JUDGMENT : Shree Chandrashekhar, A.C.J. The petitioners are aggrieved by the framing of the “Jharkhand Rajya Police Appointment Rules, 2014” [“Jharkhand Rajya Police Appointment Rules, 2014” shall be referred to as ‘the Recruitment Rules of 2014’] superseding the provisions under the Jharkhand Police Manual for the selection and appointment of the Police Constables. 2. The petitioners in this batch of writ petitions are Home Guards, who can be broadly divided under three categories viz. (a) those who did not qualify for the Mains examination (b) those who were called for the Medical and Fitness tests and (c) those who are seeking age-relaxation. All of them have questioned the power of the State of Jharkhand and the legal foundation for framing the Recruitment Rules of 2014 on the ground that the Jharkhand Police Manual occupies the field of the appointment and selection of the Constables. A large number of the petitioners participated in the last recruitment exercises but could not make it to the final selection list and now they seek to challenge the appointment of the Constables on the ground that the recruitment exercises in the past were conducted in breach of the statutory provisions of the Jharkhand Police Manual. For the sake of brevity, we shall briefly refer to the writ pleadings which are as follows: (i) The Police Act, 1861 was notified on 22nd March 1861. (ii) The Bengal Police Manual was issued in 1884. (iii) In 1912, the Bengal Police Manual was re-named as Bihar and Orissa Police Manual. (iv) The Bihar Police Manual, 1978 was issued. (v) The Cabinet of the Government of Bihar approved the revised Police Manual in December 1977. (vi) The State of Jharkhand was created on 15th November 2000. (vii) On 12th November 2001, the Bihar Police Manual was adopted with certain amendments. (viii) The petitioners are working as the Home Guards in the State of Jharkhand. (ix) Advertisement No.4 of 2015 was issued on 1st May 2015 inviting applications from eligible Home Guards for appointment to the post of Police Constable. (x) Advertisement No.4 of 2015 laid down the procedure for appointment by holding the examination in three phases viz. (a) preliminary examination (b) main examination and (c) physical and medical tests. (ix) Advertisement No.4 of 2015 was issued on 1st May 2015 inviting applications from eligible Home Guards for appointment to the post of Police Constable. (x) Advertisement No.4 of 2015 laid down the procedure for appointment by holding the examination in three phases viz. (a) preliminary examination (b) main examination and (c) physical and medical tests. (xi) The total number of posts advertised was 7272 out of which the appointment to the Jharkhand District Police Force was to be made on 6422 posts and for the Jharkhand Armed Police Force on 850 posts. (xii) According to the petitioners, 3631 posts were earmarked for Home Guards. (xiii) Under Advertisement No.4 of 2015, there is a provision for the trained Home Guards registered with the Jharkhand State that 50% posts shall be earmarked for them; the remaining 50% of posts shall be filled up by non-Home Guard candidates. (xiv) Later, Advertisement No.8 of 2017 was issued and appointments of the Constables have been made. 3. In 1st set of writ petitions[W.P(S) No. 6 of 2017 & analogous cases are hereinafter referred to as 1st set of writ petitions], the petitioners contend that the Recruitment Rules of 2014 cannot be enforced and are ultra-vires to the Constitution of India. This submission is premised on the ground that there already exists the statutory Rules for appointment of the Constables which were framed in exercise of the powers under Sections 7 and 12 of the Police Act, 1861. These petitioners seek to challenge a part of the final result based on the Mains examination on the ground that their exclusion in the final result was wholly illegal and arbitrary because they had already qualified in the Preliminary test. Consequent upon the granting of the aforesaid prayers, the petitioners are seeking permission to appear in the Physical/Medical test for being considered for appointment to the post of Constable under 50 percent reserved seats for Home Guards. Consequent upon the granting of the aforesaid prayers, the petitioners are seeking permission to appear in the Physical/Medical test for being considered for appointment to the post of Constable under 50 percent reserved seats for Home Guards. In short, Sunil Tudu has approached the Court with the following prayers: (a) To hold and declare Jharkhand Rajya Police Appointment Rules, 2014 (in short “Rules 2014”) as notified by Notification contained in Memo No. 6992 dated 20.10.2014 as ultra vires the Constitution of India as the same has been framed in terms of powers provided under Article 309 proviso even when the statutory rules have been framed and are in existence framed in exercise of powers under section 7 and 12 of the Police Act, 1861. AND/OR (b) To hold and declare that the recruitment process so under process in furtherance to advertisement no.4/15 has to be completed in terms of the Police Manual only and not under the Jharkhand Rajya Police Appointment Rules, 2014. AND/OR (c) For the issuance of an appropriate writ/writs, order/orders, direction/directions or writ in nature of certiorari for quashing the part of the result so published of the mains examination so conducted so far as it relates to the post of constable as the petitioner being home guards have been discriminated and the names of the home guards have been deliberately not included in the merit list although 50% seats are reserved for the Home guard category of candidates. AND/OR (d) To hold and declare that the non-selection/no shortlisting of the petitioner home guard even after having duly completed/qualified in the preliminary test conducted in terms of the manual framed under the Police Act, 1861 as wholly illegal and arbitrary. AND/OR (e) Directing the respondents to allow the present petitioner to participate in the physical/medical test so to be conducted for appointment/selection to the post of constable as against the 50% seats reserved for the home guard category as the petitioner have duly qualified in the preliminary test conducted in terms of the manual framed under the Police Act, 1861, even when the applicants in the present home guard category is far less than the total posts so reserved for the said category. AND/OR (f) To stay the selection process and result in pursuance of the said “Rules 2014”. AND/OR (f) To stay the selection process and result in pursuance of the said “Rules 2014”. AND/OR (g) Any other order(s)/direction(s) as Your Lordships may deem fit and proper in the facts and circumstances of the case and in the interest of justice. 4. In 2nd set of writ petitions[W.P(S). No. 1231 of 2020 & analogous cases are hereinafter referred to as 2nd set of writ petitions] , the petitioners have challenged the recruitment exercise in Advertisement No. 8 of 2017 on the ground that the entire recruitment exercise was conducted in violation of the mandatory provisions under the Jharkhand Police Manual. Pleading that a large number of posts has remained unfilled, the petitioners are seeking a direction for the preparation of a second merit list so that they may come within the zone of consideration and are appointed to the post of Constable. In W.P(S). No. 1231 of 2020, the petitioners are seeking the following reliefs: “A. To hold and declare the Jharkhand Rajya Police Appointment Rules, 2014 as notified by the Notification contained in Memo no. 6992 (Annexure-3) dated 20.10.2014 as ultra vires the Constitution of India as the same has been framed in terms of powers provided under Article 309 proviso even when statutory rules have been framed and are in existence framed in exercise of powers under Sections 7 and 12 of the Police Act, 1861; AND/OR B. To hold and declare that the recruitment process so under process in furtherance to Advertisement No. 8/2017 has to be completed in terms of the Police Manual only not under the Jharkhand Rajya Police Appointment Rules, 2014; AND/OR C. For the issuance of appropriate writ/writs, order/orders, direction/directions upon the respondents to issue Second Merit List in terms of Rules 13 of the 2001 Rules for appointment of constable list as the seats are still vacant under different categories and the petitioners herein are within the zone of consideration for the post of constable; AND/OR D. Directing the respondents to consider the case of the petitioners and issue appointment letters in their favor as they have successfully passed the written examination as well as physical and medical tests and there are still seats vacant in their under different categories; AND/OR E. Any other order(s)/direction(s) as Your Lordships may deem fit and proper in the facts and circumstances of the case and in the interest of justice.” 5. In 3rd set of writ petitions[W.P(S) No. 205 of 2024 & analogous cases are hereinafter referred to as 3rd set of writ petitions] , the petitioners have laid a challenge to clause (3) in Advertisement No. 17 of 2023 on the ground that the stipulations thereunder of 3-year registration and 6-month active service as Home Guard do not apply against them. They were selected as Home Guards between 2017 to 2019 for different districts in the Jharkhand and sent for training after inordinate delay in the year 2022 and therefore clause (3) prescribing the aforementioned conditions cannot operate against them. These petitioners are seeking shifting of the cut-off date to 1st of August 2016 instead of 1st of August 2019 on the ground that no vacancy was filled up in the last 8 years. Since these petitioners crossed the maximum age limit, they are seeking a direction upon the respondents to accept their application for appointment to the post of Constable under Advertisement No. 17 of 2023. According to these petitioners, a common State-level merit list for the appointment of Constables can only be prepared and the respondents should be restrained from preparing/publishing/ selecting the Constables at the District level. In W.P(S). No. 205 of 2024, the petitioners have made the following prayers: “A. To hold and declare Jharkhand Rajya Police Appointment Rules, 2014 (in short “Rules 2014”) as notified by Notification contained in Memo No. 6992 dated 20.10.2014 (Annexure-4) as ultra vires to the Constitution of India as the same has been framed in terms of powers provided under Article 309 proviso even when the statutory rules have been framed and are in existence, which is framed in exercise of powers under Section 7 and 12 of the Police Act, 1861 by holding and declaring that the recruitment process so under process in furtherance to advertisement no. 17/2023 has to be completed in terms of the Police Manual only and not under