JUDGMENT : ANAND SHARMA, J. 1. By way of filing this writ petition, the petitioner has prayed for a direction against the respondents to give him appointment on the post of Sub Inspector/Platoon Commander in Rajasthan Police and to hold that physical efficiency test conducted by Respondent No. 2 on 28.02.2011 in respect of ex-servicemen was contrary to the provisions of the Rajasthan Civil Services (Absorption of Ex-Servicemen) Rules, 1988 (hereinafter to be referred as ‘the Rules of 1988’) and a declaration has been sought that the provisions of the Rajasthan Police Subordinate Service Rules, 1989 (hereinafter to be referred as ‘the Rules of 1989’) shall not be applicable so far as selection process for the posts reserved for ex-servicemen is concerned. 2. It is stated in the writ petition that the petitioner was enrolled in Indian Air Force as an Air Craftman and after completing services of 15 years, he was discharged on 07.11.2005. The petitioner also belongs to OBC category. Thus, in view of above, the petitioner was entitled for taking benefits attached to the certificate relating to ex-servicemen. It has also been averred that the respondent-Rajasthan Public Service Commission issued an advertisement dated 02.03.2009 inviting applications from all eligible persons for appointment on the post of Sub Inspector/Platoon Commander. It was specified in the advertisement itself that the advertisement has been issued under the provisions of the Rules of 1988. 3. It has also been contended that as the petitioner was eligible to participate in the selection process, he submitted his application form and underwent the process mentioned in the advertisement including written examination. It has been mentioned that as per Rule 8 of the Rules of 1988, for the purpose of appointment, an aspirant, being ex-serviceman, was expected to appear in a good bodily and mental health, and there was no requirement whatsoever for conducting physical efficiency test. It has also been mentioned that as per medical certificate issued by military authorities, the petitioner is medically fit and has been discharged by certifying that he was fit for civil employments. It has also been mentioned that as per medical certificate issued by military authorities, the petitioner is medically fit and has been discharged by certifying that he was fit for civil employments. 3.1 Grievance of the petitioner is that contrary to the provisions of Rule 8 of the Rules of 1988, the petitioner was required to undergo rigorous physical efficiency test such as 5 Kms walk/run in 35 minutes; 100 meter sprint in 14 to 16.5 seconds; pull ups of 7 round or carrying weight equal to own weight up to 400 yards; long jump up to 13 to 15 feet; throw ball 160 to 200 feet and 50 push ups in 2.5 minutes or 50 sit ups in 65 seconds. It has been stated that the petitioner raised protest before the authorities against the aforesaid physical efficiency test, yet he was forced to undergo the same in order to allow him to further participate in the process. Finding no other alternative, the petitioner participated in the physical efficiency test. Although, nothing was given in writing, yet it was orally informed that the petitioner could not qualify the physical efficiency test. As per the petitioner, the respondents have conducted the test in view of the provisions of Rule 21 of the Rules of 1989. 4. Learned counsel appearing for the petitioner submits that when it was made clear in the advertisement itself that the recruitment process for the post of Sub Inspector/Platoon Commander was being undertaken as per the Rules of 1988, then there was no reason to apply the provisions of the Rules of 1989 which are meant for fresh recruitees and not for ex-servicemen. Only on account of such unauthorised and illegal physical efficiency test, the petitioner has been deprived of his right to get appointment, otherwise he would have been selected in the process. Learned counsel for the petitioner submits that application of the standards of physical efficiency test prescribed under the Rules of 1989 was totally arbitrary and irrational for the reason that that upper age limit prescribed under the Rules of 1989 is 25 years whereas, in the Rules of 1998, the upper age limit is 50 years.Thus, a candidate, belonging to ex-servicemen category and having age of around 50 years, cannot be expected to withstand the physical efficiency test meant for the candidates having younger age of around 25 years. Thus, the petitioner has prayed for holding the process of physical efficiency test as arbitrary and also for examining the candidature of the petitioner at the touchstone of the Rules of 1988 and to grant him appointment on the post of Sub Inspector/Platoon Commander. 5. Learned counsels for the respondents vehemently opposed the writ petition and submitted that although the advertisement was issued under the provisions of the Rules of 1988, yet Rule 15 of the aforesaid Rules also make it clear that for the purpose of selection, the selection board is empowered to require the candidates to undergo test/examination of any kind. Even Rule 5 of the Rules of 1988 provides for physical fitness of the aspirant. Holding physical efficiency test is a method for ascertaining the physical fitness of the candidates appearing in the recruitment process. Since the procedure for conducting physical efficiency test has been prescribed in the Rules of 1989, therefore, the respondents have adverted to such rules. 