W.P. No. 358 of 2012. Case: Bharatiya Janata Party Vs State. High Court of Calcutta (India)
| Case Number | W.P. No. 358 of 2012 |
| Counsel | For Petitioner: K. Chanda, Mrs. D. Bharadwaj, Debajyoti Adhikari, Ms. Sumitra Das, C. R. Panda, Bimal Kr. Moitra, S. K. Nath, Asis Sanyal, Sourabh Guha Thakurta, Arnab Roy, Bikash Ranjan Bhattacharya, Samim Ahammed, Abhijit Kumar Chowdhury, Pinaki Bhattacharya, Advs. and For Respondents: Jayanta Kumar Mitra, Tapan Kumar Mukherjee, Mrs. Debjani ... |
| Judges | Pranab Kumar Chattopadhyay, J. and Murari Prasad Shrivastava , J. |
| Issue | Constitution of India - Articles 282, 15(1), 14, 266(3), 166, 226(3) |
| Citation | AIR 2013 Cal 215 |
| Judgement Date | September 02, 2013 |
| Court | High Court of Calcutta (India) |
Judgment:
Pranab Kumar Chattopadhyay, J.
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The Constitutional validity of the decisions of the Govt. of West Bengal to grant honorarium to the Imams and Muazzins of different Mosques in the State of West Bengal has been challenged in these writ petitions which have been filed as Public Interest Litigation before this court.
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All these writ petitions involve similar facts and identical questions of law. Therefore, the writ petitions were heard analogously and are being disposed of by this common judgment.
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In all these writ petitions legality, validity and propriety of the memorandum dated 9th April, 2012 issued by the Department of Minority Affairs and Madrasah Education, Govt. of West Bengal has been challenged whereby the State Government has offered to give honorarium of Rs. 2,500/- per month to Imams through Wakf Boad. Challenge has also been made to the decision of the State Government to pay monthly honorarium of Rs. 1000/- to Muazzins of Mosques. In the case of payment of honorarium to the Muazzins, no Government order had been issued.
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From the available records, we find that the Ministers of the State Government in the Cabinet Meeting took a decision to pay monthly honorarium of Rs. 1000/- to the Muazzins. In case of Imams however, a memorandum was issued by the Department of Minority Affairs and Madrasah Education, Govt. of West Bengal on 9th April, 2012 whereby the Government has offered to give honorarium of Rs. 2500/- per month to the Imams. The aforesaid memorandum dated 9th April, 2012 is set out hereunder:-
Government of West Bengal
Department of Minority Affairs and Madrasah Education
Writers' Buildings, Kolkata - 700 001
No. 220/SMAME/L/12 Date: 09.04.2012
MEMORANDUM
Imams of Mosques hold a very respectable position in the Muslim Community. They play a leading role in mobilisation of the community for good purposes including health, hygiene, and education and for promotion of various Government Schemes. However, many Imams in respect of West Bengal are living in a very pitiable condition without proper income and educational opportunities for their children due to lack of any initiative on earlier occasion.
The Government has been considering for some time to initiate a package including payment of suitable honorarium to Imams of West Bengal.
The Government in the Department of Minority Affairs and Madrasah Education hereby constitute a 'Task Force - for welfare of Imams' headed by Hon'ble Justice (Retd.) Janab Md. Abdul Ghani, Chairperson, Board of Wakf, West Bengal and comprising of following members:-
1. Maulana Quari Fazlur Rahman Sb.
2. Maulana Sayed Nurur Rahman Barkati Sb.
3. Peerzada Maulana Md. Toha Siddiqui Sb.
4. Moulana Shafique Quasmi Sb.
5. Maulana Quari Md. Noor Alam Sb.
6. Maulana Sayed Athar Abbas Rizvi Sb. and
7. One Imam from each district - to be nominated by Chairperson, Board of Wakf
8. C.E.O. - Member Convenor
9. G. H. Obaidur Rahman, Joint Secretary, M.A. and M.E. Department as departmental representative.
The Task Force will utilise the services of District Magistrates, District Officers Minority Affairs, BDOs, E.Os. of Municipalities as and when required.
The Government has offered to give honorarium of Rs.2,500/ per month to Imams through Wakf Board on receipt of recommendation in this regard from Task Force for welfare of Imams. Payment will be made through Bank Account.
The Task Force will submit its report within 2 (two) weeks regarding payment of honorarium.
The Imams of Mosques not enrolled with Board of Wakf will also be entitled to get this benefit. However, they will have to be registered initially with Board of Wakf for which the Board should start the process immediately. C.E.O., Board of Wakf will assess and send requirement of fund for honorarium and prepare a data base in the following format:
Name of Imam
Contact No.
Period of service and qualification
Name and Bank A/c No.
Name and full Address of Masjid
Land particulars of Masjid
If enrol with Board /E.C. No.
The Imams of those Mosques established before 1st January, 2012 will only be covered in this scheme.
