D. H. SHUKLA, J. ( 1 ) THE petitioners are employed as Talatis-cum-Mantris at different villages in the Kaira District Panchayat. They by the present petition challenge the order of the District Development Officer Kaira District Panchayat Nadiad whereby their services have been terminated without notice for their failure to pass the pre-recruitment examination described in the order as Bharti ni Pariksha ( 2 ) IN order to appreciate the petitioners grievance it is necessary to recall the factual background which I outline as hereinbelow. ( 3 ) THE petitioners were initially ap pointed as Talatis before April 1 1963 at which point of time the Rules namely the Gujarat Village Panchayats Secretaries (Recruitment and Conditions of Service) Rules of 1962 were in force having been passed under the Village Panchayat Act. Thereafter Gujarat Panchayats Act 1961 came into force and under the enabling provisions of the same Act vide Section 325 (8) the rules made under Village Panchayat Act were continued to the extent that they were not inconsistent with the Gujarat Panchayats Act and they were to remain in force till new rules were passed under the Gujarat Panchayats Act. This happened somewhere in 1962 ( 4 ) ON 1-4-1963 the posts of Talati sum-Mantri were created in the Gujarat Panchayat Services and the existing posts of Talatis were merged into the 423 new posts of Talati-sum-Mantri. The petitioners were thus absorbed in the new posts of Talati-cum-Mantris between 3 and 3-9-1965. Although in effect it was the absorption of the existing incumbents of the posts of Talatis it appears that such an appointment was described as a new appointment. That however makes little difference and the fact remains that between 3-5-1963 and 3 the petitioners commenced holding the posts of Talati-cum-Mantris in Kaira District Panchayat. It is pertinent to note that at this point of time the rules framed under the Village Panchayat Act and which were called the Gujarat Village Panchayats Secretaries (Recruitment and Conditions of Service) Rules of 1962 were in force as they were continued under the provisions of the Gujarat Panchayats Act 1961 ( 5 ) THEREAFTER on 14-9-1964 the State issued a circular that the appointments of Talatis in the cadre of Talati-summantris be regularised provided that when they were initially appointed as Talatis they were within the prescribed age-limit (Vide Annexure B ). ( 6 ) IN exercise of powers conferred by Section 323 of the Gujarat Panchayats Act the State of Gujarat framed Gujarat District Panchayat Service Selection Committee (Functions) Rules 1964 are said rules inter alia provided for direct recruitment to any of the posts mentioned in the Schedule through the Selection Committee the procedure to be followed by the Selection Committee for recruitment and the standards and qualifications for being recruited to any post in the Panchayat Service. ( 7 ) UNDER the said Rules of 1964 the Selection Board of the Panchayat framed a scheme for holding an examination of the candidates who sought entry in the service known as pre-recruitment examination. In order to appreciate the scope of the scheme as well as the scope of the functions of the Selection Committee it is necessary to have the background of the relevant rules of 1964 under which the Selection Committee and the consequent scheme came into existence:"3 Direct Recruitment: (1) When the recruitment to any of the posts mentioned in the Schedule is to be made by direct recruitment the Panchayat concerned shall from time to time as required: (i) intimate to the Selection Committee the number of vacancies which are to be filled in which are likely to arise; (ii) specify the number of vacancies reserved for candidates belonging to the Scheduled Castes and Scheduled Tribes; and (iii) furnish to the Selection Committee all particulars including cadres grades pay-scales and the rules of recruitment in respect of those posts. PROVIDED that in the case of recruitment to any of the posts which have been transferred to the Panchayat Service under Sections 155 207 325 or 326 the recruitment shall be subject to and be ill accordance with such general or special orders of Government as may be made from time to time in this behalf: (2) The Selection Committee shall (a) invite applications by announcing in as many newspapers (out of which at least one newspaper being in Gujarati) as considered necessary by it circulating in the area concerned the qualifications required to be possessed by candidates and the number of vacancies likely to be filled in; (b) consider all applications and recommendations received and (i) where the qualifying written examination for recruitment is prescribed 424 under the rules framed under Sub-section (3) of Section 203 of the Act or otherwise hold such examination for the candidates who possess the requisite qualifications and prima facie eligible and interview such of the candidates as may qualify in the written examination according to the standard laid down in such rules and (ii) where no qualifying written examination is prescribed interview such of the candidates as are eligible for appointment to the post and (c) forward to the panchayat concerned the names of the candidates selected according to the result of the written examination and interview or as the case may be