the Jharkhand Rajya Police Appointment Rules, 2014. AND/OR B. For the issuance of an appropriate writ/writs, order/orders, direction/directions or writ in nature of certiorari for quashing the part of the clause-3 (Condition No-3 at page-10 of advertisement no. 17/2023 has to be completed in terms of the Police Manual only and not under the Jharkhand Rajya Police Appointment Rules, 2014. AND/OR B. For the issuance of an appropriate writ/writs, order/orders, direction/directions or writ in nature of certiorari for quashing the part of the clause-3 (Condition No-3 at page-10 of advertisement no. 17/2023), wherein 3 years registration and 6 months active service as Home guard has been imposed unreasonably by the respondents, who have been selected as home guard as per the advertisement of year 2017/2018/2019 for the different districts but inspite of selection as home guards, they were send for training in the year 2022, due to corona outraise or some other reasons, which are the laches on the part of R-4, for which the petitioners may not suffer, So far as, it relates to the post of constable as the petitioners being home guards have been discriminated, although 50% seats are reserved for the Home Guard category of candidates. AND/OR C. For the issuance of an appropriate writ/writs, order/orders, direction/directions to re-fix the cut of date as 01.08.2016, since the cut of date 01.08.2019 Maximum of a candidate given in advertisement no. 17/2023, as after advertisement no. 04/15 by R-5, no vacancy is notified in last 8 years. AND/OR D. For the issuance of an appropriate writ/writs, order/orders, direction/directions to the respondent No. 5 to 7 to accept the form of the petitioners by re-fixing the cut of date on 01.08.2016 (As cut of date 01.08.2019 Maximum of a candidate given in advertisement no. 17/2013) as no vacancy is notified in last 8 years by the respondents and further stay the operation of condition mentioned in the part of the clause-3 (Condition No-3 at page-10 of advertisement no. 17/2023), wherein 3 years registration and 6 months active service as Home guard has been imposed unreasonably by the respondents, who have been selected as home guard as per the advertisement of year 201/2018/2019 for the different districts but inspite of selection as home guards, they were send for training in the year 2022, due to corona outraise or some other reasons, which are the laches on the part of R-4, for which the petitioners may not suffer. AND/OR E. Directing the respondents to allow the present petitioners to submit the application form and participate in the preliminary/Mains Examination/Physical/Medical test proposed to be conducted for appointment/selection to the post of constable as against the 50% seats reserved for the home guard category, even when the applicants in the present home guard category is far less than the total post so reserved for the said category. AND/OR F. For the issuance of an appropriate writ/writs, order/orders, direction/directions to the respondents to complete the selection process of constable by preparing state level merit list and the respondents are restrained from preparing/publishing/selecting constable at district level as the same is discriminatory in nature against the right to equality as guaranteed under the constitution of India. AND/OR G. To stay the selection process and result in pursuance of the said “Rules 2014” of advertisement no. 17/2023 issued by R-7. AND/OR H. For any other appropriate relief/reliefs to which the petitioners are found to be entitled in the facts and circumstances of this case as also to do conscionable justice to the petitioners.” 6. Raising a preliminary objection, Mr. Ajit Kumar, the learned senior counsel appearing for the successful candidates contended that the appointments made in the past cannot be challenged by the unsuccessful candidates because the selection process was not found infested with fraud. The learned senior counsel referred to “Radhey Shyam Yadav”[ Radhey Shyam Yadav v. State of U.P. : 2024 SCC OnLine SC 10] to submit that the selected candidates must be protected irrespective of the challenge laid to the Recruitment Rules of 2014, and even if the writ petitions succeed. In “Radhey Shyam Yadav” (supra)the Hon’ble Supreme Court held as under: “31. More recently, this Court in Vivek Kaisth (supra), following the judgment of the Constitution Bench in Sivanandan C.T. v. High Court of Kerala, 2023 SCC OnLine SC 994 protected the appointments of the appellants even after finding that their appointments were in excess of the advertised vacancies. This Court held as under:— “32. … …. Today, when we are delivering this judgment the two appellants have already served as Judicial Officers for nearly 10 years. Meanwhile, they have also been promoted to the next higher post of Civil Judge (Senior Division). This Court held as under:— “32. … …. Today, when we are delivering this judgment the two appellants have already served as Judicial Officers for nearly 10 years. Meanwhile, they have also been promoted to the next higher post of Civil Judge (Senior Division). In this process of their selection and appointment (which has obviously benefitted them), nothing has been brought to our notice which may suggest any favouritism, nepotism or so-called blame as to the conduct of these two appellants, in securing these appointments. The High Court in fact notes this factor. While placing the blame on the State Commission it records that “……. there is nothing on record suggestive of the fact that any mala fides were behind the selection of respondents Nos. 4 and 6…….” “34. The appellants were not entitled for any equitable relief in view of the High Court as they were the beneficiaries of an illegality committed by the Selection/appointing authority. But then it failed to take this question further, which in our opinion, it ought to have done. What the High Court never answered was as to how much of this blame of “illegal” selection and appointment would rest on the High Court (on its administrative side). Undoubtedly, with all intentions of timely filling of the vacancies, the High Court still cannot escape the blame…..” “36. What is also important for our consideration at this stage is that the appellants in the present case have been working as Judicial Officers now for nearly 10 years. They are now Civil Judge (Senior Division). These judicial officers now have a rich experience of 10 years of judicial service behind them. Therefore, unseating the present appellants from their posts would not be in public interest. Ordinarily, these factors as we have referred above, would not matter, once the very appointment is held to be wrong. But we also cannot fail to consider that the appellants were appointed from the list of candidates who had successfully passed the written examination and viva voce and they were in the merit list. Secondly, it is nobody's case that the appellants have been appointed by way of favouritism, nepotism or due to any act which can even remotely be called as “blameworthy”. Finally, they have now been working as judges for ten years. There is hence a special equity which leans in favour of the appellants. Secondly, it is nobody's case that the appellants have been appointed by way of favouritism, nepotism or due to any act which can even remotely be called as “blameworthy”. Finally, they have now been working as judges for ten years. There is hence a special equity which leans in favour of the appellants. In a recent Constitution Bench decision of this Court in Sivanandan C.T. v. High Court of Kerala 2023 SCC OnLine SC 994 though the finding arrived at by this Court was that the Rules of the game were changed by the High Court of Kerala by prescribing minimum marks for the viva voce, which were not existing in the Rules and therefore in essence the appointment itself was in violation of the Rules, yet considering that those persons who had secured appointments under this selection have now been working for more than 6 years it was held that it would not be in public interest to unseat them.” (emphasis supplied) 32. The situation of the appellants in the present case is no different from the individuals whose appointments were protected in the cases cited hereinabove. They had no blameworthy conduct. They were bona fide applicants from the open market. The alleged mischief, even according to the State, was at the end of the School and its Manager. It will be a travesty of justice if relief is denied to the appellants. Enormous prejudice would also occur to them.” 7. The general rule is that a candidate who appeared in the examination and took a chance that he may get a favorable recommendation cannot turn around and question the selection process. In “Madan Lal”[ Madan Lal v. State of Jammu and Kashmir : (1995) 3 SCC 486 ] the Hon’ble Supreme Court observed that a candidate who took a chance to get selected and appeared in the interview cannot be heard to say that the process of interview was unfair or the selection committee was not properly constituted after he found that the result of the interview was not palatable to him. Much before that, in “Manak Lal”[ Manak Lal v. Prem Chand Singhvi : AIR 1957 SC 425 ] the Hon’ble Supreme Court observed as under: “9. Much before that, in “Manak Lal”[ Manak Lal v. Prem Chand Singhvi : AIR 1957 SC 425 ] the Hon’ble Supreme Court observed as under: “9. From the record it is clear that the appellant never raised this point before the Tribunal and the manner in which this point was raised by him even before the High Court is somewhat significant. The first ground of objection filed by the appellant against the Tribunal's report was that Shri Chhangani had pecuniary and personal interest in the complainant Dr Prem Chand. The learned Judges of the High Court have found that the allegations about the pecuniary interest of Shri Chhangani in the present proceedings are wholly unfounded and this finding has not been challenged before us by Shri Daphtary. The learned Judges of the High Court have also found that the objection was raised by the appellant before them only to obtain an order for a fresh enquiry and thus gain time. It may be conceded in favour of Shri Daphtary that the judgment of the High Court does not in terms find against the appellant on the ground of waiver though that no doubt appears to be the substance of their conclusion. We have, however, heard Shri Daphtary's case on the question of waiver and we have no hesitation in reaching the conclusion that the appellant waived his objection deliberately and cannot now be allowed to raise it. Shri Daphtary does not contend that at the material time the appellant did not remember the fact that Shri Chhangani had appeared for Dr Prem Chand in the criminal proceedings. Indeed such a plea cannot be raised by