JUDGMENT 1. :- The petitioner has filed this writ petition challenging validity of the order dated 25.6.1993 (Ann.3) passed by respondent Rajasthan Public Service Commission (For short "the RPSC"). By this order, the respondent RPSC held the petitioner ineligible to appear in the combined competitive examination of the year 1992 as a general candidate. This examination was conducted by the RPSC under the provisions of the Rajasthan State & Subordinate Services (Direct Recruitment by Combined Competitive Examinations) Rules, 1962 (for short "the Rules of 1962"). Rule 4 of the Rules 1962 provides that notwithstanding anything contained in any rule governing direct recruitment through the agency of the Commission to the posts in State and Subordinate Services mentioned respectively in Schedule I and Schedule II, direct recruitment to such posts shall be by a combined competitive examination to be conducted by the Commission in accordance with these rules. Its proviso provided that 7% of the available vacancies in the State Service be filled in by direct recruitment shall, subject to the provisions of sub-rule (2), be reserved for the candidates, who are non-gazetted employees of the Government. 2. The petitioner has contended that at the time when the RPSC conducted the examination for the State service in the year 1990, he was working as Naib Tehsildar and was therefore eligible to appear against the quota of non-gazetted employees. However, when the result was declared by the RPSC, he instead of being considered as non-gazetted employee, was treated as a general candidate. The petitioner further contended that RPSC again conducted the examination in the year 1992 and the petitioner again appeared in such examination and was eventually declared successful. However the RPSC informed the petitioner by the impugned order dated 25.6.93 that the chance availed of by the petitioner in the year 1990 was treated from the general quota and required the petitioner to clarify as to how he could be allowed to appear against NGE quota in the year 1992 when as per his own showing in the column 13 of the application form he was working as Tehsildar from 15.10.85 which was a gazetted post. The petitioner submitted reply to the said communication to the RPSC vide letter dated 3.7.93 (Ann.4). The petitioner submitted reply to the said communication to the RPSC vide letter dated 3.7.93 (Ann.4). In the reply, the petitioner clarified that in the relevant rules he has availed three general chances respectively in the years 1983, 1987 and 1989 and therefore fourth chance has been availed by the petitioner against NGE quota in the year 1990. The petitioner was selected to Rajasthan Tehsildar Services in the year 1983 and was appointed on the post of Naib Tehsildar and was promoted on the post of Tehisildar on 31.12.1990 which is a gazetted post. The petitioner contended that he could not be treated against the NGE quota for the selection for 1991. He therefore prayed that he should be treated as a general candidate in so far as examination of the year 1991 is concerned and should be allowed to face interview. 3. The RPSC has contested the present writ petition by filing reply thereto. It was denied that the petitioner was allowed to appear in the combined competitive examination in the year 1990 against the quota of NGE. In fact, the petitioner was allowed to appear in the examination of the year 1990 only as a general category candidate. It was submitted that the upon receipt of requisition from the State Govt. the RPSC issued advertisement on 18.1.1990 for holding the combined competitive examination which was published in various news-papers on 24.1.990. Last date for receipt of applications for such examination was fixed as 9.3.1990. This last date was subsequently extended to 9.4.1990 vide corrigendum dated 8.3.1990 copy of which has been placed on record as Annex. R/1 Initially, the maximum age of eligibility for this recruitment was 31 years as on 1.1.1991. However, the Government vide notification dated 20.3.1990 increased the upper age limit to 33 years. The State Govt. thereafter amended the rule 11(1) of the Rules, 1962 so as to provide for fourth chance for the general category candidates in place of three chances. Thus, in fact one more chance was given to the general category candidates and as a result of which the last date for receipt of the application form was again extended from 9.4.1990 to 25.9.90 vide corrigendum dated 2.4.1990 vide Annex. R/5. In the year 1990, the petitioner was treated as general category candidate having availed fourth chance by virtue of amendment carried out in rule 11(1) of the Rules, 1962. R/5. In the year 1990, the petitioner was treated as general category candidate having availed fourth chance by virtue of amendment carried out in rule 11(1) of the Rules, 1962. Since the petitioner had earlier appeared as a general candidate in the Combined Competitive Examination held in the year 1983, 1987 and 1989, the amendment in the rules having been made before the last date of submission of the application forms, the petitioner became eligible to avail of fourth chance also as a general category candidate in the year 1990. 