JUDGMENT M.P. Singh, J. - We should feel proud of our Constitution which hat blessed the citizens of this country with the basics of equality before the law and equal protection of laws. It has also ensured the equality of opportunity in the matters of public employment. How painful it is to see when any superficial, unreasonable restriction is imposed. Such a restriction is always hammering the soft and delicate framework of equality as enshrined in the Constitution, it is always the duly of the Court to prevent any such violence to it. 2. This bunch of writ petitions raises a common question whether the petitioners, who obtained their degrees of B. A. M. S. from the State of Bihar, can be appointed as Medical Officers in Uttar Pradesh. Facts: 3. The petitioners have passed their B. A. M. S. examination from different medical colleges in Bihar. After passing the said examinations they completed their house-jobs training from different Government hospitals and medical colleges in Bihar. Subsequently they got themselves registered as Medical Officers with Bhartiya Chikitsa Parishad, U. P., Lucknow. They were competent and fully qualified to appear in the competitive examination conducted by the Union Public Service Commission as well as by the Uttar Pradesh Public Service Commission in respect of appointment as Medical Officers. 4. The Uttar Pradesh Public Service Commission issued an advertisement for the posts of Ayurvedic and Medical Officers on 1-12-1984. It mentioned three essential requirements : (i) a candidate must possess degree of Avurvedic of Unani from University duly established in Uttar Pradesh ; (ii) A candidate is registered as Vaidya and Hakim by the Bhartiya Chikitsa Parishad, Uttar Parsdesh, Lucknow; (iii) A candidate has done his house-job for six months from any Ayurvedic or Unani hospital. 5. In pursuance of the said advertisement the petitioners applied for appointment as Medical Officers but they were told by the office of the opposite party No. 2 (Director of Unani and Ayurvedic Medical Service, U. P., Lucknow) that their application forms have been rejected as they were not graduates or diploma holders from an University or College established in Uttar Pradesh. 6. The petitioners have challenged this restriction mentioned in the said advertisement. 7. 6. The petitioners have challenged this restriction mentioned in the said advertisement. 7. The case set up by the State of U. P. was that the said advertisement was issued under Rule 10 of the U. P. Subordinate (Gazetted) Medical Service (Ayurveda and Unani) Rules, 1964 (hereinafter referred to as the Rules) This Rule was framed by the Governor under Article 309 of the Constitution of India. 8. The said rule has been framed in conformity of Section 40 of the U. P. Indian Medicine Act, 1939 (hereinafter referred to as the Act). Except mentioning this bare fact on other justification has been given by the State in support of imposing such a restriction in the matter of appointment as medical officers. 9. Since the petitioners have challenged the vires of Rule 10 of the Rules and Section 40 of the Act, notice was issued and served on the learned Advocate General. 10. Heard learned counsel for the parties. 11. In order to decide the present controversy the statutory framework of Section 40 of the Act and Rule 10 of the Rules have to be scrutinised. 12. Section 40 of tho Act runs as follows : "40. Reservation of certain appointments to Vaidyas and Hakims who have qualified themselves from educational institutions affiliated to the Board.-Except with the special sanction of the State Government, no person other than a Vaidya or Hakim or surgeon or midwife who has qualified himself or herself from an institution affiliated to the Board, or other institution of the State recognised by the Board for the purposes, and is a domiciled resident of this State, shall be competent to hold an appointment as medical officer of health, or as physician, or surgeon or midwife or other medical officer in an Ayurvedic or Unani hospital, infinmary, dispensary, or lying-in-hospital maintained by or under the control of the State Government or a local authority : Provided that Vaidyas and Hakims in the employ of the State Government or a local authority specified above on the date on which this Act comes into force shall continue to hold the said appointments." 13. Rule 10 of the U. P. Subordinate (Gazetted) Medical Service (Ayurveda and Unani) Rules, 1964 is quoted below : "Rule 10 : 10. Rule 10 of the U. P. Subordinate (Gazetted) Medical Service (Ayurveda and Unani) Rules, 1964 is quoted below : "Rule 10 : 10. Qualification.- No person shall be appointed to the Service by direct recruitment unless he- (i) possesses one of the following qualifications : (a) a degree in Ayurveda or Unani Tib of a University established by law in Uttar Pradesh, or (b) five years' degree or diploma in Ayurveda or Unani Tib (BIMS or DIMS) of the Board of Indian Medicine, Uttar Pradesh. (ii) is registered as a Vaidya or a Hakim with the Board of Indian Medicine, Uttar Pradesh, and (iii) possesses at least six months professional experience at an Ayurvedic or Unani Hospital or dispensary." 