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Judgment
This Writ Petition is filed by the Municipal Council, Achalpur, its President and Headmaster of the Higher Secondary School run by the Municipal
Council at Achalpur Camp, Partawada, District Amravati. By this petition, the petitioners have challenged order dated 30Â08Â2014, passed by the
Additional Commissioner, Amravati Division, whereby the Revision Petition filed by respondent no.3, a teacher in the said school, has been allowed
and order of the Collector, Amravati, has been set aside having the consequence of quashing and setting aside Resolution No.126 dated 26Â07Â2013,
passed by the Municipal Council concerning the manner of hoisting of National Flag in the school run by the Municipal Council.
A perusal of the said Resolution No.126 dated 26Â07Â2013, shows that the Municipal Council resolved to restore the procedure of hoisting of flag
on the building of the aforesaid school run by it. It is noted in the said resolution, that the flag always used to be hoisted on 26th January, 01st May and
15th August of each year on the building of the said school, but when the building was taken up for repairs, the flag was hoisted on the said dates in
the ground of the school. Since the building was repaired, by the said Resolution, the earlier practice was restored.
This resolution was made subject matter of challenge by respondent no.3, a teacher in the school, by approaching the Collector (respondent no.2),
under Section 308 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. The Collector called for a report
from the SubÂDivisional Officer in this context. The SubÂDivisional Officer submitted his report dated 21Â08Â2013, to the Collector stating that it
would be appropriate for hoisting the flag on the said days in the ground of the school and that if hoisting of the flag is done, accordingly on the ground,
Clauses 2.2 and 2.3 of the Flag Code, 2002, will be complied with.
The Collector passed order dated 22Â01Â2014, rejecting the application filed by respondent no.3 under Section 308 of the said Act. The Collector
directed the Chief Officer of the Municipal Council to scrupulously follow the requirements of the Flag Code.
Aggrieved by the same, the respondent no.3 filed Revision Petition before the Commissioner, under Section 318 of the said Act. By the impugned
order dated 30Â08Â2014, the Additional Commissioner has allowed the Revision Petition, set aside the order of the Collector and quashed and set
aside the aforesaid Resolution No.126 dated 26Â07Â2013, having the effect of prohibiting the petitioners from hoisting the flag on the school building
on the said days.
The petitioners filed the present Writ Petition challenging the said order of the Commissioner wherein this Court, on 22Â01Â2017, granted Rule and
interim relief in the form of stay of the order of the Commissioner.
Mr. Amol Patil, learned Counsel appearing for the petitioners, submitted that the impugned order passed by the Commissioner was wholly
unsustainable because it was based on a misÂinterpretation of the relevant provisions of the Flag Code, 2002. It was submitted that the hoisting of flag
in the school building did not cause any disrespect to the National Flag and that it was in substantial compliance of the provisions of the Flag Code. It
was submitted that the Commissioner had erred in holding that if the flag was hoisted on the school building and majority of students, parents, teachers
and nonÂteaching staff stood on the ground, it resulted in disrespect to the flag and that it was illogical or unceremonious. According to the learned
Counsel for the petitioners, the Flag Code is a set of instructions which broadly provides for the manner in which the National Flag is to be treated and
that the Resolution No.126 dated 26 07Â2013, passed by the Municipal Council, did not in any manner result in violation of the Flag Code and it
did not show any disrespect to the National Flag. It was further pointed out that the entire dispute had arisen out of a grudge that respondent no.3 held
against the petitioners. It is pointed out that the respondent no.3 being a teacher in the said school, had been initially granted permission to
simultaneously work as a Journalist. It was also pointed out that later such permission was withdrawn and further that there had been some
readjustment of his seniority. Due to this, he had developed a grievance against the petitioners and it was out of such personal vendetta that the issue
regarding alleged violation of the Flag Code was taken up by the aforesaid respondent. On this ground also, the petitioners sought to demonstrate the
error on the part of the authorities in entertaining the grievance sought to be made out by the respondent no.3.
