Punjab-Haryana High Court
Dinesh Kumar And Others vs Union Of India And Others on 4 April, 2024
Author: Sanjeev Prakash Sharma
Bench: Sanjeev Prakash Sharma
Neutral Citation No:=2024:PHHC:045189-DB
CWP No. 37892 of 2018 2024:PHHC:045189-DB -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Reserved on : 05.03.2024
Date of Decision : 04.04.2024
1. CWP No. 37892 of 2018 (O&M)
Dinesh Kumar and others ...Petitioners
Versus
Union of India and others ...Respondents
2. CWP No. 27658 of 2019 (O&M)
Ajay Kumar and others ...Petitioners
Versus
Union of India and others ...Respondents
3. CWP No. 23887 of 2021 (O&M)
Jitender Kumar and others ...Petitioners
Versus
State of Haryana and others ...Respondents
4. CWP No. 1992 of 2022 (O&M)
Rozy and others ...Petitioners
Versus
State of Haryana and others ...Respondents
5. CWP No. 3424 of 2022 (O&M)
Shamsher Singh and others ...Petitioners
Versus
State of Haryana and others ...Respondents
6. CWP No. 4139 of 2022 (O&M)
Sonu and others ...Petitioners
Versus
State of Haryana and others ...Respondents
7. CWP No. 8666 of 2023 (O&M)
Harminder Pal Singh and others ...Petitioners
Versus
Union of India and others ...Respondents
8. CWP No. 8984 of 2023 (O&M)
Anil Kumar and others ...Petitioners
Versus
Union of India and others ...Respondents
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CORAM: HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. Akshay Bhan, Senior Advocate with
Mr. Amandeep Singh Talwar, Mr. Abjijeet Singh Rawlaey,
Mr. Abishai George, Advocates, for the petitioners
in CWP Nos. 37892 of 2018 and 8984 of 2023.
Mrs. Anu Chatrath, Senior Advocate with
Mr. Nikhil Singh, Advocate, for the petitioners
in CWP No. 27658 of 2019.
Mr. Sandeep Dhull, Advocate for
Mr. Somesh Gupta, Advocate, for the petitioners
in CWP Nos. 4139 of 2022 and 8666 of 2023.
Mr. Satya Pal Jain, Additional Solicitor General with
Mr. Somesh Gupta, Senior Panel Counsel, for Union of India
in CWP No. 37892 of 2018, 27658 of 2019, 1992, 3424 and 4139 of
2022.
Mr. Anil Chawla, Senior Panel counsel for respondent nos. 5 to 7
Union of India/ in CWP No. 23887 of 2021.
Mr. H. S. Oberoi, Advocate, for the respondent/ Union of India
In CWP Nos. 8666 and 8984 of 2023.
Ms. Shruti Jain Goel, Senior Deputy Advocate General, Haryana.
Mr. Lalit Rishi, Advocate and
Mr. Vivek Aggarwal, Advocate, for respondent
nos.5 to 13 in CWP No. 37892 of 2018.
Mr. D. S. Patwalia, Senior Advocate with
Mr. B. S. Patwalia, Mr. Lalit Rishi,
Mr. Akshit Pathania, Advocates, for respondent nos. 5 to 14
in CWP No. 27658 of 2019.
Mr. Gurminder Singh, Senior Advocate with
Mr. Jatinder Singh Gill, Advocate, for respondent nos. 15 to 22
in CWP No. 27658 of 2019.
SANJEEV PRAKASH SHARMA, J.
These writ petitions were heard together as common question of law
has been raised therein. The prayer made is also identical in all the cases. The
respective counsel were heard at length.
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2. Brief facts which are necessary for the disposal of these writ petitions
are that the petitioners are those who have passed National Trade Certificate/
National Apprenticeship Certificate. They have cleared one year course in
Craftsman Training for Instructor under Craft Instructor Training Scheme
(hereinafter to be referred as "CITS"). They also possessed two years experience of
working.
