JUDGMENT 1. - A common question on common facts of law is involved in all the above said writ petitions and, therefore, they are being decided together by one judgment. The point raised in all the writ petitions is whether prescribing of the upper age limit to be 23 years with qualifications of Graduate is ultravires, not justified and beyond the powers of the rule making authority and whether Rule 11 of the Rajasthan Police Subordinate Service Rules, 1989 (for short the Rules) where such qualifications have been so prescribed, are ultravires and illegal. For narration of the facts, the facts as stated in Civil Writ Petition No. 4975/96 Sandeep Vishnoi v. State of Rajasthan & Ors. are being taken. 2. The petitioners are graduates having passed the examination in different years and some are even post graduates. From the date of birth recorded in the certificates, admittedly all the petitioners have become over age for applying in response to the advertisement for recruitment to the post of Sub-Inspector of Police under the Rajasthan Police Subordinate Service Rules, 1989 concerned. The advertisement was issued and published on February 1, 1996 as per Annexure-2. As per advertisement the maximum age for the recruitment to the total 214 posts of Sub-Inspectors of Police was 23 years with minimum of 20 years as on 1.1.1997. The relevant rules applicable for recruitment to the said post are the rules which had come into being with effect from 14.8.1989 and the previous rules of 1974 were repealed. Thus, at the time of making the applications or inviting the applications, rules of 1989 were applicable. Rule 4 contemplates the composition and strength of service, rule 6 prescribes the method of recruitment, rule 9 prescribes the eligibility required for recruitment, rule 10 contmplates determination of vacancies and rule 11 prescribes the minimum and maximum age. It is rule 11(a) which is being questioned. Rule 11 reads as under: 11. AGE:-A candidate for direct recruitment to the services must have (a) for the post of Sub-Inspector/Platoon commander, the age of 20 years and must have attained the age of 23 years, on 1st January next following the last date fixed for receipt of applications. It is rule 11(a) which is being questioned. Rule 11 reads as under: 11. AGE:-A candidate for direct recruitment to the services must have (a) for the post of Sub-Inspector/Platoon commander, the age of 20 years and must have attained the age of 23 years, on 1st January next following the last date fixed for receipt of applications. (b) for the post of Constables, the 'age of 18 years and must not have attained the age of 21 years on 1st day of January next following the last date fixed for receipt of applications. However, the upper age limit for Constables (Driver) shall be 24 years: Provided that (1) the upper age limit shall be relaxed upto 5 years in case of candidates belonging to the SC/ST and Women and 3 years in case of candidates belonging to State Government employees and the dependents of the deceased Police Officers/Officials killed in the discharge of their duties. (2) the upper age limit mentioned above shall be 40 years in the case of Ex-service Personnel and the Reservists, namely the services personnel who are transferred to the Reserve. (3) however the upper age limit mentioned above may be relaxed by three years in exceptional cases by appointing authority, after previous approval of Government. (4) that the released Emergency Commissioned Officers and Short Service Commissioned Officers after release from the Army, shall be deemed to be within the age limit, when they appear before the Commission, had they been eligible as such at the time of their joining the Commission in the Army." 3. It is provided under sub-rule (3) of rule 11 that the upper age limit mentioned can be relaxed by three years in exceptional cases by appointing authority after previous approval of the Government. 4. Upper age limit so far as Ex-service person and reservists are concerned, has been prescribed as 40 years. There is a relaxation upto 5 years in the case of candidates belonging to SC/ST and three years in cases belonging to the State Government employees and dependents. 5. Previous to the rules of 1989 as mentioned above, the recruitment was governed by the rules of 1974 wherein the upper age limit was 25 years with certain relaxations. The rule making authority in its wisdom had reduced the upper age limit from 25 to 23 years in the new rules. 5. Previous to the rules of 1989 as mentioned above, the recruitment was governed by the rules of 1974 wherein the upper age limit was 25 years with certain relaxations. The rule making authority in its wisdom had reduced the upper age limit from 25 to 23 years in the new rules. The rules of 1974 stood repealed in toto. 6. It is the case of the petitioners that with the minimum qualifications of being graduates a person to be eligible to apply for the post of Sub-Inspector of Police is to study upto 20/21 years and only two years gap or two years period is left for such candidate to avail the chance for recruitment to the post of Sub-Inspector of Police and if by any chance, no recruitment advertisement is published during this period, the candidate becomes over age and cannot apply at all. It is also the argument of the counsel for the petitioner that in the other services of the State the upper age limit is 25 years, 27 years and even more than 30 years and it has also been averred that even for the posts of Sub-Inspectors of Police, the other States have prescribed the age limit which is not less than 25 years. The petitioner submits that the rules of 1974 prescribed the upper age limit to be 25 years and there was no justification to reduce the upper age limit to 23 years. It is the further submission of the counsel for the petitioner that such action of the State is without any reasons or in any case there are no justified reasons and there is no justification at all put forwarded by the State in the written statement to change the upper age limit in the rules. 