Allahabad High Court
Berojgar Audyogik Kalyan Samiti And 39 ... vs State Of U.P. And 2 Ors on 4 January, 2023
Author: Rajendra Kumar-Iv
Bench: Surya Prakash Kesarwani, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
(Judgment reserved on 06.12.2022)
(Judgment delivered on 04.01.2023)
Court No. - 03
1. Case :- WRIT - A No. - 63110 of 2014
Petitioner :- Berojgar Audyogik Kalyan Samiti And 39 Ors
Respondent :- State Of U.P. And 2 Ors
Counsel for Petitioner :- A.K. Mishra,A.N. Tripathi,R.P. Mishra
Counsel for Respondent :- C.S.C.,A.S.G.I.,Ashok Khare,G.K.Singh,H.P.Shahi,Ram Dular,Siddharth Khare
2. Case :- WRIT - A No. - 65712 of 2014
Petitioner :- Pankaj Kumar Mishra And 23 Ors
Respondent :- State Of U.P. And 2 Ors
Counsel for Petitioner :- Upendra Kumar Pandey,R.K. Ojha,V.K. Pandey
Counsel for Respondent :- C.S.C.,A.S.G.I. - 2014/11118,Bal Mukund,Siddharth Singhal
3. Case :- WRIT - A No. - 5345 of 2015
Petitioner :- Umesh Verma, Ankur Sharma
Respondent :- State Of U.P. And 2 Ors.
Counsel for Petitioner :- Lallan Verma
Counsel for Respondent :- C.S.C.,A.S.G.I. - 2015/0191,U.S. Singh
4. Case :- WRIT - A No. - 41191 of 2015
Petitioner :- Kuldeep Kumar
Respondent :- State Of U.P. And 2 Ors.
Counsel for Petitioner :- Sanjay Singh Sengar,Prasant Rathor,Rajendra Kumar Gupta,Sanjay Gangwar
Counsel for Respondent :- C.S.C.,A.S.G.I.
5. Case :- WRIT - A No. - 42176 of 2015
Petitioner :- Vishal Srivastava And 4 Ors.
Respondent :- State Of U.P. And 2 Ors.
Counsel for Petitioner :- Ratnesh Kumar Srivastava,Chandra Shekhar Saran,Ratnesh Kumar Srivastava,Ved Byas Mishra
Counsel for Respondent :- C.S.C.,A.S.G.I.,Arvind Kumar Goswami
6. Case :- WRIT - A No. - 56479 of 2015
Petitioner :- Berojgar Audyogik Kalyal Samiti And 18 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- A.K. Mishra,A.N. Tripathi,R.P. Mishra
Counsel for Respondent :- C.S.C.
7. Case :- WRIT - A No. - 21272 of 2018
Petitioner :- Vijay Prakash Yadav And Another
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Sushant Misra,Surendra Kumar
Counsel for Respondent :- C.S.C.,A.S.G.I.,Siddharth Singhal
8. Case :- WRIT - A No. - 23900 of 2018
Petitioner :- Manendra Singh And 18 Others
Respondent :- State Of U P And 3 Others
Counsel for Petitioner :- Govind Kumar Saxena,Himanshu Shekhar
Counsel for Respondent :- C.S.C.,A.S.G.I.
9. Case :- WRIT - A No. - 25428 of 2018
Petitioner :- Rakesh Kumar And 5 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Anil Kumar Srivastava,Surendra Kumar
Counsel for Respondent :- C.S.C.,A.S.G.I.,Rizwan Ahmad,Siddharth Singhal
10. Case :- WRIT - A No. - 2034 of 2019
Petitioner :- Ashwani Kumar And 5 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Surendra Kumar,Sushant Misra
Counsel for Respondent :- C.S.C.,A.S.G.I.,Siddharth Singhal
11. Case :- WRIT - A No. - 3646 of 2019
Petitioner :- Sharad Kumar And 2 Others
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Chitranshu Srivastav,Devi Prasad Tripathi,Lalmani Srivastava,Manish Kumar Pandey
Counsel for Respondent :- C.S.C.,A.S.G.I.,Purnendu Kumar Singh,Siddharth Singhal
12. Case :- WRIT - A No. - 4886 of 2019
Petitioner :- Rajendra Singh
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Manish Kumar Pandey,Devi Prasad Tripathi
Counsel for Respondent :- C.S.C.,A.S.G.I.,Siddharth Singhal
13. Case :- WRIT - A No. - 5348 of 2019
Petitioner :- Girish Chandra Gupta And 4 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Surendra Kumar,Sushant Misra
Counsel for Respondent :- C.S.C.,A.S.G.I.,Siddharth Singhal,Deepmala
14. Case :- WRIT - A No. - 5517 of 2019
Petitioner :- Arvind Kumar And Another
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Shubhranshu Pandey,Ankur Sharma,Kalpana Sinha,Namit Srivastava,Utkarsh Srivastava,Vallabhi Shukla
Counsel for Respondent :- C.S.C.,A.S.G.I.,Rajesh Kumar Tripathi
15. Case :- WRIT - A No. - 5771 of 2019
Petitioner :- Raj Kumar And 9 Others
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Pankaj Saksena,Govind Kumar Saxena
Counsel for Respondent :- C.S.C.,A.S.G.I.,Raj Kumari Devi
16. Case :- WRIT - A No. - 5773 of 2019
Petitioner :- Shiv Prakash And 19 Others
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Yogendra Kumar Srivastava,Lalmani Srivastava
Counsel for Respondent :- C.S.C.,A.S.G.I.,Ajay Kumar Sharma
17. Case :- WRIT - A No. - 5774 of 2019
Petitioner :- Rajesh Singh And 42 Ors.
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Yogendra Kumar Srivastava,Lalmani Srivastava
Counsel for Respondent :- C.S.C.,A.S.G.I.,Arvind Kumar Goswami
18. .Case :- WRIT - A No. - 5777 of 2019
Petitioner :- Ram Ji And 11 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Yogendra Kumar Srivastava,L.M. Srivastava
Counsel for Respondent :- C.S.C.
19. Case :- WRIT - A No. - 5779 of 2019
Petitioner :- Abha Sharma And 2 Others
Respondent :- State Of U.P.And 5 Others
Counsel for Petitioner :- Yogendra Kr. Srivastava,L.M. Srivastava
Counsel for Respondent :- C.S.C.,A.S.G.I.,Y.P. Singh
20. Case :- WRIT - A No. - 5782 of 2019
Petitioner :- Sushil Chaurasiya And 30 Others
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Yogendra Kumar Srivastava,Hari Nath Tripathi,Lalmani Srivastava
Counsel for Respondent :- A.S.G.I.,Chandra Jeet Singh
21. Case :- WRIT - A No. - 5783 of 2019
Petitioner :- Ajay Kumar And 16 Ors.
Respondent :- State Of U.P. And 4 Ors.
Counsel for Petitioner :- Govind Kumar Saxena,Amar Sukh Rai
Counsel for Respondent :- C.S.C.,A.S.G.I.,Kailash Singh Kushwaha,Siddharth Singhal
22. Case :- WRIT - A No. - 5785 of 2019
Petitioner :- Ravindra Kumar And 14 Ors.
Respondent :- State Of U.P. And 4 Ors.
Counsel for Petitioner :- Govind Kumar Saxena,Ratnesh Kumar Srivastava,Ved Byas Mishra
Counsel for Respondent :- C.S.C.,A.S.G.I.,Amar Sukh Rai,Vinay Kr.Pandey
23. Case :- WRIT - A No. - 5787 of 2019
Petitioner :- Harish Kumar Patel And 6 Others
Respondent :- State Of U P And 3 Others
Counsel for Petitioner :- Surendra Kumar,Sushant Misra
Counsel for Respondent :- C.S.C.,A.S.G.I.,Siddharth Singhal
24. Case :- WRIT - A No. - 5790 of 2019
Petitioner :- Kamlesh Kumar Manjhi
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Devi Prasad Tripathi,Manish Kumar Pandey
Counsel for Respondent :- C.S.C.,A.S.G.I.,Rajesh Kumar Jaiswal
25. Case :- WRIT - A No. - 5793 of 2019
Petitioner :- Ajay Dutt And Another
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Ravi Prakash Pandey
Counsel for Respondent :- C.S.C.,A.S.G.I.
26. Case :- WRIT - A No. - 5795 of 2019
Petitioner :- Sharda Prakash Yadav And 27 Ors
Respondent :- State Of U.P. And 3 Ors
Counsel for Petitioner :- Yogendra Kumar Srivastava,L.M. Srivastava,Ramesh Kumar Mishra
Counsel for Respondent :- C.S.C.,Siddharth Singhal
27. Case :- WRIT - A No. - 6498 of 2019
Petitioner :- Hari Om Vishwakarma And 17 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Govind Kumar Saxena,Govind Kumar Saxena,Pankaj Saksena,Ratnesh Kumar Srivastava
Counsel for Respondent :- C.S.C.,A.S.G.I.
28. Case :- WRIT - A No. - 10820 of 2019
Petitioner :- Piush Kumar And 8 Others
Respondent :- State Of U P And 3 Others
Counsel for Petitioner :- Surendra Kumar,Sushant Misra
Counsel for Respondent :- C.S.C.,A.S.G.I.,Deepmala Srivastava,Siddharth Singhal
29. Case :- WRIT - A No. - 13423 of 2019
Petitioner :- Umakant Yadav And 8 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Prabhat Kumar Singh
Counsel for Respondent :- C.S.C.,A.S.G.I.,Girish Kumar Srivastava
30. Case :- WRIT - A No. - 17041 of 2019
Petitioner :- Vijay Kumar Yadav And 2 Others
Respondent :- State Of U P And 4 Others
Counsel for Petitioner :- Sandeep Kumar Agrahari,Vinod Kumar Upadhyay
Counsel for Respondent :- C.S.C.,A.S.G.I.,Gaya Prasad Singh,Kailash Singh Kushwaha,Siddharth Singhal
31. Case :- WRIT - A No. - 21295 of 2019
Petitioner :- Arvind Kumar And 2 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Shubhranshu Pandey,Ankur Sharma,Ratnesh Kumar Srivastava
Counsel for Respondent :- C.S.C.,A.S.G.I.,Gaya Prasad Singh,Siddharth Singhal
32. Case :- WRIT - A No. - 265 of 2020
Petitioner :- Yogendra Kumar Rai And 7 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Surendra Kumar,Sushant Misra
Counsel for Respondent :- C.S.C.,A.S.G.I.,Om Prakash Gupta,Siddharth Singhal
33. Case :- WRIT - A No. - 3410 of 2020
Petitioner :- Durga Prasad Yadav And 3 Others
Respondent :- State Of U.P. Through Secretary Vocational Education And Craft Development Department And 4 Others
Counsel for Petitioner :- Devendra Kumar,Surendra Kumar
Counsel for Respondent :- C.S.C.,A.S.G.I.,Purnendu Kumar Singh,Siddharth Singhal
34. Case :- WRIT - A No. - 13448 of 2020
Petitioner :- Gurdwar Singh
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Devi Prasad Tripathi,Manish Kumar Pandey
Counsel for Respondent :- C.S.C.,Siddharth Singhal
35. Case :- WRIT - A No. - 3894 of 2021
Petitioner :- Om Prakash And 7 Others
Respondent :- State Of U P And 3 Others
Counsel for Petitioner :- Shridhar Tripathi,Sushant Misra
Counsel for Respondent :- C.S.C.,A.S.G.I.,Siddharth Singhal,Ved Mani Tiwari
36. Case :- WRIT - A No. - 11648 of 2021
Petitioner :- Kamlesh Kumar Chauhan And 5 Others
Respondent :- State Of U P And 3 Others
Counsel for Petitioner :- Surendra Kumar
Counsel for Respondent :- C.S.C.,Jitendra Prasad Mishra,Siddharth Singhal
37. Case :- WRIT - A No. - 16951 of 2021
Petitioner :- Gulab Chandra Yadav And 13 Others
Respondent :- State Of U P And 2 Others
Counsel for Petitioner :- Yashpal Yadav,Lalji Yadav
Counsel for Respondent :- C.S.C.,A.S.G.I.,Neeru Devi,Siddharth Singhal
38. .Case :- WRIT - A No. - 18297 of 2021
Petitioner :- Upendra Kumar Pandey And 7 Others
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Sandeep Kumar Agrahari,Vinod Kumar Upadhyay
Counsel for Respondent :- C.S.C.,A.S.G.I.,Pankaj Kumar,Siddharth Singhal
39. Case :- WRIT - A No. - 12279 of 2022
Petitioner :- Awadhesh Kumar And 6 Others
Respondent :- State Of U P And 3 Others
Counsel for Petitioner :- Pravesh Kumar,A.S.G.I.,Rajiv Dwivedi
Counsel for Respondent :- C.S.C.,Pankaj Srivastava,Siddharth Singhal
40. Case :- WRIT - A No. - 14101 of 2022
Petitioner :- Prakash Chandra Gupta And 6 Others
Respondent :- State Of U P And 2 Others
Counsel for Petitioner :- Shashi Dhar Shukla
Counsel for Respondent :- C.S.C.,A.S.G.I.,Raj Kumari Devi,Siddharth Singhal
41. Case :- WRIT - A No. - 14560 of 2022
Petitioner :- Anshul Gaur And 10 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Ratnesh Kumar Srivastava,Siddharth Srivastava
Counsel for Respondent :- CSC,A.S.G.I.,Kailash Prakash Pathak,Siddharth Singhal
42. Case :- WRIT - A No. - 19737 of 2022
Petitioner :- Shiv Mani Pathak And 15 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Rajnish Dubey,Arti Singh
Counsel for Respondent :- C.S.C.,A.S.G.I.
