JUDGMENT Sunil Ambwani, J.
1. In this bunch of writ petitions, the petitioners have challenged the 3rd Amendment to the U.P. Industrial Training Institutes (Instructors) Service Rules, 1991 (in short the Rules of 1991) notified on 09.12.2003, deleting the higher teaching qualifications, introduced in the rules by the 2nd Amendment vide notification dated 08.08.2003, for the post of Vocational Instructors (Trade, Theory, Workshop, Calculation, Science, Engineering and Drawing) and Vocational Instructor (Practical) in the Industrial Training Institutes (in short ITI's) in U.P., and has held up selections on 738 vacancies out of a total 2942 sanctioned posts (both Permanent & Temporary) in the cadre.
2. Prior to the year 1991 the service conditions of the Vocational Instructors were regulated by the Government Orders and Administrative Instructions. The Rules of 1991 replaced these orders and provided for amongst other, the qualifications and method of recruitment. Rule 5 of the Rules of 1991 provides for recruitment through U.P. Public Service Commission on the basis of competitive examination and interview. The rules were amended in 1994 by 1st Amendment to these rules providing for source of recruitment through the Subordinate Services Selection Commission, under the Rules known as U.P. Procedure for Direct Recruitment for Group 'C' Posts (Outside the Purview of U.P. Public Service Commission) Rules, 1998, read with U.P. Procedure for Direct Recruitment to Group 'C' Posts of Technical Nature Or For Which Specific Qualifications are Prescribed (Outside the Purview of the U.P. Public Service Commission), Rules, 2001.
3. For various reasons, the selections on the vacancies could not be held. In order to meet the crisis precipitated on account of large number of vacancies, introduced a.'Prashikshan Mitra Yojana' (the scheme) vide circular dated 31.8.2000, initially for the financial year 2000-01 for appointment of 'Guest Speakers' on honorarium basis on contract. On the expiry of their fixed term, the 'Guest Speakers' appointed on contract basis under the scheme filed writ petitions to continue them and to regularise their services. The writ petitions were clubbed and heard with leading writ petition No. 6565 (SS) of 2001, Kalyan Rai v. State of U.P. All the writ petitions were dismissed by Hon'ble Pradeep Kant, J. on 05.3.2003 with the findings that the petitioners had withheld correct facts from the Court and without referring to the Amendment to the Rules of 1991, in 1994, obtained interim orders staying regular selections. A direction was issued to the Department of Industries, Government of U.P., the parent department, to hold selections within a period of four months by making advertisement, if the selections were not earlier advertised. It is reported that the special appeal was filed against the judgment and was dismissed.
4. The National Council of Vocational Training (NCVT) was established under the administrative order of the Central Government, with Cabinet approval. It made recommendations to the Central Government to enhance the qualifications required for the post of Vocational Instructors in Industrial Training Institutes. The NCVT proposed that for Vocational Instructors teaching, Theory including Workshop, Calculation, Science and Engineering Drawing, should possess apart from the minimum academic qualifications of 10+2 system of education, and three years diploma, in appropriate branch of engineering from recognized institutions and in addition the teaching qualification namely Certificate under Draft Instructor Training Scheme (one year course) or should have successfully completed minimum two modules, teaching methodology module (three months duration) (six months duration) under Draft Instructor Training Programme on module pattern, or should have passed one year course from Technical Teachers Training Institute (TTTI) under Ministry of Human Resource Development.
5. The NCVT further proposed that for Vocational Instructor (Practical) apart from the academic qualification of 10+2 system of education the candidate should possess technical qualification of NTC/CAC for Trade; (1) a certificate under regular draft instructor training scheme of one year duration; or (2) the principles of teaching module in trade not having facilities for instructors training, necessary practical be provided after the appointment within three years; and (3) a minimum of two years experience in an industry or a training/ teaching institution either before or after obtaining instructor training.