The Government desires to pay honorarium in terms of this Memorandum with effect from April 14th, 2012 (Baisakh 1, 1419)
Sd/=
Special Secretary in Charge,
Minority Affairs and Madrasah Education Department
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Ministers of the West Bengal Government in the Cabinet Meeting held on May 2, 2012 took a decision for payment of monthly honorarium of Rs. 1000/- to the Muazzins. Aforesaid decision of the Cabinet is reproduced hereunder:-
"Decision in Cabinet
held on May 02, 2012
Item No.30 Department: Minority Affairs and Madrasah Education
Subject: Discussion on payment of 'Honorarium' to Muazzins of Mosques.
Decision: The State Government has already taken a decision, in principle, to pay a monthly honorarium of Rs.2,500/- (Rupees Two thousand and five hundred) only to Imams of mosques through the Wakf Board.
It was felt that the Muazzins who also play an effective role by assisting the Imams in mobilizing the community for implementation of various programmes of the Government should be paid a monthly honorarium of Rs.1,000/- (Rupees one thousand) only, and the payment be made through the Wakf Board.
The proposal was agreed in principle and it was decided that the Department of Minority Affairs and Madrasah Education would send a proposal to Finance Department in this regard.
Sd/-
(Mamata Banerjee)
Chief Minister/ Presiding Minister"
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The writ petitioners in W.P. No. 358 of 2012 namely, the Bharatiya Janata Party and others challenged the aforesaid memorandum dated 9th April, 2012 on the ground that the same was issued by the Govt. of West Bengal in clear conflict with the decision of the Hon'ble Supreme Court in the case of All India Imam Organization and Ors. v. Union of India and Ors., reported in AIR 1993 SC 2086 as well as the subsequent orders passed by the Hon'ble Supreme Court in connection with the aforesaid judgment.
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Mr. Koushik Chanda, learned advocate of the Bharatiya Janata Party submitted that the State Government is making the payment pursuant to the aforesaid memorandum through Wakf Board and the said Wakf Board out of its own fund is not making any payment to the Imams.
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Mr. Chanda further submitted that in view of the aforesaid decision of the Hon'ble Supreme Court in the case of All India Imam Organization and Ors.(AIR 1993 SC 2086) (supra), it is the duty of the wakf board to pay honorarium/remuneration to the Imams out of its own fund.
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The learned advocate representing the Bharatiya Janata Party also submitted that by issuing the aforesaid memorandum dated 9th April, 2012, the State Government is making payment of the honorarium out of religious considerations which, according to the said learned counsel, offends Articles 14 and 15 (1) of the Constitution of India. Mr. Chanda further submitted that the Hon'ble Supreme Court in the aforesaid case of All India Imam Organization and Ors. (AIR 1993 SC 2086) (supra) specifically considered the issue whether the Imams should be paid any remuneration and if so how much and by whom. Mr. Chanda also submitted that while deciding the aforesaid issue, Hon'ble Supreme Court specifically held that it was the duty of the Wakf Board to pay salary to the Imams. Mr. Chanda relied on Paragraph-5 of the aforesaid decision of the Supreme Court in the case of All India Imam Organization and Ors.(AIR 1993 SC 2086) (supra).
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Referring to the aforesaid decision, Mr. Chanda submitted that the Hon'ble Supreme Court in the aforesaid decision specifically directed the Union of India and Central Wakf Board to prepare a scheme for making payment to the Imams upon considering the nature of duty, qualification and category of Mosques to which the said Imams are attached. In terms of the aforesaid judgment of the Hon'ble Supreme Court, a scheme was framed prescribing different pay scales for the Imams in India, according to their duties and qualifications. Thereafter, an application was filed before the Supreme Court in connection with the aforesaid case of All India Imam Organization and Ors. (AIR 1993 SC 2086) (supra) and Hon'ble Supreme Court directed to issue notice to each of the States to indicate whether Tribunals under Section 83 of the Wakf Act, 1995 had been constituted and if not then why it had not been so constituted.
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Mr. Chanda thereafter relied on the order passed by the Hon'ble Supreme Court on 3rd February, 2003 whereby the Hon'ble Supreme Court disposed of the interlocutory applications filed on behalf of the All India Imam Organization and Ors. (AIR 1993 SC 2086) (supra) by directing the said petitioners that if they have any grievance with regard to the implementation of the scheme then it would be open for them to approach the concerned Tribunal which has been established under Section 83 of the Wakf Act, 1995.
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Referring to the aforesaid orders Mr. Chanda submitted that it is open to the Imams of West Bengal to apply before the Tribunal for payment of their salary/remuneration, according to the scheme, if not already paid. Mr. Chanda specifically urged before this court that the judgment of the Hon'ble Supreme Court in the aforesaid case of All India Imam Organization and Ors.(AIR 1993 SC 2086) (supra) casts an obligation upon the Wakf Board to pay the salary/remuneration to the Imams and the State Government has, therefore, no obligation in this regard. Mr. Chanda submitted that the law laid down by the Hon'ble Supreme Court is the law of the land and the same will prevail over the memorandum issued by the State Government.
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Mr. Chanda also submitted that the aforesaid memo dated 9th April, 2012 has been issued pursuant to certain extraneous considerations. The learned advocate of the Bharatiya Janata Party submitted that Imams are expected to look after the cleanliness of mosque, call Azans from the balcony of the minarets to the whole religious meetings and propagate...
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