government-paid-post-holders being placed in different natures of posts under the Ministry of Women and Child Development, Government of India, Opp. Party No.1, and who along with others have been rendering their services for a substantial period of time in "Childline service/ Childhelpline Service " i.e., "A twenty-four hours emergency outreach service for children in crisis which links them to emergency or long-term care and rehabilitation service" as provided under Section 2 (25) of the Juvenile Justice (Care and Protection of Children) Act, 2015.
In the present Writ Petition, they seek quashment of the Office Order dated 23.12.22 as well as Office Order dated 21.06.2023, both issued by the Ministry of Women and Child Development(Child Welfare II Division), Government of India to the Principal Secretary, Department of Women and Child Development and Social Justice of all the States and Union Territories ordering for the "integration of Child Helpline (1908) with ERSS with telephonic short codes 112 and 112 India App and their linkage with Child Protection Units (CPUs)", which is an act of unrealistic, impractical and in-executable order which most importantly against the interests of the Children in crisis.
The petitioners seek further indulgence of this Court to pass appropriate directions to the State Authorities, in particular Opp. Party No.3, with whom the above Childline/Child Helpline services got merged in the name of "Mission Vatsalya" by the Order of the said Ministry of the Government of India for discharging, carrying out and operating the above services in the State without any break, to engage and continue with these petitioners and other staffs permanently in their respective posts in such new transitional scheme without any break and to sanction their salaries/remunerations in the comparative pay-scale of the Government of Odisha without any discontinuation, break or discrimination.
The petitioners seek quashment of order dated 31.08.2023 issued by the Head Services of Childline India Foundation, (CIF) Mumbai addressed to the Directors of Basundhara, Childline Cuttack and other Childline NGOs of other districts of the State of Odisha as well as other Collab Partnership Agencies revealing the closure of Childline Partnership with CIF.
The petitioners are paid their monthly remunerations in their respective posts from the funds allocated by the Ministry of Women and Child Development, Government of India, Opp. Party No. 1; the Opp. Party No.2 is the Authority of the Union Government launching new novel scheme of Mission Vatsalya, the Opp. party Nos.3, 4 and 5 are the Authorities of Government of State of Odisha with whom the Childline Services got integrated and merged in the name of Mission Vatsalya and Opp. Party No.6 is the mother Nodal Agency via which the petitioners have been receiving their monthly remunerations.
In the beginning, the Ministry of Social Justice and Empowerment, Government of India, launched and floated a pilot project/Scheme called as "Emergency outreach service through a "Mother NGO" in the year 1998 which was subsequently shifted to the Ministry of Women and Child Development, Government of India, Opp. Party No.1, in/around 2007. It is worth stating that the above project became a part and parcel of the "Integrated Child Protection Scheme (ICPS)" since 2009 under the said Ministry of W and CD. The above Emergency outreach services were meant for children in crisis and children in need of care and protection linking them to Emergency Long-term Care and Rehabilitation Service. The services, as per the decision of the Union Government, were entrusted with the Mother Agency named and styled as CHILDLINE India Foundation (CIF). The above CIF as a Nodal Agency carried out and operated the objectives of the said services through different NGOs called "Partnership-Agencies" in different Districts in India for further intervention process for children in crisis on the spot.
In the State of Odisha, the above services were operated and given effect to by different NGOs, acting as agencies under the Juvenile Justice Act, 2015 including the most reputed NGO of Basundhara in the district of Cuttack. In Basundhara alone, there are as many as 9 staff working day and night and discharging the "ChildLine Service".
The above Basundhara is one of the pioneer and oldest non- Government Organizations in the state of Odisha, which has a Shelter Home at Cuttack for the destitute children, women and aged persons. It is a premier voluntary organization of the State engaged, inter-alia, in the rehabilitation of such vulnerable sections of women and children of unwed mothers, destitute women, women and orphan/abandoned children. Unwed mothers are being assisted and rehabilitated, destitute women are counseled, rehabilitated and women in distress are given vocational training there. Under this organization a vast number of children in need of care and protection are being maintained with all facilities and care for their all-round development.