4. The RPSC issued advertisement again on 19.10.1991 for holding Combined Competitive Examination for the year 1992 and the last date for submission of application forms therefore was fixed as 7.12.1991. When the petitioner applied in response to the said advertisement, he was provisionally allowed to appear in the written examination. However upon proper scrutiny of application forms, it transpired that the petitioner had already availed of four chances as a general category candidate i respectively in the year 1983, 1987, 1989 and 1990. However he could not be allowed to appear against NGE quota in so far as the combined competitive examination held in the year 1992, since at that time, he was working on the post of Tehsildar which is a gazetted post. The petitioner was accordingly informed vide communication dated 25.6.1993 (Ann.3) 5. I have heard Shri Jinesh Jain learned counsel appearing for the petitioner and Shri S. N. Kumawat, learned counsel appearing for respondent RPSC. 6. Shri Jinesh Jain submitted that action of the RPSC in not treating himr a non-gazetted employee for appearing in the combined competitive examination of the year 1990 is illegal and discriminatory. It was argued that the RPSC has allowed similarly situated persons chance to appear in the combined competitive examination of the year 1990 as non-gazetted employee. It was argued that at the time when the advertisement was issued on 18.1.1990 for inviting applications from the candidates to appear in the combined competitive examination, rule 11(1) of the Rules, 1962 had provided only 3 chances to general category candidates. The petitioner therefore, rightly applied to appear against the quota of NGE. It was argued that at the time when the advertisement was issued on 18.1.1990 for inviting applications from the candidates to appear in the combined competitive examination, rule 11(1) of the Rules, 1962 had provided only 3 chances to general category candidates. The petitioner therefore, rightly applied to appear against the quota of NGE. According to Shri Jain, the amendment made in rule 11(1) of the Rules, 1962 should not have been applied to the combined competitive examination of the year 1990 as any such amendment brought in the mid stream of the recruitment process could be applied only prospectively. Shri Jain, therefore, argued that the opportunity to appear fourth time should have been allowed to the petitioner in the combined competitive examination held in the year 1992. Shri Jain in support of his argument relied upon the judgment of the Apex Court in Secretary A.P. Public Service Commission V/s. B. Swapna and Others (2005) 4 SCC 154 ) . 7. Per contra, Shri S. N. Kumawat, learned counsel appearing for respondent RPSC argued that the eligibility would have to be adjudged on the last date of receipt of the application form and amendment in rule 11(1) of the Rules, 1962 having already been made before the last date for submission of application forms for combined competitive examination of the year 1990, the petitioner became eligible to avail of the fourth chance as general candidate. Shri Kumawat argued that the petitioner having declared in column 13 of the application form that he was working on the post of Tehsildar in any case could not have been considered as non-gazetted employee. He further argued that rule 4(2)(v) of the Rules, 1962 clearly provides that in order to be eligible to compete against the quota of non-gazetted employee, the candidate shall not be eligible to appear in the examination as an open market candidate. Once the petitioner was eligible to appear as an open market candidate in the examination of the year 1990, there was no question of allowing him to appear in NGE quota even if it is accepted that the petitioner was not working on the post of Tehsildar but as Naib-Tehsildar as has been subsequently claimed by him. Shri Kumawat relied upon the judgment of this court in Keshar Singh Shekhawat V/s The State of Rajasthan & Ors. Shri Kumawat relied upon the judgment of this court in Keshar Singh Shekhawat V/s The State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 2635/1995) decided on 12.12.1995 wherein this court upon examination of the scheme of the Rules, 1962 especially its rule 4, has taken the view that the proviso to sub-rule (1) of Rule 4 has made the reservation of NGE quota subject to the provisions of sub-rule (2) of Rule 4 and therefore, a clear mandate has been given under the rule with regard to eligibility that a candidate must not be eligible to appear in the examination as an open market candidate. This Single Bench judgment has been upheld by the Division Bench in case of Surendra Maheshwari & another V/s. The State & Others (1998 WLC (Raj.) UC 74) . 