JUDGMENT 1. - The petitioner applied for the post of Assistant Public Prosecutor Gr.II in pursuance to advertisement No. 1/1997- 98 issued by the Rajasthan Public Service Commission. The age prescribed for the above post was from 21 years to 33 years as on 1.1.1998. Petitioner, though, was having the requisite qualification, had become overage as per age prescribed in the advertisement and, as such, has filed this writ petition challenging his non- consideration on the ground that since no recruitment was made to the post of Assistant Public Prosecutor Grit since 1993, the petitioner should have been given the age relaxation for the years for which no recruitment was made. 2. In the writ petition, the petitioner has prayed that action of respondents in not determining the vacancies and not conducting the examination year-wise and not giving the relaxation in the age limit to the petitioner and other similarly situated candidates who had become overage during the period from 1993, be declared arbitrary, discriminatory and unjustified. The petitioner has further challenged the cut of date as on 1.1.1998 and has prayed that the respondents be directed to consider the application of the petitioner and give him appointment if he found to be suitable. 3. Mr. A.K. Bajpai, counsel for the petitioner, has submitted that the State Government was duty bound to determine the vacancies year-wise and further, make recruitment each year. Since no recruitment was made during the years 1993 to 1997, the petitioner and other similarly situated persons should have been given age relaxation for the above years. Mr. Bajpai, learned counsel for the petitioner has heavily relied upon decision of Division Bench of this Court in the case of Prakash Chand and others v. State of Rajasthan and others, reported In 1990 RLR page 1. 4. The echo of Prakash Chand's case still looms large and the case is often cited whenever any recruitment is under challenge. 5. In Prakash Chand's case the Division Bench of this Court was considering the case of recruitment to the post of Constable in Civil Police/RAC for different Districts and Units in the State. 6. An advertisement was issued on 21.12.1988 by the Director General of Police for filling up the posts of Constables. The advertisement was issued in terms of provisions contained in Rajasthan Police Subordinate Service Rules 1974. 6. An advertisement was issued on 21.12.1988 by the Director General of Police for filling up the posts of Constables. The advertisement was issued in terms of provisions contained in Rajasthan Police Subordinate Service Rules 1974. The applications were received and selections were scheduled to be held on different places from 20th January, 1989 to 19th February, 1989. The age prescribed at the relevant time was 18 years to 25 years as on 1.1.1990. 7. The selections were, however, kept in abeyance vide notification dated 27.12.1989. A fresh advertisement was issued on 19.8.1989 and the age prescribed was between 18 years to 21 years as on 1.1.1990 with certain relaxation in age to the candidates belonging to SC and ST and woman candidates and other such categories. 8. The main contention of the petitioners before the Divisions Bench was that since they were eligible in pursuance to earlier advertisement, they could not have been deprived of their selections in view of subsequent amendment and fresh advertisement issued by the respondents, as such, validity of amendment in the Rules was also challenged. 9. The Division Bench without deciding the question of vires of rules regarding the age, after examining the scheme of the rules, held that there is an obligation on the part of the State Government to determine the vacancies for direct recruitment as well as for promotion every year and thereafter, the Division Bench observed here as under : "Once we have held that there is an obligation to make yearwise 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 s 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. 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 determined 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 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." 10. Prakash Chand's case (supra) came to be considered by another Division Bench of this Court in the case of. Rajasthan Council of Diploma Engineers v. The State of Rajasthan and another and other connected writ petitions, reported in 1991 (2) WLC (Raj.) page 597. 11. While making above observations in Prakash Chand's case this Court took a note of the fact that in some of the service Rules there is a provision that if recruitment is not held for some years, the candidates will be entitled for age relaxation for those years if they were within age limit during that period. 12. Again, in the case of Dr. 12. Again, in the case of Dr. Omnarain Purohit v. State of Rajasthan and others, reported in 1992 (3) WLC (Raj.) 641 , while relying upon the judgment of Prakash Chand's case, the Court held that since the respondents have failed to make year wise determination of vacancies for direct recruitment and have also failed to advertise the vacancies, candidates like petitioners cannot be treated as ineligible merely because they have crossed the age limit for the relevant selections because for earlier years i.e. for the years 1985, 86, 87 and 1988 no recruitment was made by the State Government. 13. Relying upon the judgment of this Court in Dr. Omnarain Purohit's case (supra) and also Prakash Chand's case the Division Bench of this Courf in the case of Smt. Anand Kanwar v. State of Rajasthan and others, D.B. Civil Writ Petition No. 2883/1990, decided on 8.4.1992 held that the last advertisement was issued in the year 1983 and the present advertisement has been issued in the year 1989 i.e. after a lapse of about 6 years and the petitioner has completed her age of 40 years in the year 1986. Since it has been held in the case of Dr. Omnarain Purohit that if yearwise vacancies are not determined and if the advertisements are issued to fill up the vacancies of six years by the one advertisement, then the person's candidature cannot be rejected on that ground. 