JUDGMENT 1. - Petitioner has challenged the action of the Rajasthan Public Service Commission in rejecting his candidature for appointment on the post of Assistant Director, Public Relation on the ground of his having crossed the age limit of 40 years. He has also prayed that the respondents be restrained from acting upon the selection made against the posts of Assistant Director in the year 1981. It has further been prayed that the respondents be directed to treat the petitioner as eligible. A prayer has also been made that if appointments are made during the pendency of the writ petition on the basis of the impugned selections, appropriate directions may be given for quashing of the appointment orders. 2. Petitioner joined the Government service as Proof Reader in the year 1964 in the Directorate of Public Relations, Government of Rajasthan, Jaipur. He was promoted as Assistant Public Relation Officer in the year 1970 and then as Public Relation Officer in the year 1976. In 1978, he has been selected for the post of Public Relation Officer by the Rajasthan Public Service Commission. Two posts of Assistant Director, Public Relations were advertised by the Rajasthan Public Service Commission in the year 1978 vide advertisement No. 9/78-79. This advertisement appeared in the daily news-paper Rastra-doot dated 11.11.1978. The last date fixed for submission of the application was 14.12.1978. The minimum age required for recruitment to the post of Assistant Director was given out as 21 years and the maximum age as 35 years. In case of Government servants who were holding the post after regular selection, the upper age limit was relaxed by 5 years. The petitioner's date of birth being 14.1.1939 he was within age limit. He made an application to the Rajasthan Public Service Commission for being considered for appointment on the post of Assistant Director in pursuance of the Advertisement No. 9/78-79. A communication dated 8.12.1979 was sent to the petitioner calling upon him to appear before the Rajasthan Public Service Com- mission on 24.12.1979. However, the said interviews were not held and no recruitment was made by the Commission. Subsequently, the Government of Rajasthan conveyed another requisition to the Commission for 3 posts of Assistant Director, Public Relations. The Commission issued advertisement No. 10/81. This advertisement was published in the Rajasthan Patrika dated 20th November 1980. Last date for submission of application was 16.12.1980. However, the said interviews were not held and no recruitment was made by the Commission. Subsequently, the Government of Rajasthan conveyed another requisition to the Commission for 3 posts of Assistant Director, Public Relations. The Commission issued advertisement No. 10/81. This advertisement was published in the Rajasthan Patrika dated 20th November 1980. Last date for submission of application was 16.12.1980. Petitioner again applied in pursuance of this advertisement. However, this time by a communication dated 17.2.1981, the Commission informed the petitioner that his application has been rejected because he has crossed the age limit of 40 years as on 1.1.1981. Petitioner made a representation to the Commission and also to the Director, Public ]Relations pointing out that he was within age limit when the post of Assistant Director had been advertised in the year 1978. No recruitment has been made in pursuance of the advertisement of 1978 and now without any justification he was being treated ineligible. According to the petitioner, without consideration of his candidature, the Commission proceeded to hold interviews in the month of May, 1981. Ultimately, on the basis of selection made by the Com- mission, the respondents No. 3 to 5 were appointed as Assistant Directors. Petitioner has prayed that the selection be quashed and the respondents be directed to consider his case for appointment as Assistant Director. 3. In reply to the writ petition, respondent No. 1 has stated that the inter-views which were scheduled to be held on 24.12.1979 were cancelled and all candidates were informed and the fees was also returned by the Rajasthan Public Service Commission. The posts were again advertised, but since the petitioner had crossed the upper age limit, the Commission had rejected his candidature. In accordance with the provisions of the Rules, the petitioner was required to fulfil the requisite qualification with reference to age with regard to the advertisement issued in 1980 and since he did not fulfil this qualification, the Rajasthan Public Service Commission had no option but to intimate him that he was not eligible. In para 11 (a) of the reply, it has been stated that two posts of Assistant Directors were created in 1978, while one was created in 1979. No direct recruitment was made in 1979 due to exigencies of the department. 4. In para 11 (a) of the reply, it has been stated that two posts of Assistant Directors were created in 1978, while one was created in 1979. No direct recruitment was made in 1979 due to exigencies of the department. 