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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.

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.
"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).

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.