JUDGMENT 1. - This appeal is directed against the order dated 26.08.2013 passed by the learned Single Judge in SBCWP No.7824/2012 and in other connected writ petitions, whereby the learned Single Judge, while allowing the writ petitions, has directed the appellant-RPSC to grant the benefit of relaxation in upper age limit up to the period of three years to the writ petitioners and consider their candidature for recruitment on the post of Sub Inspector in Rajasthan Police under Rajasthan Police Subordinate Service Rules, 1989 (for short 'the Rules of 1989' hereinafter) for the selections held for the vacancies advertised in the year 2010. However, the learned Single Judge has restricted the said benefit up to those candidates only, who have approached the Court within time and in whose cases, this Court has passed the interim for participation in the interview. 2. Brief facts of the case are that the Rajasthan Public Service Commission, Ajmer, vide advertisement dated 25.11.2010, had invited applications for the post of Sub Inspector of Police from the eligible candidates for their appearance in Sub Inspector of Police Combined Competitive Examination-2010. In pursuance of the said advertisement, the respondent-petitioner had applied and was allowed to appear in the written examination held on 25.05.2011. It is claimed by the respondent-petitioner that after clearing the written examination, he also undertook physical test, in which, he was declared successful and qualified for interview, however, he was not called for interview on the ground that he has crossed the maximum age limit of 23 years as prescribed in the advertisement in pursuance to the provisions of Rules of 1989. 3. The respondent-petitioner filed the aforesaid writ petition before this Court and prayed that he should be granted relaxation of three years in the maximum age as has been provided in the other service Rules of the State because the appellants have not advertised vacancies every year and advertised the vacancies after a period of three years. It is also claimed that the respondent-petitioner is entitled to get the relaxation of three years in upper age limit as per Rule 11(3) of Rules of 1989. 4. It is also claimed that the respondent-petitioner is entitled to get the relaxation of three years in upper age limit as per Rule 11(3) of Rules of 1989. 4. The learned Single Judge, vide impugned order dated 26.08.2013, has allowed the writ petition preferred by the respondent-petitioner along with other writ petitions and held that since the State Government vide notification dated 23.09.2008 has provided age relaxation of three years in the upper age limit in 72 other Service Rules by inserting a new provision to the said rules to the effect that if a candidate would have been entitled in respect of his/her age for direct recruitment in any year in which no such recruitment was held, he/she shall be deemed to be eligible in the next following recruitment if he/she is not overage by more than three years, its action of denying the same benefit to the candidates, who had applied for the post of Sub Inspector of Police, is discriminatory and directed to grant age relaxation in the upper age limit up to three years to the candidates, who were eligible to participate in the selection process in between the years 2007 to 2010 and consider their cases for appointment on the post of Sub Inspector of Police as per their performance in the interview. 5. The Rajasthan Public Service Commission, being aggrieved with the aforesaid directions of the learned Single Judge, has preferred this appeal. 6. Learned Senior Counsel Mr J.P.Joshi assisted by Mr Siddharth Joshi appearing on behalf of the appellant-RPSC has argued that the directions given by the learned Single Judge to grant age relaxation to the respondent-petitioner are erroneous for the reason that it is settled law that no mandamus can be issued either to enact a rule in a particular manner or to enact rule by assuming the powers of rule making authority. It is contended that if the rule making authority decided to grant benefit of age relaxation vide its notification dated 23.09.2008 in various service rules leaving behind the Rajasthan Police Subordinate Service Rules, no mandamus can be issued to include the Rajasthan Police Subordinate Service Rules in the said notification. It is also contended that while issuing a mandamus, by exercising powers under Article 226 of the Constitution of India, the Single Judge cannot give any direction to enact any rule or provision in a rule. It is also contended that while issuing a mandamus, by exercising powers under Article 226 of the Constitution of India, the Single Judge cannot give any direction to enact any rule or provision in a rule. It is contended that the learned Single Judge has exceeded in its jurisdiction by directing the appellant-respondent to include Rajasthan Police Subordinate Service Rules in the schedule appended to the notification dated 23.09.2008. Mr J.P.Joshi has further argued that the State Government, while rejecting the demand of the respondent-petitioner for grant of age relaxation in the Rajasthan Police Subordinate Service Rules, has taken into consideration the requirement of the service in the police department and has thereafter decided not to grant the relaxation in age by three years. It is also contended that the rule making authority, in its wisdom, considered it appropriate not to include Rajasthan Police Subordinate Service Rules in the schedule appended to the notification dated 23.09.2008 and the wisdom of the rule making authority cannot be questioned by claiming parity with other service rules because that power has to be exercised by the rule making authority under Article 309 of the Constitution of India as to what is requirement of a particular category of service and what eligibility condition should be provided for a particular category of service. It is also argued that no parity can be claimed by one category of service with other category of service and, therefore, the findings and conclusions of the learned Single Judge in this regard are erroneous and liable to be set aside. The learned counsel for the appellant has further reiterated that the State Government has rejected the demand of the respondent-petitioner for age relaxation on valid grounds as the grant of said benefit was not in the interest of the service in the police department because the requirements of service in police department are different from other category of services and the respondent-petitioner cannot claim parity with conditions of other service rules as a matter of right. 