The organization has given In-Country Adoptions of 246 Nos. of Male Children and 337 Nos. of Female Children, in toto, 583 Nos. of children from the year 1986 up to the year 2014, which has by now increased by addition of a great number to all of such groups. Similarly, the organization has also placed 485 Nos. of Children in Inter- Country Adoptions from the year 1992 upto the year 2014, the above number, in the meanwhile, has gone up. It is significant to state here that the said NGO has been conferred the Adoption Recognition Status under the Juvenile Justice Act, 2000 by the Government of India through Ministry of Women and Child Development.
As Basundhara is functioning as one of the "Partnership Agencies" under the scheme framed as per the provisions of J.J Act in the district of Cuttack, other prominent NGOs are also discharging the similar Childline Servies in other districts of the State of Odisha and they are arrayed as proforma Opp. Party.
When the Childline Services got started in the State of Odisha under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, the objectives of the said Act focused on much attention for the children in conflict with law or those in need of care and protection. Perceiving the urgency for creating adequate infrastructure necessary for the implementation of the proposed legislation, it was categorically proposed that larger interest would be best served with the larger involvement of informal system specially the family, the volunteer organization, and the community.
In order to achieve the aforesaid objectives envisages by the principles laid down in the Act for administering justice to a juvenile or the child, the involvement of the voluntary organizations was made of utmost importance for the reason of the fact that they possess well-trained staffs with a lot of experience and expertise to discharge the required services under the provisions of the Act.
It is most profitable to quote the proposed objective, amongst others in clause-2 (vi) as follows, "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 legislation".
Taking into account the aforesaid statutory objectives, the scheme of Childline Services of the Ministry of Women and Child Development, Government of India is directed to be implemented by the cooperation of the Partnership Agencies, which are the non-governmental organizations of different districts, of whom the pioneer NGO of Basundhara is operative in the district of Cuttack and other reputed NGOs in respect of the other districts in the State of Odisha.
According to the new plan, the 1098 (Child Helpline number) will be integrated with "112 Emergency Response Support System" (ERSS) making police the first interface for the callers instead of social workers equipped and trained to handle a variety of sensitive and delicate cases related to children such as child labour, sexual abuse, violence, child trafficking, addition, runaways, child health, child marriage, homelessness, conflict with law and child education.
The Ministry of Women and Child Development (MWCD), Government of India has decided to shut down Childline India Foundation (CIF), the nodal body managing and monitoring the Childline 1098 service all over the country, and withdraw its support to NGO partners who provide emergency rehabilitation and repatriation services to children in need of care and protection and in conflict with law or in danger of any type. Till date, over 3 million children across the country have dialed 1098 for respective emergency help, care and protection.
According to the Ministry of Home Affairs (MHA), this decision has been taken under Mission Vatsalya, which subsumed the Integrated Child Protection Scheme (ICPS), which has further accentuated their linkage with District Child Protection Units (DCPUs) with the help of Centre for Development of Advanced Computing (CDAC). It is said that this integration is being planned to ensure that the state has "interfaces for children's complaints as well as well as for "data sensitivity". Mission Vatsalya, in partnership with States and Districts are going to implement a 24*7 helpline service for children as defined under the Juvenile Justice (Care and Protection of Children) Act 2015 as amended in 2021.
