The Bombay High Court has asserted that where children’s homes are established and run under the statutory framework of the Juvenile Justice Act through voluntary organisations, and the State has prescribed their staffing pattern and pay fixation, the State cannot evade its constitutional and statutory responsibility towards the welfare, care, education and rehabilitation of children by treating staff salaries as a purely private contractual matter between NGOs and employees.
The Court reasoned that effective implementation of the Juvenile Justice regime necessarily requires adequately qualified and adequately paid staff, and therefore the State’s refusal to consider salary grants on grounds such as financial burden, NGO autonomy, or voluntary assumption of responsibility is legally unsatisfactory when the ultimate responsibility for compliance with child welfare obligations rests with the State.
While emphasising that the State Government must prioritise framing an appropriate policy within six months for providing salary grants to deserving NGOs functioning strictly in compliance with the 2015 Act, the Court observed that the State should identify at least one children’s home run by a voluntary organisation in each district having adequate capacity, infrastructure, qualified staff and legal compliance.
Accordingly, the Court directed the State Government to consider framing an appropriate policy within six months for providing salary grants to deserving NGOs functioning strictly in compliance with the Juvenile Justice Act, 2015. The Court additionally observed that when the State is extending financial assistance under welfare schemes, it cannot without reasonable classification or justification deny or delay financial aid to institutions catering to children in need of care and protection, and that such resource allocation must satisfy Article 14.
The Division Bench comprising Justice Kishore C. Sant and Justice Sushil M. Ghodeswar examined the scheme of the Juvenile Justice framework and noted that Section 50 of the Juvenile Justice (Care and Protection of Children) Act, 2015, empowers the State to establish and maintain children’s homes either by itself or through voluntary organisations for care, treatment, education, training, development and rehabilitation of children in need of care and protection.
The Bench also noted that Section 53 of the 2015 Act contemplates services such as food, shelter, clothing, medical attention, education, skill development, counselling, recreational activities, referral services and other services necessary for the child’s well-being. It observed that, under the scheme of the law, children’s homes must have well-educated, trained and experienced staff to provide these facilities and activities, and if such staff are not appointed, the purpose of the Act would be defeated.
The Bench recorded that these children’s homes are run by NGOs, but they are registered and their staffing pattern and pay fixation are prescribed by the State Government. It observed that NGOs depend on donations for salaries and are naturally not expected to pay salaries at par with Government employees on similar posts performing the same duties. The Bench held that, at the same time, the Government cannot absolve itself of its duties and expectations under Articles 37, 38 and 39 of the Constitution.
The Bench stressed that children in need of care and protection are placed in children’s homes for a specific statutory purpose, and if they are not given proper attention and education, they may become victims of poverty, unemployment, health deterioration, crime and violence. The Bench reiterated such employees were required to be paid salary by sanctioning salary grants by the State Government, and that unless staff are adequately paid, they cannot be expected to perform well, which would disturb administration and performance of children’s homes.
Emphasising that children’s rights are not charity but a constitutional obligation and that the State cannot plead lack of funds and administrative difficulty, the Bench opined that although Directive Principles are not enforceable as such, they impose obligations on the State, and that the State cannot avoid responsibility for welfare obligations merely because they are discharged through voluntary agencies. The Bench expressed disappointment at the manner in which the State had dealt with the issue despite earlier directions and said it expected the State Government to reconsider the issue.
Briefly, the petitioners were employees of child homes/Bal-Gruhas run by unaided voluntary organisations/NGOs established under the Societies Registration Act and the Maharashtra Public Trusts Act, working in posts such as Superintendent, Counsellor, Junior Clerk, Caretaker, Cook and Helper. The staffing pattern and pay scale for such employees had been prescribed by Government Resolution dated July 29, 2006.
Since these NGOs were not being provided salary grants by the State Government, the petitioners sought directions to bring their service conditions at par with State Government employees and to sanction and release salary grants from the dates of their appointments. The petitioners relied on Section 34 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and its successor provision, Section 50 of the Juvenile Justice (Care and Protection of Children) Act, 2015, under which the State Government may establish and maintain children’s homes either by itself or in association with voluntary organisations, and may provide for their management, standards and services.
The petitioners also referred to Government Resolution dated Dec 22, 2006 providing grant-in-aid for each child admitted in Balgruhas towards day-to-day needs, Government Resolution dated March 30, 2007 recognising certain institutions as Balgruhas, and the Government Resolution dated July 29, 2006 providing staffing pattern and pay scale.
Appearances:
N.P. Patil Jamalpurkar, Advocate for the Petitioners
Dr. Kalpalata Patil Bharaswadkar, Addl. GP for Respondents
