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:
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 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
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.
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 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.”
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:-
“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 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 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 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 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.
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.
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.
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 & 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.
24. The appeal lacks merit and is, accordingly, dismissed.
……………………………………………J.
(Dr. B.S. CHAUHAN)
..……………………………………………………J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
New Delhi,
September 14, 2012