7. An argument has also been raised in the other connected matters i.e. Civil Writ Petition No. 1928 of 1997, to the fact that in-service petitioners have been given relaxation of 3 years only whereas in the 1974 rules the relaxation to upper age was much higher. It is further averred that so far as Ex-service men are concerned, the age relaxation is upto 40 years and, therefore, the in-service persons of police who want to apply for direct recruitment have been discriminated. 8. Above are the only submissions made by the counsel for the petitioners. It is further averred that so far as Ex-service men are concerned, the age relaxation is upto 40 years and, therefore, the in-service persons of police who want to apply for direct recruitment have been discriminated. 8. Above are the only submissions made by the counsel for the petitioners. The State has filed the written statement and has averred that it is upto the rule making authority to prescribe the qualification including upper age and lower age. It is further submitted that the change in fixing the age had to be made because of the nature of duties to be performed in view of the terrorists activities prevailing in the State and more young people were required. It is stated that the petitioner had become over age and, therefore, could not have been considered. Apart from above submissions, it is stated that the nature of work and duties to be performed by the police officers are different to be performed by the members of other services and no comparison can be made with the Raj. Police Subordinate Service Rules and other service rules. It is further submitted that in regard to hard-ship being felt in the time gap between the period of graduation and upper age limit is concerned, the fact that thousands of candidates had applied having prescribed qualification of being graduate clearly shows that the apprehension of the petitioner is misconceived. 9. The contention of the counsel for the petitioners for declaring Rule 11A fixing the upper age limit to be 23 years for the post of Sub-Inspector of Police is ultravires cannot be accepted. It has been repeatedly held by the courts that it is the jurisdiction of the legislature to prescribe the law and the service conditions under the rules. The courts are not required to substitute its own decisions nor to substitute its advice for fixing the service conditions for recruitment in various services. It is also open to the State to fix different service conditions for different type of services. The courts are not to interfere into the laying down the service conditions. 10. In Smt. Anita Mehta v. State of Rajasthan & ors. It is also open to the State to fix different service conditions for different type of services. The courts are not to interfere into the laying down the service conditions. 10. In Smt. Anita Mehta v. State of Rajasthan & ors. D.B. Civil Writ Petition No. 453/90, decided on October 10, 1990 a Division Bench of this court had rejected the contention of the petitioners in that case wherein it was contended that the rule should be amended by the court so as to make provisions for regularisation of services of the petitioners and other similar persons who were appointed on adhoc or urgent temporary basis. Relying on Malikarjuna Rao & ors. v. State of A.P., AIR 1990 SC 1251 it was held that power under Article 309 of the Constitution to frame rule is a legislature power and is to be exercised by the Governor of the State. The High Courts or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution of India. The courts cannot usurp the functions assigned to the executive under the Constitution and cannot indirectly require the executive to exercise its rule making power in any manner, nor it can assign the rule of supervisory capacity over the rule making authority. 11. It was further held in the case of Smt. Anita Mehta (supra) that different services are governed by different statutory rules and the source of recruitment, nature of services and the conditions of services for different cadres are quite different and, therefore, it was impossible to apply the same set of rules for all services. It is the matter of policy to be determined by the Government as to whether the provisions shall apply to certain services or not. 12. Similarly, in the case of V.M. Gadre (Dead) by LRs. & others v. M.G. Diwan and others, 1996 (3) SCC 454 it was held by the Hon'ble Supreme Court that while exercising its jurisdiction under Article 32 of the Constitution, the Court cannot substitute the existing service conditions of the petitioners by adopting new set of service conditions. 