While the Childline/Child helpline Services were running smoothly by the staffs being paid by the Ministry of W and CD, Government of India, they were taken aback to find the office letter dated 23.12.2022 issued by the said Ministry of W and CD, the Government of India to the Principal Sectaries, Women and Child Development/Social Justice of all States and Union Territories conveying "Integration of Child Helpline (1908) with ERSS with telephonic short codes 112 and 112 India App and their linkage with Child Protection Units (CPUs)", the most vital portion of the said letter is extracted herein below:
“1. I am directed to refer to this Ministry letter No.Cw-ii/22/36/2022/Cw/ii (e-102313) dated 12.09.2022, 2.11.2022 and further discussion in the meeting held on 28.11.2022 under the chairpersonship of AS&FA, M/o WCD on the subject mentioned above and to say that as per the mission vatsalya scheme, the Child Helpline shall be run in coordination with State and District Functionaries and integrated with the ERSS-112 helpline of Ministry of Home Affairs for which Ministry has decided to avail the services of center for Development of Advanced Computing (C-DAC)
In this regard, all the States/Uts were requested to identify a State Level Nodal Officer and the Second Level Officers for the State/Uts, to support the C-DAC by providing necessary inputs etc. States/UTs will provide suitable and sufficient space/building for setting up WCD Control Room, with proper electrical wiring with necessary power sockets and other basic infrastructure, wherein CHL and WH call takers may be co-located.”
The Childline services was in full swing since 2000 in the State of Odisha through the Tollfree Helpline Number 1098, the petitioners as well as more than 500 staffs of the Childline Services of the State of Odisha received a number of letters of different dates through their respective Partnership Agencies regarding closure of Childline Partnership with CIF. The letter of the above dated 31.08.2023 issued by the Head Services of Childline India Foundation, CIF, Mumbai addressed to the Director of Basundhara, Childline Cuttack, Collab Organization combined with other collar papers furnished a ground for such a closure of Childline service stating that the Government of India has made the provision to operate the ChildHelpline services in place of Childline Service under Mission Vatsalya under the scheme of Mission Vatsalya.
It is submitted that after issuance of the above letter, no payment has been received by the staff of the Childline/ChildHelpline Services including the present petitioners even after having put in their services for substantial length of time different posts with sanction monthly remunerations/payments from the Ministry of W and CD, Government of India, for the reason of which some of them have, in the meantime, crossed the age bar for any other services.
Hence, being aggrieved by the same, the petitioners have filed this Writ Petition.
II. PETITIONER’S SUBMISSIONS:
Learned counsel for the Petitioner(s) earnestly made the following submissions in support of his contentions:
It is submitted that the aforesaid office orders are passed in arbitrary exercise of power committing illegalities and further the same suffers from the vice of unreasonableness, arbitrariness and unfairness inasmuch as it has overlooked the predicaments and inconveniences of the existing staffs, named the petitioners as well as more than 500 other well-trained staffs of the Childline /Child helpline services already engaged with a lot of experience and expertise in the field.
Further, the novel scheme of Mission Vatsalya in place of Childline Services is not only against the mandates of the provisions of the JJ Act, 2015 and the Rules framed thereunder but the said service by the help of Police Personnel is quite unrealistic, impractical and inexecutable. Additionally, such scheme goes entirely against the interest of the children in crisis and in that process the impugned notifications have the effect of affecting the very working of the scheme under Chapter VI of the Juvenile Justice (Care and Protection of Children) Act, 2015 and other ancillary provisions of the said Act. Besides, the impugned notifications abrogate the provisions of Childline Services under the Act, which is beyond the competence of the Authorities issuing the impugned notifications.
It is further submitted that this integration has brought the Childline Services into a state of disarray, confusion and disorder in the said service and, hence, the said integration cannot be said to be one for the Children in crisis, though "ChildLine" and its services still subsists under the J.J Act, 2015.
It is submitted that according to the Ministry of Home Affairs (MHA), this decision has been taken under Mission Vatsalya, which subsumed the Integrated Child Protection Scheme (ICPS), which has further accentuated their linkage with District Child Protection Units (DCPUs) with the help of Centre for Development of Advanced Computing (CDAC). It is said that this integration is being planned to ensure that the state has "interfaces for children's complaints as well as well as for "data sensitivity". It is submitted that interfaces and data sensitivity aside, it is important to understand the fact that DCPUs do not have sufficient devoted human resources like the existing CHILDLINE support center to handle calls and respond immediately. Mission Vatsalya, in partnership with States and Districts are going to implement a 24*7 helpline service for children as defined under the Juvenile Justice (Care and Protection of Children) Act 2015 as amended in 2021.