4. The Rajasthan Public Service Commission in its reply has stated that on the basis of telephonic instructions of the Government to withdraw the advertisement due to some amendments in the rules, the Commission did not make selection. Thereafter, the Government sent fresh requisition for 3 posts of Assistant Director, Public Relations vide order dated 22.9.80. The Commission issued advertisement dated 30.10.1980. The petitioner had crossed the upper age limit on 16.12.1980 i.e. the last date fixed for receipt of application. Moreover, the age was to be calculated as on 1.1.1981 and certainly on that date, the petitioner had become over age. Six candidates were found eligible and, therefore, they were interviewed by the Commission. 5. On the stay application, notice was initially issued by the court on 16.9.81 and it was directed that the seniority of the petitioner will not be effected by any order that may be passed by the respondents. On 23.9.81, the court directed that no appointment shall be made on the post of Assistant Director on the basis of the selection made in May, 1981. This order was however vacated on 2.11.1981 on the ground that the selected candidates who are not being given appointments due to stay order, would suffer irreparable loss in the event of dismissal of the writ petition. 6. The only argument, which has been advanced by the learned counsel for the petitioner is that when the petitioner was within age limit in respect of the advertisement No. 9/78-79, there could be no justification for treating him to be ineligible merely because that advertisement was not finally acted upon and was withdrawn by the Commission under the instructions of the Government and also merely because subsequently an advertisement was issued in the year 1980 with the last date of submission of application as 16.12.1980. Shri S.K. Sharma has submitted that the Government has not placed any material on record to establish that there was any good administrative reason for withdrawal of the advertise- ment No. 9/78-79. Apparently, for some extraneous reasons that advertisement had not been acted upon. Shri S.K. Sharma has submitted that the Government has not placed any material on record to establish that there was any good administrative reason for withdrawal of the advertise- ment No. 9/78-79. Apparently, for some extraneous reasons that advertisement had not been acted upon. Shri Sharma submits that in any event the eligibility of the petitioner with reference to the requirement of age should be considered with reference to the year in which the vacancies arose in the cadre of Assistant Director, Public Relations. Shri Sharma has placed reliance on the decision in (1) Prakash Chand and others v. State of Rajasthan., 1990(2) RLR 1 . 7. Shri R.K. Sharma, learned counsel for the Rajasthan Public Service Commission has argued that the decision had been taken by the Commission on the basis of the Rajasthan Public Relations Service Rules, 1966 and it cannot be said that the Commission had committed any error in declaring the petitioner in- eligible on the ground that he had crossed the upper age limit. 8. Shri B.L. Avasthi, learned Dy. Government Advocate has supported the contention of Shri R.K. Sharma. 9. Shri Man Singh Gupta, learned counsel for respondent No. 4 submitted that his client was not at all at fault. If the Commission has found to have committed any error in not calling the petitioner for interview, there is no justification for striking down the appointment of respondent No. 4. 10. The provisions regarding the age is contained in Rule 10 of the Rajasthan Public Relations Service Rules, 1966 and the same reads as under : "10. A candidate for direct recruitment to a post enumerated in the Schedule 1 must have attained the age of 21 years and must not have attained the age mentioned in column 7 of that schedule, on the 1st day of January next following the last date fixed for receipt of applications. A candidate for direct recruitment to a post enumerated in the Schedule 1 must have attained the age of 21 years and must not have attained the age mentioned in column 7 of that schedule, on the 1st day of January next following the last date fixed for receipt of applications. Provided: (1) that the upper age limit mentioned above shall be relaxed by five years in the case of woman candidates and candidates belonging to the scheduled castes or the scheduled tribes, (2) that the upper age limit shall be relaxed by 5 years in exceptional cases with the approval of the Appointment Department, (3) that the persons appointed temporarily (to a post in the service) shall be deemed to be within the age limit when they were initially appointed even though they have crossed the age limit when they appear finally before the Commission and shall be allowed upon two chances had they been eligible as such at the time of their initial appointment; (4) that the upper age limit mentioned above shall not apply in the case of Ex-Prisoner who had served under Government on a substantive basis on any post before conviction and (5) that the upper age limit mentioned above shall be relaxable by a period equal to the term of imprisonment served in the case of Ex-prisoner, who was not over-age, before his conviction and were eligible under the rules. (6) that the upper age limit mentioned above shall be relaxable by a period equal to the service rendered in the N.G.G. in the case of Cadet