Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6463 OF 2012

Bhartiya Seva Samaj Trust Tr. Pres. & Anr. ..Appellants

Versus

Yogeshbhai Ambalal Patel & Anr. … Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1.This appeal has been preferred against the impugned judgment

and order dated 26.7.2012 passed by the High Court of Gujarat,

Ahmedabad in Letters Patent Appeal No.1367 of 2008 in Special

Civil Application No.6346 of 2006.

2.Facts and circumstances giving rise to this appeal are that:

Page 2 A. The appellant Trust runs a Primary School wherein a large

number of students are getting education and a large number of

teachers are imparting education. Respondent No.1 was appointed as

an Assistant Teacher on 1.7.1993 alongwith a large number of persons

in pursuance of the advertisement inviting application for the posts.

B. The appellant Trust issued a show cause notice dated

26.3.1998 to the respondent No.1 as why his services should not be

terminated and alongwith the said notice he was also given the cheque

towards salary for the month of March 1998. He was asked to submit

reply to the said notice within 15 days. The notice was issued on the

ground that he did not possess the eligibility for the said post and

proper procedure had not been followed for making the appointment.

C.The respondent No.1 did not submit any reply to the aforesaid

notice. Thus, the appellant Trust passed the order dated 30.4.1998

terminating his services on the ground that his appointment was in

contravention of the statutory provisions of Bombay Primary

Education (Gujarat Amendment) Act, 1986 (hereinafter referred to as

the ‘Act’) and particularly, in violation of the Schedule attached

thereto. Alongwith the order of termination, he was also served a

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Page 3 cheque for a sum of Rs.1710/- towards the salary for the month of

April 1998 and was directed to hand over the charge to the Principal.

D. Aggrieved, the respondent No.1 challenged the aforesaid

order by filing Application No.69/98 before the Gujarat Primary

Education Tribunal on 11.5.1998 and asked for quashing of the said

order and for reinstatement with all back wages. The appellant

contested the said application and submitted the written statement etc.

Parties were given the liberty by the Tribunal to examine

and cross-examine the witnesses examined by the parties. The

Tribunal vide judgment and order dated 21.1.2006 allowed the

application of the respondent No.1 directing the appellant to reinstate

him and also to pay him the back wages.

E.Aggrieved, the appellant filed Special Civil Application

No.6346 of 2006 before the High Court of Gujarat challenging the

said order of the Tribunal dated 21.1.2006.

F.The learned Single Judge vide order dated 13.11.2008

dismissed the said application filed by the appellant Trust on various

grounds, inter-alia, that the termination was in utter disregard of the

statutory provisions of Section 40B of the Act which requires to serve

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Page 4 a show cause notice to the employee and seeking approval of the

statutory authorities before giving effect to the order of termination.

G.Aggrieved, the appellant challenged the said judgment and

order by filing Letters Patent Appeal No.1367 of 2008 which has been

dismissed by order dated 1.12.2008.

Hence, this appeal.

3.Shri Percy Kavina, learned Senior Advocate appearing on

behalf of the appellant, has submitted that the respondent No.1

possesses the qualification of B.Sc.; B.Ed., but the required

qualification for a Primary School Teacher is Primary Teachers

Certificate (PTC) as provided in Clause (6) of Schedule F to the Act

as applicable to all Primary Schools in the State of Gujarat. Thus, the

respondent did not possess the qualification making him eligible for

the post. Once the order is bad in its inception, it cannot be sanctified

by lapse of time. The order of termination ought not to have been

interfered with as the order setting aside the same had revived the

wrong order of appointment, which is not permissible in law. The

courts below must have ensured strict compliance of the statutory

provisions of the Act and have swayed with unwarranted sympathy

with the respondent No.1. Thus, the appeal deserves to be allowed.

