Bombay High Court
The Union Of Trained Craft Instructors ... vs The State Of Maharashtra Through Its ... on 19 January, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:1374-DB
937.CA.976.24.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.976 OF 2024
IN
REVIEW APPLICATION (ST) NO.39476 OF 2023
IN
WRIT PETITION NO.2654 OF 2023
1. The Union of Trained
Craft Instructors, through
its Authorised Signatory
2. Balu Namdeo Bhosale,
3. Nilesh Prakashappa Burkule ... APPLICANTS
VERSUS
1. The State of Maharashtra,
through its' Secretary,
Vocational Education & Training,
Mantralaya, Mumbai -32.
2. The Director General Training (DGT),
Ministry of Skill Development and
Entrepreneurship Employment, Exchange
Building Library Avenue, PUSA Complex,
New Delhi - 110012
3. The Director of Vocational Education and
Training /DVET, Maharashtra State, Mumbai -1
Office at 3, Municipal Corporation
Road, Mumbai 400 001
4. Rajesh Dnyaneshwar Rathod
5. Vinod Yeshwant Shelke
6. Tushar Pandurang Pawar
7. Mininath Ramprasad Humbe
8. Pritesh Sanjeev Kuntewad
9. Rameshwar Baliram Waghmare
10. Pramod Jalindar Kalapure
11. Snehal Pandurang Pawar
12. Navnath Janku Devre
13. Dhairyashil Deepak Madake
14. Pradeekumar Uttamrao Tangade
15. Savata Dayaram Mahajan ... RESPONDENTS
1/9
937.CA.976.24.odt
...
Advocate for Applicants : Mr. Sameer Vaidya h/f. Mr. S.S. Dambe
Addl. G.P. for respondent/State : Mr. M.M. Nerlikar
DSGI for respondent No.2 : Mr. A.G. Talhar
...
CORAM : MANGESH S. PATIL AND
SHAILESH P. BRAHME, JJ.
DATE : 19.01.2024
ORDER (MANGESH S. PATIL, J.) :
By way of this civil application and the review application the
applicants who were the original applicants in original application
No.761/2022 filed before the Maharashtra Administrative Tribunal, at
Aurangabad (herein after the Tribunal) are seeking condonation of delay in
filing the review application and are seeking review under Section 114 read
with Order XLVII Rule 1 of the Code of Civil Procedure of the judgment and
order passed by us in Writ Petition No.2654/2023, whereby, the order of
Tribunal passed in original application directing modification of clause
No.15.22 of the advertisement published by the Director of Vocational
Education and Training (hereinafter DVET) was quashed and set aside.
2. The facts leading to filing of this review application can be
summarized as under :
i. The DVET published advertisement on 17.08.2022 for filling up 1457
posts of Craft Instructors and ITIs instructors.
ii. On the ground that the Director General Training (DGT) and the
concerned Ministry of Union of India have mandated training under the
937.CA.976.24.odt
CITS (Craft Instructors Training Scheme) as an essential qualification for
appointment to the posts of Instructors in the ITIs (Govt. and Private) the
applicants objected to clause 15.22 of the advertisement by filing Original
Application No.761/2022 in the Tribunal.
iii. According to the applicants the Recruitment Rules dated
18.11.1983 provide for giving preference to the CITS candidates while
recruiting the post of Craft Instructors and IT Instructors.
iv. Even the Recruitment Rules dated 18.11.1983 of the State
Government also provide for preference to be given to the candidates
possessing CITS qualification while making recruitment to the post of Craft
Instructors (Clause III in the ITIs).
v. The Tribunal having inter alia concluded that indeed preference
should have been given to the CITS qualified candidates and holding that
clause No.15.22 of the advertisement was not compatible with the
recruitment rules issued direction to modify the clause before proceeding
with the recruitment process.
vi. Being aggrieved by the order of the Tribunal couple of
individuals filed the writ petition No.2654/2023.
vii. By the order under review this Court quashed and set aside the
directions of the Tribunal contained in clauses 'A' and 'B' of the operative
part, while allowing the writ petition partly. Hence this review application
by the original applicants.
