Bombay
High Court: In a landmark judgment, a division bench of Hon’ble A.S.
Oka and Hon’ble Revati Mohite Dere, JJ ruled that an atheist cannot be
forced to fold his hands during prayer at school. If an individual is of
the view that the prayers have religion overtone or are religious in
nature and are not consistent with his own religion or his beliefs, then
forcing him to sing the prayers or forcing him to fold his hands when
the prayers are being sung would be a clear violation of fundamental
rights guaranteed by the Constitution of India of the freedom of speech
and expression as well as the freedom of conscience.
In the
present case, the petitioner is an atheist teacher who had refused to
fold his hands during prayer and consequently on grounds of indiscipline
had not been given higher pay scale as was due to him. He had
contended that in a state funded school there should be no religious
instruction. The Court after going through the prayers
came to the decision that there was nothing religious about the prayers
but nevertheless the petitioner had a freedom of conscience and he
cannot be compelled to change his belief that the prayers are religious
in nature and to stand with folded hands when the prayers are being
sung. The Court dismissed the contention of the school that not standing
with folded hands at that time or not holding his hand in front at the
time when oath is being administered can be treated as the acts of
indiscipline so long as the petitioner does not show any disrespect to
the prayers and the oath. The Court concurred with the report of the
Education Officer and directed to school to clear his arrears and
promote him to higher pay scale. [Sanjay Ananda Salve vs. State of
Maharashtra, Writ Petition No. 1959 of 2013, decided on 29th October,
2013]1
Bombay High Court
CORAM : A.S. OKA &
REVATI MOHITE DERE, JJ
1. The Petitioner in Writ Petition No.1959 of 2013 who is
employed as an Assistant Teacher in a School run by the seventh
Respondent has approached this Court by this Writ Petition under
Article 226 of the Constitution of India with a prayer to issue a writ of
mandamus to strictly enforce Rule 45 of the Secondary Schools Code
(hereinafter referred to as “the said Code”) in Matoshri Savitribai Phule
Madhyamik Vidyalaya, Nashik (for short “the said school”) where he is
employed. The grievance in this Petition is as regards the nonimplementation
of the directions contained in the order dated 16th
October 2010 issued by the Education Officer to the Head Master of the
said school. The seventh Respondent is the institution which runs the
said school and the sixth Respondent is the Head Master of the said
school.
2. The Writ Petition No.8125 of 2013 has been filed by the
seventh Respondent in the Writ Petition No.1959 of 2013. This Petition
has been filed for challenging the legality and validity of the order
dated 16th October 2010. As we have pointed out earlier, essentially the
Writ Petition No.1959 of 2013 is for enforcement of the said order. In
addition to the contentions raised in a reply in the companion Petition
No.1959 of 2013, in this Petition, a reliance has been placed on the
Government Resolution dated 4th February 2013. It provides that at the
time of prayers in every school, the preamble under the Constitution
shall be read. It also records that the preamble shall be displayed in
the school. For the sake of convenience, in this judgment and order, we
have made a reference to the parties as per their respective title in Writ
Petition No.1959 of 2013.
3. It will be necessary to make a reference to the facts in
brief. The Petitionerteacher
has stated that he is a Buddhist . The
Petitioner has been employed in the said school from the year 1996. On
12 December 2007, the Head Master issued a communication to the
Petitioner pointing that at the time of singing of prayers in the school,
the Petitioner does not stand with the folded hands and does not hold
his hand in the front at the time of oath. The Petitioner replied on 24th
December 2007 by pointing out that the prayer session of the school
consists of three prayers. He stated that all the three prayers contain a
praise for the God. He contended that he has freedom of expression
as per the Article 19 of the Constitution of India and, therefore, he
cannot be forced to stand with folded hands at the time when the
prayers are sung. He alleged that singing of three prayers amounts to
imparting religious education which is not permissible under Article
28(1) of the Constitution of India. On 11th February 2008, the Head
Master addressed another communication to the Petitioner. It was
contended therein that after having accepted a job of an Assistant
Teacher, the Petitioner was bound by the conditions of the service and
those conditions of service are nothing but reasonable restrictions on
the fundamental rights of the Petitioner. The Petitioner responded by
a letter dated 29th February 2008. He contended that as per the clause
(9) of Rule 45 of the said Code, it is mandatory to commence the
school with National Anthem. As regards oath, he stated that along
with others, he always takes the oath. However, nobody can force him
to hold his hand in the front at the time when oath is being
administered. He stated that though he is of the opinion that the three
prayers are religious in nature, he does not want to impose his opinion
on other teachers but he should not be asked to stand with folded
hands. He stated that the school is being run in the name of a great
personality like Savitribai Phule for whom he had highest respect and
he had no grievance against the school.
4. The Petitioner on 3rd August 2009 applied to the Education
Officer (Secondary) contending that he has been denied the benefit of
higher payscale
and the Head Master was indulging in harassment.
5. In earlier Writ Petition No.5254 of 2010, this Court passed
an order on 8th July 2010 directing the Education Officer to decide the
representation made by the Petitioner.
6. On 16th October 2010, the Education Officer (Secondary)
passed a detailed order and issued following directions:
(i) The first direction was that as per the Government
letter dated 15th January 1990, the Petitioner has
satisfied the prescribed criteria and therefore, the
said school shall take steps for placing the Petitioner
in higher pay scale.
(ii) The second direction was that there was no rule
which prescribes that at the time of prayers, a
teacher must stand with folded hands and therefore,
no one can be compelled to stand with folded
hands;
(iii) Thirdly, it was directed that while the school the
authorities were bound under the Rule 45.8 of the
said Code to impart value education, they must
ensure that they do not act in conflict with the
Constitutional principles and especially the concept
of secularism.
7. On 23rd March 2011, the Petitioner addressed a letter to the
Education Officer making a grievance that the directions issued on 16th
October 2010 were not implemented. On 25th July 2011, the
Petitioner wrote to the Director of Education, Pune contending that if
the Appeal preferred by the school authorities against the said
directions has been admitted, the same may be decided at the earliest.
8. Essentially there are four prayers in the Writ Petition
No.1959 of 2013 for issuing a writ which read thus:
(i) Ensure strict compliance with Rule 45 of the
Secondary School Code in the Matoshri Savitribai
Phule Madhyamik Vidyalay, Nashik, of the
Respondent No.7;
(ii) To restrain the Respondent Nos.6 and 7 from
compelling the Petitioner to participate in the
religious education/instructions in the Matoshri
Savitribai Phule Madhyamik Vidyalay, Nashik;
(iii) To ensure strict compliance with Rule 45 of the
Secondary School Code in all fully aided Secondary
Schools in the State of Maharashtra;
(iv) Grant the higher grade/scale of the salary to the
Petitioner.
9. Learned counsel appearing for the Petitioner invited our
attention to the mandate of Article 28 of the Constitution of India which
lays down that no religious instruction shall be provided in any
educational institution wholly maintained out of State funds. He relied
upon Rule 45 of the said Code and in particular Clause (1) thereof
which provides that no religious instruction shall be provided in any
school wholly maintained out of State funds. He also invited our
attention to various clauses of Rule 45 of the said Code and in
particular Clause (9) thereof which provides that all schools shall begin
the day's work with the community singing of the National Anthem.
He urged that the entire service record of the Petitioner is very good
and only because he refused to fold his hands at the time of Paripath
(session of prayers) that he has been denied higher payscale.
The
learned counsel appearing for the Petitioner relied upon a decision of
the Apex Court in the case of Bijoe Emmanuel and others V. State of
Kerala and others1 which holds that there is no provision of law which
obliges any one to sing National Anthem and it is not disrespectful to
the National Anthem if a person who stands up respectfully when a
National Anthem is sung does not join the singing of the National
Anthem.
10. On instructions, he states that the Petitioner has never
shown any disrespect to the prayers sung in the school or to the oath
administered in the school and even in future, he will never show such
disrespect to the prayers. He states that at the time of singing the
prayers, as he has been doing in the past, he shall stand still and shall
not show any disrespect to the prayers. He, however, submits that the
Petitioner cannot be compelled to stand with folded hands.
1 AIR 1987 SC 748
11. The learned counsel appearing for the sixth and seventh
Respondents has also made a detailed submissions. He has also
produced for perusal of the Court the Annual Confidential Reports of
the Petitioner. He invited our attention to the Government Resolution
dated 3rd June 1997 which provides for imparting of value education
of 10 different categories to the students. He pointed out that a
handbook has been issued by the Government in that behalf. He urged
that the value education has been made compulsory by the State
Government and in fact it is a part of syllabus published by the Board of
Secondary and Higher Secondary Education. He stated that the
majority of the students in the said school belong to Backward Classes.
He pointed out that the first prayer which is sung is a poem of well
known social reformist Shree Sane Guruji which has nothing to do with
any religion. He urged that the said prayer conveys that the real
religion is the one which teaches a human being to love everyone. He
stated that the said prayer is a part of value education. He stated that
the second prayer which is titled as “Namaskar Maza Ya Dnyanmandira”
has nothing to do with any religion. He urged that merely because it
refers to “Shivam”, the prayer cannot be said to be a religious prayer.