Instructors and if the resultant age does not exceed the prescribed maximum age limit be more than three years, they shall be deemed to be within the prescribed age limit, (7) Notwithstanding anything contained contrary in these rules in the case of persons serving in connection with the affairs of the State in substantive capacity the upper age limit shall be 40 years for direct recruitment to posts filled in by competitive examinations or in case of posts filled in through the Commission by interview. This relaxation shall not apply to urgent temporary appointments." A perusal of the above Rule shows that the Government servant holding a post in substantive capacity is entitled to be considered to be within the age limit, if he has not crossed 40 years of age. This relaxation shall not apply to urgent temporary appointments." A perusal of the above Rule shows that the Government servant holding a post in substantive capacity is entitled to be considered to be within the age limit, if he has not crossed 40 years of age. Admittedly, two vacancies which were advertised vide advertisement No. 9/78-79 related to the year 1978 and the last date fixed for receipt of the applications being 14.12.78, the petitioner was within age limit with reference to the advertisement Exhibit 1. The Commission did issue a letter to the petitioner and called him for interview, which were scheduled to be held on 24.12.79. Just 3 days before the date fixed for interview, the Commission received a communication from the Government not to proceed with the selection. The Commission accepted the directions of the Government and cancelled the interviews and also withdrew the advertisement. Thereafter another vacancy became available for the year 1979 and an advertisement was issued once again in 1980 on the requisition of the Government for 3 posts. By the time the advertisement was issued, the petitioner had completed more than 40 years of age and on that ground the petitioner was treated as ineligible. 11. In Prakash Chand's case (supra), a similar question arose for consideration before the Division Bench to which I was a party. After examining the scheme of the Rajasthan Police Subordinate Service Rules, 1974 and Rajasthan Police Subordinate Service Rules 1989 along with Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examination), Rules, 1962 and the Rajasthan Judicial Service Rules, 1955, it was held that there is an obligation imposed by the statutory rules to determine the vacancies year wise and merely because the vacancies are not available in a particular year, candidates who were within age limit with reference to vacancies of a particular year cannot be treated as ineligible. In that case the Division Bench observed as under : "We find that in the Rajasthan State and Subordinate Service (Direct Recruitment by Combined Competitive Examinations) Rules, 1962 there is a special provision regarding the age. The candidates who are eligible in a particular year, but are rendered ineligible in the subsequent years, they are treated as eligible to appear in the examination irrespective of age requirement in case no examination is held in the particular year in which they were eligible. The candidates who are eligible in a particular year, but are rendered ineligible in the subsequent years, they are treated as eligible to appear in the examination irrespective of age requirement in case no examination is held in the particular year in which they were eligible. It would be appropriate to quote Proviso (9) to Rule 1l (B) of these rules : 11 B.Age:- Notwithstanding anything contained regarding age limit in any of the service Rules governing direct recruitment through the agency of the Commission to the posts in the State Service and in the Subordinate Services mentioned in Schedule I and in Schedule 11 respectively, a candidate for direct recruitment to the posts to be filled in by Combined Competitive Examinations conducted by the Commission under these Rules must have attained the age of 21 years and must not have attained the age of 28 years on the first day of January next following the last date fixed for receipt of applications: Provided : (1) to (8)xxxxx (9) If a candidate would have been entitled in respect of his age to appear at the examination in any year in which no such examination was held, he shall be deemed to be entitled in respect of his age to appear at the next following examination. We also notice that in the Rajasthan Judicial Service Rules, 1955 also similar provision is contained in Proviso (1) to Rule 10. This proviso is also reproduced for ready reference : 10. Age: A candidate for recruitment to the service may not have attained the age of 35 years on the first day of January next following the date of commencement of the examination by the Commission for recruitment to the Service : Provided : (i) That barring the first examination to be held under the provisions of these Rules, if a candidate would have been entitled in respect of his age to appear at an examination in any year in which no such examination was held, he shall be deemed to be entitled in respect of his age to appear at the next following examination. Thus under the Rules of 1962, for the posts included in the