Court No. - 29
Case :- SPECIAL APPEAL DEFECTIVE No. - 538 of 2021 Appellant :- Nisha Kumari Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Avanish Ranjan Srivastava Counsel for Respondent :- C.S.C.,Bhupendra Kumar Yadav
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice Hon'ble Subhash Chandra Sharma,J.
Heard counsel for the parties. Exemption application is allowed.
Learned counsel for the petitioner/appellant is exempted from filing certified copy of the impugned order dated 05.02.2021 passed by the learned Single Judge.
By this appeal, challenge is made to the judgment dated 05.02.2021 whereby the writ petition preferred by the petitioner/appellant seeking appointment on the post of assistant teacher in a Primary School pursuant to the advertisement of 2004 was dismissed. It is finding that petitioner/appellant is not holding the qualification of Teacher Eligibility Test (TET) for appointment on the post of assistant teacher in Primary School and the controversy in that regard has already settled by the Division Bench in Special Appeal No. 274 of 2016 'Jitender Kumar Gautam and others vs. State of U.P. and others. Learned counsel for the petitioner/appellant submits that requirement of the qualification of TET was introduced for the first time by a notification in the year 2010. It was pursuant to the Act of 2009 making education to be a fundamental right. In view of the above, dismissal of the writ petition on the ground that petitioner/appellant was not in possession of the required qualification of TET for a recruitment of 2004 needs interference.
We have considered the submissions made by counsel for the petitioner/appellant and find substance therein.
The writ petition could not have been dismissed holding the petitioner/appellant to be ineligible in reference to the qualification of TET introduced for the first time in the year 2010 for a recruitment of the year 2004. The petitioner/appellant, however, could not show justification of delay in approaching this Court after a period of 17 years of the recruitment. It is not in dispute that advertisement for appointment on the post of assistant teacher in Primary School against the vacancies advertised for a Special BTC in 2004 was almost 17 years prior to filing of the writ petition. A litigation in reference to the other issues came up before this Court and the petition therein were even decided in the year 2007 onwards. Special appeal thereupon were also dismissed followed by the dismissal of the SLP by the Supreme Court. Thus, even if we hold that the judgment of the learned Single Judge in reference to the qualification of TET for a recruitment of 2004 is not correct, the fact remains about the maintainability of writ petition hit by latches.
At this stage, learned counsel for the petitioner/appellant has made a reference to a letter of the government issued in the year 2020 to show consideration of the issue by them. We have considered the letter dated 24th November, 2020 but that would not justify the delay in filing of the writ petition, more so, when the selection and appointment pursuant to advertisement of 2004 came to an end much prior to the letter referred to above. It is also that letter dated 24th November, 2020 cannot open the recruitment of 2004.
In view of the above and finding that qualification of BTC was obtained by the petitioner/appellant in the year 2013 as is coming out from the certificate though showing it to be in reference to BTC Training of 2004 but the year of examination is 2011. Therefore, on the date of advertisement and recruitment, petitioner/appellant was not holder of BTC Training Certificate. Thus, not eligible for appointment.
At this, learned counsel for the petitioner/appellant submits that at least stipend may be given to him in the light of the judgment dated 18.02.2020 passed in Special Appeal Defective No. 532 of 2018 in the case of Vandana Singh vs. State of U.P. We find a direction for payment of stipend in favour of those appointed on the post of assistant teacher and not in favour of those not being appointed like the petitioner/appellant.
In view of the reasons given by us, the prayer made in the writ petition so as the appeal cannot be accepted, however, substituting the reasoning given by the learned Single Judge while dismissing the writ petition, this appeal is dismissed for the reasons given above.
Order Date :- 28.7.2021 Madhurima (Subhash Chandra Sharma, J.) (Munishwar Nath Bhandari, ACJ)