6. I have heard Shri A.N. Tripathi for the petitioners in writ petition No. 1822 of 2004, Shri Anurag Pathak for the petitioners in writ petition Nos. 12149 of 2006, 14301 of 2006, 14594 of 2006, 14618 of 2006 and 15128 of 2006. Shri Ashok Khare, Senior Advocate assisted by Shri R.B. Tripathi in writ petition No. 13724 of 2006, Shri Rajeev Kumar Srivastava in writ petition No. 14617 of 2006. Shri J.K. Tiwari, learned Standing Counsel appears for the State Government,
7. The recommendations of NCVT, were accepted by the Central Government and that by letter dated 24.7.1996 of Director General/ Joint Secretary (DGE & I), Ministry of Labour, Government of India, the Central Government, issued directions to all Secretaries of the Government/ UT Administration (dealing with Draftsman Training Scheme), for necessary amendments in recruitment rules by 31.7.1997. The institutions not recruiting instructors as per revised qualifications after 01.8.1997 were liable to be de-affiliated. The Central Government extended the period for amending the rules. The last such extension was given upto August, 2001.
8. The Government of Uttar Pradesh accepted the recommendations and amended the Rules of 1991 by 2nd Amendment notified on 08.8.2003 and advertised the vacancies on 20.8.2003 inviting applications from the candidates possessing the higher teachers training qualifications provided in the amended rules. The petitioners in writ petition No. 1822 of 2004 applied for these vacancies in pursuance of the advertisement. The State Government by a notice in the newspapers on 29.9,2003 by the Director, Vocational Training, cancelled the advertisement.
9. The State Government, then, amended the Rules of 1991 again by 3rd Amendment to the Rules of 1991 notified on 09.12.2003, deleting enhanced teaching qualifications, directed by the Central Government on recommendations of the National Council of Vocational Training. A fresh advertisement was issued on 13.12.2003 inviting applications for 742 vacancies of Instructors existing in ITI's in 34 Trades.
10. In writ petition No. 1822 of 2006 the petitioners have challenged the 3rd Amendment to the Rules of 1991 dated 09.12.2003 and the advertisement dated 13.12.2003, and have further prayed for a direction to the respondents to follow Rule 8 of the 2nd Amendment to the Rules of 1991 dated 08.8.2003 and the advertisement dated 20.8.2003 and to make selections only in terms thereof. By an interim order dated 17.3.2004 the effect and operation of the notification dated 09.12.2003 amending the rules was stayed and the selections were directed to proceed in accordance with rules as amended on 08.8,2003 and the advertisement dated 20.8.2003.
11. In writ petitions represented by Shri Anurag Pathak the petitioners have acquired the higher teaching qualifications/ teaching qualifications after the advertisement dated 20,8.2003. They have prayed for a direction to consider the petitioners' candidature for the post of instructor in Government ITI if selections are held in pursuance of advertisement dated 20.8.2003.
12. In writ petition No. 13724 of 2006 the eleven petitioners have prayed for directions to the respondents to allow them to appear in the selection process/ interviews pursuant to advertisement dated 20.8.2003.
13. The petitioners filed a contempt petition alleging non-compliance of interim order dated 17.3.2004 in which directions were issued to comply with the interim orders passed by this Court and to hold selections in pursuance of advertisement dated 20.8.2003. In order to comply with the orders the fresh advertisement for selections dated 13.12.2003 was cancelled. The special appeal against the order is pending.
14. The Lucknow Bench of the Court in a writ petition stayed the selection in pursuance of the Notification dated 20.8.2003, against which a Special Appeal No. 350 of 2006 was filed in which directions were issued that interviews may go on but no one will be allowed to join in the department till the next date of listing.
15. In view of these orders as also the fact that the pending litigation has put the entire selections into doubt, the orders were modified on 10.7.2006 and that the petitioners and other persons, who had applied in pursuance of advertisement whether they held higher/ teaching qualifications provided in the notification dated 08.08.2003, or not, were permitted to appear in the interviews provisionally. The department, however, was restrained from issuing any appointment orders until further orders of the Court. The Court is informed that selections have been again postponed.
16. Shri A.N. Tripathi, learned Counsel for the petitioners having higher, teaching qualifications, submits, that the subject of technical education falls under Entry 25 of the List III (concurrent list) of the Constitution read with Entry 65 and 66 of List I (Union List) of the seventh schedule of Constitution of India, and that the executive instructions of the Central Government in the field of legislative competence issued under Article 73 are binding on the State Government. The Central Government accepted the recommendations of NCVT, The enhancement of teaching qualifications falls within the purview of coordination and laying down standards for technical education and thus these directions are mandatory and are binding upon the Governor of the State while exercising powers under Article 309 for laying down qualifications for recruitment of the Instructor of Vocational Training. He has relied upon Ajay Kumar Singh v. State of Bihar , Dr. Preeti Srivastava v. State of M.P. AIR 1999 2894, State of Madhva Pradesh v. Gopal D. Tripathi (2003) 6 JT (SC) 204, Union of India v. Shah Goerdhan Alkabra Teachers College , St. Johns Teachers Training Institute v. Regional Director, National Council for Teacher Education and Anr. , Rajesh Kumar Gupta v. State of U.P. and Harish Verma and Ors. v. Ajay Srivastava and Anr. to support his submissions.
