BHARTIYA SEVA SAMAJ TRUST TR. PRES. & ANR. versus YOGESHBHAI AMBALAL PATEL & ANR.

Citation: [2012] 7 S.C.R. 1054 · Decided: 14-09-2012 · Supreme Court of India · Bench: B.S. CHAUHAN · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
[2012] 7 S.C.R. 1054 
BHARTIYA SEVA SAMAJ TRUST TR. PRES. & ANR. 
V. 
YOGESHBHAI AMBALAL PATEL & ANR. 
(Civil Appeal No. 6463 of 2012) 
SEPTEMBER 14, 2012 
[DR. 8.5. CHAUHAN AND FAKKIR MOHAMED 
IBRAHIM KALIFULLA, JJ.] 
Service Law - Appointment - In challenge, for being 
C illegal - Primary school - Respondent-teacher had been 
terminated from service on the ground that he did not possess 
the eligible qualification - High Court set aside the termination 
order holding that it was in utter disregard of the statutory 
provisions of s.408 of the Act - In appeal before Supreme 
D Court, appellant-employer conceded that s. 408 had been 
violated, but pleaded that the order of High Court had revived 
the illegal appointment of respondent and such illegality 
cannot be permitted to perpetrate - Held: The court should not 
set aside the order which appears to be illegal, if its effect is 
E 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 -- Further, the 
Legislature in its wisdom after consultation with the expert body 
fixes the eligibility for a particular discipline taught in a school 
F - The eligibility so fixed requires very strict compliance and 
any appointment made in contravention thereof must be held 
to be void in the ordinary circumstances - However, in the 
instant case, some teachers appointed alongwith respondent 
in pursuance of the same advertisement and possessing the 
G same qualification as respondent still working with the same 
management - Evidence on record showed that appellant 
acted with malice - If a party has committed a wrong, he 
cannot be permitted to take the benefit of his own wrong - It 
was not merely a case of discrimination rather it was a clear 
H 
1054 
BHARTIYA SEVA SAMAJ TRUST TR. PRES. v. 
1055 
YOGESHBHAI AMBALAL PATEL 
case of victimisation of respondent by the school A 
Management for raising his voice against exploitation - Order 
of High Court therefore not interfered with - Bombay Primary 
Education (Gujarat Amendment) Act, 1986 - s.408 and 
Schedule F, Clause 6. 
Education - Elementary and primary education - Right 
to free and compulsory education of children - Obligation of 
the State - Held: Imparting elementary and basic education 
B 
is a constitutional obligation on the State as well as societies 
running Educational Institutions - Provision of free and 
compulsory education of satisfactory quality to children from 
C 
disadvantaged and weaker sections is not merely the 
responsibility of schools run or supported by the appropriate 
Governments, but also of schools which are not dependant 
on Government funds - Constitution of India, 1950 - Arts. 21, 
21A, 45 and 51A. 
Education - Requirement of trained teachers - Held: 
Education and particularly elementary/basic education has to 
be qualitative and for that trained teachers are required. 
D 
E 
Maxims - 'allegans suam turpitudinem non est 
audiendus', 'Commodum ex injuria sua nemo habere debet'; 
and 'nul/us commodum capere potest de injuria sua propria'. 
Respondent No.1 was an Assistant Teacher in a 
primary school run by the appellant-trust. It was alleged 
F 
that he did not possess the eligibility for the said post 
and proper procedure had not been followed for making 
his appointment. The appellant-trust terminated the 
services of respondent no.1 on the ground that his 
appointment was in contravention of the statutory 
G 
provisions of the Bombay Primary Education (Gujarat 
Amendment) Act, 1986 and particularly, in violation of the 
Schedule attached thereto. Respondent no.1 filed 
application challenging his termination order before the 
H 
1056 
SUPREME COURT REPORTS 
[2012] 7 S.C.R. 
A Gujarat Primary Education Tribunal and asked for 
reinstatement with back wages. The Tribunal allowed the 
application of respondent No.1. Aggrieved, the appellant 
filed application before the High Court which dismissed 
the same on grounds, that the termination was in utter 
B disregard of the statutory provisions of Section 40B of 
the Bombay Primary Education (Gujarat Amendment) Act, 
1986 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. 
c 
In the instant appeal, though conceding that the 
statutory provisions of Section 40B of the Act had been 
violated, the appellant pleade

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