On the other hand, Ms Khan, learned AGP appearing for respondent nos. 1 and 2, submitted that the Flag Code provided statutory and non
statutory guidelines in respect of the manner in which the National Flag was to be treated. It was submitted that following such guidelines it was
necessary to show respect to the National Flag. It was submitted that violation of specific guidelines contained in Clause 2.3 of Section II of the Flag
Code was evident in the present case because it was provided in detail as to the manner in which flag was to be hoisted in the school premises and
that hoisting of flag on the school building in the present case resulted in gross violation of the said provision. It was submitted that the allegations
made against respondent no.3 regarding his personal vengeance leading to the present proceeding was irrelevant because what was necessaryÂ
to be examined was whether the petitioners disrespected the National Flag by way of Resolution No.126 dated 26Â07Â2013, as it clearly violated
Clause 2.3 of the Flag Code.
The respondent no.3 was served on merits. But none has appeared on behalf of the said respondent, when this Writ Petition is heard finally.
In order to examine, whether the impugned order passed by the Additional Commissioner is unsustainable, it is necessary to refer to the Flag
Code. The said Code called as the Flag Code of India, 2002, is a collection of statutory provisions and non statutory instructions issued by the
Government from time to time concerning display of the National Flag and the manner in which such a symbol of honour is to be treated. The said
Code is divided into three parts. Part I contains general descriptions of the National Flag, Part II is divided into two parts and it is stated therein that
there shall be no restriction on the display of the National Flag by members of general public, private organizations, educational institutions etc and Part
III of the Code relates to display of the National Flag by the Central and State Governments and their organizations and agencies.
Clauses 2.2 and 2.3 of the Flag Code are relevant for the present case because they concern hosting of the National Flag in educational institutions
like the school in the present case. The said clauses read as follows :Â
“2.2 A member of public, a private organization or an educational ∙institution may hoist/display the National Flag on all days and occasions,
ceremonial or otherwise. Consistent with the dignity and honour of the National FlagÂ
(i) whenever the National Flag is displayed, it should occupy the position of honour and should be distinctly placed;
(ii) a damaged or dishevelled Flag should not be displayed;
(iii) the Flag should not be flown from a single masthead simultaneously with any other flag or flags;
(iv) the Flag should not be flown on any vehicle except in accordance with the provisions contained in Section IX of Part III ofthis Code;
(v) when the Flag is displayed on a speaker's platform, it should be flown on the speaker's right as he faces the audience or flat against the wall, above
and behind the speaker;
(vi) when the Flag is displayed flat and horizontal on a wall, the saffron band should be upper most and when displayed vertically, the saffron band
shall be on the right with reference to the Flag (i.e. left to the person facing the Flag); ,
(vii) to the extent possible, the Flag should conform to the specifications prescribed in Part I of this Code.
 (viii) no other flag or bunting should be placed higher than or above or side by side with the National Flag; nor should any object including flowers or
garlands or emblem be placed on or above the FlagÂmast from which the Flag is flown;
(ix) the Flag should not be used as a festoon, rosette or bunting or in any other manner for decoration;
(x) the Flag made of paper may be waved by public on occasions of important national, cultural and sports events. However, such paper Flags should
not be discarded or thrown on the ground after the event. As far as possible, it should be disposed of in private consistent with the dignity of the Flag;
(xi) where the Flag is displayed in open, it should, as far as possible, be flown from sunrise to sunset, irrespective of weather conditions;
(xii) the Flag should not be displayed or fastened in any manner as may damage it; and
(xiii) when the Flag is in a damaged or soiled condition, it shall be destroyed as a whole in private, preferably by burning or by any other method
consistent with the dignity of the Flag.
SECTION II
2.3 The National Flag may be hoisted in educational institutions (schools, colleges; sports camps, scout camps, etc.) to inspire respect for the Flag. A
model set of instructions for guidance is given belowÂ
(i) The School will assemble in open square formation with pupils forming the three sides and the FlagÂstaff at the centre of the fourth side. The
Headmaster, the pupil leader and the person unfurling the Flag (if other than the Headmaster) will stand three paces behind the Flag staff.
