JUDGMENT 1. - By way of this writ petition, the petitioner has raised a substantial question of law for consideration of this Court under Article 226 of the Constitution of India with reference to the interpretation of Rule 45 of the Rajasthan Police Subordinate Services Rules, 1989 (for short "Rules of 1989")is as to whether the process started by the Rajasthan Public Service Commission (for short "the Commission") for recruitment of Sub Inspectors in the State Police Services before 14.8.1989 but not completed before commencement of the said Rules, i.e., the date when the Rules were published in Rajasthan Gazette Extraordinary Part IV (c) (i) dated 14.8.1989 will be deemed to have commenced under the Rules of 1989 or under the Rules of 1974 when the process though commenced but had not been completed on enforcement of the Rules of 1989 ? 2. The facts giving rise to the filing of this writ petition briefly stated, are that the petitioner had initially joined in the subordinate police services of the State as Constable after selection w.e.f. 3.8.1979 in District Bharatpur. Thereafter vide advertisement dated 7.3.1989 published in Rajasthan Patrika dated 5.8.1989 the Commission (respondent No.4) invited applications from the eligible candidates for recruitment in the Rajasthan Police Subordinate Services to the post of Sub-inspectors of Police, Rajasthan. The petitioner who possessed the requisite eligibility qualifications for being considered for appointment on the said post, applied for the said post in response to the aforesaid advertisement within the stipulated time. Last date for receipt of the application forms from the eligible candidates for the said post was 21.4.1989. In the meanwhile w.e.f. 14.8.1989 Rules of 1989 came into force. Thereafter on 27.8.1989 written examination was held by the Commission for the said posts and the petitioner appeared in the said test. He was declared successful in the written examination and was called for participating in the physical efficiency test by the Commission on 7.7.1990 and was found fit as per the prescribed standards and was called for interview by the Commission on 14.9.1990. The petitioner participated in the viva-voce and was declared successful in the interview. In the written test the petitioner had secured 252 marks in aggregate out of 450 vide Ex.1 which is a copy of marksheet dated 10th October, 1990 as communicated to the petitioner by the Commission. The petitioner participated in the viva-voce and was declared successful in the interview. In the written test the petitioner had secured 252 marks in aggregate out of 450 vide Ex.1 which is a copy of marksheet dated 10th October, 1990 as communicated to the petitioner by the Commission. The final result of the aforesaid examination on the basis of the interview of the successful candidates was declared on 15.9.1990. The select list of the candidates who were declared successful in the aforesaid tests was sent by the Commission to the State Government on 7.11.1990. Since the petitioner did not find his name in the select list and was not communicated anything with regard to his selection, he made his representation to the Secretary of the Commission, Ajmer vide Annexure 2. 3. At this stage it will be pertinent to refer to the position secured by the petitioner in order of merit on the basis of the result of the aforesaid examination declared by the Commission which was published in the Rajasthan Patrika, dated 16.6.1990. As per the aforesaid result, the merit position of the petitioner in different wings of the State Police Subordinate Services was as under:- S.No. Name of the Branch Number of merit 1 Civil Police 62 2 Armed Force Police 58 3 Intelligence Branch 62 4 Raj. Armed Constabulary 59 4. It is apparent from the above result that the petitioner had secured higher gradation in order of merit both in civil police as well as in the intelligence branch wherein his position was indicated as 62 while in the armed force police and in Rajasthan Armed Constabulary his position in the order of merit was 58 and 59 respectively. 5. Notwithstanding the above position since the petitioner did not receive any communication or any call for appointment from the respondents, he was left with no alternative but to have made atleast three representations consecutively to the respondents, i.e. on 23.1.1991, 26.1.1991 and 21.3.1991 vide Annexures 3, 4 and 5 respectively. On 12.4.1991 respondent No.3 viz. Director General of Police Rajasthan, Jaipur issued appointment orders to the selected candidates for their appointments in the State Police Force. On 12.4.1991 respondent No.3 viz. Director General of Police Rajasthan, Jaipur issued appointment orders to the selected candidates for their appointments in the State Police Force. Since the petitioner did not hear anything from the respondents he was left with no alternative except to have made final representation to Hon'ble Chief Minister of the State of Rajasthan as well as to the Chief Secretary to the State Government on 25.4.1991 vide Annexure 6. The Deputy Inspector General of Police forwarded the representation of the petitioner to the Commission on 6.8.1991 vide Annexure 7 and another representation was also sent by the petitioner