He urged that the said poem professes that truth is pious and that
through education, the progress should be achieved. He stated that
these are the only two prayers sung at the start of the school in the
morning and by no stretch of imagination, these two prayers form part
of religious instructions and on the contrary, they form a part of the
value education. He submitted that the higher payscale
has been
denied to the Petitionerteacher
on valid grounds. He submitted that
the value education is a part of the curriculum of the school. Being a
teacher employed in the school, the Petitioner is duty bound to
participate in the value education. He urged that the impugned order
passed by the Education Officer proceeds on the erroneous assumption
that the religious education is imparted in the school and that the
Petitioner is being forced to participate in the religious education. He
relied upon a decision of the Apex Court in the case of Ms Aruna Roy
and Others v. Union of India and Others2. He submitted that the
concept of religious education and secularism has been explained in the
said decision. He submitted that the Apex Court has held that the
education about the religions, its basics, the values inherent therein is
neither violative of Article 28 of the Constitution of India nor offends
the concept of secularism. He urged that what is prohibited is the
religious education and not the education in relation to the religion. He
urged that the very basis of the order of the Education Officer is
erroneous. He pointed out that notwithstanding the pendency of this
petition, the Deputy Director of Education proceeded to decide the
Appeal preferred by the sixth and seventh Respondents. He submitted
2 [(2002)7 SCC 368]
that the sixth and seventh Respondents in Writ Petition no.1959 of 2013
have challenged the order passed by the Education Officer which is
sought to be implemented in Writ Petition No.1959 of 2013.
12. We have carefully considered the submissions. It will be
necessary to make a reference to the averments made in Writ Petition
No.8125 of 2013 and the reply filed by the said Petitioner to the Writ
Petition No.1959 of 2013 . In Writ Petition No.1959 of 2013, the
contentions raised can be summarized as under:
(a) The said school has students and teachers who
belong to all castes, creeds and religions. It is
pointed out that 59% students belong to Backward
Castes, 35% students are Muslims and 6% students
are from open category;
(b) At the start of the school, the prayer/poem by well
known social reformist Sane Guruji is sung which
has nothing to do with any religion and the said
prayer is for inculcating good moral values in the
students. Even the second prayer which is sung at
the beginning of the session of the school has
nothing to do with the religion. Both the prayers are
not religious;
(c ) As per the Government Resolution dated 3rd June
1997, a session of 30 minutes at the beginning of
the school everyday has to be kept reserved for
value education in which the prayers are included.
The Government Resolution specifically records that
the first 10 minutes, out of other 30 minutes shall be
devoted for singing of prayers, National Anthem, for
taking oath and for singing patriotic songs;
(d) A handbook has been published by the Maharashtra
School Board for Secondary and Higher Secondary
for imparting the value education. It has been
approved by the State Government and the teachers
are under an obligation to teach as per the said
handbook. The value education for children is an
integral part of the handbook;
(e) As the oath and singing of prayers is a part of value
education, as laid down by the State Government,
the Petitioner who is a teacher is duty bound to
participate in the session of 30 minutes of value
education.
13. The contention of the Petitioner/teacher is that he is
participating in the value education. The learned counsel appearing
for the Petitioner on instructions of the Petitioner has categorically
stated that the Petitioner is attending the prayers. He stated that the
Petitioner respectfully stands still without folding his hands at the time
when the prayers are being sung. He has stated that the Petitioner will
never show any disrespect to the prayers. His contention is that he is
also participating in the oath but without holding his hand in the front.
In his reply dated 29th February 2008 (ExhibitD
to the Writ Petition
No.1959 of 2013), he has specifically stated in Paragraph 7 that he
takes oath by mouth but he cannot be compelled to raise his hand. We
accept the said statements and in particular recorded in paragraph 10
above. The contention of the Petitioner/teacher is that the prayers
sung in the school are a part of religious education and that he cannot
be forced to stand with folded hands at the time of prayers. His
contention is that forcing him to fold his hands infringes his freedom of
speech and expression.
14. Perusal of the Government Resolution dated 3rd June 1997
shows that every school is required to impart value education for which,
a period of 30 minutes at the commencement of the day has been
reserved. The first 10 minutes of value education include singing of
prayers, National Anthem, patriotic songs and administration of oath.
It cannot be disputed that the value education is an integral part of the
curriculum of the school in the State. At this stage, it will be necessary
to make a reference to Rule 45 of the said Code which reads thus:
“Religious Instructions:
45.1 No religious instruction shall be provided in any
school wholly maintained out of state funds.
45.2 Nothing in Rule 45.1 above shall apply to a school
which is administered by the State but has been
established under any endowment or trust which
requires that religious instruction shall be imparted
in such school.
45.3 No person attending a school recognised by the
State or receiving aid out of State funds shall be
required to take part in any religious instruction
that may be imparted in such school or to attend
any religious worship that may be conducted in
such school or in premises attached thereto, unless
such person or, if such person is a minor, his parent
or guardian has given his consent thereto in writing
in either of the Forms 'A' or 'B', as the case may be
( given in appendix EIGHT), at the time of first
admission to the school.
45.4 No school shall use a school function or festival like
a school gathering; a prize distribution function, a
celebration in connection with a saint or a great
man, School Day, etc., for preaching any religion or
for other religious purposes.
45.5. The time spent by pupils on religious instructions or
observance, in any school recognised by the State or
receiving aid out of State funds, shall not be
deducted from the prescribed period of the
curriculum which shall be fixed on educational
considerations alone.
45.6 The expenditure on religious instructions in any
school recognised by the State of receiving aid out
of the State funds shall not be admitted for
purposes of grant.
45.7 The Inspecting Officer may, during the course of
inspection, visit classes where religious instruction
is given in school premises with a view to seeing
that the above condition are being fulfilled.
45.8 All schools shall impart education aimed at
inculcating ethical moral and social values and
developing right attitudes among the pupils.
45.9 All schools shall begin the day's work with the
community singing of the National Anthem ( Jana
Gana Mana).”
15. The provisions of Rule 45 of the said Code are consistent
with Article 28 of the Constitution of India. Article 28 of the
Constitution of India reads thus:
“28. Freedom as to attendance at religious instruction
or religious worship in certain educational
institutions
(1) No religion instruction shall be provided in any
educational institution wholly maintained out of
State funds
(2) Nothing in clause (1) shall apply to an
educational institution which is administered by
the State but has been established under any
endowment or trust which requires that religious
instruction shall be imparted in such institution
(3) No person attending any educational institution
recognised by the State or receiving aid out of
State funds shall be required to take part in any
religious instruction that may be imparted in
such institution or to attend any religious
worship that may be conducted in such
institution or in any premises attached thereto
unless such person or, if such person is a minor,
his guardian has given his consent thereto
Cultural and Educational Rights”.
16. The Petitionerteacher
has agreed that he will respectfully
stand still when the prayers are being sung and will not show any
disrespect whatsoever to the prayers . He has no objection for
administration of oath but he has objection to force him to hold his
hand in the front when the oath is being administered. He has no
objection for singing of prayers but his objection is to the action of
forcing him to stand with folded hands and to sing the prayers.
17. It will be also necessary to make a reference to Article 25 of
the Constitution of India which reads thus:“
25. Freedom of conscience and free profession,
practice and propagation of religion
(1) Subject to public order, morality and health
and to the other provisions of this Part, all
persons are equally entitled to freedom of
conscience and the right freely to profess,
practise and propagate religion
(2) Nothing in this article shall affect the operation
of any existing law or prevent the State from
making any law
(a) regulating or restricting any economic,
financial, political or other secular activity
which may be associated with religious
practice;
(b) providing for social welfare and reform or the
throwing open of Hindu religious institutions
of a public character to all classes and sections
of Hindus Explanation I The wearing and
carrying of kirpans shall be deemed to be
included in the profession of the Sikh religion
Explanation II In sub clause (b) of clause
reference to Hindus shall be construed as
including a reference to persons professing the
Sikh, Jaina or Buddhist religion, and the
reference to Hindu religious institutions shall
be construed accordingly”.
18. Articles 19 and 25 confer a freedom of conscience on a
citizen which is a fundamental right guaranteed by the Constitution of
India. As far as the freedom of speech and expression is concerned, it
guarantees the freedom to an individual from compulsion as to what he
shall think and what he shall say. In the present case, the contention
of the school authorities is that both the prayers have nothing to do
with religion and the prayers are secular in nature. The Petitioner is
of the view that the prayers are of religious nature. The Constitution
guarantees freedom of conscience. If an individual is of the view that
the prayers have religion overtone or are religious in nature and are
not consistent with his own religion or his beliefs , forcing him to sing
the prayers or forcing him to fold his hands when the prayers are being
sung will be a clear violation of fundamental rights guaranteed by the
Constitution of India of the freedom of speech and expression as well as
the freedom of conscience.
19. After having read both the prayers, we do find that there
can be a view that the prayers are not religious. In fact, one of the
prayers is by the well known and highly respected reformist, freedom
fighter and well known socialist leader Sane Guruji whose secular
credentials can never be disputed. Therefore, we cannot record a
finding that religious education or religious instructions are being
imparted in the school. Nevertheless the Petitioner has a freedom of
conscience and he cannot be compelled change his belief that the
prayers are religious in nature and to stand with folded hands when the
prayers are being sung. The freedom of conscience guaranteed to the
Petitioner protects him. He cannot be forced to stand with folded hands
when the prayers are being sung. But at the same time, he cannot
show disrespect to the prayers in as much as by showing disrespect, he
will be infringing the freedom of conscience of others and more
importantly being a teacher, he cannot violate the school discipline.
