Rajesh Dnyaneshwar Rathod And ... vs Balu Namdeo Bhosale And Others
2023 Latest Caselaw 8662 Bom

2023:BHC-AUG:18175-DB
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                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          BENCH AT AURANGABAD

                                           WRIT PETITION NO.2654 OF 2023
                                                       WITH
                                           CA/8958/2023 IN WP/2654/2023


             1.        Rajesh s/o Dnyaneshwar Rathod
             2.        Vinod s/o Yeshwant Shelke                    ...       PETITIONERS

                               VERSUS

             1.        Mr. Balu s/o Namdeo Bhosale,
             2.        Mr. Nilesh s/o Prakashappa Burkule
             3.        Mr. Tushar s/o Pandurang Pawar
             4.        Mr. Mininath s/o Ramprasad Humbe
             5.        Mr. Pritesh s/o Sanjeev Kuntewad
             6.        Mr. Rameshwar s/o Baliram Waghmare
             7.        Mr. Pramod s/o Jilindar Kalapure
             8.        Kum. Snehal Pandurang Pawar
             9.        Mr. Navnath s/o Janku Devre
             10.       Mr. Dhairyashil s/o Deepak Madake
             11.       Mr. Pradeekumar s/o Sundarrao Tangade
             12.       Mr. Savata s/o Dayaram Mahajan
             13.       The Union of Trained Craft
                       Instructors, Maharashtra,
                       through its Aurangabad Divisional
                       President Applicant No. 2 in O.A.

             14.       The State of Maharashtra,
                       through its' Secretary,
                       Vocational Education & Training,
                       Mantralaya, Mumbai -32.

             15.       The Director General Training (DGT),
                       Ministry of Skill Development and
                       Entrepreneurship Employment, Exchange
                       Building Library Avenue, PUSA Complex,
                       New Delhi - 110012

             16.       The Director of Vocational Education and
                       Training /DVET, Maharashtra State, Mumbai -1
                       Office at: 3 Municipal Corporation
                       Road, Mumbai 400 001                     ...           RESPONDENTS

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                          ...
Advocate for Petitioners : Mr. S.R. Barlinge
AGP for respondent Nos.14 and 16 : Mr. S.K. Tambe
Standing counsel for respondent No.15 : Mr. B.M. Dhanure
Advocate for respondent Nos.1 to 13 : Mr. S.S. Dambe
Advocate for applicant in CA/8958/2023: Mr. Asim Sarode a/w
                                            Ms. Susmita Dound
                                ...
                            CORAM           : MANGESH S. PATIL AND
                                               SHAILESH P. BRAHME, JJ.
                                    Reserved on       20.07.2023
                                    Pronounced on :   24.08.2023

ORDER (MANGESH S. PATIL, J.) :

By way of this petition under Article 226 of the Constitution of

India the petitioners are challenging the judgment and order passed by the

Maharashtra Administrative Tribunal Bench at Aurangabad in Original

Application No.761/2022 on 03.02.2023.

2. The Original Application was preferred by the respondent Nos.1

to 12 herein with following prayers :

B. By issuing appropriate order or direction the advertisement issued by the respondent No.3 i.e. Annexure 'A-4' for post of Instructor/Craft Instructor of ITIs may quash and set aside.

OR As per latter dated 25.11.2019 and 03.12.2019, 31.01.2020, 27.07.2020, 22.07.2021, 02.02.2022 respondent No.3 may direct to declare and add CTI/CITs qualification is mandatory qualification for appointment of instructor and Craft Instructors in ITIs in pursuance to advertisement dated 17.08.2022 Annexure A-4' and direct to act upon it for this recruitment and further recruitments of instructors in all ITI's.

C. By issuing appropriate order or directions direct the respondent no. 3 to add/incorporate the CTI/CITS qualification as mandatory qualification for post of Instructor and craft instructor ITI, in advertisement no 1/2022 dated 17.08.2022 at clause no. 8 by issuing a necessary corrigendum.

