# Berojgar Audyogik Kalyan Samiti & Ors v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 365
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-04
- **Case number:** Writ-A No. 63110 of 2014
- **Bench:** Surya Prakash Kesarwani, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/berojgar-audyogik-kalyan-samiti-ors-v-state-of-u-p-ors-49624
- **Pages:** 42

## Headnote

C.S.C., A.S.G.I., Sri Ashok Khare, Sri G.K. Singh,
Sri H.P. Shahi, Sri Ram Dular, Sri Siddharth
Khare, Sri Arvind Kumar Goswami, Sri Purnendu
Kumar Singh, Sri Gaya Prasad Singh, Sri O.P.
Gupta, Sri Pankaj Kumar, Sri Bal Mukund, Sri
Sankalp Narain

A. Constitution of India - Article 73 -
Executive power and legislative power - Co-
366 INDIAN LAW REPORTS ALLAHABAD SERIES
extensive - Executive instructions dated
15.12.2008, 30.09.2010 and 21.03.2013
issued by Central Govt., how far hold good
law - Held, 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. (Para 27)
B. Constitution of India - Article 73 and 309
- VIIth Schedule - List I, Entry 65 and 66 -
List III, Entry 25 - Union's legislation and
St.'s legislation - Repugnancy - Effect -
Held, both the Union as well as St.s have the
power to legislate on education/ medical
education subject - St. has the right to
control
education
including
medical
education so long as the field is not
occupied by any Union Legislation but the
St. cannot, while controlling education in
the St., impinge on standards in institutions
for higher education or research and
scientific and technical institutions which is
exclusively within the domain of the
Parliament. (Para 28)
C. Technical education - Same standard and
uniformity in all technical institution - How
far necessary for national progress - St.'s
liability
to
maintain
the
uniformity,
explained - Held, 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 St. or St.s to
the detrimental of national progress. (Para
30)
D. Constitution of India - UP Government
Industrial Training Institute (Instructors)
Service Rule, 2014 - Rule 9(B), its proviso,
Rule 15(3), its proviso, and Rule 17(3) -
Constitutional
validity
challenged
-
Challenge on the ground of its being
inconsistence to the executive order -
Permissibility - Held, 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 - Held further,
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 - High Court held the
impugned
advertisement
valid
and
in
conformity with the U.P. Service Rules, 2014
and Executive Orders dated 30.09.2010.
(Para 37 and 47)
Writ petition dismissed. (E-1)
List of Cases cited:

## Text

_Characters 0–39,849 of 127,770. This is a partial read: ask again with offset=39849 for what follows._

1 All. Berojgar Audyogik Kalyan Samiti & Ors. Vs. State of U.P. & Ors.
365
colleagues or subordinates or sometimes
even his superiors in office may have to be
questioned. There may be cases where
suspension may be justified also to avoid
misuse of the authority of his office, misuse
which may result in obstruction to the
proper trial of the charges against him. The
situation could be met by the officer being
kept under suspension or in many cases
merely by transferring the delinquent away
from the scene, the choice necessarily
depending upon the exigencies of the
situation.

10. In the case at hand, there is
absolutely no need to keep the petitioner
under suspension. The respondents are
required to respond to the matter in an
unpassionate manner. What could be
gathered as a misconduct is already there
on his WhatsApp group. There is no scope
for the petitioner to interfere with any
material now gathered. Larger public
interest demands that the petitioner should
not be continued under suspension. This
Court is not interfering with the legality of
the suspension which is left open for
consideration in future. This Court is also
not adverting to the fact as to whether such
postings constitute a misconduct or not.
The Court has merely observed that there is
no imminent danger that would effect the
ongoing process of inquiry if the petitioner
is ordered to be reinstated. However, the
petitioner is restrained from making any
such posts on the WhatsApp group or any
portal on social media touching upon the
inquiry or any disciplinary action initiated
against him till the conclusion of the
inquiry against him.

11. Accordingly, the petitioner is
ordered to be reinstated in service. The
impugned
suspension
order
dated
3.11.2022 passed by the District Basic
Education Officer, is set aside. The inquiry
initiated against the petitioner shall go on
and the same shall be brought to its logical
end within two months from the date of
service of certified copy of the order of this
Court.