7. The learned counsel for the appellant has also argued that the action of the appellant of not advertising vacancies every year cannot be made basis for granting age relaxation to the respondent-petitioner. 7. The learned counsel for the appellant has also argued that the action of the appellant of not advertising vacancies every year cannot be made basis for granting age relaxation to the respondent-petitioner. While placing reliance on a decision of Hon'ble Supreme Court in RPSC v. Smt. Anand Kanwar (Civil Appeal No.52/1993) dated 08.02.1995 , it has been argued by the learned counsel for the appellant that direction given by the learned Single Judge in granting benefit of age relaxation up to three years to the respondent-petitioner on the ground that appellant has failed to advertise vacancies every year, is clearly in contravention of the law laid down by the Hon'ble Supreme Court, wherein the Hon'ble Supreme Court has held that due to inaction on the part of the State Government in not filling the posts year wise, a candidate cannot get a right to participate in the selection despite being over aged. The learned counsel for the appellant has further submitted that the learned Single Judge has misread the judgment passed by the Division Bench in Prem Ratan Modi v. State of Rajasthan & Ors., 2013 (1) WLC (Raj.) 39 : 2003 Lab IC 1039 (Raj.) , wherein the Division Bench, while following the principle of law as laid down by the Hon'ble Supreme Court in RPSC v. Smt. Anand Kanwar (supra), has held that benefit of age relaxation cannot be granted for the period other than what has been prescribed in the relevant rules. The learned counsel for the appellant has, therefore, prayed that the impugned order dated 26.08.2013 may kindly be set aside and the writ petition filed by the respondent-petitioner may kindly be dismissed. 8. Per contra, Mr Mahaveer Bishnoi, learned counsel for the respondent No.1 has supported the impugned order and vehemently argued that since the State Government has failed to advertise vacancies year wise in contravention of the provisions of the Rules of 1989, the learned Single Judge has rightly issued directions to the State Government to grant age relaxation to the respondent-petitioner up to three years because in the present case, the appellant-RPSC has advertised the vacancies after a period of three years. The learned counsel for the respondent No.1 has also argued that the State Government has not included the Rules of 1989 in the notification dated 23.09.2008 because in the Rules of 1989, the provision for grant of age relaxation has already been incorporated in Rule 11(3) of the Rules of 1989. It is further contended that the reasons given by the State Government for not granting benefit of age relaxation vide order dated 27.11.2012 are not justifiable and, therefore, the learned Single Judge has rightly quashed the said communication dated 27.11.2012. It is also contended by the learned counsel for the respondent-petitioner that since the directions given by the learned Single Judge for granting age relaxation to only those persons, who have approached the Court in time and has participated in interview in pursuance of the interim order passed by this Court, and numbers of such persons are very few, no interference is called for and the appeal preferred by the RPSC is liable to be dismissed. 9. Heard learned counsel for the rival parties and perused the impugned order as well as the material placed on record. 10. After careful examination of the matter and taking into consideration the law laid down by the Hon'ble Supreme Court as well as of this Court on the question involved, we find merit in this appeal. 11. It is settled principle of law that the High Court, while exercising powers under Article 226 of the Constitution of India, cannot function as a rule making authority. The directions given by the learned Single Judge to include the Rules of 1989 in the notification dated 23.09.2008, whereby age relaxation up to three years has been provided in 72 other service rules, are beyond the competence of High Court. 12. In Jamaluddin v. State of Jammu & Kashmir & Ors., AIR 2012 SC 291 , the Hon'ble Supreme Court, while dealing with the question of providing age relaxation in Jammu & Kashmir Judicial Services, has held as under: "15. In the present case the advertisement of the Public Service Commission issued in the year 2002, required the persons concerned to be of less than thirty five years of age at the relevant time. That age limit applied to all the candidates. In the present case the advertisement of the Public Service Commission issued in the year 2002, required the persons concerned to be of less than thirty five years of age at the relevant time. That age limit applied to all the candidates. There was no age relaxation in favour of the candidates belonging to the Scheduled Castes or Scheduled Tribes, though there was a quantum of reservation provided for them. The earlier resolution of the Full Court of the High Court passed in February 1982, will therefore, have to be read as providing only for the quantum and not for any age relaxation. If there is no age relaxation in the rules, the same cannot be brought in by any judicial interpretation. In the circumstances we do not find any error in the judgment of the Single Judge or that of the Division Bench." (Emphasis supplied) 13. The another reason given by the learned Single Judge for allowing the writ petition and for directing to give age relaxation to the respondent-petitioner and other similarly situated persons on the ground that State has failed to hold selection every year, is also not liable to sustain in view of law laid down by Hon'ble Supreme Court and this Court in its earlier decisions. 