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8/6/2019 Report on Inspection of Homes Under JJ Act by Allahabad High Court Committee
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Justice Vineet SaranChairman
Committee dealing with Juvenile Homes
Pursuant to the committee's resolution dated 10.2.2011 wherein a
decision was taken for committee members to visit different juvenile
homes I visited the juvenile homes at Faizabad and Gorakhpur on
30.6.2011, the Juvenile Justice Board at Sultanpur and the District Jail,
Sultanpur where a barrack had been created for lodging juveniles in
conflict with the law on 2.7.2011. Justice Surendra Singh also
voluntarily accompanied me on these visits.
On 30.6.11 after a preliminary meeting at the Circuit House Faizabad
with the District Judge, Sri Dina Nath II, the CJM, Sri Kushwaha, J.M.
Sri Abhay Prakash Narain (Judge Juvenile Justice Board), the A.P.O. and
City S.P. and District Magistrate Sri A.P. Agarwal, we inspected the
Observation Home which is situated in Ayodhya. Because of my
decision to visit the Observation Home the D.M., and the D.J. Faizabad
also visited the Observation Home for the first time. 65 children from
districts Faizabad, Sultanpur and Barabanki were lodged in this
Observation Home. Out of these there were 35 juveniles were from
Sultanpur. The space was so inadequate that the children appeared
packed tightly together in front of the T.V. like fish in a tin of sardines.
Apart from that there was only one small court yard for the children tomove about, which was too small to play in. When we asked the children
to retire to their places during the inspection, the children hardly moved
from the spot as there was no place for them to go. The three toilets were
also giving out a very foul smell, as they had no ventilation or exhaust
fan, though it may have been cleaned somewhat as information about the
visit had been sent in advance. Hence the mattresses on which the
children slept had even been tidied. We were informed that as the
solitary Class IV peon was on leave the children had to cook their own
food. There were two dormitories on the 2nd
floor where all the children
had to sleep huddled together on the mattresses placed there. The space
was further reduced as the roof was leaking. We think that there could
not have been more than 3 or 4 sq. ft. space per child, though Rule
40(5)(a) of the Juvenile Justice (Care and Protection of Children) Rules,
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2007 (hereafter the Rules) provides for a minimum space of 40 foot per
child in the dormitory. The D.M also agreed to my suggestion to look for
a better accommodation for the children and to submit a report about the
problems of such juveniles, where action would be needed at the State
level.
In the Gorakhpur Home which we visited along with the District Judge,
Sri Shashi Prakash, the CJM, Arvind Mishra, the JM (JJ Act), Arvind
Yadav, and the non-official members of the Board we found 96 children
housed there. 47 of these juveniles were from Gorakhpur. Most of the
children were watching T.V. We also found some relatively grown up
juveniles peering at us from a separate room, who did not even care to
acknowledge us. They appeared to be the dadas of the place. As the
home, which had better accommodation than Ayodhya, and better newly
constructed toilets by an NGO, Sahara Foundation, however the
problems of access to this place, because of the heavy traffic and the
lack of space for the juveniles for play and physical exercise remained.
In Sultanpur blissfully unaware of the provisions of the Act and Rules
not to keep juveniles in Jail, the D.J. had got a barrack created for such
children in the District Jail. But it appeared to be a well-intentioned step,
because of the inhumanly crowded conditions in the Ayodhya home,
where the children were housed. Here the 17 juveniles present were
housed in a substantially larger barrack. There was even space for the
juveniles to play in the court yard when the barrack was unlocked. There
was a TV set in the barrack and a teacher used to come and teach there.
He also immediately agreed to our suggestion to close down this
barrack. All the district Judges, and JMs concerned agreed to act more
proactively in these matters, and to see that bails are granted at least to
juveniles who are facing inquiries in minor offences. They also agreed to
act more proactively to take steps for tracing out the addresses of
children who are involved in petty offences but are unable to disclosetheir home addresses, and to some how contact their parents or guardians
for restoring them to their custody.
Problems:
1.Children lodged in observation homes for petty offences for long
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periods of time.
