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PETITIONER: ALL INDIA IMAM ORGANISATION AND ORS.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT13/05/1993

BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) RAMASWAMY, K.

CITATION:  1993 AIR 2086            1993 SCR  (3) 742  1993 SCC  (3) 584        JT 1993  Supl.    536  1993 SCALE  (2)955

ACT: Wakf  Act  1954:  Ss  15,36-Payment of  wages  to  Imams  in mosques-Held,  it is the responsibility of the  Wakf  Board- Directions  to Union of India and the Central Wakf Board  to prepare  a scheme within six months for different  types  of mosques-Constitution of India, Articles 21, 14 and 23.

HEADNOTE: A  petition was filed in this court by Imams  for  enforcing their fundamental right against exploitation by Wakf Boards. Their  claim was based on the glaring disparity between  the nature  of  work  and  the  amount  of  remuneration.    The petitioners sought a direction to the Central and State Wakf Boards  to  pay them basic wages.  A higher  pay  scale  was claimed for degree holders. The  Union of India and various State Wakf  Boards  disputed the manner of their appointment, their right to receive  any payment,  and  absence  of any relationship  of  master  and servant.    It  was  variously  contended  that  they   were appointed  by Mutwallis, or in some cases by the  people  of the locality where the mosques were situated, and not by the Wakf  Boards;  that under Islamic religious practice  it  is voluntary service and there is no entitlement to emoluments; that  a certificate from a registered institution is  not  a necessary requirement for leading in prayer.  It was further contended that the Wakf Boards faced financial difficulties. The  Punjab  Wakf  Board stated that  Imams  of  mosques  in Punjab, Haryana and Himachal Pradesh were paid on the  basis of their qualification.  A pay scale was indicated, and  the Imams were paid regularly and treated as regular employees. Allowing the petition, this Court, HELD:(1)  By Section 15 of the Wakf Act, the Wakf  Board  is vested  not only with supervisory and administrative  powers over  the  Wakfs but even the financial power vests  in  it. One of the primary duties is to ensure that the income  from the Wakf is spent on carrying out the purposes for which the 743 Wakf was created.  Mosques are Wakfs and are required to  be registered  under  the Act, over which the  Board  exercises control.   Purpose of their creation is  community  worship. The  principal functionary to undertake it is the Imam.   It

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is  the  responsibility of the Wakf Board to  ensure  proper maintenance  of  religious  service in a  mosque.   To  say, therefore, that the Board has no control over the mosque  or Imam is not correct. (747-G-H, 748A) (2)  In a series of decisions rendered by this Court it  has been  held that right to life enshrined in Article 21  means right to live with human dignity.  It is too late in the day to urge that since Imams perform religious duties, they  are not entitled to emoluments. (748-E) (3)  Financial  difficulties of the  institution  cannot  be above  fundamental right of a citizen.  If the  Boards  have been  entrusted with the responsibility of  supervising  and administering  the  Wakf then, it is their duty  to  harness resources  to  pay  those  persons  who  perform  the   most important  duty  namely  of leading community  prayer  in  a mosque, the very purpose for which it is created. (748-H) (4)  The  Union of India and the Central Wakf Board  are  to prepare a scheme within a period of six months in respect of different types of mosques: (7497-H)               The scheme shall take guidance from the  scale               of  pay  prevalent  in the  State  Punjab  and               Haryana. (749-D)               Mosques  under control of the government  will               not he governed by this order except if  their               Imams  are not paid any remuneration and  have               no   independent   means   of   income.    The               Government  may then fix their  emoluments  on               the basis as the Central Wakf Board may do for               other mosques. (749-C) The  State Boards shall ascertain the income of each  mosque and  the  number and nature of Imams required-full  time  or part time-and their payment is directed. (749-E) The scheme shall take account of mosques which are small, or in  the  rural area, or which have no source of  income  and find 744 ways to raise income. (749-G) The  order  for payment to Imams shall come  into  operation from 1 December 1993.  Every State Board shall implement the scheme. (749-H, 750-A)

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition (c) No. 715 of 1990. Under Article 32 of the Constitution of India. Gobinda  Mukhoty,  R.K.  Jain, Yusuf  H.  Machhale,  Ms.  K. Amreswari, (N.P) R.N. Sachthey, N.N. Goswamy, Ashwani kumar, Mukesh  K.Giri,  A.K. Sharma, B.K. Prasad,  (N.P)  Ms.  Anil Katiyar,  Ms.  Niranjana  Singh, S.  Wasim  A.  Qadri,  B.K. Prasad,Nafis  Ahmad  Siddiqui,Asoar  Ali  Khan,A.S.  Bhasme, E.M.S. Anam, Sakil Ahmed Syed, Anil K. Jha, Raj Kumar Mehta, S.K.  Agnihotri,  B.R. Jad, Anip Sachthey, Syed  Ali  Ahmed, Syed  Tanweer Ahmad, Mohan Pandey, M. Veerappa,  K.H.  Nobin Singh S. K. Mehta, Dhruv Mehta, Aman Vachher, P. K. Manohar, B. B. Singh, Aruneshwar Gupta and R.Mohan for the  appearing parties. The Judgment of the Court was delivered by R.M. SAHAI, J. Imams,incharge of religious activities of the mosque’(1)  have  approached  this court  by  way  of  this, representative,   petition   under   Article   32   of   the Constitution  for enforcement of fundamental  right  against their  exploitation  by  Wakf  Boards.   Relief  sought   is direction  to  Central and State Wakf Boards  to  treat  the petitioner  as employees of the Board and to pay them  basic

