In a petition filed before the Jammu & Kashmir and Ladakh High Court to challenge an order dated 02-05-2024 by the Child Welfare Committee, Srinagar whereby a recommendation was made to the Director, School Education, Kashmir and District Magistrate, Srinagar, to take legal action as per the relevant rules against the petitioner school for unlawfully expelling the minor (respondent), a Single Judge Bench of Justice Sanjay Dhar found the impugned order to be unsustainable in law and set the same aside.
The father of the minor child had filed a complaint dated 10-11-2023, which was received by the Child Welfare Committee, Srinagar, through the District Social Welfare Officer, Srinagar, the Additional Deputy Commissioner, Srinagar, and the National Commission for Protection of Child Rights (NCPCR). The complaint stated that the minor child had been expelled from the Oasis Girls School, Gogji Bagh, and the Foundation World School, Humhama, after the father reported certain irregularities committed by them regarding fake annual charges, etc.
The NCPCR took cognizance of the matter and directed the Committee to take action. Thereafter, a case was registered, and a summons was issued to the principals of both schools. Based on the material on record, the Committee concluded that the minor child had been expelled illegally and was discriminated against because of her parents’ actions, which made her disadvantaged sui generis. Therefore, the Committee recommended that the Chief Education Officer, Srinagar, enrol the minor in a girls-only neighbourhood school, whereas the Director of School Education and the District Magistrate were recommended to take appropriate legal action against both schools.
The Court perused Sections 27(1), 29, and 30 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), and found it to be clear that Child Welfare Committees are vested with powers and have to discharge the duties in relation to ‘children in need of care and protection’. It was stated that the minor did not fall within the definition of ‘child in need of care and protection’ as per the JJ Act, as she did not fit in any of the clauses (i) to (xii) of Section 2 (14) of the JJ Act.
The Court noted that the Committee had arrogated to itself the jurisdiction to conduct the enquiry and make recommendations in the present case as per the law laid down in Exploitation of Children in Orphanage in the State of Tamil Nadu v. Union of India & Ors. (2017) 7 SCC 578. However, it was held that the reasoning adopted by the Committee in taking cognizance of the complaint by bringing the minor within the purview of the definition of ‘child in need of care and protection’ was wholly misconceived.
The Court stated that if a particular situation is to be brought within the purview of an illustrative definition, the same should be interpreted ejusdem generis, i.e., limited to the same class or nature. It was further said that since the minor was neither neglected nor exploited, as she was being well taken care of by her father, she could not be termed a child in need of care and protection.
Further, the Court stated that, under Section 29 of the JJ Act, a Child Welfare Committee does not have jurisdiction to recommend action against any institution and is only authorised to dispose of cases for care, protection, treatment, development, rehabilitation, and to provide for the basic needs of children in need of care and protection. Hence, the recommendations in the impugned order were found to be beyond the Committee’s competence.
Thus, the Court held that the Committee had exceeded its jurisdiction in passing the impugned order and found it unsustainable in law. The Court allowed the petition while setting aside the impugned order.
Appearances:
For Petitioner – Mr. Aatir Javed Kawoosa, Mr. Areeb Javed Kawoosa
For Respondent – None