Not only were children who have been involved in major cases under
sections 302, 304, 376, 307, 304 B or 377 IPC etc. lodged in the
Observation Home, but there were also a large number of children who
were incarcerated in the homes for petty offences under sections 379/411
for stealing mobiles or a water taps (toti) etc., ordinary marpit,
molestation or trespass or criminal intimidation, or S.C./S.T. Act cases,
and petty cases under the Railways Act. Thus one child Anil was in the
Gorakhpur home since 4.7.09 for an offence u/s 145 of the Railways Act
(nuisance and drunkenness, punishable with a maximum sentence of 6
months, even for adults). The ostensible reason, his address at Jhansi
had not been traced. Rule 11(7) even restricts powers of apprehension
of the juvenile by the concerned police officer if the offence is normally
punishable with less than 7 years imprisonment. Rules 13(1)(a) and
13(2)(d) also provide that such incidents of trivial offences or where the
allegations are unfounded the cases maybe disposed of even on the first
day after a summary inquiry.
2.Problems of over-crowding in the Observation homes.
Due to acute over-crowding in some homes (such as in Faizabad) there
was no age-wise segregation of children in violation of the mandate of
section 8(4) of the Juvenile Justice (Care and Protection) Act, 2000
(hereafter the JJ Act.), or Rule 12(2). In fact we found much more living
room in the wrongly set up jail barrack for children in Sultanpur
compared to the absence of even breathing space in the Observation
Homes in Faizabad and to a lesser extent at Gorakhpur and the absence
of any space to play an outdoor game. The routine mentioned in Rule 43
for a child to lead a regulated life, maintain personal hygiene, engage in
physical exercise, yoga, educational classes, vocational training,
organized recreation and games, moral education, prayer and community
singing did not seem possible in this over-crowded setting. The onlyactivity for the juvenile seemed to be to watch T.V. or to cook their own
food, in the absence of Class IV staff. There seems to be only routine
compliance by the State government with the words and spirit of the JJ
Act and Rules, hence the shortage of homes and funds etc.
3.Arrangements for education non-functional
So far as education was concerned in both the Gorakhpur and Ayodhya
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homes the two teachers provided by the BSA were on leave due to
summer vacations, and there was only a Nursery teacher provided by the
Women and Child department. For a juvenile who spends less than 4
months in the home, it would mean a break for at least two months from
his studies. At the ages of 10 plus the Nursery teacher could not have
been particularly useful.
4.Reasons for long stays in the Home
Children remain incarcerated in the homes because first the medical
inquiry is delayed as the apprehending police officer (in the absence of
appointment of special police units and designated police officers for
child related matters mandated under section 63) fails to inform the
parent to appear before the board in violation of section 13(a) of the JJ
Act, in cases where the juvenile is apprehended from a place distant
from his home and consequently in the parent's absence no application
for bail is immediately made, nor is anyone available to stand surety for
the child, in the event of his release. Again in the absence ofpairvi by
the concerned police officer, teachers from the concerned educational
institutions do not appear on the dates fixed which hold up the age
inquiry which is necessary for disposal of the bail application under
section 12 of the JJ Act. As stated in section 49 of the JJ Act evidence
has to be taken in the age related inquiry, which cannot be disposed of
on affidavits. In the cases where medical examination for ascertaining
the age is permissible under Rule 12(3)(b), the delay by the CMO's
office in sending the age related report further delays proceedings, even
though under Rule 12(1), age has to be determined within 30 date of
submission of the bail application.Because of the delay in consideration
of bail applications due to the need for inquiry relating to age, and for
obtaining the report of the probation officer we learnt of a case in
Faizabad, where the lawyer father of a minor child who had committed
an offence under section 354 IPC was pleading with the CJM to treatthe child as major, as then his child would immediately get bail under
the bailable section, but he would need to remain in the home for a long
time, before his bail could be considered by the Juvenile Board. Because
of the long drawn procedure for hearing bails even in minor cases, some
Railway Magistrates before whom a child travelling ticketless or who
has committed some other petty Railway offences, is produced, treat the
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child as major to prevent the child from being incarcerated for a long
time in the home, if he were described as minor. In Railway offences
which are usually committed by juveniles travelling without parents or
who have run away from their natal homes, in the absence of parents or
non-application for bail, they have to remain in an observation home for
long periods of time.