43. Case :- WRIT - C No. - 36000 of 2017
Petitioner :- Praveen Kumar Singh And 23 Others
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Govind Kumar Saxena,Pankaj Saksena
Counsel for Respondent :- C.S.C.,A.S.G.I.,D.K.Gupta,K.S.Kushwaha
Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Rajendra Kumar-IV,J.
(Per: Surya Prakash Kesarwani, J.)
1. Heard Sri A.N. Tripathi, learned Senior Advocate assisted by Sri Arvind Kumar Mishra, Sri C.B. Yadav, learned Senior Advocate assisted by Sri Govind Kumar Saxena and Sri Shashinandan, learned Senior Advocate assisted by Sri Ankur Sharma and other learned counsels for the petitioners, Sri S.P. Singh, learned Additional Solicitor General of India assisted by Sri Bal Mukund, Ram Dular, Om Prakash Gupta, Arvind Goswami, Ajay Singh, Gaya Prasad Singh, Raj Kumari Devi, Neeru Devi, Chandra Prakash Yadav, Manoj Kumar Singh, Pankaj Kumar, Purnendu Kumar Singh, Shitla Prasad Gaur, Sudarshan Singh, Rizwan Ahmad and Arvind Singh, learned Central Government Standing Counsels for Union of India, Sri Ajeet Singh, learned Additional Advocate General assisted by Sri Sudhanshu Srivastava, learned counsel for the State-respondents, Sri Ashok Khare, learned Senior Advocate assisted by Sri Siddharth Khare and Sri Jigar Khare, learned counsels for the newly impleaded respondent Nos.8 to 13/ successful candidates in the leading Writ-A No.63110 of 2014 and Sri G.K. Singh, learned Senior Advocate assisted by Sri Avanish Kumar Rai, learned counsel for the newly impleaded respondent Nos.4 to 7 in the leading Writ-A No.63110 of 2014.
2. Learned counsels for the parties have jointly stated that facts and controversy involved in this bunch of writ petitions is similar. Therefore, with their consent, all the writ petitions have been heard together on several occasions and the Writ-A No.63110 of 2014 (Berojgar Audyogik Kalyan Samiti And 39 Ors vs. State Of U.P. And 2 Ors) is treated as the leading writ petition, which has been filed praying for the following relief:
"i) to issue a writ, order or direction in the nature of Certiorari quashing illegal advertisement No.2 of 2014 dated 07.11.2014 issued by respondent no.2 and subsequent proceeding for filling 2498 post of instructor in Govt. post of Industrial Training Institute in U.P. (Annexure No.4 to the writ petition);
ii) issue a writ, order or direction declaring the Rule 9(B) including proviso, Rule 15(3) and its proviso and Rule 17(3) of U.P. Government Industrial Training Institute (Instructors) Service Rule, 2014 (Annexure No.3) be declared as ultra vires said Rule 16(3) (iii) and Articles 14 and 16 and specifically the constitutional provision of Article 73 readwith entry 65 and 66 of Union list which override entry 25 of concurrent list of constitution and against order of Central Govt. dated 24.07.1996 issued after accepting recommendation of N.C.V.T. and being also in teeth and in contempt of judgement of Hon'ble Single Judge dated 08.08.2006 and Judgment dated 10.12.2006 of Division Bench in Special Appeal in which State of U.P. wsa party and is binding upon State Government as such.
Iii) any other suitable writ, order or direction as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case;
iv) Award costs of the writ petition petitioners throughout."
3. All the petitioners claim that they hold CITS certificate which is an essential qualification as per Government Order dated 24.07.1996 issued by the Union of India in exercise of powers conferred under Article 73 of the Constitution of India with respect to matters of Entry 66 List-I of the VIIth Schedule to the Constitution and which was incorporated by the State Government in "The U.P. Industrial Training (Instructors) Services Rules, 1991 (hereinafter referred to as ''the Rules, 1991") framed in exercise of powers conferred under Article 309 of the Constitution of India as amended by the Second Amendment Rules dated 08.08.2003. By the Third Amendment Rules, the aforesaid essential qualification was lowered which was challenged in Civil Misc. Writ Petition No.1822 of 2004 (Upendra Narain Singh & Ors. Vs. State of U.P. & Anr.) and by judgment dated 08.08.2006, reported in 2006 (64) ALR 845 (All.), the Amendment made in Rule 8 of the Rules, 1991 by the Third Amendment Service Rules, 2003 was held to be unconstitutional, which was affirmed by the Division Bench judgment in Special Appeal No.1078 of 2006 (Pawan Kumar Sagar and others vs. State of U.P. and others), decided on 12.10.2006. By the impugned newly enacted "The Uttar Pradesh Industrial Training Institutes (Instructors) Service Rules, 2014" (hereinafter referred to as ''The U.P. Service Rules, 2014') in supersession of all existing rules and orders on the subject framed in exercise of powers conferred by the proviso to Article 309 of the Constitution of India, the aforesaid essential qualification of CITS has been again lowered and it has been made merely preferential for recruitment on the post of instructors. Under the circumstances, the petitioners have filed the present writ petitions seeking the relief as noted above.
4. The petitioners have chosen not to file rejoinder affidavits to the counter affidavits of the respondent Nos.4 to 7 and 8 to 13. Statement of learned counsels for the petitioners in this regard is recorded in the order dated 01.12.2022 passed in the leading Writ-A No.63110 of 2014.
SUBMISSIONS ON BEHALF OF THE PETITIONERS:-
5. Submission by Sri A.N. Tripathi, learned Senior Advocate for the petitioners:-
(i) The Uttar Pradesh Industrial Training Institution (Instructor) Service Rules, 1991 (hereinafter referred to as the "Rules, 1991") were initially enacted by the State Government in exercise of powers conferred under Article 309 of the Constitution of India. Rule 9 (B) of the Rules, 1991 provided the successful training from Central Training Institute (hereinafter referred to as "CTI") in respective trades, as preferential qualification. Subsequently, the Central Government issued a direction vide DGE&T-19 (20) / 95 - OD dated 24.07.1996 indicating that the Government of India has accepted the recommendation of the council and accordingly, requested all the State Governments / Union Territories to amend the recruitment Rules providing the C.T.I. certificate as essential qualification for the post of instructor. Consequently, the State Government accepted the recommendation / direction of the Government of India and amended Rules 1991 by the second amendment Rules dated 08.08.2003, whereby Craft Instructor Training certificate (CTI certificate) was made essential qualification for recruitment on the post of Instructor. However, by the third amendment Rule 2003, the aforesaid essential qualification of CTI certificate was made preferential by amending Rule 8 of Rules, 1991. Hence, the amendments were challenged in various writ petitions. The leading writ petition was Writ-A No.1822 of 2004 (Upendra Narayan Singh vs. State of U.P. and another) which were allowed by Hon'ble Single Judge by judgement dated 08.08.2006. The amendment made in Rule 8 of the Rules, 1991 by third amendment Service Rules, 2003 was held to be violative of Constitutional Scheme of distribution of legislative powers, as also Articles 14 and 16 of the Constitution of India. The advertisement dated 13.12.2003 was also quashed with a direction that those, who have obtained qualification up to the date of fresh advertisement shall also be considered for selection and that all those candidates, who were within the age limit on the last date of receiving applications pursuant to advertisement dated 20.08.2003, shall also be eligible to apply for selection in pursuance of fresh advertisement. The aforesaid judgement of Hon'ble Single Judge dated 08.08.2006 was upheld by the Division Bench judgement dated 12.10.2006 in Special Appeal No. 1078 of 2006 (Pawan Kumar Sagar vs. State of U.P. and others). Thus, it stood settled that CITS shall be an essential qualification for recruitment on the post of instructors and yet by the impugned Rule 9(B) and its proviso, Rule 15(3) and its proviso and Rule 17(3) of Uttar Pradesh Industrial Training Institution (Instructors) Service Rules, 2014 (hereinafter referred to as the "the Rules, 2014"), has been enacted the State Government, providing the "CITS certificate" as a preferential qualification.
(ii) Apart from above, the impugned Rules, 2014, also accommodates even those, who do not possess the preferential qualification, by making a provision that if they are appointed then they may acquire qualification within three years, else they shall not be entitled to first increments. Thus, the essential qualification as prescribed by Government of India, has been completely done away and even prescribed preferential qualification is merely an eye wash and just to appoint incompetent and ineligible persons to obtain Government employment, contrary to the Rules and the Constitutional scheme.
(iii) By Rule 16(3) of the Rules, 2014, it has been provided that in making selection by direct recruitment, the merit list of the eligible candidates shall be prepared by awarding marks as under :- (a) 50% of the percentage of marks secured in High School examination and, (b) 20 % of the marks secured in national trade certificate test / national apprentice training test or 20% of the percentage of marks secured in diploma and degree examination and (c) 15 % of the percentage of the marks secured in CITS and POT test. Thus, the quality point marks for determination of merit for the purposes of preparation of select list is wholly arbitrary and is in the teeth of the direction of the Government of India and the very basic object behind creation of ITI. Very little marks i.e. 15% of the marks has been provided for the most essential qualification of CITS whereas 50% marks has been provided for the academic qualification which has nothing to do with the merits of the candidates and suitability for the employment.
(iv) Thus, the impugned provisions of the Rules, 2014 are violative of Constitutional Scheme as well as the field occupied by the Government of India, and the impugned Rules being arbitrary, are also violative of Article 14 and 16 of the Constitution of India.
(v) Reliance is placed upon the judgement of learned Single Judge and Division Bench judgement of this Court referred above and the judgement of Hon'ble Constitutional Bench of Hon'ble Supreme Court in the case of Madan Mohan Pathak vs. Union of India and others, AIR 1978 SC (803) (Para 24, 25 and 26).
(vi) When the present writ petitions were filed, an interim order was granted by this Court providing that "meanwhile selection process will go on but the result of selection will be subject to the final decision of this writ petition." Despite this interim order, the State Government, in its wisdom, has issued appointment letters and appointed number of candidates, who do not possess the basic essential qualification. None of the candidates so appointed conditionally, have not come forward to oppose these writ petitions.
(vii) The degree and diploma holders cannot be tested together. Therefore, Rule 9 of the Rules, 2014 read with the appendix, is arbitrary and thus violative of Article 14 of the Constitution of India.
(viii) The letters of the Government of India dated 26.05.2014, 27.05.2014 and 07.01.2016 are not relevant for the purposes of the present controversy and they do not dilute the essential qualification of CITS certificate. Therefore, the reliance as may be placed by Sri S.P. Singh, learned Additional Solicitor General of India and the learned Additional Advocate General would be of no help to the respondents.
6. Submission by Sri C.B. Yadav, learned Senior Advocate for the petitioners:-
(i) The Rules in question are referable to subject matter provided in Entry 65 and 66, List-I of Union List or Entry 25 of List-III of Concurrent List of the 7th Schedule to the Constitution of India. Therefore, by issuing directions to include CITS as essential qualification, the Union of India has occupied the field. Therefore, the Rules framed by the State Government providing the CITS as essential qualification is in conflict with the field occupied by the Union of India. Thus, the Rules under challenge framed by the State Government lack legislative competence and are hit by Article 246 (1)/(2) of the Constitution of India.
(ii) Reiterating the submission No.(viii) as noted in the order of this Court dated 10.11.2022, it is submitted that these letters are not relevant since Rules under challenge, i.e. the Rules, 2014 were notified on 30.01.2014. Therefore, the aforesaid letters dated 26.05.2014, 27.05.2014 and 07.01.2016 subsequently issued by the Government of India are not relevant for the purposes of the present controversy. The above referred government letters are not binding. The earlier Government Order dated 24.07.1996 has now been incorporated in the new Rules, i.e. Uttar Pradesh Government Industrial Training Institute (Instructors and Foreman Service) Rules, 2021 notified on 03.01.2022.
SUBMISSIONS ON BEHALF OF RESPONDENTS:-
7. Sri S.P. Singh, learned Additional Solicitor General of India submits as under:
(i) As per Article 73 of the Constitution of India, the executive power of the Union of India shall not, save as expressly provided in the Constitution or in any law made by the Parliament extend in any State to matters with respect to which the legislature of the State has also power to make law. Since the Rules, 2014 has been enacted in legislative exercise of power by the State Government, therefore, even if there is any conflict between the executive instructions under Article 73 of the Rules, 2014, still the Rules, 2014 shall prevail. So far as the question of validity of Rules, 2014 is concerned, that is for the State to defend. The letters of the Central Government dated 15.12.2008, 30.09.2010 and 21.03.2018 filed as Annexure CA-1, CA-2 and CA-3 with the counter affidavit of the State-respondents, at best may be said to be referable to Article 73 of the Constitution of India and would bind the State only in the absence of statutory provisions. Since the Rules, 2014 have been enacted, therefore, that shall hold the field and the aforesaid three letters of the Government of India would not come in the way of the Rules, 2014.
8. Sri Ajeet Singh, learned Additional Advocate General assisted by Sri Sudhanshu Srivastava submits that he has adopted the submissions of Sri Ashok Khare, learned Senior Advocate as aforenoted. He further submits that the impugned Rules neither lack legislative competence by the State Government in view of Article 309 of the Constitution of India nor it infringes any of the fundamental rights guaranteed under Part-III of the Constitution of India. Therefore, the impugned Rules are wholly valid and the impugned advertisement being in conformity with the Rules, 2014 are also valid. Most of the petitioners have participated in the selection process but after being unsuccessful, they have filed the present writ petition. Therefore, they cannot be permittied to maintain the writ petition. Reliance is placed upon the Division Bench judgment of this Court in Writ Tax No.760 of 2022 {M/s K. Jain (P) Ltd. vs. Union of India and 4 others (para-24)}.