14. A perusal of Section 40 of the Act shows that there is no absolute bar but in special cases sanction can be given by the State Government. But Rule 10 has imposed a complete bar. It is beyond the scope of Section 40 of the Act itself. 15. Where the Act is plain, rule must, if possible, be reconciled with it or if that cannot be done, the rules must give way to the plain terms of the Act. It is absolutely essential that the rules framed must be consistent with the Act. If any rule which would abridge the substantive right granted under the Act would be ultra vires unless the Act itself empowers the rule making authority to alter the provisions in the Statute. The test to apply in considering whether the rules are within the powers of the rule making authority under the Statute are (i) whether the rules are reasonable and convenient for carrying the Act into full effect (ii) whether the rules relate to matters under the provisions of the Act (iii) whether they relate to matters not otherwise provided for in the Act, and (iv) whether they are consistent with the provisions of the Act. 16. In the instant case the rules framed under Article 309 of the Constitution are in excess of Section 40 of the U. P. Indian Medicine Act, 1939. The Act does not impose an absolute bar but Rule has done so which is not permissible. 17. There is no dispute that syllabus and courses of study for B. A. M. S. in Bihar are exactly similar to that in Uttar Pradesh. The Act does not impose an absolute bar but Rule has done so which is not permissible. 17. There is no dispute that syllabus and courses of study for B. A. M. S. in Bihar are exactly similar to that in Uttar Pradesh. Both the degrees are recognised by the Central Council of Indian Medicine, New Delhi. This similarly has been practically admitted in paragraph 12 of the counter-affidavit filed on behalf of the State. On account of this admitted position the petitioners claimed similar treatment for appointment as Medical Officers in Uttar Pradesh. 18. Another remarkable feature of this case is that on 19-11-1984 the opposite party No. 2 has issued an advertisement in "Dainik Jagran", a local Hindi daily from Varanasi, for the post of Demonstrators, Professors, Readers and Lecturers in Unani and Ayurvedic Departments but no such condition has been imposed that the candidate must be a graduate from an University established in Uttar Pradesh. Then why this restriction only for the appointment of Medical Officers. Is it not discriminatory and unreasonable ? 19. Equally important point to be considered is though the professional qualifications possessed by the petitioners are the recognised qualifications under the Central Council of Indian Medicine Act, 1970 but the same is not being treated as parallel to the qualifications prescribed under Rule 10 of the Rules. Except the Labour Department for which the said advertisement has been issued, all other Departments have amended their Rules by notifications. By means of Government Order dated 31-3-1969 (Karmik-2 dated 15-10-1971) the Government has issued a notification to all its Departments and Head Offices through out the Uttar Pradesh that the Departments should amend the advertisement in the following manner : (i) A degree of an University established by law in India, or (ii) An institution other than University, recognised or declared under any University, or (iii) A foreign University, recognised by the Central Government. 20. Vide Government Order No. 3008/1-4-20/76 dated 9-11-1982 similar provisions were made in the Centralised services also and "degree in Ayurvedic or Unani from an University established in U. P. has been amended by "degree in Ayurvedic or Unani recognised by any University in India.' 21. Nothing has come on record on behalf of the State as to why the necessary amendment has not been made in Rule 10 of the Rules so far. Nothing has come on record on behalf of the State as to why the necessary amendment has not been made in Rule 10 of the Rules so far. It appears that the said rule did not receive the attention of the Government and it remained uncared for. 22. The entire controversy in these writ petitions hinges on a short question whether the State of U. P. could impose a condition that only those persons who obtained the degree of B. A. M. S. from any university established in Uttar Pradesh could apply for the appointment of Medical Officers. 23. Indirectly it amounts to a reservation being made only for the graduates from Uttar Pradesh. It excludes the candidates obtaining degrees from other universities. What is the nexus with the object should to be achieved? 