JAYSHREE J SOLANKI MISS Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Special Civil Application is for issuing a writ of mandamus or any other appropriate writ setting aside the decision of respondent No.2 declaring the petitioner unsuccessful on the ground of not holding the requisite educational qualification on the date of advertisement and for issuing a writ of mandamus directing the authorities to place her name at the appropriate place in the list of successful candidates prepared by the 2nd respondent for appointment to the post of Assistants in the Secretariat of the Government of Gujarat It is further prayed for issue of a writ of mandamus declaring Rule 9 of Gujarat Secretariat Assistant, Deputy Mamlatdar and Sales Tax Inspectors Recruitment (Examination) Rules, 1979 as ultra vires Articles 14 and 16 of the Constitution of India with a direction for deletion of the said rules. Further directions prayed for arc to issue a direction to appoint the petitioner to the post of Assistant in Super Division of Subordinate Secretariat Service in her turn and for restraining respondent No. 1 to operate the select list prepared by respondent No.2 for appointment of persons to the post of Assistants in Super Division of Subordinate Secretariat service under the Government of Gujarat at Gandhinagar.

(2.) Mr. Tripathy, the learned counsel appearing for the petitioner, submitted that there is a conflict between the rules framed under Article 309 on different dates. If that be so, according to the learned counsel, the rule which prescribes that a candidate must hold a degree in Arts, Law, Science, Agriculture or Commerce of a University recognised by the Government of Gujarat or possess an equivalent qualification to be eligible for appointment by direct selection must prevail over the rule which reads that the candidate, while applying for any of the scheduled posts must hold a degree in Arts, Law, Science, Agriculture or Commerce of a University recognised by the Government of Gujarat or possess qualification equivalent thereto, which, according to the learned counsel, is only procedural. In this case the advertisement for the post was made on 1 -3 -1986 and it is clear from the facts that the petitioner graduated herself only in May, 1986.

(3.) The examination for the post was held in October, 1986. Inasmuch as the petitioner was not a graduate on the date of applying for the post, the respondents, following Rule 9 of the Rules framed under Article 309 on 28lh September, 1979, held that the petitioner while applying for the scheduled post did not have the requisite qualification and as such, is not eligible for' selection. The rule framed under Article 309, which is Annexure 'A', states that: 'To be eligible for appointment by direct selection, the candidate must,