JUDGMENT : 1. This petition, under Article 226 of the Constitution of India has been filed by the petitioner for the following reliefs: “8 (a) To admit/allow this petition; (b) To issue a writ of mandamus and/or any other appropriate writ, order or direction quashing and setting aside the impugned communication (Annexture-A) issued by the respondent No.3 and further be pleased to reinstate the petitioner into service from the date of the petitioner has been terminated. (c) Pending admission, hearing and final disposal of the present petition, to direct the concerned respondents to reinstate the petitioner into service from the date the petitioner has been terminated and grant consequential benefits from the date of termination.” 2. The facts in brief are as under: The petitioner was appointed as Forest Guard on 1.12.1981. The case of the petitioner is that he was appointed as Forest Guard in accordance with the Forest Guard Recruitment Rules, 1969 (hereinafter referred to as “Forest Guard Rules”) The case of the petitioner is that in accordance with the Rule 8 of the Forest Guard Rules, he took practical training for two months and thereafter was sent to the field. He took practical training from 19.11.1986 to 15.3.1987 as a forest guard in training batch No.40 at Kakrapar for a period of 4 months. After such training, the petitioner was sent back to his original posting at the Bhavnagar Forest Department. On 17.12.2002, the petitioner went for Forest Guard Refresher Course and was relieved on 10.1.2003. On 28.5.2012, the petitioner was promoted and appointed as Forester in the Bhavnagar Extension Division and served for a period of four years from 1.6.2012 to 18.1.2016. By communication dated 16.1.2016, the petitioner was reverted pursuant to a decision of this Court in SCA No.9880 of 2015 and allied matters which provided that for being eligible for promotion under the 2009 Rules, the Foresters ought to have passed the departmental examination. On 7.2.2010, the petitioner was granted the benefit of the higher grade scale on completion of 24 years of service. On 7.2.2019, the respondents asked the petitioners to provide details with regard to his passing the basic training examination. The communication stated that those persons who had not passed the basic training examination in accordance with the Guards (Training and Examination) Rules, 2008 could not be continued in service and, therefore, information was sought for. On 7.2.2019, the respondents asked the petitioners to provide details with regard to his passing the basic training examination. The communication stated that those persons who had not passed the basic training examination in accordance with the Guards (Training and Examination) Rules, 2008 could not be continued in service and, therefore, information was sought for. At this juncture, the petitioner asked for the copies of the service book and when given the pages of the service book, according to the petitioner, he realized that he had not passed the basic training examination as per the endorsement in his service book. By the impugned communication dated 30.4.2019, the petitioner's services were terminated on the ground that in accordance with the Guards (Training and Examination) Rules, 2008, the petitioner did not pass the basic training examination and therefore his services ought to be terminated. Based on this operation of the Rule, the petitioner's services were terminated. This is the subject matter of challenge. 3. Mr. Nimit Shukla, learned advocate for the petitioner has raised the following submissions : Mr. Shukla would submit that when the petitioner was appointed in the year 1981, the Rules applicable for appointment were the Rules called the Guards (Subordinate Forest Service) Recruitment Rules, 1969. He would rely on Rules 6 and 8 of the Forest Guard Rules, 1969 to submit that the Rule 8 of the Rules did not stipulate or have a circumstance that on a failure to pass the Guards training examination, the services will be terminated. Mr. Shukla would therefore submit that the reliance on Rules of 2008 is misconceived. He would submit that reading the Rules of 2008, it is clear that the Rules will be applicable to the candidates selected for appointment to the posts of guards (Class III) in accordance with the recruitment Rules of 2004 and therefore obviously these Rules are not applicable to the petitioner. Mr. Shukla would further submit that during the course of his service, the petitioner was once promoted, though reverted thereafter on failing to pass the departmental examinations of 2009, for the purposes of promotion, that he received the benefit of higher grade scale of 24 years and now after more than 36 years of service, the services of the petitioner are terminated on the ground that when the petitioner was recruited, he ought to have passed the basic training examination. This is clearly misconceived on two grounds: (a) that such an action could not be taken after 35 years of service and (b) assuming for the sake of argument the decision was so taken, the presumption of applicability of Rules 2008 was misconceived as they were not applicable to the petitioner who was appointed pursuant to the Rules, 1969. 