Petition Nos
5704 and 8842 of 1990
IN Writ Petition Crl No 1171 of 1986
Under Article 32 of the Constitution of India
Altaf Ahmed Additional Solicitor General AS Nambiar Laxmi Kant Pandey in person Ms A Subhashini Ms Niranja na Singh Ms Shanta Vasudeva PK Manohar KR Nambiar Jagdeep Kishore TVSN Chari Ms Suruchi Aggarwal Ms Manjula Gupta Bharati Reddy Ms Kusum Choudharv Ms Bina Gupta Ms Monika Mohil Ms Vandana Saggar Gopal Singh AS Pundir Manoj Swarup V Krishnamurthy Ms H Wahi BB Singh DN Mukherjee PH Parekh Ms Chandan Rama murthi Ms Kamini Jaiswal RK Mehta Ms Urmila Kapoor M Veerappa Uma Nath Singh AS Bhasme Kailash Vasdev G Prabhakar SK Bhattacharya RS Suri Ms section Dikshit Prabir Choudhary K Swamy Aruneshwar Gupta Ms M Karan jawala HK Puri and Ms Rani Chhabra for the appearing parties
The following Order of the Court was delivered In Laxmikant Pandey vs Union of India  this Court laid down the procedure to be followed in adop tion of children by foreigners
The Court observed the fact that children are a supremely important national asset and the future well being of the nation depends upon  how the children grow and develop
It quoted with approval the report of the Study Team on Social Welfare where it was said The physical and mental health of the nation is determined largely by the manner in which it is shapped in the early stages
 571 This Court also quoted with approval from the National Policy for the Welfare of Children where it was Said The nation s children are a supremely impor tant assets
Their nurture and solicitude are our responsibility
Children s programme should find a prominent part in our national plans for the development of human resources so that our children grow up to become robust citizens physically fit mentally alert and morally healthy endowed with the skills and motivations needed by society
Equal opportu nities for development to all children during the period  of growth should be our aim for this would serve our larger purpose of reduc ing inequality and ensuring social justice
 Thus saying this Court laid down the procedure to be followed and while doing so the CoUrt referred to recog nised child welfare agencies and provided for their licens ing or registration by the Central Government
Petitioners in this application  are some of the licensed welfare agen cies contemplated under the judgment of this court and petition No 2 is the Central Voluntary Adoption Resources Agency which is a coordinating unit based at Delhi
In these applications petitioners have made the following prayers ai All GOvernmentjuvenile homes nursing homes and hospitals Government or private will apply for declaration of a child as abandoned and free for placement and if the parents of the child are not known such children should be transferred to the recog nised institutionplacement agency as request ed for by them within a fixed time frame ii all recognised placement agencies de pending upon their capacity to accommodate and care for those children after accounting for their age and qualification should be allowed to seek transfer of those children from Governmentjuvenile courts and nursing homeshospitals and such institutions should be obliged to transfer the children such placement agencies 572 iii Juvenile Welfare BoardsCourts should allow the aforesaid transfers in favour of the recognised agencies for rehabilitation through guardianshiPadoPtion from VCAs CVARAS or otherwise iv Juvenile Welfare BoardsCourts should not disturb the custody of children abandoned directly with the recognised placement agen cies when approached for declaring them as abandoned and free for placement and such orders may be passed ex parte and confirmed after notice to the concerned parties bi Quota fixed by the Central Government for placement of children with Indian families may be quashed as being contrary to the deci sion in Laxmikant Pandey s case ii in the alternative if this Court upholds the validity of the circular fixing the quota the percentsge may be suitably reduced iii this court may direct that if the quota is to be fixed children with handicaps medical problems and other drawbacks should be excluded from the total count as also girls above one year and boys above two years of age should be exclude from counting c The State Governments and the various Union Teritories should be directed to issue birth certificates based upon attested copies
of court s certificate decree adoption deed or on the basis of affidavits of officials of the licensed agencies d This Court may approve by way Of revision of expenses by about 25 with effect from the date of the application and another 10 in crease annually to enable the agencies to maintain high Standards of care for the chil dren e The Indian children adopted abroad or to be allowed to retain their citizenshipnation ality till they attain the age of majority
wherever they should exercise their option one way or the other fi The Central Government should be di rected to act 573 by itself or through the StateUnion Territory Governments to issue show cause notice before refusing to extend recognition arid grant personal hearing before taking official action and reasoned orders should be made in support of such action ii In the event of cancellation of recogni tion a time frame should be fixed to clear all the cases already in the pipeline for being processed ii An appellate authority should be pre scribed for challenge of governmental action as stated above gi The Court may direct stay of governmen tal action in the matter of setting up of Central Adoption Resource Agency CARA and ultimately hold that there was no longer any need for such as agency in view of the fact that many private agencies were not available to monitor the programme
Notice was ordered on these petitions on September 21 1990 and these several months that have followed have been taken by different State Governments and Union Territories and others to place their affidavits for consideration of this Court
We have heard counsel for the appearing parties at length
Before we deal with  several prayers placed before the Court for consideration it is perhaps necessary to refer to the provisions of the Children s Act of 1960 and the Juvenile JUstice Act of 1986
The  scheme of these two Acts is not very different
The definitions of neglected child  and neglected juvenile  is absolutely the same
The mechanism foradministering the statutes is also more or less the same