of the interview only arranged in the order of merit or preference and wherever it thinks fit recommend advance increments in the case of any candidate giving reasons thereof. I shall advert to this statutory position later when I shall consider the arguments advanced on the basis of the relevant rules of 1964 showing how there is a misconception in terminating the services of the petitioners (Vide Annexure D) for not passing the pre-recruitment examination. ( 8 ) AFTER the petitioners were appointed or absorbed in the posts of Talaticum-Mantris they were directed to appear in the examination which was held in October 1966. All the petitioners failed to pass the said examination. As a matter of fact it was not incumbent on the petitioners to appear in the said examination and to pass the said examination. However due to ignorance of the relevant rules prevailing at the time and on account of the insistence of the respondents they appeared in the examination but failed. As a matter of fact it was not incumbent on the petitioners to appear in the said examination and to pass the said examination. However due to ignorance of the relevant rules prevailing at the time and on account of the insistence of the respondents they appeared in the examination but failed. Since they failed to pass the examination they were discharged from service by the order dated 22-9-1970 on the ground that they had failed to pass the examination held by the Kaira District Panchayat Service Selection Committee. ( 9 ) BEING aggrieved by the said order of their discharge they preferred Special Civil Applications Nos. 1307 1308 1315 1335 1340 and 1351 of 1970 in this Court wherein they obtained stay of the order of discharge dated 22-9-1970. However when these petitions were called out for hearing the State agreed to give one opportunity to the petitioners to appear in the examination on the condition that if they failed to pass the said examination their services will be terminated without any further notice. On such an agreement offered by the State the petitioners withdrew their respective Special Civil Applications of 1970 The aforestated offer of the State is to be found in the order of M. P. Thakkar J. (as he then was) dated 26 a copy of which is to be found at Annexure C. ( 10 ) THE petitioners then continued to serve as Talati-cum-Mantris at different places and once more they were called upon to appear in the examination in the year 1978. Most of them again failed to pass the same examination on account of which failure the District Development Officer District Kaira at Nadiad (Respondent No. 3) directed by his order dated 11-4-1979 (Annexure D) to terminate the services of all the petitioners with immediate effect. It is the grievance of the petitioners that this order in its sweep terminated the services of even those petitioners who had passed the examination and whose services therefore were not required to be terminated. These unfortunate petitioners are petitioners Nos. 2 3 4 6 who had passed the examination but even then their services were directed to be terminated. It is the grievance of the petitioners that this order in its sweep terminated the services of even those petitioners who had passed the examination and whose services therefore were not required to be terminated. These unfortunate petitioners are petitioners Nos. 2 3 4 6 who had passed the examination but even then their services were directed to be terminated. The petitioners were therefore constrained 425 to again file the present Special Civil Application wherein they obtained an interim stay against the termination of their services and being protected by the stay they have continued to serve the Kaira District Panchayat at different villages as Talati-cum-Mantris. ( 11 ) THE aforesaid is the factual background under which the present petition came to be filed. The petitioners have supported their petition by numerous arguments which may be summarised as under: (1) The petitioners submit that as pointed out above when they were initially recruited as Talatis before April 1 1963 the rules called the Gujarat Village Panchayats Secretaries (Recruitment and Conditions of Service) Rules 1962 framed under the Village Panchayat Act were in force having been continued by virtue of Section 325 (8) to the extent that they were not inconsistent with the provisions of the Gujarat Panchayats Act 1961 and till new rules were framed under the said Act. The petitioners submit that these rules did not provide for any examination after they were enlisted in the service in the cadre of Talatis. ( 12 ) THEY further submit that after their appointment as Talatis they were absorbed or re-appointed in the cadre of Talati-cum-Mantris which was created under the rules framed under the Gujarat Panchayats Act. They were so absorbed or re-appointed between 3 and 3-9-1965. At that point of time the old rules were still in force which did not provide for any examination rules. The qualifying examination is not found as a condition in the rules either when they were initially as Talatis or when they were absorbed or re-appointed as Talati-cummantris. The requirement of passing a qualifying examination came into existence for the first time under the Gujarat District Panchayat Service Selection Committee (Functions) Rules 1964 