Patna High Court
Upendra Yadav vs The State Of Bihar on 5 May, 2025
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.16391 of 2021
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Upendra Yadav, Son of Late Ramadhin Yadav, Resident of Village - Bhaddi,
Police Station - Sour Bazar, District - Saharsa.
... ... Petitioner/s
Versus
1. The State of Bihar, Bihar, Patna.
2. The Additional Chief Secretary, Education Department, Bihar, Patna.
3. The Director, Primary Education, Bihar, Patna.
4. The Regional Deputy Director of Education, Saharsa.
5. The District Programme Officer (Establishment), Saharsa.
6. The Block Education Officer, Sonbarsa, District - Saharsa.
7. The Headmaster, Primary School, Dih Tola, Mangwa, Block - Sonbarsa,
District - Saharsa.
8. The District Treasury Officer, Saharsa.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Pramod Kumar, Advocate
For the Respondent/s : Mr.Kumar Kamal Nayan, Advocate
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CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 05-05-2025
Heard learned counsel appearing on behalf of the
petitioner and the learned counsel for the State.
2. The present writ petition was filed in the year,
2021. The petitioner has sought following relief(s) in paragraph
no.1 of the writ petition : -
"That this is an application for issuance of a writ in
nature of certiorari to quash the order as contained
in Memo No. 608 dated 20/7/2020 issued under the
signature of the Director, Primary Education, Bihar,
Patna whereby and where under the legitimate claim
of the petitioner for payment of arrears of salary has
been rejected by a cryptic order on the nonest
ground without applying mind and without
considering the order passed by this Hon'ble Court
Patna High Court CWJC No.16391 of 2021 dt.05-05-2025
2/7
in similar matter.
And for issuance of a consequential Writ in the
nature of mandamus commanding and directing the
respondent authorities to pay the arrears of salary to
the petitioner with effect from the date the other
similar persons have been given or at least with
effect from the date on which the services of the
petitioner has been approved and direction was
issued for payment of salary by the Director,
Primary Education i.e. with effect from 27/7/1988 to
February 2006 and to give all other consequential
benefits such as statutory interest on the arrears of
salary which has been withheld by the respondents
without any reason along with cost of litigation.
And/or issue any other appropriate Writ/Writs,
direction/directions, order/orders which the
petitioner may be found just and proper for the ends
of justice in the facts and circumstances stated
hereunder."
3. The claim of the petitioner is that his case is
covered by the order dated 01.08.2014 passed in CWJC
No.8903 of 2010 and order dated 28.07.2010 passed in CWJC
No.1489 of 2010. Both the orders have been brought on record
by way of Annexure '15' and '15/1' respectively.
4. I have perused both the orders, on which the
petitioner is relying. The case of the petitioner is identical to the
petitioner of CWJC No.1489 of 2010, wherein a direction was
issued to the Director, Primary Education to pass necessary
order for payment of arrear of salary for the period in question.
5. The petitioner has also claimed that his
appointment is prior to 01.01.1971. He had joined the School on
Patna High Court CWJC No.16391 of 2021 dt.05-05-2025
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17.11.1969
and as per the provision of Bihar Non-government
Elementary School (Taking Over of Management and Control),
Act, 1976 (hereinafter to be referred as the 'Act, 1976'), the
approval of the service of the petitioner was required. The
petitioner had represented before the District Education Officer
that he had given his joining in the concerned School on
17.11.1969 but the said representation has not been considered.
On these grounds, the petitioner seeks interference of this Court
that he is also entitled to be given the similar relief in terms of
CWJC No.1489 of 2010.
6. Counter affidavit has not been filed.
7. Mr. Kumar Kamal Nayan, learned counsel has
represented the State Government and he has taken notice of
Memo No.1720 dated 27.07.1988, which was communicated to
the Regional Deputy Director of Education, Koshi Division,
Saharsa in respect of the cut of date and from the impugned
order contained in Memo No.608 dated 20.07.2020, which has
been taken into consideration by the Director, Primary
Education, who has also appreciated the fact that the petitioner
has given his joining on 17.11.1969, however, in want of
approval of the State Government, as per the provisions of Act,
1976, the case of the petitioner was rejected.