24. Now this Court has to examine about the rationale of the said restriction imposed by Rule 10 of the Rules with reference to Section 40 of the Act. Is it not hit by Articles 14 and 16 of the Constitution ? There is absolutely no explanation for imposing such a condition only for the appointment of medical officers and not for the appointment of Demonstrators, Readers, Professors and Lecturers. Why this Rule 10 has not been amended with conformity with Government Order dated 31-7-1969 and 9-11-1982 whereby this restriction has been withdrawn and instead of "degree of an university established by law in Uttar Pradesh" has been substituted by "degree of an university established by law in India. 25. There is no controversy that Article 14 of the Constitution forbids class legislation but does not forbid reasonable classification for the purposes of legislation. In order to pass the test of permissible classification two conditions must be fulfiled, viz , (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out or the group, and (ii) that the differentia must have a rationale relating to the object sought to be achieved by the statute in question. The imperative of Articles 14 and 16 of the Constitution is that equal opportunity for all courses in the matter of employment, of course with certain permissible restriction, should be made. This classification may be founded on sound basics. The imperative of Articles 14 and 16 of the Constitution is that equal opportunity for all courses in the matter of employment, of course with certain permissible restriction, should be made. This classification may be founded on sound basics. There should always be a nexus between the basis of this classification and the object of the Act under consideration. 26. A judicial decision, must be of necessity, depends on the facts and circumstances of each particular case. The facts of this case will speak the truth of arbitrariness. The State Government has miserably failed to give any explanation muchless a reasonable explanation. There is nothing on record to show the purpose of the restriction so imposed. In support of the said restriction even no submission has been made on behalf of the State. 27. The restriction so imposed is hammering the wellkint framework of equality as contemplated in the constitution. There is no denial that the courses and syllabus in Bihar and Uttar Pradesh are one and the same for B. A. M. S. degrees. Then why this exclusion of the petitioners for being considered for appointment to the post of medical officer in Uttar Pradesh. The selection may be primarily on merits judged on the basis of academic record. 28. The law is not absolute logic. What is fundamental is equity and not conclusiveness. What is basic is equal opportunity of each according to his ability and not superficial restriction. It is impossible to contemplate such a restriction to be consistent with Articles 14 and 16 of the Constitution. If equality of opportunity for every citizen in the country is the constitutional guarantee, then why should there be any effort on the part of the State Government to snatch the same by means of said rule. Test of Equality: 29. Now the next question to be taken into consideration is whether the persons who have obtained their B. A. M. S. degree from Bihar and those who have obtained similar degrees from Uttar Pradesh constitute one class or not. 30. In the case reported in AIR 1968 SC 507 , C. A. Rajendran v. Union of India and others, while considering the scope of Article 16(4) of the Constitution the Supreme Court expressed its views as follows : "The relevant law on the subject is well settled. 30. In the case reported in AIR 1968 SC 507 , C. A. Rajendran v. Union of India and others, while considering the scope of Article 16(4) of the Constitution the Supreme Court expressed its views as follows : "The relevant law on the subject is well settled. Under Article 15 of the Constitution, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one office to a higher office thereunder. Articles 14, 15 and 16 form part of the same constitutional code of guarantees and supplement each other. In other words, Article 16 of the Constitution is only an incident of the application of the concept of equality enshrined in Article 14 thereof. It gives effect to the doctrine of equality in the matter of appointment and promotion. It follows thereof that there can be a reasonable classification of the employees for the purpose of appointment and promotion. To put it differently, the equality of opportunity guaranteed by Article 16(1) means equality as between members of the same class of employees and not equality between members of separate, independent classes." 31. The said decision of the Supreme Court is based on the earlier decision reported in AIR 1962 SC 36, General Manager, Southern Railway and another v. Rangachari. 32. The same principle of law has been enunciated by the Supreme Court in the case reported in AIR 1969 SC 212 , Sham Sunder v. Union of India and others and AIR 1960 SC 384 , All India Station Masters and Assistant Masters Association v. General Manager, Central Railway. 