14. The Hon'ble Supreme Court in RPSC v. Smt. Anand Kanwar (supra) has held as under:- "It was not disputed before the High Court that prior to 1988, recruitment to the cadre of Assistant Teachers was made only in the year 1983. Recruitment to the said cadre is by way of direct recruitment and also by promotion. During the period 1983-89 promotions were being made to the cadre, but not direct recruitment was made. The only contention raised by the respondent before the High Court was that it was mandatory for the Rajasthan Government to have filled the quota of direct recruits during all those years. It was further contended that had the posts meant for direct recruitment been advertised during the year 1983-89, the respondent could have applied and may have been selected. She contended that at that point of time, she could not be rejected on the ground of over-age. The High Court accepted the contentions on the following reasoning:- "...... It was further contended that had the posts meant for direct recruitment been advertised during the year 1983-89, the respondent could have applied and may have been selected. She contended that at that point of time, she could not be rejected on the ground of over-age. The High Court accepted the contentions on the following reasoning:- "...... The last advertisement was issued in the year 1983 and this advertisement has been issued in the year 1989 that is after a lapse of about six years and the petitioner has completed her age of 40 years in the year 1986. It has been held in this authority that if year-wise vacancies are not determined and if the advertisements are issued to fill up the vacancies of six years by the one advertisement, then the person's candidature cannot be rejected on that account..... The competent authority cannot avoid this responsibility by sheer inaction or omission and failure on the part of the competent authority cannot be used as a basis for denying eligibility to those who are eligible in a particular year but become ineligible on account of absence of determination of the vacancies..... She could have been denied right of a consideration only if there existed no vacancies till the time she has attained the age of 40 years. If vacancies were existing, she had a right of consideration and consequently the petitioner who has been allowed to appear in the interview under the orders of the Court, her result of the interview be declared and if she is found suitable for appointment on the basis of the merit that has been assigned to her by the Public Service Commission, she be afforded appointment as a Senior Teacher, which has now been designated as Lecturer in Secondary/Senior Secondary Section). The result be declared within a period of three weeks from today and if she is entitled to be appointed then appointment be accorded to her within 3 months from today." We are of the view that the High Court fell into patent error bordering on perversity in issuing the mandamus on the reasoning quoted above. It is settled proposition of law that the eligibility of a candidate has to be determined on the basis of the terms and conditions of the advertisement in response to which the candidate applies. It is settled proposition of law that the eligibility of a candidate has to be determined on the basis of the terms and conditions of the advertisement in response to which the candidate applies. There is nothing on the record to show that the State Government was in any manner negligent or at fault in not making the direct recruitment during the period 1983-89. Be that as it may, the High Court was not justified in taking the clock back to the period when unfilled vacancies were existing and holding that since the respondent was eligible on the date when vacancies fell vacant, she continues to be so till the time the vacancies are filled. Due to inaction on the part of the State Government in not filling the posts year-wise, the respondent cannot get a right to participate in the selection despite being over-aged. We, therefore, allow the appeal and set aside the judgment of the High Court and dismiss the writ petition filled by the respondent. No costs." 15. The Hon'ble Supreme Court, in Dr. Ami Lal Bhat v. State of Rajasthan & Ors. reported in JT 1997(6) SC 72 : AIR 1997 SC 2964 , while taking into consideration Rule 11-A of the Rajasthan Medical Services (Collegiate Branch) Rules, 1962, has held as under:- "10. It is next contended on behalf of the appellants/petitioners that under all the concerned service rules there is a provision for age relaxation. In Rule 11(A) of the Rajasthan Medical Services (Collegiate Branch) Rules, there is a provision for age relaxation by 5 years by the Government in consultation with the Commission. There is also Rule 35 in the said Rules which gives a general power to relax rules in exceptional cases where the Government is satisfied that it is necessary, inter alia, to relax any provision of these Rules with respect to age or experience of any person and this can be done with the concurrence of the Department of Personnel and Administrative Reforms and in consultation