JUDGMENT : A.S. Supehia, J. 1. Since an identical issue is involved in the present petition, the same are taken up for final hearing together and are decided analogously by this common judgment. 2. By way of the present petitions, the petitioners have assailed the judgment and order dated 20.07.2004 passed by the Gujarat Primary Education Tribunal in Ahmedabad (the Tribunal), wherein and whereby the Tribunal has quashed and set aside the order of termination of the respondents-applicants and has directed the present petitioner-original respondents No. 1 and 2 to reinstate them with full back wages by conferring them with the benefit of the pay-scale as per the Government grade and allowances. 3. The facts borne out from the record are adumbrated as under: 3.1 Respondents-orig. applicants were appointed as Assistant Teachers by the present petitioner-Trust, who is running a private primary school in the name of Samjuba Vidhyamandir Primary School. The respondent No. 1 of Special Civil Application No. 13029 of 2004 was appointed on 15.06.1988, respondent No. 1 of Special Civil Application No. 13734 of 2004 was appointed on 01.10.1987 and respondent No. 1 of Special Civil Application No. 14080 of 2004 was appointed on 28.06.1984. Their services were terminated on 01.01.1998 for the reason that their appointments were not made in accordance with the procedure prescribed under the Rules. 4. Learned advocate, Mr. R.R. Vakil appearing on behalf of the school management contended that the respondents were not appointed in accordance with law, with the provisions of Clause-1 of Schedule-F of the Bombay Primary Education Rules, 1949 ('the Rules' for short). As the appointment of the said respondents were de hors the procedure and being void ab initio, the petitioner-Trust was justified in terminating their services. He has submitted that though the Tribunal has observed that the respondent teachers were not appointed as per Rules and no procedure prescribed under section 40B of the Bombay Primary Education Act, 1947 ('the Act' for short) was required to be followed before terminating their services, it has set aside the termination only on the ground that the school management terminated the services in violation of its interim orders, which can be said to be highly unjustified. Furthermore, he has submitted that the respondent teachers were not qualified for their appointments as they were not possessing the required qualification of S.S.C. P.T.C. Learned advocate, Mr. Furthermore, he has submitted that the respondent teachers were not qualified for their appointments as they were not possessing the required qualification of S.S.C. P.T.C. Learned advocate, Mr. Vakil has stated that though the Tribunal has observed that the appointment of the respondent teachers was de hors the provisions of Schedule-F it has grossly erred in setting aside their termination order, reinstating them and further granting full back wages by treating them at par with the pay-scale of the Government pay-scale and allowances. 5. Learned advocate, Mr. Vakil, in support of his submissions has relied on the order dated 27.03.1997 passed in Special Civil Application No. 2463 of 1997, order dated 03.08.2005 passed in Letters Patent Appeal No. 374 of 1997, judgment dated 14.02.2007 passed in Special Civil Application No. 5432 of 1996 and a Full Bench judgment reported in the case of Sudip Tripath & Anr. v. State of Gujarat & Ors., 2007 (1) G.L.R. 359 . 6. Relying upon the judgment dated 14.02.2007, passed in Special Civil Application No. 5432 of 1996, he has submitted that the provisions of section 40B of the Act would not be attracted if any appointment made is in contravention of the statutory provisions. A similar view is expressed in the order dated 27.03.1997 passed in Special Civil Application No. 2463 of 1997. Learned advocate, Mr. Vakil has drawn the attention of this Court to the observations made in order dated 03.08.2005 passed in Letters Patent Appeal No. 374 of 1997, wherein the Division Bench of this Court has held that the teachers possessing the qualification of B.Ed. are not eligible to be appointed in the primary schools as the same would be in violation of Clause-6 of Schedule-F of the Rules wherein the required qualification for a trained teacher is prescribed as secondary school certificate examination and also the primary training certificate examination. Learned advocate, Mr. Vakil has stated that except the respondent of Special Civil Application No. 13029 of 2004 none of the respondent teachers were having the requisite qualification as per Clause-6 of Schedule-F of the Rules. Hence, as the respondent teachers were lacking in the educational qualification, the school management was justified in terminating their services. In view of the aforesaid submissions, learned advocate Mr. Vakil has urged that the judgment and order passed by the Tribunal requires to be quashed and set aside. 7. Hence, as the respondent teachers were lacking in the educational qualification, the school management was justified in terminating their services. In view of the aforesaid submissions, learned advocate Mr. Vakil has urged that the judgment and order passed by the Tribunal requires to be quashed and set aside. 