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2019 DIGILAW 1435 (RAJ)

Manoj Kumar Lavavanshee v. State of Rajasthan

2019-05-10

MOHAMMAD RAFIQ, NARENDRA SINGH DHADDHA

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JUDGMENT : 1. This writ petition has been filed by the petitioners challenging the advertisement dated 25.4.2018 (Annexure-6), whereby 402 posts of Junior Instructors in different Industrial Training Institute of the State were notified for recruitment by the Rajasthan Subordinate and Ministerial Service Selection Board, Jaipur. 2. Grievance raised by the petitioners is that they have been working on the post of Instructor for last 7-11 years on contractual basis through placement agency. They have produced on record certain experience certificates. The action of the respondents in not giving any weightage to their past service in the ongoing recruitment is wholly illegal. The advertisement aforesaid therefore be quashed and respondents be restrained from making recruitment. It is also prayed that impugned clause in the advertisement dated 25.4.2018 providing weightage to the CITS qualification may be declared contrary to the Rules and accordingly be quashed and set aside. Prayer is also made to direct the respondent-State to suitably amend the Rajasthan Technical Training Subordinate Service Rules, 1975 by which provision relating to the benefit of experience to the candidates, who are already serving and possessing the experience of the post of Junior Instructor may be incorporated. 3. In the course of arguments, when the learned counsel for the petitioners was confronted with the judgment of division bench of this Court in Rajveer Singh & Ors. vs. UOI & Ors., D.B. Civil Writ Petition No. 12145/2016 dated 17.01.2017, he submitted that State Government challenged the aforesaid judgment before the Supreme Court by filing the Special Leave to Petition, but the same was dismissed by the Supreme Court vide order dated 24.8.2018. However, the question of law involved in the matter was kept open for consideration in an appropriate case. Therefore, even if the respondents have issued fresh advertisement giving weightage of CITS qualification pursuant to judgment of this Court, that question can still be examined by this Court. 4. Learned counsel for petitioners submitted that the division bench of this Court in Rajveer Singh, supra has relied on the judgment of the Allahabad High Court and the Patna High Court. The appeal was filed against the judgment of the Allahabad High Court by certain persons, but the Supreme Court in Civil Appeal No. 2799/2011, Ashok Singh & Ors. vs. State of U.P. & Ors. The appeal was filed against the judgment of the Allahabad High Court by certain persons, but the Supreme Court in Civil Appeal No. 2799/2011, Ashok Singh & Ors. vs. State of U.P. & Ors. vide order dated 11.9.2018 disposed of the same on the premise that the appellants therein were neither party to the writ petitions, nor in the writ appeals, against the judgment of which, the appeal was preferred before the Supreme Court. 5. Alternatively, learned counsel for petitioners submitted that the State Government may be directed to provide weightage of experience to the petitioners, who have been working with them on the post of Instructors for last number of years ranging from 7 to 11 years. Attention of the Court is also invited to the guidelines issued by the Central Government and National Council for Vocational Training dated 7.1.2016 according to which 60% weightage is fixed for marks in relevant technical qualifications i.e. degree/diploma or CTS, 30% weightage is fixed for marks in CITS qualification to ensure that CITS passed candidates are engaged as instructors and maximum 10% weightage is fixed for interview. Since no weightage has been given for interview, the State Government should be required to adhere to the aforesaid Guidelines. 6. We have heard the learned counsel for the petitioners and perused the material on record. 7. The division bench of this Court in Rajveer Singh, supra held as under: “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 prescribed in concurrent list and Specific legislation is not required for exercise of executive power pertaining to a particular subject. 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. 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. The 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. The qualifications of teachers of Technical Education are essentially covered within coordination and determination of standards in Institutions and is as such, covered by entry 66 of List I (union list), and not by entry 25 of List III (concurrent list) and the “State Government” explicitly knowing the position, carried out directions of the Central Government by accepting recommendations of NCVT. Article 51(J) of Part IV A exhorts every citizen to strive towards excellence in all spheres of, individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement and to beholden this object fructified quality of technical education, if prescribed with an exclusive qualification as of CITS, as in matter under hand, being conversely prescribing to be diminished, ignoring the requirement of qualification as enumerated and accorded to by the Central Government, is obviously unacceptable and unjustifiable.” 8. Having recorded the aforesaid findings, this Court directed the State Government to issue fresh advertisement in consonance with the Central Government and the NCVT Guidelines. It was also made clear that the aspirants, who were within the age limit on the last date of impugned advertisement and who attained eligibility in the meanwhile, shall also be competent and eligible to apply in the prospective recruitment advertisement. It was also made clear that the aspirants, who were within the age limit on the last date of impugned advertisement and who attained eligibility in the meanwhile, shall also be competent and eligible to apply in the prospective recruitment advertisement. 9. In view of aforesaid view taken by the division bench, we hardly see any scope for issuing a contrary direction now to set aside the relevant clause of the advertisement giving weightage to CITS qualification. As far as weightage to be given to the experience acquired by the petitioners is concerned, it would be a matter of policy for the State Government. The kind of prayer that has been made that the respondents be directed to suitably amend the Rajasthan Technical Training Subordinate Service Rules, 1975 so as to provide the weightage to whatever period of experience they acquired, cannot be granted as no positive direction for amending the Rules in a particular manner can be granted by this Court. Even then, it is for the petitioners to approach the respondents and it is for the respondents to consider their grievance if they are persuaded to do so. As regards the guidelines issued by the Government of India for giving 10% weightage for the interview, the petitioners can approach the respondents and invite their attention towards this aspect, which the respondents shall consider in accordance with law. 10. The petition is dismissed with the aforesaid observations.