4. Mr. K.M. Antani, leaned AGP has vehemently opposed the petition and relied on the affidavit in reply filed by one Smt. Raj Sandhi, Deputy Conservator of Forest, Social Forestry Division. He would submit as under : Justifying the order of termination dated 30.4.2019, Mr.Antani would submit that Rule 6 of 2008 Rules specifically made it clear that if a direct recruit forest guards fails to pass the post training examination, his services shall be terminated. By virtue of the operation of these Rules, no fault can be found with the action of the department in terminating the petitioner's services. Relying on the 1969 Rules, Mr.Antani would submit that even as per the 1969 Rules a direct recruit forest guard was expected to possess and undertake the examinations as provided under Rule 9 of the 1969 Rules and, therefore, inasmuch as, the provision of taking examination was also part of the 1969 Rules, it was not open for the petitioner to submit that the Rules operated retrospectively. He would also rely on Rule 13 which is reproduced in the affidavit to submit that Rule 13 specifically provides that a candidate who successfully passes the final examination will be on a probation for a period of one year. Having found that the petitioner took the guard examination on 16.11.1986 to 15.3.1987 and having failed, the petitioner had no right to continue in service. Mr. Antani would further rely on Rule 38 of the Gujarat Civil Services (General Conditions of Service) Rules, 2002 and submit that an employee is bound to have a copy of his service book and therefore to plead ignorance on the ground that it was only when he got a copy later on that he realized that he had not passed his examination, is a submission on behalf of the petitioner, which is misconceived. Reading the affidavit further, Mr. Reading the affidavit further, Mr. Antani would submit that even when the petitioner was awarded the higher grade scale he made a misrepresentation as is evident from the check list that he had passed examination which in fact he had not. In short, he would therefore submit that merely because the termination has come into effect 36 years after rendering of service could not itself make the order arbitrary. The Rules of 2008 in the submission of Mr.Antani would be applicable to a recruit of 1981 as per the Rules of 2004 and, therefore, the termination is in compliance of Rules, 2008 and there is no malafide on the part of the department. 5. Considering the submissions on hand made by the parties, it will be relevant to reproduce the Rules of 1969 pursuant to which the petitioner claims to have been appointed. The Relevant Rules are under: “Rule 6: To be eligible for Appointment by direct selection to the post of the Guards in the lower subordinate Forest Service, candidate must: (a) be not less then 18 years of Age and not more then 25 years of Age. (b) Have passed the Gujarati IVth standard; (C) POSSESS THE FOLLOWING MINIMUM ST AN D AR D OF PHYSIQUE: (I) Height 5'4” or 1.6256 metres of 183 cms. (II) Chest : NORMAL 31” or 0.7874 metres or 79. c.m.s. EXPANDED 33” or 0.8382 metres or 84 c.m.s.) (D) FOR ADIVASI CANDIDATES: (I) Height : 5.1” or 1.5494 metres or 155 cms (II) Chest: NORMAL 30” or 0.7620 metres or 76 cms. Expanded 32” or 0.8128 metres (81 Cms.) MINIMUM EXPANSION 2” or Cms. Rule 8 : After passing out of the medical examination the selected candidates shall be required to undergo practical training in the field for a period of two months. Thereafter, they shall be sent in the Guards Training Class for Training of through grounding in the theoretical and practical aspects of forestry.” 6. Similarly since the order of termination is based on the Guard's (Training and Examination) Rules, 2008 as provided vide G.R. No.GUN/2008/70(RCT)/1003/1604/D-2 dated 24.12.2008, the relevant Rules are reproduced as under: “Rule 1(2): They shall apply to the candidates selected for appointment to the post of Guards, Class III under the Guards, Class III (in the Gujarat Subordinate Forest Service in the Forest Department) Recruitment Rules, 2004. 2(D): “Post training examination” means the examination held after the training is over for candidates selected as Guards as per appendix -A; Rule 3: Every candidate selected for appointment to the post of Guard shall require to undergo PRE-SERVICE TRAINING for a period of six months (theoretical and practical) at the Forestry Training School, Kakrapar. Rule 4: On successful completion of the training, the candidate shall require to appear at the post training examination and shall require to pass the same in not more than three chances. Rule 6: If a direct recruit fails to pass the examination as required under these Rules, his service shall be terminated. Rule 7(1): It prescribes the syllabus for training in Appendix A which contains 9 subject + discipline, conduct excursion and tours and sports and physical training + viva voice.” 