We have already pointed out that in one of his communications, the
Petitioner has stated that he participates and take oath but he cannot be
forced to hold his hand in the front.
20. Therefore, we are unable to accept the contention of the
school authorities that the Petitioner teacher indulged in indiscipline by
not folding his hands at the time when the prayers are being sung or by
not holding his hand in the front when the oath is administered. He is
entitled to hold a view that the prayers are religious or that the same
are not consistent with his religious faith.
21. At this stage, it will be necessary to make a reference to the
decision of the Apex Court in the case of Bijoe Emmanuel and others
(supra). The issue before the Apex Court was whether there is any
law which obliges everyone to sing National Anthem and everyone to
join singing of National Anthem. In paragraph 9, the Apex Court held
thus:
“9. We may at once say that there is no
provision of law which obliges anyone to sing
the National Anthem nor do we think that it is
disrespectful to the National Anthem if a person
who stands up respectfully when the National
Anthem is sung does not join the singing. It is
true Art. 51A(
a) of the Constitution enjoins a duty
on every citizen of India “to abide by the
Constitution and respect its ideals and institutions,
the National Flag and the national Anthem.”
Proper respect is shown to the National Anthem
by standing up when the National Anthem is
sung. It will not be right to say that disrespect
is shown by not joining in the singing.”
(emphasis added)
22. In paragraph 10, the Apex Court proceeded to observe
thus:
“10. Parliament has not been unmindful of 'National
Honour'. The Prevention of Insults to National
Honour Act was enacted in 1971. While S.2 deals
with insult to the Indian National Flag and the
Constitution of India, S.3 deals with the National
Anthem and enacts,
“Whoever, intentionally prevents the
singing of the National Anthem or causes
disturbance to any assembly engaged in
such singing shall be punished with
imprisonment for a term which may extend
to three years, or with fine, or with both.”
Standing up respectfully when the National
Anthem is sung but not singing oneself clearly
does not either prevent the singing of the National
Anthem or cause disturbance to an assembly
engaged in such singing so as to constitute the
offence mentioned in S.3 of the Prevention of
Insults to National Honour Act.”
(emphasis added)
23. The principles laid down by the Apex Court in the case of
Bijoe Emmanuel (supra) will apply and the Petitioner cannot be forced
to stand with folded hands when the prayers are being sung. Moreover,
not standing with folded hands at that time and not holding his hand
in front at the time when oath is administered cannot be treated as the
acts of indiscipline so long as the the petitioner does not show any
disrespect to the prayers and the oath. But the Petitioner has to respect
the freedom of conscience of others. Moreover, the Petitioner has to
observe the discipline of the school as the prayers and the oath are parts
of value education as per the directions contained in the Government
Resolution.
24. We, therefore, hold that though the Petitioner is bound by
the discipline of the school, at the time when the prayers are being sung
at the beginning of the day of the school, he cannot be forced to fold his
hands. He cannot be forced to hold his hand in the front at the time
when the oath is being administered. Forcing him to do so will be a
violation of fundamental rights conferred on him under the Constitution
of India.
25. We have perused the Confidential Reports of the Petitioner
for the relevant year. His Confidential Reports show that his
performance as a teacher is excellent. However, the Authorities have
found fault with him for not maintaining the discipline when the
prayers are being sung. We, concur with the findings recorded by the
Education Officer that the Petitioner fulfills the criteria for granting
higher payscale.
In the Confidential Reports, it is noted that as the
Petitioner was not folding his hands when the prayers are being sung,
his behaviour is not proper. The Education Officer is right in holding
that the Petitioner cannot be forced to sing the prayers and to fold his
hands. At the same time, the Petitioner will have to ensure that the
school discipline is maintained.
26. We must note here that pending the Petitions, the Appeal
preferred by the Respondent Nos.6 and 7 was decided by the Deputy
Director of Education. When this Court was seized of the matter, the
Deputy Director of Education ought not to decided the Appeal and,
therefore, we have kept the said order out of consideration.
27. Hence, we pass the following order :
ORDER :
(a) We direct the sixth and seventh Respondents in Writ
Petition No.1959 of 2013 to implement the order
dated 16th October 2010 (ExhibitK
in Writ Petition
no.1959 of 2013) within a period of eight weeks
from today;
(b) The Petitioner in Writ Petition No.1959 of 2013 has
completed 12 years of his service in June 2008.
Therefore, higher payscale
shall be granted in
accordance with law to the Petitioner from the date
on which he completed 12 years of his service;
(c ) Revised pay of the Petitioner shall be fixed and the
arrears payable up to 30th November 2013 shall be
paid to the Petitioner on or before 31st January 2014;
(d) The Petitioner shall be paid salary in the higher payscale
from December 2013 onwards;
(e) If the sixth and seventh Respondents fail to comply
with the order dated 16th October 2010 within the
time stipulated in this order, the Deputy Director of
Education, Nashik Road, Nashik shall ensure that
appropriate proceedings are initiated against the
Management of the school in accordance with law;
(f) The above directions will be without prejudice to the
right of the Petitioner to move the Court under the
Contempt of Courts Act, 1971;
(g) Writ Petition No.1959 of 2013 is allowed to the
above extent;
(h) Consequently the Writ Petition No.8125 of 2013 is
rejected.
( REVATI MOHITE DERE, J ) ( A.S. OKA, J )
P.T.O.
28. After the judgment was pronounced, the learned counsel
appearing for the sixth and seventh Respondents in Writ Petition
No.1959 of 2013 stated that on 21st September, 2013, the said
Respondents have passed a resolution for implementing the decision
dated 16th October, 2010 and the papers have been forwarded to the
concerned authorities. He states that the decision is to implement the
direction to pay higher pay scales to the Petitioner and proposals have
been forwarded on 23rd and 25th September, 2013 respectively. We
accept the said statements.
29. We direct the concerned authorities to take appropriate
decision on the said proposals.
30. In the event, the appropriate authorities do not take
prompt decision, it will be open for the sixth and seventh Respondents
to move this Court for extension of time fixed under this order for
making compliance.
( REVATI MOHITE DERE, J ) ( A.S. OKA, J )
Bombay
High Court: In a landmark judgment, a division bench of Hon’ble A.S.
Oka and Hon’ble Revati Mohite Dere, JJ ruled that an atheist cannot be
forced to fold his hands during prayer at school. If an individual is of
the view that the prayers have religion overtone or are religious in
nature and are not consistent with his own religion or his beliefs, then
forcing him to sing the prayers or forcing him to fold his hands when
the prayers are being sung would be a clear violation of fundamental
rights guaranteed by the Constitution of India of the freedom of speech
and expression as well as the freedom of conscience.
In the present case, the petitioner is an atheist teacher who had refused to fold his hands during prayer and consequently on grounds of indiscipline had not been given higher pay scale as was due to him. He had contended that in a state funded school there should be no religious instruction. The Court after going through the prayers came to the decision that there was nothing religious about the prayers but nevertheless the petitioner had a freedom of conscience and he cannot be compelled to change his belief that the prayers are religious in nature and to stand with folded hands when the prayers are being sung. The Court dismissed the contention of the school that not standing with folded hands at that time or not holding his hand in front at the time when oath is being administered can be treated as the acts of indiscipline so long as the petitioner does not show any disrespect to the prayers and the oath. The Court concurred with the report of the Education Officer and directed to school to clear his arrears and promote him to higher pay scale. [Sanjay Ananda Salve vs. State of Maharashtra, Writ Petition No. 1959 of 2013, decided on 29th October, 2013]1
In the present case, the petitioner is an atheist teacher who had refused to fold his hands during prayer and consequently on grounds of indiscipline had not been given higher pay scale as was due to him. He had contended that in a state funded school there should be no religious instruction. The Court after going through the prayers came to the decision that there was nothing religious about the prayers but nevertheless the petitioner had a freedom of conscience and he cannot be compelled to change his belief that the prayers are religious in nature and to stand with folded hands when the prayers are being sung. The Court dismissed the contention of the school that not standing with folded hands at that time or not holding his hand in front at the time when oath is being administered can be treated as the acts of indiscipline so long as the petitioner does not show any disrespect to the prayers and the oath. The Court concurred with the report of the Education Officer and directed to school to clear his arrears and promote him to higher pay scale. [Sanjay Ananda Salve vs. State of Maharashtra, Writ Petition No. 1959 of 2013, decided on 29th October, 2013]1
Bombay High Court
CORAM : A.S. OKA &
REVATI MOHITE DERE, JJ
1. The Petitioner in Writ Petition No.1959 of 2013 who is
employed as an Assistant Teacher in a School run by the seventh
Respondent has approached this Court by this Writ Petition under
Article 226 of the Constitution of India with a prayer to issue a writ of
mandamus to strictly enforce Rule 45 of the Secondary Schools Code
(hereinafter referred to as “the said Code”) in Matoshri Savitribai Phule
Madhyamik Vidyalaya, Nashik (for short “the said school”) where he is
employed. The grievance in this Petition is as regards the nonimplementation
of the directions contained in the order dated 16th
October 2010 issued by the Education Officer to the Head Master of the
said school. The seventh Respondent is the institution which runs the
said school and the sixth Respondent is the Head Master of the said
school.
