Judgement 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
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.â€
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.[1965] INSC
209; , 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.[1988] INSC
350; , 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 groundsâ€.
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)
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