7. It is undisputed that the petitioner was appointed on the basis of the 1969 Rules. Reading Rule 6 of the 1969 Rules would indicate that the only stipulation in the Rule was that the petitioner ought to pass his basic training examination. Reading of the Rules of 1969 would therefore indicate that nowhere was there a stipulation that if a candidate fails to pass his basic training examination, his services will be put to an end. 8. Reading the order of termination dated 30.4.2019 would indicate that the respondents have proceeded on the assumption that the 2008 Rules required that the petitioner ought to have passed his basic training examination and having failed to do so, his services ought to be terminated. What is evident on reading the Rules of 2008 is, it is a specific case in the Rules that they apply to candidates who were appointed pursuant to the selection made in accordance with the Rules of 2004. The petitioner was appointed in the year 1981 and therefore evidently the Rules of 2004 was not the Rule pursuant to which the petitioner was selected and appointed. It is a clear case in which the 2008 Rules which have been pressed into service for putting an end to the petitioner's tenure of service is completely misconceived. 9. Even assuming that one was to accept the submission of learned AGP relying on Rule 13 of the Rules 1969, which have been reproduced in the affidavit and which read as under : “4.2. 9. Even assuming that one was to accept the submission of learned AGP relying on Rule 13 of the Rules 1969, which have been reproduced in the affidavit and which read as under : “4.2. It may be relevant to note, that amongst other eligibilities that an aspirant direct recruitee forest guard was expected to process, there was also a requirement to undertake the Guards Examination as provided under Rule 9 of the Rules, 1969. Rule 13 of the Rules, 1969, further prescribed that, successful completion of the guards examination alone will entitle a direct recruitee to be made probationer for 1 year. The relevant excerpt of Rule 13 is reproduced for the consideration of this Hon'ble Court: 13. Candidates who successfully pass the Final Examination of the Guards Training Class, will be on probation for a period of one year.” What Rule 13 stipulates is that the candidates who successfully pass the final examination will be on a probation for a period of one year. This Rule also does not stipulate that there shall be a termination of service on failing to pass the basic training examination. 10. Assuming for the sake of argument and accepting Mr. Antani's submission on Rule 38 of the Gujarat Civil Services (General Conditions of Service) Rules, 2002 of the presumption of knowledge on behalf of the petitioner, that cannot absolve the state of its responsibilities of continuing the petitioner in service for a period of 36 years and then putting it to an end on the applicability of Rules which, in the opinion of this Court clearly did not apply to the petitioner, inasmuch as the recruitment of the petitioner was in accordance with the 1969 Rules and not in accordance with the Rules of 2004. 11. During the course of the submission, Mr.Antani had cited a decision of the Honorable Supreme Court in the case of the Chairman and Managing Director, Food Corporation of India and others v. Jagdish Balaram Bahira and others reported in 2017 (8) SCC, 670. He relied on paragraph Nos.56 and 57 which read as under: “56. Service under the Union and the States, or for that matter under the instrumentalities of the State sub-serves a public purpose. These services are instruments of governance. Where the State embarks upon public employment, it is under the mandate of Articles 14 and 16 to follow the principle of equal opportunity. Service under the Union and the States, or for that matter under the instrumentalities of the State sub-serves a public purpose. These services are instruments of governance. Where the State embarks upon public employment, it is under the mandate of Articles 14 and 16 to follow the principle of equal opportunity. Affirmative action in our Constitution is part of the quest for substantive equality. Available resources and the opportunities provided in the form of public employment are in contemporary times short of demands and needs. Hence the procedure for selection, and the prescription of eligibility criteria has a significant public element in enabling the State to make a choice amongst competing claims. The selection of ineligible persons is a manifestation of a systemic failure and has a deleterious effect on good governance. Firstly, selection of a person who is not eligible allows someone who is ineligible to gain access to scarce public resources. Secondly, the rights of