12. Needless to say that the petitioner
shall cooperate in the ongoing inquiry.

13. With the aforesaid observation,
the writ petition stands allowed.
----------
(2023) 1 ILRA 365
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.01.2023

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ-A No. 63110 of 2014
with other connected cases

Berojgar Audyogik Kalyan Samiti & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri A.K. Mishra, Sri A.N. Tripathi, Sri R.P. Mishra,
Sri Ankush Sharma, Sri Govind Kumar Saxena,
Sri Yogendra Kumar Srivastava, Sri Shashi Dhar
Shukla, Sri Indra Raj Singh, Sri Adarsh Singh, Sri
Ghanshyam Ojha, Sri C.B. Yadav, Sri Ankur
Sharma, Sri Shashi Nandan(Sr. Advocate)

Counsel for the Respondents:
C.S.C., A.S.G.I., Sri Ashok Khare, Sri G.K. Singh,
Sri H.P. Shahi, Sri Ram Dular, Sri Siddharth
Khare, Sri Arvind Kumar Goswami, Sri Purnendu
Kumar Singh, Sri Gaya Prasad Singh, Sri O.P.
Gupta, Sri Pankaj Kumar, Sri Bal Mukund, Sri
Sankalp Narain

A. Constitution of India - Article 73 -
Executive power and legislative power - Co-
366 INDIAN LAW REPORTS ALLAHABAD SERIES
extensive - Executive instructions dated
15.12.2008, 30.09.2010 and 21.03.2013
issued by Central Govt., how far hold good
law - Held, 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. (Para 27)
B. Constitution of India - Article 73 and 309
- VIIth Schedule - List I, Entry 65 and 66 -
List III, Entry 25 - Union's legislation and
St.'s legislation - Repugnancy - Effect -
Held, both the Union as well as St.s have the
power to legislate on education/ medical
education subject - St. has the right to
control
education
including
medical
education so long as the field is not
occupied by any Union Legislation but the
St. cannot, while controlling education in
the St., impinge on standards in institutions
for higher education or research and
scientific and technical institutions which is
exclusively within the domain of the
Parliament. (Para 28)
C. Technical education - Same standard and
uniformity in all technical institution - How
far necessary for national progress - St.'s
liability
to
maintain
the
uniformity,
explained - Held, 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 St. or St.s to
the detrimental of national progress. (Para
30)
D. Constitution of India - UP Government
Industrial Training Institute (Instructors)
Service Rule, 2014 - Rule 9(B), its proviso,
Rule 15(3), its proviso, and Rule 17(3) -
Constitutional
validity
challenged
-
Challenge on the ground of its being
inconsistence to the executive order -
Permissibility - Held, 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 - Held further,
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 - High Court held the
impugned
advertisement
valid
and
in
conformity with the U.P. Service Rules, 2014
and Executive Orders dated 30.09.2010.
(Para 37 and 47)
Writ petition dismissed. (E-1)
List of Cases cited:

1. Upendra Narain Singh & ors. Vs St. of U.P. &
anr.; 2006 (64) ALR 845 (All.)
2. Special Appeal No. 1078 of 2006; Pawan
Kumar Sagar & ors. Vs St. of U.P.& ors., decided
on 12.10.2006
3. Madan Mohan Pathak Vs U.O.I.& ors.; AIR
1978 SC (803)
4. Preeti Srivastava Vs St. of M.P., (1999) 7 SCC
120
5.
Annamali
University
Vs
Secretary
to
Government
Information
&
Tourism
Department; (2009) 4 SCC 590
6. Kalyani Mathivanan Vs K V Keyaraj & ors.;
(2015) 6 SCC 363
7. St. of Tamilnadu & anr. VsAdhiyaman
Educational & Research Institute & ors.; (1995)
4 SCC 104
8. R. Chitralekha & anr. Vs St. of Mysore & ors.;
(1964) 6 SCR 368 : AIR 1964 SC 1823
1 All. Berojgar Audyogik Kalyan Samiti & Ors. Vs. State of U.P. & Ors.
367
9. Anant Mills Vs St. of Gu.; AIR 1975 SC 1234
10. Charanjit Lal Choudhary Vs U.O.I. & ors.;
AIR 1951 SC 41
11. U.O.I. Vs Elphinstone Spinning and weaving
Co. Ltd.& ors.; AIR 2001 SC 724
12. St. of Bihar & ors. Vs Smt. Charusila Dasi;
AIR 1959 SC 1002
13. Kedar Nath Singh Vs St. of Bihar; AIR 1962
SC 955
14. Corp. of Calcutta Vs Libery Cinema; AIR
1965 SC 1107
15. Anandji Haridas & Co. (P) Ltd. Vs S.P.
Kasture & ors.; AIR 1968 SC 565
16. Sunil Batra Vs Delhi Administration & ors.;
AIR 1978 SC 1675
17. St. of Bihar Vs Bihar Distilleries, AIR 1997
SC 1511
18. Zameer Ahmad Latifur Rehman Sheikh Vs
St. of Mah. & ors.; J.T. 2010 61 (4) SC 256
19. Greater Bombay Co-operative Bank Ltd Vs
United Yarn Tex (P) Ltd. & ors.; (2007) 6 SCC
236
20. Promoters and Builders Association Vs Pune
Municipal Corp. (2007) 6 SCC. 143
21. Hukum Chand VsU.O.I.; (1972) 2 SCC 601
22. General Officer Commanding-in-Chief Vs
Subhash Chandra Yadav & anr. (1988) 2 SCC
351
23. Additional District Magistrate (Rev.) Delhi
Administration Vs Siri Ram; (2000) 5 SCC 451
24. Sukhdev Singh & ors. Vs Bhagatram Sardar
Singh Raghuvanshi & anr.; (1975) 1 SCC 421
25. St. of Karnataka & anr. VsH. Ganesh
Kamath& ors.; (1983) 2 SCC 402
26. Kunj Behari Lal Butail & ors. Vs St. of H.P.&
ors.; (2000) 3 SCC 40
27. U.O.I. Vs M/s G.S. Chatha Rice Mill; (2021)
2 SCC 209
28. Civil Appeal Nos. 9252-9253 of 2022; Kerala
St. Electricity Board & ors. Vs Thomas Joseph @
Thomas M.J. & ors. decided on 16.12.2022
(Delivered by Hon'ble 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
368 INDIAN LAW REPORTS ALLAHABAD SERIES
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
1 All. Berojgar Audyogik Kalyan Samiti & Ors. Vs. State of U.P. & Ors.
369
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
370 INDIAN LAW REPORTS ALLAHABAD SERIES
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 ListIII of Concurrent List of the 7th Schedule
to the Constitution of India. Therefore, by
issuing directions to include CITS as
1 All. Berojgar Audyogik Kalyan Samiti & Ors. Vs. State of U.P. & Ors.
371
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
372 INDIAN LAW REPORTS ALLAHABAD SERIES
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
1 All. Berojgar Audyogik Kalyan Samiti & Ors. Vs. State of U.P. & Ors.
373
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 Staterespondents), 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 WritA 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 subordinate legislation enacted by the Union of
India, therefore, the Rules, 2014 shall hold
374 INDIAN LAW REPORTS ALLAHABAD SERIES
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
1 All. Berojgar Audyogik Kalyan Samiti & Ors. Vs. State of U.P. & Ors.
375
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:-