It is submitted that though the Ministry of Home Affairs, GOI claims that Child Helpline will now operate better due to the improved coordination of State and District functionaries, it is not a fact on the field for benefits of the children in crisis and further such a system is in violation of the provisions of J.J Act, that keeps the welfare and wellbeing of the children as a top priority and paramount consideration but as all the procedures laid down in a child- friendly manner.
Another difficulty that is likely to arise in the new integrated system of Mission Vatsalya is that the police are becoming the first pot of call instead of social workers and child experts, there are lot of skepticism about how the calls are going to be handled. It is well known that at Childline 1098, there are several calls from children in mental distress who require immediate attention to long-term support and counseling;
Further, there are also others beneficial activities like those children for food, books and even shelter. Again, when deeply distressed children give calls, they take time to get comfortable and reassured before they open up, and this is why these calls need to be taken by experts who understand children and their psychology and are trained to protect and guide them. Police personnel are not trained to do the said service. The police are therefore not at all an appropriate first point of contact and will not be able to access services essential for rehabilitation and repatriation, needed utmost at that moment for children. Besides, the Juvenile Justice Act, 2015 has less provision for the police in uniform and police in general too.
The other factor for consideration is whether there are enough police personnel to do and discharge such kind of services. As is well known there is a huge human resources crunch and it is needless to submit here that in the State of Odisha, there are plenty of vacancies remaining for long in the Police Department.
Adding to the pressure, new specialized departments such as National Investigation Agency (NIA), Enforcement Directorate (ED), Anti-Terrorist Squad (ATS), Special Task Force (STF), and Economic Offences Wing (EOW)-were carved out to address corruption, terrorism and other criminal activities. While police personnel here are deployed from the existing pool of human resources, reports have shown that there are huge gaps in sanctioned posts and the actual work forces. In fact, the police personnel are overburdened and short staffed. Therefore, keeping Childline 1098 and strengthening CSO partners, who are experts in child-friendly mechanisms, is essential to ensure that children are safe and secure.
In view of the aforesaid facts and data, there is really no need for such an integration which is in violation of the statute and the statutory Rules and it unnecessarily and unlawfully takes away the services of the trained staffs from the scenario in complete contradiction and opposed to the scheme/project of children in crisis, especially when the number is working just fine and with great success.
The petitioners have submitted that such a change apart from being inconsistent with the statutory provisions, derecognizes the services rendered by them for such a longer tenure of more than 20 years and has the effect of taking away the livelihood of the petitioners and hence cannot be stopped abruptly without any lawful and reasonable justification.
It is submitted that in spite of the objectives of the Mission Vatsalya, it has number of deficiencies in applying on the spot. The above mission is to be managed by the State Administration with the help of Police Personnel. It is well-known short -staffed Police personnel can't render the call services like the staff of the Partnership Agencies having a lot of experience and expertise. Secondly, the busy schedule of the available short-staffed Police Officials by no stretch of imagination match the services of the Childline staffs, who are not only are well- trained but do their services 24*7 day and night. Therefore, the above scheme in spite of its mission cannot render the equal manner of services on the spot to the children in crisis.
Further, it is submitted that the other practical inconveniences to be faced by the existing staffs having lodged F.I.Rs before different police stations and on that basis number of cases are being heard by different criminal courts and summon these informants to those courts cannot be regulated properly in absence of these staffs.
It is submitted that the initial financial sanction for the aforesaid post comes from the Ministry of W and C, Government of India which is disturbed to the post-holders through the Mother NGO, CIF and the Partnership Agency of different districts. A sanction letter dated 31.03.2022 issued by the Executive Director, CIF to the Director, CHILDINE Cuttack (Basundhara) goes to establish the fact of payment structure received by the petitioners and other staffs of the Childline Services from month to month from the Government of India, the Ministry of W and C D.