Under section 41 of the Children s Act a Child Welfare Board is intended to take charge of neglected children
Under section 41 of the Juvenile Justice Act a Welfare Board for the neglected juveniles is similarly contemplated
Sub sections 3 and 4 of either Act autho rise the Board to  function as a Bench of Magistrates and confers on such Board certain powers under Criminal Proce dure Code conferable on a Metropolitan Magistrate or a Judicial Magistrate of the First Class
Section 9 of the Children section Act contemplates of Children s Homes and de tailed provisions have been made in the matter of setting up of such homes and management thereof
Section 11 contem plates of Observation Homes
Chapter III deals with neglect ed children
574 Under Chapter II of the ACt of 1986 provision has been made for
setting up of Juvenile Homes section 9 Special Homes section 10 and Observation Homes section 11
Both the Acts provide
for After Care organisation
Though these two statutes in recognition of the impor tance of children to society have made these beneficial provisions nothing concrete and substantial appears to have been done yet for implementing either statute in a serious way
The Children s Act has been operative for more than 30 years while the Act of 1986 is in force for about five years
Yet most of the provisions in the two statutes are still to be worked out in a real way
The Union of India has set up a Department of Women and Child Development and most of the States and Union Territo ries have corresponding departments yet full coordination has not been achieved
The responsibility of administering the two statutes is not properly shared
Monitoring seems to be very much wanting
In course of hearing of this petition we asked learned Additional Solicitor General appearing for the Union Govern ment to tell us as to what happens to the children both boys and girls who are lodged in the Homes when they cease to be children under the statute
It may be pointed out that under the Children s Act boys Upto 16 and a girl upto 18 years come within the definition of child
If children  within the meaning of the term are lodged in various types of homes indicated in the two statutes what exactly happens to them when they cease to be children by passing of time has remained anenigma in the absence of a clear answer
Obviously no provision has been made in these two Acts to meet such a situation
Is it the intention of the stautes then that once a boy
Or girl ceases to be a child
and does not come within the purview of the stautes heshe would have to be thrown out from the home on to the street as no more cared for What then would be the effect of such a situation Since that is not very relevant for disposing of this petition we do not intend to proceed with that aspect any longer
We are inclined to keep the handicapped children out Of the purview of the judgment of this Court
We do not howev er agree that Indian citizenship should continue until the adopted child attains the age of majority and is legally competent to opt
Such a step would run counter to the need of quick assimilation and may often stand as a barrier to the requirements of the early cementing of the adopted child into the adoptive family
In regard to the issue of the birth certificate 575 of the adopted child we are of the view that such certifi cate should be obtained on the basis of application of the society sponsoring adoption
In most of these cases the registration of birth may not be available because that would not have been done
We are of the view that on the basis of the application and such other material which may be relevant to be found in an affidavit to accompany the application made by a responsible person belonging to the agency the local magistrate should have the authority to make an order approving the particulars to be entered in the birth certificate and on the basis of the Magisterial order the requisite certificate should be granted
This process should
be done only after adoption is finalised and the particulars of the adopting foreign parents are available to be inclined
There is no point in having two birth certifi cates one before the child is placed for adoption and another when adoption is completed
If the procedure for taking out a birth certificate is deferred until adoption is finalised the certificate can be obtained once for all
We are of the view that the Chief District Medical Officer CDMO may be involved in the matter of ascertainment of the age and the magistrate may ordinarily act on the certificate granted by the CDMO
We gather that many of these agencies have indeed no child care facilities
In the event of such facilities not being available maintaining children in hygienic condition and in an environment which would be healthy for the chil dren s growth and mental development would indeed be diffi cult
The licensing authority should ordinarily ensure that the registered agency has proper child care facilities so that an agency which does not have such facilities may over a period of years go out of the field
The affidavit of the Union Government indicates that it never intended to fix any quota for the purpose of allowing renewal of registration or licence
In view of the clear statement in the affidavit we must hold that it is not the policy of the Government of India require the agency to satisfy the condition of any quota
In fact the Government of India s circular letter is intended to emphasise on the feature that registered societies to entitle themselves for renewal of registration or licence should exhibit their involvement in the process of adoption and the authority should have evidence to satisfy that the agency is really involved in the activity We would accept the stand taken by the petitioner that in the event of registrationlicence being proposed to be cancelled an opportunity should be granted to such agency
That would answer the 576 requirements of natural justice and would uphold a healthy scheme of administration
We have not been able to see any
positive justification for opposition to the setting up of CARA
Such an institution would be an organisation of prima cy and would work as a useful agency in the field
While we agree that there should be no keen competition for offering adoptions regulated competition may perhaps keep up the system in a healthy condition
Existence of CARA in that field is therefore welcome
