O. Chinnappa Reddy, J.:— Shri R.N Moudgil was employed as a Senior Translator in the High Court of Punjab in 1963 when he responded to the nation's call and joined the Army as an Emergency Commissioned Officer. He was released from the Army in June 1968 and he reverted to his original post. He was later promoted as Reader in the High Court. On 10-8-1973, an advertisement was published in the ‘Tribune’ by the Punjab Public Service Commission announcing that an examination would be held in December 1973 for recruitment to ten posts in the Punjab Civil Service (Judicial Branch), 20 per cent of which were reserved for ‘Released Indian Armed Forces personnel’ who had joined the Military service or were commissioned on or after 1-11-1962 and were released thereafter. The Candidates were generally required to be not below 21 years and not above 25 years of age on 1-12-1973 but in the case of practising advocates and Government employees the maximum age limit was prescribed as 35 years and in the case of Released Indian Armed Forces Personnel it was prescribed that their age at the time of joining military service or training prior to commission should not have exceeded the upper age limit of 23 years. The minimum educational qualification prescribed for all candidates without any distinction was a degree of Bachelor of laws. We may mention here that Rule 3 of the Punjab Civil Service (Judicial Branch) Rules 1951, prescribes a degree of Bachelor of Laws as the educational qualification for entry into the service. It does not prescribe how long before the submission of the application a candidate should have obtained the degree of Bachelor of laws. It means that it is sufficient if he has obtained the degree by the date of his application. In 1973, these were also in force the Demobilised Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab Civil Service) (Judicial Branch) Rules, 1969, Rule 3 of which prescribed that no Released Indian Armed Forces Personnel would be eligible to appear in the competitive examination prescribed for recruitment to the Punjab Civil Service (Judicial Branch) unless he possessed the minimum academic qualification prescribed in the rules providing for appointment to the Punjab Civil Service (Judicial Branch) Shri Moudgil possessed all the qualifications prescribed by the Rules. Though he do not possess the degree of Bachelor laws before he was commissioned, he obtained the degree subsequent to his release from the Army and well before the date of his application. He appeared at the competitive examination held in December 1973. The results of the examination were published in May, 1974. One hundred and eighteen candidates were declared as qualified at the examination in order of merit, Sim Moudgil was placed at No. 19. Amongst the Released Indian Armed Forces Personnel, however, he was at No. 1. There were two other candidates belonging to the category of released Indian Armed Forces Personnel, amongst the qualified candidates. They were Sampuran Singh Sandhu and Harbhajan Singh who obtained thirty-fourth and eighty-second ranks. As the petitioner was qualified and was the first amongst the category of Released Indian Armed Forces Personnel, he was entitled to be appointed, in the ordinary course, to the first of the vacancies reserved for Released Indian Armed Forces Personnel. That, however, was not to happen. Though the Government 1 of Punjab accorded its approval to the appointment of candidates against general vacancies and vacancies reserved fm the Scheduled Castes; no such approval was granted to the appointment of candidates against the vacancies reserved for the Released Indian Armed Forces Personnel. The petitioner made representations, all of no avail. Therefore, he filed the present writ petition on 17-3-1976 praying that a writ or other direction should be issued to the respondents to forthwith appoint the petitioner against one of the vacancies reserved for Released Indian Armed Forces Personnel in the Judicial Branch of the Punjab Civil Services. On 18-3-1976, notice of Motion was issued by a Division Bench of the High Court for 25-3-1976. On 25-3-1976, the Government of Punjab filed a return stating that the case of the petitioner was still under consideration. In order to enable the State Government to decide the question of appointment of the petitioner, this Court adjourned the civil writ petition from time to time, on 30-3-1976, 19-4-1976, 10-5-1976 and 7-6-1976. When the Notice of Motion came up for hearing on 7-6-1976, the learned counsel appearing for the State of Punjab informed the Court that the Rules had since been amended, that the petitioner could not be appointed under the amended Rules and that the writ petition had become infructuous thereupon, the learned counsel for the petitioner sought time for studying the amended rules and the situation arising out of the amended rules. Thereafter, the petitioner sought permission to amend the writ petition by way of questioning the validity of the amended rules. Permission was granted. The writ petition was admitted by Sandhawalia and Goyal, JJ. on 7-7-1976. The matter has now come up for final disposal.