3. The bone of contention raised by the petitioners is with regard to the
qualifications prescribed by the State of Haryana for appointment of Craft
Instructor as laid down in the Industrial Training Department Haryana Field
Offices (Group-C) Service Rules, 2013 (hereinafter to be referred as "Group-C
Rules-2013").
4. An advertisement No. 10/2017 was issued by the Haryana Staff
Selection Commission (for short, 'the Commission') for 1064 posts of Craft
Instructor. The same was, however, cancelled due to relaxation of age of
contractual employees. Some other advertisement nos. 5/2018 dated 26.12.2018,
6/2018 and 7/2018 both dated 27.12.2018 were issued by the Commission for
filling up of 2388 posts of Craft Instructors, but for various reasons the same too
were cancelled on 11.06.2019. Fresh advertisement no. 12/2019 was published on
20.07.2019 inviting applications for filling of 3206 posts by the Commission.
5. CWP No. 37892 of 2018 was preferred challenging aforesaid
advertisement no. 12/2019 on the ground that it did not conform to the instructions
laid down by the Directorate General of Training, Ministry of Skill Development
& Entrepreneurship, Government of India (for short, 'the DGT') requiring the
candidates to possess mandatory qualification/ course under CITS for appointment
as Craft Instructor in terms of its letter dated 03.12.2019.
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Vide interim order dated 04.12.2019, this Court allowed the official
respondents to continue with the selection process initiated under Advertisement
no. 12/2019 with condition that appointments shall not be made till further orders.
On 19.07.2022, interim order was vacated and the department after completing the
recruitment process, appointed 1200 candidates out of 3206 candidates, who
possessed CITS qualification.
6. Another CWP No. 27658 of 2019 was filed wherein this Court vide
order dated 07.02.2023 stayed the recruitment process with liberty to proceed with
appointments of only those candidates who possessed CITS certificates. This
resulted in appointment of 2900 candidates while several of the candidates, who do
not have CITS course, have not been offered appointments although they are in
merit.
7. In the aforesaid background, certain events need to be noticed. The
DGT issued guidelines on 29.09.2010 to various States directing that ITI
Instructors must receive training as per the norms laid down by the National
Council for Vocational Training (hereinafter to be referred as 'NCVT') and must
possess the Craft Instructor Training Certificate. On 04.01.2013, the Industrial
Training Department, State of Haryana, notified the Group-C Rules-2013 (supra),
wherein they provided for filling up the post of Instructor, Craft Instructor, Craft
Instructor (COE), Craft Instructor (women) as under:-
"9(3) In case of direct recruitment for the post of Instructors, Craft
Instructor, Craft Instructor (COE), Craft Instructor (women), these
shall be / can be made in such a way so as to maintain the availability
upto 50% of appointed persons possessing Diploma/ Degree
qualification for the posts for which the essential qualifications has
been prescribed as Diploma or Degree or National Trade Certificate/
National Apprenticeship Certificate with / without Craft Instructor
Training Course in respective trade."
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The Rule as noted above did not provide for a candidate to necessarily have in his
possession Craft Instructor Certificate. On the other hand, Union of India again
issued instructions dated 01.01.2016 to the Director dealing with the Vocational
Training to comply with the decisions taken by the NCVT on norms and courses in
its meeting held on 17.12.2015. Respondent- Union of India had made it
compulsory for appointment of Instructors to have done CITS course. As per their
norms for recruitment of Instructors, CITS course was to be done mandatory for all
ITIs Instructors. The DGT again issued a letter on 16.01.2017 requesting the State
Governments and Union Territory Administrations to follow the guidelines as laid
down therein for recruitment of Instructors in ITIs. The said request was again
repeated on 11.07.2019. In the said letter, the observations of this High Court were
also quoted recording the statement made by the State counsel that the competent
authority would take appropriate decision with regard to inclusion of CITS. The
DGT again wrote a letter on 31.01.2020 requesting therein to revise the
recruitment rules of Vocational Instructors of ITIs and include CITS qualification
as an essential qualification to bring qualitative improvement in Vocational
Training Courses across the country. It also observed that if the CITS trained
Instructors were not available, necessary orders might be passed in terms of the
order dated 03.12.2019. But it stressed that CITS trained Instructors be given
preference in the recruitment process.