We do not agree with the stand of the petitioner that the scheme envisaged by the main judgment Should be altered in this regard
The judgment laid down a scale of expenses to be recov ered by the agency offering placement for maintaining the child from the adoptive parents
There was some modification in 1986
Keeping in view the general rise in cost of living we are prepared to allow escalation of 30
We do not however agree to an escalation of 10 every year
The matter may be reviewed once in three years so far as escala tion of expenses in concerned
Only one aspect is left for consideration and that is the petitioner s prayer for transfer of children from statu tory homes to recognised agencies for placement
The chil dren who can be transferred for such purposes would be those whose parents are not known orphans and perhaps those who are declared as abandoned children
We have
pointed out already that the homes are not set up in several States and areas
Even Juvenile Boards have not been properly function ing and the recognised agencies do not have the facility of child care
In these circumstances to order transfer of children from statutory homes to recognised agencies can indeed not be accepted as a rule
We are prepared to observe that as and when such a request is received from recognised agencies the Juvenile Court or the Board set up under the Act may consider the feasibility of such transfer and keep ing the interest of the child in view the possibility of an adoption within a short period and the facilities available in the recognised agency as also other relevant features make appropriate orders
A strait jacket formula may very often be injurious to the interest of the child
This order disposes of the petitions
VPR Petition Partly al lowed


Summary:
The respondent plaintiff in CA No 18S289 was appointed as an ad hoc Sub inspector in the District Food and Supply Department
He absented himself from duty from 29 September 197S On 27 January 1977 his services were terminated
On 18 April 1984 he instituted the mir for declaration that the termination order was against the principles of natural Justice terms and conditions of employment void and inoperative and be continued to be in service
The State the appellant defendant contended that the plaintiff sservices were terminated in accordance with the terms and conditions of his ad hoc appointment and the suit was barred by time
The trial Court dismissed the Suit on the ground of limitation but on appeal the Additional District Judge decreed the suit holding that the termination order though simplicitor in nature was passed as a measure of punishment without an enquiry and he should have been given an oppor tunity to explain his conduct by holding proper enquiry and that since the order of termination was bad the suit was not barred by time
The second appeal preferred by the State was dismissed by the High Court holding that as the dismissal of the employee was illegal 664 void or inoperative being in contravention of the mandatory provisions of any rules or
conditions of service there wasno limitation to bring a suit for declaration of contin uance in service
The respondent plaintiff in CA No 477289 was ap pointed on
14 November 1977
On 15 March 1979 he was discharged from service for some misconduct and against which appeal was made which was rejected on 1561979
When his revision petition was dismissed on 30111979 he brought a suit on 1221985 seeking declaration that the order discharging him from service was illegal ultra vires unconstitutional against the principles of natural justice and continuance in service
The trial court dismissed the suit
The appeal preferred by the plaintiff was allowed by the Additional District Judge that the plaintiff was discharged from service in contravention of the mandatory provisions of the rules and as such it had no legal effect
There was no period of limitation for instituting the suit for declaration that such a dismissal order was not binding upon the plaintiff
The High Court dismissed the second appeal in limine
On the question whether limitation governs the suit for declaration by a dismissed employee if the dismissal was illegal void or inoperative being in contravention of the mandatory provisions of any rules or conditions of service this Court allowing the appeals of the State the defendant HELD 1
The Court s function on the presentation of plaint is simply to examine whether on the assumed facts the plaintiff is within time
The Court has to find out when the right to sue accrued to the plaintiff
If a suit is not covered by any of the specific articles prescribing a period of limitation it must fall within the residuary article
667H 668
A suit for declaration that an order of dismissal or termination from service passed against the plaintiff is wrongful illegal or ultra vires is governed by Article 113 of the Limitation Act
6TOGH 3
The party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him
He must approach the Court within the prescribedperiod of limitation
If the statutory time limit expires the Court cannot give the declaration sought for
669E F 665 4
If an act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically
It need not be set aside
The aggrieved party can simply seek a declaration that it is void and not binding upon him
A declaration merely declares the existing state of affairs and does not quash  so as to produce a new state of af fairs
668F G But none theless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court
668H Smith vs East Elloe Rural Disrict Council  at 769 referred to
Prof Wade Administrative Law 6th Ed
P 352 referred to
State of MPv
Syed Quamarali  distin guished
Jagdish Prasad Mathur and Ors
United Provinces Government AIR 1956 All 114 and Abdul Vakil vs Secretary of State and Anr  AIR 1943 Oudh 368 Approved
State of Punjab vs Ajit Singh and State of Punjab vs Ram Singh  over ruled
The words right to sue ordinarily mean the right to seek relief by means of legal proceedings
Generally the right to sue accrues only when the cause of action arises that is the right to prosecute to obtain relief by legal means
The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and une quivocal threat to infringe that right by the defendant against whom the suit is instituted
668C D Mt Bole vs Mt Koklam and Ors AIR 1930 PC 270 and Gannon Dunkerley and Co vs The Union of India  followed