9. Sri Ashok Khare, learned Senior Advocate assisted by Sri Siddharth Khare and Sri Jigar Khare, learned counsels for the newly impleaded respondents/ successful candidates, submits as under:-
(a) Replying to submission No.(i) of learned counsel for the petitioners, it is submitted that the Government Order dated 24.07.1996 issued by the Government of India was the subject matter of consideration in Writ-A No.1822 of 2004, decided on 08.06.2006 and the Special Appeal No.1078 of 2006, decided on 12.10.2006. Therefore, the aforesaid government order dated 24.07.1996 issued by the Government of India has been subsequently superseded by subsequent Government Orders dated 15.12.2008 and 13.09.2010 (Annexure CA-1 and 2 to the counter affidavit filed on behalf of the respondent Nos.8 to 13 in Writ-A No.63110 of 2014). Therefore, neither the Government Order dated 24.07.1996 nor the aforesaid two judgments of this Court have any relevance on facts of the present case. On the contrary, the ratio of decision of the aforesaid two judgments supports the case of the respondents. By aforesaid Government Order dated 15.12.2008 issued by the Government of India, "Passed Principal of Teaching (POT)" course from DGE&T which is equivalent to CITS, has been made desirable qualification and not essential qualification. Similarly by aforesaid Government Order dated 30.09.2010, the aforesaid qualification of CITS has been made desirable qualification and not the essential qualification. Thus, CITS is not the essential qualification of recruitment in question.
(b) Replying to submission No.(ii) of learned counsel for the petitioners, it is submitted that since CITS/ POT is a desirable qualification in terms of the aforesaid government orders of the Government of India followed by letters dated 21.03.2013 (Annexure CA-3), letter of the Director Training and Employment dated 21.10.2014 (Annexure CA-5), therefore, to give weightage to it, Rule 16(3)(a)(iii) of the Rules, 2014 provides for weightage marks as 15% of the percentage of mark secured in CITS/ POT test to each candidate. Thus, for having the desirable qualification, provision for awarding certain marks as aforesaid have been made in aforesaid sub-Clause (a)(iii) of Rule 16 of the Rules, 2014, notified on 30.01.2013 subsequent to which the impugned advertisement dated 07.11.2014 was issued. Thus, the impugned advertisement is in conformity with the Rules, 2014 and directives issued by the Central Government as existing on the date of enactment of the Rules, 2014 and issuance of impugned Advertisement dated 07.11.2014. It is well settled that selection process has to be completed in accordance with the Rules existing as on the date of advertisement. Reliance is placed upon the judgment in Civil Appeal No.9746 of 2011 (State of Himanchal Pradesh vs. Raj Kumar, decided on 20.05.2022.
(c) Replying to submission No.(iii) of learned counsel for the petitioners, it is submitted that provision providing for marks is exclusively within the domain of the employer. Therefore, submission No.(iii) of the petitioners is contrary to all settled principles of law. The argument of petitioners is based on the presumption as if the government order dated 24.07.1996 is still operating whereas it is a fact evident on record that the said government order does not hold the field inasmuch as it has been superseded and that apart, the new Rules, 2014 hold the field. For the same reasons, the submission Nos.(iv), (v) and (vi) also do not hold good.
(d) Replying to submission No.(vii) of learned counsel for the petitioners, it is submitted that the argument No.(vii) is based on misreading and mis-interpretation. There is no prohibition providing diploma or degree in mechanical engineering as minimum technical qualification. It does not violate the fundamental rights guaranteed under Article 14 of the Constitution of India.
(e) Replying to the arguments advanced by Sri C.B. Yadav as noted in the order dated 09.11.2022 and also in today's order, it is submitted that the training manual extract of eligibility qualification mentioned in paragraph-8 of the writ petition and filed as Annexure-2 to the writ petition is the part of earlier training manual and not the training manual holding the field. The aforesaid paragraph-8 has been replied in paragraph-8 of the counter affidavit and the relevant extracts of 2014 Training Manual has been filed as Annexure CA-7 which itself discloses that CITS qualification has been specified only as a desirable qualification and not as essential qualification. Thus, Rules, 2014 are in conformity with the training manual published in the year 2014, before the issuance of the impugned advertisement. The petitioners have made a statement before this Court not to file rejoinder affidavit to the aforesaid counter affidavit. Therefore, the aforesaid averments made in paragraph-8 of the counter affidavit is liable to be treated as correct. That apart, in paragraph-5 of the rejoinder affidavit dated 13.02.2015 (in reply to the counter affidavit of the State-respondents), the petitioners have stated that Rule 9A(2) read with Column 4 of the Appendix to the Rules, 2014 provides NPC as defined in Rule 2(k) and NAC as defined in Rule 2(l) as essential qualification whereas preferential qualification has been prescribed in Rule 9B read with Column 5 of the Appendix as CITS defined in Rule 2(f) read with Rule 2(e) of the Rules, 2014. Thus, an additional qualification has been prescribed in Rule 9B which is not essential qualification but a preferential qualification. Therefore, to hold a CITS certificate is merely a preferential qualification for which 15% of the marks obtained in CITS has been provided to be added in awarding quality point marks. Rule 17(3) makes this position further clear. NTC and NAC is the essential qualification for taking admission for acquiring the preferential qualification of CITS. Thus, both the qualifications are different. While, the former is the essential qualification, the later is the preferential qualification as provided in Rule 9A and 9B respectively of the Rules, 2014.
10. Sri G.K. Singh, learned senior advocate assisted by Sri Avanish Kumar Rai, learned counsel for the respondent Nos.4 to 7 in Writ-A No.63110 of 2014, adopts the arguments advanced by Sri Ashok Khare, learned Senior Advocate.
11. Sri Inder Raj Singh, learned counsel for impleadment-applicant in Writ-A No.63110 of 2014 submits that he adopts the arguments advanced by Sri Ashok Khare, learned Senior Advocate. Additionally he submits that Article 309 of the Constitution of India confers power upon the Union of India and the State Government to make subordinate legislation. Since there is no conflict between the Rules, 2014 and any sub-ordinate legislation enacted by the Union of India, therefore, the Rules, 2014 shall hold the field. The applicant-respondent are all serving as government employee and have also completed the CITS training.
Submissions in Rejoinder by counsels for the petitioners:-
12. Sri A.N. Tripathi, learned counsel for the petitioners submits as under:-
(i) Entry 25 of the concurrent list of Schedule 7 is subject to Entries 63, 64, 65 and 66 of List 1. Entry 64(a) of the Union List provides for provisional, vocational or technical training. Entry 66 of the Union List provides for coordination and determination of standards institutions for higher education or research and scientific and technical institutions. Therefore, Craft Instructor Training Scheme is a matter falling under the Entry 65 and 66 of the Union List. Therefore, executive instructions, i.e. the Government Order dated 24.07.1996 issued by the Government of India would be binding upon the State Government under Article 73 of the Constitution of India, in so far as the essential qualification for recruitment on the post of instructors is concerned. Since Rule 9B does not contain the CITS as essential qualification, therefore, the Rule 9B, Rule 15(3) and Rule 17(3) lack legislative competence inasmsuch the field of legislation is referable to Entries 65-66 and has been occupied by the Union of India by issuance of Executive Order 24.07.1996 under Article 73 of the Constitution of India. This question has already been settled by a learned Single Judge (Paras-21 to 27, 31, 32 and 33) and also by the Division Bench in Special Appeal (paras - at Page 5 and 6) as referred in the submissions made on 10.11.2022. Therefore, in view of the law settled by this Court, the aforesaid Government Order dated 24.07.1996 is mandatory in nature and the State Government cannot, by Rules, lower the essential qualification of CITS and make it as a preferential qualification. The State lacks legislative competence to enact the Rules lowering the essential qualification to lower the essential qualification by CITS. Reliance is also placed upon the Constitution Bench judgment of Hon'ble Supreme court in the case of Madan Mohan Pathak and another vs. Union of India and others, AIR 1978 SC 803 (Paras 24, 25 and 26), in which it has been held that mandamus issued by the High Court cannot be nullified by any legislative act.
13. Sri Ankur Sharma, learned counsel for the petitioners in Writ-A No.5517 of 2019, 21295 of 2019 and 5345 of 2015 submits in rejoinder as under:
(i) The letter of the Government of India dated 15.12.2008 does not relate to qualification for recruitment on the post of Instructors. It provides only "norms for instructor qualification for trades under Craftsman Training Scheme". Therefore, the qualification provided under the executive order of the Government of India dated 15.12.2008 is with respect to a particular scheme i.e. for trade under Craftsman Training Scheme for the purposes of instructor (CA-1). Similarly subsequent letter of the Government of India (Annexure-CA-2) relates to instructor qualification for "Advance Module of Multiskilled Courses being implemented in ITIs upgraded COE." Therefore, the said letter only provides for qualification of instructors specifically only for Advance Module of Multiskilled Courses, which are run by ITIs upgraded Centre of Excellence. Therefore, it does not provide qualification for instructors. Thus, it provides for qualification of instructors for a trade course/ module and not for regular courses as are involved in the present writ petition. The petitioners have not participated in the selection process and have filed writ petition challenging the advertisement itself.
Discussion and Findings:-
14. Before we proceed to consider the controversy, it would be useful to reproduce the relied upon Government Orders and Rules, as under:-
(A) Executive Instructions dated 24.07.1996 issued by Government of India Ministry of Labour (DGE & T), New Delhi providing essential qualification for recruitment on the post of Vocational Instructors:-
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MINISTRY OF LABOUR NO. DGE&T-10(20)/95-CD ¼jks0 ,oa iz0 egkfuns'kky;½ Goverment of India (D.G. E. & T.) Ministry of Labour ubZ fnYyh -110001 (D.G.E. & T.) NEW DELHI-110001 New Delhi, dated 24th July 1996 To,
All the Secretaries of Governments/UT Administrations (Dealing with Craftsman Training Scheme) Subject: To enhance the recruitment qualifications for the post of Vocational Instructor Sir, I am directed to inform you that the proposal to enhance the recruitment qualifications for post of Vocational Instructor was placed as item No.14 of Agenda during the 31st Meeting of the NCVT held on 30-11-95.
After deliberation the council recommended the following:
The proposal to have two separate streams of Vocational instructors (Vis) one for teaching theory subjects including Workshop Calculation and Science and Engineering Drawing and another for conducting practicals having separate recruitment qualifications and norms, as proposed (as per Annexure-I) was agreed to.
Government of India has accepted, the above recommendation for implementation under CTS. You are requested to take necessary action to amend the Recruitment Rules in respect of V.I.s (Theory & Practical) accordingly latest by 31.7.97. The recruitment of V.I.s may be done in accordance with the revised Recruitment Rules w.e.f. 1-8-97 onwards, as approved by NCVT during its above stated meeting.
These norms are also applicable to private ITIs of your State and they may, therefore, be requested to recruit V.I.s as per revised qualifications w.e.f. 1.8.97 onwards. Institute not recruiting V.I.s as per the revised qualifications after 1.8.97 are liable to be de-affiliated for non-engineering trade, status-quo would be maintained.
Yours faithfully, Sd-ill (ABHIK GHOSH) Director General/ Joint Secretary Copy to:
1. All the State Directors dealing with CTS
2. All the Directors of field institution of Trg. Dte. Of DGE&T
3.All RDATs
4. Principal ,CTI ....... NVTI, Noida, ........
5.TA.1 Section with the request to take necessary action for revising the recruitment rules of Vis accordingly
6.All officers of the Trg. Dte. of DGE&T, New Delhi upto JDT level Sd-ill.
(Y.P. Sharma) Joint Director of Training INSTRUCTOR (THEORY/PRACTICAL) AT INDUSTRIAL TRAINING INSTITUTES FOR ENGINEERING TRADES ONLY S. NO.
Name of the Post Capacity of ITIs Essential qualification Pay Scale
1.
2.
3.
4.
5.
1. Vocational Instructor (Trade Theory, Workshop)Calculation & Science and Engineering Drawing One V.I. for a minimum of 36 trainees falling under the same group of trades.
a) Academic:
Passed 10th standard exam under 10+2 system of education.
b) Technical:
Passed 3 years diploma in appropriate branch of engineering for a recognized Institution.
c) Possesses Certificate under Instructor Training Scheme (One year course) or should have successfully completed minimum two modules viz.,Teaching Methodology Module (3 months duration) and Trades Technology Module (Six months duration) under Craft Instructor Training programme on modular pattern or should have passed one year course from a Technical Teacher Training Institute (TTTI)under M/O ERD.
Rs. 1640-2900/-
2. Vocational Instructor (Practical) One Instructor per unit in the trade for conducting Practicals & to look after Maintenance of machines under his charge
a) Academic:
Passed 10th Standard under 10+2 system of education.
b) Technical Possesses NTC/NAC for the trade.
c) (i) A certificate under regular Craft Instructor Training scheme of one year duration.
OR
(ii) passed POT Module in trades not having facilities for instructors training. Necessary practical.
Rs. 1640-2900/-
(B) Instructions dated 15.12.2008 issued by Government of India accepting the recommendation of National Council for Vocational Training prescribing minimum qualification for appointment on Vocational Instructor in ITIs/ ITCs:-
DGE&T-19(8)/2008-CD Government of India M/o Labour & Employment Directorate General of Employment & Training Shram Shakti Bhavan New Delhi dated 15th December, 2008 To,
1. Secretaries/Principal Secretaries of all the State Govts/ UT Administrations dealing with Vocational Training
2. Directors dealing with Vocational Training of all States/ UT Administrations Subject:
Norms for Instructor qualification for trades under Craftsman Training scheme.
Sir, This is to inform you that 37th meeting of the National Council for Vocational Training (NCVT) under the Chairmanship Hon'ble Minister of State for Labour & Employment (IC), was held on 23rd November, 2008. Norms for Instructor qualification for trades under Craftsman Training scheme were discussed vide Agenda item No 3,4 in the meeting.