8. On the strength of the aforesaid letter, learned counsel appearing for
the petitioners state that Union of India vide its letter dated 11.01.2022 had further
clarified that DGT has mandated CITS qualification for recruitment of the
Vocational Instructors so that uniform, standardized and systematic training can be
imparted. They further submitted that the candidates, who do not possess the CITS
qualification, would not be eligible for appointment as Vocational Instructor and
have prayed to quash the advertisement dated 20.07.2019 read with corrigendum
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whereby applications have been invited for regular recruitment against various
categories of posts of Craft Instructors in terms of the new Group-C Rules 2013
which are contrary to the directions as issued by the Union of India.
9. Learned counsel for the petitioners have vehemently argued the case
and submit that under Article 246 of the Constitution of India, the Parliament has
exclusive power to make laws on any matter enumerated in List I of the Seventh
Schedule i.e. Union List, while both Parliament and Legislature have power to
make laws on any matter enumerated in List III of the Seventh Schedule i.e.
Concurrent List. Learned counsel referring to Entry 63, 64 and 65 of the Union
List and Entry 25 of the Concurrent List submit that in terms of Article 73 and 162
of the Constitution of India, each State is bound to follow the law as laid down by
the Government of India and in support thereto relied on the judgment of Hon'ble
the Supreme Court in Rai Sahib Ram Jawaya Kapur and others vs State of
Punjab AIR 1955 SC 549.
10. Learned counsel for the petitioners further submitted that NCVT i.e.
National Council for Vocational Training was set up by the Government of India in
the year 1956 and it was entrusted with the responsibility of prescribing standards
of training and curriculum for craftsman training.
11. The NCVT is empowered and has a function to prescribe
qualifications for technical staff of training institutions. Union of India with the
assistance of International Labour Organisation established a Central Training
Institutes for instructions in India offering one year Craft Instructor Training
Course. The said course is specially designed to equip the instructors with an
understanding of labour and management relationship for preparing the trainees of
their entry and progress in the trade. The Craft Instructor Training is stated to be a
higher teaching qualification than Diploma in Engineering and National Trade
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Apprenticeship Certificate and is a specialized design training to equip the
instructor with understanding of labour and management relationship.
12. Learned counsel for the petitioners further submit that Training Rules
of 2012 and the earlier Rules of 1998 did not provide Craft Training Course to be
an essential qualification, however, as per note appended to the qualification,
preference would be given to Degree/ Diploma holder candidates possessing Craft
Training Instructor Course in the relevant trade from NCVT recognized
institutions. Thus, submits that the rules framed by the authorities were contrary to
the directions/ instructions issued by the Union of India, which mandate pre
qualification of CITS certificate for appointment as a Craft Instructor. The action
of the official respondents, therefore, in issuing the advertisement without
incorporating the said CITS Certificate as an essential qualification, was
unjustified.
13. Further it has been argued by learned counsel for the petitioners that
the DGT instructions are binding on the State Governments. The action of the State
Government for not incorporating the CITS qualification as a mandatory
qualification issued by the DGT vitiates the selection of such candidates, who did
not have the said pre qualification of CITS. Learned respective counsel, therefore,
submit that only those candidates, who possess CITS certificate may be allowed to
be appointed as Craft Instructors.
The action of the DGT in relaxing the norms and allowing the State
Government to continue to fill the posts by the candidates, who did not possess the
CITS certificates, has been challenged in CWP No. 37892 of 2018. They further
submit that once the Union of India has reached to the conclusion that CITS is a
mandatory qualification, the DGT could not have allowed the State Government to
fill the posts from Non CITS qualified Diploma/ Degree holders and allowing them
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to clear CITS qualification subsequently after appointment. Learned counsel
submit that such decision taken by the DGT is unjustified and contrary to the
norms as laid down by them.