12. Similarly, in the case of V.M. Gadre (Dead) by LRs. & others v. M.G. Diwan and others, 1996 (3) SCC 454 it was held by the Hon'ble Supreme Court that while exercising its jurisdiction under Article 32 of the Constitution, the Court cannot substitute the existing service conditions of the petitioners by adopting new set of service conditions. It was a case of pension and the petitioner was seeking the fixation of minimum pension higher than that prescribed in the rules, grant of D.A./relief on a par with pensioners of Central Government or SBI as well as refund of a recurring contribution from the salary and a recurring deduction from the pension made under the existing pension plan. In Gajraj Singh & Ors. v. State Transport Appellate Tribunal & ors., (1997)1 SCC 650 it was held by the Hon'ble Supreme Court that the repealed Act Completely obliterates the Act from the Statute Book as if it never existed except for transaction past and closed thereunder. In the present case even though the higher age had been prescribed in the Rules of 1974, but 1974 rules have been completely repealed by the subsequent rules of 1989 and thus, no assistance can be derived by the petitioners to say that they should also be considered in the same manner as the candidates were ever considered under 1974 repealed rules. 13. For the fore-going reasons, I am inclined to hold that none of the vested right of the petitioners has been violated nor the petitioners have any right to say that the rules of 1989 should be declared ultravires and the upper age limit should be increased to suit their age. The petitioners have also no right to say that because of the reason that certain different upper age limits have been prescribed for the recruitment in other services or for the similar post different States have prescribed different date of age for recruitment, therefore, the rules in their regard should be modified or declared ultarvires. 14. The writ petitions have no merit and are dismissed. The rules of 1989 cannot be declared to be ultravires and are not hit by the vires of in-equality under Article 14 and 16 of the Constitution of India as alleged. 15. 14. The writ petitions have no merit and are dismissed. The rules of 1989 cannot be declared to be ultravires and are not hit by the vires of in-equality under Article 14 and 16 of the Constitution of India as alleged. 15. But before parting with the judgment, it is advisable that in the writ petition No. 4975/96 Sandeep Vishnoi v. State of Rajasthan & others , the petitioner was allowed to appear in the interview by the Court. Even though he was above 23 years of age, but was within the permissible age limit of relaxation of three years. Having been interviewed out of list of more than 100 candidates for general category, the petitioner Sandeep Vishnoi stands very high in the merit list but has not been offered appointment because of the pendency of the writ petition. Rule 11(iii) says that the Government has powers to relax the age limit upto three years. It is advisable if the Government considers the case of the petitioner Sandeep Vishnoi for relaxation of age as permissible under the rules if any of the vacancy against the advertisement for which he had applied is till in existence. This exercise shall be done by the respondent State within three months from the date of receipt of the certified copy of this order. 16. Even though it is the domain of the Government to fix the minimum or the upper age but because of the changed circumstances as prevailing in the year 1989 when the rule was changed, it is high time that the Government may re-think to revert to the upper age limit of 25 years for the recruitment on the post of Sub-Inspector of Police. There is merit in the submission of the counsel for the petitioners that for passing the graduation a candidate already reaches the age of 21 years and in these days of un-employment and un-certainty, there is all possibility that a candidate may not have a chance of applying for the post of Sub-Inspector of Police even he has highest aptitude for such post. The submission of Mr. Ajay Rastogi needs consideration that the upper age limit should be fixed by the Government to be 25 years as was so fixed in the 1974 rules. The submission of Mr. Ajay Rastogi needs consideration that the upper age limit should be fixed by the Government to be 25 years as was so fixed in the 1974 rules. If the Government is so advised, it may do the exercise and re-constitute the rules so far as upper age limit is concerned in view of the difficulty being faced by the candidates. It takes 15 to 16 years to qualify the graduation examination and if a candidate starts education from the age of 6 years, he has already completed 21 years when he passed the graduate examination. However, in view of the discussion above, even though such advise cannot be imposed on Government for implementation but in view of the practical difficulty being faced, it shall be appropriate if the Government is so advised and re-frames the rules as to fix the upper age limit to be 25 years. 17. With the abovesaid observations, the writ petitions are dismissed for being without any merit. No order as to costs.Petition dismissed. *******