8. I have given my thoughtful consideration to the arguments advanced by both the learned counsel and respectfully studied the judgment cited from both the sides. Proviso to rule 4(1) of the Rules, 1962 has provided that 7% of the available vacancies in the State Service to be filled in by direct recruitment shall, subject to the provisions of sub-rule (2) be reserved for candidates who are non-gazetted employees of the Government, Panchayat Samitis and Zila Parishads. Sub-rule (2) of Rule 4 of the Rules, 1962 reads as under : 4. Combined Competitive Examination for State and Subordinate Services.-(2) In order to be eligible to compete at the combined competitive examination, an employee referred to in sub-rule (1), must satisfy the following conditions: (i) Educational Qualifications.-He must hold a degree in Arts, Science, Commerce or Agriculture of a University established by law in India or of a foreign University declared by Government in consultation with the Commission to be equivalent of a degree of a University established by a law in India. (ii) Age.-He must have attained the age of 25 years and must not have attained the age of 40 years on the first day of January next following "last date fixed for receipt of applications." (iii) Experience:-He must have completed not less than five years of service (whether officiating or substantive, on the 1st day of January next following the "last date fixed for receipt of applications." (iv) Chances in the Examination:-He shall not be allowed to avail of more than "three chances" under this rule. (v) Eligibility: He must not be eligible to appear in the examination as an open market candidate. In filling the vacancies so reserved, candidates who are "employees" shall be eligible for appointment in the order in which their names appear in the list irrespective of their relative marks as compared with other candidates.If a sufficient number of candidate who are employees are not available for filling all the vacancies so reserved, the remaining vacancies shall be filled by appointment by other candidates in the list. 9. It would thus be evident from the scheme of the Rules that in order to be eligible to compete at the combined competitive examination as a non-gazetted employee, a candidate shall have to satisfy all five requirement with regard to the educational qualification, age, experience, chances in the examination and eligibility as has been enumerated under the aforesaid sub-rule, the fifth and most significant requirement being that of eligibility. Rule 4(2)(v) provides that the candidate must not be eligible to appear j wherein it has been provided that the candidate must not be eligible to appear in the examination as an open market candidate. This very question came up for consideration before a Single Bench of this court in Keshar Singh Shekshawat's case (supra) where the petitioner having applied as an open market candidate requested for change of the category to quota of non-gazettedemployees. The RPSC in that case cited newly inserted proviso to 15 of the Rules, 1962 which was added on 15.5.93 and as a result of which the last date for submission of application forms was extend to 30.6.1993. It was argued that since by virtue of the newly added proviso, the petitioner Keshar Singh Shekhawat in spite of having availed of four chances envisaged in rule 11(1) had become entitled to avail of one more chance, he cannot be considered eligible to appear against the NGE quota because of the ban contained in rule 4(2)(v). It was in this context that the learned Single Judge while dismissing the writ petition held that so long as the petitioner was eligible to avail fifth chance, he would not be eligible to appear against NGE quota. This judgment of the learned Single Judge was subjected to challenge before the Division Bench also. It was in this context that the learned Single Judge while dismissing the writ petition held that so long as the petitioner was eligible to avail fifth chance, he would not be eligible to appear against NGE quota. This judgment of the learned Single Judge was subjected to challenge before the Division Bench also. The Division Bench vide its judgment in Surendra Maheshwari's case (supra) upheld the view taken by the learned Single Judge and held that once when petitioner Keshar Singh Shekhawat opted to avail fifth chance as general candidate, he would be treated as general category candidate as the question of consideration of his case in NGE did not arise at all. The appeal preferred by Keshar Singh Shekhawat was therefore rejected. 