JUDGMENT 1. - The instant writ petition has been filed seeking direction to the respondents to consider the candidature of the petitioner treating him to be within the age limit for the post of Lecturer (Hindi) if he is otherwise found suitable; and also for declaring rule 10 of the Rajasthan Education Service Rules, 1970 as unconstitutional so far as it provides the cut off date mentioned in the advertisement. 2. The facts and circumstances giving rise to this case are that an advertisement dated 20.1.97 was issued to fill up the vacancies of Teachers Grade III under the Rajasthan Education Service Rules, 1970 (for short, "the Rules, 1970"). However,the selection process could not proceed in view thereof. No advertisement could be issued in 1998, 1999 and 2000. However, the respondents issued Advertisement No. 1/2001-02 on 31.5.2001, inviting applications upto 1.8.2001, fixing the maximum age limit of 33 years as on 1.7.2001 (Annx.4). As the petitioner had become over-aged, he claimed that as the advertisement was not issued for three/four consecutive years and the Rules provide for determination of year-wise vacancies, he should be held eligible for the post. 3. As per the provisions of rule 10 of the Rajasthan Education Services Rules, 1970 (for short, "the Rules, 1970"), the minimum and maximum age has to be calculated on the first day of July next following the last date fixed for receipt of the applications and as per the provisions of the said Rules vacancies have to be determined year-wise. If the candidate was eligible two years ago but for one reason or the other the selections could not take place in those years, persons should be considered as eligible as they could not appear in the selection for no fault on their part. Moreso, it is further contended that provision of rule 10 of the Rules, 1970, as it fixes the 1st July of the next following year as a cut off date, is unconstitutional and fixes the date arbitrarily. 4. The Hon'ble Supreme Court in Government of Orissa vs. Har Prasad Das, AIR 1998 SC 375 , has held thus: "Whether to fill up a post or not is a policy decision and unless it is shown to be arbitrary, it is not open to the Tribunal to interfere with such decision of the Government and direct it to make further appointments. The Tribunal in directing the Government to make further appointments on the efficiency ground of public administration went beyond its jurisdiction." 5. Similarly the Apex Court in State of Haryana v. Piara Singh, AIR 1992 SC 2130 , has taken the view that creation and abolition of post and filling up the same is the prerogative of the Executive. 6. The issue involved herein was considered by the Hon'ble Apex Court in Jammu & Kashmir Public Service Commission & Ors. vs. Dr. Narendra Mohan & ors. (1994) 2 SCC 630 , wherein the Apex Court has 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 vacancies existing or anticipated to the PSC for recruitment and that every eligible person is entitled to apply for and to be 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." 7. In Union of India & Anr. vs. Yogendra Singh, 1994 (Suppl.) 2 SCC 226 , the Hon'ble Supreme Court has held that the applicant must possess the requisite qualification as per the advertisement, even if the vacancies have arisen prior to the date of the advertisement. In the said judgment the Hon'ble Apex Court has categorically held as under:- "No candidate who does not possess the currently prescribed qualification and he possesses the qualification prescribed earlier, can be said to be qualified or have any vested right to appointment even against some earlier unfilled vacancies. Every candidate, who aspires to fill any vacancy, must possess the educational qualification that are then prescribed." 8. No candidate has a right to claim appointment as a matter of right though he has a right of being considered on the post being advertised for the reason that selection process gets initiated from the advertisement itself. Thus, the contention raised by the learned counsel for petitioner in this respect is rejected being preposterous. 9. No candidate has a right to claim appointment as a matter of right though he has a right of being considered on the post being advertised for the reason that selection process gets initiated from the advertisement itself. Thus, the contention raised by the learned counsel for petitioner in this respect is rejected being preposterous. 9. So far as the challenge to the cut off date is concerned, the Court should not forget that while fixing the cut off date, the Authority has to consider various aspects of the case and there is very limited scope of judicial interference in such matters. It is settled proposition of law that a cut off date can be introduced, but it is not permissible to do in such an artificial manner that it may discriminate the similarly situated persons and the cut off date may be introduced by creating a fiction but while doing so, the consequences must be examined thoroughly and the cut off date must have some nexus to the object sought to be achieved. Generally it should be prospective but may have retrospective effect also. Consideration of financial constraints on public exchequer etc. are good and valid reasons for fixing particular cut-off date by the legislature directly or by the executive instructions. 