2. We mentioned that in 1973, there were in force the Demobilised Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab Civil Service) (Judicial Branch) Rules, 1969. Rule 3 of those rules, as already mentioned by us, merely prescribed that no Released Indian Armed Forces Personnel shall be eligible to appear in the competitive examination prescribed for recruitment to the Judicial Branch of the Punjab Civil Service unless he possessed the minimum academic qualification prescribed in the rules providing for appointment to the Punjab Civil Service (Judicial Branch). These rules were made on 15-9-1969. Rule 1(2) of those rules provided, “They shall come into force at once and shall remain in force for a period of five years”. The rules, were, therefore, in force from 15-9-1969 to 14-9-1974. They were thus in force at all material times. On 6-10-1975, the Government of Punjab made fresh rules known as the Demobilised Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab Civil Service) (Judicial Branch) Rules, 1975. These rules were deemed to have come into force on 15-9-1974 and were so cease to be in force from 31-12-1976. Under Rule 5 of 1975 Rules, it was provided:—

“No Released Indian Armed Forces Personnel shall be eligible to complete for the reserved vacancies unless he possessed the educational and other qualifications prescribed in the Punjab Civil Service (Judicial Branch) Rules, 1951 at the time of joining the Pre-Commission Training, or at the time of getting the Commission where there is only post-Commissioned training.”

3. Had this rule been in force in 1973, Shri Moudgil would not have been eligible to appear at the competitive examination which was held in December 1973 but since the 1975 Rules did not apply to the examination held in 1973, Shri Moudgil was in no way affected by the making of the fresh rules in 1975. On 19-5-1976, that is, after the Notice of Motion had been issued by this Court on 18-3-1976 and after the petition was adjourned from time to time on 25-3-1976, 30-3-1976, 19-4-1976 and 10-5-76 on the representation of the State Government that the matter was under consideration, the Government of Punjab amended the 1975 Rules in the following manner: Instead of the previous Rule 1(2) which provided that the rules should be deemed to have come into force on 15-9-1974, a new Rule 1(2) was substituted providing that the rules should be deemed to have come into force on 15-9-1969. A further clause provided that the Demobilised Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab Civil Service) (Judicial Branch) Rules, 1969, should be deemed to have been repealed with effect from 15-9-1969, that is to say, the very date on which the rules had come into force. It is also to be noted that the 1969 Rules had ceased to be in force from 15-9-1974 itself.

4. The repeal, therefore, was of rules which were no longer in force. However, appointments already made under the rules were protected. It may be useful to extract the whole of this clause which is as follows:—

“5.(1) The Demobilised Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab Civil Service) (Judicial Branch) Rules, 1969, shall be deemed to have been repealed with effect from the 15th day of September, 1969.

(2) Notwithstanding the repeal of Demobilised Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab Civil Service) (Judicial Branch) Rules, 1969, under sub-rule (1), the appointment, if any, made under the rules so repealed shall not be effected, but in respect of matters other than appointment, persons so appointed shall be governed by the Demobilised Indian Armed Force Personnel (Reservation of Vacancies in the Punjab Civil Service) (Judicial Branch) Rules, 1975.”

5. Shri M.R Agnihotri, learned counsel for the petitioner, questioned the validity of the amendments on various grounds. He argued that the amendments had been effected with a view to defeat the claim of the petitioner who had been singled out for unsavoury discrimination. He contended that the amendments were hit by Article 16 of the Constitution. He also urged that the amendments were mala fide. He further argued that there could be no repeal of legislation which had ceased to be in force. He also submitted that the amended rules did not have the concurrence of the High Court and, therefore, they were invalid as opposed to Article 234 of the Constitution.

6. From the sequence of events narrated earlier, much could be said for the view that the amended rules were made mala fide. We do not, however, desire to express any opinion on that question in view of the contention advanced on behalf of the State by the learned Deputy Advocate General that it is not competent for the Court to go into the bona fides of rules made under Article 309 of the Constitution. The ground is treacherous ground which we do not want to tread for the purposes of the present writ petition which we think can be disposed of on other grounds. Similarly, we do not want to go into the question whether the amended rules are bad in view of the fact that the High Court refused to give its concurrence. Nor do we desire to express any opinion on the question whether a purported repeal of an already dead enactment could destroy the rights created under the old enactment. For the purpose of the present case, we confine ourselves to the question whether the amended rules are hit by Article 16 of the Constitution.