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Page 5 4.On the contrary, the respondent No.1 appeared in person as a

Caveator and has submitted that he had applied in pursuance of an

advertisement wherein the eligibility i.e. qualification was shown as

B.Sc.;B.Ed/B.A.;B.Ed. The vacancies had been advertised in local

newspaper having wide circulation. Most of the teachers in the

School run by the appellant had been appointed though they possessed

the same qualification i.e., B.Sc.;B.Ed./B.A.;B.Ed. A large number of

candidates had applied for the post alongwith respondent no.1

possessing the same qualification and they had been selected. None

of them has been removed. The respondent No.1 had been given

hostile discrimination as the teachers having the same qualification

duly appointed alongwith respondent No.1 are still working in the

appellant’s School. Respondent No.1 had been chosen to be removed

for extraneous reasons and had been deprived of his legitimate dues.

His selection was made by the Committee consisting of the

representatives of the appellant Trust as well as Government officials

after being fully satisfied regarding the eligibility of the respondent

No.1. The appellant Trust cannot be permitted either to make

discrimination amongst employees or to take the benefit of its own

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Page 6 mistake and that too at such a belated stage. The appeal lacks merit

and is liable to be dismissed.

5.We have considered the rival submissions made by learned

counsel for the parties and perused the record.

Section 40B of the Act reads as under:-

Section 40B: Dismissal removal or reduction in

rank of teachers:- (1)(a) No teacher of a

recognized private primary school shall be

dismissed or removed or reduced in rank nor

service be otherwise terminated until –

i)he has been given by the manager an

opportunity of showing cause against the

action proposed to be taken in regard to him;

and

ii)the action proposed to be taken in regard to

him has been approved in writing by the

administrative officer of the school board in

the jurisdiction of which the private school

is situated.

(b) The administrative officer shall

communicate to the manager of the school in

writing his approval of the action proposed, within

a period of forty five days from the date of receipt

by the administrative officer of such proposal.

(2)Where the administrative officer fails to

communicate either approval or disapproval within

a period of forty five days specified in clause (b) of

sub-section (1), the proposed action shall be

deemed to have been approved by the

administrative officer on the expiry of the said

period.”

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Page 7 6.The Tribunal as well as the High Court, after appreciating the

evidence on record, recorded the findings to the effect that there had

been two fold violation of Section 40B of the Act, firstly, no notice

was issued to the respondent No.1 and secondly, no approval from the

competent authority was sought for by the School management.

7.Shri Percy Kavina, learned Senior Advocate appearing on

behalf of the appellant, has fairly conceded to the effect that the said

statutory provisions of Section 40B of the Act had been violated on

both counts.

In view of the above, the facts and circumstances of the case do

not warrant review of the orders passed by the High Court as well as

by the Tribunal. However, Shri Percy Kavina has insisted that this

Court should not permit an illegality to perpetrate as the respondent

No.1 had been appointed illegally and he did not possess the

eligibility for the post. The Primary School children have to be taught

by qualified persons and this Court has consistently held that B.Sc.;

B.Ed./B.A.;B.Ed. is not equivalent to PTC which is the required

qualification in clause (6) of Schedule F attached to the Act. Clause

(6) of Schedule F reads as under:-

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Page 8 “Clause 6. Qualification – The Management shall

appoint only trained teacher who have passed the

Secondary School Certificate Examination and

also the Primary Training Certificate Examination.

For special subjects, teachers shall be

recruited in accordance with the qualification laid

down by the Government for such teacher under

the vacancies in the District Education Committees

or Municipal School Boards in the State from time

to time.”

Thus, it has been submitted by Shri Percy Kavina that in order

to enforce the statutory requirement, this Court should set aside the

impugned judgment and order as it has revived the illegal appointment

of the respondent No.1.

8.It is a settled legal proposition that the court should not set

aside the order which appears to be illegal, if its effect is to revive

another illegal order. It is for the reason that in such an eventuality the

illegality would perpetuate and it would put a premium to the

undeserving party/person. (Vide: Gadde Venkateswara Rao v.

Government of Andhra Pradesh & Ors., AIR 1966 SC 828; 

Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar &

Ors., AIR 1999 SC 3609; Mallikarjuna Mudhagal Nagappa & Ors.

v. State of Karnataka & Ors., AIR 2000 SC 2976; Chandra Singh

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Page 9 v. State of Rajasthan, AIR 2003 SC 2889; and State of Uttaranchal

& Anr. v. Ajit Singh Bhola & Anr., (2004) 6 SCC 800).

