JUDGMENT : 1. Heard learned counsel for the petitioners, learned Standing Counsel appearing for the State-respondents and Sri Saurabh Lavania, learned counsel representing respondent no.3. 2. By means of the present writ petition, the petitioners have prayed for the following main relief:- (a) To issue a writ, order or direction in the nature of mandamus commanding the opposite parties to permit the petitioner to appear/apply in the impugned advertisement against the post of Senior Treatment Supervisor on contractual basis by relaxing the age limit. 3. The case set forth by the petitioner is that on 01.12.2016 the office of the Chief Medical Officer, Bahraich, had published an advertisement to fill in 9 vacancies of Senior Treatment Supervisor on contractual basis and the maximum age limit was specified as 65 years. The petitioner had applied in pursuance to the said advertisement but no selection was conducted. It is the case of the petitioner that previously also vide advertisement dated 03.01.2016, the Chief Medical Officer, Barabanki, had issued an advertisement to fill in vacant posts fixing maximum age as 65 years for the post of Senior Treatment Supervisor but the examination to be conducted in pursuance thereof was not conducted. The petitioner had applied in pursuance to the said advertisement also. 4. Now the petitioner is aggrieved by the impugned advertisement dated June 2018, copy of which is Annexure-1 to the writ petition, by which the vacancies for the post of Senior Treatment Supervisor have once again been advertised but now the upper age limit has been specified as 40 years. 5. Learned counsel for the petitioner contends that earlier when the maximum age was 65 years, the petitioner was perfectly eligible to apply for the same but now by means of the impugned advertisement the age limit has been reduced to 40 years and as such the petitioner is not able to apply for the same as he is aged about 46 years. He further contends that as the said advertisement includes the vacancies of 2016 and 2017 consequently the age limit should be fixed by the respondents as 65 years which would make the petitioner eligible to apply for the same. He further contends that as the said advertisement includes the vacancies of 2016 and 2017 consequently the age limit should be fixed by the respondents as 65 years which would make the petitioner eligible to apply for the same. In this regard, learned counsel for the petitioner has placed reliance on the judgments of the Hon'ble Supreme Court in the cases of K. Manjusree v. State of Andhra Pradesh and another reported in (2008) 3 SCC 512 and Hemani Malhotra v. High Court of Delhi reported in (2008) 7 SCC 11 , to contend that once the recruitment process has started then the rules of the game meaning thereby, the rules of the selection cannot be changed. While placing reliance on the aforesaid judgments, it is thus the specific case of the petitioner that the respondents are not empowered to change the age for the post of Senior Treatment Supervisor from 65 years to 40 years and hence the present petition. 6. Per contra, Sri Saurabh Lavania, learned counsel representing respondent no.3, contends that the post of Senior Treatment Supervisor is to be filled in on contractual basis and it is within the realm/prerogative of the employer to fix any age and there may not be any interference by the Courts of law. In this regard, Sri Lavania has placed reliance on the judgments of the Hon'ble Supreme Court in the cases of Union of India v. Pushpa Rani and others reported in (2008) 2 SCC (L & S) 851 and Subha B. Nair and others v. State of Kerala and others reported in (2008) 2 SCC (L & S) 409. In this regard, it would be apt to reproduce paragraph 37 of the judgment of Pushpa Rani (supra) as under:- "Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open the Court to make comparative evaluation of the merit of the candidates. The Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration. " 7. Sri Saurabh Lavania further submits that so far as the argument on the part of the petitioner that once the vacancies have been advertised in the year 2016 and 2017 yet were not filled in and consequently when again the vacancies have been advertised in the year 2018 as such the petitioner would have a right to apply for the same taking into consideration the age fixed at the time of issue of the advertisement in the year 2016 and 2017 which was 65 years on the ground that the petitioner had acquired a right from the first selection, Sri Lavania has placed reliance on the judgment of Hon'ble the Supreme Court in the case of Subha B. Nair and others (supra) wherein itself reliance has been placed on the earlier judgment in the case of Shankarsan Dash v. Union of India reported in (1991) 3 SCC 47 to argue that even a selected candidate does not have any right for appointment what to talk about the candidate who may have been willing to appear in pursuance to an advertisement for selection and the selection was cancelled. For the sake of convenience, paragraph 18 of the judgment of Subha B. Nair and others (supra) is reproduced as under:- 18. In Shankarsan Dash v. Union of India [ (1991) 3 SCC 47 ], this Court held: 7. For the sake of convenience, paragraph 18 of the judgment of Subha B. Nair and others (supra) is reproduced as under:- 18. In Shankarsan Dash v. Union of India [ (1991) 3 SCC 47 ], this Court held: 7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, Neelima Shangla v. State of Haryana, or Jatinder Kumar v. State of Punjab. [See also Jitendra Kumar & Ors. v. State of Haryana & Anr., 2008 [(2) SCC 161]. 8. Consequently, when the facts of the instant case are tested on the touchstone of the law laid down by the Hon'ble Supreme Court in the case of Pushpa Rani and others (supra) and Subha B. Nair and others (supra), what this Court finds is that it is the prerogative of the employer to fix the age limit for the candidates and there can not be any interference by a Court of law taking into consideration the fact that the creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, etc. all fall within the exclusive domain of the employer. all fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer and the power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. Learned counsel for the petitioner has failed to point out any mala fide on the part of the respondents while issuing advertisement or any mala fide per which the age of recruitment has been reduced from 65 years to 40 years. Thus, this Court does not find any right of the petitioner to have been violated by the respondents while lowering the age of contractual appointees from 65 years to 40 years. 9. As regards the argument raised on behalf of the petitioner that once the recruitment process has started then the rules of selection cannot be changed, suffice to mention that the previous selections which were sought to be initiated through the advertisements dated 01.12.2016 and 03.01.2016 did not see the light of the day meaning thereby they did not proceed further and cancelled. It is now by means of the advertisement that the applications have been invited and upper age limit has been fixed, as such, it is apparent that now the game has started and rules are not being changed meaning thereby that the rules of selection are not being changed and hence even the said argument on behalf of the petitioner is misconceived and is accordingly rejected. 10. Keeping in view the aforesaid facts and circumstances of the case and the law laid down by the Hon'ble Supreme Court, the present petition lacks merit and is accordingly dismissed.