JUDGMENT PER R.L. KHURANA, J. 1. Brief facts giving rise to the present writ petition under Articles 226 and 227 of the Constitution of India, may be thus stated. On August 25, 1998 an advertisement was published in the India Express, Chandigarh Edition, inviting applications from the eligible candidates for selection to certain vacancies in the Himachal Pradesh Judicial Service, hereinafter referred to as the service. The written examination in accordance with the H.P. Judicial Service Rules 1973, (hereinafter referred to as the Rules), was proposed to be held by respondent No. 2, H.P. Public Service Commission, sometime in the month of November 1998. The necessary qualifications which would entitle the candidates to appear in such written examination, were detailed in the advertisement. A copy of such advertisement is attached to the writ petition as Annexure P-2, 2. In response to such advertisement, a number of candidates, including the three petitioners and respondent No. 4 to 13, appeared in the competitive examination held by respondent No. 2. Pursuant to such written examination, a total of 35 candidates, who were declared successful in the written test, were called for viva voce test. The candidates called for viva-voce included the three petitioners and respondents 4 to 13 . Such viva voce was held from February 23, 1999 to March 1, 1999. Final result of the selection was declared on March 1, 1999 at about 9.30 p.m. The names of the selected candidates were displayed on the Notice Board of respondent No. 2. Copy of the result declared and as displayed on the Notice Board is attached to the writ petition as Annexure P-5. In such result, respondents 4 to 13 were declared successful and their names were recommended by respondent No. 2 to respondent No. 1 for being appointed to the service . While respondents 4 to 9 were recommended for appointment to the service against open and general categories of posts, respondents No. 10 and 11 were recommended for being appointed against the posts reserved for members of Schedule Casters, respondent No. 12 was recommended for being appointed against the vacancy reserved for wards of Freedom Fighters and respondent No. 13 was recommended for appointment against the post reserved for "other Backward Classes". 3. 3. The selection of respondents No. 4 to 13 has been assailed by he petitioners by way of the present writ petition under Articles 226 and 121, Constitution of India , and the following reliefs have been claimed :- (1) Issuance of appropriate writ/directions against respondents No. 1 and 2 for quashing the imposition of the condition of maximum of three chances for appearing in the H.P. Judicial Service : (2) The select list dated March 1, 1999 (Annexure P-5) of successful candidates, namely, respondents No. 4 to 13 as prepared and published by the respondent No. 2 be quashed and set aside with further direction to respondent No. 2 to recast the selection list without insisting on the criterion of three chances in the said examination; (3) The respondents No. 1 and 2 may be directed to produce the entire record pertaining to the selection/examination for H.P. Judicial Service; (4) Any other writ, order or directions to which the petitioners may be found entitled to, 4. According to the petitioners, after having qualified in the written test they were called for viva voce. Just before the viva voce, the officers of respondent No. 2 handed them a form of declaration regarding the number of chance(s) already availed in H.P. Judicial Service examinations and they were asked to fill-up and sign such declarations. The petitioners, who were anxious and nervous on account of the viva voce in which they were to appear immediately thereafter and on account of being suddenly asked to give the information, in the absence of relevant documents could not recollect the actual number of chance(s) availed by them in the past. After the publication of the result of the selection, the petitioners, who had faired very well during the viva voce, came to know that their candidatures were cancelled since they were found to have already availed three chances. 5. The petitioners have pleaded that under the H.P. Judicial Service Rules, 1973, there is no limit to the number of chances which a candidate may avail. Nor any such condition/limit was indicated either in the advertisement issued by respondent No. 2 or in the application form. Therefore, the cancellation of the candidatures of the petitioners by respondent No. 2 was arbitrator, illegal and in violation of the relevant rules. 6. Nor any such condition/limit was indicated either in the advertisement issued by respondent No. 2 or in the application form. Therefore, the cancellation of the candidatures of the petitioners by respondent No. 2 was arbitrator, illegal and in violation of the relevant rules. 6. Notice of the petition was confined only 10 respondent No. 2, who was also directed to produce the record regarding the selection to the service. The respondent No. 2, while resisting the petition, in its reply-affidavit has taken the stand that the application forms for the examination contained instructions to the candidates and it all set out other conditions of eligibility. A copy of such application form has been attached the reply-affidavit as Annexure-R2A. Reliance was placed on miscellaneous instruction No. 22 (vi) which reads : "Provided that no candidate shall be permitted to compete more than three times at the examination." 