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D. Necessary directions may kindly be issued against the respondent no.1&3, for constitute the committee if not for modifying Government Resolution dated 18th November-1983 (Annexure-A-4) as per guidelines of DGT for the post of "Craft-Instructors', by incorporating the qualification of CTI/CITS as a mandatory instead of considering it, as preference and accordingly issue modified Government Resolution within a stipulated time.

E. Any other equitable relief, in favor of the applicant, as this Hon'ble Court deems fit, may kindly be awarded in the interest of justice.

The operative part of the order under challenge reads as under :

ORDER

The Original Application is partly allowed in following terms:- (A) Ongoing recruitment process is allowed to continue after notifying modified clause No.15.22 of impugned advertisement, which deals with preference to be given to CITS qualified candidates. Thereby, CITS qualified candidates, who secure equal to or more than cut off marks as calculated under provisions of clause 15.20 of the impugned advertisement, should be given preference over non-CITS qualified candidates while preparing select list. (B) In the event that sufficient numbers of CITS qualified candidates are not available meeting selection criteria of cutoff marks etc., then non-CITS qualified candidates may be selected subject to their acquiring CITS qualification within prescribed time limit. (C) After ascertaining through the above process of selection, that the State has sufficient number of CITS qualified candidates; respondent Nos.1 and 2 may take steps to amend recruitment rules making professional qualification of CITS as essential qualification for the post of Craft Instructors. (D) Respondent No. 3 is directed to resolve issue of number of CITS instructors per trade etc. by effective consultation with State Governments.

(E) Interim relief granted by this Tribunal on 07.10.2022 stands merged in this final order.

(F) No order as to costs.

3. Shorn of the verbiage the facts leading to filing of the writ

petition are as under:

i. The respondent No.16 herein which was respondent No.3 before the

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Tribunal, namely Director of Vocational Education and Training

(hereinafter DVET) issued an advertisement No.1/2022 for

appointment of Craft Instructors in the Industrial Training Institutes

throughout the State (ITIs) against 1457 estimated vacancies across

all the trades. The Education and Employment Department of the

Government of Maharashtra published Recruitment Rules, 1983

purportedly under Article 309 of the Constitution for recruitment to

the various posts in different ITIs including craft instructors. It

provides for minimum educational qualification and experience for

the post of craft instructors which are divided in the ratio of 75:25

between promotees and direct recruits respectively. It prescribes a

degree or diploma in the relevant stream of engineering or ITI

certificate after passing SCC with Mathematics and Science subjects

or equivalent examination.

ii. The respondent No.15 herein is the Director General Training (DGT)

Ministry of Skill Development and Entrepreneurship, New Delhi

which was the respondent No.2. By communication dated

27.05.2014 he informed all the State Governments that the National

Council of Vocational Training (hereinafter NCVT) having accepted

the recommendations of a working group constituted as per its

decision in its 41st meeting, regarding norms/qualification for the

instructors for different trades under Craftsman Training Scheme

(CTS). The DGT further informed that for appointments to the post

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of instructors the candidate should have professional qualification as

ITI pass out with National Craft Instructor Certificate for the trades

where CIT Scheme course was available and candidates with a

degree or development in relevant field of engineering having no

CITS certificate to be appointed on condition that they would get the

requisite CITS training within prescribed time. It was thus directed

that CITS qualification should be an essential requirement for the

post of Craft Instructors.

iii. Admittedly, in spite of several communications by the DGT, the

recruitment rules were never amended and the impugned

advertisement was issued. In accordance with Rule 3 (B)(b)(v)

Clause 15.22 of the advertisement inter alia provided that preference

would be given to CITS candidates in case the scores of candidates

were equal. Meaning thereby that if two candidates would score

same marks, a candidate having CITS certificate would be preferred.