2. Following minimum Qualification (academic as well as technical) for appointment of vocational instructor in ITIs/ITCs for trades under CTS was approved by the council.
Qualification Experience in trade relevant field after technical qualification Desirable Academic Technical 10th class pass or equivalent i. *Degree in Engineering/ **Three year Diploma in appropriate branch of trade concerned or ii. National Apprenticeship Certificate or National Trade Certificate in relevant trade One year for degree and two years for Diploma.
Three years for NAC/NTC Passed Principle of Teaching (POT) course from any of DGE&T institutes.
*Degree should be from recognized University.
**Diploma should be from recognized Board/Institution.
3. Government of India has accepted the above recommendation of Council for implementation with immediate effect. Accordingly, instructors with above qualification should be appointed in ITIs/ITCs and same would be strictly followed for grant of affiliation of these institutes.
Yours faithfully, (R.L. Singh) Director of Training Copy to,
1. Director, ATI/ Chennai, Hyderabad, Bombay, Kolkata, Kanpur, Ludhiana CSTARI, Kolkata/ATI(EPI)Hydrabad, & Dehradun, FTI Bangalore & Jamshedpur & NIMI Chennai.
2. RDAT Kanpur, Mumbai, Kolkata, Chennai, Faridabad & Hyderabad
3. Principal CTI Chennai, MITI, Haldwani, Calicut, Jodhpur, Choudwar, NVTI, New Delhi, all RVTIs
4. All officers up to JDT level of DGE & (HQ) (Anita Srivastava) Dy. Director of Training Copy for information:
1. PS to Minster of Stated(IC)
2. PS to Secretary (L&E)
3. PS to DG/JS (C) Instructions of the Government of India dated 30.09.2010 accepting the qualification of Craft Instructor for Advanced Module of Multiskilled courses in ITIs upgraded as COE:-
DGE&T-19(20)/2010-CD Government of India M/o Labour & Employment Directorate General of Employment & Training Dated 30/09/2010 To.
1. Secretaries/Principal Secretaries of all the State Govts / UT Administrations dealing with Vocational Training
2. Directors dealing with Vocational Training of all States/ UT Administrations
3. Director, ATI Hyderabad, ATI Bombay, ATI Kolkata, ATI Kanpur, ATI Ludhiana, Principal CTI, Chunnal Subject: Item No. 3804.19: Instructor Qualification for Advanced Module of Multi Skill Courses being Implemented in ITs upgraded as CoE.
Sir/Madam, I am directed to inform you that the 38th meeting of the National Council for Vocational Training (NCVT) under the Chairmanship Hon'ble Minister of Labour & Employment, was held on 31st May 2010 Qualification for Instructor of Advanced Module of Multi Skill Courses being implemented in ITIs upgraded as CoE was discussed vide item No 3804 19 of agenda.
The following qualification of Instructor for Advanced Module of Multi Skill Courses Implemented in ITIs upgraded as CoE was recommanded by the council *Essential Qualification Experience (in industry/ training) Desirable Academic Technical 10th class pass or equivalent A) For Engineering sectors I. Degree in appropriate branch of engineering from a recognised University or equivalent or II. 3 years Diploma in appropriate branch of engineering from recognised Board/ Institute or equivalent B) For Non-engineering sectors Degree in appropriate sector from a recognised University or equivalent II. 3 years Diploma in appropriate sector from recognised Board/ Institute or equivalent 2 years in appropriate/ concerned module or 5 years in appropriate/ concerned module 2 years in appropriate/ concerned module or 5 years in appropriate/ concerned module Pass NCVT approved Training Methodology Module of Craft Instructor Programme Pass NCVT approved Training Methodology Module of Craft Instructor Programme *Appointed instructor if do not posses Certificate of Training Methodology module of Craft Instructor Training Programme, he should be trained in Training Methodology module with in first six months period of his joining Government of India has accepted the above qualification of Craft Instructor for Advanced Module of Multiskilled Courses for implementation with immediate effect. Henceforth, instructors for advanced module should be appointed as per above qualification and if appointed instructor do not posses Certificate of Training Methodology module of Craft Instructor Training Programme, he should be trained in Training Methodology module with in first six months period of his joining Yours faithfully Director of Training Member secretary NCVT (D) Instruction issued by Government of India dated 21.03.2013 relaxing the condition of CITS by providing that the instructors appointed may be trained under CITS may acquire training under CITS within three years. The aforesaid Government Order dated 21.03.2013 is reproduced below:-
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ubZ fnYyh&110001 v- 'kk- l-&MhthbZVh&7@4@2013&lh0Mh0 DIRECTOR GENERAL EMPLOYMENT & TRAINING/ADDITIONAL SECRETARY GOVERNMENT OF INDIA MINISTRY OF LABOUR AND EMPLOYMENT NEW DELHI-110001 fn0 21 ekpZ] 2013 fiz; jktho] d`i;k vius v- 'kk- i= la0 614@ih0,l0Vh0oh0@2013] fnukad 15 Qjojh] 2013 dk voyksdu djus dk d"V djas tks vkS|ksfxd izf'k{k.k laLFkku ds vuqns'kdksa dh vgZrkvksa ds iquZfopkj ds lEcU/k esa gSA bl lEcU/k esa lwfpr djuk gS fd jk"Vªh; O;kolkf;d izf'k{k.k ifj"kn~ dh cSBdksa es lE;d~ fopkjksaijkar rFkk Je cktkj ,oa m|ksx dh ekaxks dks /;ku esa j[krs gq, vkbZ-Vh-vkbZ- vuqns'kdksa ds in gsrq fMIyksek@fMxzh/kkjd dh vgZrk fu/kkZfjr dh x;h gSA mleas ;g Hkh izko/kku fd;k x;k gS fd vkbZ0 Vh0 vkbZ0 vuqns'kdksa ds in ij HkrhZ fMIyksek@fMxzh/kkjdksa dks dk;ZHkkj xzg.k djus dh fnukad ls rhu o"kZ dh vof/k ds Hkhrj MhthbZVh ds ,MokaLM izf'k{k.k laLFkkvksa ls f'kYi vuqns'kd izf'k{k.k ;kstuk ¼lh-vkbZ-Vh-,l-½ ds varxZr izf'kf{kr fd;k tk ldrk gS ftlls mUgs O;ogkfjd dkS'ky eas Hkh fuiq.krk izkIr gks ldsA blfy;s blds iquZfopkj dh vko';drk izrhr ugh gksrhA 2- vr% eSa vuqxzghr gwaxk ;fn d`i;k mijksDrkuqlkj lsok fu;ekoyh eas rRdky la'kks/ku dj vuqns'kdksa ds fjDr inksa dks Hkjus dk d"V djsa vkSj dh x;h dk;kZokgh ls bl dk;kZy; dks Hkh voxr djk nsaA LkLusg] Hkofu"B]
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Legislative History of NCVT & Rules:-
15. Prior to the year 1991 the service conditions of the Vocational Instructors were regulated by Government Orders and Administrative Instructions. The Rules of 1991 replaced these orders and provided for amongst other, the qualifications and method of recruitment. Rule 5 of the Rules of 1991 provides for recruitment through U.P. Public Service Commission on the basis of competitive examination and interview. The Rules were amended in 1994 by 1st Amendment to these rules providing for source of recruitment through the Subordinate Services Selection Commission, under the Rules known as U.P. Procedure for Direct Recruitment for Group 'C' Posts (Outside the Purview of U.P. Public Service Commission) Rules, 1998, read with U.P. Procedure for Direct Recruitment to Group 'C' Posts of Technical Nature Or For Which Specific Qualifications are Prescribed (Outside the Purview of the U.P. Public Service Commission), Rules, 2001.
16. The National Council of Vocational Training (NCVT) was established under the administrative order of the Central Government, with Cabinet approval. It made recommendations to the Central Government to enhance the qualifications required for the post of Vocational Instructors in Industrial Training Institutes. The NCVT proposed that for Vocational Instructors teaching, Theory including Workshop, Calculation, Science and Engineering Drawing, should be possessed apart from the minimum academic qualifications of 10+2 system of education, and three years diploma, in appropriate branch of engineering from recognized institutions and in addition the teaching qualification namely Certificate under Draft Instructor Training Scheme (one year course) or should have successfully completed minimum two modules, teaching methodology module (three months duration) (six months duration) under Draft Instructor Training Programme on module pattern, or should have passed one year course from Technical Teachers Training Institute (TTTI) under Ministry of Human Resource Development.
17. The NCVT further proposed that for Vocational Instructor (Practical) apart from the academic qualification of 10+2 system of education the candidate should possess technical qualification of NTC/CAC for Trade; (1) a certificate under regular draft instructor training scheme of one year duration; or (2) the principles of teaching module in trade not having facilities for instructors training, necessary practical be provided after the appointment within three years; and (3) a minimum of two years experience in an industry or a training/ teaching institution either before or after obtaining instructor training.
18. The recommendations of NCVT, were accepted by the Central Government and that by letter dated 24.7.1996 of Director General/ Joint Secretary (DGE & I), Ministry of Labour, Government of India, the Central Government, issued directions to all Secretaries of the Government/ UT Administration (dealing with Draftsman Training Scheme), for necessary amendments in recruitment rules by 31.7.1997. The institutions not recruiting instructors as per revised qualifications after 01.8.1997 were liable to be de-affiliated. The Central Government extended the period for amending the rules. The last such extension was given upto August, 2001.
19. The Government of Uttar Pradesh accepted the recommendations and amended the Rules of 1991 by 2nd Amendment notified on 08.8.2003 and advertised the vacancies on 20.8.2003 inviting applications from the candidates possessing the higher teachers training qualifications provided in the amended rules. The petitioners in writ petition No. 1822 of 2004 applied for these vacancies in pursuance of the advertisement. The State Government by a notice in the newspapers on 29.9,2003 by the Director, Vocational Training, cancelled the advertisement.
20. The State Government, then, amended the Rules of 1991 again by 3rd Amendment to the Rules of 1991 notified on 09.12.2003, deleting enhanced teaching qualifications, directed by the Central Government on recommendations of the National Council of Vocational Training. A fresh advertisement was issued on 13.12.2003 inviting applications for 742 vacancies of Instructors existing in ITI's in 34 Trades.
21. Constitutional Validity of the aforesaid Third Amendment Rules was challenged in the case of Upendra Narain Singh (supra) and it was struck down holding as under:-
"21. The short point for determination in these writ petitions is whether the directions issued by the Central Government on the recommendations of NCVT are mandatory and are binding upon the State Government, which has the powers under proviso to Article 309 to frame service rules subject to the provisions of the Constitution and acts of appropriate legislature and further having acted upon these recommendation whether the State Government could have again amended the Rules of 1991 to lower these qualifications arbitrarily without a valid and justiciable reason. In all the judgments cited by Shri A.N. Tripathi, learned Counsel for the petitioners, the Supreme Court was dealing with recommendations made by statutory bodies namely Medical Council of India, established under Medical Council of India Act, 1956 and the National Council of Teachers Education Act, established under the Act of 1993. In Ajay Kumar Singh (Supra) the Supreme Court considered the regulation of admission to postgraduate medical courses by Medical Council of India providing for reservation for SC/ ST etc. and found that the Medical Council Act does not empower the council to regulate or prescribe qualifications for admission to postgraduate courses. However, by virtue of Entry 66 of List I, which overrides Entry 25 of List III, the States are denuded of all and every power to determine and coordinate the standards of higher education, which must necessarily take in, regulating the admission to these courses. The regulations do not provide for any reservation and the regulations being a species of delegated legislation bind all the institutions imparting medical education.
22. In Dr. Preeti Srivastava (Supra) it was held that universities must necessarily be guided by the standards under Section 70(1) of the Medical Council of India, if their degrees and diplomas are to be recognized, It was found that Medical Council regulations have statutory force and are mandatory. The Act contemplates Medical Council of India as an expert body to control the minimum standards of education. This view was reiterated in Harish Verma's case (Supra) in 2003. In Union of India v. Shah Goverdhan L. Kabra Teachers College (Supra) the Supreme Court upheld the legislative competence of the Central Government to enact National Council for Teachers Education Act, 1993 and held that the opinion of the National Council, which is an expert body should not be likely tinkered with. The High Court's order setting aside de-recognition was quashed. In St. Johns Teachers Training Institute (Supra) the same view was followed with regard to recognition for the courses by the National Council for Teachers Education and the regulations were held an ultra vires the Act.
23. The National Council of Vocational Training has not been established under any statute. Entry 25 in List III (concurrent list) of Schedule 7, as amended by 42nd Amendment Act, 1976 deals with education including technical education, medical education in universities, subject to provision of Entry 63, 64, 65 and 66 of List-I; vocational and technical training of labour. Entry 65 and 66 of List I of Schedule VII refers to union agencies and institutions for professional, vocational and teachers training and coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. Article 73, empowers the Central Government to exercise executive powers in the matters with respect to which the Parliament has powers to make laws. Entry 65 and 66 of List I reads as follows:
"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."
24. Shri Ashok Khare, learned Senior Advocate did not dispute that coordination and determination of standards in technical institutions in Entry 66 in List I of Schedule VII will include laying down the standards for teaching and teaching qualifications. The power of the Central Government as such under Article 246 to legislate and to issue executive orders on the subject is not in doubt. The point, however, is whether in the absence of legislation, the administrative order made under Article 73 of the Constitution of India on the subject would still be binding on the State Government. The executive power of the union under Article 73 extends to matters with respect to which parliament has power to make laws. In the absence of legislation by parliament, the State may in its executive power deal with matters enumerated in concurrent list. Specific legislation is not required for exercise of executive power relating to a particular subject and that in many spheres the executive functions by exercising executive power. The exercise of power, however, is subject to provisions of the Constitution. Article 309 provides for regulating the recruitment in conditions of service of the persons appointed in public services and posts in connection with the affairs of the union or any of the state, until provision in that behalf are made by the legislation. The President in the case of the Union and the Governor in case of the State have been authorized to make regulations, which are legislative in character. Article 309 does not prohibit the prescription of rules for selection or for qualification for appointment. (Pandu Ranga Rao v. A.P. Public Service Commission, AIR 1993 SC 268).