17. Shri Ashok Khare, Senior Advocate appearing for candidates with qualifications prescribed before the 2nd Amendment to the Rules of 1991, on the other hand, defending the 3rd Amendment to the Rules of 1991, submits that Governor of the State has exclusive power under Article 309 to lay down service condition of the State Government. These rules are legislative in character. The State Government is not bound to carry out the executive instructions of the Central Government given on the recommendation of a non-statutory body. The instructions in any case have only recommendatory value and can be treated only as guidelines. They are not of mandatory character and do not override the rules. The State Government could have amended the Rules of 1991, and is not required to justify the exercise of legislative power before the Court. He submits that the statutory Rules cannot be challenged on the ground of arbitrariness as State Government has the powers, to amend them. Shri Khare submits that all the cases cited by Shri A.N. Tripathi deal with rules regulations, or recommendations made by statutory bodies established under the parliamentary enactments namely Medical Council of India Act, 1956 and National Council of Teachers Education Act. The recommendations of the National Council of Vocational Training, which a non-statutory body are only recommendatory in nature. The State Government has exclusive powers reserved under Article 309 to frame service conditions of its employees.
18. Learned Standing Counsel requested for time to place the record the reasons on account of which 3rd Amendment of the rules was brought on record. The State Government has filed counter affidavit of Shri Praveen Kumar Dhariwal, Principal, Government Industrial Training Institute, Naini, Allahabad and thereafter, a supplementary counter affidavit of Shri M.R. Usmani, Principal. Government Industrial Training Institute (Women) Katra, Allahabad. In these counter affidavits the State Government has taken a stand that the recommendations of the NCVT accepted by the Central Government, required the amendment in the Rules of 1991. The time period allowed for carrying out the amendment was extended from time to time. The State Government decided to amend the rules and the Directorate of Technical Education, Government of U.P. made recommendations on which the State Government amended the rules by the 2nd Amendment providing for higher teaching qualifications. The State Government, however, later realised that whereas 742 posts were advertised in 34 Trades vide publication dated 13.12.2003, there is only one ATI (Higher Training Institute) in Kanpur run by the Central Government in which one year certificate course is provided only in seven Trades. In the remaining Trades, facilities of ATI certificate in Training is not available in Uttar Pradesh. The State Government has exclusive powers under Article 309, in the absence of any legislation to frame service conditions of the government servant and that Hon'ble Governor is not bound by the directions issued by the Central Government. The State Government decided to amend the Rules and to provide for ATI certificate as preferential qualification.
19. It is further stated in the supplementary counter affidavit filed on behalf of the State that vide earlier advertisement dated 08.08.2003 only 863 applications were received against 738 advertised vacancies in 34 Trades. In case the Language Instructors are excluded, only 751 applications were received against 716 posts. In some Trades no applications were received. In the circumstances it was not possible to hold selections and thus the vacancies were re-advertised on 13.12.2003 in accordance with the amended rules in which ATI certificate has been provided only as preferential qualification.
20. The supplementary affidavit filed on behalf of the State Government further states that the service rules provide for selections under U.P. (Direct Recruitment on Group 'C' Posts Outside the Purview of U.P. Public Service Commission) Rules, 2002 in which under Rule 5(3) there is provisions for preparing a merit list and interviews, and a maximum number of 10 candidates to be called for interview against a vacancy. It is stated that out of the petitioners, Shri Upendra Narain Singh, the applicant was short listed for interviews. He has appeared in the interviews held on 28.1.2004. The other two candidates held ATI certificate but the selections were stayed in pursuance of the orders passed by Lucknow Bench in writ petition No. 1244 of 2004. The State Government taking into fact canceled the selection and thereafter notified the 3rd Amendment to the Rules of 1991 on 09.12.2003 and initiated the selection vide advertisement dated 13.12.2003.