33. In the case reported In AIR 1974 SC 1755 , The General Manager, South Central Railway v. A.V.R. Siddhanti, the Supreme Court took the following view : "The equality of opportunity for purposes of seniority, promotion and like matters of employment is available only for persons who fall substantially within the same class or unit of service. The guarantee of equality is not applicable as between the members of distinct and different classes of service. The Constitution does not command that in all matters of employment absolute symmetry is maintained. The guarantee of equality is not applicable as between the members of distinct and different classes of service. The Constitution does not command that in all matters of employment absolute symmetry is maintained. A wooden equality as between all classes of employees regardless of qualifications kind of jobs, nature of responsibility and performance of the employees is not intended, nor it is practicable if the administration is to run. Indeed, the maintenance of such a classless and undiscerning equality where in reality, glaring inequalities and intelligible differentia exists, will deprive the guarantee of its practical content. Broad classification based on reasons, executive pragmatism and experience having a direct relation with the achievement of efficiently in administration, is permissible. That is say, reasonable classification according to some principle, to recognise intelligible inequalities or to avoid or correct inequalities is allowed, but not mini classification which create inequality a mong the similarly circumstanced members of the same class or group." 34. In another case reported in AIR 1984 SC 1527 G.P. Doval v. Chief Secretary, Government of U. P. and others, the Court took the following view : "Service rules will have to be reasonable and fair and not grossly injust if they are to survive the test of Articles 14 and 16." 35. Admittedly the syllabus and courses of study for the degree of B.A.M.S. are same in Bihar and Uttar Pradesh. 36. Equally important feature of the case is that this condition has been imposed only for the appointment of medical officers but not for other posts. Apart from this, by means of Government Orders dated 31-3-1969 and 9-11-1982 such restrictions have been withdraw an, by the Government of Uttar Pradesh regarding other departments. But a different treatment is being given to the Labour Department. 37. Obviously the question arises where is the justification on the part of the Government of Uttar Pradesh to impose such an unreasonable restriction on the petitioners which debars them from being considered for appointment as medical officers in Uttar Pradesh. 38. Why the State of Uttar Pradesh has tried to discriminate the graduates from Uttar Pradesh and the graduates from Bihar. What is the object sought to be achieved by such a classification ? Social or economic uplift ? No obviously it cannot be the object. 38. Why the State of Uttar Pradesh has tried to discriminate the graduates from Uttar Pradesh and the graduates from Bihar. What is the object sought to be achieved by such a classification ? Social or economic uplift ? No obviously it cannot be the object. In our opinion the graduates from Bihar and from Uttar Pradesh having the same syllabus and course of study constitute one class. 39. There is, in our considered opinion, no escape from the conclusion that equality of opportunity in matters of appointment must mean equality as between members of the same class of citizen. The discrimination made by the impugned Rules between the degree holders of B.A.M.S. from Bihar and that of Uttar Pradesh is wholly arbitrary and capricious. Academic qualifications or technical qualifications could only be germane at the time of appointment. 40. We are not at all disputing that the Government cannot make classification but it should be reasonable and must have a nexus with the object thereof. Once this Court holds that the petitioners and the applicants from Uttar Pradesh constitute one class on account of their equivalent degrees, the restriction so imposed becomes unreasonable. The discrimination, so made, does violence to the constitutional guarantee of equality which rests on the principle of equal opportunity in matters of employment. 41. No plausible explanation has come forward from the State Government in the instant case to justify the restriction so imposed. The State Government has taken the shelter of Rule 10 of the Subordinate (Gazetted) Medical Service (Ayurveda and Unani) Rules, 1964 only. Nothing has been said on what basis these Rules have been framed. It has not been said to be based on social or educational backwardness or geographical placement. In the absence of these factors we are left with no option but to hold that Rule 10 of the Subordinate (Gazetted) Medical Service (Ayurveda and Unani) Rules, 1964 and Section 40 of the U. P. Indian Medicine Act, 1939 in so far as they impose restriction on the graduates from other States for appointment as medical officers in Uttar Pradesh are invalid being illegal, discriminatory and unreasonable. 