It is submitted here that the sanction of monthly remunerations/payments is given in accordance with the names of the post holder as sent and communicated to the Ministry of W and C D via CIF from time to time.
It is submitted that when the Act provides the above system of operation in the name of Childline services as defined under sec. 2 (25) of the J.J Act, 2015, the change of name from Childline services to Child Helpline Services under mission Vatsalya signifies an act with the vice of illegalities, arbitrariness and unfairness to such alteration and further is procedural ultra vires.
It is submitted that by mere removal of the Mother NGO i.e., CIF from the modus operandi of the scheme/project of the Ministry of W and CD, Government of India, the long tenure of services of the staff of Childline/Child Helpline Services for 24*7 day and night cannot be taken away or hampered in any manner affecting their regularities and monthly remunerations. It is submitted that such an act goes a long way against the rights and interests of the petitioners along with more than 500 staffs in the State in as much as so far they are being paid by the Ministry of W and C D, GOI as against their respective posts, and as such they are government-paid-post-holders incurring their rights to be continued with their respective posts in their favour.
When the Childline services are still in force and the Care and Protection of the children in crisis is in operation by the provisions of the J.J Act, through the Ministry of W and CD, Government of India, the change of name alone cannot take way the services of the petitioners and others working in Childline services since more than 20 years continuously and uninterruptedly without any break. Such an act is not only unfair but also vitiated by malafides to gratify the vested interests of the said Ministry to engage and accommodate some other persons in the same nature of work, which is against the sanction of law.
It is submitted that after the merger and integration of Childline/Child Helpline Services into the new scheme of Mission Vatsalya entrusting the operation of such services with the various State Governments in their concern departments of W and CD, in order to achieve the best services, the existing staffs having a lot of experience and expertise should be engaged and continued by the State Governments.
When the Childline Services are very much available under the Scheme of the JJ Act, 2015, giving a different name to such service and then taking away the jobs of the petitioners speaks of an action which is not acceptable under law. Assuming that the newly created set up is a substitute for the Act and duties of the petitioners, the petitioners who have got tremendous expertise and experience ought to have been retained rather than engagement of new and inexperienced hands. Therefore, the action of the Opposite Parties Nos.1 to 6 is not only unconstitutional but also exploitative in nature and hence needs interference of this Court.
III. SUBMISSIONS OF OPPOSITE PARTY NO.1:
Per contra, learned Counsel for the Opp. Parties intently made the following submissions:
It is submitted that the Mission Vatsalya is a centrally sponsored scheme launched by the Ministry of Women & Child Development, Government of India implemented through States in 60:40 matching contribution ratio. The Scheme ensures children's safety and security through establishment of statutory bodies including State Child Protection Society, District Child Protection Unit, Juvenile Justice Board, Special Juvenile Police Units.
The scheme also provides support to service delivery structures including various child care institutions which provide shelter and nurture to children in need of care and protection and child in conflict with law. There is provision of engagement of professionals, capacity building, Information Education Communication (IEC), Advocacy, Outreach Services under the Scheme. All of the above services are operative in the State under the Mission Vatsalya Scheme.
It is submitted that the Ministry of Women and Child Development (MWCD), Government of India (Gol), funded the Childline India Foundation (CIF) for the implementation of Childline Services through various partner NGOs in different localities. In this system prevalent since 2006-07, the State Govt. was not a party to the implementation.
It is submitted that it was the sole decision of the Union Govt. to change the implementation procedure in the financial year 2023- 24. MWCD, Govt. of India, issued the Standard Operating Procedures (SOPs) where in at Clause 1 it has been stated that:
“States and Districts will execute the 24x7 Child Helpline '1098' service for children as defined under the JJ Act, 2015. The Child Helpline shall be run in coordination with State and District functionaries and integrated with the Emergency Response Support System 112 (ERSS-112) helpline of MHA.”