The petitioners submit that the requirement of passing the qualifying examination which came into existence under the aforesaid rules of 1964 cannot retrospectively apply to them. The requirement of passing a qualifying examination came into existence for the first time under the Gujarat District Panchayat Service Selection Committee (Functions) Rules 1964 The petitioners submit that the requirement of passing the qualifying examination which came into existence under the aforesaid rules of 1964 cannot retrospectively apply to them. However due to ignorance of the legal position they appeared in the qualifying examination but failed. Their services were therefore terminated and therefore they had to file a Special Civil Application namely Special Civil Application No. 1340/70 and others. As pointed out above the State agreed to give to the petitioners one more opportunity to appear at the qualifying examination on the condition that they withdrew their Special Civil Applications. They did withdraw their Special Civil Applications and appeared in the qualifying examination but failed. The petitioners submit that these facts do not impede them in making a submission that they were not bound to appear in the qualifying examination at all since the requirement to appear at the qualifying examination under the rules cannot operate retrospectively against their interest because when they were initially appointed or when they were re-employed in the cadre of Talati-arm-Mantris there was no such requirement under the rules which were prevailing then. (2) The petitioners submit that their grievance is based on a still sounder footing in view of the fact that the scheme which came into effect on 19-10-1965 set down a condition precedent in the nature of a pre-recruitment examination before a candidate was enlisted in the service and this scheme is sought to be given a retrospective effect so as to require the petitioners to pass that test. This scheme was framed under the rules framed under the Gujarat Panchayats Act 1961 Can this scheme empower the authorities to compel the petitioners to pass the test of pre-recruitment examinations when they were al 426 ready employed as Talatis initially and as Talati-cum-Mantris later and when their services were already over a decade old. It is necessary to bear in mind that their absorption in the cadre of Talati-cum-Mantris was even regularised by the notification dated 14-9-1964 i. e. to say before the requirement to pass the pre-recruitment examination under a scheme dated 18-10-1965 came into force. ( 13 ) IT is very pertinent to note that there are now two examinations contemplated under the Rules. ( 13 ) IT is very pertinent to note that there are now two examinations contemplated under the Rules. Under the Gujarat District Panchayat Service Selection Committee (Functions) Rules 1964 a condition of passing qualifying examination was set under Rule 3 (2) (b) (i) whereas under the scheme of 1965 a requirement is added to pass the pre-recruitment examination. The pre-recruitment examination is described as Bharti Ni Pariksha whereas the qualifying examination is described as Spardhatmak Pariksha. Both the examinations are framed under the rules subsequent to the employment of the petitioners in their present cadre and therefore none of the tests would apply to them. (3) The petitioners submit that not knowing the true position they did appear in the qualifying examination and failed. They filed a writ petition wherein the State agreed to give them one more opportunity to appear in the examination but they failed in the second examination also. The petitioners submit that it is understandable that the State would terminate their services for not passing the qualifying examination since they had agreed to the term when they withdrew the Special Civil Applications of 1970. But what the State has done under the order dated 11-4-1979 passed through the District Development Officer Kaira District Panchayat Nadiad is that their services have been terminated for not passing the pre-recruitment examinations vide last paragraph of Annexure D. Now this is absolutely ununderstandable. They had appeared in the qualifying examination and had failed but for that reason how could their services be terminated for not having passed pre-recruitment examination. Thus the petitioners refer to two examinations the qualifying examination under 1964 Rules and the pre- recruitment examination under the scheme of 1965. According to the petitioners their services have been terminated for not clearing the pre-recruitment examination when they have only appeared at the qualifying examination and have not appeared at the pre-recruitment examination at all. At this stage I may point out that this distinction between qualifying examination and pre-recruitment examination is not challenged in the affidavit-in-reply filed by the State. There appears to be a good force therefore in this submission of the petitioners that they could not have been removed from the service for not passing the pre-recruitment examination wherein they had never appeared. There appears to be a good force therefore in this submission of the petitioners that they could not have been removed from the service for not passing the pre-recruitment examination wherein they had never