It is this clause in the advertisement which was assailed before the

Tribunal on the ground that it was not in consonance with the

directives issued by the DGT rather inconsistent with it and the

respondent Nos.1 to 12 sought unconditional preference in the

selection to the post of craft instructors over the candidates who only

possessed ITI certificates or degree/diploma holders in the relevant

trade.

iv. The tribunal has relied upon the decisions of various High Courts

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viz :

a. Upendra Narain Singh and Ors. Vs. The State of U.P. and Anr.;

2006 SCC OnLine All 709 (High Court of Uttar Pradesh at Allahabad).

b. Suresh Kumar Bairagi and Ors. Vs. State of Uttarakhand & Ors.;

Writ Petition No.775/2010 (S/S) with connected Writ Petitions, (High Court of Uttarakhand at Nainital) decided on 11.03.2011,.

c. Rajveer Singh s/o. Shri Shayar Singh and Ors. Vs. Union of India through Secretary and Ors.; D.B. Civil Writ Petition No.12145/2016 (High Court of Rajasthan at Jodhpur) decided on 17.01.2017.

d. Naveen Dahiya Vs. State of Haryana and Ors.; CWP No.21132/2016 (O&M) decided on 17.01.2018 and in LPA No.169/2018 in CWP No.21132/2016 (High Court of Punjab and Haryana at Chandigarh) decided on 02.02.2018.

The Tribunal has held that since the subject was covered under

Entry 66 from List I in the Seventh Schedule of the Constitution the

Executive Instructions given by the DGT under Article 73 would

prevail over the Recruitment Rules framed by the State Government

under Article 309.

v. A similar challenge to recruitment process under the same

recruitment rules was put up in the year 2014 in Original Application

No.566/2014. The Original Application was allowed by the order

dated 06.05.2016. It was held that the guidelines issued by the DGT

in respect of CITS certificate being essential eligibility criteria for the

post of Craft Instructors and the State Government was directed to

start a fresh recruitment process for the post of Craft Instructors

considering the guidelines issued by the Central Government. This

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order in the Original Application No.566/2014 was assailed before

this Court in Writ Petition No.11055/2016. By the order dated

22.08.2017 it was held that even the notification dated 18.11.1983

namely the Recruitment Rules specifically laid down that the

preference may be given to the candidates who successfully

completed training in the central training institute for the post of

instructor. It was held that the advertisement did not prescribe for

such preference to be given which was in tune with the circular

issued by the DGT dated 27.05.2014. To this extent the order of this

Court confirmed the decision of the Tribunal in Original Application

No.566/2014.

vi. The Tribunal, therefore, in the impugned order concluded that the

directions issued by the DGT were binding on the State Government

and the Recruitment Rules were not in conformity with those

guidelines. It has also held that Clause 15.22 of the advertisement

was inconsistent with these guidelines. The Original Application was

allowed partly in above terms, namely it directed to modify the

clause No.15.22 and to continue with the recruitment process with

such modification providing specifically that CITS qualified

candidates would alone be given preference over non-CITS

candidates while preparing the select list. It also directed that even

in case sufficient number of CITS qualified candidates were not

available those can be recruited from non-CITS candidates subject to

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their acquiring such qualification within prescribed time limit. It also

directed the State Government to take steps for carrying out

necessary amendment in the Recruitment Rules specifically providing

for CITS certificate as an essential qualification for the post of craft

instructors. Hence this petition.

4. The respondent Nos.14 and 16 that is the State Government

and the DGT have filed affidavit-in-reply. They have not raised any dispute

regarding facts. However, according to them the advertisement in Clause

No.15.22 provided for preference to be given to the candidates having

successfully completed CITS course. It is also submitted that the

Recruitment Rules having been holding the field since 1983 Rule 6

specifically requires the persons appointed as craft instructors to undergo

training at the central training institute on deputation and to clear it within

three chances else they would be liable to either reversion or termination. It

is also mentioned that the Recruitment Rules have been framed under the

enabling power of the State Government under Article 309 of the

Constitution. Only preference was to be given to the CITS candidates. It

was expressly mentioned in the advertisement that in case the candidates

scored equal marks such a preference would be given to a CITS certificate

holder. Thus according to them the advertisement was strictly in accordance

with the recruitment rules.