(ii) The pupils will fall according to classes and in squads of ten (or other number according to strength). These squads will be arranged one behind the
other. The pupil leader of the class will stand to the right of the first row of his class and the form master will stand three paces behind the last row of
his class, towards the middle. The classes will be arranged along the square in the order of seniority with the seniormost class at the right end.
(iii) The distance between each row should be at least one pace (30 inches); and the space between Form and Form should be the same.
(iv) When each Form or Class is ready, the Class leader will step forward and salute the selected school pupil leader. As soon as all the Forms are
ready, the school pupil leader will step up to the Headmaster and salute him. The Headmaster will return the salute. Then, the Flag will be unfurled.
The School pupil leader may assist.
(v) The School pupil leader in charge of the parade (or assembly) will call the parade to attention, just before the unfurling, and he will call them to the
salute when the Flag flies out. The parade will keep at the salute for a brief interval, and then on the command ""order"", the parade will come to the
attention position.
(vi) The Flag Salutation will be followed by the National Anthem. The parade will be kept at the attention during this part of the function.
(vii) On all occasions when the pledge is taken, the pledge will follow the National Anthem. When taking the pledge the Assembly will stand to
attention and the Headmaster will administer the pledge ceremoniously and the Assembly will repeat it after him.
(viii) In pledging allegiance to the National Flag, the practice to be adopted in Schools is as follows:Â
Standing with folded hands, all repeat together the following pledge:
I pledge allegiance to the National Flag and to the Sovereign Socialist Secular Democratic Republic for which it stands.â€
In the case of Union of India V Naveen Jindal and another, reported at (2004)2 SCC 510, the Hon'ble Supreme Court had an occasion to consider
the Flag Code and the manner in which the provisions of the said Code were to be interpreted and implemented. In the said judgment, the Hon'ble
Supreme Court considered the Flag Code in detail and gave the following conclusions :
“90. For the aforesaid reason, we hold that (i) Right to fly the National Flag freely with respect and dignity is a fundamental right of a citizen
within the meaning of Article 19(1) (a) of the Constitution of India being an expression and manifestation of his allegiance and feelings and sentiments
of pride for the nation; (ii) The fundamental right to fly National Flag is not an absolute right but a qualified one being subject to reasonable restrictions
under clause 2 of Article 19 of the Constitution of India; (iii) The Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention of
Insults to National Honour Act, 1971 regulate the use of the National Flag ; (iv) Flag Code although is not a law within the meaning of Article 13(3)(a)
of the Constitution of India for the purpose of clause (2) of Article 19 thereof, it would not restrictively regulate the free exercise of the right of flying
the national flag. However, the Flag Code to the extent it provides for preserving respect and dignity of the National Flag, the same deserves to be
followed. (v) For the purpose of interpretation of the constitutional scheme and for the purpose of maintaining a balance between the
fundamental/legal rights of a citizen visÂ`Âvis, the regulatory measures/restrictions, both Parts IV and IVA of the Constitution of India can be taken
recourse to.
Conclusion (iv) in the above quoted paragraph is relevant in the present case as it provides that although Flag Code is not a law within the meaning
of Article 13 (3) (a) of the Constitution of India, for the purpose of Clause (2) of Article 19 thereof, to the extent that it provides for preserving respect
and dignity of the National Flag, the same deserves to be followed. Apart from the aforesaid conclusion, the thrust of the aforesaid judgment of the
Hon'ble Supreme Court is that the symbols of honour like the National Flag must be given utmost respect and their dignity ought to be maintained.
In the present case, the petitioner Municipal Council, passed Resolution No.126 dated 26Â07Â2013, recording that since the school building was
now repaired, the earlier practice of hoisting the National Flag on terrace of the school building would be restored. It was also recorded in the said
resolution that during the period when the building was under repair, the flag was being hoisted on the ground in front of the school building.