25. In the present case there is no conflict between power exercised by the Governor, who acts on the advise of the State Government in making service rules or regulations under the proviso to Article 309of the Constitution and the executive order issued by the Central Government. The coordination and determination of standards in technical education, which includes teachers' qualification, fall under Entry 66 in List I in the exclusive domain of the Union. The education including technical education falls within Entry 25 of List III, So long as Central Government had not issued any direction accepting recommendations of the NCVT, it was open to the State Government to prescribe qualification for appointment in Industrial Training Institutes, which are technical institutions. The executive order issued under Article 73, in respect of matters on which parliament has exclusive power to make laws have the same force as laws made by Parliament. The proviso to Clause (1) of Article 73 shall not, save as expressly provided in the 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.
26. The interrelation between Entry 25 of List III and Entry 66 of List I was subject matter of consideration in Union of India v. Shah Goverdhan L. Kabra Teachers College. The Supreme Court held as under:
Bearing in mind the aforesaid principles of rule of construction, if the provisions of the impugned statute namely, the National Council of Teacher Education Act, 1993 are examined and more particularly Section 17(4) thereof which we have already extracted, the conclusion is irresistible that the statute is one squarely dealing with coordination and determination of standards in institutions for higher education within the meaning of Entry 66 of List I of the Seventh Schedule. Both Entries 65 and 66 of List I empower the Central Legislature to secure the standards of research and the standards of higher education. The object being that the same standards are not lowered at the hands of the particular State or States to the detriment of the national progress and the power of the State legislature must be so exercised as not to directly encroach upon power of Union under Entry 66. The power to co-ordinate does not mean merely the power to evaluate but it means to harmonise or secure relationship for concerted action. A legislation made for the purpose of co-ordination of standards of higher education is essentially a legislation by the Central legislature in exercise of its competence under Entry 66 of List 1 of the Seventh Schedule and Sub-section (4) of Section 17 merely provides the consequences if an institutions offers a course or training in teacher education in contravention of the Act though the ultimate consequences under Sub-section (4) of Section 17 may be that unqualified teacher will not be entitled to get an employment under the State or Central Government or in a university or in a college. But by no stretch of imagination the said provision can be construed to mean a law dealing with employment as has been held by the High Court in the impugned Judgment.
In our considered opinion, the High Court committed gross error in construing the provisions of Sub-section (4) of Section 17 of the Act to men that it is a legislation dealing with recruitment and conditions of services of persons in the State service within the meaning of Proviso to Article 309 of the Constitution. The High Court committed the aforesaid error by examining the provisions of Sub-section (4) on its plain terms without trying to examine the true character of the enactment which has to be done by examining the enactment as a whole, its object and scope and effect of the provisions. Even the High Court does not appear to have applied the doctrine of "pith and substance" and, thus, committed the error in interpreting the provisions of Sub-section (4) of Section 17 to mean to be a provision dealing with conditions of service of an employee under the State Government.
32. I find substance in the submissions of Shri A.N. Tripathi. The State Government having acted upon the directions of the Central Government and amended the rules, was not competent to again amend the rules lowering the higher teaching qualifications and making them preferential. The State Government rightly understood its legal obligations and the constitutional scheme. Having accepted the position, the State Government acted grossly illegally and arbitrarily in amending the rules by the 3rd Amendment, in violation of Article 14 and 16 of the Constitution, The Court takes judicial notice of the fact in the State of U.P. the teaching standards in all the educational institutions are falling gradually. In order to improve these standards, the national level teaching institutions have been established offering higher teaching qualifications and the Central Government is insisting the State Government to appoint only such teachers, who have higher and specific teaching qualifications. The candidates possessing such higher teaching qualifications have legitimate expectation to be considered for appointment on teaching posts. In case the State Government allows the persons having lower teaching qualifications to hold the posts, the rights of candidates having higher teaching qualifications will be violated. It will give rise to invidious discrimination and violate their constitutional right of equality before law.
33. The amendment in Rule 8 by the U.P. Industrial Training Institute (Instructor) (3rd Amendment) Service Rules, 2003, is thus held to be violative to the Constitutional Scheme of distribution of legislative powers, as also Article 14 and 16 of the Constitution of India. The writ petitions challenging the advertisement dated 13.12.2003 are thus liable to be allowed and the advertisement dated 13.12.2003 is consequently quashed.
34. The State Government is directed, in addition, and in modification to the direction issued by Lucknow Bench of this Court in its judgment and order dated 05.3.2003, in writ petition No. 6565 (SS) of 2001, Kalyan Rai v. State of U.P. and Ors. to advertise, hold and complete the selection process on all the vacancies within a period of four months from the date of delivery of this judgment. Now since directions have to be issued for fresh advertisement for these vacancies and all those vacancies, which may have arisen subsequently, the rights of those candidates, who have obtained these higher/ teaching qualifications as recommended by the Central Government and provided in the rules by the 2nd Amendment to the Rules of 1991, on 08.08.2003 cannot be ignored. It is as such further directed that all those candidates, who have obtained qualifications upto the date of fresh advertisement shall also be considered for selections and that all those candidates, who were within the age limit on the last date of receiving application in pursuance of advertisement dated 20.8.2003, shall also be eligible to apply for selections in pursuance of the fresh advertisement.
35. All the writ petitions except writ petition No. 13724 of 2006 are allowed. The writ petition No. 13724 of 2006 is dismissed. The successful petitioners are entitled for cost from the State."
22. The aforesaid judgment in the case of Upendra Narain Singh (supra) was challenged in Special Appeal No.1078 of 2006 (Pawan Kumar Sagar and others vs. State of U.P. and others) and by judgment dated 12.10.2006, the Division Bench upheld the aforequoted judgment of learned Single Judge after noticing Entry 66 of List-I and Entry 25 of List-III of the 7th Schedule, observing as under:
"There cannot be any two opinions about what the essentiality 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 thereof.
On this basis it would not be right to permit the State of U.P. to make out a different standard for this State alone within India and to have Instructors who do not have the required advanced training. A State is not permitted in an all India matter lo cut out a pocket for itself and suit its own needs even if it might be practical and of benefit to some powerful sections. The necessity of maintaining technical standard specially in, current the days, falling standards has been emphasised by the Hon'ble Singe Judge and we would respectfully repeat the sentiments of Ourselves also."
23. Thereafter, the U.P. Service Rules, 2014 was enacted by the State Government in exercise of powers conferred by the proviso to Article 309 of the Constitution of India
24. Rule 3(e), 3(f), 3(g), 3(i), 3(j), 3(k), 3(l), 3(s), 3(t), Rule 4, 7, 8, 9, 16, 17 and Appendix (in part only upto Sl. No.12) of the U.P. Rules, 2014, are reproduced below:-
"3(e) ''Crafts Instructor Training Scheme (CITS)' means the training scheme of the National Council for Vocational Training (NCVT) for preparing trained Instructors for Industrial Training Institutes.
3(f) ''CITS Certificate' for a trade means a certificate awarded by NCVT upon successful completion of one year training under the CTTS or in case of modular pattern the combined certificate awarded by NCVT upon successful completion of all the prescribed modules 3(g) "Government' means the State Government of Uttar Pradesh;
3(i) '''member of the service' means a person substantively appointed under these rules or the rules or orders in force prior to the commencement of these rules to a post in the cadre of the service, 3(j) ''National Council for Vocational Training (NCVT)' means the council set up by Director General of Employment and Training (DGET). Government of India for regulating the vocational training throughout India:
3(k) National Trade Certificate (NTC) in a trade means the certificate awarded by the NCVT upon successfully passing the All India Trade Test in that trade. For a candidate who has undergone training in any sector under the Centre of Excellence Scheme, certificates awarded by NCVT upon successful completion for all the three modules, namely Broad Based Basic Training, Advanced Module and the Specialized Module, together, shall constitute the National Trade Certificate for the purpose of these rules;
3(l) National Apprenticeship Certificate (NAC) in a trade means the certificate awarded by the NCVT upon successfully passing the National Apprenticeship Test;
3(n) ''Principles of Teaching (POT) Certificate' means the certificate awarded by NCVT upon successful completion of the relevant training or the completion of the module on Training Methodology under the modular pattern of CITS.
3(s) ''Trade' means a vocation or occupation which is notified by the National Council for Vocational Training or the State Council for Vocational Training in Industrial Training Institutes under the Craftsmen Training Scheme;
3(t) ''year of recruitment' means a period of twelve months commencing on the first day of July of a calendar year.
Part-III Cadre
4. (1) All posts of Instructors for various Trades/Subjects in which Training/Instructions are provided in Industrial Training Institutes shall together constitute the Cadre of Service.
(2) The number of posts of Instructors for various Trades/Subjects in the service shall be such as may be determined by the Government from time to time.
(3) The number of posts of Instructors for various Trades Subjects in the service shall, until orders varying the same are passed under sub-rule (2), be as given in column 3 of the Appendix.
Provided that:-
(i) the appointing authority may leave unfilled or the Governor may hold in abeyance any vacant post, without, thereby entitling any person to compensation;
(ii) the Governor may create such additional permanent or temporary posts as he may consider proper.
Part-IV Qualification
7. A candidate for recruitment to a post in the Service must be
(a) citizen of India; or
(b) Tibetan refuge who came over to India before the 1st January, 1962 with the intention of permanently settling in India; or
(c) a person of Indian origin who has migrated from Pakistan, Burma, Sri Lanka or any of the East African countries of Kenya, Uganda and the United Republic of Tanzania (formerly Tanganyika and Zanzibar) with the intention of permanently settling in lndia:
Provided that a candidate belonging to category (b) or (c) above must be a person in whose favour a certificate of eligibility has been issued by the State Government;
Provided further that a candidate belonging to category (b) will also be required to obtain a certificate of eligibility granted by the Deputy Inspector Genural of Police, Intelligence Branch, Uttar Pradesh;
Provided also that if a candidate belongs to category (c) above, no certificate of eligibility will be issued for a period of more than one year and the retention of such a candidate in service beyond a period of one year, shall be subject to his acquiring Indian citizenship.
NOTE-A candidate in whose case a certificate of eligibility is necessary but the same has neither been issued nor refused, may be admitted to an examination or interview and he may also be provisionally appointed subject to the necessary certificate being obtained by him or issued in his favour.
8. A candidate for recruitment to the post of Instructor in the service must have attained the age of 21 years and must not have attained the age of more than 40 years on the first day of July of the calendar year in which vacancies for recruitment are advertised:
Provided that the upper age limit in the case of candidates belonging to the Scheduled Castes, Scheduled Tribes and such other categories as may be notified by the Government from time to time shall be greater by such number of years as may be specified.
9. (A) A candidate for recruitment to the post of Instructor in the service must possess the following qualifications:
(1) Must have passed the High School Examination of the Board of High School and Intermediate Education, Uttar Pradesh or an Examination recognised by the Government as equivalent thereto;
(2) Must possess the technical qualifications for different trades/subjects as prescribed in column 4 of the Appendix.
(B) Should possess the preferential qualification to provide training/teaching in relevant trades/subjects as prescribed for different trades/subjects in column 5 of the Appendix.
Provided that the candidates who do not possess the preferential qualification as prescribed for different trades/subjects in column 5 of the Appendix, shall also be considered for selection and if selected, they shall be required to obtain the said qualification in the prescribed period as per rule 17(3).
15. (1) Subject to the provisions of sub-rules (2) and (3), of this rule the appointing authority shall determine the number of vacancies to be filled during the course of the year of recruitment as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, and other categories under rule 6. For making direct recruitment the appointing authority shall notify the vacancies in the following manner:-
(i) by issuing advertisement in at least two daily newspapers having wide circulation and in Employment News paper,
(ii) by pasting the notice on the notice board of the Directorate and subordinate offices
(iii) by notifying vacancies to the Employment Exchange, and
(iv) by publishing the notice on the website of the office of the appointing authority.
(2) The posts of Instructors for a trade/subject shall be filled from amongst candidates from two streams, namely (i) National Trade Certificate/ National Apprenticeship Certificate holders, and (ii) Diploma/ Degree holders in the proportion laid down in column 4 of the Appendix.
(3) The number of vacancies of the post of the Instructor for each trade/subject shall be determined separately for posts which are to be filled from amongst National Trade Certificate/National Apprenticeship Certificate holder candidates and which are to be filled from amongst Diploma or Degree holder candidates, in the proportion as laid down in the column 4 of the Appendix:
Provided that if in any trade/ subject the existing strength of Instructors from any stream is in excess of the proportion laid down for that stream, the said proportion shall be gradually achieved by adjusting such excess numbers in future recruitments, without affecting the incumbents:
Provided further that the sum of the vacancies for both the streams shall not exceed the total number of vacancies for that trade/ subject.
16. (1) Direct recruitment shall be made by a Selection Committee comprising:-
Procedure for direct recruitment
(i) Appointing Authority Chairman
(ii) An officer belonging to the Scheduled Castes or Scheduled Tribes, nominated by the Chairman, if the Chairman does not belong to Scheduled Castes or Scheduled Tribes. If the Chairman belongs to the Scheduled Castes or Scheduled Tribes an officer other than belonging to the Scheduled Castes or Scheduled Tribes, or Other Backward Classes shall be nominated by the Chairman.
Member
(iii) An officer belonging to the Other Backward Classes nominated by the Chairman, if the Chairman does not belong to Other Backward Classes. If the Chairman belongs to the Other Backward Classes, an officer other than belonging to Other Backward Classes or Scheduled Castes or Scheduled Tribes shall be nominated by the Chairman.