It is submitted that as per the SOPs of MWCD, Govt. of India, the upgraded Child Helpline system includes a State call center and control room in Bhubaneswar, 24X7 call centers at every district, advanced MIS software, and a specific professional team of 282 individuals with computer knowledge, replacing the previous regional setup.
It is submitted that the state is following the SOP issued by the MWCD, which is providing 100% funding for the program. Clause 5.D. of the SOP does not prescribe retaining any existing staff engaged by NGOs. The SOP prescribes that:
"The staff shall be engaged on a contract or outsource basis by the States/UTs and shall ordinarily be up to the 15th Finance Commission cycle i.e., up to 2025-26, subject to annual performance appraisal."
As a matter of policy and executive decision, taking into account all factors, the Government of Odisha has opted for outsourced manpower services. The placement agency for outsourcing manpower has been selected following the procedures prescribed by the Finance Department vide Office Memorandum No.37323 dated 30.11.2018.
This selection was made following the publication of advertisements in newspapers to invite proposals from placement agencies. In response to the aforesaid advertisement, 10 agencies applied, out of which, Jagannath Placement & Security Services Private Limited, Bhubaneswar, has been entrusted with providing the required manpower as per the indicative qualifications and desired experience outlined in Annexure III of the MWCD SOP.
Upon the Court's observation, the practices in other States such as West Bengal, Tripura, Tamil Nadu, Kerala and Assam were enquired into. It was observed that these States did not accommodate existing man power engaged by the erst-while NGO in the new set-up. It is may be noted here that only Tamil Nadu has made such arrangement for a temporary period only, till regular recruitment. As the Government of Odisha was able to complete the procurement process in a timely manner, the need for such temporary arrangement did not arise.
It is submitted that pending the recruitment of full-fledged human resources, the State Control Room of Child Helpline 1098 is operational in Bhubaneswar since 01.09.2023 with interim arrangements, integrated with ERSS 112, along with District Child Protection Units functioning as response and rescue units. Centre for Development of Advanced Computing(C-DAC), India is engaged by Gol for technical support. The installation of district control rooms are on process. The new system will fully implement the Child Help Line Services as per the SOP with use of advanced technology through qualified and experienced manpower.
The State adheres to the Indicative Qualifications and Roles and Responsibilities of Staff for Child Helpline as per the SOP issued by MWCD. The petitioners were appointed by different local NGOs on the principle of the respective organization. The State Govt. was not a party to the existing implementation plan.
The hiring of manpower for the state-owned mechanism needs to follow the laid down and approved procedure, in line with the State Govt.'s policy. There is no policy for employing/ engaging on contract the employees of different NGOs into the Govt. system, as it would be restricting other qualified and experienced people. It is to mention that Child Line is not the only NGO working in the area of Child Welfare or operating Helplines. In fact, Child Line also had other NGO partners in Odisha who were providing this service to MWCD. Similarly, there are several other NGOs with qualified and experienced people working in child protection and helpline mechanisms too. Singling out and providing advantage to the employees of one NGO would be against the principle of transparency and equal opportunity.
Further, the MWCD's list reveals that 58 Childline Partner NGOs employed 418 individuals, including the petitioners, until January 2023. The new system, for which funding is being provided by MWCD, requires only 282 individuals. Thus, it is impossible to accommodate all the 418 human resources who were working with Child Line in the past. In order to avoid any arbitrary selection process, which the State Government policy does not allow, the established process prescribed by the Finance Department vide Office Memorandum No.37323 dated 30.11.2018.
Nowhere are the petitioners debarred or prevented from applying and getting selected in the new program. The existing staff who possess the required qualifications and experience and fulfill other criteria may apply and after the process of selection, may join the new system.
