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2006 DIGILAW 2558 (ALL)

PAWAN KUMAR SAGAR v. STATE OF UTTAR PRADESH

2006-10-12

AJOY NATH RAY, ASHOK BHUSHAN

body2006
JUDGMENT By the Court.—We are in respectful agreement with the reasoning given and the order passed by Hon’ble Mr. Justice Sunil Ambwani on the 8th of August, 2006. By that judgment and order the writ petitions of the appellants and also of the respondents were disposed of. 2. Although the facts are fully set out in the impugned judgment and various reasons have been given for his Lordship’s order, and we agree with all of those, we set out here in a brief compass the basic controversy and some of our respectful additional reasons for upholding the impugned judgment and order; there might be some overlapping of the reasons given in the impugned order and the reasons given by us in our own formulation and wording. 3. The first in point of time was the writ petition filed by the respondents, who were aggrieved by the third amendment of rules brought into effect on or about the 9th of December, 2003 in regard to the essential qualifications for recruitment of the Training Instructors in the various Government Industrial Training Institutes situated in every district of the State of Uttar Pradesh. 4. Those writ petitioners were all in possession of a one year advanced training certificate (ATC), which can be granted only by one of the eight institutions which are located all over India. The only one of those located in the State of Uttar Pradesh is at Kanpur. It was their submission that since they are in possession of the certificate the removal of such a qualification from the list of essential qualifications would rob them of all the benefit that they otherwise would have got by possessing the certificate, which they have obtained after securing admission and completing the course duly and satisfactorily. 5. The writ petition on behalf of the appellants was one filed by Guest Instructors in the Training Institutes. None of them had the ATC. It was their submission that the rules of the year 1994 did not contain the ATC as an essential qualification; that the rules of the 8th of August, 2003, being the amendment prior to the challenged amendment, included the ATC as an essential qualification. None of them had the ATC. It was their submission that the rules of the year 1994 did not contain the ATC as an essential qualification; that the rules of the 8th of August, 2003, being the amendment prior to the challenged amendment, included the ATC as an essential qualification. According to the State Government, the inclusion of the said ATC training made it difficult to obtain recruitment in all the posts of the Training Instructor and as such by the amendment dated 9.12.2003 that essentiality qualification was removed. 6. On behalf of the State Government no detailed submissions have been made but they have largely supported the case of the appellant. The genesis of the inclusion of the ATC certificate as an essential qualification starts with a Central Government directive dated the 24th of July, 1996 issued from the Ministry of Labour. It was there provided (see page 140) that the institutions not recruiting as per the revised qualifications after 1.8.1997 were liable to be deaffiliated. For non engineering trade, however, status quo was allowed to be maintained. The ATC training of one year was prescribed as an essential qualification short of which the institution would be exposed to the risk of deaffiliation. 7. The time for inclusion of this was extended from time to time up to the year 2001. However in the State of U.P. the whole matter waited until 9.12.2003 before the said essential qualification was included. The inclusion was short lived for four months only. On 4.12.2003, the essential qualification was reduced to the rank of only being something preferable. 8. The said Central Government directive mentions that it was being issued at the instance of the National Council for Vocational Training. It is not a statutory body. Under its directives, the Government Industrial Training Institutes all over India must recruit Training Instructors having basically the following three qualifications : I. Education up to Intermediate level or 10+2. II. A three year diploma in State Government Industrial Training Institute. III. The said one year advanced training certificate, which is in dispute. 9. The Hon’ble Single Judge has opined that there were more than 700 applications received from persons who had the third essential qualification and that the number of posts is lower than those. II. A three year diploma in State Government Industrial Training Institute. III. The said one year advanced training certificate, which is in dispute. 9. The Hon’ble Single Judge has opined that there were more than 700 applications received from persons who had the third essential qualification and that the number of posts is lower than those. His Lordship also recorded that there were no sufficient facts or figures to justify the submission that in regard to certain areas of training no applications had been received. 10. The principal submission on behalf of the appellant has been that the rules of the State Government have been framed under Article 309 of the Constitution of India and therefore must take precedence over any administrative direction given by the Central Government. 11. On behalf of the respondents, it was submitted that the administrative direction is not properly so called. It is an exercise of power made under Article 73 of the Constitution of India. It was submitted that the exercise of power under that Article is not limited merely to executing the laws. Power under Article 73 can be used in all fields which are covered by the various entries in List-I and List-II of the 7th Schedule of the Constitution even if there has been no legislation in those entries made by the Parliament until then. The case of Rai Sahib Ram, reported at AIR 1955 SC 549 was relied upon in that regard and passages were placed from the judgment of B.K. Mukherjea, CJ, especially passages from paragraphs 8 and 11 thereof. 12. It was thus submitted that the exercise of power under Article 73 is referable to what would have been an exercise of power by Parliament under List I, Entry 66 of the Union List. The said entry is quoted below : “66. Co- ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.” 13. A reference was made to Entry 25 of the Concurrent List, i.e., List III and the said entry is quoted below : “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.” 14. A reference was made to Entry 25 of the Concurrent List, i.e., List III and the said entry is quoted below : “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.” 14. The submission of the respondents was that in pith and substance, the rules made by the State Government are referable to an exercise of parallel power to what is contained in Entry 66 of List I. If that be so, then and in that event, this power cannot be usurped by the State Government in the garb of seeking to make service rules operative under Article 309 of the Constitution of India, although State service is made a State entry therein, and therefore, ordinarily speaking, State service rules are to be made by and under the order of the Governor of the concerned State. 15. There cannot be any two opinions about what the essential qualification of a training instructor in a Government Industrial Training Institute actually is. It has everything to do with the standard of a technical institution; that is the main and guiding factor. No doubt it is also a qualification necessary for obtaining service, but service is not the main factor. Also it is much more relatable to Entry 66 rather than Entry 25 which contains vocational and technical training of labour. The reason for our concluding to this effect is that the Training Instructors should be looked upon more, and much more, as those entrusted with the responsibilities of maintaining the standard of instruction rather than merely as part of a labour force. Even in a List III matter, the Central exercise of power would prevail, on the principles akin to those contained in Article 254, as Presidential assent cannot had in regard to exercise of power under Articles 162 or 309. 16. 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 to cut out a pocket for itself and suit its own needs even if it might be practical and of benefit to some powerful sections. A State is not permitted in an all India matter to 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 the current days of falling standards has been emphasised by the Hon’ble Single Judge and we would respectfully repeat the sentiments ourselves also. 17. About the additional argument made before us that under Act 52 of 1987 Parliament has brought about an All India Technical Council and it is for that Council alone to give directions, we are of the opinion that it is not an argument of any soundness at all. The matter was not argued in the Court below. The argument is not to be found in the memorandum of appeal. The said Technical Council is, generally speaking, for higher institutions, which are concerned with engineering itself. It operate generally speaking, at a higher level of expertise than that acquired in industrial training institutes. In any event there is nothing in the Act to show that the Council for Technical Education is exclusively given the power to control matters of technical standard. As such this argument, in our respectful opinion, is at a red herring. It will be remembered that red herrings are with very strong smell and those used to be dragged across fields to put dogs of the scent. The appeal is dismissed. Appeal Dismissed. ———