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wages to enable them to survive.  Basis of claim is  glaring disparity   between  the  nature  of  work  and  amount   of remuneration.   Higher  pay  scale  is  claimed  for  degree holders. Imams  perform  the  duty of  offering  prayer  (Namaz)  for congregation  in  mosques.   ’Essentially the  mosque  is  a centre  of  community worship where Muslims  perform  ritual prayers  and where historically they have also gathered  for political, social and cultural functions’. (2) The functions of  the mosque is summarised by the 13th Century jurist  Ibn Taymiyah  ’as  a.  place  of  fathering  where  prayer   was celebrated and when public affairs were conducted’. (3) ’All mosques  are where Muslim men on an equalitarian basis  rich or  poor,  noble or humble, stand in rows to  perform  their prayers behind the imam (4) 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 the Islamic faith.  They are expected to be 745 well  versed  in the Shariat, the holy Quran,  the  Hadiths, ethics, philosophy, social, economic and religious  aspects. "Imam or prayer leader is the most important appointee.   In the  early days the ruler himself filled this role;  he  was leader  (imam) of the government of war, and of  the  common salat  ("ritual  prayer").   Under the  Abbasids,  when  the caliph  no  longer conducted prayers on a regular  basis,  a paid  imam  was appointed.  While any prominent  or  learned Muslim  can have the honor of leading prayers,  each  mosque specifically  appoints  a  man well  versed  in  theological matters  to  act  as  its imam.  He  is  in  charge  of  the religious  activities of the mosque, and it is his  duty  to conduct prayers five times a day in front of Mihyab’. (5) On nature  of  the duties performed by the imams  there  is  no dispute.  But both the Union of India and various State Wakf Boards  of different States which have put in appearance  in response  to the notice issued by this Court have  seriously disputed  the manner of their appointment, right to  receive any  payment and absence of any relationship of  master  and servant.   It  is  stated that the  imams  or  muazzins  are appointed  by  the Mutwallis.  According to  them  the  Wakf Boards have nothing to do either with their, appointment  or working.   It  is  claimed  that  under  lslamic   religious practice they are not entitled to any emoluments as a matter of  right  as  the Islamic law ordains the  imams  to  offer voluntary service.  They are said to be paid some money  out of the donations received in mosques or by the Mutwallis  of the  Boards.   Their job is stated to be  honorary  and  not paid.   Nature  of duty under Islamic Sharjat is  stated  to lead prayers which is performed voluntarily by any  suitable Muslim without any monetary benefit.  Some of the affidavits claim  that  they are appointed by people of  the  locality. The Union Government has specifically stated that the  Islam does  not  recognise the concept of priesthood as  in  other religions and the selection of imams is the sole prerogative of  the  members  of the local  community  or  the  managing committee,  if any, of the mosque.  According  to  Karnataka Wakf  Board  Imamate in the mosque is not considered  to  be employment.   The allegation of the petitioners that due  to meagre  payment  they  are humiliated  or  insulted  in  the society,  is  denied  and  it  is  claimed  that  they   are respectable  persons who carry on the duty of Imamate  as  a part  of  religious activity and not for earning  bread  and butter.    The  Delhi  Wakf  Board  pointed  out  that   the honorarium  is  paid to an imam as a consideration  for  his five  time presence in the mosque regularly and  punctually.