Respondent no.3 has taken strong exception to restoration of the said practice of hoisting the flag on the building instead of the same being hoisted on
the ground in front of the school building. It is claimed that the practice of hoisting of flag on the school building amounts to disrespect to the National
flag. Although, the Collector by order dated 24Â01Â2014, rejected the application of respondent no.3 challenging Resolution No.126 dated 26Â07Â‐
2013, a direction was given that the provisions of the Flag Code should be followed scrupulously. In the impugned order, the Commissioner held
otherwise, setting aside the order of the Collector and quashing the aforesaid Resolution No.126 dated 26Â07Â2013, passed by the Municipal Council.
While doing so, the Commissioner held as follows :Â
“It is seen from the record of the Lower Court that the Respondent No.3ÂMunicipal Council, Achalpur has, vide his Resolution No.126, dated
26.7.2013, resolved to arrange the programme of hoisting of National Flag on the occasion of 26th January, 1st May and 15th August on the terrace of
Nagpur Parishad Higher Secondary School, Achalpur camp, Paratwada. However, at the time of hoisting the National Flag, the teaching, nonÂ‐
teaching staff and students are stand up and the ground of the School Building. At the time of hosting of National Flag on the terrace of School
Building, there is attendance of only four person on the terrace of the School Building. Those four persons can easily be accommodated on the ground
of the School Building at the time of hoisting of National Flag. Hoisting of National Flag on the ground of the School Building would be plausible to all
who attend the programme of hoisting of National Flag. It is also mentioned in the letter dated 21.8.2013 of the Sub Divisional Officer, Achalpur that
the Flag hoisting to be held on 26th January, 1st May and 15th August requires to be taken place on the open ground of the School Building as
provided u/s 2.2 and 2.3 of the Flag Code of India. Under these circumstances. It is required to arrange the programme of hoisting of National Flag on
the occasion of 26th January, 1st May and 15th August on the ground of the School Building instead of hoisting it on the terrace of the School Building.
The Respondent No.3 has, therefore, wrongly resolved to arrange the programme of hoisting of National Flag on the terrace of the School Building
and the said Resolution is also wrongly maintained by the Collector, Amravati vide his Order dated 22.1.2014. Thus, the said Resolution No.126, dated
26.7.2013, resolved by the Respondent No.3 as well as the Order of the Collector, Amravati dated 22.1.2014 are hereby quashed and set aside and
the Municipal Council, Achalpur is directed that all the Schools in its jurisdiction should hold National Flag hoisting programme on the School ground
only where majority of the students, their parents, teachers and non teaching staff of the School can stand/seat on the ground. It is illogical
unceremonial that all the students are stand on the ground and the few teachers are hosing flag on the terrace of the School Building. The spirit of the
flat hoisting is that maximum number of students salute the National Flag. They should see the flag hoisting ceremony. When Flag is hosted on the
terrace of the building and maximum students are standing on the playground, the very purpose is not served. Therefore, I direct the Municipal
Council, Achalpur that all the flag hoisting programme to be held only on the ground where maximum number of students are standing. Hence, the
following order in the matter.â€
In this backdrop, the question that arises for consideration is as to whether the Commissioner in the impugned order was justified in holding that
Clause 2.3 of the Flag Code was being violated by the petitioners by passing Resolution No.126 dated 26Â07Â2013 and following the procedure of
hoisting of flag on the school building in terms of the resolution. A perusal of Clause 2.3 of the Code shows that it is a model set of instructions given
to the educational institutions for guidance about hoisting of flag so as to inspire respect for the flag. In subÂclause (i) of Clause 2.3 of the Code, it
can be seen that the manner of assembling of the students is given in great detail and it has been provided as to the manner in which the Headmaster,
the pupil leader and the person unfurling the flag amongst school students and the students themselves would be placed when the flag would be
hoisted. It is nowhere stated in the said subÂclause of Clause 2.3 that the flag would necessarily have to be hoisted on the ground. There is reference
to assembly of students in the school in open square formation with pupils forming the three sides and the FlagÂstaff at the center of the fourth side. It
is relevant that sub clause (i) of Clause 2.2 of the Flag Code provides that whenever the national flag is displayed, it should occupy the position of
honour and should be distinctly placed.