5.Probation officer not contacted by the police and delays in
submitting the social investigation report
Where the Probation officer is not immediately contacted by the police
officer who apprehends the juvenile to obtain information regarding the
juvenile's antecedents and material circumstances under section 13(b) of
the Act or the laxity of the Probation officer in sending the report also
cause delay in consideration of the bail application and the eventual
disposal of the inquiry, even though the proviso to section 14(1) of the JJ
Act and Rule 13(6) mandates concluding the inquiry in 4 months after
the first summary inquiry. This may be extended by two months after
giving reasons in exceptional circumstances. Further Rule 13(7)
provides that proceedings shall terminate after 4 to 6 months, except in
cases of grave nature. Despite these legal restrictions we found that some
children had been in jail for long periods of time from 9 months to two
years even for petty offences, and even the inquiries on merits, (and
sometimes even the initial age related inquiries) were pending.
6.Voluntary organizations absent in smaller towns
Although in Gorakhpur, one or two voluntary organizations were
associated with the home, in smaller places such as Ayodhya and
Sultanpur there were usually no reliable voluntary organizations who
could have run the observation or special homes (possible under ss. 8(1)
and 9(1) of the Act, as the State was pleading difficulties in opening such
homes in all districts. The voluntary organization could also furnish thesocial investigation report [vide S. 15(2)], giving some relief to the
Probation officer, who is entrusted with multifarious duties.
7.Only one special home for juveniles found to have committed an
offence
As there is only a single Special Home in Etawah in the whole State, for
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Juveniles who have been found involved in the commission of the
offence in the inquiry, there appears to be inadequate compliance of
Section 9 of the JJ Act which envisages Shelter homes in each or a group
of districts for convicted juveniles.
8.Period of earlier stay in jail or another observation home, not set
off
We also came across cases where the juvenile has spent more than 3
years in the Home or earlier in Jail, or in another Observation Home
because the earlier period has not been set off even though section
15(1)(g) restricts the stay of a juvenile in the home for a maximum
period of 3 years.
9.Releases delayed because addresses of some juveniles missing
Some children, especially those who were involved in railway offences,
such as ticketless travel etc., who may have drifted from their homes
could not disclose their addresses and consequently they were staying in
the homes for long periods of time with little hope of being released and
restored to their parents.
10.Insensitivity of lawyers and absence of legal aid
There is an insensitive approach on part of lawyers. Thus the Gorakhpur
JM Sri Arvind Yadav informed me that when a juvenile who apparently
looked like a minor and was only involved in a petty offence under
sections 323 and 325 IPC etc. was produced before him, he suggested to
the lawyer that the juvenile may again appear on a subsequent date with
or without interim bail, so that in the meanwhile he could obtain
necessary information to determine the child's age. But the lawyer was
insisting that the child be sent to the Observation Home, possibly to
enhance his fee. The legal aid provisions in Section 14 are not being
utilized. Especially painful is the case of daily wage earning parents,such as rickshaw pullers or other daily workers, who after they reach the
board, on one date, are unable to come on future dates because of the
harrassment by lawyers and the long drawn procedure for the age
inquiry or for the regular inquiry, and the need for the Probation
officer's social investigation report etc. forcing the child to remain in the
Observation home for long periods, (against the mandate of the law) as
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their daily wage earning is necessary for the survival of the rest of the
family.
11.Board looks like Court-not child friendly
In Gorakhpur and Sultanpur the JJ Board was located in the Court and
Collectorate, and the Magistrate sat on a child unfriendly place on a
raised platform in violation of Rules 9(1) and 9(2).
12.No proximity of board to home
The proximity rule requiring the sittings to be either at the Observation
Homes or in proximity thereto in rule 9(1) was violated in each case,
because the Observation Home in Faizabad was located at Ayodhya, 8 or
9 kms away. In Gorakhpur it was housed in a trust building near
ghantaghar which was such a crowded locality that it was virtually
impossible for the Magistrate's vehicle to reach it in the day time. We
also had to wait till 9 p.m. to visit the home when the traffic was
reduced. For the other districts, Deoria, Mahrajganj, Kushinagar who
were served by the Observation Home in Gorakhpur and Sultanpur,
Barabanki and Ambedkar Nagar who were served by the Faizabad
Observation Home, the proximity principal is automatically violated. If
the concerned Magistrate either sits or frequently visits the Home he
would be automatically aware of the kind of cases for which the
juveniles are lodged in the Observation home and the problems they
face.