Member
(iv) Two officers as subject experts nominated by the appointing authority Members NOTE - The appointing authority may, on his behalf. nominate an officer senior to other members as Chairman of the Selection Committee and he may constitute more than one Selection Committee for holding interview only.
(2) Applications for being considered for selection shall be invited by the appointing authority in the form published in the advertisement issued under rule 15.
(3) In making selection for direct recruitment, the merit list of the eligible candidates shall be prepared in the following manner:-
(a) For academic qualifications prescribed for the post, the marks shall be awarded to each candidate in the following manner:
(i) Fifty percent of the percentage of marks secured in the High School Examination shall be given to each candidate.
(ii) Twenty percent of the percentage of marks secured in the National Trade Certificate Test /National Apprenticeship Certificate Test shall be given to each candidate, Or Twenty percent of the percentage of marks, secured in Diploma or Degree Examination shall be given to each candidate.
(iii) Fifteen percent of the percentage of the marks secured in CITS/POT test shall be given to each candidate.
(b) (i) After the results of the evaluations under clause (a) have been received and tabulated, the Selection Committee shall hold an interview. If the applications received are large in numbers, then in such situation the number of candidates to be called for interview shall be four times the number of vacancies. For this purpose the merit list of candidates shall be prepared separately on the basis of aggregate of marks obtained by them under clause (a).
(ii) The interview shall carry one hundred marks Fifteen percent of the marks obtained at the interview shall be given to each candidate (4) The marks obtained by each candidate under clause (a) of sub-rule (3) shall be added to the marks obtained by him under clause (b) of sub-rule (3). The final select list shall be prepared on the basis of aggregate of marks so arrived. If two or more candidates obtain equal marks in the aggregate, the candidate obtaining higher marks under clause (a) of sub-rule (3) shall be placed higher in the select list. In case two or more candidates obtain equal marks under clause (a) of sub-rule (3) also, the candidate senior in age shall be placed higher in the select list.
(5) The select list referred to in sub-rule (4) shall be forwarded to the appointing authority.
PART-VI Appointment, Probation, Confirmation and Seniority
17. (1) Subject to the provisions of sub-rule (3) of this rule, the appointing authority shall make appointment by taking the names of candidates in the order in which they stand in the list prepared under rule 16.
(2) If more than one order of appointment are issued in respect of any one selection, a combined order shall also be issued, mentioning the names of the persons in order of seniority as determined in the selection.
(3) The appointed persons will have to complete the CITS/POT and CCC Courses referred to in column 5 of the Appendix and obtain the requisite Certificates at their own expenses within three years from the date of joining and leave shall be granted to them for the said period. If a person is unable to complete the same due to reasons beyond his control, he shall be allowed one more year to complete the said. courses If a person is unable to obtain CITS/POT and CCC certificates within the prescribed period as mentioned in above, he shall not be allowed his first increment.
APPENDIX [See rules 4 and 9] Technical qualifications for the post of Instructor for different trades/ subjects shall be as follows:
Serial No. Trades/ Subjects Total Sanctioned posts Minimum Technical Qualifications Preferential Qualification to provide training/ teaching in the relevant trades 1 2 3 4 5 1 Fitter 287 (1) 50% posts in each trade to be filled from amongst candidates having National Trade Certificate (NTC) in the relevant trade OR National Apprenticeship Certificate (NAC) in the relevant trade.
(2) 50% posts in each trade to be filled from amongst the candidates having Diploma in Mechanical Engineering from the Board of Technical Education, Uttar Pradesh or equivalent OR Degree in Mechanical Engineering from recognised Institute/ University.
Certificate under one year Craft Instructor Training Scheme (CITS) in the relevant trade and Certificate in Course on Computer Concepts (CCC) from NIELIT (Formerly DOEACC Society of India) or from other equivalent recognised Institution.
2Welder (Gas & Electric) 194 3 Sheet Metal Worker 13 4 Turner 216 5 Machinist 137 6 Machinist (Grinder) 19 7 Mechanic Machine Tools Maintenance 02 8 Foundry man 13 9 Tool & Die Maker (Dies & Moulds) 06 10 Tool & Die Maker (Press Tools, Jigs & Fixtures) 07 11 Carpenter 10 12 Plumber 38 (1) 50% posts to be filled from amongst the candidates having National Trade Certificate (NTC) in the relevant trade OR National Apprenticeship Certificate (NAC) in the relevant trade.
(2) 50% posts to be filled from amongst the candidates having Diploma in Civil/ Mechanical Engineering from the Board of Technical Education, Uttar Pradesh or equivalent OR Degree in Civil/ Mechanical Engineering from a recognised Institute/ University.
Certificate of Training Methodology/Principles of Teaching Module (POT) under Craft Instructor Training Scheme (CITS) and Certificate in Course on Computer Concepts (CCC) from NIELIT (Formerly DOEACC Society of India) or from other equivalent recognised Institution.
"
Constitutional Provisions and Legislative Fields:-
25. Entry 65(a) and Entry 66 of List-I, Union List and Entry 25 of List-III, Concurrent List, of the VIIth Schedule to the Constitution of India read as under:
"65. Union agencies and institutions for-
(a) professional, vocational or technical training, including the training of police officers; or
66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.
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."
26. Perusal of aforequoted entries reveal that Entries 65 and 66 of List-I and Entry 25 of List-III operate in different fields. The field of legislation on the subject of Co-ordination and determination of standards in technical institutions for higher education or research and scientific and technical institutions, is specifically assigned to the Parliament. Technical education includes teachers' qualification which squarely falls under Entry 66 of List-I in the exclusive domain of the Union. Entry 25 of List-III is subject to provisions of Entry 66 of List-I. Therefore, so long as the Central Government has not issued any directions or has not enacted a law with respect to coordination and determination of standards in technical education, it shall be open to the State Government to prescribe qualifications for appointment in Industrial Training Institutes which are technical institutions. Since, in the the present set of facts, the standards in technical education which includes the prescribing of qualification for appointment in Industrial Training Institutions has been occupied by the Union of India by issuing Executive Orders dated 24.07.1996, 15.12.2008 and 30.09.2010 exercising the executive power vested in it by virtue of Article 73 of the Constitution of India, therefore, the Rules framed by the State Government has to be in conformity with the aforesaid executive orders. It is well settled that executive orders issued under Article 73 on matters on which Parliament has exclusive power to make laws, have the same force as laws made by Parliament.
27. Article 73 of the Constitution of India provides that subject to the provisions of the Constitution, the executive power of the Union of India shall extend inter alia to the matters with respect to which Parliament has power to make laws. Thus, in the absence anything to the contrary, the executive power of the Union is co-extensive with legislative power of the Parliament. Since there is neither any contrary legislation by Parliament on the subject in question referable to Entry-66, List-I nor subject matter of executive instruction in question has been assigned by the Constitution to other authorities or bodies nor it encroaches upon legal rights of any member of the public, therefore, the executive instructions dated 15.12.2008, 30.09.2010 and 21.03.2013 issued by the Government of India exercising the powers under Article 73 of the Constitution of India, shall hold the field.
28. In the case of Preeti Srivastava vs. State of M.P., (1999) 7 SCC 120, a Constitution Bench of Hon'ble Supreme Court dealt with the State competence under List-III Entry 25 to control or regulate higher eduction which is subject to standards laid down by the Union of India, and held that both the Union as well as States have the power to legislate on education/ medical education subject, inter alia, to Entry 66 of List-I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions. Thus, State has the right to control education including medical education so long as the field is not occupied by any Union Legislation but the State cannot, while controlling education in the State, impinge on standards in institutions for higher education or research and scientific and technical institutions which is exclusively within the domain of the Parliament. Similar view was taken by Hon'ble Supreme Court in the case of Annamali University vs. Secretary to Government Information and Tourism Department, (2009) 4 SCC 590 and Kalyani Mathivanan vs K V Keyaraj And Ors, (2015) 6 SCC 363 (paras 50 to 53) and State of Tamilnadu and another vs. Adhiyaman Educational & Research Institute and others, (1995) 4 SCC 104 (Para-12).
29. In the case of R. Chitralekha and another vs. State of Mysore and others, (1964) 6 SCR 368 : AIR 1964 SC 1823 (para-39), a Constitution Bench of Hon'ble Supreme Court reiterated the similar principles with reference to Article 162 of the of the Constitution of India, relating to States' executive power and held, as under:
"Again, here what we have is not a State law but merely what is claimed to be an -executive fiat. It is true that Article 162 says that the executive power of the State is co-extensive with the power of the legislature to legislate and this Court has held in Rai Sahib Ram Jawaya Kapur & Ors. v. The State of Punjab, (1995) 2 SCR 225 that the power of the State is not confined to matters over which legislation has already been passed. But neither Article 162 nor the decision of this Court goes so far as to hold that the State's power can be exercised in derogation of a law made by a competent legislature. On the other hand the Court appears to have approved of the view taken by two learned Judges of the Allahabad High Court in Motilal v. The Government of the State of Uttar Pradesh, AIR 1951 Allahabad 257 (FB) that an act would be within the executive power of the State if -it is not an act which has been assigned by the Constitution to other authorities or bodies and is not contrary to the provisions of any law and does not encroach on the legal rights of any member of the public. Here we have the Mysore University Act, Section 23 of which provides that the Academic Council shall have power to prescribe the conditions for admission of students to the University. Now since a competent legislature has conferred this power on a particular body the State cannot encroach upon that power by its executive act. Thus this is a case where there is not merely an absence of legislative sanction to the action of the State but there is an implied limitation on its executive power in regard to this matter."
30. The object of providing same standards in all technical educational institutions in the country for appointment in Industrial Training Institutes, is to maintain uniform standard which may not be lowered by any particular State or States to the detrimental of national progress. The power of coordination as provided in Entry-66 of List-I does not mean merely the power to evaluate but it also means to harmonise or secure relationship for concerted action. Therefore, a legislation made for the purpose of co-ordination and determination of standards in institutions for higher education or research in scientific and technical institutions, is essentially a legislation in the field reserved for Union under Entry 66 of List-I, Union List of the VIIth Schedule to the Constitution of India. Therefore, executive orders dated 24.07.1996, 15.12.2008 and 30.09.2010 are well within the executive powers of the Government of India under Article 73 of the Constitution of India, on the subject matter referable to Entry 66.
Essential and Preferential Qualification (CITS) under Rules/ Executive Orders:-
31. The Rules, 1991 as amended by the IInd Amendment Rules notified on 08.08.2003 incorporating the academic qualification of vocational instructors provided by the executive order dated 24.07.1996, are the Service Rules enacted by the State Government in exercise of powers under the proviso to Article 309 of the Constitution of India. Since, subsequently by the Third Amendment to the U.P. Rules, 1991 notified on 09.12.2003, the essential qualification of CITS for the post of instructors was lowered as opposed to the G.O. dated 24.07.1996 then holding the field, therefore, a learned Single Judge of this Court in the case of Upendra Narain Singh (supra) held the Third Amendment to the U.P. Rules, 1991 as ultra vires, which was affirmed by the Division Bench in Special Appeal in the case of Pawan Kumar Sagar (supra). Thus, the qualification for the post of instructors was governed by the G.O. dated 24.07.1996 till the issuance of the G.Os. dated 15.12.2008 and 30.09.2010.
32. In its 37th Meeting the NCVT under the Chairmanship of Hon'ble Minister of State for Labour and Employment (IC) held on 23rd November, 2008, resolved and approved norms for instructor qualification for trades under Craftsman Training Scheme vide Agenda Item Nos.3 and 4. The qualification so approved by NCVT, has been reproduced in paragraph-2 of the aforequoted executive order dated 15.12.2008. The recommendation of the NCVT was accepted by the Government of India vide para-3 of the aforequoted executive order dated 15.12.2008. Subsequently, in its 38th Meeting, the NCVT under the Chairmanship of Hon'ble Minister of State for Labour and Employment held on 31.05.2010 resolved/ recommended qualification for instructor of "Advance Module of Multiskilled Courses being implemented in ITIs upgraded COE," which have been extracted in the aforequoted executive order of the Government of India dated 30.09.2010, which was accepted by the Government of India and a direction was issued to implement it. It appears that subsequently, vide DO letter No.614/PSTV/2013 dated 15.02.2013, the State Government had requested for review of the aforequoted executive instructions. The Government of India vide aforequoted D.O. letter dated 21.03.2013 informed that after due consideration of the demands of the labour market and industry, the qualification for ITI instructors was determined. However, it provided that those instructors who were working, may complete the CITS within three years. It was concluded that there is no need for review of the qualification recommended by the NCVT as prescribed by the aforesaid executive orders. Consequently, the Government of India has required the States to amend the State Rules and accordingly to fill up vacancies. Thereafter, the State Government has enacted the impugned U.P. Service Rules, 2014 incorporating the academic qualification of instructuors as determined by the aforesaid two executive orders of the Government of India dated 15.12.2008, 30.09.2010 and the letter dated 21.03.2013. Thus, the impugned provisions of the U.P. Service Rules, 2014 are not in conflict with the executive orders issued by the Government of India dated 15.12.2008 and 30.09.2010 read with the letter dated 21.03.2013 which in fact have superseded the executive order dated 24.07.1996. Thus, the judgment of Hon'ble Single Judge in the case of Upendra Narain Singh (supra) as affirmed by the Division Bench in the case of Pawan Kumar Sagar and others (supra) are of no help to the petitioners in the changed circumstances.