21. The short point for determination in these writ petitions is whether the directions issued by the Central Government on the recommendations of NCVT are mandatory and are binding upon the State Government, which has the powers under proviso to Article 309 to frame service rules subject to the provisions of the Constitution and acts of appropriate legislature and further having acted upon these recommendation whether the State Government could have again amended the Rules of 1991 to lower these qualifications arbitrarily without a valid and justiciable reason. In all the judgments cited by Shri A.N. Tripathi, learned Counsel for the petitioners, the Supreme Court was dealing with recommendations made by statutory bodies namely Medical Council of India, established under Medical Council of India Act, 1956 and the National Council of Teachers Education Act, established under the Act of 1993. In Ajay Kumar Singh (Supra) the Supreme Court considered the regulation of admission to postgraduate medical courses by Medical Council of India providing for reservation for SC/ ST etc. and found that the Medical Council Act does not empower the council to regulate or prescribe qualifications for admission to postgraduate courses. However, by virtue of Entry 66 of List I, which overrides Entry 25 of List III, the States are denuded of all and every power to determine and coordinate the standards of higher education, which must necessarily take in, regulating the admission to these courses. The regulations do not provide for any reservation and the regulations being a species of delegated legislation bind all the institutions imparting medical education.
22. In Dr. Preeti Srivastava (Supra) it was held that universities must necessarily be guided by the standards under Section 70(1) of the Medical Council of India, if their degrees and diplomas are to be recognized, It was found that Medical Council regulations have statutory force and are mandatory. The Act contemplates Medical Council of India as an expert body to control the minimum standards of education. This view was reiterated in Harish Verma's case (Supra) in 2003. In Union of India v. Shah Goverdhan L. Kabra Teachers College (Supra) the Supreme Court upheld the legislative competence of the Central Government to enact National Council for Teachers Education Act, 1993 and held that the opinion of the National Council, which is an expert body should not be likely tinkered with. The High Court's order setting aside de-recognition was quashed. In St. Johns Teachers Training Institute (Supra) the same view was followed with regard to recognition for the courses by the National Council for Teachers Education and the regulations were held an ultra vires the Act.
23. The National Council of Vocational Training has not been established under any statute. Entry 25 in List III (concurrent list) of Schedule 7, as amended by 42nd Amendment Act, 1976 deals with education including technical education, medical education in universities, subject to provision of Entry 63, 64, 65 and 66 of List-I; vocational and technical training of labour. Entry 65 and 66 of List I of Schedule VII refers to union agencies and institutions for professional, vocational and teachers training and coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. Article 73, empowers the Central Government to exercise executive powers in the matters with respect to which the Parliament has powers to make laws. Entry 65 and 66 of List I reads as follows:
65. Union agencies and institutions for-
(a) professional, vocational or technical training, including the training of police officers; or
(b) the promotion of special studies or research; or
(c) scientific or technical assistance in the investigation or detection of crime.
66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.
24. Shri Ashok Khare, learned Senior Advocate did not dispute that coordination and determination of standards in technical institutions in Entry 66 in List I of Schedule VII will include laying down the standards for teaching and teaching qualifications. The power of the Central Government as such under Article 246 to legislate and to issue executive orders on the subject is not in doubt. The point, however, is whether in the absence of legislation, the administrative order made under Article 73 of the Constitution of India on the subject would still be binding on the State Government. 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 enumerated in concurrent list. Specific legislation is not required for exercise of executive power relating to a particular subject and that in many spheres the executive functions by exercising executive power. 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. (Pandu Ranga Rao v. A.P. Public Service Commission .
25. In the present case there is no conflict between power exercised by the Governor, who acts on the advise of the State Government in making service rules or regulations under the proviso to Article 309 of the Constitution and the executive order issued by the Central Government. The coordination and 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.