2. The Writ Petition No.8125 of 2013 has been filed by the
seventh Respondent in the Writ Petition No.1959 of 2013. This Petition
has been filed for challenging the legality and validity of the order
dated 16th October 2010. As we have pointed out earlier, essentially the
Writ Petition No.1959 of 2013 is for enforcement of the said order. In
addition to the contentions raised in a reply in the companion Petition
No.1959 of 2013, in this Petition, a reliance has been placed on the
Government Resolution dated 4th February 2013. It provides that at the
time of prayers in every school, the preamble under the Constitution
shall be read. It also records that the preamble shall be displayed in
the school. For the sake of convenience, in this judgment and order, we
have made a reference to the parties as per their respective title in Writ
Petition No.1959 of 2013.
3. It will be necessary to make a reference to the facts in
brief. The Petitionerteacher
has stated that he is a Buddhist . The
Petitioner has been employed in the said school from the year 1996. On
12 December 2007, the Head Master issued a communication to the
Petitioner pointing that at the time of singing of prayers in the school,
the Petitioner does not stand with the folded hands and does not hold
his hand in the front at the time of oath. The Petitioner replied on 24th
December 2007 by pointing out that the prayer session of the school
consists of three prayers. He stated that all the three prayers contain a
praise for the God. He contended that he has freedom of expression
as per the Article 19 of the Constitution of India and, therefore, he
cannot be forced to stand with folded hands at the time when the
prayers are sung. He alleged that singing of three prayers amounts to
imparting religious education which is not permissible under Article
28(1) of the Constitution of India. On 11th February 2008, the Head
Master addressed another communication to the Petitioner. It was
contended therein that after having accepted a job of an Assistant
Teacher, the Petitioner was bound by the conditions of the service and
those conditions of service are nothing but reasonable restrictions on
the fundamental rights of the Petitioner. The Petitioner responded by
a letter dated 29th February 2008. He contended that as per the clause
(9) of Rule 45 of the said Code, it is mandatory to commence the
school with National Anthem. As regards oath, he stated that along
with others, he always takes the oath. However, nobody can force him
to hold his hand in the front at the time when oath is being
administered. He stated that though he is of the opinion that the three
prayers are religious in nature, he does not want to impose his opinion
on other teachers but he should not be asked to stand with folded
hands. He stated that the school is being run in the name of a great
personality like Savitribai Phule for whom he had highest respect and
he had no grievance against the school.
4. The Petitioner on 3rd August 2009 applied to the Education
Officer (Secondary) contending that he has been denied the benefit of
higher payscale
and the Head Master was indulging in harassment.
5. In earlier Writ Petition No.5254 of 2010, this Court passed
an order on 8th July 2010 directing the Education Officer to decide the
representation made by the Petitioner.
6. On 16th October 2010, the Education Officer (Secondary)
passed a detailed order and issued following directions:
(i) The first direction was that as per the Government
letter dated 15th January 1990, the Petitioner has
satisfied the prescribed criteria and therefore, the
said school shall take steps for placing the Petitioner
in higher pay scale.
(ii) The second direction was that there was no rule
which prescribes that at the time of prayers, a
teacher must stand with folded hands and therefore,
no one can be compelled to stand with folded
hands;
(iii) Thirdly, it was directed that while the school the
authorities were bound under the Rule 45.8 of the
said Code to impart value education, they must
ensure that they do not act in conflict with the
Constitutional principles and especially the concept
of secularism.
7. On 23rd March 2011, the Petitioner addressed a letter to the
Education Officer making a grievance that the directions issued on 16th
October 2010 were not implemented. On 25th July 2011, the
Petitioner wrote to the Director of Education, Pune contending that if
the Appeal preferred by the school authorities against the said
directions has been admitted, the same may be decided at the earliest.
8. Essentially there are four prayers in the Writ Petition
No.1959 of 2013 for issuing a writ which read thus:
(i) Ensure strict compliance with Rule 45 of the
Secondary School Code in the Matoshri Savitribai
Phule Madhyamik Vidyalay, Nashik, of the
Respondent No.7;
(ii) To restrain the Respondent Nos.6 and 7 from
compelling the Petitioner to participate in the
religious education/instructions in the Matoshri
Savitribai Phule Madhyamik Vidyalay, Nashik;
(iii) To ensure strict compliance with Rule 45 of the
Secondary School Code in all fully aided Secondary
Schools in the State of Maharashtra;
(iv) Grant the higher grade/scale of the salary to the
Petitioner.
9. Learned counsel appearing for the Petitioner invited our
attention to the mandate of Article 28 of the Constitution of India which
lays down that no religious instruction shall be provided in any
educational institution wholly maintained out of State funds. He relied
upon Rule 45 of the said Code and in particular Clause (1) thereof
which provides that no religious instruction shall be provided in any
school wholly maintained out of State funds. He also invited our
attention to various clauses of Rule 45 of the said Code and in
particular Clause (9) thereof which provides that all schools shall begin
the day's work with the community singing of the National Anthem.
He urged that the entire service record of the Petitioner is very good
and only because he refused to fold his hands at the time of Paripath
(session of prayers) that he has been denied higher payscale.
The
learned counsel appearing for the Petitioner relied upon a decision of
the Apex Court in the case of Bijoe Emmanuel and others V. State of
Kerala and others1 which holds that there is no provision of law which
obliges any one to sing National Anthem and it is not disrespectful to
the National Anthem if a person who stands up respectfully when a
National Anthem is sung does not join the singing of the National
Anthem.
10. On instructions, he states that the Petitioner has never
shown any disrespect to the prayers sung in the school or to the oath
administered in the school and even in future, he will never show such
disrespect to the prayers. He states that at the time of singing the
prayers, as he has been doing in the past, he shall stand still and shall
not show any disrespect to the prayers. He, however, submits that the
Petitioner cannot be compelled to stand with folded hands.
1 AIR 1987 SC 748
11. The learned counsel appearing for the sixth and seventh
Respondents has also made a detailed submissions. He has also
produced for perusal of the Court the Annual Confidential Reports of
the Petitioner. He invited our attention to the Government Resolution
dated 3rd June 1997 which provides for imparting of value education
of 10 different categories to the students. He pointed out that a
handbook has been issued by the Government in that behalf. He urged
that the value education has been made compulsory by the State
Government and in fact it is a part of syllabus published by the Board of
Secondary and Higher Secondary Education. He stated that the
majority of the students in the said school belong to Backward Classes.
He pointed out that the first prayer which is sung is a poem of well
known social reformist Shree Sane Guruji which has nothing to do with
any religion. He urged that the said prayer conveys that the real
religion is the one which teaches a human being to love everyone. He
stated that the said prayer is a part of value education. He stated that
the second prayer which is titled as “Namaskar Maza Ya Dnyanmandira”
has nothing to do with any religion. He urged that merely because it
refers to “Shivam”, the prayer cannot be said to be a religious prayer.
He urged that the said poem professes that truth is pious and that
through education, the progress should be achieved. He stated that
these are the only two prayers sung at the start of the school in the
morning and by no stretch of imagination, these two prayers form part
of religious instructions and on the contrary, they form a part of the
value education. He submitted that the higher payscale
has been
denied to the Petitionerteacher
on valid grounds. He submitted that
the value education is a part of the curriculum of the school. Being a
teacher employed in the school, the Petitioner is duty bound to
participate in the value education. He urged that the impugned order
passed by the Education Officer proceeds on the erroneous assumption
that the religious education is imparted in the school and that the
Petitioner is being forced to participate in the religious education. He
relied upon a decision of the Apex Court in the case of Ms Aruna Roy
and Others v. Union of India and Others2. He submitted that the
concept of religious education and secularism has been explained in the
said decision. He submitted that the Apex Court has held that the
education about the religions, its basics, the values inherent therein is
neither violative of Article 28 of the Constitution of India nor offends
the concept of secularism. He urged that what is prohibited is the
religious education and not the education in relation to the religion. He
urged that the very basis of the order of the Education Officer is
erroneous. He pointed out that notwithstanding the pendency of this
petition, the Deputy Director of Education proceeded to decide the
Appeal preferred by the sixth and seventh Respondents. He submitted
2 [(2002)7 SCC 368]
that the sixth and seventh Respondents in Writ Petition no.1959 of 2013
have challenged the order passed by the Education Officer which is
sought to be implemented in Writ Petition No.1959 of 2013.
12. We have carefully considered the submissions. It will be
necessary to make a reference to the averments made in Writ Petition
No.8125 of 2013 and the reply filed by the said Petitioner to the Writ
Petition No.1959 of 2013 . In Writ Petition No.1959 of 2013, the
contentions raised can be summarized as under:
(a) The said school has students and teachers who
belong to all castes, creeds and religions. It is
pointed out that 59% students belong to Backward
Castes, 35% students are Muslims and 6% students
are from open category;
(b) At the start of the school, the prayer/poem by well
known social reformist Sane Guruji is sung which
has nothing to do with any religion and the said
prayer is for inculcating good moral values in the
students. Even the second prayer which is sung at
the beginning of the session of the school has
nothing to do with the religion. Both the prayers are
not religious;
(c ) As per the Government Resolution dated 3rd June
1997, a session of 30 minutes at the beginning of
the school everyday has to be kept reserved for
value education in which the prayers are included.