7. It was further pleaded that pursuant to some complaints and checking of old record, it was found that the petitioners had already availed of three chances in the past and that the present chance was their fourth one. Therefore, in terms of instruction No. 21, as contained in the application form, Annexure-R2A, their candidature was cancelled at the time of compilation of the result after conclusion of viva voce of candidates since they were found to have furnished incorrect information and had suppresses material information. Such act on the part of the respondent No. 2 was perfectly legal, valid and in accordance with the relevant rules. 8. During the course of hearing, the following contentions were raised on behalf of the petitioners :- (1) Condition imposed by respondent No. 2 with regard to number of chances is illegal, unauthorised and violative of Article 234, Constitution of India; (2) Respondent No. 2 had entertained extraneous factors in the form of complaint from the third parties, who were not connected either with the process of selection or even with the candidates; (3) The complaints were enquired into and the petitioners were condemned without following the procedure of natural justice. (4) There was no complaint against petitioner No. 1; and (5) Respondent No. 6 and 13 had availed of more than three chances. 9. (4) There was no complaint against petitioner No. 1; and (5) Respondent No. 6 and 13 had availed of more than three chances. 9. The learned counsel for the petitioners in support of his contention has relied upon the ratio laid down by a Division Bench of Punjab and Haryana High Court in Subash Chander Marwaha V. The State of Haryana 1973 (1) Serv LR 823 and that of a Division Bench of this Court in Janeshwar Goyal v. Honble High Court of H.P. 1995 (2) Sim LC 205, wherein it has been held that the rules under Article 234, Constitution of India, for the appointment to the State Judicial Service must be made by the State Government in consultation with the High Court and any rule(s) made without such consultation would be null, void and unconstitutional. 10. At the very outset, it may be mentioned that on March 22, 1999, when the present petition came up for hearing respondent No. 2 had produced the record of selection, that is, interview sheet as well as merit list. On a perusal of the relevant particulars, we noticed form the merit list prepared and on the basis of which the final selection was notified vide Annexure P-5 that petitioner No. 1, who belongs to OBC category, as also petitioners No. 2 and 3, who belong to open and general category, had not secured as much marks as the selected candidates, namely, respondents No. 4 to 13, had secured in their respective category. Since the petitioners had secured less marks than respondents No. 4 to 13 in their respective category, the contentions raised on behalf of the petitioners were not required to be gone into since on the face of it, no prejudice had been caused to them by the selection of respondents No. 4 to 13. 11. However, form the merit list prepared by the respondent No. 2, we noticed that it was indicated in ink in such merit list against the names of the petitioners that they were ineligible. 11. However, form the merit list prepared by the respondent No. 2, we noticed that it was indicated in ink in such merit list against the names of the petitioners that they were ineligible. Therefore, though the petitioners as such could not successfully assail and challenge the selection notified with reference to their merit performance of the marks secured in the written test as also in the viva voce, having regard to the action of respondent No. 2 by describing the petitioners as ineligible, it became necessary for us, as a matter of principle and to provide proper guidance for future selections by the respondent No.2 to consider the question about the right of the respondent No.2 to impose a ceiling on the number of chances to be availed of by a candidate for selection to the service and to treat any one as ineligible on account of the fact that he/she had already availed to three chances. 12. Much reliance was placed by respondent No. 2 on the miscellaneous instruction No. 22 (iv) at page 23 of Application Form, Annexure R 2A (quoted above). This clause pertains and relates to the ex-servicemen category of candidates. It is not applicable to the candidates belonging to either open and general category or to any other reserved category. 