to the Secretary of the Commission on 16.8.1991 vide Annexure-8. On 7.9.1991 a communication was received by the petitioner from the Commission vide Annexure-9 (impugned) dated 7.7.1991 informing the petitioner that the examination conducted by the Commission for recruitment of the candidates to the post of Sub-Inspectors in the subordinate police services of the State as aforesaid, was conducted in accordance with the Rule of 1974 and even if it is assumed that the Rules of 1989 which came into force w.e.f. 14.8.1989 had become effective soon after their publication in the State Gazette, even then the selection of the candidates for the said posts shall be deemed to have been made under the Rules of 1974. In sending the aforesaid communication to the petitioner the respondents had acted in total disregard of the fact that the process of selection though commenced under the Rules of 1974 could not be completed since the said Rules stood repealed as on the date when the Rajasthan Police Subordinate Service Rules, 1989 published in Rajasthan Gazette Extraordinary dated 14.8.1989 were introduced and became effective and hence any action taken under the Rules & orders so repealed shall be deemed to have been taken under the Rules of 1989 i.e. from the date of their publication. 6. 6. During the course of hearing, learned counsel for the petitioner while assailing the impugned order (Annexure-9) dated 7.7.1991 has vehemently contended at the bar that notwithstanding the fact that when the posts of Sub-Inspector were advertised by the Commission for filling up the vacancies so advertised for the said posts in different branches of the State Police Subordinate Services subject to the fulfillment of the eligibility conditions when the petitioner had exercised his option for appointment on the said post in order of preference i.e. Civil, Armed Police, Intelligence in Rajasthan Armed Constabulary Wings of the State Police at the time when he submitted his application form i.e. on 20.4.1989 in pursuance of the advertisement dated 2.3.1989, since at the relevant time Rules of 1974 were in force but when he had appeared in the examination and qualified the written test on 27.8.1989, as well as physical efficiency test which he qualified on 10.9.1990, the Rules of 1989 had already come into force consequent upon their publication in the State Gazette Extraordinary w.e.f. 14.8.1989. Therefore having regard to the fact that he had qualified in both, written test, viva-voice and physical efficiency test subsequent to the introduction of the Rules of 1989, the question of the petitioner being governed by the Rules of 1974 would not arise. Since the process of selection though commenced under the Rules of 1974 which stood repealed when the new rules of 1989 were introduced could not be completed under the earlier rules and hence the petitioner's case is obviously governed by the Rules of 1989 which the respondents have failed to consider. Since the process of selection though commenced under the Rules of 1974 which stood repealed when the new rules of 1989 were introduced could not be completed under the earlier rules and hence the petitioner's case is obviously governed by the Rules of 1989 which the respondents have failed to consider. The Learned counsel for the petitioner by way of alternative argument further contended at the bar that if the selection process comprising of the written test, physical efficiency test as well as viva-voice had been completed before the introduction of the Rules of 1989 i.e. w.e.f. 14.8.1989 when the said Rules became effective on their publication in the State Gazette Extra-ordinary, then the question of applicability of the Rules of 1974 with regard to the petitioner and other similarly placed candidates would be a relevant factor, but since in this case admittedly notwithstanding the issuance of the advertisement for inviting applications from the eligible candidates as on 2.3.1989, since the petitioner had though applied on the basis of the said advertisement but yet having participated in all the aforesaid requisite tests for determining his eligibility for selection to the post of sub-Inspector having been done by the Commission and the petitioner having been declared successful in all the aforesaid tests, the question of withholding of his candidature merely on the ground that since the new Rules of 1989 had come into force before the result could be finally conveyed to the petitioner, the petitioner was subjected to irreparable loss and injury as a result of his having been deprived of his valuable right of his being considered for appointment on the said post which cannot be compensated in any other manner except by way of issuance of appointment letter in his favour which had been erroneously withheld by the respondents on the flimsy grounds of introduction of the new Rules of 1989 merely on the basis of the advertisement of the said posts which was done earlier on 2.3.1989 by the Commission under the Rules of 1974. At this stage I deem it appropriate to refer to Rule-45 of the Rules of 1989 which is very relevant to be discussed for deciding the controversy at issue which reads as under:- "Rule 45 : Repeal and Saving:- All existing rules and orders in relation to matters covered by these rules are hereby repealed. At this stage I deem it appropriate to refer to Rule-45 of the Rules of 1989 which is very relevant to be discussed for deciding the controversy at issue which reads as under:- "Rule 45 : Repeal and Saving:- All existing rules and orders in relation to matters covered by these rules are hereby repealed. Provided that any action taken under the rules and orders so repealed shall be deemed to have been taken under the provision of these rules." 