7. Vehemently opposing the submissions made by the learned advocate for the petitioners, learned advocate, Mr. Chetan K. Pandya for the respective respondent teachers has submitted that the only reason for terminating the services of the respondent teachers by the management was their demand of regular pay-scale at par with the Government grade and allowances. He has submitted that the respondent teachers had filed their respective Application Nos. 245/95, 246/95 and 248/95 before the Tribunal challenging the action of the school management in paying them less wages than prescribed under the Rules from the date of their appointments and also the action of stoppage of salaries from June 1995. During the pendency of these applications, the services of the applicant teachers came to be terminated vide order dated 27.12.1997 w.e.f. 01.1.1998 though there was an interim order against their termination. Learned advocate, Mr. Pandya has submitted that there was no fault can be attributed to the respondent teachers in procuring the appointments. He has submitted that they were appointed pursuant to an advertisement issued by the petitioner management. He has stated that only because the demand of regular salary was made by the teachers before the management, their services were terminated. It was urged by the learned advocate, Mr. Pandya that the Tribunal has comprehensively dealt with all the aspects of the matter by considering the provisions of Schedule-F of the Rules and has rightly concluded that the respondent teachers were illegally terminated from the services after completion of the period from 15-20 years. 8. In support of his submissions, learned advocate Mr. Pandya has placed reliance on the Division Bench judgment of this Court in the case of Bhartiya Seva Samaj Trust & Anr. v. Yogeshbhai Ambalal Patel & Ors., reported in 2013 (4) G.L.R. 3455. He has stated that the termination of the respondent teachers was in violation of Section 40B of the Act and as observed by the Division Bench that the provisions of Section 40B of the Act are required to be complied with even if the teachers do not possess the course of P.T.C. (Primary Teacher Certificate). He has stated that the termination of the respondent teachers was in violation of Section 40B of the Act and as observed by the Division Bench that the provisions of Section 40B of the Act are required to be complied with even if the teachers do not possess the course of P.T.C. (Primary Teacher Certificate). He has submitted that the aforesaid Division Bench judgment is confirmed by the Supreme Court vide judgment reported in 2012 (9) S.C.C. 310 . He has urged that in the case before the Division Bench the Tribunal had also granted reinstatement with full back wages, which was confirmed by upto the Supreme Court. Learned advocate Mr. Pandya has stated that respondent No. 1 (Arunaben M. Naik) of Special Civil Application No. 13029 of 2004 was already holding the qualification of S.C.C. P.T.C. and respondent No. 1 (Kamalnayan A. Parikh) of Special Civil Application No. 13734 of 2004 was also holding the requisite qualification of B.A.B. Ed. despite that their services were terminated by the petitioner management. So far as the qualification of respondent No. 1 (Rameshbhai D. Patel) of Special Civil Application No. 14080 of 2004 is concerned, he was holding educational qualification of S.S.C. C.P. Ed., which is legal and valid as per communication dated 07.09.1977 and Circulars dated 30.10.1980 and 05.02.1988. He has stated that as communication dated 07.09.1977 issued by the Director of Education to the respective District Education Officers that the qualification in certificate of physical education will be a valid qualification in lieu of P.T.C. course. Making the aforesaid submissions learned advocate Mr. Pandya has urged that no interference is required by this Court in the judgment dated 20.07.2004 passed by the Tribunal. 9. Learned Advocate Mr. Pandya has also drawn the attention of this Court to the interim-order dated 19.1.2005 passed by this Court which reads as under: "Rule returnable in the first week of April 2005. 2. Learned Senior counsel Shri Y.N. Oza appearing for the petitioners has made it clear at the outset that the petitioners have not challenged the portion of the judgment of the Education Tribunal which grants pay parity to the teachers till the date of their termination. 2. Learned Senior counsel Shri Y.N. Oza appearing for the petitioners has made it clear at the outset that the petitioners have not challenged the portion of the judgment of the Education Tribunal which grants pay parity to the teachers till the date of their termination. By way of interim relief, the impugned order of the Education Tribunal dated 20th July 2004 is stayed on the condition that the petitioners shall within a period of three months from today pay over to the concerned teachers the difference in salary as per the order of the Education Tribunal which the petitioners have not challenged in the present petitions." He has submitted that as per aforesaid statement, the petitioners are precluded from challenging the judgment and order of the Tribunal granting the pay parity to the respondent teachers at par with the Government pay and allowances. 