JUDGMENT 1. :- Since on similar facts a short question in regard to discretion of the State Government in relaxing the age is involved in these writ petitions, on the request of the counsel for the parties both these cases are heard and decided by this common order. 2. Petitioner, Dr. Deepak Vyas after passing his M.B.B.S. Examination got a degree of M.D. in General Medicine. After having selected by the R.P.S.C. he was appointed as Civil Assistant Surgeon in the year 1987 and since then he is holding the same post. He acquired the qualification of super speciality in endocrinology in June, 1991. 3. The petitioner, Dr. S.K. Sharma after having completed his M.B.B.S. Course got a degree of M.D. in General Medicine in the year 1983. He got the qualification in super speciality in endocrinology in the year 1993. He was appointed as Civil Assistant Surgeon after selection by the R.P.S.C. in the year 1983. He was further appointed as Assistant Professor (Medicine) in the year 1996 after regular selection by the R.P.S.C. 4. Rajasthan Public Service Commission, respondent No.2 issued an advertisement dated 25/6/96 by which, amongst others, two posts of Lecturer/Assistant Professor in endocrinology were also notified. One post was kept reserved for S.C. The minimum required qualifications were mentioned in the advertisement as per provisions of the Rajasthan Medical Services (Collegiate Branch) Rules, 1962 (hereinafter to be referred to as the 'Rules of 1962'). 5. Both the petitioners, having requisite qualifications, submitted their applications before the Commission in pursuance to advertisement dated 25/6/1996. However, the Commission informed the petitioners that their applications have been rejected on the ground of overage. 6. The date of birth of Dr. Deepak Vyas being 15/12/1955 he was of the age of 41 years and 16 days as on 1/1/1997 and the date of birth of Dr. S.K. Sharma being 18/3/1955 he was of the age of 41 years 9 months and 13 days as on 1/1/1997. 7. Under the provisions of Rules of 1962 a candidate for direct recruitment must not have attained the age of 35 years on the first day of January following the last date fixed for receipt of applications. The same may be relaxed under certain contigencies mentioned in rule 11 of the Rules of 1962. Both the petitioners already being in service of the State Govt. The same may be relaxed under certain contigencies mentioned in rule 11 of the Rules of 1962. Both the petitioners already being in service of the State Govt. in substantive capacity could have been considered for the post upto the age of 40 years. 8. Petitioners have challenged the letter of rejection by the Commission and have also prayed that State Government be directed to give relaxation in age under rule 35 of the Rules of 1962. 9. Mr. K.K. Sharma counsel for the petitioner has submitted that after issuing of the advertisement by the Rajasthan Public Service Commission for the post of Lecturer in endocrinology the petitioner had already moved an application and representation before the State Government for giving relaxation in age in the above selections on the ground that recruitment to the post of Lecturer in super speciality or endocrinology was made for the first time by the respondents. Looking to availability of very few persons in this super speciality, for fair and proper selection, the State Govt. should give relaxation in the age. 10. Mr. Sharma has further submitted that even the Superintendent of S.M.S. Hospital, Jaipur had made a strong recommendation to the State Government for such age relaxation in the above super speciality. However, no reply was received by the petitioners from the State Govt. on the representations made by them and the recommendation made by the Superintendent, S.M.S. Hospital, Jaipur. 11. Mr. Sharma has vehemently argued that even if there is rejection of the representations by the State Govt. the discretion used by the State Govt. was wholly arbitrary without any reasons and was further not in consonance with rule 35 of the Rules of 1962. His contention is that the whole decision was taken by the State Govt. at the behest of private respondents because for two posts advertised by the Commission, only six applications were received, out of which only two persons were called for interview. Since no candidate from the category of SC applied, both the posts will be filled in from amongst the two candidates and in such circumstances the whole selection can, in no way, be called fair when there was no competition at all. 12. His another contention is that had the posts been advertised earlier, the petitioners could have been within the age limit and could have also been selected. Mr. 12. His another contention is that had the posts been advertised earlier, the petitioners could have been within the age limit and could have also been selected. Mr. Sharma has further submitted that as per reply of the State Govt. the relaxation was refused by the State Govt. initially on the ground that Rules be amended in this regard. However, subsequently when the proposal for amendment in the Rules was made, the same was turned down on the ground that there is already a relaxation clause and in given circumstances the relaxation can be given under the said clause. Thus, the whole stand of the State Govt. is contradictory and, in no way, be called justified. In peculiar circumstances of the present case, the State Govt. should have granted relaxation to get the best persons for the post of Lecturer in the super speciality subject. 13. Mr. Sharma relied upon judgment of Apex Court in the case of M.J. Sivani and others v. State of Karnataka and others reported in 1995(6) SCC 289 , Jagdish Singh v. Lt. Governor, Delhi and others reported in 1997(4) SCC 435 , Shiv Sagar Tiwari v. Union of India and others reported in 1997(1) SCC 444 , Delhi Science Forum and others Vs. Union of India and another 1996(2) SCC 405 . 14. Mr. Resham Bhargava on behalf of Mr. Ajay Rastogi, while adopting the arguments made by Mr. K.K. Sharma has submitted that no reasons have been given by the State Govt. while rejecting the representations of the petitioner. Further, the applications/representations of the petitioners were not considered by the State Govt. on merits and also objectively. 