14. Learned counsel for the petitioners submit that in terms of Entry 66 of
Union List, it was binding upon the State authorities to frame rules according to the
directions issued by the Central Government and the Rule 9(8) of Group-C Rule-
2013 making CITS as optional to the extent, it goes contrary to the directions of
the Central Government, and deserves to be declared ultra vires to the Constitution
of India.
15. Per contra, learned counsel for the contesting respondent nos. 5 to 14
in CWP No. 27658 of 2019 submits that the rules framed under Proviso to Article
309 of the Constitution of India are legislative in character while Proviso to Article
309 confers legislative power of the Governor in situation where rules have not
been framed relating to appointment by the State Legislature. He further submits
that such powers exercised under Proviso to Article 309 is legislative in character
and not executive as held by Hon'ble the Supreme Court in Raj Kumar vs Union
of India and others 1975 (4) SCC 13 and B. S. Yadav and others vs State of
Haryana and others 1981 SCC (L&S) 343.
16. Learned senior counsel for the contesting respondent nos. 5 to 14
further submits that any executive instructions/ policy decisions taken in terms of
power conferred by Article 73 and Article 162 to the respective Governments,
namely, Union and the State Government would be subservient to recruitment
rules, which have been framed under Proviso to Article 309 of the Constitution of
India. Learned counsel relies on judgment of Bombay High Court in Rajesh and
others vs Balu and others 2023 (6) ALL MR 93 and judgment of Hon'ble the
Supreme Court in S.K. Nausad Rahaman vs Union of India 2022 (12) SCC 1.
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17. It is further submitted that the petitioners cannot be allowed approbate
and reprobate as they have challenged the rule relying on the directions of the DGT
with respect to CITS qualification to be mandatory while at the same time they
have also challenged the DGT letter dated 03.12.2019 whereby it relaxed the said
qualification for candidates to be appointed on the posts. In this regard, he relied
on judgment in Rajesh's case (supra).
18. We have considered the submissions.
19. It is to be noticed that Entry 66 of Union List in Schedule Seventh
provides for standards in institution for higher education. Entries 63 to 66 of Union
List read as under:-
"63. The institutions known at the commencement of this
Constitution as the Benares Hindu University, the Aligarh Muslim
University and the Delhi University; the University established in
pursuance of article 371E; any other institution declared by
Parliament by law to be an institution of national importance.
64. Institutions for scientific or technical education financed by the
Government of India wholly or in part and declared by Parliament by
law to be institutions of national importance.
65. Union agencies and institutions for-
(a) professional, vocational or technical training, including the
training of police officers; or
(b) the promotion of special studies or research; or
(c) scientific or technical assistance in the investigation or
detection of crime.
66. Co-ordination and determination of standards in institutions for
higher education or research and scientific and technical
institutions."
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20. While Entry 25 of List III (Concurrent List) as substituted by 42nd
Amendment with effect from 03.01.1977 provides as under:-
"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"
21. Articles 73, 162 and 246 of the Constitution of India provide as
under:-
Article 73 of the Constitution of India
"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 matters with respect to which Parliament
has power to make laws for that State such executive power or
functions as the State or authority thereof could exercise immediately
before the commencement of this Constitution."
Article 162 of the Constitution of India.
162. Extent of executive power of State -Subject to the provisions of
this Constitution, the executive power of a State shall extend to the
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matters with respect to which the Legislature of the State has power to
make laws:
Provided that in any matter with respect to which the
Legislature of a State and Parliament have power to make laws, the
executive power of the State shall be subject to, and limited by, the
executive power expressly conferred by the Constitution or by any law
made by Parliament upon the Union or authorities thereof.
Article 246 of the Constitution of India
"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 1 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').
(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."