13. At this stage it would not be out of place to reproduce here the is miscellaneous instruction No. 22 appearing at page 23 of Annexure-R2A. It reads:- "The benefit of reservation in the H. J.S. will be available to those ex-servicemen who joined service or were commissioned on or after the first day of November, 1962 and released any time thereafter (provided the posts are reserved for them). It reads:- "The benefit of reservation in the H. J.S. will be available to those ex-servicemen who joined service or were commissioned on or after the first day of November, 1962 and released any time thereafter (provided the posts are reserved for them). Note :- Ex-servicemen, means a person, who has served in any rank (whether as a combatant or as non-combatant ) in the Armed Forces of the Union, including the Armed Forces of the former India States but excluding the Assam Rife, Defence Security Corps; Central Reserve Engineering Force, Lok Sahayak Sena and Territorial Army, for a continuous period of not less than six months after attestation; and (i) has been released otherwise than at his own request (with less than 5 years service)or by way of dismissal or discharge on account of misconduct or inefficiency, or has been transferred to the reserve pending such release ; or (ii) has to serve for not more than six months (form the last date] prescribed for receipt of application) for completing the period of service requisite for becoming entitle to be released or transferred to the reserve as aforesaid ; or (iii) has been released at his own request, after completing five years service in the Armed Forces of the Union ; or (iv)relaxation of age and benefit of reservation etc. is only available if the vacancy is reserved for ex-servicemen; or (v) after release from the Armed Forces of the Indian Union, he is found to be physically and mentally fit in accordance with the provisions of the rules, or (vi) provided that no candidate shall be permitted to compete more than three times at the examination. 14. Regarding the above instruction, as there cannot be any other interpretation except that such instruction is applicable only to the candidates belonging to the category of ex-servicemen. In other words under clause (vi) appears to have been incorporated in instruction No. 22 on the basis of the provisions contained in Rule 4 of the Ex-service men category and in respect of no other category(s) of candidates. 15. In other words under clause (vi) appears to have been incorporated in instruction No. 22 on the basis of the provisions contained in Rule 4 of the Ex-service men category and in respect of no other category(s) of candidates. 15. Clause (vi) appears to have been incorporated in instruction No. 22 on the basis of the provisions contained in Rule 4 of the ex-servicemen (Reservation of vacancies in the Himachal Pradesh Judicial Service) Rules, 1981 (hereinafter referred to as Ex-servicemen Reservation Rules), as amended in 1986, by the 1st Amendment Rules notified on September 23, 1986 vide notification, Annexure R2E. It is pertinent to dote that the Ex-servicemen reservation Rules were held and declared to non-est and constitutionally invalid by a Division Bench of this Court in Janeshwar Goyals case (supra). Therefore, instruction No.22, as Contained at page 23 of Annexure-R2A based on the Ex-servicemen Reservation Rules, as a whole is bad and violative of Article 234 of the Constitution of India. Respondent No. 2 therefore, has acted beyond the scope of its powers in incorporating instruction No. 22 in the Application from, Annexure R2A. 16. If instruction No. 22 is deleted from Annexure R2A, then even for the candidates belonging to Ex-servicemen category, there is no limit as to the number of chances which they can avail, till the attaining of the upper limit as prescribed under the relevant rules. 17. Reliance was also sought to be placed by the learned counsel respondent No. 2 on the proviso to sub-rule (3) of Rule 5, Part-III (Method of Recruitment) of the H.P. Judicial Service Rules 1973, (for short, Rules), to contend that such proviso prescribes a limit of three chances which could be availed of by a candidate. 18. Sub-rule (3) of Rule 5, Part - III of the Rules, as relied upon by (tie learned counsel for respondent No. 2, reads : No person, who is more than thirty years or is less than twenty - one years of age, on the 1st of January of the year in which the Commissioner invites applications for the competitive examination for recruitment of the Service shall be eligible to appear in the competitive examination. Provided that : (a) The maximum age limit :- (i) for an advocate who has practised at Bar for a minimum period of four years ;or (ii) for any official who is a Law Graduate and is serving on the establishment of the High Court or any Court subordinate thereto in the State of Himachal Pradesh or in the Himachal Pradesh Government Secretariat or in offices subordinate there to, and has served on the said establishment or under the State Government or partly on the said establishment and partly under tire State Government for minimum aggregate of four years, shall be 40 years, Note :- An incumbent who appears in the competitive examination as an advocate with four years practice at the Bar with relaxed age limit as above, shall not become ineligible for subsequent competitive examination if he is selected as Assistant Public Prosecutor under the Government and has joined service under the Government as such. The maximum age limit of 40 years shall, however, be applicable in his case too. Provided further that an advocate, or