10. In response to the aforesaid submission, learned Advocate, Mr. Vakil has submitted that the aforesaid statement was made for the pay parity from filing of the application till the date of termination, and accordingly the same was paid at the relevant time. The school management cannot be disqualified to raise contention qua dis-entitlement of the salary/pay of the respondent teachers prescribed by the state government. 11. Learned advocates appearing on behalf of the respective parties are heard at length, documents and judgment passed by the Tribunal are perused. 12. The petitioner-Sabar Education Trust runs a private primary school in the name of Samjuba Vidhyamandir Primary School, which is a registered unaided private primary school. The facts which emerge from the judgment of the Tribunal are that some of the assistant teachers, who were working in the said school, had challenged the action of the school management in not paying them the salaries as prescribed under the Rules from the date of their appointment. The said demand of the Teachers elicited the effect of their termination. During the pendency of such applications, their services were terminated by the school management. The Tribunal vide interim order dated 02.01.1998 had stayed the termination. It appears that total 15 teachers had challenged such action before the Tribunal and the management had entered into a compromise with nine teachers. Subsequently, such applications were withdrawn by them and only six teachers pursued their applications before the Tribunal. The Tribunal vide interim order dated 02.01.1998 had stayed the termination. It appears that total 15 teachers had challenged such action before the Tribunal and the management had entered into a compromise with nine teachers. Subsequently, such applications were withdrawn by them and only six teachers pursued their applications before the Tribunal. During pendency of applications, three of such teachers, being the applicants of Applications No. 252/95, 249/95, 242/95, had also compromised with the school management. Thus, the respondent teachers of Applications No. 245/95 (Rameshbhai D. Patel), No. 246/95 (Arunaben M. Naik) and No. 248/95 (Kamalnayan A. Parikh) pursued their applications before the Tribunal. The applicant (Arunaben M. Naik) of Application No. 246/95 i.e. respondent of Special Civil Application No. 13029 of 2004 and applicant (Kamalnayan A. Parikh) of application No. 248/95 i.e. respondent of Special Civil Application No. 13734 of 2004 have retired on 06.12.2012 and 20.04.2011 respectively. 13. A close scrutiny of the judgment of the Tribunal will reveal the fact that none of the appointments of the assistant teachers were made in accordance with Schedule-F of the Rules. The same reads as under: "SCHEDULE-F [vide Rules 166(2) and 111 (2)(c) of the Bombay Primary Education Rules, 1949] Model conditions of employment of teacher in private schools in State of Gujarat 1. Manner of appointment of teacher. (1) A person to be appointed as a teacher in a private school shall not be less than 18 years of age and more than 25 years of age. (2) The managing body of the trust or the society shall constitute for the purpose of selecting teachers for appointment in the school a selection committee consisting of the following persons, namely: (i) One representative of the managing body of the trust or the society; (ii) The head master of the school; (iii) One representative of the Administrative Officer. (3) A candidate for a post of teachers in the school shall submit his application to the Head of the school giving detailed information in regard to his qualifications, previous educational experience, etc. Copies of the application and the copies of orders of appointment shall be kept on the school record. Every teacher whether temporary or on probation or posted in a permanent vacancy shall be given a clear order of appointment with a copy of the conditions governing the employment and these shall remain with the employee. Copies of the application and the copies of orders of appointment shall be kept on the school record. Every teacher whether temporary or on probation or posted in a permanent vacancy shall be given a clear order of appointment with a copy of the conditions governing the employment and these shall remain with the employee. The order of appointment shall clearly mention whether the appointment is temporary, probationary or permanent, the scale of salary and the duration of appointment in case it is either temporary or on probation." 