13.Children forced to cook their food and shortage of staff
We found that both in Faizabad (Ayodhya Observation Home) and in
Gorakhpur the children were forced to cook their own food. This was a
fry cry from Rule 44 which speaks of providing 4 nutritious meals with
special meals on holidays to the children. There was no cook or Class IV
worker in the Faizabad home and short time workers who came in themorning and evening in the Gorakhpur home. Thus there was severe
under staffing in violation of the staffing pattern mentioned in Rules
68(3) and 68(9).
14.Inadequate living expense payments of Rs. 40 per day for inmate
The payment of Rs. 1200 per month per child (or Rs. 40 per day) was
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clearly inadequate for meeting even the food needs of the juveniles
looking to the inflationary conditions, and certainly inadequate to meet
the minimum nutritional standards mentioned in Schedule II (Rule 44) of
the JJ Rules.
15.Absence of Child Protection Units, Inspecting Committees and
Advisory Boards
The State and district level Child Protection Units mandated under
section 62 A consisting of officers and employees of the State
government, and the Inspection Committee consisting of State
representatives and voluntary organizations under section 35, and State,
district and City Advisory Boards envisaged under section 62 for
advising the government on monitoring the homes and for mobilizing
resources for running homes and for the education, training and
rehabilitation of children and juveniles, and co-ordinating with official
and voluntary agencies have also not been set up, hence there is no
monitoring of the running of the homes.
16.Problems faced by Judicial Magistrates and poor infrastructure
of the Boards
The Senior Judicial Magistrates with their excess load of cases, which
include miscellaneous civil work, bails in normal cases where same
day orders have been passed by the High Court and the need to meet
their quota, which is not available in JJ Act cases are unable to give 5
hours every working day for the JJ Act matters as required under Rule
9(3). Nor are they able to supervise the functioning of the Homes and
other matters as required under Rules 10(c), 10(d) and 10(e). They also
made complaints about the absence of lighting (Faizabad) and other lack
of infrastructure, such as toilets (Sultanpur) near the board, and
inadequate manpower support which adversely affects their
performance. Also there does not appear to be any effective programme
of the JTRI to give special training to the Magistrates and the boardmembers on the provisions of the JJ Act and Rules, much less is the
requirement under Rule 5(3)(ii) to train them in Child Psychology and
child welfare met. Looking to the small period of detention, if any, for
minor and major offences contemplated under section 15, witnesses are
not interested in giving evidence. There is also absence of police
pairokars to ensure that witnesses appear. Thus there were a total of
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1065 regular inquiries and 33 age related inquiries pending in
Gorakhpur. In Sultanpur there were 425 inquiries and 45 age related
inquiries were pending. In Faizabad there were 570 pending inquiries.
17.Non-official board members not getting statutory allowance
There is non-cooperation by other non-official board members who are
not getting the minimum allowance of Rs. 500 per sitting earmarked
under Rule 8.
18.Mandatory bail in grave non-bailable offences negative feature
A negative feature is the provision for mandatory bails in all non-
bailable offences under s. 12 of the JJ Act, with the exception that the
release may bring them in contact with known criminal or in immoral
company, or if it defeats the ends of justice. Thus in many grave cases
offences of rape and murder, or where juveniles over 16 years in age
commit repeated crimes as members of gangs, they manage to secure
bail in view of this provision. Once such a juvenile is released on bail,
the inquiries against him usually does not proceed, as the complainant
loses interest owing to the small penalty prescribed if the juvenile is
found to have committed the offence, and there is no police pairokar for
producing witnesses before the board, consequently the juvenile crosses
the age of 20 or 21 years, and escapes any punishment whatsoever, and
he has not even to spend the 3 year maximum period for which he could
be sent to a special home under section 15(g). This provokes an angry
societal backlash against the child himself, or other teen aged children
who may be innocent, who may face counter-violence from society. It
should be remembered that section 82 of the penal code gives complete
immunity from a crime, and a child is presumed as devoid of mens rea
only when he is under 7. Under s. 83 IPC upto 12 years it will need to be
determined if the child is of such immature understanding that he does
not understand the nature and consequences of his act. After this agethere is no question of presuming absence of mens rea when the
delinquent commits a crime.