5. The Respondent Nos.1 to 12 who are the original applicants

have also filed affidavit-in-reply and reiterated the averments in their

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original applications and supported the impugned order.

6. Learned advocate Mr. Barlinge for the petitioners who were

some of the respondents before the Tribunal and also the candidates in the

recruitment process, would submit that the impugned order does not

expressly declare Clause No.15.22 of the advertisement to be inconsistent

with the recruitment rules. He would submit that so long as this clause was

found to be in consonance with the Recruitment Rules, the Tribunal could

not have intervened. The Tribunal merely expected the State Government to

modify the Recruitment Rules and even issued a direction in the operative

part which is indicative of the fact that even it felt the need for modification

of the Recruitment Rules. If this is so, the Tribunal could not have struck

down Clause 15.22 which was in accordance with the Recruitment Rules.

He would submit that even if the Tribunal was of the view that the executive

instructions issued under Article 73 of the Constitution would supersede the

Recruitment Rules framed under Article 309, the only direction it could have

given was to modify the Recruitment Rules and the entire advertisement

ought to have been then quashed and set aside. The directions given by the

Tribunal are self contradictory, inasmuch as, it allows the recruitment

process to go on with a modified clause and simultaneously directs the State

Government to consider modification of the Recruitment Rules which reliefs

cannot go hand in hand.

7. Mr. Barlinge would submit that executive instructions under

Article 73 cannot limit the operation of the Recruitment Rules framed under

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Article 309.

8. The learned AGP also submitted that since the advertisement

and Clause 15.22 was strictly in accordance with the Recruitment Rules, till

the time those were not modified, no fault could have been found with the

clause which expressly provided preference to be given to a CITS candidate

in case the scores were equal. He would submit that it is not the case of the

respondent Nos.1 to 12 or it is not the observation of the Tribunal that the

clause was not in accordance with the rules without which there could not

have been any challenge to the recruitment process.

9. The learned AGP would submit that pursuant to the order under

challenge, the State Government has issued a corrigendum in obedience to

the directions and has now modified the clause so as to provide for

preference to be given to the CITS candidates over the non-CITS candidates

while preparing the select list and it is only after all the CITS candidates are

placed above in the select list, the non-CITS candidates can occupy the list.

10. The learned advocate Mr. Dambe for the respondent Nos.1 to 13

would support the order. He would submit that various High Courts have

consistently embarked upon and have held that the executive instructions

issued under Article 73 will prevail over the Recruitment Rules framed

under Article 309 and that is a correct interpretation of the provisions of the

Constitution. The Tribunal has merely relied upon them to conclude that

the CITS candidates deserve to be given preference against the non-CITS

candidates while preparing the select list irrespective of their scores.

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11. We have also heard Mr. Sarode learned advocate for the

intervenors who have preferred an intervention application. These

intervenors were not before the Tribunal and have sought to intervene in the

present petition to oppose the selfsame judgment and order of the Tribunal.

Mr. Sarode submitted that the clause 15.22 was strictly in accordance with

the Recruitment Rules and even declared that the preference would be given

to CITS candidate provided the scores were equal.

