MANAGER AUTOMOTIVE MFGR LTD Vs. BHARATKUMAR MOHANLAL SHAH

JUDGEMENT

(1.) It is a settled principle of law that no person can take advantage of his own wrong. Will it make any difference if the wrongdoer is the mighty Government ? It is true that the Government is an artificial person and has to act through human agency. But can the Government escape its responsibility if the human agency working for it or on its behalf does some wrong and then in the name of the Government some advantage is not sought to be taken of such wrong ? This petition under Article 226 of the Constitution of India requires this Court to examine the petitioners grievances against non protection of his pay and emoluments while declaring him surplus in the light of my aforesaid observations.

(2.) The facts giving rise to this petition are not many and are not in dispute either. The petitioner obtained his graduation from the faculty of Arts with Hindi as his special subject from the Gujarat University in 1972 with flying colours. He got his first class thereat. He successfully completed his postgraduation again in Hindi from the same University in 1974 with second class. Shri Trivedi for the petitioner informs me at the Bar that he secured 53 per cent marks thereat. He obtained his B.Ed. degree from the Gujarat University in 1984 again with first class. At his graduation course in education he opted for Hindi and Gujarati as his special methods. He appears to have got his name registered with the Employment Exchange. He received some call letter from it for the post of Lecturer in Hindi. He was interviewed therefore and was appointed as such with effect from 7/12/1974 by one Notification of 1/01/1975 issued by respondent No. 2 herein. Its copy is at Annexure A to this petition. It may be mentioned that he was appointed against a clear vacancy as transpiring from the Notification at Annexure A. Surprisingly enough he was given appointment for a period not exceeding 12 months or till a Public Service Commission selected candidate became available whichever occurred earlier. He was given such appointment orders from time to time upto March 1979. The last Notification is at Annexure F to this petition. No date appears to have been mentioned therein. I am however told by Shri Trivedi for the petitioner at the Bar that it was dated 19th January 1979 and that its date is indicated in the index page and also in Para 4 of the petition. It becomes clear on perusal of all these Notifications that his appointment was made against a clear vacancy and was for a period not exceeding 12 months or till a Public Service Commission selected candidate become available whichever occurred earlier. He appears to have become surplus with the introduction of the new pattern of education of 10 + 2 + 3. The District Education Officer at Surendranagar by his communication of 11/05/1980 requested the concerned Principal of each non Government school presumbaly in the District to absorb the teachers named therein on the ground that they became surplus from June 1980 on introduction of the new pattern of education of 10 + 2 + 3. Its copy is at Annexure H to this petition. The petitioners name figures therein at serial number 7. It appears that the petitioner was given employment in the school represented by Respondent No. 3 herein with effect from 18/08/1990 in the lower pay scale of Rs. 330 420. It may be mentioned that according to the petitioner in his college service he was getting the pay scale of Rs. 700-1600. It may be mentioned that after joining his service in the school represented by Respondent No. 3 the petitioner passed his B.Ed. examination in 1984 with first class. He was therefore placed in the pay scale of Rs. 440-700. On introduction of the new pattern of education of 10 + 2 + 3 the State Government issued certain resolutions for protection of pay and emoluments of certain teachers becoming or being rendered surplus on account of such introduction of the new pattern of education. The copies of these resolution are at Annexures I J and K to this petition. The petitioner was not given any benefit thereunder as a surplus teacher. He appears to have made representations to various authorities but to no avail. He has therefore invoked the extraordinary jurisdiction of this Court for redressal of his grievances against denial of benefits to him as a surplus teacher under the Government Resolution at Annexures I J and K to this petition.

(3.) The preliminary objection against maintainability of this petition on the ground of delay on the part of the petitioner need not be entertained at this stage. The reason therefore is quite simple. In the first place no such contention is raised by or on behalf of respondents No. 1 and 2 in the affidavit in reply filed on their behalf by respondent No. 2. It is true that the affidavit was filed by respondent No. 2 for the limited purpose of opposing admission of this petition at the stage of its preliminary hearing. Even at that stage no objection as to its maintainability on the ground of inordinate delay on the part of the petitioner in preferring this petition to this Court was raised. After rule on this petition was issued on 21/03/1988 no further affidavit has come to be filed by or on behalf of respondents No. 1 and 2 objecting to its maintainability on the ground of inordinate delay on the part of the petitioner. If such objection was taken the petitioner might have explained such delay on his part. This is one reason why the said preliminary objection need not be sustained at this stage.