It is submitted that the State of Odisha is a pioneer in implementing Child Protection programs. The State Child Protection Society (SCPS) and District Child Protection Unit (DCPU)s, in collaboration with partner NGOs and in convergence with line department/ offices, puts maximum effort into every child in need. Anganwadi Workers and Ashas on the field are trained and coordinated with for the implementation and follow-up of Child Welfare and Protection activities. Every reported case and lapses are being inquired, complied and followed up. The SCPS and DCPUs will implement the program with obtaining the manpower supplied by the selected placement agency.
It is submitted that in obligation to the order of the Court, the Government of Odisha has explored the model of West Bengal, Tripura, Tamil Nadu. It was observed that these states did not accommodate existing NGO manpower in the new setup, except for Tamil Nadu, which provided an interim arrangement on honorary payment until the recruitment process completion. Since the state has started the full-time arrangement, there is no need for an interim arrangement like Tamil Nadu.
It is submitted that the State may kindly be allowed to go ahead with the recruitment process to start the full-fledged 24x7 child helpline 1098 services all over the State, as it is in the final stage, subject to the final outcome in this case. A stay creates severe dislocation and prevents the delivery of essential services to innocent children, especially those in distress, for no fault of theirs.
IV. COURT’S REASONING AND ANALYSIS:
Sec.2 (25) of the Juvenile Justice (Care and Protection of Children) Act, 2015 defines "ChildLine services" as a twenty-four-hour emergency outreach service for children in crisis which links them to emergency or long-term care and rehabilitation service.
The Childline Services is a statutory Body upon whom ample amount of responsibility have been fixed by the statute, such as bestowing an authority upon it to produce a child before the Child Welfare Committee and further in case a child is found abandoned/separated from its parents, information is to be given to Childline Services for the protection of the child. The said services are open 24-hours on an emergency basis for long-term care and rehabilitation services.
In order to give effect to such statutory provision, 1098 was the number prescribed to reach the Childline Services on 24x7 basis and the petitioners have been working to provide the said service so as to carry out the objectives of J.J Act and the said provision still subsists.
Furthermore, it is pertinent to mention here that Emergency Outreach Service is a 24*7 emergency phone outreach service for children in crisis which links them to emergency and long-term care and rehabilitation services. The service can be accessed by any child in crisis or an adult on their behalf by dialing a four-digit toll free number, 1098 established by the Government of India in 1999, this service has been extended in 280 cities across the country. In order to create a protective environment for children in all parts of the country, Integrated Child Protection Scheme (ICPS) has made the expansion of this service to all districts/cities.
In order that the aforesaid Childline services reach the children in crisis and children in need of care and protection, the Childline India Foundation enter into an agreement with Collaborative Agencies of different districts throughout India and operated its function through Mother Nodal Agencies which operates their function through other Nodal agencies of the State.
The Nodal Agency in the State of Odisha for the aforesaid Childline services named and styled as "Open Learning System" is at Bhubaneswar having one honorary post of Director and another Coordinator with monthly remuneration. Under the said Nodal Agency, the District Collaborative Agencies function. Each center of District Childline Collaborative Agencies engages 9 staff for ChildLine services, of whom one Coordinator, one Counselor, 6 Team Members and one Volunteer, in toto, 9 posts. Under each center of District Childline Collaborative Agencies, one district sub-center is in operation having 5 number of staffs of Childline services, of whom one Team leader and 4 team members are engaged. Similarly, the District Railway Childline, which is at par with the aforesaid Childline Collaborative Agency engages one post of Centre Coordinator, one Counselor, 7 Team Members, 3 Volunteer in total 12 posts. ChildLine services are operated through District ChildLine Collaborative Agencies, shortly called "COLLAB".