12. We have carefully considered the rival submissions and perused

the papers. On facts there is not much of a dispute and therefore we

propose to proceed on more intricate issue regarding the scope and ambit of

the relevant provisions. As is noted by the Tribunal the High Courts of Uttar

Pradesh, Uttarakhand, Rajasthan and the Punjab and Haryana have held

that the rules framed under Article 309 by the State Government would be

subservient to the executive instructions issued by the DGT of the

Government of India under Article 73. However, the High Court of Gujarat

in the matter of Dilip Kumar Chhotubhai Patel and Anr. Vs. State of Gujarat

and Ors.; Civil Application No.4806/2010 decided on 21.04.2010 has taken

a contrary view and has held that the statutory rules framed by the State

Governments under Article 309 will prevail over the executive instructions

issued under Article 73. Conspicuously, the Tribunal has not resorted to any

independent discussion as regards the core issue regarding the scope and

ambit of Articles 73 and 309 and has simply followed the ratio laid down by

the majority of the High Courts (supra) and has refused to follow the view

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of the Gujarat High Court but without assigning any reason.

13. Be that as it may, we shall now deal with the relevant provisions

in the Constitution :

"73. Extent of executive power of the Union._(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend -

(a) to the matters with respect to which Parliament has power to make laws; and

(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the government of India by virtue of any treaty on agreement: Provided that the executive power referred to in sub clause (a) shall not, save as expressly provided in this constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.

(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution.

246. Subject matter of laws made by Parliament and by the Legislatures of States

(1) Notwithstanding anything in clauses ( 2 ) and ( 3 ), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List)

(2) Notwithstanding anything in clause ( 3 ), Parliament, and, subject to clause ( 1 ), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the Concurrent List)

(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the 'State List').

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(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State List.

254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States

(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause ( 2 ), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.

309. Recruitment and conditions of service of persons serving the Union or a State.

Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:

Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act

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Entry 66 - List I - Seventh Schedule

66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.

Entry 25 - List III - Seventh Schedule

25. Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.

14. There is no dispute about the fact that the Recruitment Rules of

1983 framed by the State Government have been so framed under the

enabling powers of Article 309. Article 73 which is a part of Part V, Chapter

I of the Constitution relating to the Executive of the Union Government

provides that subject to the provision of the Constitution the executive

power of the Union shall extend to the matters with respect to which the

parliament has power to make laws. Article 246 provides for the powers of

the Parliament and the legislature of a State to legislate in respect of the

topics provided for in List I, List II and List III in the Seventh Schedule.

There cannot be any dispute about the fact that in view of Entry 66 in List I

of the Seventh Schedule the Parliament alone has the power to make laws

for providing coordination and determination of standards in institution for

higher education or research and scientific and technical institutions.

However, Entry 25 in List III inserted by Constitution 42 nd Amendment Act,

1976 inserted the subject education including technical education, medical

education and universities, subject to the provisions of Entries 63, 64, 65

and 66 of List I, Vocational and Technical Training of Labour. Admittedly,

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the State of Maharashtra has not made any legislation resorting to Entry

No.25 from List III but since this was the state of affair in some of the

matters before various High Courts, we are incorporating it.

15. Resorting to the wording of Article 73, the High Courts except

the High Court of Gujarat have held that since the executive power of the

Union extends to the matters in respect of which parliament has power to

make laws and since the technical education is covered under Entry 66 of

List I of Seventh Schedule, the executive instructions/guidelines issued by

the department of the Union under Article 73 would supersede the rules

framed by the State Governments under Article 309. Though these High

Courts have not expressly discussed, it appears that they have resorted to

such an interpretation in all probability because of the provision contained

in Article 254 which restricts the power of the legislature of the State to

make laws in respect of the matters which cannot be inconsistent with the

laws made by the Parliament. Obviously, there cannot be any debate as far

as the scope and ambit of the powers given to the Parliament and the State

Government to legislate and the supremacy of the laws framed by the

Parliament in the light of Article 254. However the issue is as to if by

implication this circumscribing limit on the powers of the State Legislature

provided under Article 254 would even apply by analogy while interpreting

the interplay between Article 73 and Article 309. In our considered view,

Article 73 is a part of Chapter I of Part V which provides for the powers of

the Executive, whereas, Article 309 is a part of Chapter I of Part XIV

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providing for services under the Union and the States. Articles 245 to 255

