( 1 ) THIS petition questions legality and validity of Rule 15 of the Gujarat Police Sub-Inspector (Unarmed Male Branch) (Recruitment Examination) Rules 1980 (the Rules for short) made by the Governor of Gujarat in exercise of powers conferred by clause (b) of Section 5 of the Bombay Police Act 1951 Pursuant to an advertisement issued by the Gujarat Public Service Commission (Commission for short) inviting applications for appointment to the post of Police Sub-Inspectors 16509 applications were received by the Commission. The advertisement was issued for filling up 85 vacancies in the cadre of Police Sub-Inspector. All the applicants had to appear at the written test which was to be held on 22/09/1991 At the written test about 15340 candidates appeared.

( 2 ) THE petitioner was also one of the candidates who appeared at the competitive examination held by the Commission. In response to the application of the petitioner the Commission had by a letter dated 1/09/1991 asked the petitioner to appear in the written examination. As per the syllabus prescribed in the Appendix A to the Rules there were three papers namely (1) Gujarati language (2) General Knowledge and Psychological test (objective type) and (3) English and the candidates appearing at the written examination were supposed to get through all the three papers. In all 300 marks were allocated to written test. The petitioner secured 198 marks out of 300. It may be mentioned that the minimum qualifying marks which were prescribed by the Commission were 170 marks out of 300 so far as written test was concerned. As the petitioner was successful in the written examination the petitioner was called for physical endurance test vide a letter dated 22/10/1992 It is an admitted position that physical endurance test was of 100 marks. The petitioner also got through physical endurance test conducted by the Commission by securing 69. 8 marks out of 100. The petitioner therefore was called for viva-voce test with all original certificates. From Appendix A to the Rules it is apparent that viva-voce test carried 50 marks. The Commission had prescribed 18 marks as minimum qualifying marks for the purpose of passing the viva-voce test. The petitioner secured 16 marks out of 50 marks in viva-voce test. As the petitioner did not obtain minimum qualifying marks prescribed for viva-voce test his name was not included in the select list prepared by the Commission.

( 3 ) THE petitioner has contended that the action of the respondent in excluding the name of the petitioner from the select list and including the names of other candidates who had obtained less aggregate marks than the petitioner is arbitrary illegal unjust and discriminatory. After stating that the petitioner in aggregate had obtained 303. 2 marks and name of the candidate securing 262 marks in aggregate could not have been included in the select list the petitioner has asserted that prescription of minimum qualifying marks for viva- voce test is bad in law and the respondent should be directed to include name of the petitioner in the select list. The petitioner has claimed that for the appointment to the post of Police Sub-Inspector performance of the candidates at the written test and physical endurance test is the only relevant criteria for the purpose of finding out their suitability or otherwise and prescription of minimum qualifying marks for viva-voce test being violative of provisions enshrined in Articles 14 and 16 of the Constitution of India should be set aside. As per the Courts order dated 14/09/1993 the petitioner was permitted to amend the petition. By way of amendment the petitioner has pleaded that Rule 15 of the Rules which empowers the Commission to fix the qualifying standard for viva-voce test is ultra vires arbitrary illegal unjust and violative of the provision contained in Articles 14 and 16 of the Constitution of India because the said Rule confers arbitrary and unguided powers on the Comm