High Court
Legal Reasoning
937.CA.976.24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCIVIL APPLICATION NO.976 OF 2024INREVIEW APPLICATION (ST) NO.39476 OF 2023INWRIT PETITION NO.2654 OF 20231.The Union of TrainedCraft Instructors, through its Authorised Signatory 2.Balu Namdeo Bhosale,3.Nilesh Prakashappa Burkule…APPLICANTS VERSUS1.The State of Maharashtra,through its' Secretary, Vocational Education & Training, Mantralaya, Mumbai -32.2.The Director General Training (DGT),Ministry of Skill Development and Entrepreneurship Employment, Exchange Building Library Avenue, PUSA Complex, New Delhi - 1100123.The Director of Vocational Education andTraining /DVET, Maharashtra State, Mumbai -1 Office at 3, Municipal Corporation Road, Mumbai 400 001 4.Rajesh Dnyaneshwar Rathod5.Vinod Yeshwant Shelke6.Tushar Pandurang Pawar7.Mininath Ramprasad Humbe8.Pritesh Sanjeev Kuntewad9.Rameshwar Baliram Waghmare10.Pramod Jalindar Kalapure11.Snehal Pandurang Pawar12.Navnath Janku Devre13.Dhairyashil Deepak Madake14.Pradeekumar Uttamrao Tangade15.Savata Dayaram Mahajan… RESPONDENTS1/9
Legal Reasoning
937.CA.976.24.odt...Advocate for Applicants : Mr. Sameer Vaidya h/f. Mr. S.S. DambeAddl. G.P. for respondent/State : Mr. M.M. NerlikarDSGI for respondent No.2 : Mr. A.G. Talhar…CORAM: MANGESH S. PATIL AND SHAILESH P. BRAHME, JJ.DATE: 19.01.2024ORDER (MANGESH S. PATIL, J.) :By way of this civil application and the review application theapplicants who were the original applicants in original applicationNo.761/2022 filed before the Maharashtra Administrative Tribunal, atAurangabad (herein after the Tribunal) are seeking condonation of delay infiling the review application and are seeking review under Section 114 readwith Order XLVII Rule 1 of the Code of Civil Procedure of the judgment andorder passed by us in Writ Petition No.2654/2023, whereby, the order ofTribunal passed in original application directing modification of clauseNo.15.22 of the advertisement published by the Director of VocationalEducation and Training (hereinafter DVET) was quashed and set aside. 2.The facts leading to filing of this review application can besummarized as under :i.The DVET published advertisement on 17.08.2022 for filling up 1457posts of Craft Instructors and ITIs instructors.ii.On the ground that the Director General Training (DGT) and theconcerned Ministry of Union of India have mandated training under the2/9 937.CA.976.24.odtCITS (Craft Instructors Training Scheme) as an essential qualification forappointment to the posts of Instructors in the ITIs (Govt. and Private) theapplicants objected to clause 15.22 of the advertisement by filing OriginalApplication No.761/2022 in the Tribunal. iii.According to the applicants the Recruitment Rules dated18.11.1983 provide for giving preference to the CITS candidates whilerecruiting the post of Craft Instructors and IT Instructors.iv.Even the Recruitment Rules dated 18.11.1983 of the StateGovernment also provide for preference to be given to the candidatespossessing CITS qualification while making recruitment to the post of CraftInstructors (Clause III in the ITIs).v.The Tribunal having inter alia concluded that indeed preferenceshould have been given to the CITS qualified candidates and holding thatclause No.15.22 of the advertisement was not compatible with therecruitment rules issued direction to modify the clause before proceedingwith the recruitment process.vi.Being aggrieved by the order of the Tribunal couple ofindividuals filed the writ petition No.2654/2023.vii.By the order under review this Court quashed and set aside thedirections of the Tribunal contained in clauses ‘A’ and ‘B’ of the operativepart, while allowing the writ petition partly. Hence this review applicationby the original applicants.3/9 937.CA.976.24.odt3.We requested the learned advocate for the applicants to firstsatisfy us at least prima facie, sustainability of the review application.4.The learned advocate Mr. Vaidya holding for Mr. Dambe for theapplicants would submit that the applicants are seeking review on twogrounds. Firstly, while passing the order under review this Court has reliedupon a decision of the single Judge of the Gujarat High Court, however, theapplicants were unable to point out and even this Court did not take intoconsideration that the Gujarat Recruitment Rules which were the subjectmatter of the decision of the Gujarat High Court were peculiar which couldnot be placed before this Court to distinguish the matter in hand. Secondly,the view taken by us in the impugned order is inconsistent with the earlierdecision of a coordinate bench in Writ Petition No.11055/2016 decided on22.08.2017 to which one of us (Mangesh S. Patil, J.) was a party. Thelearned advocate would submit that while deciding Writ PetitionNo.11055/2016 this Court had expressly taken a view that the notificationdated 18.11.1983 had expressly laid down that preference would be given tothe candidates who had successfully completed the training in centraltraining institute but the advertisement was not in accordance with thatnotification and was also inconsistent with the circular of the DGT dated27.05.2014. The learned advocate would submit that since one of us was amember of the Division Bench which has already taken a view, the judicialpropriety