The entire concept, scheme and structure of the Childline services is not only a State Action and a creation of the Government of India to further its Public Services for the benefits of the Children in crisis but also the financial assistance to meet the entire expenditure of such beneficial service is borne by the Government of India in its entirety with 100 percent financial sanction from the Ministry of W and CD having deep and perversive State control. Further the monthly remunerations of the staffs in different posts of the Partnership-Agencies of the various districts till date were being sanctioned and released in their favor by the Government of India through the Mother NGO against each and every named staff of the Childline Services. Although the action was in operation through the Mother NGO, CIF, for the want of man-power with the Government of India, the entire control over the same was emanating from the Ministry of W and CD, Government of India.
This is envisaged to be accomplished by way of legislation, policy & schematic interventions along with coordination with other Ministries and Organizations. The National Children Policy, (as revised in 2013), and the National Plan of Action for Children, 2016 laid down the policy framework for child welfare and protection. The Indian Parliament has passed several landmark legislations in favor of children like the Juvenile Justice (Care and Protection of Children) Act 2015, the Protection of Children from Sexual Offences Act 2012, the Commissions for Protection of Child Rights Act, 2005, the Prohibition of Child Marriage Act, 2006 and the Right to Education Act 2009. India is also a signatory to important international treaties i.e., the United Nations Convention on Rights of Child and the Hague convention on Adoption of children which mandate systemic development and strengthening of juvenile justice system in the country.
"ChildLine 1098" was founded in the year 1996 and it functions and is operative for 24X7, 365 days a year. It caters free emergency phone service providing help to children in need of care and protection. This helpline number not only responds to emergency needs of children but also linked them to relevant services for their long-term care and rehabilitation.
In the first place, the financial sanction for the post-holders comes from the Government of India, the Ministry of W and CD which is disbursed to the post-holders through the Mother NGO, CIF and the Partnership Agencies of different districts, which approved due sanction from the above department of the Central Government. Further, the payment structure received by the Petitioners and other staffs of the Childline Services from month-to-month from the Government of India, the Ministry of W and CD against the names of the post-holders. Therefore, it is not correct to state that the staffs were engaged by the NGOs.
Moreover, the SOPs very clearly prescribe the preference clause, there remains no doubt or ambiguity that the old staffs are to be adjusted in the new staffing pattern with due relaxation of their ages and qualifications and more importantly, when the SOPs nowhere expressly bar/deny retaining any existing staff. Not only the staffs working under the NGOs are duly approved by the Government of India, the Ministry of W and CD but also their remunerations/payments are sanctioned and released by the said department of the Central Government.
In the new advertisement pertinent to the State of West Bengal, under the heading "General Instructions", clearly mentions in bold letter that "preference will be given for the existing Childline personnel". Similarly, in the new advertisement pertinent to the State of Tamil Nadu provide under the heading "Appointment of Staffs in CHL", that "preference shall be given for the existing Childline staff in the CHL Units".
Additionally, law is well settled that issuance and implementation of schemes is a policy decision of the Government and comes under the purview of the state. However, it is pertinent to understand, it is the duty of the state to protect the rights of the individuals employed under such schemes since they are very much experienced. It is unfair for the said individuals, some of them have served for more than 15 years in the said post to be thrown in the aftermath of the issuance of a new ‘Mission’.
Therefore, this Court is inclined to follow a liberal construct in the present case. Moreover, State of West Bengal and Tamil Nadu have also provided for preference to the existing Childline personnel. This Court herein observes that it is the duty of the State to accommodate the present Petitioners under the new scheme considering their long years of service and the valuable experience they have gained from it. The Opposite Party/ Government has also agreed to accommodate them as per their qualification and experience without becoming too much rigid on the educational qualification in the selection procedures.
This Court hereby directs that the office order dated 23.12.2022 and office order dated 21.06.2023, issued by the Under Secretary to Government of India and order dated 31.08.2023 issued by the Head Services of Childline India Foundation (CIF), Mumbai be modified with respect to accommodating the present petitioners in their respective posts. It is made clear that this order is specific to the present Petitioners only and shall not be taken as a precedent.
Accordingly, both the Writ Petitions are disposed of.
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