are part of Chapter I of Part XI which provides for relations between the

Union and the States. If such a scheme of the Constitution is borne in mind,

without there being any express provision like the one under Article 254,

merely because Article 73 makes the provisions in respect of the executive

power of the Union even to the matters with respect to which parliament

has power to make laws, in our considered view, such executive directions or

guidelines issued under that provision even if those are in respect of the

matters were the parliament has powers to make laws will not be governed

by the protection under Article 254 which only takes into account inter alia

the situation where the law framed by the legislature of a State are

repugnant to the laws made by the Parliament. If a State Government has

framed certain rules by resorting to the enabling provision contained in

Article 309 inter alia providing for the educational qualification for the post

of craft instructors to be appointed in different ITI's, even if those are not

compatible with the instructions issued by the DGT under Article 73, the

former cannot be said to be hit by any specific provision much less, by

Article 254.

16. If the Parliament legislates providing for minimum qualification

for the post of craft instructors by resorting to Entry 66 of List I of Seventh

Schedule, it will have a supremacy, however, the executive guidelines or

instructions issued under Article 73 cannot be regarded as if it is a law made

by the Parliament which will have a primacy by virtue of Article 254.

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17. We seek support to our such interpretation from the

observations in the matter of Government of Andhra Pradesh Vs. Smt. P.

Laxmi Devi (Smt.); (2008) 4 SCC 720. Relevant paras read as under:

"33. According to Kelsen, in every country there is a hierarchy of legal norms, headed by what he calls as the "grundnorm" (the basic norm). If a legal norm in a higher layer of this hierarchy conflicts with a legal norm in a lower layer the former will prevail (see Kelsen's The General Theory of Law and State).

34. In India the grundnorm is the Indian Constitution, and the hierarchy is as follows:

(i) The Constitution of India;

(ii) Statutory law, which may be either law made by Parliament or by the State Legislature;

(iii) Delegated legislation, which may be in the form of rules made under the statute, regulations made under the statute, etc.;

(iv) Purely executive orders not made under any statute.

35. If a law (norm) in a higher layer in the above hierarchy clashes with a law in a lower layer, the former will prevail. Hence a constitutional provision will prevail over all other laws, whether in a statute or in delegated legislation or in an executive order. The Constitution is the highest law of the land, and no law which is in conflict with it can survive. Since the law made by the legislature is in the second layer of the hierarchy, obviously it will be invalid if it is in conflict with a provision in the Constitution (except the directive principles which, by Article 37, have been expressly made non- enforceable)."

18. Even following observation from S.K. Nausad Rahaman and

others Vs. Union of India and Ors.; (2022) 12 SCC 1 would be relevant :

28. Fourth, norms applicable to the recruitment and conditions of service of officers belonging to the civil services can be stipulated in;

(i) A law enacted by the competent legislature;

(ii) Rules made under the proviso to Article 309 of the Constitution;

and;

(iii) Executive instructions issued under Article 73 of the Constitution, in the case of civil services under the Union and Article 162, in the case of Civil services under the States.

29. Fifth, where there is a conflict between executive instructions and rules framed under Article 309, the rules must prevail. In the event

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of a conflict between the rules framed under Article 309 and a law made by the appropriate legislature, the law prevails. Where the rules are skeletal or in a situation when there is a gap in the rules, executive instructions can supplement what is stated in the rules.

30. Sixth, a policy decision taken in terms of the power conferred under Article 73 of the Constitution on the Union and Article 162 on the States is subservient to the recruitment rules that have been framed under a legislative enactment or the rules under the proviso to Article 309 of the Constitution.

19. In the light of the above, the Tribunal has grossly erred in

blindly following the decisions of the High Courts which held that the

administrative guidelines issued by the DGT under Article 73 will have

primacy over the recruitment rules framed by the State under Article 309.

