GOLDEN KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) The interplay of executive instructions issued by the Central Government, based on recommendations of an academic body and the rules framed by the State Government under Article 309 of the Constitution of India, in regulation of the selection, appointment and terms of employment in a cadre in the service of the Government, is the issue arising in the above cases. The cadre is that of the 'Industrial Training Instructors' within the State of Bihar, regulated, earlier by the Rules framed in 2013, which were repealed and the Rules of 2018 came into force. An advertisement for selection and appointment published in the year 2016, under the Rules of 2013 was not proceeded with.

(2.) Another advertisement for selection of Industrial Trade Instructors was then published in the year 2023, under the Rules of 2018. In the interregnum, there were appointments made on contract and as Short Term/Guest Lecturers. The advertisement of 2023 intended the selection to be conducted as per the Rules of 2018, by (i) a written examination, (ii) the marks obtained in the Graduate/Diploma in Engineering or the ITI trade Certificate Exams, (iii) giving preference to the qualification of certificate of 'Craft Instructors Training Scheme' (CITS) and (iv) weightage to the contractual employees. The petitioners in the writ petitions who are Short Term/ Guest Lecturers challenged the advertisement on grounds; (i) that, the Rules of 2018 not having been enforced at the time of advertisement since the Gazette Notification came later, (ii) that, the CITS qualification is not to be given a mere preference, but is mandatory, (iii) that, equivalence of Regular and RPL CITS not having been reckoned and (iv) that, the action of the State was discriminatory insofar as the Short Term/ Guest Lecturers, who are discharging the very same duties and are similarly situated as the contractual employees, were not granted the weightage for the years they continued in the service of the State in the same manner as the contractual employees were continued.

(3.) Shri Abhinav Shrivastava, learned Counsel appearing for the petitioners, argued with reference to CWJC No. 3385 of 2024. When the early writ petitions were filed, the petitioners had challenged the Rule and the advertisement on the ground that the CITS was not made a mandatory qualification. Only later, the petitioners realized that the Rules of 2018, based on which the advertisement was brought out cannot survive, for the Rules of 2018 having not been notified in the official Gazette; upon which CWJC No. 3385/2024 was filed based on which arguments were addressed. It is pointed out that the earlier Rules of 2013 was invoked and it gave short shrift to the various instructions by the Central Government that CITS should be made a mandatory qualification for Trade Instructors so as to enhance the standards of training imparted in the Industrial Training Institutes; the vocational training hubs in the country and the State. A challenge was made against an advertisement issued, which challenge was upheld and there was a direction issued by a learned Single Judge of this Court to make the qualification of CITS mandatory for the purpose of selection of Trade Instructors. The State slept over the matter, but issued an advertisement in the year 2016 where CITS was made an essential qualification. This was not proceeded with for no reason. In the meanwhile, appointments were made both contractually and as Guest Lecturers; who are discharging the very same duties and continuing similarly in the Industrial Training Institutes (ITIs). In the year 2018, the new rules were framed wherein the mandatory qualification of CITS was made a desirable qualification; which is against the mandate of the Central Government. The interplay of Entries 63, 64, 65 and 66 of List-I of Schedule-VII to the Constitution of India and Entry-25 of the Concurrent List; List-III of ScheduleVII, gives primacy to the executive instructions issued by the Central Government. The State cannot dilute the prescription made by the Central Government on the recommendation of the National Council for Vocational Training (NCVT), the Apex Body tasked with the job of ensuring and enhancing the standard of education in Vocational Training Institutes. It is pointed out that there was no Gazette Notification issued enforcing the Rules of 2018, in which context, the advertisement issued in terms of the Rules of 2018 cannot be sustained. The prescription of a written examination is as per the Rules of 2018, which cannot be enforced in the selection and appointment to the cadre, for reason of it being not properly notified.