The Government Resolution specifically records that
the first 10 minutes, out of other 30 minutes shall be
devoted for singing of prayers, National Anthem, for
taking oath and for singing patriotic songs;
(d) A handbook has been published by the Maharashtra
School Board for Secondary and Higher Secondary
for imparting the value education. It has been
approved by the State Government and the teachers
are under an obligation to teach as per the said
handbook. The value education for children is an
integral part of the handbook;
(e) As the oath and singing of prayers is a part of value
education, as laid down by the State Government,
the Petitioner who is a teacher is duty bound to
participate in the session of 30 minutes of value
education.
13. The contention of the Petitioner/teacher is that he is
participating in the value education. The learned counsel appearing
for the Petitioner on instructions of the Petitioner has categorically
stated that the Petitioner is attending the prayers. He stated that the
Petitioner respectfully stands still without folding his hands at the time
when the prayers are being sung. He has stated that the Petitioner will
never show any disrespect to the prayers. His contention is that he is
also participating in the oath but without holding his hand in the front.
In his reply dated 29th February 2008 (ExhibitD
to the Writ Petition
No.1959 of 2013), he has specifically stated in Paragraph 7 that he
takes oath by mouth but he cannot be compelled to raise his hand. We
accept the said statements and in particular recorded in paragraph 10
above. The contention of the Petitioner/teacher is that the prayers
sung in the school are a part of religious education and that he cannot
be forced to stand with folded hands at the time of prayers. His
contention is that forcing him to fold his hands infringes his freedom of
speech and expression.
14. Perusal of the Government Resolution dated 3rd June 1997
shows that every school is required to impart value education for which,
a period of 30 minutes at the commencement of the day has been
reserved. The first 10 minutes of value education include singing of
prayers, National Anthem, patriotic songs and administration of oath.
It cannot be disputed that the value education is an integral part of the
curriculum of the school in the State. At this stage, it will be necessary
to make a reference to Rule 45 of the said Code which reads thus:
“Religious Instructions:
45.1 No religious instruction shall be provided in any
school wholly maintained out of state funds.
45.2 Nothing in Rule 45.1 above shall apply to a school
which is administered by the State but has been
established under any endowment or trust which
requires that religious instruction shall be imparted
in such school.
45.3 No person attending a school recognised by the
State or receiving aid out of State funds shall be
required to take part in any religious instruction
that may be imparted in such school or to attend
any religious worship that may be conducted in
such school or in premises attached thereto, unless
such person or, if such person is a minor, his parent
or guardian has given his consent thereto in writing
in either of the Forms 'A' or 'B', as the case may be
( given in appendix EIGHT), at the time of first
admission to the school.
45.4 No school shall use a school function or festival like
a school gathering; a prize distribution function, a
celebration in connection with a saint or a great
man, School Day, etc., for preaching any religion or
for other religious purposes.
45.5. The time spent by pupils on religious instructions or
observance, in any school recognised by the State or
receiving aid out of State funds, shall not be
deducted from the prescribed period of the
curriculum which shall be fixed on educational
considerations alone.
45.6 The expenditure on religious instructions in any
school recognised by the State of receiving aid out
of the State funds shall not be admitted for
purposes of grant.
45.7 The Inspecting Officer may, during the course of
inspection, visit classes where religious instruction
is given in school premises with a view to seeing
that the above condition are being fulfilled.
45.8 All schools shall impart education aimed at
inculcating ethical moral and social values and
developing right attitudes among the pupils.
45.9 All schools shall begin the day's work with the
community singing of the National Anthem ( Jana
Gana Mana).”
15. The provisions of Rule 45 of the said Code are consistent
with Article 28 of the Constitution of India. Article 28 of the
Constitution of India reads thus:
“28. Freedom as to attendance at religious instruction
or religious worship in certain educational
institutions
(1) No religion instruction shall be provided in any
educational institution wholly maintained out of
State funds
(2) Nothing in clause (1) shall apply to an
educational institution which is administered by
the State but has been established under any
endowment or trust which requires that religious
instruction shall be imparted in such institution
(3) No person attending any educational institution
recognised by the State or receiving aid out of
State funds shall be required to take part in any
religious instruction that may be imparted in
such institution or to attend any religious
worship that may be conducted in such
institution or in any premises attached thereto
unless such person or, if such person is a minor,
his guardian has given his consent thereto
Cultural and Educational Rights”.
16. The Petitionerteacher
has agreed that he will respectfully
stand still when the prayers are being sung and will not show any
disrespect whatsoever to the prayers . He has no objection for
administration of oath but he has objection to force him to hold his
hand in the front when the oath is being administered. He has no
objection for singing of prayers but his objection is to the action of
forcing him to stand with folded hands and to sing the prayers.
17. It will be also necessary to make a reference to Article 25 of
the Constitution of India which reads thus:“
25. Freedom of conscience and free profession,
practice and propagation of religion
(1) Subject to public order, morality and health
and to the other provisions of this Part, all
persons are equally entitled to freedom of
conscience and the right freely to profess,
practise and propagate religion
(2) Nothing in this article shall affect the operation
of any existing law or prevent the State from
making any law
(a) regulating or restricting any economic,
financial, political or other secular activity
which may be associated with religious
practice;
(b) providing for social welfare and reform or the
throwing open of Hindu religious institutions
of a public character to all classes and sections
of Hindus Explanation I The wearing and
carrying of kirpans shall be deemed to be
included in the profession of the Sikh religion
Explanation II In sub clause (b) of clause
reference to Hindus shall be construed as
including a reference to persons professing the
Sikh, Jaina or Buddhist religion, and the
reference to Hindu religious institutions shall
be construed accordingly”.
18. Articles 19 and 25 confer a freedom of conscience on a
citizen which is a fundamental right guaranteed by the Constitution of
India. As far as the freedom of speech and expression is concerned, it
guarantees the freedom to an individual from compulsion as to what he
shall think and what he shall say. In the present case, the contention
of the school authorities is that both the prayers have nothing to do
with religion and the prayers are secular in nature. The Petitioner is
of the view that the prayers are of religious nature. The Constitution
guarantees freedom of conscience. If an individual is of the view that
the prayers have religion overtone or are religious in nature and are
not consistent with his own religion or his beliefs , forcing him to sing
the prayers or forcing him to fold his hands when the prayers are being
sung will be a clear violation of fundamental rights guaranteed by the
Constitution of India of the freedom of speech and expression as well as
the freedom of conscience.
19. After having read both the prayers, we do find that there
can be a view that the prayers are not religious. In fact, one of the
prayers is by the well known and highly respected reformist, freedom
fighter and well known socialist leader Sane Guruji whose secular
credentials can never be disputed. Therefore, we cannot record a
finding that religious education or religious instructions are being
imparted in the school. Nevertheless the Petitioner has a freedom of
conscience and he cannot be compelled change his belief that the
prayers are religious in nature and to stand with folded hands when the
prayers are being sung. The freedom of conscience guaranteed to the
Petitioner protects him. He cannot be forced to stand with folded hands
when the prayers are being sung. But at the same time, he cannot
show disrespect to the prayers in as much as by showing disrespect, he
will be infringing the freedom of conscience of others and more
importantly being a teacher, he cannot violate the school discipline.
We have already pointed out that in one of his communications, the
Petitioner has stated that he participates and take oath but he cannot be
forced to hold his hand in the front.
20. Therefore, we are unable to accept the contention of the
school authorities that the Petitioner teacher indulged in indiscipline by
not folding his hands at the time when the prayers are being sung or by
not holding his hand in the front when the oath is administered. He is
entitled to hold a view that the prayers are religious or that the same
are not consistent with his religious faith.
21. At this stage, it will be necessary to make a reference to the
decision of the Apex Court in the case of Bijoe Emmanuel and others
(supra). The issue before the Apex Court was whether there is any
law which obliges everyone to sing National Anthem and everyone to
join singing of National Anthem. In paragraph 9, the Apex Court held
thus:
“9. We may at once say that there is no
provision of law which obliges anyone to sing
the National Anthem nor do we think that it is
disrespectful to the National Anthem if a person
who stands up respectfully when the National
Anthem is sung does not join the singing. It is
true Art. 51A(
a) of the Constitution enjoins a duty
on every citizen of India “to abide by the
Constitution and respect its ideals and institutions,
the National Flag and the national Anthem.”
Proper respect is shown to the National Anthem
by standing up when the National Anthem is
sung. It will not be right to say that disrespect
is shown by not joining in the singing.”
(emphasis added)
22. In paragraph 10, the Apex Court proceeded to observe
thus:
“10. Parliament has not been unmindful of 'National
Honour'. The Prevention of Insults to National
Honour Act was enacted in 1971. While S.2 deals
with insult to the Indian National Flag and the
Constitution of India, S.3 deals with the National
Anthem and enacts,
“Whoever, intentionally prevents the
singing of the National Anthem or causes
disturbance to any assembly engaged in
such singing shall be punished with
imprisonment for a term which may extend
to three years, or with fine, or with both.”