10. The issue has been considered by the Hon'ble Supreme Court time and again in a large number of cases and some of which are Jaila Singh & Anr. v. State of Rajasthan & Ors., AIR 1975 SC 1436 ; D.S. Nakara and others v. Union of India, AIR 1983 SC 130 ; Dr. (Mrs.) Sushma Sharma & ors. v. State of Rajasthan and others, 1985 (Suppl.) SCC 45 ; U.P.M.T.S.N.A. Samiti, Varanasi v. State of Uttar Pradesh & ors., 1987 (2) SCC 453 ; Krishna Kumar v. Union of India & Anr., 1990 (4) SCC 207 ; All India Reserve Bank Retired Officers Association v. Union of India and others, 1992 (Suppl.) 1 SCC 664 ; State of Rajasthan v. Rajasthan Pensioners Samaj, 1991 (Suppl.)2 SCC 141 ; T.S. Thirunvengadam v. Secretary to the Government of India, 1993 (2) SCC 174 ; Union of India v. Sudhir Kumar Jaiswal, 1994 (4) SCC 212 ; University Grants Commission v. Sadhana Chaudhary & ors., 1996 (10) SCC 536 ; State of Rajasthan & Anr. v. Amrit Lal Gandhi & ors., AIR 1997 SC 782 ; Rabindranath Mukhopadhyay v. Coal India Ltd. and another, 1997(4) SCC 252 ; State of Haryana v. Rai Chand Jain & ors., 1997 (5) SCC 167 ; Union of India & os. v. Lieut. (Mrs.) E. Iacats, 1997 (7) SCC 334 ; State of Rajasthan v. Hitendra Kumar Bhatt, 1996 (6) SCC 574 ; Dr. Ami Lal Bhat v. State of Rajasthan & ors., 1997(6) SCC 614 ; M.C. Dhingra v. Union of India and others, 1996 (7) SCC 564 ; Chairman, Railway Board & ors. v. C.R. Rangadhamaiah & ors., 1997 (6) SCC 623 ; J & K Public Service Commission etc. v. Dr. Narinder Mohan & ors., AIR 1994 SC 1808 ; Union of India and others v. M. Bhaskar and others, 1996 (4) SCC 416 . 11. The ratio of the aforesaid judgments is that if the State cannot bear the financial burden to meet a particular requirement, it may be a sufficient cause to fix a particular cut off date and even to make the law with retrospective effect. However, the basis must be shown to have a nexus with the object of calssification as well as of legislative exercise. If the choice of fixing a particular date is shown to be wholly arbitrary and introduces discrimination, which violates the mandate of Article 14 of the Constitution, the date can be struck down for the reason that a purpose of choice unrelated to the object sought to be achieved cannot be accepted as valid. However, in a given case the fixing of a period of experience or from what particular date it will run, are within the legislative competence and wisdom and there is nothing which may warrant a Court to invalidate such an enactment/executive instruction. If the law/rules/regulation is to be based on experience and the legislature has the freedom to choose the minimum period of experience required and the date from which such experience is to be cornputed, i.e. fixation of a certain tenure of service for the purpose of grant of advanced increment(s)/absorption/ regularisation/promotion, then fixation of such criteria has a rational nexus with the object sought to be achieved. In such matters, the homogeneous class of existing employees cannot be divided in two separate classes on arbitrary and irrational basis. In such matters, the homogeneous class of existing employees cannot be divided in two separate classes on arbitrary and irrational basis. If fixing of a cut off date is not devoid of rational consideration and wholly not whimsical and the Authorities had not acted malafide with a view to deprive a particular section of employees of such benefits and the cut off date has been fixed on the recommendation of the Expert Committee/Board or on proper consideration by the Authority concerned, it may meet the test of reasonableness and cannot be held arbitrary. While examining the cases like the instant, the Court has to be very conscious because judicial review is not permissible unless the Court is satisfied that the cut off date is "very wide off the reasonable mark or so capricious or whimsical as to permit judicial interference." In all such matters, the Government/Authority has to fix a particular date for computing the eligibility and if the date so adopted meets the test of reasonableness, it cannot be invalidated merely on the ground that it may adversely affect some persons. In such a case the rational behind the Policy has to be examined. In Tamilnadu Education Department Ministerial and General Subordinate Services Association etc. v. State of Tamilnadu and others, AIR 1980 SC 379 , the Hon'ble Apex Court has observed as under:- "Once the principle is found to be rational the fact that a few freak instances of hardship may arise on either side cannot be a ground to invalidate the order or the policy. Every cause claims a martyr and however unhappy we be to see the seniors of yesterday becoming the juniors of today, this is an area where absent arbitrariness and irrationality, the Court has to adopt a hands-off policy." 