appeared. (4) The petitioners submit that the original rules namely Gujarat District Panchayat Service Selection Committee (Functions) Rules 1964 were replaced by the Gujarat Village Panchayat Secretaries (Recruitment Training and Conditions of Service) Rules 1971 wherein the condition regarding termination of service found in the old rules was given up and by virtue of Rule 8 therefore it was clearly provided that where a person who is required to pass the qualifying examination failed to pass the examination within the trials specified therein and if he is existing Secretary and is not permanent or confirmed in service he shall not be confirmed and his increments shall be liable to be withheld provided that if the terms of 427 his employment so provided his services shall be liable to be terminated Rule 8 of the Rules of 1971 runs as under:8 Examination: (1) There shall be held an examination called the Gram Panchayats Secretaries Examination in such subjects and in such manner and at such intervals as the State Government may from time to time determine. (2) Every person required to undergo training under Rule 7 shall have to pass such examination conducted immediately after the training; in not more than three successive trials and four successive trials in case of a candidate belonging to the Scheduled Castes or Scheduled Tribes. (3) Where a person who is required to pass such examination but fails to pass the examination within the number of trials specified in Sub-rule (2): (A) is a candidate appointed to a supernumerary post of Secretary after the coming into force of these rules his services shall be liable to be terminated. (B) is an existing Secretary and permanent in service his future promotion shall be liable to be withheld. (C) is an existing secretary and not permanent or confirmed in service he shall not be confirmed and his increment shall be liable to be withheld. Provided that if the terms of this employment so provide his services shall be liable to be terminated. (C) is an existing secretary and not permanent or confirmed in service he shall not be confirmed and his increment shall be liable to be withheld. Provided that if the terms of this employment so provide his services shall be liable to be terminated. This rule is later on amended and the amended rule runs as under:amended Rule 8 (2) Every person required to undergo training under Rule 7 shall have to pass such examination in not more than three successive trials and not more than four successive trials in case of a candidate belonging to a Scheduled Caste or Scheduled Tribe. (3) (a) If a person who is required to pass examination fails to pass such examination within the trials specified in sub-rule (2) he shall be allowed additional trials to appear in such examination on payment of a fee of rupees fifteen for each additional trial; (B) If a person is promoted from amongst the Inferior Panchayat Service and is he fails to pass such examination within the number of trials prescribed in sub-rule (2) his annual increment shall be withheld till he passes such examination and he is appointed as a Secretary by direct selection he shall not be confirmed and his promotion and annual increments shall be withheld till he passes such examination: (C) A person passing the examination in additional trials specified in clause (a) shall not be entitled to claim seniority if any over those who have passed the examination earlier and promoted before he became eligible for such promotion on passing the examination in additional trials; (D) Any increments withheld under clause (b) shall be released with effect from the date on which such person passes such examination and all the future increments shall accrue to him as if no increments had been withheld but he shall not be eligible to the payment of past arrears in respect of the increments so withheld. ( 14 ) THE petitioners contend that assuming for an arguments sake that their services have been terminated for not passing the qualifying examination and not for failure to pass the pre-recruit ment examination even so the termination is bad as under the Rules of 1971 the only sanction for the failure to pass the qualifying examination is that they would not be confirmed and would lose further increments and under the amended rule they would lose promotion 428 but the old sanction of the termination of service is given a go-by. It is true that the State had agreed to give one more opportunity to the petitioners to appear at the qualifying examination and that that condition included the sanction that if they did not pass the qualifying examination their services would be terminated and that they had agreed to that offer and had withdrawn their earlier Special Civil Applications of 1970. But that does not mean that they would also lose the benefit of the change or amendment in the rules which change or amendment operates in their favour. The amended rules came into force with effect from June 14 1973 when they were published in the Government Gazette Part I-A at page 126 The petitioners submit that these amended rules confer on the existing Secretaries it new right and the termination order vide Annexure D is in violation of the amended Rules and therefore the order is bad. The petitioners submit that when they agreed to the offer of the