UPTET Allahabad High Court : TET Become Compulsory , But A Candidate Who is Eligible for Appointment Now (After TET requirement) Becomes Eligible on Such Ground

UPTET Allahabad High Court : TET Become Compulsory , But A Candidate Who is Eligible for Appointment Now (After TET requirement) Becomes Eligible on Such Ground

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. - 33
Case :- WRIT - A No. - 73066 of 2011
Petitioner :- Anju Lata Saksena
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Siddharth Khare
Respondent Counsel :- C.S.C.,R.K. Malviya

Hon'ble Sudhir Agarwal,J.
01. Heard learned counsel for the petitioner and learned Standing counsel for the State respondents.
02. The petitioner's claim for compassionate appointment has been rejected by the District Basic Education Officer vide impugned order dated 17.10.2011 on the ground that since the petitioner is not eligible for such appointment in the light of the Regulations framed by National Council For Teacher Education (NCTE) under Section 23 of the Right of Children to Free and Compulsory Education (RTE) Act, 2009 and she cannot be appointed as specified in the Government Order dated 27.9.2011.
03. Learned counsel for the petitioner submitted that she could not lay his hand to the aforesaid Government Order but could not dispute that under Regulation framed by NCTE passing of Teacher Eligibility Test (TET) is compulsory qualification for appointment to the post of Assistant Teacher. He further submitted that such Regulation was not complied for the reason that in the time when the application was made such Regulation were not in existence. The Regulations were initially notified on 23.8.2010 and were amended on 20.7.2011 whereafter the petitioner submitted application on 4.7.2011. Admittedly the Regulations notified by 23.8.2010 were in force on relevant date. Besides it has been held by the Apex Court in the case of State Bank of India Vs. Somvir Singh, JT 2007 (3) 398, held that compassionate appointment scheme and provisions as are applicable at the time when the application for compassionate appointment is considered would apply. Admittedly at the time when the petitioner claimed consideration before the competent authority, the statutory provisions required passing of TET as a minimum essential qualification for appointment to the said post. Since the petitioner admittedly without the said qualification is not entitled for appointment.
04. Learned counsel for the petitioner also pointed out that there are some cases in which the persons were not eligible yet the similar circumstances they have been granted compassionate appointment. Admittedly in the light of statutory Regulations framed by NCTE which are mandatory and over-ride the otherwise provisions provided in the State Statute, any appointment contrary thereto would be illegal and void. In case the authorities have committed such illegality by making some appointment that will not give a right to claim parity with such illegality.
05. I am of the view that if on account of some mistake or by illegal act of authority i.e. by act of omission, deliberate or in-deliberate of the agency of the State Government some benefit has been given, that will not be a ground for petitioner to seek parity with that, inasmuch as, two wrongs will not make one right. The Apex Court in the case of State of Bihar and others Vs. Kameshwar Prasad Singh and another, AIR 2000 SC 2306; Union of India and another Vs. International Trading Co. and another, AIR 2003 SC 3983; Lalit Mohan Pandey Vs. Pooran Singh and others, AIR 2004 SC 2303; M/s Anand Buttons Ltd. Etc. Vs. State of Haryana and others, AIR 2005 SC 565; and Kastha Niwarak G. S.S. Maryadit, Indore Vs. President, Indore Development Authority, AIR 2006 SC 1142 has clearly held that Article 14 has no application in such cases.
06. The Article 14 and 16 does not apply for claiming negative parity or parity in respect to the illegal appointment. This is a positive concern, hence since some wrong has been done by the respondents, no parity can be claimed with respect to the same ground. The submission is misconceived. The impugned order warrants no interference. 
07. The writ petition is dismissed. 
Order Date :- 16.12.2011
Kpy


Source : http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do?judgmentID=1611373