The Commissioner in the impugned order, in the paragraphs quoted above has come to the conclusion that the manner of hoisting of flag by the
petitioners on the school building results in disrespect to the flag because majority of the students, parents, teachers and nonÂteaching staff of the
school are standing or sitting on the ground while the flag is hoisted on the terrace of the building, which is found by the Commissioner to be illogical
and unceremonious. It is further held that when the flag is hoisted on the terrace of the building and maximum students are standing on the playground,
the very purpose is not served. It is observed by the Commissioner that the spirit of flag hoisting is that maximum number of students salute the
national flag and they see the flag hoisting ceremony.
It appears that the Commissioner has taken exception to only 4 persons standing on the terrace where the flag is hoisted and that it would be better if
those four persons are also accommodated on the ground along with others and the flag is hoisted on the ground.
As noted in the aforesaid judgment of the Hon'ble Supreme Court in the case of Union of India vs. Naveen Jindal (supra) what was to be
examined was whether the national flag was being shown utmost respect and whether there was any action that indicated the flag being insulted or
not being given the expected respect. The Flag Code, although not being law, is expected to be followed so that the flag is shown due respect. A
reading of Clauses 2.2 and 2.3 of the Flag Code shows that the emphasis is on the flag being distinctly placed and it being visible to all the persons
when the flag is being hoisted. Sub clause (i) of Clause 2.3 of the Code gives minute details of the manner in which the Headmaster and the students
would act when the flag is being hoisted. A perusal of Resolution No.126 dated 26Â07Â2013 and the manner in which the flag is being hoisted in the
school building, in the present case, does not show that the flag is not being given its due position of honour. By hoisting flag on the terrace of the
building, it is certainly distinctly placed and it is clearly visible to those persons present when the flag is being hoisted. The Commissioner in the
impugned order has erred in holding that when maximum students remain standing on the playground while the flag is being hoisted, the very purpose
is not served.
It is difficult to understand how disrespect is shown to the flag if the students stand on the playground and the flag is hoisted on the terrace above
them, and it is distinctly placed as also clearly visible to all students. In fact, if at all, the students would look up to the flag being hoisted on the terrace
and they would be looking up to the flag with spirit of nationalism and pride in their heart and this would enhance respect for the flag. Mere presence
of only four persons on the terrace while others being on the playground also does not show any disrespect to the flag because these four persons also
admittedly stand below the flag and looking up to the flag. The hoisting of the flag on the terrace of the school building does not result in any
impediment to the students and their leaders standing in the formations specified in Clause 2.3 of the Flag Code. There is substantial compliance with
Clauses 2.2 and 2.3 of the Flag Code. In the present case, there is nothing to show that the persons present in the school and on the terrace when the
flag is hoisted on the school building are unable to view hoisting of the flag and it is clear that the flag occupies a position of honour and it is placed
distinctly on the school building.
The facts of the present case demonstrate that the findings rendered by the Commissioner in the impugned order are wholly unsustainable and that
the impugned order deserves to be quashed and set aside. This Court is not going into the question as to whether the issue arising in the present case
was the result of some personal vendetta, which the respondent no.3 had against the petitioners because the issue to be decided concerns honour of
the national flag and whether there is any violation of the Flag Code by the petitioners by passing Resolution No.126 dated 26Â07Â2013. It is found
that the petitioners have not violated the provisions of the Flag Code and the manner of hoisting the flag on the school building in terms of Resolution
No.126 dated 26Â07Â2013, does not amount to showing any disrespect to the National Flag.
In the light of the above, the present Writ Petition is allowed.
The impugned order dated 30Â08Â2014, passed by the Additional Commissioner, Amravati, is quashed and set aside and the Resolution No.126
dated 26Â07Â2013, is held to be valid. Rule is made absolute in above terms.