Bombay High Court

Laxminarayan Chotelal Ladhoriya ... vs The Union Of India And Ors on 25 January, 2018

Bench: S.S. Shinde

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                      WRIT PETITION NO.6545 OF 2008

 Laxminarayan s/o Chotelal Ladhoriya
 (Rathod), Age-Major, Occu:Social Worker,
 R/o-B-9, Thakur Niwas,
 Giriraj Housing Society,
 Kamgar Chowk, Pandharpur-Waladgaon,
 Tq. & Dist-Aurangabad.
                                 ...PETITIONER 
        VERSUS             

 1) The Union of India,
    Through the Secretary,
    Home Department, Raksha Bhavan,
    New Delhi,

 2) The State of Maharashtra,
    Through the Secretary,
    Home Department,
    Mantralaya, Mumbai-400 032,

 3) The Secretary,
    Adivasi Vikas Sachiwalaya,
    Mantralaya, Mumbai-400 032,

 4) The Divisional Commissioner,
    Aurangabad Division,
    Aurangabad,

 5) The Assistant Commissioner and
    Vice President, Scheduled Caste
    and Scheduled Tribes Caste 
    Validity Committee, Aurangabad.   
                                 ...RESPONDENTS




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                      ...
    Mr.A.S. Bayas Advocate for Petitioner.
    Mr.S.B. Deshpande, Assistant Solicitor 
    General, for Respondent No.1.
    Mr.S.B. Yawalkar, Additional Government
    Pleader for Respondent Nos.2 to 5.       
                      ...

               CORAM:  S.S. SHINDE AND
                       S.M. GAVHANE, JJ.

DATE : 25TH JANUARY, 2018

JUDGMENT [PER S.S. SHINDE, J.]:

1. This Petition under Article 226 of the

Constitution of India, is filed with following

prayers:

"B. To hold and declare that while not performing the Flag Hoisting on the specified dates as per the Flag Code of India, the respondent No.5 has shown disregard to the National Flag and the officer in charge be punished according to law and suitable departmental action be ordered to be initiated as against the erring officers for this omission for not doing the Flag hoisting since

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2001 till 2008 and here onwards, by issuance of a writ of Mandamus and or any other appropriate Writ, Orders or directions in the like nature.

C. To direct the respondent authorities to issue necessary directions to the respondent No.5 to do the Flag hoisting on the specified dates in future by issuance of an appropriate writ, orders or directions in the like nature."

2. The Petitioner claims that he is a social

worker. It is the case of the Petitioner that

Respondent No.5 - Scheduled Castes and Scheduled

Tribes Caste Validity Committee, Aurangabad is a

State Government establishment. As per the

provisions of the Flag Code of India, it is the

statutory and moral duty of every Government

officer to show due regard and respect to the

National Flag and National Anthem. The Petitioner

submits that since 2001 till 2008 Respondent No.5

Committee has not performed the Flag hoisting

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ceremony at its office on the specified dates like

26th January, 15th August and other such dates as

may be notified by the State Government like

Marathwada Mukti Sangram Din, Maharashtra Day etc.

Hence this Petition.

3. Learned counsel appearing for the

Petitioner submits that Respondent No.5 is the

office of the State Government, which is

established in Aurangabad since 2001. Learned

counsel submits that since its establishment,

Respondent No.5 is not performing Flag hoisting

ceremony in its office premises. He submits that,

in this respect, the Petitioner has filed several

representations to various authorities but no

cognizance was taken. He therefore prays that the

Petition may be allowed.

4. On the other hand, learned Additional

Government Pleader, referring to the earlier

affidavit-in-reply filed on behalf of Respondent

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No.5 by one Devdatta Digambarshastri Mayee,

serving as Joint Commissioner and Vice Chairman of

Scheduled Tribe Certificate Scrutiny Committee,

Aurangabad, submits that as per Clause 3.39 of the

Flag Code of India, 2002, normally the National

Flag should be flown only on important public

buildings, such as High Courts, Secretariats,

Commissioners' offices, Collectorates, Jails and

offices of the District Boards, Municipalities and

Zilla Parishad and Departmental/ Public Sector

Undertakings. In view of the fact that the office

of Respondent No.5 Scrutiny Committee, Aurangabad

was established in the year 2001 and situate in

the tenanted premises, there is no practice of

Flag hoisting at the office of Respondent No.5. It

is submitted that as per Clause 3.5 of the Flag

Code of India, wherever the Flag is flown, it

should occupy the position of honour and be

distinctly placed. In view of the fact that the

office of Scrutiny Committee is situated at Ground

Floor of a tenanted building, having occupied the

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front open space by large number of vehicles

parked by the family members and owners of said

building, it is difficult to follow the mandate of

Clause 3.5 of the Flag Code of India. It is

submitted that all the officers and staff members

of Respondent No.5 have a highest regard to the

National Flag. In the honour of National Flag at

the specified days for hoisting of National Flag

i.e. on 26th January, 1st May, 15th August, every

year all the officers and staff members of

Respondent No.5 Committee, Aurangabad used to

attend Flag hoisting ceremony at the office of

Superintendent, State Excise Department,

Aurangabad, which is in the same premises and

covered by one compound wall.