15. Mr. S.N. Kumawat, counsel for R.P.S.C. has submitted that two posts of Lecturer/Assistant Professor (endocrinology) were advertised by the Commission. Six applications were received and only two candidates were found eligible and were called for interview. The applications of the petitioners were rejected on the ground of their being overage. 16. His contention is that minimum age prescribed in the Rules is 35 years. However, the same can be relaxed upto 40 years in the case of substantive State Govt. employees. Even if the relaxation upto 40 years is given to the petitioners, the petitioners are overage so far as present selections are concerned. 16. His contention is that minimum age prescribed in the Rules is 35 years. However, the same can be relaxed upto 40 years in the case of substantive State Govt. employees. Even if the relaxation upto 40 years is given to the petitioners, the petitioners are overage so far as present selections are concerned. His main contention is that since the petitioners have already crossed the age limit of relaxation also, no further relaxation can be granted under rule 35 of the Rules of 1962. 17. It is only in exceptional cases where no candidate is available, the State Govt. having its discretion may relax the age under rule 35. However, since the candidates were available in the present case, the relaxation was rightly not granted by the State Govt. He was relied upon the judgment of Apex Court in the case of D r. Ami Lal Bhat Vs. State of Rajasthan & others reported in 1997(6) J.T.SC 72 and further, case of E. Ramakrishnan and others v. State of Kerala and others reported in 1996(10) SCC 565 . 18. Mr. V.S. Yadav, counsel for the State Govt. has submitted that the Govt. has considered the whole matter upto the level of Chief Minister and has rejected the representations of the petitioners and has also turned down the proposal for amendment in the Rules because in exceptional cases relaxation clause provided under rule 35 can always be used. Since there were no exceptional circumstances in the present case and candidates being available for the selection, the discretion used by the State Govt. was fair and proper and, in no way, be called arbitrary. It is the total discretion of the State Govt. to give relaxation. 19. Mr. Mathur, appearing on behalf of private respondents has averred that since candidates being available there was no question of giving any relaxation which can be granted only in exceptional circumstances. His further submission is that both the petitioners had acquired requisite qualifications long back. Had there been selections in earlier years, they could have been eligible at that point of time. However, the requisite eligibility has to be seen at the time of selections and since in the present case, on the cut off date, both the petitioners were not eligible so far as age is concerned. 20. Had there been selections in earlier years, they could have been eligible at that point of time. However, the requisite eligibility has to be seen at the time of selections and since in the present case, on the cut off date, both the petitioners were not eligible so far as age is concerned. 20. I have carefully gone through the entire material on record as well as the relevant Rules and have also considered the submissions made on behalf of both sides. 21. Mode of appointment to the post in question is only by way of direct recruitment under the provisions of Rules of 1962. Dispute is only in regard to age. Under rule 11 the maximum age prescribed is 35 years as on 1st day of January following the last date of receipt of applications. The first proviso is that the maximum age limit mentioned above shall be 40 years relaxable upto 45 years at the discretion of Rajasthan Public Service Commission provided no suitable candidate is available till the end of 1975. Reliance placed by counsel for the petitioner on this proviso is of no assistance in the facts and circumstances of the present case because this was applicable only upto the year 1975. The relevant proviso is proviso (vi) which may be produced here as under : "(vi) 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." 22. Both the petitioners having been in service of the State Govt. in substantive capacity were entitled to get relaxation under the above clause upto 40 years. However, admittedly, both the petitioners had crossed that upper age limit. Dr. Deepak Vyas was overage by one year 16 days and Dr. S.K Sharma was overage by one year 9 months and 13 days as on the cut of date, even after the maximum age limit provided under Clause (vi) of rule- 11. Thus, the Commission had rightly rejected their applications on the ground of their being overage. 23. The only question survives is in regard to rule 35 which gives powers to the State Govt. Thus, the Commission had rightly rejected their applications on the ground of their being overage. 23. The only question survives is in regard to rule 35 which gives powers to the State Govt. for relaxing the Rules relating to age or regarding requirement of experience. Rule is quoted here as under : "35. Power to relax rules.-In exceptional cases where the Administrative Department of the Govt. is satisfied that oepration of the rules relating to age or regarding requirement of experience for recruitment causes undue hardship in any particular case or where the Govt. is of the opinion that it is necessary or expedient to relax any of the provisions of these rules with respect to age of or experience of any persons, it may with the concurrence of the Department of Personnel and Administrative Reforms and in consultation with the Commission by orders dispense with or relax the relevant provisions of these Rules to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner, provided that such relaxation shall not be less favourable than the provisions already contained in these Rules. Such cases of relaxation shall be referred to the Raj. Public Service Commission by the Administrative Department." 24. The above rule dearly postulates that in exceptional cases where the Administrative Department is of the opinion that there is undue hardship in any particular case, may with concurrence of Department of Personnel and Administrative Reforms and in consultation with the Public Service Commission, dispense with or relax the relevant provisions so far as age or experience is concerned in a just and equitable manner. 