937.CA.976.24.odt
3. We requested the learned advocate for the applicants to first
satisfy us at least prima facie, sustainability of the review application.
4. The learned advocate Mr. Vaidya holding for Mr. Dambe for the
applicants would submit that the applicants are seeking review on two
grounds. Firstly, while passing the order under review this Court has relied
upon a decision of the single Judge of the Gujarat High Court, however, the
applicants were unable to point out and even this Court did not take into
consideration that the Gujarat Recruitment Rules which were the subject
matter of the decision of the Gujarat High Court were peculiar which could
not be placed before this Court to distinguish the matter in hand. Secondly,
the view taken by us in the impugned order is inconsistent with the earlier
decision of a coordinate bench in Writ Petition No.11055/2016 decided on
22.08.2017 to which one of us (Mangesh S. Patil, J.) was a party. The
learned advocate would submit that while deciding Writ Petition
No.11055/2016 this Court had expressly taken a view that the notification
dated 18.11.1983 had expressly laid down that preference would be given to
the candidates who had successfully completed the training in central
training institute but the advertisement was not in accordance with that
notification and was also inconsistent with the circular of the DGT dated
27.05.2014. The learned advocate would submit that since one of us was a
member of the Division Bench which has already taken a view, the judicial
propriety and discipline demanded that while passing the order under
review we should have followed the view expressed in the earlier decision.
937.CA.976.24.odt
5. Taking up the first ground, as regards the single Judge decision
of the Gujarat High Court, the submission of the learned advocate and the
first ground being resorted to by the applicant is fallacious. Though we had
referred to the decision of the Gujarat High Court, we have merely referred
to that decision to point out as to how there were decisions of several High
Courts touching the selfsame issue. The views being expressed by us were
not compatible with the views expressed by the other High Courts but was
compatible with the decision of the Gujarat High Court. For the sake of
convenience, we reproduce the reference to the decisions of various High
Courts from paragraph Nos.12 and 15 which read thus :
"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 of the Gujarat High Court
but without assigning any reason.
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
937.CA.976.24.odt
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
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."
6. Considering the line of reasoning we have resorted to, coupled
with the above observations, we had merely made the aforementioned
observations to demonstrate as to how and why we were taking a different
view than the other High Courts and it was merely pointed out that the view
of the Gujarat High Court was compatible with our view.
937.CA.976.24.odt
7. After elaborately referring to Articles 73, 246, 254 and 309 and
referring to entry No.66 from List I of Seventh Schedule and Entry No.25 of
List III of that Schedule to the Constitution we had concluded in paragraph
No.19 as under :
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.
8. In view of the above state of affairs, the submission of the
learned advocate for the applicants and the stand being taken in the review
application as if we had simply followed the decision of the Gujarat High
Court is factually incorrect and the ground is not sustainable.
9. As far as the second ground regarding judicial discipline and
propriety in view of the directions of this Court in Writ Petition
No.11055/2016 is concerned, it is not that we were oblivious of that
decision. In fact we had given express reasons to demonstrate as to how the
directions in the Writ Petition No.11055/2016 were given without there
being any consideration and decision about efficacy and sustainability as
well as the scope and ambit of the circular issued by the DGT dated
27.05.2014 as well as without referring to the issue regarding the interplay
937.CA.976.24.odt
between the administrative instructions issued by resorting to Article 73 and
the Rules framed under Article 309 of the Constitution. After pointing out
this, we had specifically observed that in the order under review that the
directions in the writ petition No.11055/2016 could not be taken as laying
down any law. The relevant observations in the order under review can be
found in paragraph No.20 to 22 which read as under :
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 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.
937.CA.976.24.odt
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 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.
10. In view of these observations, when we had precisely pointed
out the reasons for not following the observations in the order dated
24.08.2023, and particularly when, the Special Leave to Appeal preferred by
the applicants aggrieved by the order under review has also been dismissed
albite in limine, even the second ground being relied upon by the applicants
is not sustainable.
11. In view of the above, both the grounds being resorted to by the
applicants for seeking a review being not sustainable, the application for
condonation of delay together with the review application is dismissed.
(SHAILESH P. BRAHME, J.) (MANGESH S. PATIL, J.)
habeeb
