BHARTIYA SEVA SAMAJ TRUST TR. PRES. & ANR.versusYOGESHBHAI AMBALAL PATEL & ANR.

                        [2012] 7 S.C.R. 1054


A      BHARTIYA SEVA SAMAJ TRUST TR. PRES. & ANR.
                                    V.
              YOGESHBHAI AMBALAL PATEL & ANR.
                 (Civil Appeal No. 6463 of 2012)
                       SEPTEMBER 14, 2012
B
         [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.
                                                                   B
     Education - Elementary and primary education - Right
to free and compulsory education of children - Obligation of
the State - Held: Imparting elementary and basic education
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.                                                   D

    Education - Requirement of trained teachers - Held:
Education and particularly elementary/basic education has to
be qualitative and for that trained teachers are required.
                                                                   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 pleaded that this Court should not
  permit an illegality to perpetrate as respondent No.1 had
  been appointed illegally and he did not possess the
D eligibility for the post. The appellant submitted that
  respondent no.1 possesses the qualification of B.Sc.;
  B.Ed., but the required qualification for a Primary School
  Teacher was Primary Teachers Certificate (PTC) as
  provided in Clause (6) of Schedule F to the said Act as
E applicable to all Primary Schools in the State of Gujarat
  and thus, respondent no.1 did not possess the
  qualification making him eligible for the post. The
  appellant contended that in order to enforce the statutory
  requirement, this Court should set aside the impugned
F judgment as it revived the illegal appointment of
  respondent no.1.

        Dismissing the appeal, the Court

        HELD: 1. It is a settled legal proposition that the court
G 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. [Para 8) [1065-G-H]
H
     BHARTIYA SEVA SAMAJ TRUST TR. PRES. v.            1057
           YOGESHBHAI AMBALAL PATEL

     Gadde Venkateswara Rao v. Government of Andhra             A
Pradesh & Ors. AIR 1966 SC 828: 1966 SCR 172; Maharaja
Chintamani Saran Nath Shahdeo v. State of Bihar & Ors., AIR
1999 SC 3609: 1999 (3) Suppl. SCR 518; Mallikarjuna
Mudhagal Nagappa & Ors. v. State of Karnataka & Ors. AIR
2000 SC 2976: 2000 (3) Suppl. SCR 102; Chandra Singh            8
v. State of Rajasthan AIR 2003 SC 2889: 2003 (1) Suppl.
SCR 674 and State of Uttarancha/ & Anr. v. Ajit Singh Bhola
& Anr. (2004) 6 SCC 800: 2004 (2) Suppl. SCR 627 - relied
on.

     2.1. Further, imparting elementary and basic
                                                                c
education is a constitutional obligation on the State as
well as societies running educational institutions. 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         D
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       E
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                  F
generation should always be the main concern for any
nation. [Para 15] [1068-B-C-E-F]

    2.2. Right to education flows directly from Article 21
of the Constitution and is one of the most important            G
fundamental rights. There is a need to earnestly
implement 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
                                                                H
    1058   SUPREME COURT REPORTS             [2012] 7 S.C.R.


A elementary education, so that a proper foundation for
  higher education can be effectively laid. Hence, education
  is an issue, which has been treated at length in the Indian
  Constitution. It is a well accepted fact that democracy
  cannot be flawless; but, one can strive to minimize these
B flaws with proper education. Dissemination of learning
  with search for new knowledge with discipline all round
  must be maintained at all costs. [Para 16) [1068-F-H; 1069-
  A-C]

C       Ashoka Kumar Thakur v. Union of India (2008) 6 SCC
    1: 2008 (4) SCR 1 - relied on.

       State of Orissa & Anr. v. Mamata Mohanty (2011) 3 SCC
  436: 2011 (2) SCR 704; Andhra Kesari Education Society
  v. Director of School Education & Ors. AIR 1989 SC 183:
D 1988 (3) Suppl. SCR 893; Bandhua Mukti Morcha v. Union
  of India & Ors. 1984 SC 802: 1984 (2) SCR 67; Miss. Mohini
  Jain v. State of Karnataka & Ors. AIR 1992 SC 1858: 1992
  (3) SCR 658 and Unni Krishnan, J.P. & Ors. v. State of
  Andhra Pradesh & Ors. AIR 1993 SC 2178: 1993 (1) SCR
E 594 - referred to.