the appellant in view of the affidavit which the appellant sought to place before us in the present appeal. Under this affidavit, the appellant's case appears to be that, until he met his advocate Shri Murli Manohar for filing objections to the report of the Tribunal, the appellant did not know that Shri Chhangani was legally disqualified from acting as a member of the Tribunal. It is obvious that this ground necessarily implies that the appellant knew about the facts giving rise to the alleged disqualification of Shri Chhangani to act as a member of the Tribunal. It is obvious that this ground necessarily implies that the appellant knew about the facts giving rise to the alleged disqualification of Shri Chhangani to act as a member of the Tribunal. In substance, the contention is that though the appellant knew that Shri Chhangani had appeared for Dr Prem Chand in the criminal proceedings in question, he was not aware that, in consequence, Shri Chhangani was disqualified to act as a member of the Tribunal. It is this limited aspect of the matter which is pressed before us by Shri Daphtary. Shri Daphtary contends and no doubt rightly that if we are satisfied that the appellant did not know about the true legal position in this matter and his rights arising therefrom, his failure to challenge the appointment of Shri Chhangani on the Tribunal would not raise an effective plea of waiver. However, in our opinion, it is very difficult to accept Shri Daphtary's argument that his client did not know the true legal position or his rights until he met Shri Murli Manohar. No doubt the appellant is a junior at the Bar but even so he can claim ten years' standing at the Bar. Besides, he had the assistance of a lawyer in defending him in the present proceedings and it appears extremely difficult to assume that neither the appellant nor his lawyer knew that the presence of Shri Chhangani in the Tribunal could be effectively challenged by them. We are disposed to think that even a layman, not familiar with legal technicalities and equitable principles on which this doctrine of disability has been based would have immediately apprehended that the lawyer who had appeared for Dr Prem Chand was authorised to sit in judgment over the conduct of the appellant and that might cause embarrassment to the appellant and might lead to prejudice against him. From a purely commonsense point of view of a layman, the position was patently awkward, and so, the argument that the appellant was not conscious of his legal rights in this matter appears to us to be an after-thought. From a purely commonsense point of view of a layman, the position was patently awkward, and so, the argument that the appellant was not conscious of his legal rights in this matter appears to us to be an after-thought. Since the appellant was driven to adopt this untenable position before the High Court in seeking to raise this point for the first time at that stage, we are not surprised that the High Court took the view that the plea had been taken late in order to gain time and to secure a fresh enquiry in the matter. Since we have no doubt that the appellant knew the material facts and must be deemed to have been conscious of his legal rights in that matter, his failure to take the present plea at the earlier stage of the proceedings creates an effective bar of waiver against him. It seems clear that the appellant wanted to take a chance to secure a favourable report from the Tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point.” 8. However, this is not a rule of universal application that a candidate by agreeing to participate in the selection process shall lose his right to challenge the illegality and arbitrariness in selecting the candidates. A participating candidate cannot be stopped at the threshold to challenge the rules or misconstruction of the Rules because he had participated in the selection process. If that is held so, a candidate may not have locus to question the Rules which according to him were in derogation of the Constitution of India. There may be other different kinds of situations arising in the context of the recruitment rules or recruitment process such as applying the Rules retrospectively or a wrong interpretation or misconstruction of the Rules. In such situations, a candidate who did not participate in the selection process may not even know the illegality in the selection process and challenge the same. 9. There are at least three factors that impelled the petitioners to lay a challenge to the Recruitment Rules of 2014. The first and foremost reason is that they did not succeed in their attempt to get selected for the post of Constable. 9. There are at least three factors that impelled the petitioners to lay a challenge to the Recruitment Rules of 2014. The first and foremost reason is that they did not succeed in their attempt to get selected for the post of Constable. Secondly, they are aggrieved by the stipulation in the Recruitment Rules of 2014 that appointment of the Constables shall be based on written examination, whereas Rule 663(c) in the Jharkhand Police Manual provided that the written examination shall be only a qualifying examination. The petitioners in 1st and 2nd sets of writ petitions have also canvassed that the fixing of cut-off marks is essentially contrary to the selection process envisioned under the Jharkhand Police Manual which prescribed only a qualifying written test. These petitioners worked out their strategy based on some information available to them that a large number of advertised vacancies remained unfilled and if the requirement of Mains examination is removed, they would get appointed to the post of Constable. Thirdly, the provision for preapring a second merit list is not retained and maximum age-limit has been reduced. 10. Mr. Shresth Gautam, the learned counsel who appeared for the petitioners in 2nd set of writ petitions contended that the Rules framed under proviso to Article 309 of the Constitution can only be a transitory provision where there is no statutory Rules governing the field. Moreover, the Rules framed under proviso to Article 309 of the Constitution cannot supersede or supplant the Rules under the Jharkhand Police Manual which are framed in exercise of the powers under sections 7 and 12 of the Police Act, 1861. To put it simple, it is contended that the Recruitment Rules of 2014 framed by the State of Jharkhand under proviso to Article 309 of the Constitution are without any authority of law and cannot operate in the field occupied by the Rules under the Jharkhand Police Manual for the appointment of Constables. 11. The doctrine of “occupied field” is applied where the subject matter is covered by a Legislation. A simple example is that where there is a Central Legislation on the subject field, subject to the provisions of the Constitution of India, the State Government is not empowered to legislate in the same field. 11. The doctrine of “occupied field” is applied where the subject matter is covered by a Legislation. A simple example is that where there is a Central Legislation on the subject field, subject to the provisions of the Constitution of India, the State Government is not empowered to legislate in the same field. However, if this happens with respect to the subject under the concurrent list in Seventh Schedule then the conflict is resolved by harmoniously construing both the Legislations. The second category of cases arises where the State Government exercises its executive power under Article 162 of the Constitution of India to prescribe executive Order in the same field which is covered by a State Legislation. This is well-settled a law that the executive power of the State Government under Article 162 of the Constitution of India does not extend to empowering the Governor of the State to make any Rule concerning a matter on which law has been made by the State Legislature. However, the Governor exercising the executive power of the State Government does not create any embargo for the Legislature of the State from making any law conferring some function on an authority subordinate to him. Where a conflict arises between a law made by the competent Legislature and the Rules framed under proviso to Article 309 of the Constitution of India the enacted law shall prevail. This is also too well-settled that the Rules under proviso to Article 309 of the Constitution of India shall prevail where there is a conflict between the executive Order under Article 162 of the Constitution of India and the Rules framed under proviso to Article 309. By the executive Orders, the gap in the Rules or the skeleton Rules can be supplemented to what was already provided under the Rules but the executive Orders framed under Article 162 of the Constitution cannot supplant the Rules made under proviso to Article 309 of the Constitution of India. Mr. By the executive Orders, the gap in the Rules or the skeleton Rules can be supplemented to what was already provided under the Rules but the executive Orders framed under Article 162 of the Constitution cannot supplant the Rules made under proviso to Article 309 of the Constitution of India. Mr. Shresth Gautam, the learned counsel for the petitioners referred “A.B. Krishna”[ A.B. Krishna v. State of Karnataka : (1998) 3 SCC 495 ], “Rakesh Kumar”[ Union of India v. Rakesh Kumar : (2001) 4 SCC 309 ] and “D.R. Yadav”[ D.R. Yadav v. R.K. Singh: (2003) 7 SCC 110 ] to submit that proviso to Article 309 of the Constitution gives power to the President or the Governor to make service Rules for the transitional period as long as the Legislature does not enact a law for the recruitment and service-linked conditions for the posts under the Union or a State. In “A.B. Krishna”, the Hon’ble Supreme Court held that the power under Article 309 of the Constitution cannot be exercised by the Governor where the Legislature has already made a law providing the recruitment Rules. “Rakesh Kumar” (supra)held that the Government cannot amend or substitute the statutory Rules by administrative instructions. And, in “D.R. Yadav”(supra) the Hon’ble Supreme Court held as under: “21. On a plain reading of the said provision, there cannot be any doubt whatsoever that rules framed thereunder would apply so long as a statute or statutory rules or any other subordinate legislation governing the conditions of service are not enacted or made or not otherwise operating in the field. In other words, rules made under the proviso to Article 309 of the Constitution are for a transitory period and the same would give way to the special rules once framed. However, if a statute or rules made thereunder was/were already operating in the field, the general rules made under the proviso to Article 309 would not apply to the services created thereunder.” 