19.No 'places of safety' established by State government for grave
offences
The proviso to s. 16(1) speaks of the State government having 'places of
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safety' for keeping juveniles who are over 16 and are involved in a very
serious offence. But in U.P. where there is only one special home for the
convicted juvenile, there is no question of there being any 'place of
safety' for juveniles who commit serious offences. Also once the place
of safety is created by the State government it needs to be pondered
whether it could authorize detaining the juvenile till the age limit of 21
years, if he commits the grave offence when he is just under 18 years, or
whether it would be legal to keep the juvenile in a barrack in the jail for
18 to 21 year olds, once he crosses 18, subject to the maximum period
of 3 years.
20.Rule 11(7) -No power of arrest in grave cases punishable with less
than 7 years unreasonable
Rule 11(7) states that a police officer or a juvenile welfare officer can
only apprehend a juvenile if the offence carries a sentence of over 7
years. This non-obstante clause would therefore exclude powers of
apprehension even in those cases under sections 379/411 IPC where the
juvenile has been found involved in repeated cases of auto-lifting with a
gang of auto-lifters, or where he is shown involved in thefts where sums
as high as 5 lakhs may have been recovered from the juvenile or other
gang members. (We did come across such a case in the Ayodhya home).
21.Exclusionary principal for age determination under Rule 12
unreasonable
Rule 12 provides for an exclusionary principal for determining age of
the juvenile. Thus only in the absence of a matriculation certificate, can
evidence be led on a certificate from the school first attended, and in the
absence of both the above, on a birth certificate issued by the municipal
authority or panchayat. Only in the absence of all the three contingencies
can medical evidence of age be taken. Section 49(2) makes the age
determination by the competent authority the deemed true age of theapplicant which cannot be challenged even where it is shown that the the
earlier age given was wrong. Thus if a hardened criminal who is major
concealing that he has earlier written the matriculation exam. again
writes it, showing his age as minor on the date of incident, it will have to
be accepted. Likewise if a person corruptly obtain a false age certificate
from the school first attended or from the panchayat or municipal
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authority, it cannot be questioned. The rule also excludes cross-checking
by leading other kinds of evidence (say medical evidence) where the
matriculation certificate or the certificate from the first school are
produced.
Main Suggestions:
a) Serious steps be immediately taken by the Principal Magistrates of the
Juvenile Boards to release the juveniles in the observation homes who
are wanted in offences carrying less than 7 years imprisonment, or other
minor offences.
b) Magistrates could consider releasing the Juvenile on interim bail
when a juvenile who apparently looks a minor (as mentioned in s.12)
and is wanted in a petty case is produced before the Magistrate. As
observed by this Court in Sheoraj @ Chuttan v State of U.P. & ors.,
2009(65) ACC 781, and the Apex Court in Lal Kamlendra Pratap Singh
v State of U.P., (2009) 4 SCC 437and in the Full Bench decision of this
Court in Amrawati v State of U.P., 2005 Cri.L.J. 755, such a juvenile
may be granted interim bail, pending his age related or regular inquiry,
which may require evidence of the teachers of the institution he has first
attended or the Probation Officer's social investigation report, about the
background of the juvenile, which usually take a long time to procure.
c) The government must take immediate steps for increasing the number
of Observation and Special homes, and the endeavour should be to have
homes in all the districts. In U.P. there are only 18 Observation Homes
for boys and one Special Home for juveniles who are found to have
committed offences .
d) Increasing the amount of allowance per child, from Rs 1200 per
month, to an amount sufficient to procure the essential foodstuffs and
other items mentioned in the Rules to which a juvenile is entitled.
e) Have the photographs of the juveniles whose addresses are not known
or whose parents cannot be contacted put on the Police or voluntaryorganization (such as Don Boscoe's- Home link) Missing and Found
Children's web site. The Photograph of the child should also be
published in the news papers and shown on Doordarshan after obtaining
permission from the competent authority under the proviso to s. 21(1) of
the Act. The child should be shifted to an observation home near his
home district. The police at the place of detention and the local police
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and NGOs such as Childline should take effective steps for contacting
the parents with photographs and also for taking the juvenile home if his
parent is unable to visit the Observation Home for taking back his child.