14. The Division Bench, further relying upon the observations of the Court in Dr. Omnarain Purohit's case, held that there is an obligation to make year wise determination of vacancies of direct recruitment as well as of 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 become ineligible on account of absence of determination of the vacancies. Thus, while allowing the writ petition, the Court directed the Rajasthan Public Service Commission to consider the application of the petitioner treating her within age limit and if found suitable to give her appointment within three months. 15. Both, in Dr. Thus, while allowing the writ petition, the Court directed the Rajasthan Public Service Commission to consider the application of the petitioner treating her within age limit and if found suitable to give her appointment within three months. 15. Both, in Dr. Om Narain Purohit's case and Smt. Anand Kanwar's case, same set of Rules were under challenge in which there was no provision for giving age relaxation for the years when no recruitment taken place. 16. The decision of Division Bench of this Court in Smt. Anand Kanwar's case came to be challenged by the Rajasthan Public Service Commission by way of filing a Special Leave Petition before the Apex Court. The Apex Court while allowing the Civil Appeal No. 52/1993 vide order dated 8th of February, 1995 made serious observations on the decision given by the Division Bench of this Court. The Apex Court while quoting the relevant para, as already quoted above by the Division Bench in Smt. Anand Kanwar's case observed as under "We are of the view that the High Court fell into patent error bordering on perversity in issuing the mandamus on the reasoning quoted above. It is settled proposition of law that the eligibility of a candidate has to be determined on the basis of the terms and conditions of the advertisement in response to which the candidate applies. There is nothing on the record to show that the State Government was In any manner negligent or at fault in not making the direct recruitment during the period 1983-89. Be that as it may, the High Court was not Oak-, justified In taking the clock back to the period when unfilled vacancies were existing and holding that since the respondent was eligible on the date when vacancies fell vacant, she continues to be so lib till the time the vacancies are filled. Due to inaction on the part of the State Government in not filling the posts year-wise, the respondent cannot get a right to participate in the selection 'despite being over-aged." 17. A similar question came for consideration before the Apex Court in the case of J & K Public Service Commission and other v. Dr. Due to inaction on the part of the State Government in not filling the posts year-wise, the respondent cannot get a right to participate in the selection 'despite being over-aged." 17. A similar question came for consideration before the Apex Court in the case of J & K Public Service Commission and other v. Dr. Narinder Mohan and others, reported in 1994(2) SCC 630 , wherein the Apex Court held that the recruitment has to be made as per the relevant provisions of the Rules as they exist at time of selections and all eligible persons shall be entitled to participate in the process of recruitment at the relevant time. The Apex Court observed as under "it is difficult to accept the contention of Shri Rao to adopt the chain system of recruitment by notifying each year's vacancies and for recruitment of the candidates found eligible for the respective years. It would be fraught with grave consequences. It is settled law that the Government need not immediately notify vacancies as soon as they arose. It is open, as early as possible, to inform the to vacancies existing or anticipated to the PSC for recruitment n0i and that every eligible person is entitled to apply for and to be 119: considered of his claim for recruitment provided he satisfies the prescribed requisite qualifications. Pegging the recruitment in chain system would deprive all the eligible candidates as on date of inviting application for recruitment offending Articles 14 and 16. 18. In view of the clear observations made by the Apex Court in the above two judgments, I am of the view that judgment of Division Bench of this Court in Prakash Chand's case is impliedly over-ruled. 19. So far as challenge to cut of date fixed as on 1st of January is concerned, the same has already been upheld by Full Bench of this Court in the case of Surendra Singh Rao and 28 others v. State of Rajasthan and others and other connection writ petitions reported in 1995 (1) WLC (Raj.) page 197. 20. Admittedly, there is no provision under the present Rules as in some other Rules that candidates will be entitled for age relaxation in case no recruitment is made in particular years: The petitioner having become over-age and not entitled for any age relaxation under the relaxation clauses cannot get any relief in the present writ petition. 21. 20. Admittedly, there is no provision under the present Rules as in some other Rules that candidates will be entitled for age relaxation in case no recruitment is made in particular years: The petitioner having become over-age and not entitled for any age relaxation under the relaxation clauses cannot get any relief in the present writ petition. 21. Accordingly, I find no merit in the writ petition and the same is hereby dismissed. There will be no order as to costs.Writ petition dismissed. *******