22. From the perusal of the aforesaid provisions of Articles of the
Constitution of India as well as Entries of Union List, it is apparent that the Central
Government may establish vocational institutions and determine standards of such
institutions and also make provisions for appointment of teachers/ instructors in
such national level vocational institutions. Independently the State Government
can also establish vocational and technical centres and in terms of Article 246 (2)
of the Constitution of India, lay down rules which may be framed under Article
309 and proviso thereto for appointment of teachers/ instructors in such
institutions. Thus, the power of framing rules for appointment and the minimum
qualifications required, are available with the State Government as well as with the
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Central Government for their respective institutions. The extent of executive power
of the Union under Article 162 of the Constitution of India with respect to the
matters relating to the legislative powers of the State is exclusive. However, in
terms of the proviso, the executive power of the State can be limited by the
executive power conferred upon the Union Government by any law made by the
Parliament.
23. The NCVT i.e. the National Council of Vocational Training is not
established under any Act passed by the Parliament and is an executive body
formed by the Director General of Training, Ministry of Skill Development &
Entrepreneurship, Government of India, by exercising powers under Article 73 (1)
of the Constitution of India. Therefore, letter issued by the DGT requesting the
respective State Governments to incorporate the requirement of Craft Instructor
Training Certificate as a prerequisite qualification for appointment of instructor in
various faculties, for; it is to be considered as directory and not mandatory.
24. Learned senior counsel for the petitioners Smt. Anu Chatrath has
strenuously argued that the State Government cannot be allowed to ignore the
directions issued by the executive of the Union. However, we differ, as Articles 73
and 162 of the Constitution of India relate to the executive powers of the Union
and the corresponding provisions with regard to the executive powers of the State
Government.
25. In Rai Sahib Ram Jawaya Kapur (supra) the aspect was discussed at
length but where the statutory rules have been framed under proviso to Article 309
of the Constitution by the State, directions issued by the executive under Article 73
of the Constitution cannot override such statutory rules and the corollary would be
that the rules so framed would not be declared ultra vires to the Constitution
merely because the Central Government by issuing executive instructions takes a
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view different from the statutory rules framed by the State Government for
appointment of persons and requisite qualifications laid down for the purpose.
26. It is also noticed that the Central Government has also in its reply by
way of affidavit has admitted that the "DGT is not involved in framing
Recruitment Rules of any Employer." Further "vocational training is a concurrent
subject of both Central and State Governments. The development of training
schemes at National level, the evolution of policy, laying of training standard,
norms, conducting of examinations, certification, etc. are the responsibilities of the
central government, whereas, day to day administration including an admission in
ITIs, rests with the respective State Governments/ UTs. Keeping in view the
aforesaid, the Union Government has rightly observed that it is a recommendation
which the State Government should follow. However, the same cannot be said to
have binding effect."
27. Learned counsel for the petitioners has also relied on a judgment
passed by Division Bench of Allahabad High Court in Pawan Kumar Sagar and
others vs State of U.P. and others 2006 (24) SCT 197, wherein the Allahabad
High Court took a view that the amendment made in U. P. Industrial Training
Institute Service Rules 2003 is violative of Constitutional Scheme of distribution of
legislative powers. The view taken by the Allahabad High Court in Pawan Kumar
Sagar (supra) has to be considered with respect to an erroneous assumption of
vocational training to be part of Entry 66 of the Union List, whereas vocational
training is completely different referable to Entry 25 of the Concurrent List i.e. List
III. Entry 66 is for higher education or research and scientific and technical
institutions. Government Central Institutes are, therefore, not comparable or equal
to the higher education institutions of research, scientific and technical
qualifications like IITs, Engineering Colleges, etc. Once a fulcrum of the decision
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is based on an erroneous interpretation, the rest of the judgment would also fail.
We, therefore, respectfully disagree with the view taken by the Allahabad High
Court in Pawan Kumar Sagar (supra).
28. In S. K. Nausad Rahaman's case (supra), Hon'ble the Supreme Court
while analyzing the basic precepts of service jurisprudence held as under:-
"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 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."