33. Rule 3(j) of the U.P. Service Rules, 2014, itself defines the words "National Council for Vocational Training (NCVT)" to mean the Council set up by Director General of Employment and Training (DGE&T), Government of India for regulating the vocational training throughout India. The word ''CITS Certificate' for a trade has been defined in Rule 3(f), means a certificate issued/ awarded by NCVT upon successful completion of one year training under the CTTS or in case of modular pattern the combined certificate awarded by NCVT upon successful completion of all the prescribed modules. The word ''Trade' has been defined in Rule 2(s) of the U.P. Service Rules, 2014. The words ''''Crafts Instructor Training Scheme (CITS)'' have been defined under Rule 3(e) to mean the training scheme of the National Council for Vocational Training (NCVT) for preparing trained Instructors for Industrial Training Institutes. Thus, CITS certificate is a certificate of training granted by the NCVT for preparing trained instructors for Industrial Training Institutes, upon completion of one year training under the CITS or in case of modular pattern, the combined certificate awarded by NCVT upon successful completion of all the prescribed modules. The NCVT has been created by the Government of India for regulating the vocational training throughout India.
34. Rule 9(A) provides for essential qualifications of candidates for recruitment to the post of instructors. As per Rule 9(B), a candidate should possess the preferential qualification to provide training/ teaching in relevant trades/ subjects as prescribed for different trades/ subjects in column-5 of the Appendix. Column-5 of the Appendix to Rule 9 of the U.P. Service Rules, 2014 provides preferential qualification of one year certificate of CITS in the relevant trade and CCC certificate from NIELIT, for trades at Sl. No.1 to 11. The aforequoted executive order of the Government of India dated 15.12.2008 provides POT certificate as a desirable qualification for appointment of vocational instructors in ITIs/ ITCs for trades under CTS as approved by the Council. The executive order dated 30.09.2010 prescribes qualification of candidates for the post of instructor for Advance Module of Multiskilled Courses implemented in ITIs upgraded as COE, which includes "Pass NCVT approved Training Methodology Module of Craft Instructor Programme" as a desirable qualification. The word "POT" has been defined in Rule 3(n) of the U.P. Service Rules, 2014 to mean the certificate awarded by the NCVT upon successful completion of relevant training or the completion of the module on Training Methodology under the modular pattern of CITS. Thus, CITS certificate has been made a desirable qualification as per aforequoted executive orders dated 15.12.2008 and 30.09.2010 which have been incorporated in Rule 9(B) and Rule 15(3) of the U.P. Service Rules, 2014.
35. The proviso to Rule 9(B) of the U.P. Service Rules, 2014 provides that the candidates who do not possess the preferential qualification as prescribed for different trades/ subjects in Column-5 of the Appendix shall also be considered for selection and if selected, they shall be required to obtain the said qualification in the prescribed period as per Rule 17(3). The proviso to Rule 9(B) and Rule 17(3) are in fact the incorporation of last paragraph of the executive order of the Government of India dated 30.09.2010 and executive order dated 15.12.2008 as reiterated by the letter of the Government of India dated 21.03.2013, as under:
"....... bl lEcU/k esa lwfpr djuk gS fd jk"Vªh; O;kolkf;d izf'k{k.k ifj"kn~ dh cSBdksa es lE;d~ fopkjksaijkar rFkk Je cktkj ,oa m|ksx dh ekaxks dks /;ku esa j[krs gq, vkbZ-Vh-vkbZ- vuqns'kdksa ds in gsrq fMIyksek@fMxzh/kkjd dh vgZrk fu/kkZfjr dh x;h gSA mleas ;g Hkh izko/kku fd;k x;k gS fd vkbZ0 Vh0 vkbZ0 vuqns'kdksa ds in ij HkrhZ fMIyksek@fMxzh/kkjdksa dks dk;ZHkkj xzg.k djus dh fnukad ls rhu o"kZ dh vof/k ds Hkhrj MhthbZVh ds ,MokaLM izf'k{k.k laLFkkvksa ls f'kYi vuqns'kd izf'k{k.k ;kstuk ¼lh-vkbZ-Vh-,l-½ ds varxZr izf'kf{kr fd;k tk ldrk gS ftlls mUgs O;ogkfjd dkS'ky eas Hkh fuiq.krk izkIr gks ldsA blfy;s blds iquZfopkj dh vko';drk izrhr ugh gksrhA 2- vr% eSa vuqxzghr gwaxk ;fn d`i;k mijksDrkuqlkj lsok fu;ekoyh eas rRdky la'kks/ku dj vuqns'kdksa ds fjDr inksa dks Hkjus dk d"V djsa vkSj dh x;h dk;kZokgh ls bl dk;kZy; dks Hkh voxr djk nsaA"
36. It is also relevant to mention that technical qualification for appointment of Vocational Instructor in ITIs/ ITCs for trades under CTS as prescribed by the aforequoted executive order dated 15.12.2008 is the degree in Engineering/ three year diploma in appropriate branch of trade concerned OR National Apprenticeship Certificate OR National Trade Certificate in relevant trade. The words "National Apprenticeship Certificate (NAC)" have been defined in Rule 3(l) of the U.P. Service Rules, 2014 to mean the certificate awarded by the NCVT upon successfully passing the National Apprenticeship Test. The words "National Trade Certificate (NTC)" have been defined in Rule 3(k) to mean the certificate awarded by the NCVT upon successfully passing the All India Trade Test in that trade and a candidate who has undergone training in any sector under the Centre of Excellence Scheme, certificates awarded by NCVT upon successful completion for all the three modules, namely Broad Based Basic Training, Advanced Module and the Specialized Module, together, shall constitute the National Trade Certificate. The third column of executive order dated 15.12.2008 prescribes experience in trade as one year for degree-holder, two years for diploma holders and three years for NAC/ NTC. In addition to these essential qualification and experience, a desirable qualification has been prescribed as "POT". Perusal of the proviso to rule 9(B) read with Rule 17(3) of the U.P. Service Rules, 2014 further makes it clear that the desirable qualification is not simply a desirable one and if it is not possessed by a selected candidate then he has to possess it within three years and in circumstances beyond his control within a further period of one year, at his own expense, failing which he shall not be allowed his first increment. Thus, the impugned Rules provide for certain period to a selected candidate who does not possess CITS Certificate, to complete CITS mandatorily within a definite time frame, which is in fact incorporation of the aforementioned executive orders of Government of India in the impugned rules.
37. Thus, the Rules impugned in the present writ petitions are in fact incorporation of the aforequoted executive orders dated 15.12.2008 and 30.09.2010 read with the letter dated 21.03.2013, in the U.P. Service Rules, 2014. Therefore, the impugned Rules, not being in conflict with the Executive Orders dated 15.12.2008 and 30.09.2010 occupying the field; are not ultra vires to any of the provisions of the Constitution of India. Since the impugned advertisement is in conformity with the U.P. Service Rules, 2014 and the Executive Orders of the Government of India dated 15.12.2008 and 30.09.2010, therefore, the impugned advertisement is wholly valid.
38. We also find it relevant to mention that after the U.P. Service Rules, 2014 was notified on 30.01.2014, the Government of India has accepted the recommendation of 41st Meeting of the NCVT vide Executive Order dated 27.05.2014, which is reproduced below:
"DGSAT-18 703 2014-CD Government of India M/o Labour & Employment Directorate of Employment & Training Shram Shakti Bhavan New Delhi, dated 27 May, 2014 To,
1.Secretaries/Principal Secretaries of all the State Govts/UT Administrations dealing with Vocational Training
2. Directors dealing with Vocational Training of all States/UT Administrations Subject: Norms for Vocational Instructor qualification for trades under Craftsmen Training scheme.
Sir, The 41st meeting of the National Council for Vocational Training (NCVT) under the Chairmanship of Hon'ble Minister of Labour & Employment was held on 30th April, 2014, Norms for Instructor qualification for trades under Craftsmen Training scheme was discussed vide Agenda item No 41031 in the meeting.
2. A Working Group was constituted by M/o Labour & Employment for examining all aspects of the various DGE&T schemes including Craftsmen Training Scheme (CTS) and suggesting improvements therein. Working Group recommended that for every unit in a trade, one of the instructors appointed should be with professional qualification as ITI pass-outs with National Craft Instructor Certificate(CITS) (for trades where Craft Instructor Training Scheme was available) and one should be with professional qualification as degree / diploma holder, who will be trained in CITS in prescribed time. The recommendations of working group were further put up for the approval of the NCVT at its 41st meeting held at New Delhi,
3. Council approved that for every unit in a trade, one of the instructors appointed should be with professional qualification as ITI pass-outs with National Craft Instructor Certificate (for trades where Craft Instructor Training courses was available) and one should be with professional qualification as degree / diploma holder, who will be trained in CITS in prescribed time as per following academic as well as technical qualification.
Qualification Experience in trade relevant field after technical qualification Academic Technical 10th class pass or equivalent * Four years degree in Engineering/ Three years Diploma in **appropriate branch of engineering or National Apprenticeship Certificate in trade of National Trade Certificate in trade and National Craft Instructor Certificate (for those trades where courts under Crafts Instructor Training courses are available) One year for degree and two years for Diploma.
Three years for NAC/NTC.
*Degree/Diploma holders will have to undergo only second semester of CITS training, if they pass the direct test of first semester, within three years of appointment, as outlined in office order No. DGE&T- 19/07/(2)/2014-CD dated 26th May,2014 **As specified in syllabus of respective trades.
4. Council also recommended that every instructor who has already joined ITls must complete CITS course within three years of joining. This shall be made mandatory condition for the purpose of affiliation and promotion.
5. Council, further recommended that the contractual appointment to the post of instructors should be for a period of one year, and also that within the period of this one year, vacancies should be filled through regular recruitment with the objective of ensuring commitment of the Instructors for quality training on the basis of a career in this field.
6. Government of India has accepted the above recommendation of Council for Implementation with immediate effect. Henceforth, instructors for two units of a trade as per norms given in para 3 above, be appointed in Government and Private ITIs. The above academic as well as technical qualification be followed while appointing new instructors in Government and Private ITIs and same would be strictly monitored for grant of affiliation of these institutes. The norms given in para 4&5 above shall also be followed by all concerned strictly.
6. This supersedes previous orders on above subject.
Yours faithfully (R.L, Singh) Dy. Director General of Training Member secretary NCVT Copy to 1 Director, ATI-Chennal / Hyderabad/ Mumbai/ Kolkata/ Kanpuri Ludhiana, ATI(EPI) Hyderabad, & Dehradun, FTI Bangalore & Jamshedpur, NIMI Chennai, Director RDAT Kanpur Mumbai / Kolkata / Chennai/Faridabad & Hyderabad, Director-CSTARI, Kolkata.
2. Principal CTI Chennai, Principal MITI, Haldwani/Calicut/Jodhpur/ Choudwar, Principal-NVTI, Noida and Principals of all RVTIs.
3. All Directors at DGE&T (HQ)
4. PPS to Secretary (L&E), PS to DG/JS for Information, please.
(SNS Rahi) Dy. Director of Training"
39. Perusal of the aforenoted Executive Order dated 27.05.2014 shows that neither the impugned Rules nor the impugned advertisement is in conflict with it. The appointed candidates who have joined, have to complete CITS Course within three years.
40. By another subsequent Executive Order dated 07.01.2016, the Government of India has issued "Guidelines for recruitment of Instructors for ITIs by respective States and road map for Mandating CITS for all Instructors" as under:-
"MSDE 19/03(8)/2015-CD Government of India Directorate General of Training Ministry of skill Development & Entrepreneurship (MSDE) Shram Shakti Bhawan, Rafi Marg New Delhi, dated 7th January, 2016 To,
1. Secretaries/Principal Secretaries of all the State Govts/UT Administrations dealing with Craftsmen/Vocational Training
2. Directors dealing with Craftsman/Vocational Training of all States/ UT Administrations Subject:- Norms for "Recruitment of the Instructor in ITIs" and "mandating Crafts Instructor Training Scheme (CITS) for all ITI instructors".
Sir/Madam A Working Group was constituted comprising of Secretaries of the 04 States on the "Care Progression of ITI Instructors and changes in CTS programme." Three meetings of the Working were held to discuss on the Career Progression of ITI Instructors and changes in CTS programme.
The recommendations of working group on recruitment of the instructors and mandating CITS for all instructors of ITIs was discussed vide agenda item No.9 in the meeting of Sub Committee of NCVT dealing with Norms & Courses held on 17.12 2015, at New Delhi. After detailed discussion, the Sub-committee approved following guidelines for recruitment of the instructors for ITIs by respective State Governments and roadmap for "Mandating CITS for all instructors":
I. Guidelines for recruitment of the instructors for ITIs:
i. 60% weightage fixed for marks in relevant technical qualifications i.e. Degree/ Diploma or CTS.
ii.30% weightage fixed for marks in CITS qualification to ensure that CITS passed candidates are engaged as instructors iii.Maximum 10% weightage for interview iv.The threshold condition for experience criteria prevails as given in NCVT norms v.The above criteria will also apply for contractual employment II. Roadmap for "Mandating CITS for all instructors"
i. For affiliation /re-affiliation for all ITIs:
- By 2018-Availability of at least 40% instructors with CITS
- By 2020-Availability of at least 60% instructors with CITS By 2022- Availability of at least 80% instructors with CITS ii. No promotion for instructors without CITS in Govt. ITI's.
Iii. Separate scheme for part-funding of training expenses for the training of trainers working in Private ITIs.
All State Governments/UT Administrations are requested to follow above guidelines as given at Sl. No. I and II above, with immediate effect.
Yours faithfully (D.Mallick) Dy Director General of Training"
41. Thus, perusal of the aforequoted subsequent Executive Order of Government of India dated 07.01.2016 also makes it clear that appointed Instructors in Government ITIs who have not completed CITS, shall not be given promotion. Therefore, if any of the appointed candidate does not complete CITS then he shall be dis-entitled for promotion in Government ITIs. Thus, even in view of these Executive Orders, the appointment of the selected candidates cannot be quashed.
42. We also find that now the Rules in question, i.e. U.P. Service Rules, 2014 has been superseded by the Uttar Pradesh Government Industrial Training Institute (Instructors and Foreman Service) Rules, 2021.