10. I have also respectfully examined B. Swapna's case (supra) relied upon by the learned counsel for petitioner. In my opinion, the controversy in the said judgment was with regard to change of selection criteria after the commencement of process of selection. In that case, during the period of operation of wait list, a new requisition was sent to A.P. Public Service Commission by the competent authority instead of appointing respondent No. 1 before the Supreme Court who was placed in the reserve list. Rule 6 relating to wait list candidates was amended with effect from 30.7.1997. According to this amended provision, the falkout vacancies, if any due to relinquishment and non-joining-etc., of the selected candidates were to be notified in the next recruitment. The High Court allowed the writ petition of the candidate concerned directing the A.P. Public Service Commission to forward his name to the Govt. for appointment and held that the fallout vacancies, even the fresh vacancy, should be filled up from wait list. It was contended on behalf of the PSC that the fact that the fresh advertisement was issued clearly indicated that the Commission did not want the ranking list to be given effect to. In view of newly amended rule it had the power to freeze the ranking list for reasons recorded. In this context, the Apex Court in para 14 of the judgment held as under : "Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. In view of newly amended rule it had the power to freeze the ranking list for reasons recorded. In this context, the Apex Court in para 14 of the judgment held as under : "Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criterion e.g. minimum percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is because every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect existing rights the rule must be held to be prospective. If the rule is expressed in a language which is fairly capable of either interpretation it ought to be considered as prospective only." 11. When the amendment in rule 11(1) was made so as to allow four chances to the open market candidates, the last date for submission of application forms for all the eligible candidates was extended from 9.4.90 to 25.4.90 by issuing corrigendum dated 2.4.90. The Logic behind extention of this last date was based on fair play as observed by their lordship of the Supreme Court in the judgment B. Swapna's case (supra) so that no candidate could have any grievance that had he known of the amendment in the eligibility criteria, he could have also applied to avail of fourth chance. Once when the last date for submission of application forms was extended, it cannot be argued that the amended rule would have retrospective effect. The question with regard to the cut off date for eligibility was decided by the Hon'ble Supreme Court in case of Bhupinderpal Singh and Others V/s. State of Punjab and Others (2000) 5 SCC 262 ) . The question with regard to the cut off date for eligibility was decided by the Hon'ble Supreme Court in case of Bhupinderpal Singh and Others V/s. State of Punjab and Others (2000) 5 SCC 262 ) . In para 13 of the said judgment, their lordships of the Supreme Court while upholding the view taken by the High Court held that the High Court rightly discerned the law on the subject, namely; (i) that the cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut off date appointed by the rules then such date as may be appointed for purpose in the advertisement calling for applications; (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 applications have to be received by the competent authority. 12. In the present case when the last' date of receipt of the application forms was extended by RPSC in keeping with the principles of fair play and with a view to providing opportunity to all eligible candidates, the contention of the petitioner that the amended rule 11(1) was applied retrospectively cannot be accepted. Even otherwise eligibility criteria is required to be applied with reference to the last date appointed by the competent authority for receipt of application forms. The amendment in rule 11(1) having been made much before the last date of submission of the application forms, all eligible candidates stood duly notified by the RPSC by issuing a corrigendum. For these reasons it can also be accepted that the amended rules were applied retrospectively so as to defeat the claim of any eligible candidate. As per scheme envisaged in rule 4 of Rules, 1962, a candidate can be held eligible against the quota of NGE only if he has exhausted all the chance to appear in the examination as an open market candidate. In my view, the action of RPSC in not permitting the petitioner to appear against the NGE quota. As per scheme envisaged in rule 4 of Rules, 1962, a candidate can be held eligible against the quota of NGE only if he has exhausted all the chance to appear in the examination as an open market candidate. In my view, the action of RPSC in not permitting the petitioner to appear against the NGE quota. in the year 1990 did not suffer from any legal infirmity and therefore, the petitioner could not be allowed one more chance as a general candidate in the combined competitive examination of the year 1992 as by then he had already availed of four chances as a general candidate and had seized to be non-gazetted employee having been promoted to the post of Tehsildar which is a gazetted post. 13. In view of the aforesaid discussion, the writ petition filed by the petitioner is hereby dismissed.Petition Dismissed. *******