       3.1. Education and particularly elementary/basic
  education has to be qualitative and for that trained
  teachers are required. The Legislature in its wisdom after
F 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. [Para 18) (1069-G]

G     3.2. In ordinary circumstances, the instant case could
  be decided in the light of the aforesaid backdrop.
  However, 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
H and possessing the same qualification of B.Sc.;B.Ed./
     BHARTIYA SEVA SAMAJ TRUST TR. PRES. v.              1059
           YOGESHBHAI AMBALAL PATEL

B.A.;B.Ed.They are still working with the same                    A
management. The High Court further recorded a finding
that the list of such persons was merely illustrative and
not exhaustive. [Para 19, 20] [1069-H; 1070-A-B-D]

    State of Tamil Nadu & Ors. v. K. Shyam Sunder & Ors.
                                                                  B
(2011) 8 sec 737: 2011 (11) SCR 1094 - relied on.

     4.1. 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          C
cannot be permitted to take the benefit of his own wrong.
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'.
[Para 21] [1070-E-G]                                              D

     4.2. In the instant case, it is evident that the appellant
acted with malice and it is 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             E
for raising his voice against exploitation. There is no
cogent reason whatsoever to interfere with the order of
the High Court. [Paras 22, 23] [1071-A-B; 1070-H]

     G.S. Lamba & Ors. v. Union of India & Ors., AIR 1985
SC 1019: 1985 (3) SCR 431; Narender Chadha & Ors. v.              F
Union of India & Ors. AIR 1986 SC 638: 1986 (1) SCR 211;
Molly Joseph @ Nish v. George Sebastian@ Joy AIR 1997
SC 109: 1996 (6) Suppl. SCR 497; Jose v. Alice & Anr.
(1996) 6 SCC 342: 1996 (6) Suppl. SCR 768; T. Srinivasan
v. T. Varalakshmi (Mrs.) AIR 1999 SC 595; Eureka Forbes           G
Ltd. v. Allahabad Bank & Ors. (2010) 6 SCC 193: 2010 (5)
SCR 990 and lnderjit Singh Grewal v. State of Punjab & Anr.
(2011) 12 sec 588: 2011 (1 O) SCR 557 - relied on.

                                                                  H
    1060   SUPREME COURT REPORTS                [2012] 7 S.C.R.


A                        Case Law Reference:
        1966 SCR 172              relied on           Para 8
        1999 (3) Suppl. SCR 518 relied on             Para 8
        2000 (3) Suppl. SCR 102 relied on             Para 8
B
        2003 (1) Suppl. SCR 674 relied on             Para 8
        2004 (2) Suppl. SCR 627 relied on               Para 8
        2011 (2) SCR 704          referred to         Para 9
c
        1988 (3) Suppl. SCR 893 referred to           Para 10
        1984 (2) SCR 67           referred to         Para 11
        1992 (3) SCR 658          referred to         Para 12
D       1993 (1) SCR 594          referred to         Para 13
        2008 (4) SCR 1            relied on           Para 16
        2011 (11) SCR 1094        relied on           Para 17

E       1985 (3) SCR 431          relied on           Para 21
        1986 (1) SCR 211          relied on           Para 21
        1996 (6) Suppl. SCR 497 relied on             Para 21
        1996 (6) Suppl. SCR 768 relied on             Para 21
F
        AIR 1999 SC 595           relied on           Para 21
        2010 (5) SCR 990          relied on           Para 21
        2011 (10) SCR 557         relied on           Para 21
G
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    6463 of 2012.

        From the Judgment and Order dated 26.07.2012 of the
    High Cout of Gujarat at Ahmedabad in Letters Patent Appeal
H
         BHARTIYA SEVA SAMAJ TRUST TR. PRES. v.             1061
               YOGESHBHAI AMBALAL PATEL

No. 1367 of 2008 in Special Civil Application No. 6346 of 2006.     A

      Percy Kavina, D.N. Ray, Lokesh K. Choudhary, Sumita Ray
for the Appellants.