Patna High Court CWJC No.16391 of 2021 dt.05-05-2025
8. Heard the parties.
9. Having considered the rival submissions made on
behalf of the parties, I find that the order impugned contained in
Memo No.818 dated 13.05.2016 has not considered that the
case of the petitioner is covered by the order passed in CWJC
No.1489 of 2010, in which this Court considering the fact that
before taking over of the school, the petitioner of the said writ
petition was being regularly paid salary by the Managing
Committee of the School similar is case of the petitioner, who is
also performing his duties continuously after the Act, 1976
came into effect.
10. This Court taking into consideration the inaction
on the part of the State Government and relying on the judgment
passed in M/S Hindustan Sugar Mills. Vs. The State of
Rajasthan and Ors. reported in AIR 1981 SC 1681 and
reproducing the observation made by the Chief Justice Chagla
in the case of All India Groundnut Syndicate Limited vs.
Commissioner of Income Tax, Bombay City, reported in AIR
1954 Bombay, 232, which proposition has recently been upheld
by the Hon'ble Supreme Court in the case of Municipal
Committee Katra & Ors. vs. Ashwani Kumar [Civil Appeal
No(s) 14970-71 of 2017]. The Apex Court in Paragraphs
Patna High Court CWJC No.16391 of 2021 dt.05-05-2025
No.18 and 19 of the judgment dated 09.05.2024 has held as
under :
"18. The situation at hand is squarely covered by the
latin maxim 'nullus commodum capere potest de
injuria sua propria', which means that no man can
take advantage of his own wrong. This principle was
applied by this Court in the case of Union of India v.
Maj. Gen. Madan Lal Yadav observing as below :
"28....In this behalf, the maxim nullus
commodum capere potest de injuria sua
propria meaning no man can take advantage
of his own wrong-squarely stands in the way
of avoidance by the respondent and he is
estopped to plead bar of limitation contained
in Section 123(2).
In Broom's Legal Maxim (10th Edn.) at p. 191 it is
stated:
"... it is a maxim of law, recognised and established,
that no man shall take advantage of his own wrong;
and this maxim, which is based on elementary
principles, is fully recognised in courts of law and
of equity, and, indeed, admits of illustration from
every branch of legal procedure."
The reasonableness of the rule being manifest, we
proceed at once to show its application by reference
to decided cases. It was noted therein that a man
shall not take advantage of his own wrong to gain
the favourable interpretation of the law. In support
thereof, the author has placed reliance on another
maxim frustra legis auxilium invocat quaerit qui in
legem committit. He relies on Perry v. Fitzhowe
[(1846) 8 QB 757:15 LJ QB 239].
At p. 192, it is stated that if a man be bound to
appear on a certain day, and before that day the
obligee puts him in prison, the bond is void. At p.
193, it is stated that "it is moreover a sound
Patna High Court CWJC No.16391 of 2021 dt.05-05-2025
principle that he who prevents a thing from being
done shall not avail himself of the non-performance
he has occasioned". At p. 195, it is further stated
that "a wrong doer ought not to be permitted to
make a profit out of his own wrong". At p. 199 it is
observed that "the rule applies to the extent of
undoing the advantage gained where that can be
done and not to the extent of taking away a right
previously possessed".
"19. It is beyond cavil of doubt that no one can be
permitted to take undue and unfair advantage of his
own wrong to gain favourable interpretation of law.
It is a sound principle that he who prevents a thing
from being done shall not avail himself of the non-
performance he has occasioned. To put it differently,
'a wrong doer ought not to be permitted to make
profit out of his own wrong'. The conduct of the
respondent-writ petitioner is fully covered by the
aforesaid proposition."
11. In the facts of the present case, I find that the
petitioner was initially appointed as Assistant Teacher by the
Managing Committee in Primary School, Thadhi, Saharsa,
which was subsequently taken over under the provisions of Act,
1976 but this fact has not been considered by the Regional
Deputy Director of Education, Koshi Division, Saharsa, as
such, the impugned order requires to be interfered with. On
these grounds, the order dated 20.07.2020 contained in Memo
No.608 is set aside and quashed and the Regional Deputy
Director of Education, Koshi Division, Saharsa is directed to
pass a fresh order in accordance with law considering the law
Patna High Court CWJC No.16391 of 2021 dt.05-05-2025
laid down by the Apex Court, as well as, observation made by
this Court in CWJC no.1489 of 2010.
11. With the above observation/direction, the present
writ petition stands disposed of.
(Purnendu Singh, J)
chn/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 13.05.2025
Transmission Date NA