Rajasthan Administrative Service, Rajasthan Police Service, Rajasthan Accounts Service, Rajasthan Cooperative Service, Rajasthan Employment Exchange Service, Rajasthan State Insurance Service, Rajasthan Commercial Taxes Service, Rajasthan Subordinate Devsthan Service, Rajasthan Subordinate - Cooperative Service, R.T.S. Service, Rajasthan Commercial Taxes Subordinate Service, Rajasthan Food and Civil Supplies Subordinate Service and the various posts under the Rajasthan Subordinate Service (Recruitment and other Service Conditions) Rules, 1960 as well as under the Rajasthan Judicial Service Rules, 1955, a candidate is not denied consideration for direct recruitment on the ground of age limitation if he was within the age limit in a year in which the examination was not held. These provisions contained in the rules of 1962 as well as the rules of 1955 are intended to protect the rights of the persons against the failure of the competent authorities to hold selections for direct recruitment year wise. The Rules of 1962 and the Rules of 1955 give benefit of relaxation in upper age limit, if examination is not held in a particular year. Even this is not necessary that there must have existed vacancies in that particular year. If the competent authority makes determination of vacancies for direct recruitment quota in the year in which the vacancies occur, no such difficulty could arise. However, in practise we find that the Rajasthan Public Service Commission as well as other appointing authorities are having multifarious functions to perform. The RPSC is required to make recruitment for over 50 services apart from consultative functions in the matter of framing of service rules and disciplinary actions in respect of the gazette officers. It is more or less impossible for the RPSC to make regular selection year wise. That leads to a situation where large number of eligible candidates are rendered ineligible on account of their having become over-age merely because in the particular year when they were eligible, recruitment is not made by the Competitive body or Commission or other authority. We do not find any justification as to why a provision like one contained in Rule 11 B of 1962 Rules or Rule 10- of 1955 Rules has not been made in other Rules, This would have eliminated wholly unnecessary litigation of this nature. We do not find any justification as to why a provision like one contained in Rule 11 B of 1962 Rules or Rule 10- of 1955 Rules has not been made in other Rules, This would have eliminated wholly unnecessary litigation of this nature. However, once we have held that there is an obligation to make year wise determination of vacancies for direct recruitment as well as promotion, the competent authority cannot avoid this responsibility by sheer inaction or omission and failure on the part of the competent authority cannot be used as a basis for denying eligibility to those who are eligible in a particular year but becomes ineligible on account of absence of determination of vacancies on yearly basis. So far as the promotion quota posts are concerned, all problems regarding eligibility etc. are solved in view of the provisions contained in Rule 9(2) of 1974 Rules and Rule 10(2) of 1989 Rules. For direct recruitment quota, we have to take notice of rule 9(1) and particularly, Clause (c) of 1974 Rules and Rule 10(1)(c) of 1989 Rules. We are of the view that the vacancies for direct recruitment must also be deter- mined on yearly basis and efforts should be made to fill those vacancies during the course of the year. After determination of vacancies, the same shall be advertised immediately or within reasonable time, so that the candidates who are eligible can apply. The process of selection may be completed at a subsequent point of time. In that event, the disputes relating to eligibility with reference to age and qualifications would be obviated. For the subsequent years, the same very process can be repeated. After the vacancies of different years are advertised the process of selection shall be held separately and penal shall be drawn separately, so that the charge of clubbing the vacancies may also not be levelled against the appointing authority. If, on account of administrative difficulties, vacancies for direct recruitment cannot be filled in for a particular year, the candidates who are within the age limit with reference to the vacancies of a particular year must be treated as eligible even if the selection is held subsequently." 