Standing up respectfully when the National
Anthem is sung but not singing oneself clearly
does not either prevent the singing of the National
Anthem or cause disturbance to an assembly
engaged in such singing so as to constitute the
offence mentioned in S.3 of the Prevention of
Insults to National Honour Act.”
(emphasis added)
23. The principles laid down by the Apex Court in the case of
Bijoe Emmanuel (supra) will apply and the Petitioner cannot be forced
to stand with folded hands when the prayers are being sung. Moreover,
not standing with folded hands at that time and not holding his hand
in front at the time when oath is administered cannot be treated as the
acts of indiscipline so long as the the petitioner does not show any
disrespect to the prayers and the oath. But the Petitioner has to respect
the freedom of conscience of others. Moreover, the Petitioner has to
observe the discipline of the school as the prayers and the oath are parts
of value education as per the directions contained in the Government
Resolution.
24. We, therefore, hold that though the Petitioner is bound by
the discipline of the school, at the time when the prayers are being sung
at the beginning of the day of the school, he cannot be forced to fold his
hands. He cannot be forced to hold his hand in the front at the time
when the oath is being administered. Forcing him to do so will be a
violation of fundamental rights conferred on him under the Constitution
of India.
25. We have perused the Confidential Reports of the Petitioner
for the relevant year. His Confidential Reports show that his
performance as a teacher is excellent. However, the Authorities have
found fault with him for not maintaining the discipline when the
prayers are being sung. We, concur with the findings recorded by the
Education Officer that the Petitioner fulfills the criteria for granting
higher payscale.
In the Confidential Reports, it is noted that as the
Petitioner was not folding his hands when the prayers are being sung,
his behaviour is not proper. The Education Officer is right in holding
that the Petitioner cannot be forced to sing the prayers and to fold his
hands. At the same time, the Petitioner will have to ensure that the
school discipline is maintained.
26. We must note here that pending the Petitions, the Appeal
preferred by the Respondent Nos.6 and 7 was decided by the Deputy
Director of Education. When this Court was seized of the matter, the
Deputy Director of Education ought not to decided the Appeal and,
therefore, we have kept the said order out of consideration.
27. Hence, we pass the following order :
ORDER :
(a) We direct the sixth and seventh Respondents in Writ
Petition No.1959 of 2013 to implement the order
dated 16th October 2010 (ExhibitK
in Writ Petition
no.1959 of 2013) within a period of eight weeks
from today;
(b) The Petitioner in Writ Petition No.1959 of 2013 has
completed 12 years of his service in June 2008.
Therefore, higher payscale
shall be granted in
accordance with law to the Petitioner from the date
on which he completed 12 years of his service;
(c ) Revised pay of the Petitioner shall be fixed and the
arrears payable up to 30th November 2013 shall be
paid to the Petitioner on or before 31st January 2014;
(d) The Petitioner shall be paid salary in the higher payscale
from December 2013 onwards;
(e) If the sixth and seventh Respondents fail to comply
with the order dated 16th October 2010 within the
time stipulated in this order, the Deputy Director of
Education, Nashik Road, Nashik shall ensure that
appropriate proceedings are initiated against the
Management of the school in accordance with law;
(f) The above directions will be without prejudice to the
right of the Petitioner to move the Court under the
Contempt of Courts Act, 1971;
(g) Writ Petition No.1959 of 2013 is allowed to the
above extent;
(h) Consequently the Writ Petition No.8125 of 2013 is
rejected.
( REVATI MOHITE DERE, J ) ( A.S. OKA, J )
P.T.O.
28. After the judgment was pronounced, the learned counsel
appearing for the sixth and seventh Respondents in Writ Petition
No.1959 of 2013 stated that on 21st September, 2013, the said
Respondents have passed a resolution for implementing the decision
dated 16th October, 2010 and the papers have been forwarded to the
concerned authorities. He states that the decision is to implement the
direction to pay higher pay scales to the Petitioner and proposals have
been forwarded on 23rd and 25th September, 2013 respectively. We
accept the said statements.
29. We direct the concerned authorities to take appropriate
decision on the said proposals.
30. In the event, the appropriate authorities do not take
prompt decision, it will be open for the sixth and seventh Respondents
to move this Court for extension of time fixed under this order for
making compliance.
( REVATI MOHITE DERE, J ) ( A.S. OKA, J )
CORAM : A.S. OKA &
REVATI MOHITE DERE, JJ
1. The Petitioner in Writ Petition No.1959 of 2013 who is
employed as an Assistant Teacher in a School run by the seventh
Respondent has approached this Court by this Writ Petition under
Article 226 of the Constitution of India with a prayer to issue a writ of
mandamus to strictly enforce Rule 45 of the Secondary Schools Code
(hereinafter referred to as “the said Code”) in Matoshri Savitribai Phule
Madhyamik Vidyalaya, Nashik (for short “the said school”) where he is
employed. The grievance in this Petition is as regards the nonimplementation
of the directions contained in the order dated 16th
October 2010 issued by the Education Officer to the Head Master of the
said school. The seventh Respondent is the institution which runs the
said school and the sixth Respondent is the Head Master of the said
school.
2. The Writ Petition No.8125 of 2013 has been filed by the
seventh Respondent in the Writ Petition No.1959 of 2013. This Petition
has been filed for challenging the legality and validity of the order
dated 16th October 2010. As we have pointed out earlier, essentially the
Writ Petition No.1959 of 2013 is for enforcement of the said order. In
addition to the contentions raised in a reply in the companion Petition
No.1959 of 2013, in this Petition, a reliance has been placed on the
Government Resolution dated 4th February 2013. It provides that at the
time of prayers in every school, the preamble under the Constitution
shall be read. It also records that the preamble shall be displayed in
the school. For the sake of convenience, in this judgment and order, we
have made a reference to the parties as per their respective title in Writ
Petition No.1959 of 2013.
3. It will be necessary to make a reference to the facts in
brief. The Petitionerteacher
has stated that he is a Buddhist . The
Petitioner has been employed in the said school from the year 1996. On
12 December 2007, the Head Master issued a communication to the
Petitioner pointing that at the time of singing of prayers in the school,
the Petitioner does not stand with the folded hands and does not hold
his hand in the front at the time of oath. The Petitioner replied on 24th
December 2007 by pointing out that the prayer session of the school
consists of three prayers. He stated that all the three prayers contain a
praise for the God. He contended that he has freedom of expression
as per the Article 19 of the Constitution of India and, therefore, he
cannot be forced to stand with folded hands at the time when the
prayers are sung. He alleged that singing of three prayers amounts to
imparting religious education which is not permissible under Article
28(1) of the Constitution of India. On 11th February 2008, the Head
Master addressed another communication to the Petitioner. It was
contended therein that after having accepted a job of an Assistant
Teacher, the Petitioner was bound by the conditions of the service and
those conditions of service are nothing but reasonable restrictions on
the fundamental rights of the Petitioner. The Petitioner responded by
a letter dated 29th February 2008. He contended that as per the clause
(9) of Rule 45 of the said Code, it is mandatory to commence the
school with National Anthem. As regards oath, he stated that along
with others, he always takes the oath. However, nobody can force him
to hold his hand in the front at the time when oath is being
administered. He stated that though he is of the opinion that the three
prayers are religious in nature, he does not want to impose his opinion
on other teachers but he should not be asked to stand with folded
hands. He stated that the school is being run in the name of a great
personality like Savitribai Phule for whom he had highest respect and
he had no grievance against the school.
4. The Petitioner on 3rd August 2009 applied to the Education
Officer (Secondary) contending that he has been denied the benefit of
higher payscale
and the Head Master was indulging in harassment.
5. In earlier Writ Petition No.5254 of 2010, this Court passed
an order on 8th July 2010 directing the Education Officer to decide the
representation made by the Petitioner.
6. On 16th October 2010, the Education Officer (Secondary)
passed a detailed order and issued following directions:
(i) The first direction was that as per the Government
letter dated 15th January 1990, the Petitioner has
satisfied the prescribed criteria and therefore, the
said school shall take steps for placing the Petitioner
in higher pay scale.
(ii) The second direction was that there was no rule
which prescribes that at the time of prayers, a
teacher must stand with folded hands and therefore,
no one can be compelled to stand with folded
hands;
(iii) Thirdly, it was directed that while the school the
authorities were bound under the Rule 45.8 of the
said Code to impart value education, they must
ensure that they do not act in conflict with the
Constitutional principles and especially the concept
of secularism.
7. On 23rd March 2011, the Petitioner addressed a letter to the
Education Officer making a grievance that the directions issued on 16th
October 2010 were not implemented. On 25th July 2011, the
Petitioner wrote to the Director of Education, Pune contending that if
the Appeal preferred by the school authorities against the said
directions has been admitted, the same may be decided at the earliest.
8. Essentially there are four prayers in the Writ Petition
No.1959 of 2013 for issuing a writ which read thus:
(i) Ensure strict compliance with Rule 45 of the
Secondary School Code in the Matoshri Savitribai
Phule Madhyamik Vidyalay, Nashik, of the
Respondent No.7;
(ii) To restrain the Respondent Nos.6 and 7 from
compelling the Petitioner to participate in the
religious education/instructions in the Matoshri
Savitribai Phule Madhyamik Vidyalay, Nashik;
(iii) To ensure strict compliance with Rule 45 of the
Secondary School Code in all fully aided Secondary
Schools in the State of Maharashtra;
(iv) Grant the higher grade/scale of the salary to the
Petitioner.