For the reasons given by us, so long as the field for providing for the

qualification for the post of craft instructor is not occupied by a law made by

the Parliament under Entry No.66 of List I from Seventh Schedule, the

executive instructions issued by the respondent - DGT by resorting to Article

73 will not supersede the Recruitment Rules, 1983 framed under Article 309

pursuant to which the impugned advertisement was issued. The

observations and conclusions which form the basis for the Tribunal to pass

the impugned order are clearly unsustainable in law.

20. It does appear that a similar challenge like the matter in hand

was put up to an advertisement published earlier by the State Government

which was challenged by preferring Original Application No.566/2014,

wherein the Tribunal had ordered to start the recruitment process for the

post of craft instructors afresh considering the guidelines issued by the DGT.

Admittedly, the challenge to that order put up before this Court in Writ

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Petition No.11055/2016 was turn down on 22.08.2017. The Tribunal has

therefore observed that in view of this decision of the High Court which has

reached finality, the challenge being put up to the present advertisement

clause 15.22 would sustain.

21. The relevant observations of this Court in that order contained

in paragraph Nos.6 and 7 read as under :

6. As far as post of Craft Instructor is concerned, notification dated 18.11.1983 also specifically lays down that the preference may be given to the candidate who have successfully completed training in the Central Training Institute for the post of Instructor. The advertisement did not prescribe the said condition. Moreover, even as per the Circular issued by the Directorate General of Employment and Training dated 27.5.2014 i.e. prior to the advertisement, for every unit in a trade one of the Instructors appointed should be with professional qualification as I.T.I. passed out with National Craft Instructor Certificate for trades where Craft Instructor Training course was available.

7. Considering the aforesaid aspects, the Tribunal has not committed any error in quashing the advertisement, however, it requires to be clarified that the advertisement shall stand quashed and set aside for the post of I.T.I. Craft Instructor in different trades and the said order of the Tribunal shall not have the effect on the impugned advertisement for the post other than I.T.I. Craft Instructors.

22. ex facie, the observations of this Court to which one of us was a

party (Mangesh S. Patil, J.) did not expressly consider and decide efficacy

and sustainability as well as the scope and ambit of the circular issued by

the DGT dated 27.05.2014 much less the issue regarding supremacy

between the administrative instructions under Article 73 and the Rules

framed under Article 309. In the absence of any such issue having been

1060.wp.2654.23.odt

raised in the earlier round, in our considered view, the above observations in

the order passed in the WP No.11055/2016 cannot be taken as laying down

any law.

23. In view of above, the impugned order directing modification of

the Clause 15.22 of the advertisement before continuing with the ongoing

recruitment process is not sustainable in law.

24. However, the direction in clauses 'C' and 'D' of the operative

part (supra) expecting the State Government to amend the recruitment rules

making professional qualification of CITS as essential qualification for the

post of craft instructors and directing to resolve the issue of number of CITS

instructors per trade by resorting to effective consultation are the directions

issued to the State Government which has not challenged the impugned

order and consequently, those two directions cannot be interfered within the

present matter.

25. The Writ Petition is partly allowed. Directions 'A' and 'B' from

the impugned order are quashed and set aside. Challenge to the rest of the

order and the directions contained in Clauses 'C' and 'D' of the operative

part is dismissed.

26. Intervention application is disposed of.

  (SHAILESH P. BRAHME, J.)                                   (MANGESH S. PATIL, J.)










                                                                             1060.wp.2654.23.odt

27. At this juncture, the learned advocate for the original applicants

i.e. respondent Nos.1 to 12 herein, seeks stay to the operation of the order

of this Court so as to enable them to put up a challenge before the Supreme

Court.

28. Considering the conspectus of the matter, operation of the order

shall stand stayed for a period of three weeks.

(SHAILESH P. BRAHME, J.)                                   (MANGESH S. PATIL, J.)




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