eligible persons are violated since a person who is not eligible for the post is selected. Thirdly, an illegality is perpetrated by bestowing benefits upon an imposter undeservingly. These effects upon good governance find a similar echo when a person who does not belong to a reserved category passes of as a member of that category and obtains admission to an educational institution. Those for whom the Constitution has made special provisions are as a result ousted when an imposter who does not belong to a reserved category is selected. The fraud on the constitution precisely lies in this. Such a consequence must be avoided and stringent steps be taken by the Court to ensure that unjust claims of imposters are not protected in the exercise of the jurisdiction under Article 142. The nation cannot live on a lie. Courts play a vital institutional role in preserving the Rule of law. The judicial process should not be allowed to be utilised to protect the unscrupulous and to preserve the benefits which have accrued to an imposter on the specious plea of equity. Once the legislature has stepped in, by enacting Maharashtra Act XXIII of 2001, the power under Article 142 should not be exercised to defeat legislative prescription. The Constitution Bench in Milind spoke on 28 November 2000. The state law has been enforced from 18 October 2001. Judicial directions must be consistent with law. Once the legislature has stepped in, by enacting Maharashtra Act XXIII of 2001, the power under Article 142 should not be exercised to defeat legislative prescription. The Constitution Bench in Milind spoke on 28 November 2000. The state law has been enforced from 18 October 2001. Judicial directions must be consistent with law. Several decisions of two judge benches noticed earlier, failed to take note of Maharashtra Act XXIII of 2001. The directions which were issued under Article 142 were on the erroneous inarticulate premise that the area was unregulated by statute. Shalini noted the statute but misconstrued it. 57. Cooley’s Treatise on Constitutional Limitations 38 places the matter succinctly in the following terms : “An officer de jure is one who, possessing the legal qualifications, has been lawfully chosen to the office in question, and has fulfilled any conditions precedent to the performance of its duties. By being thus chosen and observing the precedent conditions, such a person becomes of right entitled to the possession and enjoyment of the office, and the public, in whose interest the office is created, is entitled of right to have him perform its duties. If he is excluded from it, the exclusion is both a public offence and a private injury.” 12. There is no dispute on the fact that in public employment, selection of ineligible persons is a manifestation of a systematic failure and has a deleterious effect on the good governance. However, what the respondents have lost sight of is a fact that apart from pressing into service of Rules and terminating the services of the petitioner after 36 years of service, what is also evident is that the Rule of 2008 is pressed into service, when in fact I would agree with Mr.Shukla's submission that the Rule of 2008 had no application inasmuch as, the recruitment Rules of 1969 were the Rules, pursuant to which the petitioner was recruited. The Rules of 2008 were only in context of the recruitment made in accordance with 2004 Rules. 13. Accordingly the petition is allowed. The impugned order of termination dated 30.4.2019 is hereby quashed and set aside. It is evident from the service record that the petitioner's date of birth is 15.8.1962. The petitioner therefore would have retired on superannuation in August, 2020. 13. Accordingly the petition is allowed. The impugned order of termination dated 30.4.2019 is hereby quashed and set aside. It is evident from the service record that the petitioner's date of birth is 15.8.1962. The petitioner therefore would have retired on superannuation in August, 2020. Having quashed the order of termination dated 30.4.2019, all consequential benefits shall be made available to the petitioner as if the petitioner was in service. Needless to say that the same would also include terminal benefits and the petitioner would be entitled to pension and pensionary benefits as per the service condition rules as if the order of termination dated 30.4.2019 was never passed. Since the order of termination is quashed and set aside, the petitioner is deemed to be in service as if the order of termination was not passed and he shall be entitled to all benefits from the date of the order of termination till the date of superannuation and all superannuation benefits will be paid to the petitioner including the pay for the period as aforesaid within a period of 8 weeks from the date of receipt of the order. 14. Rule is made absolute accordingly with no order as to costs. 15. The Registry is requested to communicate this CAV Judgment through E-mail and/or Fax.