25. In the present case, the representation was made by the petitioners for relaxation after issue of the advertisement by the Commission. The said representation was duly considered by the State Government. The matter was examined at the level of Medical and Health Department, the Department of Personnel and Administrative Reforms and also at the level of the Chief Minister as well as the Health Minister. It is only after a detailed consideration, the State Govt. took a decision not to give any age relaxation to any of the Doctors in upper age limit in the recruitment. It is only after a detailed consideration, the State Govt. took a decision not to give any age relaxation to any of the Doctors in upper age limit in the recruitment. The proposal for amendment in the Rules so far as age is concerned was also made on the ground that due to non-availability of eligible candidates many posts were lying vacant and, as such, proper amendment in the Rules, so far as age is concerned, may be made. However, the same proposal was also turned down on the ground that since there is already a relaxation clause in exceptional cases, the Govt. can always give relaxation under rule 35. Thus, the proposal for amendment was also withdrawn by the Administrative Department. 26. It is the sole discretion of the State Govt. to give relaxation under rile 35 and that may also depend upon facts and circumstances of each case. In the present case, the candidates were already available for recruitment before the Commission, no such exceptional circumstance existed before the Govt. to give age relaxation. Both the petitioners had already crossed the upper age limit under clause-vi as well. Once the petitioners had crossed the relaxed age also, no further relaxation was required to be given to them. I find no arbitrariness or unreasonableness in the decision taken by the State Govt. in not giving age relaxation to the petitioners in the facts and circumstances of the present case. 27. In Dr. Ami Lal Bhat's case a similar controversy arose and while considering rule 35 of the Rules of 1962, the Apex Court held that the power of relaxation is required to be exercised in public interest in a given case. As for example, if other suitable candidate is not available for the post and the only candidate who is suitable has crossed the maximum age limit, or to mitigate hardship in a given case. Such a relaxation in special circumstances of a given case is to be exercised by the administration after referring that case to the Rajasthan Public Service Commission. There cannot be any wholesale relaxation because the advertisement is delayed or because the vacancy occurred earlier especially when there is no allegation of any malafides in connection with any delay in issuing an advertisement. This kind of power of wholesale relaxation would make for total uncertainty in determining the maximum age of a candidate. There cannot be any wholesale relaxation because the advertisement is delayed or because the vacancy occurred earlier especially when there is no allegation of any malafides in connection with any delay in issuing an advertisement. This kind of power of wholesale relaxation would make for total uncertainty in determining the maximum age of a candidate. It might be unfair to a large number of candidates who might be similarly situated, but who may not apply, thinking that they are age barred. 28. In my opinion, the present case is squarely covered by the judgment of the Apex Court in Dr. Ami Lal Bhat's case. It is wholly hypothetical on the part of the petitioners to say that if the recruitment could have been done earlier, they would have been in the age limit. It is a well settled proposition of law that eligibility has to be considered at the time of actual recruitment as per the conditions laid down in the advertisement and as per provisions of the relevant Rules. 29. Since it is the sole discretion of the State Govt. to exercise its powers under relaxation clause, in absence of any malafides, this Court under its extraordinary writ jurisdiction cannot direct the State Govt. to act in a particular fashion and use the discretion in a particular form. 30. I have carefully gone through the judgments, cited by counsel for the petitioners, as referred to above. All the judgments are on the point of discretion and how the same should be exercised by the State Govt. under its administrative powers. Admittedly, the discretion has to be exercised in a just, fair and reasonable manner. However, while adjudicating the unreasonable- ness, each case has to be decided on its own facts and circumstances. All the decisions, cited by counsel for the petitioners were on their own facts and circumstances. In the present case, I find no illegality or unfairness in the decision taken by the State Govt. for not relaxing the age and since, admittedly, the petitioners were overage, the action of the Commission in rejecting the applications cannot be held to be illegal and unjustified. 31. In the present case, I find no illegality or unfairness in the decision taken by the State Govt. for not relaxing the age and since, admittedly, the petitioners were overage, the action of the Commission in rejecting the applications cannot be held to be illegal and unjustified. 31. Yet another submission of counsel for the petitioners is that under I the Rules of 1962 minimum qualification for the post of Senior Assistant Surgeon is M.B.B.S. whereas for the post of Lecturer in super speciality, the candidate is required to have a higher qualification. However, the sae age has been prescribed for both the posts. Since the petitioners have not challenged the validity of Rules, so far as age is concerned, the whole recruitment has to be made as per provisions of the Rules as they existed at the time of the recruitment. Moreover, the Court cannot direct the State Govt. to make certain provisions in the relevant Rules. It is for the State Govt. to make any amendments in the Rules. 32. Moreover, the above submission made by counsel for the petitioner is also of no assistance to the petitioners in the present case because both the petitioners had acquired minimum qualifications long back. It was only when the recruitment was made that they had become overage. In direct recruitment through open market, such eventualities are always incidents and accidents of selections. 33. Accordingly, I find no merit in the writ petitions and the same are dismissed. There will be no order as to costs.Petitions dismissed. *******