7. The obvious conclusion which emerges on logical interpretation of Rule 45 as referred to above, is that in view of the said provision which came into force w.e.f. 14.8.1989, the action of non-petitioner No.4 of publishing advertisement inviting applications from the eligible candidates found suitable for appointment on the posts of Sub-Inspectors as on 2.3.1989 shall be deemed to have been done under the Rules of 1989 and not under the Rules of 1974 particularly when the entire selection process for appointment of the candidates on the post of Sub-Inspectors was completed after coming into force the said rules and hence it is not open to the respondents to contend that since the applications were invited from the eligible candidates in pursuance of the advertisement issued on 2.3.1989 notwithstanding the introduction of the rules of 1989 which became effective w.e.f. 14.8.1989, the criteria for determining the eligibility of the candidates notwithstanding their having participated in the selection process and having been declared successful yet their candidature will not be considered for appointment according to Rules of 1974 instead of Rules of 1989. In my view the very object of introduction of the repealed and saving clause-45 of the Rules of 1989 by the legislature would become meaningless and redundant if such an approach is permitted to be adopted by the respondents which is not only contrary to the said Rules but also to the very intention of the legislature in introducing the repeal and saving clause as referred to above which specifically provides that any action taken under the Rules and orders so repealed i.e. Rules of 1974 herein, shall be deemed to have been taken under the provisions of these Rules, i.e. Rules of 1989. 8. 8. At this stage, I also deem it appropriate to make a reference to Rule 21 sub rules (3), (5), (6) and (7)(a) of the Rules of 1989, which read as under:- "Rule 21(3)-Candidates who obtain 36 percent of marks in each paper and 40 percent in the aggregate, shall be deemed to have passed the qualifying examination conducted by the Commission or the Recruitment Board as the case may be. The Commission shall send the list of such successful candidates to the Recruitment Board referred to in sub-rule 6(a): Provided that relaxation upto 5 marks will be available to candidates belonging to the Scheduled Castes and Scheduled Tribes in each paper and in the aggregate. Rule 21(5)-All candidates who are declared successful under rule 21(3) shall be required to appear before a Physical Efficiency Board, consisting of Director General-cum-Inspector General of Police or his representative not below the rank of Inspector General of Police, One Deputy Inspector General of Police, One Superintendent of Police/Commandant nominated by the Director General-cum-Inspector General of Police for physical efficiency test for various districts or group of districts as may be notified. The physical efficiency test would be vigorous as laid down by the Director General of Police to adjudge suitability of the candidate. The physical efficiency test shall carry 100 marks and the candidate who secures 50% marks therein, shall be eligible for selection. Rule 21(6)--Candidates who are declared successful in the written test under sub-rule (3) and in the physical efficiency test under sub-rule (5) shall be eligible for aptituted test and interview: Provided that the number of candidates called for aptitude test and interview shall be restricted to three times the number of vacancies on the basis of merit based on the aggregate marks obtained both in the written and in the physical efficiency test except in the case of scheduled castes and scheduled tribes candidates who shall be eligible for interview in excess of the prescribed limit if they have qualified in the written examination and the physical efficiency test. Rule 21(7)(a)-The aptitude test and interview of the candidates qualifying physical efficiency test, shall carry 50 marks. For the posts of Sub-Inspectors in Section-I, II and Platoon Commanders in Section-IV shall be held by a Recruitment Board... The marks so awarded shall be added to the marks obtained in the written test by each such candidate. Rule 21(7)(a)-The aptitude test and interview of the candidates qualifying physical efficiency test, shall carry 50 marks. For the posts of Sub-Inspectors in Section-I, II and Platoon Commanders in Section-IV shall be held by a Recruitment Board... The marks so awarded shall be added to the marks obtained in the written test by each such candidate. Candidates holding Degree or Diploma in Criminology or N.C.C. 'C' Certificate or who have offered Police Administration as one of the papers for the degree examination may be given weight." 