14. The respondent teachers have not challenged the findings of the Tribunal that their appointments were made de hors the provisions of Schedule-F, which envisages a selection committee comprising of one representative of administrative officer, head master of the school and one representative of the management. Thus, the harsh fact remains that the appointment of the respondent teachers was not made as per the provisions of Rule 1 of Schedule-F of the Rules, though they had applied pursuant to an advertisement. The school management has also not disputed the fact of their appointment being made pursuant to an advertisement and even after termination of such assistant teachers, the management had appointed other teachers without following the procedure laid down under schedule-F. 15. So far as the contention of the respondent teachers in terminating the services without issuance of any notice or without following the procedure prescribed under the provisions of Section 40B of the Act is concerned, the Tribunal has negated the submissions of the respondent teachers that procedure envisaged under section 40B of the Act was required to be followed before terminating their services. Section 40B of the Act prescribes the procedure for dismissal, removal or reduction in rank of teachers which mandates the issuance of show cause notice and prior approval of the Administrative Officer before passing the orders to the aforesaid effect. The Tribunal has set aside the termination for the reasons that the assistant teachers have served since long and despite the stay orders against their termination, the school management had terminated their services by retaining the juniors in service which amounts to victimization. The fact remains that the respondent teachers were appointed pursuant to the advertisement issued by the school management. The Supreme Court in the case of Bhartiya Seva Samaj Trust & Anr. (supra) while dealing with almost a similar issue has observed thus: "21. The fact remains that the respondent teachers were appointed pursuant to the advertisement issued by the school management. The Supreme Court in the case of Bhartiya Seva Samaj Trust & Anr. (supra) while dealing with almost a similar issue has observed thus: "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." 16. In the present case also, as per the statement made by the learned advocate for the petitioners some of the teachers who were holding the same qualification to that of the present respondent teachers, coupled with the fact that they being appointed in the same manner as the present respondent teachers, have been continued by the management on the basis of the compromise arrived between them. Mr. Vakil has submitted that compromise on similar terms was also offered to the present respondent teachers but they had refused to accept. 17. At this juncture it will be apposite to refer to the subsequent decision of the Apex Court in the case of Ram Bahadur Pandey v. State of Uttarakhand,: 2015 (2) S.C.C. 142 , has observed thus : "13. 17. At this juncture it will be apposite to refer to the subsequent decision of the Apex Court in the case of Ram Bahadur Pandey v. State of Uttarakhand,: 2015 (2) S.C.C. 142 , has observed thus : "13. It is not in dispute that the appellants were working as Assistant Teachers in recognized schools. In view of the fact that the appellants were working in recognized schools, according to Rule 11 of the Rules it was necessary to obtain prior written approval of the Basic Shiksha Adhikari before terminating their services. It is an admitted fact that no such prior approval had been obtained before terminating services of the appellants and therefore, there was a clear violation of the provisions of Rule 11 of the Rules. 14. It may be true that there might be irregularities in appointment of the appellants as Assistant Teachers in the past but as they were working in the schools duly recognized under the Rules, in our opinion, it was obligatory on the part of the Management to follow the provisions of Rule 11 of the Rules while terminating services of the appellants by way of punishment. 15. In the circumstances, we set aside the impugned judgment delivered by the High Court and direct that the appellants be reinstated in service within two months from today and in view of the fact that their appointments were not in accordance with the Rules, they shall not be paid back wages. If the appellants had not been paid their salary for the period prior to termination of their services, it would be open to the appellants to take appropriate action for recovery of salary for the said period. It is not on record whether the appellants had not been paid for the period prior to their termination and therefore, we do not pass any order with regard to payment of back wages. We also clarify that it would be open to the management to take appropriate disciplinary action against the appellants in accordance with law for the irregularities committed by them, if they think it appropriate." 18. We also clarify that it would be open to the management to take appropriate disciplinary action against the appellants in accordance with law for the irregularities committed by them, if they think it appropriate." 