12. Prakash Chand's case has been referred to with approval by another Division Bench judgment in Dr. Prakash Chand's case has been referred to with approval by another Division Bench judgment in Dr. Rajeev Mathur v. State of Rajasthan and others, reported in 1991(2) RLR 113, decided on 14.2.91 in which the Division Bench has observed as under : "The scheme of the Rules of 1962, when read as a whole, appears to be that the Appointing Authority should determine the number of vacancies 2. reported in 1991(2) RI.R 113 every year. Prior to the amendment of Rule 8-A, the determination of vacancies had to be made at the beginning of each year in respect of vacancies anticipated during the following 12 months, and there had to be a redetermination before the expiry of 12 months of the last determination of the vacancies. Obviously, when determination of the vacancies had to be made each year, the process of recruitment or promotion to the vacancies deter- mined was to start soon thereafter. This is borne out from the various other provisions in the Rules. Proviso 1 to Rule 7, provides that if the Government is satisfied in consultation with the Commission that suitable persons are not available for appointment by either method of recruitment in a particular year, appointments by either method in relaxation of the prescribed proportion may be made in the same manner as is specified in these Rules. Rule 8(4) inter alia states that in the event of non-availability of a sufficient number of eligible and suitable candidates amongst the Scheduled Castes and Scheduled Tribes, as the case may be, in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure, and an equivalent number of additional vacancies shall be reserved in the subsequent year. Such of the vacancies which remain so unfilled, shall be carried forward to the subsequent to the three recruitment years in total. Proviso to Rule 24-A(4) states that if the committee is satisfied that suitable persons are not available for selection by promotion strictly on the basis of merit in a particular year, selection by promotion on the basis of seniority-cum-merit may be made in the same manner as specified in the Rules of 1962. Proviso to Rule 24-A(4) states that if the committee is satisfied that suitable persons are not available for selection by promotion strictly on the basis of merit in a particular year, selection by promotion on the basis of seniority-cum-merit may be made in the same manner as specified in the Rules of 1962. These rules are clearly indicative of the fact that yearly determination of vacancies and yearly recruitment and promotions to the vacancies, was contemplated by the Rules." The Division Bench in Rajeev Mathur's case then referred to some decision to which reference was made by the counsel for the respondents and observed that the question which arose for consideration in RPSC v. Dhamyanti Dadhich 1983 RLR 473 was quite different. The Division Bench then quoted a portion of Prakash Chand's judgment to which reference had already made here in above. It then proceeded to observe : "We agree with the above proposition, based on the interpretation of the rules. The emphasis on the determination of vacancies, is further clear from the fact that after the amendment to Rule 8-A of the Rules, 1962 with effect from 1st April, 1981, even the date on which the determination of vacancies is to be made, has been specified in the rule by providing that the appointing authority shall determine on 1st of April every year, the actual number of vacancies occurring during the financial year. We may also express ourselves on the question as to for which period the vacancies have to be determined under Rule 8-A of the Rules of 1962. Before its an amendment, Rule 8-A clearly provided that the determination of vacancies was to be in respect of the following 12 months each year, i.e., determination was to be made of anticipated vacancies of the following year. In our view, that position has not been altered even after the amendment. The expression, "the actual number of vacancies occurring during the financial year" denotes the current financial year starting from 1st of April of the year in which the determination is made. It cannot be construed that determination is made on 1st of April every year of the existing vacancies, upto the date of determination. As a matter of fact, the determination has to be made of the vacancies which would be occurring during the financial year, starting from the date of determination of the vacancies. It cannot be construed that determination is made on 1st of April every year of the existing vacancies, upto the date of determination. As a matter of fact, the determination has to be made of the vacancies which would be occurring during the financial year, starting from the date of determination of the vacancies. It was not the intention of the rule making authority that vacancies should remain unfilled for the previous year and be filled only after their determination, at the beginning of the next financial year. The object of the rules is fulfilled by filling the vacancies rather than by not filling them. We may refer in this connection to the decision of this Court in Manohar Nagora v. State of Rajasthan ( 1986(3) SLR 559 ) . The facts of this case were that the posts of Assistant Director of Archives, were created by order dated 29th Sept.'82. His Lordship SC Agarwal, J. (as he then was) observed on the question as to which period the vacancy related, as under : "I am satisfied that proposal for creation of one additional post of Assistant Director of Archives was included in the budget proposals for the Archives Department which was submitted in the State Legislative Assembly on 3rd March, 1982 was approved by the State Legislative Assembly on 20th March 1982, and the post of Assistant Director, Archives was created by order dated 29th Sept., 1982 in accordance with these proposals. It can, therefore, be said that one post of Assistant Director, Archives, was