9. With regard to aforesaid provisions of Rule 21 of the Rules of 1989, learned counsel for the petitioner contended at the bar that since the petitioner had successfully qualified all the requisite tests as referred to in Rule-21 above, i.e. written, physical efficiency, aptitude test and viva-voce on the basis of which the petitioner was selected for appointment to the post of Sub-Inspector and his name was also suitably placed in order of merit in different branches of State Police as referred to above and the selection process having been completed after the commencement of Rules of 1989, the question of the petitioner having been non-suited on account of impugned order (Annexure-9) dated 7.9.1991 shall not arise since he has been unlawfully and arbitrarily deprived of his valuable right to public employment in gross violations of the aforesaid provisions of Rules of 1989 read with Articles 14, 16 & 21 of the Constitution of India. 10. During the course of hearing, learned counsel for the petitioner had pointed out the difference between the Rules of 1974 and the new Rules of 1989 as referred to above upon which erroneously interpretation has been drawn by the respondents. Under Sub-rule 6 of Rule 19 of the Rules of 1974, the merit list of the successful candidates was prepared after taking into account the marks obtained by the candidate in the aptitude test and interview which was to carry 100 marks for the post of Sub-Inspectors and the marks so awarded were to be finally added to the marks obtained in the written and physical efficiency tests by each such candidate. Under Rules of 1989 the candidates who are declared successful in accordance with Rule 21(3) shall be required to appear before the Physical Efficiency Board for adjudging their suitability and they are required to undergo vigorous physical efficiency test as laid down by the Director General of Police and physical efficiency test shall carry 100 marks and the candidates who secure 50% marks therein shall be eligible for selection. As per Sub-Rule (6) of Rule 21 of the Rules of 1989, the candidates who are declared successful in the written test under sub-rule 3(3) and in the physical efficiency test under sub-rule (5) shall be eligible for aptituted test and interview. Thereafter Recruitment Board shall award marks to each candidate for determining his suitability for appointment to the post of Sub-Inspector taking into consideration his personality, address, tact, behaviour, specialised training, aptitude, judgment, leadership and knowledge of Rajasthan culture. The marks so awarded shall be added by the Recruitment Board to the marks obtained in the written test by each of such candidates. 11. It was further contended by the learned counsel for the petitioner during the course of hearing that from the comparative analogy of the Rules of 1974 and the Rules of 1989, what would be apparent to this Court is that while under Rules of 1974, the merit list of successful candidates is prepared by the Selection Board after taking into account the marks obtained by the successful candidate in the written test, physical efficiency test as well the aptitude and interview, while under the Rules of 1989 the merit list is prepared after taking into account the marks obtained in written test, aptituted test and interview. The Physical Efficiency Test under the Rules of 1989 though has been made more vigorous than under the Rules of 1974. Under Rules of 1989, physical efficiency test, which carries 100 marks out of which those candidates who secure atleast 50% shall be eligible for selection; whereas under the Rules of 1974 the candidates who secure minimum 40% marks shall be eligible for participating in the aptitude test and interview. Under Rules of 1989, physical efficiency test, which carries 100 marks out of which those candidates who secure atleast 50% shall be eligible for selection; whereas under the Rules of 1974 the candidates who secure minimum 40% marks shall be eligible for participating in the aptitude test and interview. It was further contended by the learned counsel for the petitioner that though the petitioner passed the requisite tests i.e. written, physical efficiency and aptituted and thereafter he was called for interview, since that was pre-condition for appearing before the Interview Board in accordance with Rule 21 (6) and (7) (a) of the Rules of 1989, since Rules of 1974 stood repealed w.e.f. 14.8.1989 by introduction of Section 45 in the Rules of 1989, any action taken by the respondents under the Rules of 1974 would automatically become null and void and it was not open to the respondents to have resorted to the rules of 1974 for the purpose of making selection of the candidates for the post of Sub-Inspectors since the Rules of 1989 had already come into force and have become effective from the aforesaid date. 12. I am of the opinion that the aforesaid contention of the learned counsel for the petitioner has great force and deserves to be sustained keeping in view the fact that the illegality committed by the respondents by having resort to Rules of 1974 in making the selections and rather they should have issued a fresh advertisement on the basis of which a Notification should have been issued by the Commission inviting applications from the eligible candidates for appointment to the post of Sub-Inspectors in accordance with the Rules of 1989, which admittedly they have not done and hence any action taken by the respondents with reference to the Rules of 1974 in making the selections of the candidates for their appointments on the said posts had automatically become nonest and redundant in the eyes of law. 13. 