7. Article 16(1) of the Constitution guarantees to all citizens equality of opportunity in matters relating to employment or appointment to any office under the State. It is now well settled that Article 16(1) does not confer an absolute right to obtain Public employment but it does confer an absolute right to equality of opportunity for being considered for such employment. That is the essence of the guarantee under Article 16; the right to be considered for appointment along with his compeers. If that right is denied or taken away, there is an infringement of the fundamental right guaranteed by Article 16(1) of the Constitution. It is also well settled that the right guaranteed by Article 16(1) is but an incident or an illustration of the more general right to equality guaranteed by Article 14 and that the principles applicable to cues and situations arising under Article 14 are equally applicable to those arising under Article 16(1). (Vide State of Kerala v. N.M Thomas, (1976) 2 SCC 310 : A.I.R 1976 S.C 490). It is common place to say that Article 14 permits reasonable classification having a nexus to the objects to be achieved and so does Article 16(1). It is equally comma place to say that Article 16(1) permits selective tests and does not prohibit reasonable rules for selection to any employment or appointment to any office. Another established principle under Article 14 is that if the effect of legislation is discriminatory, the fact that the dominant purpose of the legislature was an to discriminate is immaterial. If the result of legislation is discriminatory against a person and he is denied what his equals are given, it is not necessary for him to prove that in making the Law the Legislature was actuated by a hostile or inimical intention against a particular person or Class. (State Of West Bengal v. Anwar Ali Sarkar,, A.I.R 1952 S.C 75. There is no reason why this principle cannot be applied to cases arising under Article 16(1) also. Therefore if a rule is shown to be aimed at or to result in the exclusion of an individual or a few individuals from being considered for employment notwithstanding that they possess all the prescribed qualifications, the rule may prima facie be considered to offend Article 16(1). If there was no such rule in existence when the process of consideration for appointment began, but such a Rule is made with retrospective effect to exclude a few individuals, the inference of a denial of equal opportunity becomes more and more irresistible. In such cases, strong reasons and a live nexus would indeed be necessary to sustain such a classification. It is true that the Parliament has the right to classify even one corporation or a group of persons by itself for the purpose of legislation provided it exhibits some exceptional features not possessed by others (Vide Charanjit Lal Chaudhari v. Union of India, A.I.R 1951 S.C 41 and Board of Trustees v. State of Delhi, A.I.R 1962 S.C 458). It is, however, difficult to think of cases where a single individual or a narrow group of individuals may be treated as a separate class, not for the purpose of considering their claims, but, for the purpose of being excluded from consideration for appointment. One may well imagine a very high qualification like a Doctorate being prescribed for a professorship in an University. Even if it is well known that two or three persons only fulfil the qualification, having regard to the close kinship of the rule with the object to be achieved, no one else can have any grievance that he is excluded. The same position will hold even if teaching experience of say, three years after obtaining a doctorate is also prescribed as a qualification. If on the other hand the rule merely prescribes that the doctorate should have been obtained at least 3 years earlier without prescribing any requirement as to experience, in order to eliminate a person with 2-½ years teaching or research experience and to prefer a person who obtain the degree more than 3 years earlier but had no teaching or research experience whatever thereafter, the Court should be ready to strike down the rule as arbitrary and opposed to Article 16(1). The situation will be worse if the rule is introduced br way of a retrospective amendment after the person with 2-½ years teaching experience is chosen by the Selection Committee but before the appointment is made. In such a case the Court should have no hesitation to strike down the rule. The very retrospectivity given to the rule should be sufficient to expose its arbitrariness and its lack of kinship with the object to be achieved. It is true that the Governor has the power to make rules under the proviso to Article 309 with retrospective effect (Vide W.S Vedera v. Union of India, A.I.R 1969 S.C 118). But what is in question is not the power of the Governor to make rules retrospectively but whether the retrospectively in a given situation is not such as to violate the Fundamental right guaranteed by Article 16(1). If the original rule itself violated the Fundamental Right there would, of course, be nothing wrong in amending the rule retrospectively so as to bring it in line with the Fundamental Right. In A Sundairarama Reddy v. Principal Gumtur Medical College, 1961 (1) An W.R (N.R.C), 54, Rules relating to admission to Medical College were changed by the Government after the time for receipt of applications had expired. The effect was that the right of certain candidates who were entitled to be selected for admission was affected. Jaganmohan Reddy, C.J and Kumarayya, J. while upholding the right of the Government to amend the rules retrospectively, held that the retrospectivity given to the particular rule was arbitrary. They said,” ………Apart from any other ground, the very idea that the rule should be thus changed to the detriment of some, after all the applications have been received, is obnoxious enough, for if so permitted it will lead not only to arbitrariness but also to unjust results of far-reaching consequences.”