26. The interrelation between Entry 25 of List III and Entry 66 of List I was subject matter of consideration in Union of India v. Shah Goverdhan L. Kabra Teachers College. The Supreme Court held as under:
Bearing in mind the aforesaid principles of rule of construction, if the provisions of the impugned statute namely, the National Council of Teacher Education Act, 1993 are examined and more particularly Section 17(4) thereof which we have already extracted, the conclusion is irresistible that the statute is one squarely dealing with coordination and determination of standards in institutions for higher education within the meaning of Entry 66 of List I of the Seventh Schedule. Both Entries 65 and 66 of List I empower the Central Legislature to secure the standards of research and the standards of higher education. The object being that the same standards are not lowered at the hands of the particular State or States to the detriment of the national progress and the power of the State legislature must be so exercised as not to directly encroach upon power of Union under Entry 66. The power to co-ordinate does not mean merely the power to evaluate but it means to harmonise or secure relationship for concerted action. A legislation made for the purpose of co-ordination of standards of higher education is essentially a legislation by the Central legislature in exercise of its competence under Entry 66 of List 1 of the Seventh Schedule and Sub-section (4) of Section 17 merely provides the consequences if an institutions offers a course or training in teacher education in contravention of the Act though the ultimate consequences under Sub-section (4) of Section 17 may be that unqualified teacher will not be entitled to get an employment under the State or Central Government or in a university or in a college. But by no stretch of imagination the said provision can be construed to mean a law dealing with employment as has been held by the High Court in the impugned Judgment.
In our considered opinion, the High Court committed gross error in construing the provisions of Sub-section (4) of Section 17 of the Act to men that it is a legislation dealing with recruitment and conditions of services of persons in the State service within the meaning of Proviso to Article 309 of the Constitution. The High Court committed the aforesaid error by examining the provisions of Sub-section (4) on its plain terms without trying to examine the true character of the enactment which has to be done by examining the enactment as a whole, its object and scope and effect of the provisions. Even the High Court does not appear to have applied the doctrine of "pith and substance" and, thus, committed the error in interpreting the provisions of Sub-section (4) of Section 17 to mean to be a provision dealing with conditions of service of an employee under the State Government.
27. In Prof. Yashpal v. State of Chhattisgarh the Supreme Court declared the provisions of Section 5 and 6 of Chhattisgarh Niji Kshetra Viswa Vidyalaya (Sthapana aur Viniyaman) Adhiniyam, 2002, providing for establishment of private universities and their recognition by the State Government, as ultra vires. The Supreme Court held that UGC Act made by Parliament under Entry 66 of List I, to make provision for coordination and determination of standards in institutions for higher education like universities, covered the field. It further held that proper standard of teaching cannot be achieved unless there are adequate infrastructural facilities in the campus like class rooms, libraries, laboratories, well equipped teaching staff of requisite caliber and proper student teacher ratio. For this purpose the Central Government has made number of regulations under Section 25 of UGC Act and the commission has also made regulations in exercise of power under Section 26 of UGC Act. Any State legislation, which stultifies or sets at naught an enactment validly made by Parliament would be wholly ultra vires. No doubt in Prof. Yashpal, there was a parliamentary legislation namely UGC Act covering the field. In the present case there is a conflict between the subordinate legislation namely statutory rules under Article 309, and the executive directions issued by the Central Government on the recommendations of NCVT under Article 73 of the Constitution of India.
28. Shri J.K. Tiwari, learned Standing Counsel has relied upon Paluru Ram Krishnaiah v. Union of India ; Union of India v. R. Narasimhan in support of his submission that, if there is conflict between the executive instructions and the rules made under the proviso to Article 309 of the Constitution of India, the rules made under the proviso to Article 309 of the Constitution of India would prevail, and if there is conflict between the rules made under the proviso to Article 309 of the Constitution of India, the law made by appropriate legislature, prevail.
29. The service conditions of the public servant in the State in the absence of legislation can be provided by rules made under the proviso to Article 309 of the Constitution. These rules are statutory in nature. Where, however, the qualifications of teachers of technical institutions are to be specified, Entry 66 of List I, clearly takes over Entry 25 of List III and the Central Government alone, where it chooses to prescribe such qualifications, has the power to prescribe the standards In such cases, the power of the State Government to include the qualifications under the Rules made under Article 309 will yield to the directions of the Central Government, given under Article 73 of the Constitution. In other words, where the subject exclusively falls within the entires in List-I, the directions issued under Article 73 will override the statutory rules made under Article 309 of the Constitution.