9. Learned counsel appearing for the Petitioner invited our
attention to the mandate of Article 28 of the Constitution of India which
lays down that no religious instruction shall be provided in any
educational institution wholly maintained out of State funds. He relied
upon Rule 45 of the said Code and in particular Clause (1) thereof
which provides that no religious instruction shall be provided in any
school wholly maintained out of State funds. He also invited our
attention to various clauses of Rule 45 of the said Code and in
particular Clause (9) thereof which provides that all schools shall begin
the day's work with the community singing of the National Anthem.
He urged that the entire service record of the Petitioner is very good
and only because he refused to fold his hands at the time of Paripath
(session of prayers) that he has been denied higher payscale.
The
learned counsel appearing for the Petitioner relied upon a decision of
the Apex Court in the case of Bijoe Emmanuel and others V. State of
Kerala and others1 which holds that there is no provision of law which
obliges any one to sing National Anthem and it is not disrespectful to
the National Anthem if a person who stands up respectfully when a
National Anthem is sung does not join the singing of the National
Anthem.
10. On instructions, he states that the Petitioner has never
shown any disrespect to the prayers sung in the school or to the oath
administered in the school and even in future, he will never show such
disrespect to the prayers. He states that at the time of singing the
prayers, as he has been doing in the past, he shall stand still and shall
not show any disrespect to the prayers. He, however, submits that the
Petitioner cannot be compelled to stand with folded hands.
1 AIR 1987 SC 748
11. The learned counsel appearing for the sixth and seventh
Respondents has also made a detailed submissions. He has also
produced for perusal of the Court the Annual Confidential Reports of
the Petitioner. He invited our attention to the Government Resolution
dated 3rd June 1997 which provides for imparting of value education
of 10 different categories to the students. He pointed out that a
handbook has been issued by the Government in that behalf. He urged
that the value education has been made compulsory by the State
Government and in fact it is a part of syllabus published by the Board of
Secondary and Higher Secondary Education. He stated that the
majority of the students in the said school belong to Backward Classes.
He pointed out that the first prayer which is sung is a poem of well
known social reformist Shree Sane Guruji which has nothing to do with
any religion. He urged that the said prayer conveys that the real
religion is the one which teaches a human being to love everyone. He
stated that the said prayer is a part of value education. He stated that
the second prayer which is titled as “Namaskar Maza Ya Dnyanmandira”
has nothing to do with any religion. He urged that merely because it
refers to “Shivam”, the prayer cannot be said to be a religious prayer.
He urged that the said poem professes that truth is pious and that
through education, the progress should be achieved. He stated that
these are the only two prayers sung at the start of the school in the
morning and by no stretch of imagination, these two prayers form part
of religious instructions and on the contrary, they form a part of the
value education. He submitted that the higher payscale
has been
denied to the Petitionerteacher
on valid grounds. He submitted that
the value education is a part of the curriculum of the school. Being a
teacher employed in the school, the Petitioner is duty bound to
participate in the value education. He urged that the impugned order
passed by the Education Officer proceeds on the erroneous assumption
that the religious education is imparted in the school and that the
Petitioner is being forced to participate in the religious education. He
relied upon a decision of the Apex Court in the case of Ms Aruna Roy
and Others v. Union of India and Others2. He submitted that the
concept of religious education and secularism has been explained in the
said decision. He submitted that the Apex Court has held that the
education about the religions, its basics, the values inherent therein is
neither violative of Article 28 of the Constitution of India nor offends
the concept of secularism. He urged that what is prohibited is the
religious education and not the education in relation to the religion. He
urged that the very basis of the order of the Education Officer is
erroneous. He pointed out that notwithstanding the pendency of this
petition, the Deputy Director of Education proceeded to decide the
Appeal preferred by the sixth and seventh Respondents. He submitted
2 [(2002)7 SCC 368]
that the sixth and seventh Respondents in Writ Petition no.1959 of 2013
have challenged the order passed by the Education Officer which is
sought to be implemented in Writ Petition No.1959 of 2013.
12. We have carefully considered the submissions. It will be
necessary to make a reference to the averments made in Writ Petition
No.8125 of 2013 and the reply filed by the said Petitioner to the Writ
Petition No.1959 of 2013 . In Writ Petition No.1959 of 2013, the
contentions raised can be summarized as under:
(a) The said school has students and teachers who
belong to all castes, creeds and religions. It is
pointed out that 59% students belong to Backward
Castes, 35% students are Muslims and 6% students
are from open category;
(b) At the start of the school, the prayer/poem by well
known social reformist Sane Guruji is sung which
has nothing to do with any religion and the said
prayer is for inculcating good moral values in the
students. Even the second prayer which is sung at
the beginning of the session of the school has
nothing to do with the religion. Both the prayers are
not religious;
(c ) As per the Government Resolution dated 3rd June
1997, a session of 30 minutes at the beginning of
the school everyday has to be kept reserved for
value education in which the prayers are included.
The Government Resolution specifically records that
the first 10 minutes, out of other 30 minutes shall be
devoted for singing of prayers, National Anthem, for
taking oath and for singing patriotic songs;
(d) A handbook has been published by the Maharashtra
School Board for Secondary and Higher Secondary
for imparting the value education. It has been
approved by the State Government and the teachers
are under an obligation to teach as per the said
handbook. The value education for children is an
integral part of the handbook;
(e) As the oath and singing of prayers is a part of value
education, as laid down by the State Government,
the Petitioner who is a teacher is duty bound to
participate in the session of 30 minutes of value
education.
13. The contention of the Petitioner/teacher is that he is
participating in the value education. The learned counsel appearing
for the Petitioner on instructions of the Petitioner has categorically
stated that the Petitioner is attending the prayers. He stated that the
Petitioner respectfully stands still without folding his hands at the time
when the prayers are being sung. He has stated that the Petitioner will
never show any disrespect to the prayers. His contention is that he is
also participating in the oath but without holding his hand in the front.
In his reply dated 29th February 2008 (ExhibitD
to the Writ Petition
No.1959 of 2013), he has specifically stated in Paragraph 7 that he
takes oath by mouth but he cannot be compelled to raise his hand. We
accept the said statements and in particular recorded in paragraph 10
above. The contention of the Petitioner/teacher is that the prayers
sung in the school are a part of religious education and that he cannot
be forced to stand with folded hands at the time of prayers. His
contention is that forcing him to fold his hands infringes his freedom of
speech and expression.
14. Perusal of the Government Resolution dated 3rd June 1997
shows that every school is required to impart value education for which,
a period of 30 minutes at the commencement of the day has been
reserved. The first 10 minutes of value education include singing of
prayers, National Anthem, patriotic songs and administration of oath.
It cannot be disputed that the value education is an integral part of the
curriculum of the school in the State. At this stage, it will be necessary
to make a reference to Rule 45 of the said Code which reads thus:
“Religious Instructions:
45.1 No religious instruction shall be provided in any
school wholly maintained out of state funds.
45.2 Nothing in Rule 45.1 above shall apply to a school
which is administered by the State but has been
established under any endowment or trust which
requires that religious instruction shall be imparted
in such school.
45.3 No person attending a school recognised by the
State or receiving aid out of State funds shall be
required to take part in any religious instruction
that may be imparted in such school or to attend
any religious worship that may be conducted in
such school or in premises attached thereto, unless
such person or, if such person is a minor, his parent
or guardian has given his consent thereto in writing
in either of the Forms 'A' or 'B', as the case may be
( given in appendix EIGHT), at the time of first
admission to the school.
45.4 No school shall use a school function or festival like
a school gathering; a prize distribution function, a
celebration in connection with a saint or a great
man, School Day, etc., for preaching any religion or
for other religious purposes.
45.5. The time spent by pupils on religious instructions or
observance, in any school recognised by the State or
receiving aid out of State funds, shall not be
deducted from the prescribed period of the
curriculum which shall be fixed on educational
considerations alone.
45.6 The expenditure on religious instructions in any
school recognised by the State of receiving aid out
of the State funds shall not be admitted for
purposes of grant.
45.7 The Inspecting Officer may, during the course of
inspection, visit classes where religious instruction
is given in school premises with a view to seeing
that the above condition are being fulfilled.
45.8 All schools shall impart education aimed at
inculcating ethical moral and social values and
developing right attitudes among the pupils.
45.9 All schools shall begin the day's work with the
community singing of the National Anthem ( Jana
Gana Mana).”
15. The provisions of Rule 45 of the said Code are consistent
with Article 28 of the Constitution of India. Article 28 of the
Constitution of India reads thus:
“28. Freedom as to attendance at religious instruction
or religious worship in certain educational
institutions
(1) No religion instruction shall be provided in any
educational institution wholly maintained out of
State funds
(2) Nothing in clause (1) shall apply to an
educational institution which is administered by
the State but has been established under any
endowment or trust which requires that religious
instruction shall be imparted in such institution
(3) No person attending any educational institution
recognised by the State or receiving aid out of
State funds shall be required to take part in any
religious instruction that may be imparted in
such institution or to attend any religious
worship that may be conducted in such
institution or in any premises attached thereto
unless such person or, if such person is a minor,
his guardian has given his consent thereto
Cultural and Educational Rights”.
