JUDGMENT 1. - The petitioner has prayed in this writ petition that letter dated 27.2.91 issued by the Rajasthan Public Service Commission, by which his candidature for the post of Assistant Professor in Cardiothoracic and Vascular Surgery has been rejected, be quashed and the Rajasthan Public Service Commission be directed to interview him for that post and in case the petitioner succeeds in the interview, direction may be given for his appointment on that post. 2. The petitioner has stated that he passed M.B.B.S. Examination in 1974. He did M.S. in the year 1979 and then did his M.Ch. in Cardiothoracic Surgery in December, 1988 from Chandigarh. He worked as Resident Registrar in Cardiothoracic Surgery at Bombay Hospital and Medical Research Centre of Bombay Hospital Trust between 17.6.85 to 16.7.1986. He was appointed as temporary Civil Assistant Surgeon vide Government of Rajasthan order dated 3.9.80. Thereafter, he was selected by the Rajasthan Public Service Commission for the post of Civil Assistant Surgeon and he was appointed substantively as Civil Assistant Surgeon by order dated 17.2.81. This order finds reference in another order of the Director, Medical and Health Service, Rajasthan issued on 26.3.81 regarding postings of Civil Assistant Surgeon. 3. The Government of Rajasthan sanctioned temporary post of Assistant Professor in Cardiothoracic and Vascular Surgery under the B.F.C. Plan 1989-90 vide order dated 2.1.90. The Rajasthan Public Service Commission issued advertisement No. 4/90-91 dated 30.10.90 and two vacancies of the Assistant Professor in Cardiothoracic Surgery were advertised. One was reserved for Scheduled Castes candidates. The maximum age limit came to be indicated as 35 years as on 1.1.91. For in-service candidates the maximum age limit has been prescribed as 40 years. He has referred to a Government notification dated 27.12.78 by which rule authorising the Government of relaxing the age requirement or experience requirement, has been inserted in various service rules. 4. The petitioner applied for the post of Assistant Professor in Cardiothoracic Surgery. He also indicated that he had applied for relaxation of age. The petitioner's candidature has, however, been rejected by the RPSC on the ground that he is overage and he has been intimated about rejection of his candidature vide letter dated 27.2.91. The petitioner has referred to case of Dr. M.K. Mathur, in whose case the Government has granted relaxation in the upper age limit. The petitioner's candidature has, however, been rejected by the RPSC on the ground that he is overage and he has been intimated about rejection of his candidature vide letter dated 27.2.91. The petitioner has referred to case of Dr. M.K. Mathur, in whose case the Government has granted relaxation in the upper age limit. The petitioner has given out that his date of birth is 8.4.1950 and he was within age limit of 40 years 7.4.90. 5. By an interim order of the Court dated 29.3.91 the Rajasthan Public Service Commission was directed to interview the petitioner for the post of Assistant Professor in Cardiothoracic Surgery. Subsequently, on 24.7.91 the Court has directed the respondents to produce the result of the petitioner's interview in a sealed envelop. The result of the petitioner was produced in sealed envelop on 9.8.91. After perusal of the result it was appropriate to hear the matter on merit and direction was given to the respondents not to fill one post of Assistant Professor in Cardiothoracic Surgery. 6. The only contention advanced by the learned Counsel for the petitioner is that the petitioner was fully eligible for selection in the year 1989 and also in the year 1990. However, no advertisement of the post of Assistant Professor in Cardiothoracic Surgery had been made after the year 1988. For the year 1990 also the advertisement was delayed considerably. The petitioner was holding the post of -Civil Assistant Surgeon in a substantive capacity and therefore, he was fully eligible to be considered for appointment against the vacancies of 1989-90 and 1990-91. He has placed reliance on the decision of a Division Bench in Prakash Chand v. State of Rajasthan and another 1990(2)RLR 1 and another judgment dated February 14, 1991 in D.B. Civil Writ petition No. 1059/88 Dr. Rajeev Mathur v. State of Rajasthan and others, 1991(2) RLR 113 . He pointed out that the decision of the judgment in Rajeev Mathur's case has been upheld by the Supreme Court in as much as the Special Leave Petition preferred against the judgment of the High Court has been dismissed. 7. Learned Counsel for the respondents argued that the petitioner has already crossed the age limit when the posts were advertised by the RPSC and therefore, there is no justification in the claim of the petitioner that he should be treated as eligible. 8. 7. Learned Counsel for the respondents argued that the petitioner has already crossed the age limit when the posts were advertised by the RPSC and therefore, there is no justification in the claim of the petitioner that he should be treated as eligible. 8. In Prakash Chand's case (supra) the Court had examined the provision regarding age limit contained in the Rajasthan Police Subordinate Service Rules, 1974, Rajasthan Police Subordinate Service Rules, 1989 and after taking note of the provisions contained in the Rajasthan State and Subordinate Services (Direct recruitment by combined competitive Examination) Rules, 1%2 and some other rules it was observed as under:- "We find that in the Rajasthan State and Subordinate Service (Direct Recruitment by Combined Competitive Examinations) Rules, 1%2 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. It would be appropriate to quote Proviso (9) to Rule 11 (B) of these Rules : 11 B. Age-Not with standing anything contained regarding age limit in any of the service Rules governing direct recruitment though the agency of the Commission to the post in the State Service and in the Subordinate Services mentioned in scheduled I and in schedule II 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)****** (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. 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: (1) 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 post included in the Rajasthan Administrative Service, Rajasthan Police Service, Rajasthan Accounts Service, Rajasthan Co-operative Service, Rajasthan Employment Exchange Service, Rajasthan State Insurance Service, Rajasthan Commercial Taxes Service, Rajasthan Subordinate Devasthan 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 gives 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 makes determination of vacancies for direct recruitment quota on yearly basis and fill them up regularly 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. However, in practise we find that the Rajasthan Public Service Commission as well as other appointing authorities are having multifarious functions to perform. The R.P.S.C. 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 gazetted 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 Rules 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. 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 panel 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." 9. The decision in Prakash Chand's case has been followed in Rajeev Mathur's case. In Rajeev Mathur's case 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 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 vacancies had to be made each year, the process of recruitment or promotion to the vacancies determined 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. 