under contemplation on 1st April, 1982 and the said post of Assistant Director of Archives can be treated as anticipated vacancy which was expected to occur during the year 1982-82. The said vacancy on the post of Assistant Director, Archives, was, therefore, covered by Rule 9 of the Rules... Once it is held that the additional post of Assistant Director of Archives created by notification dated 29th Sept., 1982, is a vacancy occurring in the year 1982-83 and promotions on the said post has to be made from amongst persons who were eligible for promotion in terms of sub-rule (2) of rule 24A of the Rules, it is evident that the petitioner could not be considered eligible for that post because on 1st April, 1982, he did not possess the requisite experience of five years on the post of Archivist. It is clear from the above decision that the post created on 27th Sept., 1982 was held to be a vacancy occurring in the year 1982- 83 and an anticipated vacancy determinable on 1st April. 1982. This lends support to our view that determination of vacancies under Rule 8-A on 1st April every year has to be made of the actual number of vacancies occurring during the financial year commencing from 1st of April every year. The sole object of changing the date of determination of vacancies from the beginning of the year to 1st April every year was that by this date the annual budget is passed by the Assembly, and the appointing authority is very much clear about the actual number of vacancies occurring during the financial year. It is true that there may be cases where due to temporary urgent necessities, the State Government may create some posts, which are not anticipated on 1st April. To-meet such situations, there is ample provision in Rule 30 of the Rules of 1962, to make urgent temporary appointments." The Division Bench also struck down the part of rule 11(1) which requires the determination of age on first date of January following the year in which applications are invited." 13. In The State of Andhra Pradesh v. T. Ramakrishna, 1971(1) SLR 453 , a Constitution Bench of the Supreme Court was dealing with the case where the posts had been advertised by the Rajasthan Public Service Commission under Rule (1) declared invalid by the High Court subsequently and the Commission had invited fresh applications under the amended rule as per the directions of the High Court. While holding that there was nothing erroneous in the action of the Commission in inviting the fresh applications under the amended rule, the Supreme Court directed that those candidates who had applied under the earlier advertisement and who had become age barred because of delay in holding examination, they should not be disqualified from appearing in the examination if they were of the qualified age at the time of filing of the application. 14. 14. All the decisions referred to here in above clearly lead to the following conclusions : (a) that it is mandatory for the appointing authority/ competent authority to make year wise determination of vacancies under the various service rules framed under proviso to Article 309 of the Constitution by the Governor of Rajasthan. (b) the determination of vacancies has to be made for direct recruitment as well as for promotion. (c) that the candidates who fulfil the requirement of conditions regarding age cannot be treated as ineligible merely because the Commission or the competent authority has failed to make advertisement of the vacancies, if against the vacancies of a particular year the candidate was eligible. (d) the candidate cannot be deprived of a right to be selected merely because at the time of actual selection, the candidate has crossed the upper age limit. 15. In Prakash Chand's case the Court had taken notice of the fact that so far as the rules of 1982 are concerned, a candidate is eligible irrespective of the fact whether vacancies for direct recruitment are available in a particular year or not. The only relevant consideration is that if examination has not been held in a particular year and the candidate has crossed the upper age limit subsequently, he has to be treated as eligible at the subsequent examination. 16. Apart from what has been observed by the Division Benches, I Would like to observe that a large number of cases are coming to the courts every now and then in which the controversy relating to the age limit of the candidates who apply for direct recruitment are raised. If the competent authorities properly apply themselves to the scheme of the rules, this unnecessary litigation can be avoided. For doing this, the competent authority must determine the vacancies as on 1st April every year. Such vacancies must be advertised by the Rajasthan Public Service Commission or by other authority. The age limit should be considered with reference to the point of time of the determination of vacancies. This would be perfectly in tune with the requirement of eligibility laid down for promotion quota because in the relevant service rules, for the purpose of promotion quota, the eligibility qualification, zone of consideration, record etc. The age limit should be considered with reference to the point of time of the determination of vacancies. This would be perfectly in tune with the requirement of eligibility laid down for promotion quota because in the relevant service rules, for the purpose of promotion quota, the eligibility qualification, zone of consideration, record etc. are required to be looked into as on 1st April of the year in which the vacancies relate irrespective of the fact that the vacancies are actually filled in a subsequent year. Once the vacancies are advertised by the Rajasthan Public Service Commission or the competent authority and the applications are invited from the eligible per- sons, much of the controversy relating to age qualifications etc. will be solved. 