with the Rajasthan Public Service Commission. It is urged that in the case of all those persons who are adversely affected because the advertisement for recruitment is issued later than the occurrence of the vacancy, corresponding age relaxation should be given to all candidates. It is urged that in the case of all those persons who are adversely affected because the advertisement for recruitment is issued later than the occurrence of the vacancy, corresponding age relaxation should be given to all candidates. In other words, what is contended is that if on the date when the vacancy occurred, the candidates were within the maximum age prescribed by reference to the cut off date, then if the advertisement is delayed, their age should be considered with reference to the cut off date of 1st January following the date of occurrence of vacancy. For example, if the vacancy has occurred on 1st of April of a given year, and the applicant would be within the maximum age on the 1st of January of the following year, then such a candidate will be considered as eligible even if the advertisement is issued not in April of that year but say February of the following year. All the candidates will get age relaxation of one year. 11. In our view this kind of an interpretation cannot be given to a rule for relaxation of age. The power of relaxation is required to be exercised in public interest in a given case; as for example, if other suitable candidates are not available for the post, and the only candidate who is suitable has crossed the maximum age limit; or to mitigate hardship in a given case. Such a relaxation in special circumstances of a given case is to be exercised by the administration after referring that case to the Rajasthan Public Service Commission. There cannot be any wholesale relaxation because the advertisement is delayed or because the vacancy occurred earlier especially when there is no allegation of any mala fides in connection with any delay in issuing an advertisement. This kind of power of wholesale relaxation would make for total uncertainty in determining the maximum age of a candidate. It might be unfair to a large number of candidates who might be similarly situated, but who may not apply, thinking that they are age barred. We fail to see how the power of relaxation can be exercised in the manner contended." 16. In Prem Ratan Modi v. State of Rajasthan & Ors. It might be unfair to a large number of candidates who might be similarly situated, but who may not apply, thinking that they are age barred. We fail to see how the power of relaxation can be exercised in the manner contended." 16. In Prem Ratan Modi v. State of Rajasthan & Ors. (supra), the Co-ordinate Bench of this Court, while relying on the decision of Hon'ble Supreme Court rendered in RPSC v. Smt. Anand Kanwar (supra) and in Malik Mazhar Sultan & Anr. v. U.P. Public Service Commission & Ors., (2006) 9 SCC 507 , has refused to grant the benefit of age relaxation to the appellants therein beyond the period as provided in the concerned rules and has held as under: "In the ultimate analysis, age relaxation for the direct recruitment, if to be granted, would be a matter for the Government to prescribe in the relevant Rules; and beyond what has been prescribed, cannot be claimed as a matter of right. It appears that in order to mitigate against the hardship likely to be faced by the prospective candidates but at the same time maintaining the balance of the requirements of services, the Government has provided age relaxation upto 3 years by way of notifications of amendment as issued on 23.09.2008. Taking for example the recruitment in question, the maximum age limit as prescribed in the Rules is 35 years and it gets extended to 38 years with the relaxation provided. If at all the factor of not holding of recruitment for 13 years is taken into consideration and the relaxation for all the years of not holding recruitment is provided as suggested, it would be something like allowing a person even at about 48 years of age to enter into the service as an LDC. The Government, in its wisdom, if has chosen to restrict the relaxation to 3 years beyond the age as prescribed, it cannot be said that anything unreasonable or irrational has been provided." 17. It appears that the law laid down by the Co-ordinate Bench in Prem Ratan Modi's case (supra) has not been applied in correct perspective in the impugned order. 18. It appears that the law laid down by the Co-ordinate Bench in Prem Ratan Modi's case (supra) has not been applied in correct perspective in the impugned order. 18. In the case in hand, the State Government, in its wisdom, has not provided benefit of age relaxation in the Rules of 1989 looking to the requirement of service in the police department, then it is not open to question the said decision of the State Government by claiming parity with other service rules or with other categories of service. 19. The learned counsel for the appellant is right in arguing that no parity can be claimed by one category of service with other category of service and it is within the domain of the employer concerned that in which category of service, the benefit of age relaxation is to be provided. The benefit of age relaxation cannot be claimed as a matter of right and, therefore, the claim of the respondent-petitioner for age relaxation in the maximum age limit while claiming parity with other categories of service is not based on sound proposition of law and, therefore, is liable to be rejected. 20. Consequently, the appeal preferred on behalf of the appellant- RPSC is allowed. The impugned order dated 26.08.2013 passed by the learned Single Judge in SBCWP No.7824/2012 is hereby set aside and the writ petition filed by the respondent-petitioner is dismissed. 21. Stay petition stands disposed of.Appeal allowed. *******