5. Learned Additional Government Pleader

referring to the additional affidavit-in-reply

filed on behalf of Respondent No.5 on 23rd

January, 2018, submits that in the year 2014

Respondent No.5 office has been shifted from the

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previous premises to new premises i.e. Plot No.10,

Sector F1, near St. Lawrence School, CIDCO,

Aurangabad. It is submitted that after the

transfer of the office in new premises, Respondent

No.5 office the officers and employees are

performing Flag hoisting ceremony in the office

premises. It is submitted that Respondent No.5

office is performing the Flag hoisting every year

and hence forth would perform the same on every

specified day.

6. Learned Additional Government Pleader

further submitted that the Petitioner has not

approached this Court with clean hands. The caste

validity claim of wife of the Petitioner was

rejected by Respondent No.5 Committee vide its

order dated 19th October, 2010. It is submitted

that the Petitioner has also filed complaint

against the officers of Respondent No.5 Committee

to the police station, Kranti Chowk, Aurangabad.

It is further submitted that inspite of pendency

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of this Petition, the Petitioner has also filed an

application under Right to Information Act on 22nd

January, 2018 seeking information with respect to

Flag Hoisting. It is submitted that Respondent

No.5 Committee is under obligation and it is its

boundant duty to perform the Flag hoisting.

Respondent No.5 Committee was performing Flag

hoisting and would also performing Flag hoisting

in future. It is therefore submitted that there is

no substance in the Writ Petition and the same

deserves to be rejected.

7. We have carefully considered the

submissions of the learned counsel appearing for

the Petitioner, learned Assistant Solicitor

General appearing for Respondent No.1 and learned

Additional Government Pleader appearing for

Respondent Nos.2 to 5. With their able assistance,

we have perused the grounds taken in the Petition,

annexures thereto, and the affidavits in reply

filed on behalf of the Respondents.

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8. Upon careful perusal of the affidavit in

reply filed on behalf of the Respondent No.5, it

is specifically stated by Respondent No.5 that

since 2001 till 2014 the office of Respondent No.5

was in a tenanted premises. In the said premises

there is office of the State Excise Department,

Aurangabad. On the specified days i.e. on 26th

January, 1st May, 15th August, and 17th September,

every year all the officers and staff members of

Respondent No.5 Committee used to attend Flag

hoisting ceremony at the office of State Excise

Department. In the further affidavit-in-reply

filed on behalf of Respondent No.5, it is stated

that in the year 2014 office of the Respondent

No.5 has been shifted from previous premises to

new premises at Cidco, Aurangabad and since then

every year the office of Respondent No.5 is

performing the Flag hoisting ceremony on the

specified days such as 26th January, 1st May, 15th

August and 17th September. Further, there is no

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denial to the averments in the additional

affidavit-in-reply filed by Respondent No.5 that

caste validity claim of the wife of the Petitioner

was pending before Respondent No.5 Committee and

vide order dated 19th October, 2010 the said caste

validity claim came to be rejected.

9. In the facts of this case, it would be

useful to refer to the exposition of law by the

Supreme Court in the case of Sarvadnya D. Patil

and another vs. State of Goa and others1. In Para 9

of the Judgment, it is observed that:

"9. As stated above, there is no statutory provision making it mandatory to hold the flag hoisting ceremony on 19th December, 2000 (Goa Liberation day) and hence no offence can be said to be committed.

Furthermore, the respondent No.4 has on oath stated that there was no intention on her part to cause in any manner insult or dishonour to the national flag. We accept her apology. The omission to hold the flag

1 [2002 (5) Mh.L.J. 430]

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hoisting ceremony on 19th December, 2000 was on account of circumstances beyond her control. The censure issued by the Education Department is sufficient compliance with the requirements of the Circular dated 22-1-1982 and no further action is called for. In view thereof, the petition is dismissed and disposed of."

10. In the present case, it is specifically

stated by Respondent No.5, on oath, that

henceforth every year they will perform the Flag

hoisting ceremony on the specified days. In the

peculiar facts and circumstances of this Case,

keeping in view the reply filed by Respondent

No.5, we are of the opinion that this Petition can

be conveniently disposed of with a note of caution

to Respondent No.5.

11. The explanation offered by Respondent

No.5 in the affidavit-in-reply appears to be

plausible. We do accept the same. However, we