an official with four years practice and service respectively who has already availed of one or two chances but could not avail of the 2nd or 3rd chance because of the age limit of 40 years, shall be eligible to avail of one more chance in the first Himachal Pradesh Judicial Service Competitive Examination to he held any time hereafter. Explanation : (a) For the purposes of this sub-rule, the expression High Court11 would include the erstwhile Court of Judicial Commissioner of Himachal Pradesh and the Himachal Bench of the Delhi High Court. (b) For the purpose of computing the period of four years practice at the Bar referred to in clause (a) above, the Government may, in consultation with the High Court include the period during which person has served as Subordinate Judge on temporary basis as a result of the competitive examination held by the Commissioner. (c) A candidate belonging to a Scheduled Cased, Scheduled Tribe, or Backward Class will be entitled to deduct from his age such period as may from time to time, be allowed by the Government for entry into service, for such candidates. 19. A bare reading of the above provision shows that the proviso does not provide for any restriction on the number of chances which a candidate may avail. 19. A bare reading of the above provision shows that the proviso does not provide for any restriction on the number of chances which a candidate may avail. It only provides for an additional chance to those candidates, who either are Advocates with four years service, on having attained the maximum age limit of 40 years. 20. Moreover, even if it is presumed that the proviso to sub-rule (3) Rule 5, Part-Ill, of the Rules, prescribes fora ceiling limit of three chances as contended by the learned counsel for the respondent No.2, the same cannot be pressed into service by respondent No. 2 in as much as the whole of sub-rule(3) vide Himachal Pradesh Judicial Service (Second Amendment) Rules, 1994 as notified vide notification dated November 8, !994Annexure - P-1. 21. Therefore, the action of the respondent in attempting to place a ceiling of three chances for selection to the service and in describing the petitioners as ineligible on this count cannot have any statutory basis of an Act and Rules. Till appropriate Rules are framed in this regard, it is not given to respondent No. 2 to adopt such a course, in future also. 22. The ratio laid down in Madan Lal v. State of Jammu and Kashmir AIR 1995 SC 1088, Swaran Lata v. Union of India 1979 Serv LJ 170, Om Prakash Shukla V. Akhilesh kumar Shukla, AIR 1986 SC 1043 and in Bhajan Dass Kaith v. H. P. Public Service Commission 1998 (2) Sim LC253, reliance ; on which was placed by the learned counsel for the respondent No. 2 need not be referred to . Suffice to say that the same has no application to the facts of the present case. 23. Though the condition/ceiling imposed by the respondent No. 2 as to the number of chances which can be availed of by a candidate for selection to the service and resultant action in describing the petitioners as ineligible on this account has been held to have no basis or support in any Act or statutory rules, yet the petitioner are not entitled to any relief, since, as noticed above, they have not secured more or even as much marks as the respondents Nos. 4 to 13 have secured in their respective categories as per the assessment of their performance in the written and viva voce examinations. 4 to 13 have secured in their respective categories as per the assessment of their performance in the written and viva voce examinations. Resultantly, the present petition is dismisses leaving the parties to bear their own costs. 24. The petitioners would also be estopped from filing this writ petition and disentitled to challenge the condition imposed for more than one reason. Notwithstanding such condition, not only they were allowed to take the written examination but they were called for viva voce and they were also duly assessed by the Selection Board for interview which included an Honble Judge of this Court and having undertaken a chance and undergone the selection process they cannot be allowed to blow hot and old, on finding that they were not selected even on merits . That apart, if really the petitioners were aggrieved they should have approached this Court on reading the instructions or at any rate the condition imposed in letter calling them to undergo the written examination. The writ petitioners have to fail also on account of their laches and acquiescence and at their whim an fancy they cannot be allowed to come to this Court to challenge the selections already made. 25. Before parting, we may observe and direct that respondent No.21 shall take note of the observations made by us above for strict compliance in future for carrying out necessary corrections/amendments in their advertisements, application forms etc. for future selections to the service. 26. The record produced by respondent No.2 in a sealed cover may be returned in a sealed cover, duly sealed with the seal of the Court. C.M.Ps. No. 144, 174 and 261 of 1999 Dismissed as having become infructuous in view of the order passed in the main writ petition