9.In State of Orissa & Anr. v. Mamata Mohanty, (2011) 3

SCC 436, this Court while considering the similar issue where

teachers had been appointed without possessing the eligibility has

held that if the appointment order itself is bad in its inception, it

cannot be rectified and a person lacking eligibility cannot be

appointed unless the statutory provision provides for relaxation of

eligibility in a particular statute and order of relaxation has been

passed in terms of the said order.

10.In Andhra Kesari Education Society v. Director of School

Education & Ors., AIR 1989 SC 183, this Court recognised the

importance of eligibility fixed by the Legislature in the said case,

pointing out that, as those persons have to handle with the tiny tods,

therefore, the teacher alone could bring out their skills and intellectual

activities. He is the engine of the educational system. He is a superb

instrument in awakening the children to cultural values. He must

possess potentiality to deliver enlightened service to the society. His

quality should be such as could inspire and motivate into action the

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Page 10 benefiter. He must keep himself abreast of ever-changing conditions.

He is not to perform in wooden and unimaginative way; he must

eliminate unwarranted tendencies and attitudes and infuse nobler and

national ideas in younger generation; and his involvement in national

integration is more important; indeed, indispensable.

11.In Bandhua Mukti Morcha v. Union of India & Ors., 1984

SC 802, this Court held that Article 21 read with Articles 39, 41 and

42 provides for protection and preservation of health and strength also

of tender age children against abuse of opportunities and further

provides for providing the educational facilities.

12.In Miss. Mohini Jain v. State of Karnataka & Ors., AIR

1992 SC 1858, this Court while dealing with this issue held that

without making “right to education” under Article 41 of the

Constitution a reality, the fundamental rights under Chapter III shall

remain beyond the reach of the large majority which are illiterate. The

State is under an obligation to make an endeavour to provide

educational facilities at all levels to its citizens. The right to education,

therefore, is concomitant to the fundamental rights enshrined under

Part III of the Constitution to provide educational institutions at all

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Page 11 levels for the benefit of the citizens. The Educational Institutions must

function to the best advantage of the citizens. Opportunity to acquire

education cannot be confined to the richer section of the society.

13.In Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh

& Ors., AIR 1993 SC 2178, this Court considered a large number of

judgments on this issue and came to the conclusion that the right to

education is contained in as many as three Articles in Part IV, viz.,

Articles 41, 45 and 46, which shows the importance attached to it by

the founding-fathers. Even some of the Articles in Part III, viz.,

Articles 29 and 30 speak of education. The Court further held that

right to compulsory and free education up to the age of 14 years is a

fundamental right of every child.

14.In view to have greater emphasis, the 86th Amendment in the

Constitution of India was made in 2002 introducing the provision of

Article 21-A, declaring the right to free and compulsory education of

the children between the age of 6 to 14 years as a fundamental right.

Correspondingly, the provisions of Article 45 have been amended

making it an obligation on the part of the State to impart free

education to the children. Amendment in Article 51-A of the

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Page 12 Constitution inserting the clause-‘k’ has also been made making it

obligatory on the part of the parents to provide opportunities for

education to their children between the age of 6 to 14 years.

15.Thus, in view of the above, it is evident that imparting

elementary and basic education is a constitutional obligation on the

State as well as societies running educational institutions. When we

talk of education, it means not only learning how to write and read

alphabets or get mere information but it means to acquire knowledge

and wisdom so that he may lead a better life and become a better

citizen to serve the nation in a better way.

The policy framework behind education in India is anchored in

the belief that the values of equality, social justice and democracy and

the creation of a just and humane society can be achieved only

through provision of inclusive elementary education to all. Provision

of free and compulsory education of satisfactory quality to children

from disadvantaged and weaker sections is, therefore, not merely the

responsibility of schools run or supported by the appropriate

Governments, but also of schools which are not dependent on

Government funds.

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Page 13 Every generation looks up to the next generation with the hope

that they shall build up a nation better than the present. Therefore,

education which empowers the future generation should always be the

main concern for any nation.

16.Right to education flows directly from Article 21 and is one of

the most important fundamental rights. In Ashoka Kumar Thakur v.