Superior police officers and officers of the Women and Child
Development secretariat (or the State level Child Protection Units) be
also involved for coordinating this inter-district (or inter-state) effort.
f) Special Juvenile Police Unit with officers trained to sensitively handle
juveniles be set up in all districts and juvenile or child welfare officers
be appointed in the police stations as envisaged in section 63(2) and
appropriately trained (s. 63(1), and the Special juvenile police units of
such officers be set up in each district as provided in s. 63(3). Apart from
producing the juvenile before the board and taking him to the
Observation home, they could also ensure appearance of witnesses on
the dates concerned for the age and regular inquiry against the juvenile,
so that it can be expedited.
g) Child Protection units as contemplated in s. 62A for implementing
the provisions of the Act for coordinating with official and non-official
agencies be established at the state and district levels. They are also
mandated under the Integrated Child Protection Scheme, which has now
been made applicable in the State of U.P. Inspecting Committees (under
s. 35) and State and district or city advisory boards be also set up u/s 62.
h) A programme for providing age appropriate bridge courses and
options for eventually mainstreaming juveniles into age appropriate
educational institutions who are detained in the Observation Home be
explored and put in place, with the aid of good NGOs like 'Pratham.'
i) It is necessary to create places of safety for minors between 16 to 18
years who are nearing majority and are involved in grave criminal
offences, and it needs to be ensured that such juveniles who are found
involved in heinous offences at least undergo the three year maximum
period permissible for their incarceration under the proviso to section
16(2).
Other suggestions:
j) There should not be routine arrests for offences punishable with less
than 7 years sentence. Although, the U.P. government should consider
bringing out an amendment to Rule 11(7) which restrains arrest in all
such cases, even when the nature of the crime is grave, or where it is
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apparent that the juvenile is a member of a gang habitually engaged in
committing such crimes.
k) Caution needs to be exercised in granting bails in murder or rape
cases or other grave cases committed by a juvenile, as easy releases in
such matters can be counter-productive as there may be retaliatory
violence against the juvenile, hence it could defeat the ends of justice or
expose the juvenile to bad company.
l) Efforts should be made for associating more voluntary organizations
and social workers who could help in preparing the social investigation
reports or in running homes or perform other sundry tasks mentioned in
the Act and Rules.
m) In case the juvenile has undergone some period in jail or in another
observation home earlier, the said period should be set off, to prevent the
juvenile undergoing more than the maximum permissible 3 years period
of detention in a home.
n) Efforts should be made for locating the boards at or near the
Observation homes, and the board should not look like a Court room and
have a child friendly atmosphere. The Board should not sit on a raised
platform.
o) The conditions, infrastructure and manpower of the boards needs to
be improved significantly to enhance their performance. The days when
the Magistrate sits on the Board he should be exempted from giving his
quota.
p) The payment of Rs. 500 minimum allowance to board members per
sitting must be ensured.
q) The Presiding Magistrate and the two other board members should be
given training, possibly at the JTRI, Lucknow regarding the provisions
of the JJ Act and Rules, and they may also be coached in Child
Psychology and welfare if possible.
r) Rule 12 of the JJ Rules needs to be amended in U.P., so that the
exclusionary principle of first determining the age on the basis ofmatriculation, thereafter on the basis of school first attended, then based
on Municipal or Panchayat records, and in the absence of all three, on
the basis of medical evidence. It is important to permit cross-checking
the age related data from different angles for its accuracy. Rule 12
therefore needs to be suitably amended by the State government. Getting
information of age from different sources also seems to be the import of
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s. 7 A (1).
Justice Amar Saran
12.7.2011
Copy to:
Hon'ble Chief Justice