and discipline demanded that while passing the order underreview we should have followed the view expressed in the earlier decision.4/9 937.CA.976.24.odt5.Taking up the first ground, as regards the single Judge decisionof the Gujarat High Court, the submission of the learned advocate and thefirst ground being resorted to by the applicant is fallacious. Though we hadreferred to the decision of the Gujarat High Court, we have merely referredto that decision to point out as to how there were decisions of several HighCourts touching the selfsame issue. The views being expressed by us werenot compatible with the views expressed by the other High Courts but wascompatible with the decision of the Gujarat High Court. For the sake ofconvenience, we reproduce the reference to the decisions of various HighCourts from paragraph Nos.12 and 15 which read thus : “12.We have carefully considered the rival submissions and perused thepapers. On facts there is not much of a dispute and therefore wepropose to proceed on more intricate issue regarding the scope andambit of the relevant provisions. As is noted by the Tribunal the HighCourts of Uttar Pradesh, Uttarakhand, Rajasthan and the Punjab andHaryana have held that the rules framed under Article 309 by theState Government would be subservient to the executive instructionsissued by the DGT of the Government of India under Article 73.However, the High Court of Gujarat in the matter of Dilip KumarChhotubhai Patel and Anr. Vs. State of Gujarat and Ors.; CivilApplication No.4806/2010 decided on 21.04.2010 has taken acontrary view and has held that the statutory rules framed by theState Governments under Article 309 will prevail over the executiveinstructions issued under Article 73. Conspicuously, the Tribunal hasnot resorted to any independent discussion as regards the core issueregarding the scope and ambit of Articles 73 and 309 and has simplyfollowed the ratio laid down by the majority of the High Courts(supra) and has refused to follow the view of the Gujarat High Courtbut without assigning any reason.15.Resorting to the wording of Article 73, the High Courts except theHigh Court of Gujarat have held that since the executive power of theUnion extends to the matters in respect of which parliament haspower to make laws and since the technical education is coveredunder Entry 66 of List I of Seventh Schedule, the executiveinstructions/guidelines issued by the department of the Union underArticle 73 would supersede the rules framed by the State5/9 937.CA.976.24.odtGovernments under Article 309. Though these High Courts have notexpressly discussed, it appears that they have resorted to such aninterpretation in all probability because of the provision contained inArticle 254 which restricts the power of the legislature of the State tomake laws in respect of the matters which cannot be inconsistentwith the laws made by the Parliament. Obviously, there cannot beany debate as far as the scope and ambit of the powers given to theParliament and the State Government to legislate and the supremacyof the laws framed by the Parliament in the light of Article 254.However the issue is as to if by implication this circumscribing limiton the powers of the State Legislature provided under Article 254would even apply by analogy while interpreting the interplaybetween Article 73 and Article 309. In our considered view, Article73 is a part of Chapter I of Part V which provides for the powers ofthe Executive, whereas, Article 309 is a part of Chapter I of Part XIVproviding for services under the Union and the States. Articles 245 to255 are part of Chapter I of Part XI which provides for relationsbetween the Union and the States. If such a scheme of theConstitution is borne in mind, without there being any expressprovision like the one under Article 254, merely because Article 73makes the provisions in respect of the executive power of the Unioneven to the matters with respect to which parliament has power tomake laws, in our considered view, such executive directions orguidelines issued under that provision even if those are in respect ofthe matters were the parliament has powers to make laws will not begoverned by the protection under Article 254 which only takes intoaccount inter alia the situation where the law framed by thelegislature of a State are repugnant to the laws made by theParliament. If a State Government has framed certain rules byresorting to the enabling provision contained in Article 309 inter aliaproviding for the educational qualification for the post of craftinstructors to be appointed in different ITI’s, even if those are notcompatible with the instructions issued by the DGT under Article 73,the former cannot be said to be hit by any specific provision muchless, by Article 254.”6.Considering the line of reasoning we have resorted to, coupledwith the above observations, we had merely made the aforementionedobservations to demonstrate as to how and why we were taking a differentview than the other High Courts and it was merely pointed out that the viewof the Gujarat High Court was compatible with our view.6/9
Decision