12. The law seems to be well-settled that any executive Order or the Rules made in terms of the power under Article 162 of the Constitution of India shall be subservient to the recruitment Rules that have been framed under a Legislative enactment or the Rules under the proviso to Article 309 of the Constitution of India. The law seems to be well-settled that any executive Order or the Rules made in terms of the power under Article 162 of the Constitution of India shall be subservient to the recruitment Rules that have been framed under a Legislative enactment or the Rules under the proviso to Article 309 of the Constitution of India. The question that now falls for consideration is whether the Jharkhand Police Manual contains statutory Rules framed by the Legislature or under any Act of the Legislature. To demonstrate that the Rules in the Jharkhand Police Manual are framed in exercise of the powers under the Police Act, 1861, the petitioners have laid heavy reliance on the Preface to the Bihar Police Manual. 13. The Police Act, 1861 was enacted to re-organize the Police force and to make it more efficient for the prevention and detection of crime. It provides that the entire police establishment under a State Government shall be deemed to be one police force formally enrolled and consisting of such number of officers and men and in such manner as shall be from time to time ordered by the State Government. Proviso to section 2 clarifies that pay and all other conditions of service of the members of sub-ordinate ranks of any Police force shall be determined by the State Government. Section 3 provides that the superintendence of the Police throughout a General Police District shall vest in and shall be exercised by the State Government. The petitioners seek to draw support from section 4 which refers to orders passed by the Inspector General of Police who shall be vested with the power to administer the Police throughout a General Police District. Section 7 which uses the expression appointment, dismissal, etc. of inferior officers under its Heading provides that the Inspector General, Deputy Inspector General, Assistant Inspector General and District Superintendence of Police may award punishments to any police officer of the sub-ordinate rank in exercise of the powers conferred upon them under the Rules made under Article 311 of the Constitution of India or such Rules as the State Government may make under the Police Act. The Heading prefixed to the Rule cannot be referred to for the purpose of construing a provision when the words used therein are clear and unambiguous. The Heading prefixed to the Rule cannot be referred to for the purpose of construing a provision when the words used therein are clear and unambiguous. In “Raichurmatham Prabhakar”[ Raichurmatham Prabhakar v. Rawatmal Dugar : (2004) 4 SCC 766 ] the Hon’ble Supreme Court held that it is permissible to assign the Heading or Title of a section a limited role to play in the construction of statutes but the Heading or Title cannot control the meaning which is clearly and plainly discernible from the language of the provision thereunder. In our opinion, the provisions under section 7 do not provide the source of power to frame Rules for the appointment of Constables. Section 12 provides that the Inspector General of Police may frame the Rules for the organization, classification and distribution of the police force. The learned counsel for the petitioners pressed hard upon the Court to read the Preface and section 12 together to draw an inference that the Rules under the Jharkhand Police Manual have been framed in the exercise of powers under the Police Act. However, a careful reading of section 12 would make it clear that the power of the Inspector General of Police to make Rules subject to the approval of the State Government is for the purpose of preventing abuse or neglect of duty, and for making the police force efficient in the discharge of its duties. Similarly, section 46 empowers the State Government to make Rules in respect of the matters specified in clauses (a) and (c) of subsection (2). 14. The Jharkhand Police Manual reproduces the Preface appended to the Bihar Police Manual. The Preface recites that the Bihar Police Manual is issued by and with the authority of the State Government under sections 7 and 12 of the Police Act, 1861. It further provides that the Rules etc. therein are binding on all police officers and are authoritative guide to other concerned officers of the Government. Herein below, we shall reproduce the Preface to the Jharkhand Police Manual, which reads as under: “The Bihar Police Manual, 1978 [Vol. 1 (Rules), Vol. II (Forms) and Vol. III (Appendices)] is issued by and with the authority of the State Government under sections 7 and 12 of the Police Act V, 1861. All the rules etc. Herein below, we shall reproduce the Preface to the Jharkhand Police Manual, which reads as under: “The Bihar Police Manual, 1978 [Vol. 1 (Rules), Vol. II (Forms) and Vol. III (Appendices)] is issued by and with the authority of the State Government under sections 7 and 12 of the Police Act V, 1861. All the rules etc. therein are binding on all police officers and are an authoritative guide to other concerned officers of Government.” 15. A Preface is written by the author to introduce the book or other literary work. Through a Preface, the author may introduce himself, or speak about the purpose, creation or content of the book. A Preface may also speak about the story of how the book was written or how the idea for the book was developed. This is a common practice that a Preface is signed by the author with the date and place of writing. The word Preface draws its origin from the Latin word ‘Prae’ means “spoken before” and ‘Fatia’ which means “made before”. The Preface therefore contains a preliminary or introductory statement and mere mention of sections 7 and 12 in the Preface is not a determinative factor to hold that the Rules under the Jharkhand Police Manual were framed in exercise of the powers under the Police Act. 16. The Jharkhand Police Manual also contains a Foreword written by the Inspector General of Police, Bihar on 2nd October 1978. The Foreword gives the history of the compilation of Government orders. Before 1912, the Bengal Police Manual first issued in 1884 was revised by the Personal Assistance to the Inspector General. In 1912, the Bengal Police Manual was re-named as Bihar and Orissa Police Manual which underwent revisions in 1923-24 and 1929-30. After the independence, the Police Manual containing the amendments made over several decades was published in 1949 and 1955. Later, a Committee consisting of the Inspector General of Police, members of Legislature and Executives was formed to carry out the revision in the Bihar Police Manual. The Committee incorporated the recommendations of the Bihar Police Commission and interviewed a large number of persons both officials and non-officials and finalized revision of the Bihar Police Manual in three volumes; Cabinet approved the revised Police Manual in December 1977. 17. The Committee incorporated the recommendations of the Bihar Police Commission and interviewed a large number of persons both officials and non-officials and finalized revision of the Bihar Police Manual in three volumes; Cabinet approved the revised Police Manual in December 1977. 17. The Foreword to the Jharkhand Police Manual is reproduced as under: The Bengal Police Manual, first issued in 1884, was a compilation of Government orders by Mr. Botelho, Registrar of the Bengal Police Office. Thereafter, the following revisions took place: — (i) From 1890 to 1893 by Mr. A. H. Giles. P.A. to the Inspector-General and Mr. C.A. Wilkins, I.C.S., (ii) in 1897 by Mr. E. M. Showers, Personal Assistant to Inspector-General during the time of Edward Henry (then Mr. Henry), (iii) from 1906 to 1907 by Mr. Daly and from 1909 to 1910 by Mr. Swain, both Personal Assistants to Inspector-General who did the revision in addition to their own duties, assisted by Mr. B. A. Collins, I.C.S which was finally published in 1911, (iv) in 1912 by Dr. J.V. Ryan, L.L.D., Superintendent of Police when its name was first changed in 1914 as Bihar and Orissa Police Manual. (v) The last revision, before this present Manual, was done in 1923-24 by Mr. R.J. Hirst, Deputy Inspector-General, C.I.D., which was later continued from 1927 to 1929 by Mr. W. A. P. Sealy, Superintendent of Police on Special Duty and Mr. E. A. O. Perkin, Assistant to the Inspector-General and was concluded in 1929-30 by Mr. C. R. B. Murray, Assisted by Mr. R. A. P. Hare, Assistant to the inspector-General. 2. After India’s Independence, Police Manual, Volume I was reprinted in 1949 and 1955 at the Government Press, Gulzarbagh where all the amendments issued serially for several decades and kept there in booklets were incorporated. Subsequently, the translation of Police Manual, Vol. I in Hindi was done at the initiative of Sri Sarda Prasad Varma, the then Inspector General of Police by Deputy Superintendent of Police Sri Kedar Nath Mishra “Prabhat“ and Sri Ram Gopal Sharma “Rudra”. This was published in two parts. The first part which contained chapters 1-14 and the second part which contained chapters 15-36 were published in 1965 and I971 respectively. 3. This was published in two parts. The first part which contained chapters 1-14 and the second part which contained chapters 15-36 were published in 1965 and I971 respectively. 3. The State Government particularly at the initiative of Sri Rarnanand Tiwari, Minister, Home (Police) (formerly a constable who had joined the freedom movement of Mahatma Gandhi in 1942) took the decision of revising the Police Manual and Sri Badri Narain Sinha. I.P.S., Deputy Inspector-General of Police was specially selected for this work. He started the work of revision from 1st June, 1971 in right earnest. Later, a committee was formed of the following persons:- (1) Sri Trilok Nath, I.P., Inspector-General of Police on Special Duty-cum-Chairman. (2) Sri Fazlur Rahman, M.L.A. (later Union Minister) Member. (3) Sri Jai Narayan, who after resigning from I.P.S. was M.L.A. Member. (4) Sri Kumar Taranand Singh, Resident Director, TISCO, Jamshedpur. Member. (5) Sri Satyendra Narain Agrawal, Ex Deputy Speaker, Bihar Legisiative Assembly Member. (6) Finance Commissioner, (7) Home Secretary, (8) Law Secretary, and (9) Dy. LG (Admin.) as ex-officio members, besides (10) Member-Secretary Sri Badri Narain Sinha. 4. Sri Sinha, prepared an exhaustive questionnaire which was widely circulated. On transfer, he handed over charge to Sri Duniya Lal, I.P.S., Dy. LG. of Police in July 1972. Unfortunately, Sri D. Lal died premature on 9th August, 1972. 5. Sri Jyotindra Mohan Prasad, I.P.S., Superintendent of Police was posted as Member-cum-Secretary in August 1972, later promoted as Dy. LG. the same year. He is still continuing. 