29. At the same time, we may not be misunderstood to mean that the State
Government should not follow the guidelines issued by the Central Government,
however, if for practical reasons, it is not possible to make such a requirement as
mandatory, and the rules framed under Proviso to Article 309 of the Constitution
have not been incorporated such a condition for the purpose of appointment as
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Craft Instructors; this Court by Writ of Mandamus would not direct the State
Government to frame their rules accordingly nor can a rule framed by the State
Government be declared ultra virus on the said basis. It would be worthwhile to
notice the stand taken by the Central Government in the present cases. Affidavit
has been filed in CWP No. 27658 of 2019 on behalf of the Union of India and it
has been stated that the Director General of Training (the DGT) is not involved in
framing recruitment rules of any employer. Guidelines, syllabi or office orders, if
any, issued from time to time are common to all stakeholders, such State
Governments, Union Territories, private ITIs or students. Paras 3 and 4 of the
affidavit are extracted below:-
"3. That DGT is not involved in framing Recruitment Rules of any
Employer. Guidelines, syllabi or office orders if any issued time to
time are common to all Stakeholders such as State Governments,
UTs, Private ITI or students.
4. The Craftsman Training Scheme (CTS) is the major vocational
training program under the aegis of National Council for Vocation
Training in Directorate General of Training, Ministry of Skill
Development and Entrepreneurship, Government of India.
Vocational Training is a concurrent subject of both Central and
State Governments. The development of training schemes at
National level, the evaluation of policy, laying of training standard,
norms, conducting of examinations, certification, etc. are the
responsibilities of the central government, whereas, day to day
administration including an admission in ITIs, rests with the
respective State Governments/ UTs."
30. Thus, it is apparent that the CTS is a Union Centric Course and all
persons in various States cannot be expected to have joined the said training
scheme. Moreover, such training programme can also be conducted after selection.
The CTS, as stated in the affidavit, is being offered through network of ITIs, and
therefore, it cannot be denied that such pre qualification is very important to be
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provided to the Instructors. Hence, all the State Governments have been asked to
provide such additional qualification. While this Court approves the said aspect,
however, it is difficult to accept contention of learned counsel for the petitioners
that candidates, who have not obtained the said qualification or training, should be
deprived of from being selected as Craft Instructors under the Rules framed by the
State, which does not provide for such a necessary qualification. Further this Court
also finds that in the advertisement too issued by the official respondents the
essential qualification is as under:-
"i) AICTE recognized Bechelor degree in Engineering/ Technology
or its equivalent in Mechanical / Production/ Industrial/
Fabrication Engineering from AICTE recognized institution/
university or Institutions established by Ministry of Human
Resource Development (MHRD), Government of India, on full
time regular mode basis, with one year practical/ teaching
experience.
OR
Diploma in Engineering or its equivalent in Mechanical/
Production/ Industrial/ Fabrication from State Board of
Technical Education of any State Government with two years
practical/ teaching experience.
ii) Hindi/ Sanskrit upto Matric Standard or higher education."
31. We are afraid that the judgment passed by Allahabad High Court
failed to take notice of the fact that under Entry 66 of the Union List, the standard
of education does not include vocational training. In fact, even under Entry 25 of
List III (Concurrent List) of Schedule Seventh, it is apparent that while the
education, including technical education, medical education and universities have
been made subject to the provisions of entries 63, 64, 65 and 66 of List I; and a
semicolon (;) has been added, whereafter the words 'vocational and technical
training of labour' have been mentioned.
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32. The aforesaid semicolon used in Entry 25 of List III cannot be ignored
and has to be understood and the Legislative intent is apparent to keep vocational
and labour training independent from the control of the Central Government. The
Allahabad High Court in Pawan Kumar Sagar's case (supra) has observed as
under:-
"15. There cannot be any two opinions about what the
essential qualification of a training instructor in a Government
Industrial Training Institute actually is. It has everything to do
with the standard of a technical institution; that is the main and
guiding factor. No doubt it is also a qualification necessary for
obtaining service, but service is not the main factor. Also it is
much more relatable to Entry 66 rather than Entry 25 which
contains vocational and technical training of labour. The
reason for our concluding to this effect is that the Training
Instructors should be looked upon more, and much more, as
those entrusted with the responsibilities of maintaining the
standard of instruction rather than merely as part of a labour
force. Even in a List III matter, the Central exercise of power
would prevail, on the principles akin to those contained in
Article 254, as Presidential assent cannot had in regard to
exercise of power under Articles 162 or 309."
