JUDGMENT : Suneet Kumar, J. 1. Heard learned counsel for the parties. 2. Petitioner, an Advocate, duly registered with the Bar Council of Uttar Pradesh, applied pursuant to the vacancies notified by the Public Service Commission, Uttar Pradesh (for short 'Commission') for the post of Assistant Prosecution Officer (for short 'A.P.O.') Examination 2018. 3. The service conditions for A.P.O. is governed by U.P. Prosecuting Officers Service Rules, 1991, (for short 'Service Rules, 1991'). Rule 10 prescribes the age, which reads thus: "Age 10. A candidate for direct recruitment must have attained the age of twenty one years and must not have attained the age of more than thirty-one years on the first day of recruitment in which vacancies for direct recruitment are advertised by the Commission. Provided that the upper age limit in the case of candidates belonging to the Scheduled Tribes and such other categories as may be notified by the Government from time to time shall be greater by such number of years as may be specified." 4. It is urged by the learned counsel for the petitioner that since the State Government did not approach the Commission to fill the posts of A.P.O. in 2016-17 and the last examination was held in 2015, consequently, it is contended that the petitioners have became over age and presently are 40 years i.e. beyond the maximum age prescribed under Rule 10. 5. Reliance has been placed on Rule 3 of Uttar Pradesh Public Service Commission (Relaxation of Age Limit) Rules, 1992 (for short 'Rules, 1992') to contend that the maximum age in favour of the petitioner and class of candidates who have become over age must be relaxed by the State Government/the Hon'ble Governor. Rule 3 reads thus: "3. Notwithstanding anything to the contrary in any rule-regulating the maximum age of recruitment to a service or post in connection with the affairs of the State relaxation in the maximum age-limit may be granted by the Governor in favour of a candidate or a class of candidates. Provided that in the case in which recruitment is made through the Commission, that body shall be consulted before the relaxation is granted." 6. Provided that in the case in which recruitment is made through the Commission, that body shall be consulted before the relaxation is granted." 6. Sri Avnish Tripathi, learned counsel appearing for the Commission and learned Standing Counsel appearing for the State-respondents submit that the vires of Rule 11 of Service Rules, 1991 has not been assailed, the rules have been framed under Article 309 of the Constitution of India and it is not open for the Commission to relax the Rules. Reliance has been placed on the Division Bench decision rendered in Vibhati Narain Singh v. State of U.P. and others, 2016 (5) ADJ 773 (DB), to contend that the petitioner cannot claim as the matter of right age relaxation. The matter is between the Governor and the Commission. The Court should restrain itself in directing the authority concerned to take a call on such aspect of the matter merely on the asking of a candidate/candidates who are over age. The candidates cannot insist for age relaxation merely for the reason that after 2015 selections were not held in the subsequent years. 7. In rebuttal learned counsel for the petitioner has placed reliance on the decision of the learned Single Judge of this Court in Sri Prakash Srivastava and others v. State of U.P. and others, 2013 (11) ADJ 548 to contend that since the power has been conferred upon the Governor to relax, notwithstanding anything provided in any other rule, it is incumbent upon the Governor, in the circumstances to consider the case of the petitioner for age relaxation. Para 28, 30 and 33 reads thus : "28. However, the above consideration may not strictly apply to the present case inasmuch as, the Governor in exercise of power under proviso to Article 309 of Constitution has published and promulgated another set of Rules, i.e., Uttar Pradesh Public Services (Relaxation of the age limits for recruitment) Rules 1992 (hereinafter referred to "Rules 1992"), published vide notification dated 23rd July 1992. It is a small set of Rules having only three provisions. Rule 2 contains certain definitions. I propose to quote Rules 1 and 3 thereof hereunder : "1. (1) These rules may be called the Uttar Pradesh Public Services (Relaxation of the age limits for recruitment) Rules, 1992. (2) They shall come into force at once. It is a small set of Rules having only three provisions. Rule 2 contains certain definitions. I propose to quote Rules 1 and 3 thereof hereunder : "1. (1) These rules may be called the Uttar Pradesh Public Services (Relaxation of the age limits for recruitment) Rules, 1992. (2) They shall come into force at once. (3) They shall apply to all civil services and posts under the rule making power of the Governor under proviso to Article 309 of the constitution." "3. Notwithstanding anything to the contrary in any rule-regulating the maximum age of recruitment to a service or post in connection with the affairs of the State relaxation in the maximum age-limit may be granted by the Governor in favour of a candidate or a class of candidates. Provided that in the case in which recruitment is made through the Commission, that body shall be consulted before the relaxation is granted." 30. In the present case, the provision conferring power of relaxation upon the Governor exists, but it has not been attended or deliberated to see whether it should be exercised at all, in one or the other way or not. It is no doubt true that the competent authority is not bound to relax the rule, relating to maximum age, but once it possesses the power to do so, in a given case, where the circumstances so justify, it would be appropriate on its part to at least apply its mind and pass appropriate order as to whether such relaxation should be granted or not. It is more so necessary when out of several services in one such service, such relaxation has been granted with reference to an individual service rules of such service. In some of the writ petitions, the petitioners have claimed to have made representations to UPPSC, requesting for relaxation in the matter of maximum age, in the light of fact that the petitioners became overage during the period, when despite existence of vacancies no recruitment was held, but those representations, have not been disposed of for the reason that the power is to be exercised not by the L'PPSC but the Governor. In my view, UPPSC instead of turning the blind eye to such representations ought to have referred the same to the competent authority, in the context of Rules 1992, so as to be considered by it, within a reasonable time. In my view, UPPSC instead of turning the blind eye to such representations ought to have referred the same to the competent authority, in the context of Rules 1992, so as to be considered by it, within a reasonable time. That would have helped not only in expeditious recruitment but also consideration of grievance of petitioners and alike other candidates, by respondent competent authority, i.e. Governor. 33. Non-obstante clause in Rule 3 of Rules 1992, in a very wide and unequivocal term, provides that any rule, contrary, shall not bar the power of relaxation of Governor under Rules 1992. Thus, it is Rule 3 of 1992 Rules which shall prevail over contrary rule, if any. Furthermore, it provides overriding effect over not only the existing contrary rules, operating at the time of notification of Rules 1992, but overriding effect given thereunder by declaration is general and applicable to all Rules contrary thereto." 8. The Division Bench in Vibhuti Narain Singh considered Sri Prakash Srivastava and the Court was of the view that the learned Single Judge has not adverted to and considered under what circumstances the Governor is to exercise powers for age relaxation in favour of a candidate or class of candidates. 9. The Division Bench placed reliance on the decision rendered in Dr. Ami Lal Bhat v. State of Rajasthan, 1997 (6) SCC 614 , wherein, the Supreme Court held as follows: "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) Rule, 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, the 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 be 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." 10. Having due regard to the decision rendered in Vibhuti Narain Singh (supra), the learned counsel for the petitioner failed to show the public interest to relax the age insofar it relates to the petitioner. We fail to see how the power of relaxation can be exercised in the manner contended." 10. Having due regard to the decision rendered in Vibhuti Narain Singh (supra), the learned counsel for the petitioner failed to show the public interest to relax the age insofar it relates to the petitioner. The petition being devoid of merit is, accordingly, dismissed. 11. No cost.