17. So far as the present case is concerned, it is evident from the facts which have come on record that the vacancies were not only available and determined for the year 1978 but the Rajasthan Public Service Commission had in fact issued advertisement, called for applications and issued interview letter to the petitioner. The petitioner was treated as eligible and in fact he was eligible from all points of view. He became over age because the State Government gave directions to the Commission not to proceed with the selection and the Commission withdrew the advertisement. The petitioner was not at-all at fault. The situation in which the petitioner has been treated as ineligible was a creation of the Government and the Commission. In my opinion, there was no justification for the Commission to have treated the petitioner as ineligible on the ground of his having crossed the age limit of 40 years on 16.12.80 or as on 1.1.81. In view of the law laid down in Prakash Chand's case, it has to be held that the Commission was in error in treating the petitioner as ineligible for being considered for selection on the post of Assistant Director, Public Relations. The petitioner has been subjected to hostile discrimination by not being called for interview, although he was fully qualified and eligible for that purpose. The decision of the Commission is founded on reasons which are not sustainable in law and is, therefore, liable to be declared as unlawful. 18. The petitioner has been subjected to hostile discrimination by not being called for interview, although he was fully qualified and eligible for that purpose. The decision of the Commission is founded on reasons which are not sustainable in law and is, therefore, liable to be declared as unlawful. 18. Shri M.I. Khan, Additional Advocate General and Shri R.K. Sharma, Advocate, submitted that the Government had a right to keep the post unfilled in terms of the provisions of 1966 Rules and in that event no right can be claimed by any person to be appointed on a particular post. In may opinion, this argument is wholly misconceived in the context of the facts of the present case. There is nothing on record to show that any decision was taken by the Government not to fill the post. On the contrary, the Government had taken a positive decision to fill the post. Requisition was sent to the Rajasthan Public Service Commission. The Commission advertised the posts, called for applications and issued interview letters. Thus, the argument of the learned counsel for Respondents is not based on the material available on the record and is wholly untenable. 19. The result of the above discussion is that this Writ Petition succeeds and is hereby allowed. The selection made by the Rajasthan Public Service Commission is declared to be illegal. However, so far as relief part is concerned, I am of the view that it will not he proper to quash the appointments of respondents No. 3 to 5 after a period of 9 years. Learned counsel for the petitioner himself amitted that these persons have received promotions on higher posts of Deputy Directors. It will result in grave injustice to these persons, if their appointments are quashed in the year 1991. The only appropriate relief which should now be given to the petitioner is to direct the respondent State of Rajasthan to create supernumerary post in the cadre of Assistant Director, Public Relations and to direct the R.P.S.C. to consider the candidature of the petitioner against such supernumerary post. In case he is found suitable by the R.P.S.C. for appointment on the post of Assistant Director, the petitioner should be given appointment on the post of Assistant Director, Public Relations. In that event the appointment of the petitioner should relate back to the year in which respondents No.3 to 5 were appointed. In case he is found suitable by the R.P.S.C. for appointment on the post of Assistant Director, the petitioner should be given appointment on the post of Assistant Director, Public Relations. In that event the appointment of the petitioner should relate back to the year in which respondents No.3 to 5 were appointed. He will be entitled to be placed below respondents No. 3 to 5 so far as seniority is concerned. He will not be entitled to actual monetary benefits till the date of appointment as a result of fresh selection. However, he will be entitled to all other benefits as a result of selection. This exercise should be completed within six months from the date of presentation of copy of this order before the Government. 20. Parties are left to bear their own costs.Petition allowed. *******