30. The qualifications of teachers 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). The State Government clearly understood the position and carried out the directions of the Central Government, accepting recommendations of NCVT. The State Government acted upon the letters of Director General/ Joint Secretary, Ministry of Labour, Government of India dated 24.7.1996 and amended the rules of 1991 by Second Amendment of the Rules on 08.08.2003. It appears that thereafter, the regional sentiments took over the constitutional scheme and that reasons were fished out by the department, to take an excuse that very few candidates possessing the higher teaching qualifications for which there was only one institution at Kanpur in seven trades were available and then a decision was taken to cancel the advertisement and to amend the rules making the higher teaching qualifications as preferential qualifications. The make belief reasons are belied from the record which testifies that the department had received sufficient number of applications, namely 751 applications by the candidates having higher/ teaching qualifications, as against 716 posts, after excluding the posts of Language Instructors. In the supplementary counter affidavit of Shri M.R. Usmani it is clearly admitted that number of applications were more than the number of vacancies. The allegation that in respect of some trades no application was received, however, is not supported by full and complete facts in as much as the trades against which the applications were not received have not been given in the affidavit.
31. Shri A.M. Tripathi states that there are eight institutions in the country, offering higher teachers training and awarding ATI certificate, in technical education and that sufficient number of candidates were available for the vacancies for selections and appointments. He is correct in submitting that the State Government, on considerations other than those given in the supplementary counter affidavit cancelled the selection and amended the rules. The State Government having clearly understood the legal position, for raising standards of the institutions and to attune the teaching qualifications in the State with the other states, amended the Rules of 1991 by the 2nd Amendment to the Rules on 08.8.2003. It, however, thereafter, without realising the legal implications and the constitutional obligations, buckled under the pressure exercised by Guest Instructors, and to protect the interest of local candidates, who do not possess higher teaching qualifications, amended the rules by the 3rd Amendment to the Rules of 1991, making such qualifications preferential.
32. I find substance in the submissions of Shri A.N. Tripathi. The State Government having acted upon the directions of the Central Government and amended the rules, was not competent to again amend the rules lowering the higher teaching qualifications and making them preferential. The State Government rightly understood its legal obligations and the constitutional scheme. Having accepted the position, the State Government acted grossly illegally and arbitrarily in amending the rules by the 3rd Amendment, in violation of Article 14 and 16 of the Constitution, The Court takes judicial notice of the fact in the State of U.P. the teaching standards in all the educational institutions are falling gradually. In order to improve these standards, the national level teaching institutions have been established offering higher teaching qualifications and the Central Government is insisting the State Government to appoint only such teachers, who have higher and specific teaching qualifications. The candidates possessing such higher teaching qualifications have legitimate expectation to be considered for appointment on teaching posts. In case the State Government allows the persons having lower teaching qualifications to hold the posts, the rights of candidates having higher teaching qualifications will be violated. It will give rise to invidious discrimination and violate their constitutional right of equality before law.
33. The amendment in Rule 8 by the U.P. Industrial Training Institute (Instructor) (3rd Amendment) Service Rules, 2003, is thus held to be violative to the Constitutional Scheme of distribution of legislative powers, as also Article 14 and 16 of the Constitution of India. The writ petitions challenging the advertisement dated 13.12.2003 are thus liable to be allowed and the advertisement dated 13.12.2003 is consequently quashed.
34. The State Government is directed, in addition, and in modification to the direction issued by Lucknow Bench of this Court in its judgment and order dated 05.3.2003, in writ petition No. 6565 (SS) of 2001, Kalyan Rai v. State of U.P. and Ors. to advertise, hold and complete the selection process on all the vacancies within a period of four months from the date of delivery of this judgment. Now since directions have to be issued for fresh advertisement for these vacancies and all those vacancies, which may have arisen subsequently, the rights of those candidates, who have obtained these higher/ teaching qualifications as recommended by the Central Government and provided in the rules by the 2nd Amendment to the Rules of 1991, on 08.08.2003 cannot be ignored. It is as such further directed that all those candidates, who have obtained qualifications upto the date of fresh advertisement shall also be considered for selections and that all those candidates, who were within the age limit on the last date of receiving application in pursuance of advertisement dated 20.8.2003, shall also be eligible to apply for selections in pursuance of the fresh advertisement.
35. All the writ petitions except writ petition No. 13724 of 2006 are allowed. The writ petition No. 13724 of 2006 is dismissed. The successful petitioners are entitled for cost from the State.