937.CA.976.24.odt7.After elaborately referring to Articles 73, 246, 254 and 309 andreferring to entry No.66 from List I of Seventh Schedule and Entry No.25 ofList III of that Schedule to the Constitution we had concluded in paragraphNo.19 as under :19.In the light of the above, the Tribunal has grossly erred in blindlyfollowing the decisions of the High Courts which held that theadministrative guidelines issued by the DGT under Article 73 willhave primacy over the recruitment rules framed by the State underArticle 309. For the reasons given by us, so long as the field forproviding for the qualification for the post of craft instructor is notoccupied by a law made by the Parliament under Entry No.66 of List Ifrom Seventh Schedule, the executive instructions issued by therespondent – DGT by resorting to Article 73 will not supersede theRecruitment Rules, 1983 framed under Article 309 pursuant to whichthe impugned advertisement was issued. The observations andconclusions which form the basis for the Tribunal to pass theimpugned order are clearly unsustainable in law.8.In view of the above state of affairs, the submission of thelearned advocate for the applicants and the stand being taken in the reviewapplication as if we had simply followed the decision of the Gujarat HighCourt is factually incorrect and the ground is not sustainable.9.As far as the second ground regarding judicial discipline andpropriety in view of the directions of this Court in Writ PetitionNo.11055/2016 is concerned, it is not that we were oblivious of thatdecision. In fact we had given express reasons to demonstrate as to how thedirections in the Writ Petition No.11055/2016 were given without therebeing any consideration and decision about efficacy and sustainability aswell as the scope and ambit of the circular issued by the DGT dated27.05.2014 as well as without referring to the issue regarding the interplay7/9 937.CA.976.24.odtbetween the administrative instructions issued by resorting to Article 73 andthe Rules framed under Article 309 of the Constitution. After pointing outthis, we had specifically observed that in the order under review that thedirections in the writ petition No.11055/2016 could not be taken as layingdown any law. The relevant observations in the order under review can befound in paragraph No.20 to 22 which read as under : 20.It does appear that a similar challenge like the matter in hand wasput up to an advertisement published earlier by the State Governmentwhich was challenged by preferring Original Application No.566/2014,wherein the Tribunal had ordered to start the recruitment process for thepost of craft instructors afresh considering the guidelines issued by theDGT. Admittedly, the challenge to that order put up before this Court inWrit Petition No.11055/2016 was turn down on 22.08.2017. TheTribunal has therefore observed that in view of this decision of the HighCourt which has reached finality, the challenge being put up to thepresent advertisement clause 15.22 would sustain.21.The relevant observations of this Court in that order contained inparagraph Nos.6 and 7 read as under :6.As far as post of Craft Instructor is concerned, notificationdated 18.11.1983 also specifically lays down that thepreference may be given to the candidate who havesuccessfully completed training in the Central TrainingInstitute for the post of Instructor. The advertisement didnot prescribe the said condition. Moreover, even as per theCircular issued by the Directorate General of Employmentand Training dated 27.5.2014 i.e. prior to theadvertisement, for every unit in a trade one of theInstructors appointed should be with professionalqualification as I.T.I. passed out with National CraftInstructor Certificate for trades where Craft InstructorTraining course was available.7.Considering the aforesaid aspects, the Tribunal has notcommitted any error in quashing the advertisement,however, it requires to be clarified that the advertisementshall stand quashed and set aside for the post of I.T.I. CraftInstructor in different trades and the said order of theTribunal shall not have the effect on the impugnedadvertisement for the post other than I.T.I. CraftInstructors.8/9 937.CA.976.24.odt22.Ex facie, the observations of this Court to which one of us was aparty (Mangesh S. Patil, J.) did not expressly consider and decideefficacy and sustainability as well as the scope and ambit of the circularissued by the DGT dated 27.05.2014 much less the issue regardingsupremacy between the administrative instructions under Article 73 andthe Rules framed under Article 309. In the absence of any such issuehaving been raised in the earlier round, in our considered view, theabove observations in the order passed in the WP No.11055/2016cannot be taken as laying down any law.10.In view of these observations, when we had precisely pointedout the reasons for not following the observations in the order dated24.08.2023, and particularly when, the Special Leave to Appeal preferred bythe applicants aggrieved by the order under review has also been dismissedalbite in limine, even the second ground being relied upon by the applicantsis not sustainable. 11.In view of the above, both the grounds being resorted to by theapplicants for seeking a review being not sustainable, the application forcondonation of delay together with the review application is dismissed. (SHAILESH P. BRAHME, J.) (MANGESH S. PATIL, J.)habeeb9/9