8. The facts of the present case speak for themselves. The petitioner fulfilled all the requirements of the advertisement. The petitioner satisfied the qualifications prescribed by the Punjab Civil Service (Judicial Branch) Rules, 1951, and the Demobilised Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab Civil Service) (Judicial Branch) Rules, 1969, which were the only rules then in force. He was allowed to appear at the examination. He was the first among the candidates belonging to the category of Released Indian Armed Forces Personnel. He was entitled to expect to be appointed in the ordinary course. The process of selection had commenced. The petitioner went through a major part of the process. His right to be considered for appointment under Article 16 of the Constitution was effectively in operation. Consideration was crystallizing into selection and appointment. At that stage, a rule was made requiring a certain class of candidates which really meant the petitioner and the two other Ex-Service-men who had qualified at the competitive examination to possess the Degree of Bachelor of Laws from a date anterior to that required of the rest of the qualified candidates. The effect of the rule was to nullify the entire process of selection and consideration which had gone on till then in regard to the petitioner. Midstream, he was plucked out from the boat and thrown into the stream, as it were. All this was done after the petitioner had filed the present writ petition and after the Government Advocate had taken repeated adjournments on the ground that the petitioner's case was under consideration. In fact, even in the return filed on behalf of the Government at that stage it was mentioned as follows:—

“As regards his eligibility for the appointment it depended primarily on verification whether the petitioner could really represent himself as a Released Army Personnel; whether he was duly qualified and within the prescribed age limit and if the answers to the questions were in negative, whether he could at all appear in the PCS (JB) Examination, 1973. Further verification & consideration on certain essential aspects of the cases of the persons who claim themselves to be the Released Army Personnel, was unavoidable……………Therefore, the name of the petitioner has not been approved for appointment so far……………As explained in the preceding paragraph, the case of the petitioner is not just pending but receiving consideration.”

9. It was not hinted in the return that any such rule as was ultimately made was even under contemplation. The events cannot but lead to the irresistible inference that the rule was aimed at excluding the petitioner and also perhaps the other candidate belonging to the same category who was placed at No. 34 from being considered for appointment. The learned Deputy Advocate General urged that the Government had been thinking on these lines for long and invited our attention to a communication dated 28-2-1973 from the Chief Secretary to the Heads of Departments. There is nothing in the communication to justify the submission made. The communication merely instructs that the concessions/benefits admissible to Ex-Service-men in respect of their past service in the armed forces should be restricted ‘only to their first civil appointment after their release from the army and not for further appointment.’ The communication has nothing to do with the 1975 rules of the 1976 amendment.

10. We are of the opinion that exclusion from consideration by the retrospective operation of a rule, when consideration was crystallising into selection was in the circumstances of the present case, a denial of the Fundamental Right guaranteed by Article 16(1). Clauses 2 and 3 of the Demobilised Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab Civil Services) (Judicial Branch) (First Amendment) Rules 1976, dated 19-5-76 are, therefore, struck down. The next question is what relief can be given to the petitioner. We think that the only appropriate order that we can make in the present circumstances is to direct the Respondents to consider expeditiously the fitness of the petitioner for appointment under Rules 4 and 5 of Part A of the Punjab Civil Service (Judicial Branch) Rules and if found fit, thereafter to do expeditiously all things necessary to appoint the petitioner to the Punjab Civil Service (Judicial Branch). We are competent to give such a direction in the light of what has been said by the Supreme Court in State of Mysore v. Syed Mahmood, 1968 (2) Services Law Reporter 333. Let such a direction issue. The petitioner is entitled to his costs which we fix at Rs. 500/-.

11. Appeal dismissed.