( 1 ) THE petitioner is serving as Range Forest Officer Exten- sion Range Tilakwada in Baroda District since February 1981. He holds B. Sc. Degree with Chemistry and a Diploma in Military Science in First Class. Prior to his joining service the petitioner had served in Naval N. C. C. and also attend- ed All India Naval Camp Vishakhapatnam in year 1974. The date of birth of the petitioner is 13-11-1953.

( 2 ) IN pursuance to an advertisement issued by the Gujarat Public Service Commission (hereinafter referred to as the Commission) on 24-4-1983 for filling in 155 posts in the Gujarat Administrative Service Class I and Gujarat Civil Service Class I and Class II by combined competitive examination the petitioner applied and appeared in the written competitive examination and he was declared successful in the said examination. However respondent No. 2 by his letter dated 4-1-1985 informed the petitioner that since the petitioner did not fall within the age limit as prescribed and shown in the advertisement he cannot he called for the viva voce and personality test Being aggrieved by this letter and also by letter dated 4-3-1985 the petitioner has filed this petition and pray- ed for quashing and setting aside the said letters under which the petitioner was not called for viva voce and personality test and for the issuance of direction against the Government to relax the age limit.

( 3 ) MR. M. G. Doshit for the respondents resisted the claim of the petitioner 8 stated that according to the practice of the Commission all the persons who apply are called for written examination. He has further drawn my atten- tion to the prescribed admission form wherein some conditions are printed. Condition No. 7 thereof which is material for our purposes provides that in accordance with the rules for examination if the applicant is possessing neces-- sary qualification viz. educational age and other requirements then only he will be called for viva voce test. Mr. Doshit further submits that thousands of applications are received and it is not possible for the Commission to scrutinise each and every application by calling for documents. They are allowing the applicants to appear at the examination without scrutinising their initial eligi-- bility. It is not disputed that the petitioner is found successful at the written examination but when his application was scrutinized it was found by the Commission that the petitioner was not eligible on account of his over age and therefore. the Commission refused to call the petitioner for viva voce test.

( 4 ) MR. I. S. Supehia for the petitioner relies upon rule 16 of the Gujarat Civil Services Recruitment Examination) Rules 1980 material part of which reads :"16 The examination shall be in three Parts as Shown in schedule II Part I and II shall be written examination and Part III shall be viva voce and personalities Test. (b) The Commission shall fix the qualifying aggregate marks to be obtained by a candidate in Part I of the Examination in Schedule II and answer books of Part II of only such candidates who qualify in Part I of the Examination shall be got as- sessed by the commission. The Commission shall fix the qualifying standard after adding the marks obtained by the candidates in Part I and Pare II of the written examination and shall call only those candidates who fulfil qualifying standard of viva voce and Personality Test"there is a proviso to this rule with regard to Scheduled Caste and Scheduled Tribe and Socially and Educationally Backward Classes with Which we are not concerned.

( 5 ) IN my opinion this rule does not help Mr. Supehia because there is no dispute that the petitioner has cleared that written test and is entitled to be called for viva voce test provided he was initially eligible to apply for appearing at the examination. However it is pertinent to note that the aforesaid statutory rules made under Article 309 of the Constitution of India also provide for the age. R