6. The Police Manual Revision Committee incorporated the recommendations of the Bihar Police Commission submitted in 1961 by Sri Mithilesh Kumar Sinha, I.P., retired Inspector-General of Police and it took extracts from the Police Order book also which had been revised in 1969. Moreover, the new Criminal Procedure Code (2 of 1974). Bihar Accounts Code and new system of accounts and the recommendations of the sub-committee of the Legislative Assembly specially set up for reforms in the Police organisation have made significant changes in the Manual. The committee interviewed a large number of persons, both officials and non-officials and finished revision of all the three Volumes of Police Manual by October,1974 in Hindi. 7. The committee interviewed a large number of persons, both officials and non-officials and finished revision of all the three Volumes of Police Manual by October,1974 in Hindi. 7. An Implementation Committee was then set up with Sri Ajit Kumar Ghosh, I.P., Director-General-cum-Inspector-General of Police as (Chairman in November, 1974 with Sri Narendra Pal Singh, I.A.S., Joint-Secretary, (later Additional Secretary), Home (Police) as Member, but soon, this committee was reconstituted with Sri Narendra Pal Singh as Chairman and Finance Secretary, Law Secretary and Dy. I.G. (Admin.) as ex-officio members. In this the names of Sri Ram Nandan Prasad, Addl. L.R. and later Sri Gobind Prasad, Dy. L.R. deserve mention. Sri Jyotindra Mohan Prasad, Member-Secretary continued as before. Sri Prasad also translated all the three Volumes of the Police Manual into English with the help of Sri Satish Chandra Misra, Rajbhasha Officer and thus, both English and Hindi versions are being published. Sri A. K. Ghosh, who later took over as Special Secretary, Home (Police) made a thorough check of Police Manual, Volume I before he retired on 31st March, 1977. The Cabinet approved the revised Manual in December, 1977. 8. Lastly, the assistance given by Assistants Sarbshri Birendra Narain Jha, Singheshwari Prasad Singh and Chandra Shekhar Prasad Singh and Typist Sheo Nath Pandit has to be appreciated. 9. The revised Manual is dedicated to the cause of selfless public service by policemen and is offered to all. Any suggestions for its improvement are welcome. PATNA INSPECTOR-GENERALOF POLICE The 2nd October, 1978 BIHAR, PATNA. 18. A Foreword is usually written by someone other than the author or a reader but usually someone eminent who lends credibility to the book. A Foreword about the book by an expert in the field definitely aids to the content. But a Preface or a Foreword cannot be the authoritative external aids to interpret a particular provision and to give a definite meaning thereon. The Foreword merely announces that the Bihar Police Manual which contains the Rules in Volume-I, Forms in Volume-II and Appendixes in Volume-III is issued by and with the authority of the State Government under sections 7 and 12 of the Police Act. 19. The Foreword merely announces that the Bihar Police Manual which contains the Rules in Volume-I, Forms in Volume-II and Appendixes in Volume-III is issued by and with the authority of the State Government under sections 7 and 12 of the Police Act. 19. The Jharkhand Police Manual is spread over 46 Chapters and contains (i) the general duties of the force and their code of conduct (ii) organization and personnel of the department (iii) the duties of police officers of all ranks (iv) the police station (v) information (vi) investigation (vii) arrest and custody of accused (viii) surveillance and the prevention of crime (ix) conviction and registration of criminals (x) criminal investigation department and intelligence department (xi) appointment and enrolment (xii) examinations and training (xiii) promotions and allowances (xiv) transfer leave and retirement (xv) punishments (xvi) rewards (xvii) uniform and clothing (xviii) complaints and corruption inquires (xix) police information and control room (xx) special duties of police and (xxi) ministerial cadre and fourth-grade employees and superior staff. Volume-I of the Jharkhand Police Manual which is spread over 672 pages deals with many aspects of the Police force and that has been followed for about half a century. The learned counsels for the petitioners submitted that the Rules under the Jharkhand Police Manual are held binding and after having been consistently applied for a long period attained statutory force and occupied the field for the appointment of Constables. On the other hand, Mr. Sachin Kumar, the learned Additional Advocate General referred to “Ajay Kumar Bhuyan”[ Ajay Kumar Bhuyan v. State of Orissa : (2003) 1 SCC 707 ] to submit that the Jharkhand Police Manual is a compendium of executive Orders issued under Article 162 of the Constitution. It is contended that the Recruitment Rules of 2014 shall supersede the provisions under the Jharkhand Police Manual to the extent it is inconsistent to the Rules framed in exercise of the powers under proviso to Article 309 of the Constitution. 20. The Latin phrase “contemporanea expositio” which means interpreting a statute or any other document by reference to the exposition it has received from contemporary authority is not always decisive, though entitled to considerable weight. In “Desh Bandhu Gupta & Co.”[ Desh Bandhu Gupta & Co. v. Delhi Stock Exchange Assn. 20. The Latin phrase “contemporanea expositio” which means interpreting a statute or any other document by reference to the exposition it has received from contemporary authority is not always decisive, though entitled to considerable weight. In “Desh Bandhu Gupta & Co.”[ Desh Bandhu Gupta & Co. v. Delhi Stock Exchange Assn. Ltd. : (1979) 4 SCC 565 ] the Hon’ble Supreme Court referred to “Baleshwar Bagarti”[ Baleshwar Bagarti v. Bhagirathi Dass : ILR (1908) 35 Cal 701] and “Mathura Mohan Saha”[ Mathura Mohan Saha v. Ram Kumar Saha : AIR 1916 Cal 136] and reiterated that the Courts in construing a statute will give much weight to the interpretation put upon it at the time of its enactment but such interpretation cannot have a controlling effect upon the Courts and if needed must be discarded for cogent and persuasive reasons. In “Desh Bandhu Gupta & Co.” (supra) the Hon’ble Supreme Court held as under: “9. It may be stated that it was not disputed before us that these two documents which came into existence almost simultaneously with the issuance of the notification could be looked at for finding out the true intention of the Government in issuing the notification in question, particularly in regard to the manner in which outstanding transactions were to be closed or liquidated. The principle of contemporanea expositio (interpreting a statute or any other document by reference to the exposition it has received from contemporary authority) can be invoked though the same will not always be decisive of the question of construction (Maxwell 12th ed.p. 268). In Crawford on Statutory Construction (1940 ed.) in para 219 (at pp. 393-395) it has been stated that administrative construction (i.e. contemporaneous construction placed by administrative or executive officers charged with executing a statute) generally should be clearly wrong before it is overturned; such a construction, commonly referred to as practical construction, although not controlling, is nevertheless entitled to considerable weight; it is highly persuasive. In Baleshwar Bagarti v. Bhagirathi Dass the principle, which was reiterated in Mathura Mohan Saha v. Ram Kumar Saha has been stated by Mookerjee, J., thus: “It is a well settled principle of interpretation that courts in construing a statute will give much weight to the interpretation put upon it, at the time of its enactment and since, by those whose duty it has been to construe, execute and apply it.... I do not suggest for a moment that such interpretation has by any means a controlling effect upon the courts; such interpretation may, if occasion arises, have to be disregarded for cogent and persuasive reasons, and in a clear case of error, a court would without hesitation refuse to follow such construction.” Of course, even without the aid of these two documents which contain a contemporaneous exposition of the Government's intention, we have come to the conclusion that on a plain construction of the notification the proviso permitted the closing out or liquidation of all outstanding transactions by entering into a forward contract in accordance with the Rules, Bye-laws and regulations of the respondent.” 21. The law on the subject was further elucidated in “Ultratech Cement Ltd.”[ Ultratech Cement Ltd. v. State of Rajasthan : (2021) 12 SCC 147 ] wherein the Hon’ble Supreme Court held as under: “24.3. Suffice it to observe for the present purpose that in essence, the doctrine of contemporanea expositio is applied as a guide to the interpretation of a statute or even document by referring to the exposition that the same had received from competent authority at the relevant point of time. This doctrine is also relatable to the doctrine of stare decisis whereunder, an exposition standing for a long length of time, is considered to be a law settled and is applied as such. As regards the contemporaneous construction placed by the administrative or executive officers charged with executing statute, the courts lean in favour of attaching considerable weight to the same but, it cannot be laid down that understanding of a particular administrative or executing authority is always fait accompli and has to be applied even if erroneous. The true principle is just to the contrary : that is, if a construction placed by the contemporary authority is found to be clearly wrong or erroneous, the same deserves to be disregarded.” 22. There can be no measure of doubt that the State Government may issue executive Orders under the provisions of the Police Act but such executive Orders do not take the color of statutory Rules. This is wrong to say that the executive Orders contained in the Jharkhand Police Manual though labeled as ‘Rules’ are statutory Rules framed in exercise of the powers under sections 4, 7, 12 and 46 of the Police Act. This is wrong to say that the executive Orders contained in the Jharkhand Police Manual though labeled as ‘Rules’ are statutory Rules framed in exercise of the powers under sections 4, 7, 12 and 46 of the Police Act. The expression ‘statutory Rules’ connotes a meaning that the Rules are framed under the provisions of a statute and the executive Orders cannot be labeled as statutory Rules. The Jharkhand Police Manual contains executive Orders issued from time to time and labeling of these executive Orders as‘Rules’ was for convenience and compilation on the subjects dealt with thereunder. 