13. I am further of the view that if the respondents had not omitted to have made correct and logical interpretation of the Rules of 1974 & 1989 then the petitioner who was kept in the reserved list, as per the marks obtained by him in the tests as referred to above, he would have been declared eligible for being appointed and would have ranked above his immediate juniors who was appointed on the said post by the respondents as on 12.4.1991. 14. The respondents on being noticed by this Court have filed their reply to the show cause notice separately. In reply to the show cause notice filed on behalf of respondents No. 1,2 & 3 it has not been disputed that the Commission had issued an advertisement inviting applications from amongst eligible candidates for the post of Sub-Inspectors for which combined competitive examination 1989 under the provision of the Rules of 1974, it has also not been disputed that the amended'list of the selected candidates was sent to the State Government on 7.11.1990 and the appointments were made on the basis of the merit list. With regard to the total number of vacancies for the post of Sub-Inspectors, it has been contended that there were only 38 posts for general candidates and 12 for SC/ST candidates and since the name of the petitioner did not find place in the merit list, he could not be selected for appointment to the post of Sub-Inspector. His name had appeared at serial No. 62 in the merit list, while the merit list of general candidates had been prepared upto serial No. 51. With regard to the application of the Rules of 1974, the respondents have contended in para 11 of their reply that while combined competitive examination for the post of Sub-inspector was held according to the provisions of the Rules of 1974, the appointments on the said posts were made after the selection of the successful candidates according to the Rules of 1989 which came into force w.e.f. 14.8.1989. 15. On merits the respondents have not specifically controverted the contentions of the petitioner and their reply is in the form of vague denial which deserves to be deprecated and shows the non-serious attitude of respondents. 16. 15. On merits the respondents have not specifically controverted the contentions of the petitioner and their reply is in the form of vague denial which deserves to be deprecated and shows the non-serious attitude of respondents. 16. In reply to show cause notice by respondent No.4, the Commission, it has not been disputed that on receipt of the requisition from the State Government an advertisement was issued by the Commission for combined competitive examination 1989 for appointment to the posts of Sub-Inspectors and under which 50 posts were advertised under different branches of Police. The respondent-Commission in all received 7964 application forms till the last date i.e. 24.1.1989 and the petitioner had also applied for the said posts. The written examination was held on 27.8.1989 in which the petitioner had also appeared and was declared successful in the said examination. Physical Efficiency Test was conducted on 10.9.1990 to 15.9.1990 in which successful candidates were called for interview. The petitioner was also called for interview on 14.9.1990 and was declared successful in the merit list and his name found place at serial No. 62 in the Civil Police Branch, Intelligence Branch at serial no. 58, in the Armed Police at serial No. 59 and in Rajasthan Armed Constabulary on probationary basis. This list was sent to the State Government on 7.11.1990 for its approval. Keeping in view the fact that number of posts available for filling up the vacancies was only 50 including 17 posts for Civil Police, 4 for Armed Police, 11 for Intelligence Branch and 12 for Rajasthan Armed Constabulary were advertised by the respondent-Commission and the name of the petitioner was much lower in the merit list as mentioned above and as such the petitioner could not be given appointment. It has further been contended in the reply that the advertisement was issued under the Rules of 1974, as they existed at the time of issuing of the advertisement and the last date for receipt of the application forms was 21.04.1989 and as such the whole process was completed under the Rules of 1974 only. It has further been contended in the reply that the advertisement was issued under the Rules of 1974, as they existed at the time of issuing of the advertisement and the last date for receipt of the application forms was 21.04.1989 and as such the whole process was completed under the Rules of 1974 only. On the point of delay and latches the respondents have contended that the petitioner having been well aware of the Rules of 1974 and the conditions of the advertisement not only appeared in the written examination but also appeared in the physical efficiency test