18. After the analysis of the judgment cited by both the parties and the observations of Supreme Court in the case of Ram Bahadur Pandey (supra), in my considered opinion the respondent teachers will only be entitled to the salary/wages at par with other assistant teachers who are/were continued in service. They will not be entitled to the equivalent pay-scales or allowances as prescribed by the State government since their initial appointments were not made in accordance with rules. The respondent teachers have accepted the conclusion of the Tribunal that no procedure prescribed under section 40B of the Act was required to be followed before terminating their services as they were unable to establish that their initial appointments were made as per Schedule-F of the Rules. In the case of Ram Bahdur Pandey (supra), the Apex Court while reinstating the teachers in service has denied the back wages only on the ground that their appointments were not made in accordance with the Rules. Merely because they were continued in service for a long period, will not ipso facto make their initial appointments as regular or legal resulting into bestowal of the pay-scales prescribed by the state government. It is no more res integra that an employee cannot claim regularization or regular pay if his initial appointment or selection is not made in accordance with the Rules. In the present case, the school management has reinstated and continued such assistant teachers who were terminated along with the respondent teachers and accordingly they are also being paid the salary/wages fixed by the school management. Moreover, at the relevant time the school management had offered to compromise, but the respondent teachers had refused the same. I am not dealing with the controversy relating to the qualifications of the respondent teachers as teachers possessing similar qualifications were reinstated and continued in service by the school management and they had also offered to compromise. Mr. Vakil appearing on behalf of the School management has stated that presently there are 883 students studying in their schools. Out of them 83 students are not being charged any fees. The total income of the School is Rs. Mr. Vakil appearing on behalf of the School management has stated that presently there are 883 students studying in their schools. Out of them 83 students are not being charged any fees. The total income of the School is Rs. 2,40,000/- and expenses incurred are comprising of Rs. 2,42,500/- which has exceeded the income. He has stated that if the back wages are paid at par with the Government scales and allowances the same will exceed Rs. 50,00,000/- approx. which will threaten the very existence of the Institute. Thus, in such circumstances, the respondent No. 1 (Rameshbhai D. Patel) of Special Civil Application No. 14080 of 2004 is directed to be reinstated in service by treating the period from termination and reinstatement as continuous for all purposes. Respondent teachers of Special Civil Applications No. 13029/2004 (Arunaben M. Naik) and No. 13734/2004 (Kamalnayan A. Parikh) since they have retired, their retirement benefits are to be revised, fixed and paid accordingly by treating their services as continuous from the date of their termination till their date of retirement. The salary/pay of the respondent teachers shall be fixed, calculated and paid on the basis of the assistant teachers who were reinstated and continued by the school management. Accordingly, based on such fixation of pay, they will be entitled to the back wages. 19. So far as the contention raised by the learned Advocate, Mr. Pandya in light of the interim order dated 19.01.2005 pertaining to pay parity is concerned, I am of the opinion that the same was intended for the period from the date of filing the application i.e. September, 1995 till the date of termination i.e. 01.01.1998. The Tribunal in the impugned judgment has granted the arrears by granting the benefit of pay parity to the respondent teachers with effect from September 1995 i.e. the date of filing of the applications. The statement made by the learned counsel will be binding to the petitioners qua that portion of the judgment of the Tribunal only, which they have not chosen to challenge. The same does not mean that they are prohibited from challenging the issue of grant of pay-scales to the assistant teachers as prescribed by the State Government. The statement made by the learned counsel will be binding to the petitioners qua that portion of the judgment of the Tribunal only, which they have not chosen to challenge. The same does not mean that they are prohibited from challenging the issue of grant of pay-scales to the assistant teachers as prescribed by the State Government. The concession made by the learned counsel cannot bind the petitioners from raising legal contention qua the dis-entitlement of salary/pay to the Teachers as prescribed by the State Government in the wake of their irregular appointments. A concession or statement made on the question of law by the learned counsel is not binding on the client. However, it is clarified that the amount of wages/salary which are paid pursuant to the interim order dated 19.01.2005 shall not be adjusted while calculating the payment of back wages. 20. The impugned order dated 20.07.2004 passed by Tribunal is hereby quashed and set aside. The petitioner school management is directed to comply with the aforesaid directions within a period of three months from today. The petitions are partly allowed accordingly. RULE is made absolute to the aforesaid extent. Petition Partly Allowed