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The Board has denied any right to exercise an authority over the  mosque  where imams and muazzins are appointed  by  the mutwallis or by the managing committees.  It is stated  that holding  of a certificate from a registered  institution  to enable  a person to lead the prayer is not necessary as  the only requirement for being an imam under the Sharjat is to (1) to (5) The Encyclopedia of Religion Vol. 10 p- 121-122 746 have a thorough knowledge of the holy Quaran and the  rites, rules   and  obligations  required  for   offering   prayers according  to  the  principles laid down by  the  Kuran  and Sunnah.   The  affidavit filed on behalf of Wakf  Board  has pointed   out  that  mosque  can  be  categorised  in   five categories,   one,  which  are  under  direct   control   or management  of  the Government such as Mecca Masjid  or  the mosque  situated in public garden which are not governed  or regulated  by the Muslim Wakf Board’, second, mosques  which are  under  the  direct management of  Wakf  Board-,  third, mosques  which  are  under the control  of  mutwallis  under various  Wakfs  according to the wishes of the Wakf  as  the creator   of  the  Wakf,  fourth,  mosques  which  are   not registered  with  the Wakf Board and are  managed  by  local inhabitants  and are under the management of the public  who offer prayers regularly in a particular mosque-, and  fifth, mosques which are not managed by mutwallis or the  Muslin-is of  the  locality.  It is claimed that imams of  fourth  and fifth  category are not regular and any Muslim can lead  the prayers, whereas under the third category mosques are having regular  imams.  Financial difficulty of the Wakf  Board  to meet the demand has also been pointed out.  The  Pondicherry Wakf  Board has pointed that there is not even one  employee except  a  peon working therein and, therefore,  it  is  not possible to meet the demand of the imam.  It is also claimed that  the Board has no control over the pesh-imams  as  they are  considered  to  be well dignified  personality  of  the society  and  they  are  given due  respect  by  the  Muslim community as a whole.  In the counter-affidavit filed by the Punjab  Wakf Board it has been stated that imams of  mosques in  Punjab were being paid on basis of their  qualification. Imam: Nazara (Muntaii grade) are in the scale of Rs. 380-20- 58O25-830-30-980, whereas Imams Hafiz (Wasti grade),are paid Rs. 445-20-645-25895-30-1045, and Imam Alim (Muntaii  grade) are  paid Rs. 520-20-720-25-97030-1120.  They are also  paid Rs.30 per month medical allowance and muazzins are paid  Rs. 310   per  month.   These  scales  were  revised  in   1992. According  to  them  imams of all  the  mosques  in  Punjab, Haryana  and  Himachal Pradesh which come under  the  Punjab Wakf Board are being paid regularly and they are treated  as regular  employees.  The Sunni Central Wakf Board of  ’Uttar Pradesh filed only a Written submission stating that all the sunni  mosques  were managed by mutwallis of  the  concerned managing committees and not by the Wakf Board. The  mosque  differs  from  a church or  a  temple  in  many respects.Ceremonies and service connected with marriages and birth  are never performed in mosques.  Tile rites that  are important  and integral functions of many churches  such  as confessions,  penitencies and confirmations do not exist  in the mosques. (6) Nor any offerings are made as is common  in Hindu temples.  ’In Muslims countries mosques are subsidized by  the  States,  hence  no collection  of  money  from  the community  is permitted.  The Ministry of Wakf  (Endowments) appoints the 747 servant,  preachers  and readers of the Koran.   Mosques  in non-Muslim  countries are subsidised by  individuals.   They

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are administered by their founder or by their special  fund. A  caretaker  is  appointed to keep the  place  clean.   The muazzin  cells to prayer five times a day from the  minaret. (7)  In  our  country in 1954 Wakf Act  was  passed  by  the Parliament  for  better administration  and  supervision  of Wakfs.   To  achieve  the objective of  the  Act  Section  9 provides for establishment of a Wakf Board the functions  of which  are  detailed in Section 15.  Sub-section (1)  of  it reads as under               "(1)  Subject  to any rules that may  be  made               under  this Act, the (general  superintendence               of  all  wakfs  in State in  relation  to  all               matters,  except  those  which  are  expressly               required  by this Act to be dealt with by  the                             Wakf  Commissioner,  shall vest) in  the  Boar d               established for the State; and it shall be the               duty  of the Board so to exercise  its  powers               under  this  Act as to ensure that  the  Wakfs               under   its   superintendence   are   properly               maintained controlled and administered and the               income thereof is duly applied to the  objects               and  for the purposes for the objects and  for               the purposes for which such wakfs were created               or intended:               Provided  that in exercising its powers  under               this  Act  in respect of any wakf,  the  Board               shall act in conformity with the directions of               the  Wakf,  the purposes of the wakf  and  any               usage or custom of the wakf sanctioned by  the               Muslim law".               Clause  (b)  of Sub-section  (2)  obliges  the               board  "to  ensure that the income  and  other               property of a wakf are applied to the  objects               and  for the purposes for which that wakf  was               created or intended". The   board  is  vested  not  only  with   supervisory   and administrative powers over the wakfs but even the  financial power  vests in it.  One of its primary duties is to  ensure that  the income from the wakf is spent on carrying out  the purposes for which wakf was created. Mosques  are wakfs and are required to be  registered  under the Act over which the board exercises control.  Purpose  of their creation is community, worship.  Namaz or Salat is the mandatory  practice observed in every mosque..  "(Among  the Five  Pillars  (arkan;  so., rukn) of Islam,  it  holds  the second   most  import,  position,  immediately   after   the declaration of faith (shahadah) (8).  The’ (6)  & (7) Encyclopedia, Britannica Vol. 18 P. 883 (8)  The Encyclopedia of Religion Vol. 13 P. 20-21 748 principal  functionary  to undertake it is  the  Imam.   The objective  and  purpose  of  every  mosque  being  community worship  and it being the obligation of board under the  Act to  ensure that the objective of the wakf is carried on  the Board  cannot  escape  from its  responsibility  for  proper maintenance  of  religious  service in a  mosque.   To  say, therefore, that the Board has no control over the mosque  or Imam is not correct.  Absence of any provision in the Act or the  rules providing for appointment of Imam or laying  down condition of their service is probably because they are  not considered  as  employees.  At the same time  it  cannot  be disputed  that due to change in social and  economic  set-up they  too  need  sustenance.  Nature of their  job  is  such that,they may be required to be present in the mosque nearly