and further in the interview without any objection and also did not object to the merit list as declared by the respondent-Commission on 15.9.1990 and the list of selected candidates as sent to the State Government on 7.11.1990 nor challenged the advertisement or the selections or even the select list and the appointments given by the State Government on the basis of merit list prepared by respondent-Commission immediately and thereafter had filed the above writ petition challenging the above selections after more than two and a half year's delay. In reply on merits, the respondents have not disputed that the process of selection which had already started much earlier Than the date of issuance of the advertisement i.e. 02.03.1989 and the last date for receipt of the application forms also having expired on 21.4.1989 the petitioner's case will also be covered under the Rules of 1989 because the selections were being made for the vacancies which had occurred prior to the enforcement of the rules of 1989 which process could not be completed when the Rules of 1989 were promulgated. The respondents have further contended that the whole process of selection was made under the Rules of 1974 because even the advertisement was issued under the provisions of the aforesaid rules of 1974. It has further been contended that the merit list was prepared strictly in accordance with the provisions of the Rules as they stood at the time of issuance of the said advertisement. It has further been contended that the petitioner has not impleaded unsuccessful candidates who are necessary parties to the writ petition. 17. It has further been contended that the merit list was prepared strictly in accordance with the provisions of the Rules as they stood at the time of issuance of the said advertisement. It has further been contended that the petitioner has not impleaded unsuccessful candidates who are necessary parties to the writ petition. 17. It will be apparent from the above discussions that the entire process of the selection was initiated by the respondents under the old Rules of 1974, while the selections were made and completed after coming into force of the new Rules of 1989 and since the petitioner had appeared in the aforesaid examination for appointment to the post of Sub-Inspector in Rajasthan State Police Subordinate Services and qualified the same after commencement of the Rules of 1989 and was also placed in the merit list after having been declared successful, in my view since the Rules of 1974 stood repealed when the Rules of 1989 had come into force w.e.f. 14.8.1989 the whole process of selection should have been made and completed with reference to the Rules of 1989 instead of having resort to the Rules of 1974 which stood repealed by said Rules and hence any action taken by the respondents under the Rules of 1974 shall automatically be deemed to have become nonest and redundant in the eyes of law. I am further of the view that the respondents have placed erroneous interpretation on the new Rules of 1989 by making selection under the old Rules of 1974 and since the process of selections had not commenced on the introduction of the new Rules of 1989 w.e.f. 14.8.1989, it was incumbent upon the respondents to have issued a fresh advertisement or notification in corrigendum of the earlier notification (Annexure R/1) and thereafter applications should have been invited afresh from amongst the eligible candidates for appointment on the said posts which admittedly has not been done by the respondents in the instant case. 18. 18. However, keeping in view the facts and circumstances of the case that the appointments have already been made and the respective candidates have already joined on the posts of Sub-inspectors, it will be hard and harsh to deny continuity of service to such candidates who have already been appointed and joined their services after having been declared successful in order of merit or to quash the whole process of selection which will be inequitable. However, keeping in view the fact that the petitioner was also a successful candidate and his name was already included in the merit list having successfully passed all the respective tests conducted by the Commission, I deem it appropriate to direct the respondents to recommend the petitioner for appointment on the post of Sub-inspector in any of the aforesaid branches of Rajasthan State Police Subordinate Services for which he had applied in pursuance of the advertisement dated 2.3.1989 (Annexure R/1) issued by the Rajasthan Public Service Commission, Ajmer. His seniority shall be reckoned w.e.f. the date when his immediate juniors were given appointment from amongst the list of the successful candidates. The name of the petitioner shall be included in the merit list of successful candidates originally prepared by the Commission by suitably amending the same in order of respective seniority of the successful candidates. The respondents are directed to issue a fresh revised seniority list in accordance with the Rules within a period of ninety days from the date of this order. The petitioner shall be entitled to all consequential benefits in accordance with the Rules. There will be no order as to costs.Petition allowed. *******