Je ea=ky;

 MINISTRY OF LABOUR

NO. DGE&T-10(20)/95-CD1⁄4jks0 ,oa iz0
egkfuns'kky;1⁄2

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 nonengineering 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,
........
376 INDIAN LAW REPORTS ALLAHABAD SERIES

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
Essent
ial
qualifi
cation
Pay
Scale
1.
2.
3.
4.
5.
1.
Vocationa
l
Instructor
(Trade
Theory,
Worksho
p)Calcula
tion
&
Science
and
Engineeri
ng
Drawing
One V.I.
for
a
minimum
of
36
trainees
falling
under the
same
group of
trades.
a)
Acade
mic:
Passed
10th
standa
rd
exam
under
10+2
syste
m
of
educat
ion.
b)
Techn
ical:
Passed
3
years
diplo
ma in
appro
priate
branch
Rs.
16402900/-
of
engine
ering
for
a
recogn
ized
Institu
tion.
c)
Posses
ses
Certifi
cate
under
Instru
ctor
Traini
ng
Schem
e (One
year
course
)
or
should
have
succes
sfully
compl
eted
minim
um
two
modul
es
viz.,T
eachin
g
Metho
dolog
y
Modul
e
(3
month
s
durati
1 All. Berojgar Audyogik Kalyan Samiti & Ors. Vs. State of U.P. & Ors.
377
on)
and
Trades
Techn
ology
Modul
e (Six
month
s
durati
on)
under
Craft
Instru
ctor
Traini
ng
progra
mme
on
modul
ar
patter
n
or
should
have
passed
one
year
course
from a
Techn
ical
Teach
er
Traini
ng
Institu
te
(TTTI
)under
M/O
ERD.

2.
Vocation
al
Instructo
r
(Practica
l)
One
Instructor
per
unit
in
the
trade for
conductin
g
Practicals
& to look
after
Maintena
nce
of
machines
under his
charge
a)
Acade
mic:
Passed
10th
Standa
rd
under
10+2
syste
m
of
educat
ion.
b)
Techn
ical
Posses
ses
NTC/
NAC
for the
trade.
c) (i)
A
certifi
cate
under
regula
r Craft
Instru
ctor
Traini
ng
schem
e
of
one
year
durati
on.
OR
(ii)
passed
POT
Modul
e
in
378 INDIAN LAW REPORTS ALLAHABAD SERIES
trades
not
having
faciliti
es for
instruc
tors
trainin
g.
Neces
sary
practic
al.

(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,