16. The Petitionerteacher
has agreed that he will respectfully
stand still when the prayers are being sung and will not show any
disrespect whatsoever to the prayers . He has no objection for
administration of oath but he has objection to force him to hold his
hand in the front when the oath is being administered. He has no
objection for singing of prayers but his objection is to the action of
forcing him to stand with folded hands and to sing the prayers.
17. It will be also necessary to make a reference to Article 25 of
the Constitution of India which reads thus:“
25. Freedom of conscience and free profession,
practice and propagation of religion
(1) Subject to public order, morality and health
and to the other provisions of this Part, all
persons are equally entitled to freedom of
conscience and the right freely to profess,
practise and propagate religion
(2) Nothing in this article shall affect the operation
of any existing law or prevent the State from
making any law
(a) regulating or restricting any economic,
financial, political or other secular activity
which may be associated with religious
practice;
(b) providing for social welfare and reform or the
throwing open of Hindu religious institutions
of a public character to all classes and sections
of Hindus Explanation I The wearing and
carrying of kirpans shall be deemed to be
included in the profession of the Sikh religion
Explanation II In sub clause (b) of clause
reference to Hindus shall be construed as
including a reference to persons professing the
Sikh, Jaina or Buddhist religion, and the
reference to Hindu religious institutions shall
be construed accordingly”.
18. Articles 19 and 25 confer a freedom of conscience on a
citizen which is a fundamental right guaranteed by the Constitution of
India. As far as the freedom of speech and expression is concerned, it
guarantees the freedom to an individual from compulsion as to what he
shall think and what he shall say. In the present case, the contention
of the school authorities is that both the prayers have nothing to do
with religion and the prayers are secular in nature. The Petitioner is
of the view that the prayers are of religious nature. The Constitution
guarantees freedom of conscience. If an individual is of the view that
the prayers have religion overtone or are religious in nature and are
not consistent with his own religion or his beliefs , forcing him to sing
the prayers or forcing him to fold his hands when the prayers are being
sung will be a clear violation of fundamental rights guaranteed by the
Constitution of India of the freedom of speech and expression as well as
the freedom of conscience.
19. After having read both the prayers, we do find that there
can be a view that the prayers are not religious. In fact, one of the
prayers is by the well known and highly respected reformist, freedom
fighter and well known socialist leader Sane Guruji whose secular
credentials can never be disputed. Therefore, we cannot record a
finding that religious education or religious instructions are being
imparted in the school. Nevertheless the Petitioner has a freedom of
conscience and he cannot be compelled change his belief that the
prayers are religious in nature and to stand with folded hands when the
prayers are being sung. The freedom of conscience guaranteed to the
Petitioner protects him. He cannot be forced to stand with folded hands
when the prayers are being sung. But at the same time, he cannot
show disrespect to the prayers in as much as by showing disrespect, he
will be infringing the freedom of conscience of others and more
importantly being a teacher, he cannot violate the school discipline.
We have already pointed out that in one of his communications, the
Petitioner has stated that he participates and take oath but he cannot be
forced to hold his hand in the front.
20. Therefore, we are unable to accept the contention of the
school authorities that the Petitioner teacher indulged in indiscipline by
not folding his hands at the time when the prayers are being sung or by
not holding his hand in the front when the oath is administered. He is
entitled to hold a view that the prayers are religious or that the same
are not consistent with his religious faith.
21. At this stage, it will be necessary to make a reference to the
decision of the Apex Court in the case of Bijoe Emmanuel and others
(supra). The issue before the Apex Court was whether there is any
law which obliges everyone to sing National Anthem and everyone to
join singing of National Anthem. In paragraph 9, the Apex Court held
thus:
“9. We may at once say that there is no
provision of law which obliges anyone to sing
the National Anthem nor do we think that it is
disrespectful to the National Anthem if a person
who stands up respectfully when the National
Anthem is sung does not join the singing. It is
true Art. 51A(
a) of the Constitution enjoins a duty
on every citizen of India “to abide by the
Constitution and respect its ideals and institutions,
the National Flag and the national Anthem.”
Proper respect is shown to the National Anthem
by standing up when the National Anthem is
sung. It will not be right to say that disrespect
is shown by not joining in the singing.”
(emphasis added)
22. In paragraph 10, the Apex Court proceeded to observe
thus:
“10. Parliament has not been unmindful of 'National
Honour'. The Prevention of Insults to National
Honour Act was enacted in 1971. While S.2 deals
with insult to the Indian National Flag and the
Constitution of India, S.3 deals with the National
Anthem and enacts,
“Whoever, intentionally prevents the
singing of the National Anthem or causes
disturbance to any assembly engaged in
such singing shall be punished with
imprisonment for a term which may extend
to three years, or with fine, or with both.”
Standing up respectfully when the National
Anthem is sung but not singing oneself clearly
does not either prevent the singing of the National
Anthem or cause disturbance to an assembly
engaged in such singing so as to constitute the
offence mentioned in S.3 of the Prevention of
Insults to National Honour Act.”
(emphasis added)
23. The principles laid down by the Apex Court in the case of
Bijoe Emmanuel (supra) will apply and the Petitioner cannot be forced
to stand with folded hands when the prayers are being sung. Moreover,
not standing with folded hands at that time and not holding his hand
in front at the time when oath is administered cannot be treated as the
acts of indiscipline so long as the the petitioner does not show any
disrespect to the prayers and the oath. But the Petitioner has to respect
the freedom of conscience of others. Moreover, the Petitioner has to
observe the discipline of the school as the prayers and the oath are parts
of value education as per the directions contained in the Government
Resolution.
24. We, therefore, hold that though the Petitioner is bound by
the discipline of the school, at the time when the prayers are being sung
at the beginning of the day of the school, he cannot be forced to fold his
hands. He cannot be forced to hold his hand in the front at the time
when the oath is being administered. Forcing him to do so will be a
violation of fundamental rights conferred on him under the Constitution
of India.
25. We have perused the Confidential Reports of the Petitioner
for the relevant year. His Confidential Reports show that his
performance as a teacher is excellent. However, the Authorities have
found fault with him for not maintaining the discipline when the
prayers are being sung. We, concur with the findings recorded by the
Education Officer that the Petitioner fulfills the criteria for granting
higher payscale.
In the Confidential Reports, it is noted that as the
Petitioner was not folding his hands when the prayers are being sung,
his behaviour is not proper. The Education Officer is right in holding
that the Petitioner cannot be forced to sing the prayers and to fold his
hands. At the same time, the Petitioner will have to ensure that the
school discipline is maintained.
26. We must note here that pending the Petitions, the Appeal
preferred by the Respondent Nos.6 and 7 was decided by the Deputy
Director of Education. When this Court was seized of the matter, the
Deputy Director of Education ought not to decided the Appeal and,
therefore, we have kept the said order out of consideration.
27. Hence, we pass the following order :
ORDER :
(a) We direct the sixth and seventh Respondents in Writ
Petition No.1959 of 2013 to implement the order
dated 16th October 2010 (ExhibitK
in Writ Petition
no.1959 of 2013) within a period of eight weeks
from today;
(b) The Petitioner in Writ Petition No.1959 of 2013 has
completed 12 years of his service in June 2008.
Therefore, higher payscale
shall be granted in
accordance with law to the Petitioner from the date
on which he completed 12 years of his service;
(c ) Revised pay of the Petitioner shall be fixed and the
arrears payable up to 30th November 2013 shall be
paid to the Petitioner on or before 31st January 2014;
(d) The Petitioner shall be paid salary in the higher payscale
from December 2013 onwards;
(e) If the sixth and seventh Respondents fail to comply
with the order dated 16th October 2010 within the
time stipulated in this order, the Deputy Director of
Education, Nashik Road, Nashik shall ensure that
appropriate proceedings are initiated against the
Management of the school in accordance with law;
(f) The above directions will be without prejudice to the
right of the Petitioner to move the Court under the
Contempt of Courts Act, 1971;
(g) Writ Petition No.1959 of 2013 is allowed to the
above extent;
(h) Consequently the Writ Petition No.8125 of 2013 is
rejected.
( REVATI MOHITE DERE, J ) ( A.S. OKA, J )
P.T.O.
28. After the judgment was pronounced, the learned counsel
appearing for the sixth and seventh Respondents in Writ Petition
No.1959 of 2013 stated that on 21st September, 2013, the said
Respondents have passed a resolution for implementing the decision
dated 16th October, 2010 and the papers have been forwarded to the
concerned authorities. He states that the decision is to implement the
direction to pay higher pay scales to the Petitioner and proposals have
been forwarded on 23rd and 25th September, 2013 respectively. We
accept the said statements.
29. We direct the concerned authorities to take appropriate
decision on the said proposals.
30. In the event, the appropriate authorities do not take
prompt decision, it will be open for the sixth and seventh Respondents
to move this Court for extension of time fixed under this order for
making compliance.
( REVATI MOHITE DERE, J ) ( A.S. OKA, J )
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