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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:

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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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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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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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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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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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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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“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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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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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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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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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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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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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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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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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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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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