23. The Notification dated 20th October 2014 recites that the Recruitment Rules of 2014 are framed in exercise of the powers conferred under proviso to Article 309 of the Constitution of India for direct appointment to the post of Constable in Jharkhand Police. Article 162 and Article 309 of the Constitution have been exhaustively discussed and their relative scope is now well defined in the aforementioned judgments of the Hon’ble Supreme Court. Article 309 of the Constitution provides that the recruitment and conditions of service of the persons serving the Union or a State may be regulated by an Act of the appropriate Legislature. Proviso to Article 309 starts with the expression“it shall be competent” and therefore no question can be raised on the competency of the State Government to make Rules regulating the recruitment and conditions of service until provisions in that behalf are made by or under an Act of the appropriate Legislature. In “Somasundaram Viswanath”[ Union of India v. Somasundaram Viswanath : (1989) 1 SCC 175 ] the Hon’ble Supreme Court held that if there is a conflict between the executive instructions and the Rules made under the proviso to Article 309 of the Constitution, the Rules made under the latter provision shall prevail. In “Somasundaram Viswanath” (supra) the Hon’ble Supreme Court held as under: “6. In “Somasundaram Viswanath” (supra) the Hon’ble Supreme Court held as under: “6. It is well-settled that the norms regarding recruitment and promotion of officers belonging to the Civil Services can be laid down either by a law made by the appropriate legislature or by rules made under the proviso to Article 309 of the Constitution of India or by means of executive instructions issued under Article 73 of the Constitution of India in the case of Civil Services under the Union of India and under Article 162 of the Constitution of India in the case of Civil Services under the State Governments. If there is a conflict between the executive instructions and the rules made under the proviso to Article 309 of the Constitution of India, the rules made under proviso to Article 309 of the Constitution of India prevail, and if there is a conflict between the rules made under the proviso to Article 309 of the Constitution of India and the law made by the appropriate legislature the law made by the appropriate legislature prevails. The question for consideration is whether in the instant case there is any conflict between the Rules and the Office Memorandum dated 30-12-1976, referred to above. We have already noticed that there are different rules framed under the proviso to Article 309 of the Constitution of India for making recruitments to services in the different departments and provisions have been made in them for the constitution of Departmental Promotion Committees for purposes of making recommendations with regard to promotions of officers from a lower cadre to a higher cadre. But these rules are to some extent skeletal in character. No provision has been made in any of them with regard to the procedure to be followed by the Departmental Promotion Committees and their various functions and also to the quorum of the Departmental Promotion Committees. These details which were necessary for the proper functioning of the Departmental Promotion Committees, as a matter of practice, were laid down prior to 30-12-1976 by the Government of India in the form of Office Memoranda issued from time to time and that on 30-12-1976 a consolidated Office Memorandum was issued containing instructions with regard to such details which were applicable to all Departmental Promotion Committees of the various Ministries/Departments in the Government of India. The said Office Memorandum deals with several topics, such as, functions of the Departmental Promotion Committees, frequency at which Departmental Promotion Committees should meet, matters to be put up for consideration by the Departmental Promotion Committees, the procedure to be observed by the Departmental Promotion Committees, the procedure to be followed in the case of an officer under suspension whose conduct is under investigation or against whom disciplinary proceedings are initiated or about to be initiated, validity of the proceedings of the Departmental Promotion Committees when a member is absent, the need for consultation with the Union Public Service Commission, the procedure to be followed when the appointing authority does not agree with the recommendations of a Departmental Promotion Committee, implementation of the recommendations of the Departmental Promotion Committees, ad hoc promotions, period of validity of panels etc. etc. The Office Memorandum dated 30-12-1976, therefore, is in the nature of a complete code with regard to the topics dealt with by it, unless there is anything in the Rules made under the proviso to Article 309 of the Constitution of India, which is repugnant to the instructions contained in the Office Memorandum, the Office Memorandum which is apparently issued under Article 73 of the Constitution of India is entitled to be treated as valid and binding on all concerned. In the instant case the Rules do not contain any of these details except indicating who are all the persons who constitute the Departmental Promotion Committee. We do not, therefore, find any repugnancy between the Rules and the Office Memorandum. In the circumstances we feel that the plea raised by Respondent 1 in his additional affidavit dated 13-5-1988 (p. 132 of the paper book) that the Office Memorandum is ineffective cannot be upheld. We do not agree with the decision of the Central Administrative Tribunal that in the instant case the proceedings of the Departmental Promotion Committee on 7-8-1986 have been vitiated “solely on account of this reason viz. that Secretary, Ministry of Defence, one of its members was not present”. We hold that the proceedings of the Departmental Promotion Committee at its meeting held on 7-8-1986 are not invalid for the above reason.” 24. Rule 663 of the Bihar Police Manual had provided as under: 663. that Secretary, Ministry of Defence, one of its members was not present”. We hold that the proceedings of the Departmental Promotion Committee at its meeting held on 7-8-1986 are not invalid for the above reason.” 24. Rule 663 of the Bihar Police Manual had provided as under: 663. Selection of recruits.—(a) Strong, healthy young men between the ages of 19 and 27 years and who have passed secondary (i.e. Matriculation) examination shall be selected as recruits as far as possible. The standard of physical tests shall be same as given in Appendix 38, clause 9 for Sub-Inspectors. For scheduled castes and tribes, the upper age-limit is up to 32 years and educational qualification can be reduced to middle pass if matriculates are not available. The standards of height and chest measurements are given below. These are the minima and Superintendents should endeavour to get men of higher standard :— (i) forgeneral—height 163 centimeters and chest 80 centimeters. (ii) for scheduled caste and tribe—height 158 centimeters and chest 78 centimeters. Note. — ln measuring the chest, the measuring tape must be applied evenly but not tightly, its upper edge touching the lower border of the shoulder blades, and its lower edge passing just above the nipples, the arms hanging by the sides. The standard is the minimum measurement, with the chest fully deflated. Just before the measurement is taken the candidate shall be made to count up to thirty, without taking breath and without hurrying. (iii) There is no physical standard for Gurkhas, who are residents of India and men of the best physique obtainable and at least literate shall be enlisted. N.B. — Nepalese subjects cannot be enlisted. (b) Recruits shall be measured by the reserve inspector in the Superintendent's presence at the time of enlistment. (c) The Selection Board is not precluded from selecting men over 27 years of age or for special reasons, men beneath the standard of measurement, but it shall do so only on good grounds. Before enlistment the Deputy Inspector-General can give relaxation in height and chest by 2.5 cms. only. (See Cl. 9 of Appendix 2, Part II). (d) The recruitment shall be made twice a year in such a way that recruits are ready to go to Constables Training School before the start of the session. There shall be no necessity for training in district Headquarters. only. (See Cl. 9 of Appendix 2, Part II). (d) The recruitment shall be made twice a year in such a way that recruits are ready to go to Constables Training School before the start of the session. There shall be no necessity for training in district Headquarters. The Superintendent shall publish notice of selection of candidates in newspapers giving the exact number of vacancies and also advertise through employment exchange. He shall endeavour that selection is completed and results are laid before the candidates the same day or on the following day so that they are not made to stay unnecessarily. No waiting list of candidates beyond the number advertised except for few extra men for possible unfitness in medical test is to be kept. 25. There were modifications in the Bihar Police Manual which are provided in the Notification dated 12th November 2001 that the Government of Jharkhand made while adopting the same. Rule 663(c) of the Bihar Police Manual was repealed and new provisions were incorporated therein which are now part of the Jharkhand Police Manual. The modifications are confined to Rule 663 clause (a) and clause (c) whereunder the upper age limit of 32 years prescribed for Scheduled Castes and Scheduled Tribes in the pre-existing clause (a) and the academic qualification were deleted. The requirement as to the standard of height and chest measurements was also deleted and modified to the extent described in the Notification dated 12th November 2001. Just to mention, the pre-existing Rule 663 provided under clause (c) selection of Constables above 27 years and the standard of measurement subject to relaxation in height and chest by 2.5 cms by the Deputy Inspector-General. 26. The relevant portions of the Notification dated 12th November 2001 are extracted below: English translation: (3) Rule 663 (c) of the Bihar Police Manual shall be deemed repealed and in place of it the following modification shall be deemed to have been substituted from 1 to 17, …………………………………………………………………………….… ………………………………………………………………………………. (13) Waiting list: -According to Police Manual Rule 663 (D) no waiting list should be made. If the advertised vacancies cannot be filled up after the first list is issued, then to fill the advertised vacancies in that situation, from the bottom of the final candidate selected in the first merit list of Integrated Priority list, in the same order, according to the merit wise list, vacancies Will be made. If the advertised vacancies cannot be filled up after the first list is issued, then to fill the advertised vacancies in that situation, from the bottom of the final candidate selected in the first merit list of Integrated Priority list, in the same order, according to the merit wise list, vacancies Will be made. All published vacancies will definitely be filled within six months of the first listing being issued. 