12. In State of Rajasthan and another v. Amrit Lal Gandhi (supra), the Hon'ble Supreme Court has held that for the purpose of fixing the cut off date, the paying capacity of the Authority/State is a relevant consideration. Similar view has been taken in State of U.P. v. Jugendra Singh and another, (1998) 1 SCC 449 , wherein the Hon'ble Supreme Court distinguished the case of D.S. Nakara (supra) and held that liberalised provisions introduced giving a particular benefit to a particular class of employees cannot be said to be arbitrary. Similar view has been taken in State of U.P. v. Jugendra Singh and another, (1998) 1 SCC 449 , wherein the Hon'ble Supreme Court distinguished the case of D.S. Nakara (supra) and held that liberalised provisions introduced giving a particular benefit to a particular class of employees cannot be said to be arbitrary. In State of Orissa v. Ashwani Kumar Datta, (1998) 3 SCC 613 , the Court examined the validity of the cut off date while giving benefit of pay-scale to the teachers of aided non-government colleges and found it neither arbitrary nor unreasonable as the burden of providing the grant-in-aid for the said purpose was on the public exchequer. Similar view has been reiterated in Union of India and others v. K.G. Radhakrishna Panickar and others, (1998) 5 SCC 111 , wherein the Court held that the principle laid down by the Hon'ble Supreme Court in D.S. Nakara (supra) can have application between similar set of employees and the said principle has no application where a new benefit is conferred to another set of employees with effect from a particular date and in such circumstances, the conferment of the benefit with effect from a particular date cannot be held to be violative of Article 14 of the Constitution on the basis that such benefit has been conferred on certain categories of employees from earlier date. The same view has been reiterated in Hari Ram Gupta v. State of U.P. and others, (1998) 6 SCC 328 and the principle laid down in D.S. Nakara (supra) has not been applied holding that the employees recruited prior to the cut off date from a class in itself and Articles 14 and 16 of the Constitution are not attracted. In Transport Manager, Pune Municipal Transport Undertaking v. Basant Gopal Bhagwat & ors., (1998) 7 SCC 475 ; State of West Bengal v. Monotosh Roy & Anr. (1999) 2 SCC 71 ; Tamil Nadu Electricity Board v. R. Veerasamy & ors., (1999) 3 SCC 414 , the same view has been reiterated. 13. A Constitution Bench of the Hon'ble Supreme Court, in Union of India & ors. (1999) 2 SCC 71 ; Tamil Nadu Electricity Board v. R. Veerasamy & ors., (1999) 3 SCC 414 , the same view has been reiterated. 13. A Constitution Bench of the Hon'ble Supreme Court, in Union of India & ors. v. M.V. Valliappan & ors., (1999) 6 SCC 259 , has held that a cut off date cannot be held to be invalid unless it is shown to be capricious or whimsical and it cannot be held to be so merely in absence of any particular reason for choosing the same. The Court observed as under : "It is settled law that the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances; while fixing a line of point is necessary and there is no mathematical date or way of fixing it, precisely the decision of the Legislature or its delegate must be accepted unless it is very wide of reasonable mark. ( University Grants Commission v. Sadhana Chaudhary, (1996) 10 SCC 536 ) . The learned counsel for the respondents was not in a position to point out any ground for holding that the said date is capricious or whimsical in the circumstances of the case." 14. In Bhupinderpal Singh v. State of Punjab, (2000) 5 SCC 262 , the Hon'ble Supreme Court placed reliance upon large number of its earlier judgments, particularly in Ashok Kumar Sharma v. Chandra Shekhar, (1997) 4 SCC 18 ; Andhra Pradesh Public Service Commission Vs. B. Sharat Chandra, (1990) 2 SCC 669 ; and N.V. Nair v. Union of India, (1993) 2 SCC 429 , and observed as under: "The High Court has held that (i) the cut off date, by reference of which the eligibility required must be satisfied by the candidate seeking a public employment, is the date appointed by the relevant rules and if there be no cut off date appointed by the rules then such date, as may be appointed for the purpose in the advertisement seeking for application; (ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed, by which the application has been received by the Authority. The view taken by the High Court is supported by several decisions of this Court and is, therefore, well settled and hence cannot be found fault-with." 15. The said judgment was considered and approved by the Hon'ble Supreme Court in Jasbir Rani & ors. Vs. State of Punjab & ors., (2002) 1 SCC 124 . Similarly, in State of West Bengal & Anr. Vs. West Bengal Government Pensioners Association & ors., (2002) 2 SCC 179 , the Hon'ble Supreme Court approved the cut off date fixed by the State for the purpose of revising the pay scale, observing that the cut off date cannot be set aside unless on the facts it is proved to be arbitrary and unreasonable. 16. In the instant case, the cut off date has been fixed as per the Statutory provisions and learned counsel for petitioner could not point-out how the impugned cut off date be held to be arbitrary. Thus, the contention is liable to be rejected. 17. In view of the above, this case is squarely covered by the aforesaid judgments of the Hon'ble Supreme Court. Filling of vacancies by direct recruitment cannot be clubbed year-wise, no relief can be granted to the petitioners. 18. There is no force in the submission made by the learned counsel for petitioner that to fill up the vacancies of other posts under the same Rules, a different cut off date has been fixed. As the another advertisement relates to different posts, petitioner cannot take any benefit thereof. It is possible that the another advertisement might have been issued inadvertently or by mistake. Further, whether that advertisement is under challenge or not, is also not known. The petition is accordingly dismissed. Petition dismissed. *******