( 1 ) THE application is for amendment of the petition which is directed against the Government Resolution (Annexure C) dated December 11 1586 By issuing this Resolution the Government has directed to implement point No. 1 of the agreement dated 4/06/1986 arrived at between the representatives of respondent No. 3-Union and the State Government. By this resolution it is ordered that in the direct recruitment candidates belonging to Scheduled Castes/scheduled Tribes for whom reservation is made and who come on merit will be counted against unreserved vacancies. Reservation percentage will be applied in addition to those who come on merit. The petition is filed on 17/12/1987 On Dece 21/12/1987 this Court (Coram: J. P. Desai J.) has granted rule and has also granted ad interim relief in terms of para 12 (B) and 12 (C) of the petition. Thus by ad interim relief implementation of the impugned resolution at Annexure C has been stayed and the respondent-State of Gujarat is restrained from appointing any candidate who has applied in reserve category in excess of the respective quota (i. e. 7% and 14% ). The respondent-State has also been restrained from allowing any candidate who has applied in reserve category to be appointed on merit in excess of the quota for reserve category of candidates i. e. 7% and 14%.

( 2 ) THE resolution Annexure C is challenged mainly on the ground that it is contrary to the agreement arrived at by and between petitioner No. 1-Union and the Government and it is also contrary to the terms of settlement dated 18/08/1965 and the previous resolution which are produced at Annexures A and B to the petition respectively. It is also contended in the petition that once a candidate belonging to reserve category and particularly that of SC/st avails of the benefit of reservation he cannot be permitted to change the label. He must then assume the character of un-reserved category of candidates. It is contended that such candidates cannot be permitted to have the benefits of reservation during the entire career of his service.

( 3 ) BY way of amendment application the petitioners seek to challenge the vires of Rule 2 (a) read with Rule 4 of the Assistant (in the Upper Division of the Subordinate Secretariate Services) Recruitment Rules 1988 The Rules have been published by notification dated 16/06/1983 The amendment is sought mainly on the ground that the Rules have been annexed as one of the annexures in the affidavitin-reply filed by the Government and in the affidavit-in-reply reliance is placed by the Government on these Recruitment Rules. Therefore it has become necessary to challenge the same is contend that the prayer for amendment is in continuation of the answer given by the Government.

( 4 ) THE Government has served the affidavit-in-reply upon the petitioners Counsel on 12/07/1988 the application for amendment is moved on 28/10/1988 It is the contention of the petitioners that only after the service of the affidavit-in-reply upon the Counsel for the petitioners that the petitioners came to know about the Rules in question and hence it has become necessary to amend the petition.

( 5 ) BARE rending of the impugned resolution at Annexure C would show that the resolution is not passed by the Government in exercise of powers conferred upon it of derived under any of the provisions of the Rules in question. In fact the resolution is dated 11/12/1986 while the Rules has been published by notification dated 16/06/1988 i. e. even after the filing of the petition which has been filed in December 1987 The amendment pertains to the Rules relating to Assistants in the Upper Division of the Subordinate Secretariate Service Class-III while the impugned resolution and the petition pertain to all the cadres of government service. Thus it cannot be said tads the amendment of the petition is necessary for deciding the question to whether the resolution Annexures C is legal and valid or not. The legality and valid