42. We are satisfied that the classification is not founded on any intelligible differentia. It has, at any rate, no rational nexus with the object sought to be achieved. The restriction is irrational and arbitrary. 43. 42. We are satisfied that the classification is not founded on any intelligible differentia. It has, at any rate, no rational nexus with the object sought to be achieved. The restriction is irrational and arbitrary. 43. In the case reported in AIR 1981 SC 1009 , Miss Arti Sapru etc. v. State of Jammu and others, the Supreme Court had considered the question of admission to the M. B. B. S. course in Government Medical College, Srinagar. In that case 25% seats were reserved for schedule caste and other reserved categories, one of which was broadly described as "specially an educationally backward classes" and included (a) areas adjoining actual line of control, and (b) areas known as bad pockets'. While considering the question whether the Government has given any person for the basis of the said classification it was held that the Government Order dated 14-9-1980 by means of which the said reservation was made suffered from the vice of arbitrariness and it was declared invalid. It was observed that there was no intelligible data on record sustaining the said classification. The material on which the wisdom of the State Government was applied has not been disclosed in that case. The said classification did not have the constitutional character. 44. The facts of the instant case are very much near to the case of Miss Arti Sapru (supra). Here also the State has miserably failed to place on record any material to justify the unreasonable restriction so imposed. 45. On behalf of the State reliance was placed on a decision reported in AIR 1971 SC 1439 , Kumari N. Vasundra v. State of Mysore and others. In that case the question related to the admission of pre-professional B. Sc. Part I course leading to M. B. B. S. in Government Medical Colleges. It was held- "The need and demand for doctors in our country is so great that young boys and girls feel that in medical profession they can both get gainful employment and serve the people. The State has, therefore, to formulate with reasonable foresight a just scheme of classification for imparting medical education to the available candidate which would serve the object and purpose of providing broad based medical aid to the people of the State and to provide medical education to those who are best suited for such education. The State has, therefore, to formulate with reasonable foresight a just scheme of classification for imparting medical education to the available candidate which would serve the object and purpose of providing broad based medical aid to the people of the State and to provide medical education to those who are best suited for such education. Proper classification inspired by this consideration and selection on merit from such classified groups therefore cannot be challenged on the ground of inequality violating Article 14. The impugned rule has not been shown by the petitioner to suffer from the vice of unreasonableness." 46. The facts of the instant case are entirely different. Here the Government has to explain as to on what basis this restriction has been imposed for the graduates from Bihar to be considered for appointment to the post of medical officers in Uttar Pradesh when everything being equal between the petitioners and the other candidates of Uttar Pradesh. 47. After giving our careful consideration to the matter we are of the opinion that Rule 10 of the Subordinate (Gazetted) Medical Service (Ayurveda and Unani) Rules, 1964 and Section 40 of the U. P. Indian Medicine Act, 1939 excluding graduates from other States from being considered for the appointment of medical officers in Uttar Pradesh suffer from the vice of discrimination, arbitrariness and unreasonableness. They are hit by Article 16 of the Constitution. 48. Accordingly we allow the writ petitions and quash the advertisement dated 1-12-1984 and declare only that part of Rule 10 of the Subordinate (Gazetted) Medical Service (Ayurveda and Unani) Rules, 1964 and part of Section 40 of the U. P. Indian Medicine Act, 1939 which impose restriction on tho graduates from other Universities having same courses of study of B. A. M. S. degrees to be invalid. The respondent No. 2 is directed to consider the cases of the petitioners for appointment to the post of medical officers irrespective of the condition so imposed in the adveritsement. If on the date of application the petitioners did not suffer from any disqualification on account of age that would not be a bar now.