State in Special Civil Application No. 1340/70 the amendment was not yet made and therefore they cannot be held fast to the agreement entered into in Special Civil Application No. 1340/70. The petitioners point out that it is to be noted that the amendment does apply to them and that their services cannot be terminated since the proviso to Rule (c) does not come in their way since it was not one of the terms of their initial employment that their services were liable to be terminated for the failure to pass the qualifying examination. (5) The petitioners submit that the petitioners Nos. 2 3 4 and 6 have even taken training at Samiyala and Vallabh Vidyanagar after their recruitment and they have been declared successful in the examination held at the termination of the said training. (5) The petitioners submit that the petitioners Nos. 2 3 4 and 6 have even taken training at Samiyala and Vallabh Vidyanagar after their recruitment and they have been declared successful in the examination held at the termination of the said training. Their services at any rate could never have been terminated on the ground that the have failed to pass the examination. Therefore as regards them the termination order is bad. (6) The petitioners further submit that there are junior to the petitioners who are appointed between the years 1965 and 1966 and who have also notpassed qualifying examination but they have been retained in the same cadre of Talati-cum-Mantris whereas the petitioners who are senior to them are sent home without notice. The petitioners have submitted Annexure B/1 which is a schedule containing the names and dates of appointment of the juniors who are retained in service although they have also not passed the qualifying examination. They are similarly situated as the petitioners. The petitioners submit that even amongst the temporary Government servants when the services are terminated on the ground of service conditions no discrimination can be made in the matter of employment by reverting them while retaining their juniors who are similarly situated. This amounts to unfair discrimination even though the orders of termination are passed in accordance with the terms of employment This submission of the petitioners is supported by the judgment reported in AIR 1979 Supreme Court 429 (7) The petitioners also challenge the impugned order on the ground of discrimination from another angle. They submit that the action of the first respondent in insisting that the petitioners who are the employees of the Kaira District Panchayat should pass the examination is discriminatory and violative of Articles 14 and 16 of the Constitution of India as there are approximately 175 to 200 Talati-cum-Mantris working in. different District Panchayats constituted under the Act who were recruited subsequent to 1-4-1963 and who have not passed any written examination and 429 these employees are recommended by the Panchmahals District Panchayat to be exempted from the requirement of passing the written examination and the petitioners are informed that the first respondent has exempted such Talaticum-Mantris from the requirement of passing the written examination. It may be noted at this stage that the affidavitin-reply on record does not controvert the allegation. It may be noted at this stage that the affidavitin-reply on record does not controvert the allegation. They further submit that except Kaira District Panchayat no other District Panchayat in the State of Gujarat has terminated the services of such Talati-cum-Mantris who have failed to pass the written examination. In this way also the impugned order is discriminatory and is void of being unconstitutional under Articles 14 and 16 of the Constitution of India. ( 15 ) SINCE this allegation is not controverted by the State in its affidavitin-reply it is required to be accepted. ( 16 ) I may have to look at the affidavit-ill-reply filed by the State. The only argument which is advanced in the affidavit-in-reply is that the State had decided to give them one more chance to appear in the competitive examination on the condition that if the petitioners fail to clear the examination their services were liable to be terminated without notice. Accordingly this Court had passed the order in the aforesaid Special Civil Applications for sanctioning the withdrawal of the petitions. It is contended on this ground that the petitioners are not entitled to continue in service as they have exhausted two chances to appear for the recruitment examination. I need not dwell longer on this argument raised in the affidavit-in.-reply since it is not tenable in view of the detailed discussion made above. Suffice it to say that this argument is untenable on account of subsequent amendment in the Rules in 1971 wherein the sanction for failure to pass the qualifying examination is loss of confirmation loss of increment and by subsequent amendment loss of promotion only and not loss of service itself. ( 17 ) IN the result therefore this Special Civil Application is allowed and the impugned order at Annexure D passed by the District Development Officer dated 11-4-1979 which terminated the services of the petitioners is hereby quashed and set aside. Rule is made absolute accordingly. There shall However be no order as to costs. Rule made absolutely. .