27. In Chapter 20 of the Jharkhand Police Manual, there is a description of the superior officers and other officers in Rule 639; the Constable is at the bottom in the hierarchy at Sl. No.13. Rule 661(a) provides that the Constables shall be distinguished as (i) writer Constables and (ii) ordinary Constables. It further provides that the Constables who are Matriculate and qualify at the competitive examination for promotion shall be known as writer Constables whose duties shall be those of a Special writer at police stations. They shall perform office duty, and conduct routine business of the police station in the absence of the Sub-Inspectors and Assistant Sub-Inspectors. It is further provided under clause (b) that the Constables shall be appointed by the District Superintendent of Police for which a list shall be prepared by the Selection Board duly constituted for the purpose. Rule 663 dealt with the selection of recruits, who shall be strong, healthy young men between the ages of 19 and 27 years and are Matriculate. It further provides that the standard of physical test shall be that of sub-Inspectors as provided in Appendix-38 (clause 9). It further provides that the upper age limit for the Scheduled Castes and Scheduled Tribes shall be up to 32 years and the educational qualification can be reduced if Matriculate candidates are not available. Clause (7) of Rule 663(c) provided that there shall be a qualifying written examination and the marks obtained by the candidates shall not be counted for the preparation of the final selection list. Clause (12) thereunder provided that 50% of the vacant seats shall be reserved for the Home Guards registered in the State of Jharkhand and in the absence of suitable Home Guard candidates the unfilled vacancies shall be filled up with non-Home Guard candidates. Clause (12) thereunder provided that 50% of the vacant seats shall be reserved for the Home Guards registered in the State of Jharkhand and in the absence of suitable Home Guard candidates the unfilled vacancies shall be filled up with non-Home Guard candidates. Under clause (13), it is provided that there shall be no waiting list but if the advertised vacancies are not filled up after the first list, then the candidates from the bottom of the final selected in the first merit list shall be offered the appointment. 28. However, the Recruitment Rules of 2014 provide that there shall be a written examination of the level of Class-X standard of 300 marks comprising of 100 objective type questions, mainly of general knowledge, common language, regional and tribal language and numerical ability. 29. Under Rule 4, the Recruitment Rules of 2014 provides that the recruitment process shall be conducted by the Jharkhand State Uniform Service Appointment Board. As per the available vacancies, a draft for advertisement and application form shall be prepared and made available to the interested candidates at selected Post Offices and Banks. It further provides that Optical Mark Recognition/Optical Character Recognition technique shall be used and the candidate shall be given the option for district/battalion against the advertised vacancies. Rule 5 lays down the reservation policy in detail. Under Rule 6, the procedure for recruitment has been laid down. It provides that a merit list of the successful candidates shall be prepared based on marks obtained in the written examination. It further provides that the date of birth of a candidate shall be determinative in case two candidates obtain equal marks in the merit list, all things equal. These Rules provide and prescribe also the procedure for the Physical Skill Test and Medical Examination. Under Rule 6(viii), it is further provided that the candidates who obtain pass marks in regional and tribal languages shall only qualify for the selection. It is further provided under clause (ix) that the minimum qualifying marks in the written examination shall be 45% for the General and Backward Class candidates and 35% for SC/ST candidates. Rule 10 provides that the merit list of successful candidates shall be prepared based on marks obtained in the written examination. Rule 11 provides that the corresponding provisions of the Jharkhand Police Manual shall be omitted. 30. Rule 10 provides that the merit list of successful candidates shall be prepared based on marks obtained in the written examination. Rule 11 provides that the corresponding provisions of the Jharkhand Police Manual shall be omitted. 30. The relevant portions of the Notification dated 20th October 2014 are extracted below: English translation: (6) Procedure of recruitment: (i) The scrutiny of application forms shall be done after collection of application forms. Only those candidates shall be eligible to appear in written examination whose application forms is found correct. After scrutiny of application forms, candidates, first of all, will have to appear in written examination. (ii) The entire recruitment process till preparation of final merit list shall be done by the Jharkhand State Uniform Service Appointment Board. A data shall be prepared on the basis of application forms received from the candidates in prescribed format. Complete information in respect of a candidate viz, name of a candidate, father’s name of a candidate, permanent and temporary address, age certificate, reservation category, citizenship, educational qualification and any additional information which is prescribed by the Appointment Board shall be available in the prepared data. (iii) Separation of qualified and disqualified candidates shall be done by Electronic system. (iv) Defective application forms shall be rejected and information in this regard shall be published on the website mentioning the reasons of rejection. (v) After deciding the venue and the program of the examination, it shall be informed to the eligible candidates by the Jharkhand State Uniform Service Appointment Board. Along with it, a Public Notice shall also be published in prominent local newspapers. (vi) The level of written examination shall be of Class-Xth level and questions shall be of objective type. Written examination shall be of 300 marks. There shall be 100 questions in a question paper of two hours, in which marks for each correct answer shall be mentioned against each question. (vii) The answer sheet shall be in two copies, one copy out of it shall be in the form of Invisible carbon copy and this copy shall be kept in safe custody with the Appointment Boards (viii) Written examination shall mainly be conducted for General Knowledge, knowledge of common language and Numerical ability; and Regional and Tribal languages notified for the district by the State Government. Only those candidates shall be included in the final selection/successful list, who has obtained pass marks in the knowledge of Regional and Tribal languages examination notified for the District the test procedure for assessing the knowledge of Regional and Tribal languages shall be notified separately by the executive order for its test. (ix) Minimum qualifying marks in written examination shall be 45 percent for the candidates belonging to General arid Backward Class and 35 percent for SC/ST candidates. (x) Merit list of successful candidates shall be prepared on the basis of marks obtained in the written competitive examination. (xi) In case of tie, in the marks of candidates in the merit list of successful candidates, date of birth shall be the basis of seniority. (xii) On the basis of marks obtained in the written examination, candidates of all categories in ratio of 1:3 of the advertised/expected vacancy shall be selected for the Physical Test examination. (xiii) Candidates selected on the basis of written examination shall have to appear in Physical Skill Test and it shall be essential to pass in it, but no marks shall be given on the basis of Physical Skill Test. No relaxation is admissible for any category in the minimum prescribed criteria of physical eligibility. …………………………………………………………………………… …………………………………………………………………………… (10) Selection List: (i) After completion of the recruitment examination, the selection list of successful candidates shall be prepared by Appointment Board on the basis of marks obtained as per category wise available vacancy for each District/Battalion/Unit published in the advertisement. (ii) If total marks in written examination as well as age of two or more than two candidates are same, then their seniority in the list shall be determined on the basis of their height. (iii) The list prepared by the Jharkhand State Uniform Service Appointment Board shall be valid for one year. (11) After notification of this Rule, relevant provision of Jharkhand Police Manual shall be automatically omitted. By order of the Governor of Jharkhand Sd/ (N.N. Pandey) Principal Secretary 31. The grievance of the petitioners is that on coming into force of the Recruitment Rules of 2014 the relevant provisions of the Rule 663 of the Jharkhand Police Manual shall be automatically omitted. By order of the Governor of Jharkhand Sd/ (N.N. Pandey) Principal Secretary 31. The grievance of the petitioners is that on coming into force of the Recruitment Rules of 2014 the relevant provisions of the Rule 663 of the Jharkhand Police Manual shall be automatically omitted. According to the petitioners, the provision under Rule 663 which requires the State Government to publish a second merit list cannot be omitted or deleted through the Rules framed by exercise of the powers under proviso to Article 309 of the Constitution. As the Rules framed under proviso to Article 309 of the Constitution must be in conformity with the other provisions of the Constitution such as Articles 14, 16, 310 and 311, the petitioners set up a plea that omitting a part of Rule 663(c) in the Jharkhand Police Manual caused serious prejudice to them and were unfairly treated by the Government of Jharkhand which set cut-off marks for appointment to the post of Constable. Mr. R.N. Sahay, the learned senior counsel for the petitioners in 1st set of writ petitions submitted that a candidate who qualified in the Preliminary examination cannot be forced to undergo the Mains examination. This submission is based on the premise that any stipulation in the advertisement dehors the statutory Rules in the Jharkhand Police Manual cannot be enforced and followed for the appointment of Constables. The learned senior counsel referred to “Malik Mazhar”[ Malik Mazhar Sultan v. U.P. Public Service Commission : (2006) 9 SCC 507 ]wherein the Hon’ble Supreme Court held that the recruitment to the service can only be made in accordance with the Rules and the error, if any, in the advertisement cannot override the Rules. The petitioners have also taken the position that the Recruitment Rules of 2014 were not placed before the Legislative Assembly and for that reason cannot even repeal the existing statutory Rules under Volume-I of the Jharkhand Police Manual. Following him, Mr. Abhay Kumar Mishra, the learned counsel appearing in 3rd set of writ petitions contended that the Recruitment Rules of 2014 are ultra-vires to the Constitution of India inasmuch as under Rule 3 the upper age limit for appointment to the post of Constables has been changed to the detriment of the aspirants and that provision has been framed contravening Rule 663(c) of the Jharkhand Police Manual. 