No valid reason to interfere with the impugned Advertisement and Recruitment:-
43. We also find that by the impugned advertisement, 2498 vacancies for the post of instructors were advertised for recruitment and the petitioners applied for recruitment. According to the learned Additional Advocate General about 2300 candidates could be selected against the 2498 vacancies. The petitioners, by electing not to file rejoinder affidavits, have admitted the contents of counter affidavits filed by the selected candidates, i.e. the respondent Nos.4 to 7 and the respondent Nos.8 to 13. Thus the petitioners have admitted that there has been no breach of Articles 14 and 16 of the Constitution of India, reservation laws in the recruitment in question have been observed and Rule 16 regarding method of preparation of merit list of the eligible candidates in making selection for direct recruitment, does not suffer from any infirmity. The petitioners have also admitted the contents of paras 8 and 15 of the counter affidavit of the respondent Nos.8 to 13 that the Training Manual, 2014 issued by the Government of India issued for Industrial Training Institutes shortly prior to framing of the U.P. Rules, 2014 prescribes CITS as desirable qualification. Also, undisputedly the selected candidates were appointed and they are working since their appointments in the Year, 2016. Thus there is no valid reason to interfere with recruitment pursuant to the impugned advertisement and appointments of the selected candidates on the post of Instructor.
Presumption of the Constitutional Validity:-
44. In the case of Anant Mills Vs. State of Gujarat reported in AIR 1975 SC 1234 (para 20), the Hon'ble Supreme Court has held that :-
"20. There is a presumption of the constitutional validity of a statutory provision. In case any party assails the validity of any provision on the ground that it is violative of Article 14 of the Constitution, it is for that party to make the necessary averments and adduce material to show discrimination violative of Article 14. No averments were made in the petitions before the High Court by the petitioners that the assessments before the coming into force of Ordinance 6 of 1969 bad been made by taking into account the rent restriction provisions of the Bombay Rent Act. Paragraph 2B and some other paragraphs of petition No. 233 of 1970 before the High Court, to which our attention was invited by Mr. Tarkunde, also do not contain that averment. No material on this factual aspect was in the circumstances produced either on behalf of the petitioners or the Corporation. The High Court, as already observed, decided the matter merely on the basis of a presumption. It is, in our opinion, extremely hazardous to decide the question of the constitutional validity of a provision on the basis of the supposed existence of certain facts by raising a presumption. The facts about the supposed existence of which presumption was raised by the High Court were of such a nature that a definite averment could have been made in respect of them and concrete material could have been produced in support of their existence or non-existence. Presumptions are resorted to when the matter does not admit of direct proof or when there is some practical difficulty to produce evidence to prove a particular fact. When, however, the fact to be established is of such a nature that direct evidence about its existence or non- existence would be available, the proper course is to have the direct evidence rather than to decide the matter by resort to presumption. A pronouncement about the constitutional validity of a statutory provision affects not only the parties before the Court, but all other parties who may be affected by the impugned provision. There would, therefore, be inherent risk in striking down an impugned provision without having the complete factual data and full material before the court. It was therefore, in our opinion, essential for the High Court to ascertain and field out the correct factual position before recording a finding that the impugned provision is violative of article 14. The fact that the High Court acted on an incorrect assumption is also borne out by the material which has been adduced before us in the writ petitions filed under article 32 of the Constitution."
(Emphasis supplied by us)
45. In Charanjit Lal Choudhary Vs. Union of India and others, AIR 1951 SC 41 (para 10), Hon'ble Supreme Court has held that there is presumption that the legislature understands and correctly appreciates the need of its people. In Union of India Vs. Elphinstone Spinning and weaving Co. Ltd. and Ors., AIR 2001 SC 724 (para 9), Hon'ble Supreme Court has held that there is presumption that the legislature does not exceed its jurisdiction. In State of Bihar and others Vs. Smt. Charusila Dasi, AIR 1959 SC 1002 (para 14), the Hon'ble Supreme Court has laid down the law that there is presumption that the legislature does not intend to exceed its jurisdiction. In Kedar Nath Singh Vs. State of Bihar, AIR 1962 SC 955 (para 26), Hon'ble Supreme Court held that provision should be construed in the manner as will uphold its constitutionality. In Corporation of Calcutta Vs. Libery Cinema, AIR 1965 SC 1107, Hon'ble Supreme Court has laid down the law that the provision should be read in the manner as will make it valid. Similar view has been expressed by the Constitution Bench of Supreme Court in Anandji Haridas and Co. (P) Ltd. Vs. S.P. Kasture and ors., AIR 1968 SC 565 (para 32). In Sunil Batra Vs. Delhi Administration and ors., AIR 1978 SC 1675, Hon'ble Supreme Court observed that the legislature expresses wisdom of community. In State of Bihar VS. Bihar Distilleries, AIR 1997 SC 1511 (para 18), Hon'ble Supreme Court observed that an Act made by legislature represents the will of people and cannot be lightly interfered with. In Zameer Ahmad Latifur Rehman Sheikh Vs. State of Maharashtra and ors., J.T. 2010 (4) SC 256 (para 34), Hon'ble Supreme Court observed that every legally possible effort should be made to uphold the validity. In Greater Bombay Co-operative Bank Ltd Vs. United Yarn Tex (P) Ltd. and others, (2007) 6 SCC 236 (paras 82 to 85), Hon'ble Supreme Court observed as under :
" 82 The constitutional validity of an Act can be challenged only on two grounds, viz. (i) lack of legislative competence; and (ii) violation of any of the Fundamental Rights guaranteed in Part III of the Constitution or of any other constitutional provision. In State of A. P. & Ors. v. McDowell & Co. & Ors. [(1996) 3 SCC 709], this Court has opined that except the above two grounds, there is no third ground on the basis of which the law made by the competent legislature can be invalidated and that the ground of invalidation must necessarily fall within the four corners of the afore-mentioned two grounds.
83. Power to enact a law is derived by the State Assembly from List II of the Seventh Schedule of the Constitution. Entry 32 confers upon a State Legislature the power to constitute cooperative societies. The State of Maharashtra and the State of Andhra Pradesh both had enacted the MCS Act 1960 and the APCS Act, 1964 in exercise of the power vested in them by Entry 32 of List II of the Seventh Schedule of the Constitution. Power to the enact would include the power to re-enact or validate any provision of law in the State Legislature, provided the same falls in an entry of List II of Seventh Schedule of the Constitution with the restriction that such enactment should not nullify a judgment of a competent court of law. In the appeals / SLPs/petitions filed against the judgment of the Andhra Pradesh High Court, the legislative competence of the State is involved for consideration. Judicial system has an important role to play in our body politic and has a solemn obligation to fulfil. In such circumstances, it is imperative upon the courts while examining the scope of legislative action to be conscious to start with the presumption regarding the constitutional validity of the legislation. The burden of proof is upon the shoulders of the the incumbent who challenges it. It is true that it is the duty of the constitutional courts under our Constitution to declare a law enacted by Parliament or the State Legislature as unconstitutional when Parliament or the State Legislaturehad assumed to enact a law which is void, either for want of constitutional power to enact it or because the constitutional forms or conditions have not been observed or where the law infringes the fundamental rights enshrined and guaranteed in Part III of the Constitution.
84. As observed by this Court in CST v. Radhakrishnan in considering the validity of a Statute the presumption is always in favour of constitutionality and the burden is upon the person who attacks it to show that there has been transgression of constitutional principles. For sustaining the constitutionality of an Act, a Court may take into consideration matters of common knowledge, reports, preamble, history of the times, objection of the legislation and all other facts which are relevant. It must always be presumed that the legislature understands and correctly appreciates the need of its own people and that discrimination, if any, is based on adequate grounds and considerations. It is also well- settled that the courts will be justified in giving a liberal interpretation in order to avoid constitutional invalidity. A provision conferring very wide and expansive powers on authority can be construed in conformity with legislative intent of exercise of power within constitutional limitations. Where a Statute is silent or is inarticulate, the Court would attempt to transmutate the inarticulate and adopt a construction which would lean towards constitutionality albeit without departing from the material of which the law is woven. These principles have given rise to rule of "reading down" the provisions if it becomes necessary to uphold the validity of the law.
85. In State of Bihar & Ors. v. Bihar Distillery Ltd. & Ors. [(1997) 2 SCC 453], this Court indicated the approach which the Court should adopt while examining the validity/constitutionality of a legislation. It would be useful to remind ourselves of the principles laid down, which read: (SCC p.466, para 17):
"The approach of the court, while examining the challenge to the constitutionality of an enactment, is to start with the presumption of constitutionality. The court should try to sustain its validity to the extent possible. It should strike down the enactment only when it is not possible to sustain it. The court should not approach the enactment with a view to pick holes or to search for defects of drafting, much less inexactitude of language employed. Indeed, any such defects of drafting should be ignored out as part of the attempt to sustain the validity/constitutionality of the enactment. After all, an Act made by the legislature represents the will of the people and that cannot be lightly interfered with. The unconstitutionality must be plainly and clearly established before an enactment is declared as void. The same approach holds good while ascertaining the intent and purpose of an enactment or its scope and application."
In the same para, this Court further observed as follows:
"The Court must recognize the fundamental nature and importance of legislative process and accord due regard and deference to it, just as the legislature and the executive are expected to show due regard and deference to the judiciary. It cannot also be forgotten that our Constitution recognizes and gives effect to the concept of equality between the three wings of the State and the concept of "checks and balances" inherent in such scheme."
(Emphasis supplied by us)
46. In the case of Promoters and Builders Association Vs. Pune Municipal Corporation (2007) 6 SCC. 143 (para 9), Hon'ble Supreme Court has held that while exercising legislative function, unless unreasonableness and arbitrariness is pointed out it is not open for the Court to interfere.
Principles of Constitutional Validity:-
47. The constitutional validity of an Act can be challenged only on two grounds, viz. (i) lack of legislative competence; and (ii) violation of any of the Fundamental Rights guaranteed in Part III of the Constitution or of any other constitutional provision. Except the above two grounds, there is no third ground on the basis of which the law made by a competent legislature can be invalidated. The ground of invalidation must necessarily fall within the four corners of the aforementioned two grounds. In considering the validity of a Statute the presumption is always in favour of constitutionality and the burden is upon the person who attacks it to show that there has been transgression of constitutional principles. For sustaining the constitutionality of an Act, Court may take into consideration matters of common knowledge, reports, preamble, history of the times, object of the legislation and all the other facts which are relevant. It must always be presumed that the legislature understands and correctly appreciates the need of its own people and that discrimination, if any, is based on adequate grounds and considerations. The courts will be justified in giving a liberal interpretation in order to avoid constitutional invalidity. Where a Statute is silent or is inarticulate, the Court would attempt to transmutate the inarticulate and adopt a construction which would lean towards constitutionality albeit without departing from the material of which the law is woven. These principles give rise to rule of "reading down" the provisions if it becomes necessary to uphold the validity of the law. While examining the challenge to the constitutionality of an enactment, the court is to start with the presumption of constitutionality and try to sustain its validity to the extent possible. The court cannot approach the enactment with a view to pick holes or to search for defects of drafting, much less inexactitude of language employed. An act made by the legislature represents the will of the people and that cannot be lightly interfered with. It is presumed that the legislature expresses wisdom of the community, does not intend to exceed its jurisdiction and correctly appreciates the need of its own people.
Principles governing validity of subordinate legislation:-
48. Apart from the aforenoted principles to determine constitutional validity, one additional ground is available to test the validity of a subordinate legislation. The additional ground is that the authority making subordinate legislation must act within the limits of its power and cannot transgress the same. Reference with regard to these settled principles of validity of a subordinate legislation can be found in the judgments of Hon'ble Supreme Court in Hukum Chand vs. Union of India, (1972) 2 SCC 601, General Officer Commanding-in-Chief vs. Subhash Chandra Yadav and another, (1988) 2 SCC 351, Additional District Magistrate (Rev.) Delhi Administration vs. Siri Ram, (2000) 5 SCC 451, Sukhdev Singh and others vs. Bhagatram Sardar Singh Raghuvanshi and another, (1975) 1 SCC 421, State of Karnataka and another vs. H. Ganesh Kamath and others, (1983) 2 SCC 402, Kunj Behari Lal Butail and others vs. State of H.P. and others, (2000) 3 SCC 40, Union of India vs. M/s G.S. Chatha Rice Mill, (2021) 2 SCC 209 and judgment dated 16.12.2022 in Civil Appeal Nos.9252-9253 of 2022 (Kerala State Electricity Board and others vs. Thomas Joseph @ Thomas M.J. and others). In the present set of facts, we have found that the State Government has not transgressed the power in framing the impugned Rules. The impugned Rules are well in terms with the Executive Orders of Government of India issued under Article 73 of the Constitution of India.
49. In view of the settled principles of law and discussion made above with regard to the U.P. Service Rules, 2016, we hold that the impugned Rules 9(B), 15(3) and 17(3) of U.P. Government Industrial Training Institute (Instructors) Service Rule, 2014 neither suffer from lack of legislative competence nor it is violative of Articles 14, 16 or 21 of the Constitution of India nor it suffers from any invalidity. These provisions are wholly valid. The impugned advertisement is also wholly valid.
50. It has been stated on behalf of the selected candidates before us that all the appointed Instructors were either possessing CITS certificates prior to their selection/appointment OR have completed CITS subsequently during the period provided under the U.P. Service Rules, 2014 and subsequent executive orders.
51. For all the reasons aforestated we hold that the impugned Advertisement No. 2 of 2014 dated 07.11.2014 and the impugned Rule 9(B), 15(3) and 17(3) are valid. All the writ petitions lack merit and are, hereby, dismissed.
Order Date :- 04.01.2023 NLY