Equality of opportunity in public employment.

Art. 16(1) of the Constitution of India incorporates a fundamental right to the effect that there shall be equality of opportunity to all citizens of India in matters of recruitment to any office under the State. Exceptions to this general right are contained in other clauses of art. 16 itself as alsi in article 33. Article 13 prohibits the State from making any law which takes away or abridges any fundamental right and any such law, if enected, is void by operation of cl. (2) of art. 13. The Governor of Rajasthan, in exercise of powers conferred under proviso to article 309 has promulgated a rule that any person having more than two children on or after 1st June 2002 shall be disqualified for appointment to any post under the State. On a grievance being raised with the State Government, the Government has defended the rule on the ground that the rule is a result of the population policy of the State. My queries are as follows:- (1) Whether the Governor, in exercise of powers under proviso to article 309, can promulgate a rule having the effect of abridging fundamental right, without offending art. 13(2) ? (2) Whether the State of Rajasthan can use article 309 as a platform for implementing its 'population policy' ? Article 309, and for that purpose proviso thereto, are 'subject to other provisions of the Constitution' and rule-making power thereunder is confined to rules regulating recruitment and conditions of service.