N. J. PANDYA, J. ( 1 ) RULE. L. A. G. P. Mr. Sompura waives service of Rule for respondents 1 and 2 L. A. Mr. M. D. Pandya waives service of Rule for respondent No. 3. Looking to the importance of the matter with the consent of the parties it is finally heard and disposed of today. ( 2 ) THE importance relates to the examination to be held under the Indian Boiler Act 1923 and Rules framed thereunder. To be precise the Rules are the Gujarat Boiler Attendants Rules 1956 as amended from time to time. The aforesaid Rules are under Section 29 of the Indian Boilers Act. The Board of examination under Rule 8 and other Rules that followed is empowered to hold examination of competency test designated as 1st Class and 2nd Class. Rules 27 provides for form of application. Rule 28 enjoins upon the candidates to produce satisfactory testimonials and essential statements as per Rule 29. After receipt of the application in Form A accompanied by the testimonials if they are found to be doubtful as per Rule 43 the Secretary of the Board of Examiners can get it verified and if the certificates are found to be false its consequence will follow as per Rule 34. Rule 36 provides for age and training of 2nd class and Rule 37 provides for age and training of 1st Class candidates. These are the two rules which are material for our purpose as they prescribe the eligibility criteria for the respective examination. The grievance of the petitioners in the petition is that petitioner No. 1 whose certificate of experience is at page 9 has been denied admission to 1st Class boiler examination and so is petitioner No. 2 as per page 10 and the remaining petitioners for Second Class Boiler Competency Examination whose certificates of experience are produced at pages 11 to 22 have been also wrongly denied admissions to the respective examination. According to the petitioner this decision has been taken by respondent No. 2 the Chief Boiler Inspector who is the Chairman of the said Board of Examination and the certificate in question in respect of different petitioners was issued by respondent No. 3 Superintending Engineer and his colleagues the details of which are to be found in the respective certificate. ( 3 ) THE State submitting its case through L. A. G. P. Mr. ( 3 ) THE State submitting its case through L. A. G. P. Mr. Sompura in my opinion has fairly stated that the Board of Examiner its Chairman and Secretary all insisted on the compliance of Rules 36 and 37 respectively for Second Class Competency Examination and First Class Compentency Examination. To this L. A. Mr. Bhatt appearing for the petitioners and Mr. Pandya appearing for respondent No. 3-all agree. Accordingly therefore on all the sides there is unanimity that the requirement of Rules 36 and 37 must be complied with. However there is a saving Clause by way of Rule 38 whereby the State Government may empower the Chairman of the Board notwithstanding anything to the contrary contained in Rules 36 and 37 to admit in his discretion any candidate to an examination under those Rules if he so thinks fit. For the time being we are not concerned with this Rule. Coming back to those Rules 36 and 37 they prescribe the requirement of age as well as experience criteria. Now with regard to this only if we read along with it Rules 27 and 28 it is to be found that experience can be certified under Rule 28 and according to the petitioners that is precisely what they have complied with as per the certificates produced at pages 9 and 10 for Class-I and Class-II 11 to 22. The State has resisted with the aforesaid submission made by L. A. and in my opinion rightly so. However the stand as disclosed from the affidavit-in-reply filed by respondent No. 2 is little different. It may be described as little different but so far as the petitioners are concerned it. is very substantial and looking to the peculiar relationship as contemplated by these Rules between respondents 2 and 3 this difference is very vital. The reason for this observation is that respondent No. 3 is not the only authority who has issued the certificates as could be seen on going through each of them but the certificates are signed by the Superintending Engineer respondent No. 3 and also there is signature appearing on the certificate that of the Executive Engineer of the Boiler Department and also bearing one more signature of the Industrial Relation Officer or the Deputy General Manager of the concerned Thermal Power Station. ( 4 ) IF either Rule 37 or Rule 38 were to be construed as respondent No. 2 did according to the said affidavit starting from page. 34 onwards virtually it amounts to allowing respondent No. 2 to not only scrutinise the certificates of the details given therein and more particularly about the experience that has been certified. According to respondent. No. 2 it is he who is the final authority irrespective of what respondent No. 2 might have said in the certificate. ( 5 ) THIS would mean that an additional requirement is contemplated according to those rules. Not only Form A should be accompanied by the respective testimonials as to experience and other prescribed matter but after those testimonials are produced before the Board it will be open for the Board authorities more particularly its Chairman respondent No. 2 to scrutinise each of the certificates and decide whether to accept the experience that has been certified in respect of each of the candidates or not and on that basis to decide whether to accept the application of the candidates at the examination or not. ( 6 ) RULES 36 and 37 both prescribe a minimum period of service in a particular capacity. So far as Class II Examination is concerned the capacity refers to that of a fireman or assistant fireman or engine fitter where boilers and engines are prepared or made etc. for certain period of time. For Class-I the requirement is that the candidates should have served for not less than 2 years as boiler attendant with second class certificate of competency or its equivalent in sole working charge of a boiler whose rated heating surface is not less than 46 sq. mrs. or in the alternative as per Clause (b) and further as per (c) also the requirements are prescribed. ( 