Union of India (2008) 6 SCC 1, while deciding the issue of

reservation, this Court made a reference to the provisions of Articles

15(3) and 21A of the Constitution, observing that without Article 21A

the other fundamental rights are rendered meaningless. Therefore,

there has to be a need to earnestly on implementing Article 21A.

Without education a citizen may never come to know of his

other rights. Since there is no corresponding constitutional right to

higher education – the fundamental stress has to be on primary and

elementary education, so that a proper foundation for higher education

can be effectively laid.

Hence, we see that education is an issue, which has been treated

at length in our Constitution. It is a well accepted fact that democracy

cannot be flawless; but, we can strive to minimize these flaws with

proper education.

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Page 14 Democracy depends for its very life on a high standard of

general, vocational and professional education. Dissemination of

learning with search for new knowledge with discipline all round must

be maintained at all costs.

17.This Court in State of Tamil Nadu & Ors. v. K. Shyam

Sunder & Ors., (2011) 8 SCC 737 held as under:

“In the post constitutional era, attempts have been made

to create an egalitarian society by removing disparity

among individuals and in order to do so, education is the

most important and effective means. There has been an

earnest effort to bring education out of

commercialism/merchantilism.

The right of a child should not be restricted only to 

free and compulsory education but should be extended to 

have quality education without any discrimination on 

economic, social and cultural grounds”.   

18.In view of the above, education and particularly that of

elementary/basic education has to be qualitative and for that the

trained teachers are required. The Legislature in its wisdom after

consultation with the expert body fixes the eligibility for a particular

discipline taught in a school. Thus, the eligibility so fixed require very

strict compliance and any appointment made in contravention thereof

must be held to be void.

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Page 15 19.In ordinary circumstances, the instant case could be decided in

the light of the aforesaid backdrop. However, the Division Bench of

the High Court has given full details of the teachers who had been

appointed alongwith the respondent No.1 in pursuance of the same

advertisement and possessing the same qualification of

B.Sc.;B.Ed./B.A.;B.Ed. They are still working with the same

management and some of them had been as under:

(i)Mrs. Rekhaben Virabhai Patel

(ii)Mrs. Urmilaben Chandrakantbhai Mistry

(iii)Mr. Dilipbhai Naranbhai Patel

(iv)Mrs. Ritaben Shaileshbhai Joshi

20.The High Court further recorded a finding that the list of such

persons was merely illustrative and not exhaustive.

21. A person alleging his own infamy cannot be heard at any

forum, what to talk of a Writ Court, as explained by the legal maxim

‘allegans suam turpitudinem non est audiendus'. If a party has

committed a wrong, he cannot be permitted to take the benefit of his

own wrong. (Vide: G. S. Lamba & Ors. v. Union of India & Ors.,

AIR 1985 SC 1019; Narender Chadha & Ors. v. Union of India &

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Page 16 Ors., AIR 1986 SC 638; Molly Joseph @ Nish v. George Sebastian

@ Joy, AIR 1997 SC 109; Jose v. Alice & Anr., (1996) 6 SCC 342;

and T. Srinivasan v. T. Varalakshmi (Mrs.), AIR 1999 SC 595).

This concept is also explained by the legal maxims

‘Commodum ex injuria sua nemo habere debet’; and 'nullus

commodum capere potest de injuria sua propria'. (See also: Eureka

Forbes Ltd. v. Allahabad Bank & Ors., (2010) 6 SCC 193; and

Inderjit Singh Grewal v. State of Punjab & Anr., (2011) 12 SCC

588).

22.Thus, it is evident that the appellant has acted with malice

alongwith respondent and held that it was not merely a case of

discrimination rather it is a clear case of victimisation of respondent

No.1 by School Management for raising his voice against

exploitation.

23.After going through the material on record and considering the

submissions made by learned counsel for the appellant and the

respondent No.1-in-person, we do not find any cogent reason

whatsoever to interfere with the aforesaid findings of fact.

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Page 17 24.The appeal lacks merit and is, accordingly, dismissed.

……………………………………………J.

(Dr. B.S. CHAUHAN)

..……………………………………………………J.

(FAKKIR MOHAMED IBRAHIM KALIFULLA)

New Delhi,

September 14, 2012

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