33. We, however, do not subscribe to the view expressed hereinabove as
the learned Judges of the Allahabad High Court in the aforesaid case have failed to
take notice that the training provided under the Industrial Training Institutes is not
a technical training but is a vocational training. The word 'vocational' has to be
understood differently from that of 'technical' training, which means training in
various Craft courses like Tailoring, Interior Decoration and Designing, Carpenter,
Book Binder, Fitter, Painter Domestic, Turner, Clock and Watch Repairer, Leather
Goods Maker, Artisans etc. which are relating to various daily jobs required in
society and have nothing to do with engineering courses or science training of
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higher standard. The technical courses are governed by the guidelines and syllabus
laid down by All India Technical Council.
34. We have also carefully gone through the various judgments cited by
learned counsel for the petitioners and for the reasons, as above, we do not find any
of them being applicable to the facts of the case and the issue involved herein. At
the same time, we agree with the contention raised by learned counsel for the
contesting respondents and the judgment passed by Gujarat High Court in Special
Civil Application No. 4806 of 2010 - Dilipkumar Chhotubhai Patel and 1-
petitioner (s) vs State of Gujarat and 2- respondents holding that the statutory
rules prevail over the executive directions and is found to be the correct
interpretation and so agree.
35. The view taken by Bombay High Court in Rajesh's case (supra) is
somewhat similar to the view taken in S. K. Nausad Rahaman's case (supra),
which can be countenanced wherein the similar view taken by us has been
observed, which is 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.
xxx xxx xxx
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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.
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."
36. We are told that judgment passed in Rajesh's case (supra) has been
upheld by Hon'ble the Supreme Court in Special Leave to Appeal (C) Nos. 20357-
20358 of 2023 Balu and others vs The State of Maharashtra and others, decided
on 17.10.2023.
37. In view of the above, challenge to Rule 9(3) fails and it is directed that
the appointments be made to the posts of Instructors on the terms of the
advertisement and Rule 9(3). The communication of the DGT allowing the State
Government to continue with appointments to those candidates, who do not
possess CITS certificate, challenged in the writ petitions, in view of our findings
and conclusion as above, the said challenge also fails. The writ petitions are
accordingly dismissed.
38. However, before we close the issue, it is to be observed that so far as
education whether technical or vocational is concerned, the standard ought to be
maintained universally all over India. More so, as a candidate has a right of
seeking employment in any State, need of the RAC is to provide similar standard
of education to all students in all the States. There should be no deviation in the
capability of the teachers, who are required to teach and instruct in the various
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courses whether vocational or technical. In view thereto, it is essential that same
standard of selection should be followed by all States. It is not a case where there is
any difficulty in providing CITS training in Punjab and Haryana on account of any
reasons, therefore, it is necessary that the State Government should take steps to
incorporate the said condition as a pre qualification in their service rules in order to
maintain the same standard of all the Instructors. Those instructors, who do not
possess CITS qualification, should be asked to obtain such a training even after
appointment so that the standard is maintained by all Instructors while performing
their duties. Accordingly, we direct the State Government to take steps keeping in
view our observations, as above, and make amendments in the rules accordingly
for future.
39. With the aforesaid observations, we dismiss these writ petitions and
direct the official respondents to proceed further and give appointments to all the
candidates, as per their merits. Exercise be done expeditiously so that the courses
in all the ITIs can commence.
40. All interim orders stand vacated.
41. All pending applications shall stand disposed of.
42. No costs.
(SANJEEV PRAKASH SHARMA)
JUDGE
04.04.2024 (SUDEEPTI SHARMA)
VS JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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