        Yogeshbhai Ambalal Patel (In-Person).
                                                                    B
        The Judgment of the Court was delivered by

    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            C
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:
                                                                    D
        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         E
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.        F
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.
                                                                    G
     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
                                                                    H
    1062    SUPREME COURT REPORTS                    [2012] 7 S.C.R.


A 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
B 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
C 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
D 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
E 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
F   disregard of the statutory provisions of Section 408 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
G 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
H on behalf of the appellant, has submitted that the respondent
    BHARTIYA SEVA SAMAJ TRUST TR. PRES. v.       1063
 YOGESHBHAI AMBALAL PATEL [DR. B.S. CHAUHAN, J.]

No.1 possesses the qualification of B.Sc.; B.Ed., but the            A
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       B
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           c
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           D
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          E
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         F
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            G
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         H
    1064         SUPREME COURT REPORTS              [2012] 7 S.C.R.


A   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 408 of the Act reads as under:-
8
        Section 408: 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 seNice be otherwise terminated until -
c          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
D                  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
E       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
F       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."

G       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 408 of the Act,
  firstly, no notice was issued to the respondent No.1 and
  secondly, no approval from the competent authority was sought
H for by the School management.
   BHARTIYA SEVA SAMAJ TRUST TR. PRES. v.       1065
YOGESHBHAI AMBALAL PATEL [DR. 8.S. CHAUHAN, J.]

     7. Shri Percy Kavina, learned Senior Advocate appearing          A
on behalf of the appellant, has fairly conceded to the effect that
the said statutory provisions of Section 408 of the Act had been
violated on both counts.

     In view of the above, the facts and circumstances of the         8
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      C
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:-
                                                                      D
     "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.
                                                                      E
           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."
                                                                      F
      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.
                                                                      G
     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                 H
    1066    SUPREME COURT REPORTS                   [2012) 7 S.C.R.


A 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 Kamataka & Ors., AIR
  2000 SC 2976; Chandra Singh v. State of Rajasthan, AIR
B 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
C 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.
D
       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
E 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
F 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
G 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
H
   BHARTIYA SEVA SAMAJ TRUST TR. PRES. v.       1067
YOGESHBHAI AMBALAL PATEL [DR. B.S. CHAUHAN, J.]

and strength also of tender age children against abuse of              A
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
                                                                       8
without making "right to education" under Article 41 of the
Constitution a reality, the fundamental rights under Chapter Ill
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     C
fundamental rights enshrined under Part Ill 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.               D

     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         E
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 Ill, 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           F
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           G
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
                                                                       H
    1068    SUPREME COURT REPORTS                    [2012] 7 S.C.R.


A   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
8
    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
c   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
D 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
E 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.
F
       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
G 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
H
    BHARTIYA SEVA SAMAJ TRUST TR. PRES. v.       1069
 YOGESHBHAI AMBALAL PATEL [DR. B.S. CHAUHAN, J.]

his other rights. Since there is no corresponding constitutional      A
right tQ 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         B
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         C
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:                        D

     "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/          E
     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             F
     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   G
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         H
    1070         SUPREME COURT REPORTS               [2012] 7 S.C.R.


A 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
B working with the same management and some of them had
  been as under:

           (i)     Mrs. Rekhaben Virabhai Patel

           (ii)    Mrs. Urmilaben Chandrakantbhai Mistry
c
           (iii)   Mr. Dilipbhai Naranbhai Patel

           (iv)    Mrs. Ritaben Shaileshbhai Joshi

       20. The High Court further recorded a finding that the list
D 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
E 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.
F 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:
G Eureka Forbes Ltd. v. Allahabad Bank & Ors., (2010) 6 SCC
  193; and lnderjit Singh Grewal v. State of Punjab &Anr., (2011)
  12 sec 588).

      22. Thus, it is evident that the appellant has acted with
H malice alongwith respondent and held that it was not merely a
   BHARTIYA SEVA SAMAJ TRUST TR. PRES. v.       1071
YOGESHBHAI AMBALAL PATEL [DR. B.S. CHAUHAN, J.]

case of discrimination rather it is a clear case of victimisation   A
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
                                                                    8
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.
                                                                    c
B.B.B.                                      Appeal dismissed.