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." 10. 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 been 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 the 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 occur- ring 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 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 3. 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 3. 1983 RLR 473 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 un-filled 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 the 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., 1982. His Lordship SC Agrawal, 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 Ar- chives 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...... The said vacancy on the post of Assistant Director, Archives, was, therefore, covered by Rule 9 of the Rules...... Once it is held that 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 have 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 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 Apr., 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. 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 1%2, to make urgent temporary appointments." 11. 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. 12. The above referred two decisions make it clear that it is the obligation of the appointing authority to determine the vacancies for the direct recruitment as well as promotion every year. It has also been held that the vacancies which are occurring during the financial year should be taken a note of for the purpose of determination in a particular year. It has also been held that the vacancies which are occurring during the financial year should be taken a note of for the purpose of determination in a particular year. In Prakash Chand's case the Court has indicated the procedure which should be followed for the purpose of filling the direct recruitment quota vacancies. 13. Apart from what has been held in the two cases referred herein above I would like to observe that various controversies which arise in relation to age limit of the candidates who apply for direct recruitment, can easily be solved if the age limit of the candidates is determined with reference to first April of the year to which the vacancy relates. So far as the promotion quota vacancies are concerned, it is abundantly clear from the scheme of the various service rules that not only the determination of vacancies is to be made on 1st April but the eligibility, qualifications, zone of eligibility, record etc. have also to be taken into consideration as on 1st April of the year, for which the vacancies are determined. Rules, 8A and 24A (1), (2) of the Rajasthan Medical Service (Collegiate Branch) Rules, 1962 read as under:- 8A-Determination of vacancies: 1.(a) Subject to the provisions of these rules, the Appointing Authority shall determine on 1st April every year, the actual number of vacancies occurring during the financial year. (b) Where a post is to be filled in by a single method as prescribed in the rule or Schedule, the vacancies so determined shall be filled in by that method. (c) Where a post is to be filled in by more than one method as prescribed in the rules or schedule, the apportionment of vacancies, determined under clause (a) above, to each such method shall be done maintaining the prescribed proportion for the overall number of posts already filled in. If any fraction of vacancies is left over, after apportionment of the vacancies in the manner prescribed above, the same shall be apportioned to the quota of various methods prescribed in a continuous cyclic order giving precedence to the promotion quota. If any fraction of vacancies is left over, after apportionment of the vacancies in the manner prescribed above, the same shall be apportioned to the quota of various methods prescribed in a continuous cyclic order giving precedence to the promotion quota. (2) The Appointing Authority shall also determine the vacancies of earlier years year wise which were required to be filled in by promotion, if such vacancies were not determined and filled earlier in the year in which they were required to be filled in." "24A (1) As soon as the Appointment Authority determines the number of vacancies under rule regarding determination of vacancies of these rules and decides that a certain number of posts are required to be filled in by promotion, it shall, subject to provisions of sub-rule (9), prepare a correct and complete list of the senior-most persons who are eligible and qualified under these rules for promotion on the basis of seniority-cum-merit or on the basis of merit to the class of posts concerned. (2) The person enumerated in Column 5 or the relevant Column regarding "post from which promotion is to be made" as the case may be, of the relevant Schedule shall be eligible for promotion to posts specified against item in Column 2 thereof to the extent indicated in Column 3 subject to their possessing minimum qualifications and experience on the first day of the month of April of the year of selection as specified in Column 6 or in the relevant Column regarding "minimum qualification and experience for promotion" as the case may be." 14. The perusal of the aforesaid rules show that the 1st April is the crucial date for determination of vacancies as also for determination of the eligibility etc. of the candidates. 15. Now determination for direct recruitment has also been held to be mandatory by the judgments of this Court in Prakash Chand's case (Supra) and Rajeev Mathur's case (Supra). Therefore, if 1st April of the year of vacancy is taken into consideration for the purpose of computation of the age limit, most of the difficulties, complications and much of the litigation can be avoided. 16. So far as the present case is concerned, it is evident that the post had not been advertised for the year 1989-90 at all. The post in question also relating to the year 1990-91. 16. So far as the present case is concerned, it is evident that the post had not been advertised for the year 1989-90 at all. The post in question also relating to the year 1990-91. The petitioner was fully eligible for the year 1989-90 and 1990-91. Merely because the post was not advertised in 1989 or in the earlier part of the year 1990, the petitioner cannot be made to suffer. The Public Service Commission has seriously erred in rejecting the candidature of the petitioner on the ground of his being over age. He has to be treated as eligible with reference to the vacancy which became available for 1990-91. 17. The writ petition is, therefore, allowed. Rejection of the petitioner's candidature by the Commission on the ground that he had become overage is declared illegal. Letter dated 27.2.91 of the Rajasthan Public Service Commission is quashed and set aside. Rajasthan Public Service Commission is directed to forward the name of the petitioner alongwith other selected candidates in accordance with the merit assigned to them and the respondent, Government is directed to take action for appointment on the posts of Assistant Professor in Cardiothoracic Surgery according to the merit assigned by the RPSC. This must be done within a period of six weeks from the date of presentation of the copy of the order.Colt made easy.Petition allowed. *******