7 ) ). Taking the case of first class competency examination candidates first if one turns to pages 9 and 10 the heating surface area is very much specified and for many times over the prescribed minimum area of 46 sq. mtrs. The heating surface area is 3535 sq. mtrs. and the prescribed area being only 46 sq. mtrs. the difference is quite obvious. There are two members of water tank boilers shown at page 9. Mr. mtrs. The heating surface area is 3535 sq. mtrs. and the prescribed area being only 46 sq. mtrs. the difference is quite obvious. There are two members of water tank boilers shown at page 9. Mr. R. A. Patel petitioner No. 1 herein has been working in Boiler Maintenance Section from 1-3-1977 to 26 -1983 as Tech. II and from 27 and onwards as Tech. I. ( 8 ) IT may be noted that the expression boiler attendant is nowhere defined in the Rule but when Rules 2 and 3 are read together it means that a person who is possessing a certificate of competency as an attendant under the Rules shall be deemed to be a fit and proper person to hold charge of a boiler and no holder of any other certificate shall be deemed to be a fit and proper person to be an attendant and in-charge of a boiler except to the extent of his qualification indicated in such certificate. ( 9 ) VIEWED in this light in my opinion if a person has been working in boiler maintenance section for such a long time where nature of duty as shown in the case of petitioner No. 1 that he has been working in boiler maintenance Section carrying out day to day break down jobs of boiler and its auxiliaries and about his holding of certificate of Class-II there is no dispute at all that he would certainly qualify to be referred to as a Boiler Attendant and therefore if a certificate on the aforesaid line as per page 9 is issued in my opinion the requirement of Rule 37 is fulfilled. The same can be said about petitioner No. 2. Mr. N. A. Patel who is described as plant operator Class-II working 25 from 1979 onwards in different sections as Tech. II in boiler section for about 7 years and thereafter as plant operator Class II in boiler Section day-to-day maintenance Section etc. ( 10 ) AN attempt was made on behalf of respondents 1 and 2 by Ld. AGP Mr. Sompura to pin down the reference to the expression Boiler Attendant to sub-Rule 3 of Rule 6 which provides that a person in-charge of a boiler shall be deemed to be in direct and immediate attendant and in-change of the same when he is within 46 meters of such boiler. AGP Mr. Sompura to pin down the reference to the expression Boiler Attendant to sub-Rule 3 of Rule 6 which provides that a person in-charge of a boiler shall be deemed to be in direct and immediate attendant and in-change of the same when he is within 46 meters of such boiler. This submission regarding sub-Rule 3 is mentioned only for the sake of rejection. If any reasons are required to be given in this regard Rule 3 does not specify any limit whatsoever as to the area of activity of a person referred to as attendant and in-charge of a boiler and the radius referred to in sub-Rule 3 of Rule 6 has to be read in connection with the obligations cast on an attendant to a boiler and that is why there is a reference to the said radius. Except for that in my opinion sub-Rule 3 of Rule 6 has no relevance whatsoever to the controversy that is involved in the matter. Further sub-Rule 4 of the Rule 6 also refers to freedom to be given to a boiler operator or a person in-charge of a boiler of such a distance from any boiler on such conditions as may be considered necessary. ( 11 ) IN my opinion a brief reference to the aforesaid Rules with an idea to get to the meaning of expression boiler attendant only indicates that a duly qualified person can look after the type of boiler that he is qualified to do as per the respective certificate that he might be holding and with a view to further take care of safety and reduce the margin of error obviously the distance has been prescribed giving power with the Chief Inspector to further increase the distance so that freedom of movement of a given operator can be increased if the circumstances so require. These rules therefore cannot be read in the manner suggested by LAGP Mr. Sompura to understand the effectiveness or otherwise of the aforesaid certificate. These rules therefore cannot be read in the manner suggested by LAGP Mr. Sompura to understand the effectiveness or otherwise of the aforesaid certificate. The recourse therefore is taken to Rules 36 and 37 and more particularly their Clauses (a) (b) and (c) with a view to Justify the action of respondent No. 2 when he decided upon the efficacy or otherwise of the respective certificates and on that basis only as per its affidavit-in-reply allow some of the candidates to appear and others not to but in my opinion there is no power vested in him to do as per those rules. ( 12 ) THE moment this aspect is understood in this light obviously the petition is required to be allowed. Regarding the discretion left with respondent No. 2 as per Rule 33 in my opinion a word of caution is required to be sounded here that the discretion is required to be exercised judicially in the sense that he cannot say carelessly that because I decide in this manner I decide but he must set out reasons and it must have bearing and connection with the examination whether it is for Class-I or Class-II and should have also bearing directly with the qualifications and experience that the respective candidates must be possessing. Necessarily it means that he cannot discriminate against the persons who are similarly situated. ( 13 ) IT may be mentioned here that by virtue of an interim order passed at the time when the matter came up for admission an order came to be passed on 10-2-1991 whereby the petitioners were permitted to appear at the respective examination. By way of final relief therefore only what could be given is that the result of the examination be declared and be communicated to the respective candidates and the authorities as the case may be. Consequences therefrom to follow in accordance with the Rules. The petition is accordingly allowed. Rule is made absolute. (ISS) Rule made absolute. .