32. 32. The primary duty of the Court is to expound the law but in the process of adjudication the Court may be asked to resolve the conflict in the legislative or executive intention and the spirit of law. It is the duty of the Court to creatively interpret the law. The executive intention may be winched up by taking into account the ostensible purpose and object and the real intention of the executive which seeks to implement its scheme. In doing so, the Court may sometime be required to adopt a functional approach and look into the intention of the executive by going beyond and behind the words and phrases used thereunder so that no absurdity or practical inconvenience may arise. 33. This is well-settled that it is for the employer to decide the qualification and other criteria for appointment. This is also no ground to challenge the validity of the Rules that those could have been farmed in a better manner or there can be better Rules for the appointment. This is entirely within the domain of the employer to make Rules for the appointment and unless it is demonstrated that the Rules so framed violates the equality clause in the Constitution or the other legislation, the Rules must be held valid. There is no right in a candidate to challenge the age requirement as prescribed under the Rules and no candidate can seek age relaxation as a matter of right. The age criteria and the fixing of cut-off date are purely administrative or legislative function and the Court cannot intervene merely on the ground that the previous Rules better suited to the candidates. 34. The choice of date as the basis for classification cannot always be dubbed as arbitrary unless it is shown to be capricious or whimsical; in the words of Justice Holmes [Louisville Gas Co. v. Alabama Power Co. : 240 US 30, 32 (1927)] – it is very wide off the reasonable mark. In “Hathising Manufacturing Co. Ltd.”[ Hathising Manufacturing Co. Ltd. v. Union of India : AIR 1960 SC 923 ] the Hon’ble Supreme Court held that a classification can be founded on a particular date and fixing a cut-off date cannot always be arbitrary even if no particular reason is forthcoming for the choice of such a date. In “Hathising Manufacturing Co. Ltd.”[ Hathising Manufacturing Co. Ltd. v. Union of India : AIR 1960 SC 923 ] the Hon’ble Supreme Court held that a classification can be founded on a particular date and fixing a cut-off date cannot always be arbitrary even if no particular reason is forthcoming for the choice of such a date. The consideration which may be in the mind of the executive authority can be financial, administer or other considerations and the Court must exercise judicial restrain and must ordinarily leave to the executive authority to fix the cut-off date [Govt. of A.P. v. N. Subbarayudu : (2008) 14 SCC 702 ] . In “N. Subbarayudu” (supra) the Hon’ble Supreme Court held as under: “7. There may be various considerations in the mind of the executive authorities due to which a particular cut-off date has been fixed. These considerations can be financial, administrative or other considerations. The court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut-off date. The Government must be left with some leeway and free play at the joints in this connection.” 35. “Ramjee Prasad”[ State of Bihar v. Ramjee Prasad : (1990) 3 SCC 368 ] held that the choice of the date depends on several factors such as number of vacancies, need to fill up the posts, availability of candidates etc. The fixing of cut-off date for determining the maximum or minimum age is in the discretion of the Rule making authority or the employer and it must be accepted that such a cut-off date cannot be fixed with any mathematical precision or in such a manner as would avoid hardship in all conceivable cases. In “Ami Lal Bhat (Dr)”[ Ami Lal Bhat (Dr) v. State of Rajasthan : (1997) 6 SCC 614 ] the Hon’ble Supreme Court held that the fixing of a cut-off date for determining the maximum or minimum age prescribed for a post is not per se arbitrary. In “Ami Lal Bhat (Dr)”(supra) the Hon’ble Supreme Court has elucidated the subject as under: “5. This contention, in our view, is not sustainable. In the first place the fixing of a cut-off date for determining the maximum or minimum age prescribed for a post is not, per se, arbitrary. In “Ami Lal Bhat (Dr)”(supra) the Hon’ble Supreme Court has elucidated the subject as under: “5. This contention, in our view, is not sustainable. In the first place the fixing of a cut-off date for determining the maximum or minimum age prescribed for a post is not, per se, arbitrary. Basically, the fixing of a cut-off date for determining the maximum or minimum age required for a post, is in the discretion of the rule-making authority or the employer as the case may be. One must accept that such a cut-off date cannot be fixed with any mathematical precision and in such a manner as would avoid hardship in all conceivable cases. As soon as a cut-off date is fixed there will be some persons who fall on the right side of the cut-off date and some persons who will fall on the wrong side of the cut-off date. That cannot make the cut-off date, per se, arbitrary unless the cut-off date is so wide off the mark as to make it wholly unreasonable. This view was expressed by this Court in Union of India v. Parameswaran Match Works and has been reiterated in subsequent cases. In the case of A.P. Public Service Commission v. B. Sarat Chandra the relevant service rule stipulated that the candidate should not have completed the age of 26 years on the 1st day of July of the year in which the selection is made. Such a cut-off date was challenged. This Court considered the various steps required in the process of selection and said, “when such are the different steps in the process of selection the minimum or maximum age of suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date. If the final stage of selection is delayed and more often it happens for various reasons, the candidates who are eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. The date to attain the minimum or maximum age must, therefore, be specific and determinate as on a particular date for candidates to apply and for the recruiting agency to scrutinise the applications”. The date to attain the minimum or maximum age must, therefore, be specific and determinate as on a particular date for candidates to apply and for the recruiting agency to scrutinise the applications”. This Court, therefore, held that in order to avoid uncertainty in respect of minimum or maximum age of a candidate, which may arise if such an age is linked to the process of selection which may take an uncertain time, it is desirable that such a cut-off date should be with reference to a fixed date. Therefore, fixing an independent cut-off date, far from being arbitrary, makes for certainty in determining the maximum age.” 36. In “Nair Service Society”[ Nair Service Society v. State of Kerala : (2007) 4 SCC 1 ] where the maximum prescribed age limit was reduced to 35 years which was earlier 40 years, the Hon’ble Supreme Court held as under: “37. Categories I, II and III aforementioned are excluded on the basis of the status held by the persons concerned. Category IV is subject to the income limit specified in Category VI. We may, at this stage, however, state that we do not find any merit in the submission of Mr Venugopal that bringing down the age-limit from 40 to 35, vis-à-vis, the office memorandum issued by the Central Government fixing age-limit as 40 is bad in law in view of the fact that age of superannuation of the employees in the State of Kerala is 55, as compared to the age of superannuation of the Central Government employees, which is 60.” 37. This is also equally fallacious to argue that the Recruitment Rules of 2014 cannot supersede and omit the provision under Rule 663(c) to the extent it provided that a 2nd merit list shall be prepared. A provision for the preparation of 2nd merit list cannot be held a mandatory provision that shall bind the State of Jharkhand to select inferior candidates if the vacancies are not filled. The employer cannot be forced to appoint inferior candidates or those who shall not be suitable for appointment. There is no force in the challenge to Rule 11 of the Recruitment Rules of 2014 which provides that the corresponding provisions in the Jharkhand Police Manual shall stand omitted. The employer cannot be forced to appoint inferior candidates or those who shall not be suitable for appointment. There is no force in the challenge to Rule 11 of the Recruitment Rules of 2014 which provides that the corresponding provisions in the Jharkhand Police Manual shall stand omitted. The challenge to the appointments made under Advertisement No.4 of 2015 and Advertisement No.8 of 2017 shall fail also for the reason that a candidate has no indefeasible claim for appointment to a post as a matter of right. 38. Quite evidently, the Court should not intervene in the matter and exercise its power of judicial review under Article 226 of the Constitution. Justice Joseph McKenna [Metropolis Theater Co. v. City of Chicago : 228 US 61 (1913)] who was an American politician and the Associate Justice of the Supreme Court of the United States of America aptly made the following observations: “It may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not always discernible; the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void ….” 39. For the foregoing reasons, we hold that the “Jharkhand Rajya Police Appointment Rules, 2014” are valid and the provisions thereunder do not suffer vice of arbitrariness. These Rules are being validly applied for the selection and appointment of the Police Constables. We therefore find no reason to interfere in these matters and, consequently, the writ petitions are dismissed. 40. IAs, if any, shall stand disposed of accordingly.