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for  the whole day.  There may be some who may  perform  the duty  as part of their religious observance.   Still  others may  be ordained by the community to do so.  But  there  are large number of such persons who have no other occupation or profession or service for their livelihood except doing duty as  Imam.  What should be their fate?  Should they  be  paid any remuneration and if so how much and by whom?   According to  the  Board  they are appointed  by  the  mutwallis  and, therefore,  any  payment by the board was out  of  question. Prima.facie it is not correct as the letter of  appointments issued in some states are from the Board.  But assuming that they are appointed by the Mutwallis the Board cannot  escape from its responsibility as the mutwallis too u/s. 36 of  the Act are under the supervision and control of the Board.   In series of decisions rendered by this Court it has been  held that  right to life enshrined in Article 21 means  right  to live  with  human  dignity.   It is too  late  in  the  day, therefore,  to  claim  or  urge  that  since  Imams  perform religious  duties they are not entitled to  any  emoluments. Whatever  may  leave  been the ancient concept  but  it  has undergone  change and even in Muslim countries  mosques  are subsidised  and the Imams are paid their  remuneration.   We are, therefore, not willing to accept the submission that in our  set up or in absence of any statutory provision in  the Wakf  Act the imams who look after the religious  activities of  mosques are not entitled to any remuneration.  Much  was argued  on  behalf of Union and the Wakf Boards  that  their financial  position  was  not such that they  can  meet  the obligations  of paying the imams as they are being  paid  in the  State of Punjab.  It was also urged that the number  of mosques  is so large that it would entail heavy  expenditure which  the boards of different States would not be  able  to bear.   We  do  not find any co-relation  between  the  two. Financial  difficulties of the institution cannot  be  above fundamental  right  of a citizen.  If the boards  have  been entrusted   with  the  responsibility  of  supervision   and administering  the  wakf then it is their  duty  to  harness resources  to  pay  those  persons  who  perform  the   most important  duty  namely  of leading community  prayer  in  a mosque the very purpose or which it is created. 749 In  the  circumstances  we allow this  petitions  and  issue following directions (i)  The  Union  of India and the Central  Wakf  Board  will prepare a scheme within a period of six months in respect of different  types  of mosques some detail of which  has  been furnished  in the counter affidavit filed by the Delhi  Wakf Board. (ii) Mosques which are under control of the Government shall not  be governed by this order.  But if their imams are  not paid  any remuneration and they have no independent  income. The Government may fix their emoluments on the basis as  the Central Wakf Board may do for other mosques in pursuance  of our order. (iii)   For   other   mosques,  except   those   which   are nonregistered  with the Board of their respective States  or which are not manned by members of Islamic faith the  scheme shall  provide  for payment of remuneration  to  such  Imams taking guidance from the scale of pay prevalent in the State of Punjab and Haryana. (iv)  The State Board shall ascertain income of each  mosque the  number and nature of Imams required by it  namely  full time or part time. (v) For the full time Punjab Wakf Board may be treated as  a guideline.  That shall also furnish guideline for payment to

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part time imam, (vi) In all those mosques where full time Imams are  working they shall be paid the remuneration determined in  pursuance of this order. (vii)  Part  time  and  honorary Imam  shall  be  paid  such remuneration  and  allowance  as  is  determined  under  the scheme. (viii) The scheme shall also take into account those mosques which  are  small or are in the rural area or  are  such  as mentioned  in the affidavit of Pondichery Board and have  no source  of income and find out ways and means to  raise  its income. (ix)  The  exercise should be completed and  the  scheme  be enforced within six months. (x) Our order for payment to Imams shall come into operation from 1st Dec., 750 1993.   In case the scheme it not prepared within  the  time allowed  then  it  shall operate  retrospectively  from  1st December, 1993. (xi)  The scheme framed by the Central Wakf Board  shall  be implemented by every State Board. The  Writ  Petition is decided accordingly.   Parties  shall bear their own costs. U.R.                           Petition allowed. 751