6. An objection was also raised by the respondents that on one hand, the petitioner has participated in the physical efficiency test, yet on the other hand, after remaining unsuccessful, he is challenging such process of conducting physical efficiency test. The moment, the petitioner participated in the process, he has waived and acquiesced his right to challenge holding of physical efficiency test. Learned counsels for the respondents have emphasised that all the candidates appearing in the impugned process were belonging to the ex-servicemen category and all of them were required to qualify the same physical efficiency test. Hence, it is not a matter where the petitioner has been singled out or has been subjected to any hostile discrimination. Learned counsels for the respondents have also submitted that the process was initiated in the year 2009 and all the posts advertised in the process have been filled up.Therefore, at this stage, no relief can be granted to the petitioner. 7. I have considered rival submissions put forward by learned counsel for the parties and examined the record. 8. Learned counsels for the respondents have also submitted that the process was initiated in the year 2009 and all the posts advertised in the process have been filled up.Therefore, at this stage, no relief can be granted to the petitioner. 7. I have considered rival submissions put forward by learned counsel for the parties and examined the record. 8. Before examining the merits of the case, it may be relevant to refer that while issuing notice in the instant writ petition, this Court also passed an ad-interim order dated 10.05.2011, whereby, the petitioner was permitted to participate in the process of interview, however, result of his participation was directed not to be declared without prior permission of the Court and the same was directed to be kept in sealed cover till further orders. It has been informed that pursuant to interim order dated 10.05.2011, the petitioner participated in the interview. Thereafter, an interim application was moved on behalf of the petitioner for declaration of result. Accordingly, on 21.09.2011, directions were issued by this Court to the counsel for RPSC for producing result of the petitioner in sealed cover. 9. Learned counsel for the petitioner indicated that on 11.11.2011, the result of the petitioner was produced before this Court in sealed cover and after perusing the same, it was recorded that the petitioner secured 14 marks in the interview. After recording the marks, it was directed that the matter would be considered on merits. 10. By referring to the aforesaid interim orders, it would be proper to observe that the petitioner has not caused any delay in approaching the Court and his rights were also protected by this Court by way of passing interim order. However, despite directions issued by this Court on 11.11.2011, this petition could not be decided finally. It is well known Latin maxim, ‘actus curiae neminem gravabit’, which means that an act of Court shall prejudice no man. The aforesaid maxim has been interpreted by the Hon’ble Supreme Court in the case of Atma Ram Mittal Vs. Ishwar Singh Punia , (1988) 4 SCC 284 wherein it has held as under: “ 8. It is well-settled that no man should suffer because of the fault of the court or delay in the procedure. Broom has stated the maxim “actus curiae neminem gravabit”— an act of court shall prejudice no man. Ishwar Singh Punia , (1988) 4 SCC 284 wherein it has held as under: “ 8. It is well-settled that no man should suffer because of the fault of the court or delay in the procedure. Broom has stated the maxim “actus curiae neminem gravabit”— an act of court shall prejudice no man. Therefore, having regard to the time normally consumed for adjudication, the ten years' exemption or holiday from the application of the Rent Act would become illusory, if the suit has to be filed within that time and be disposed of finally. It is common knowledge that unless a suit is instituted soon after the date of letting it would never be disposed of within ten years and even then within that time it may not be disposed of. That will make the ten years holiday from the Rent Act illusory and provide no incentive to the landlords to build new houses to solve problem of shortages of houses. The purpose of legislation would thus be defeated. Purposive interpretation in a social amelioration legislation is an imperative irrespective of anything else.” 11. Hon’ble Supreme Court in the case of Purushottam Vs. Chairman, M.S.E.B. & Another, (1999) 6 SCC 49 has held has held that a duly selected person, kept out of the employment on account of untenable decision on the part of the employer, cannot be denied the appointment on the ground that there is no vacancy available. In view of above, the petitioner cannot be non-suited only on the ground that during pendency of the writ petition, the recruitment process was over. 12. So far as objection raised by learned counsels for the respondents that after participating in the physical efficiency test and remaining unsuccessful, the petitioner cannot be allowed to challenge the same, is concerned, I find that under the circumstances of the case where the advertisement itself shows that the process of recruitment was to be conducted in accordance with the provisions of the Rules of 1988, no candidate can anticipate that process with regard to medical fitness prescribed under the Rules of 1988 would be stretched to such an extent that to ascertain physical fitness, rigorous physical efficiency test prescribed in another set of rules, i.e., the Rules of 1989 would be conducted. 13. 13. After reaching at the place of conducting the test, an aspirant cannot be expected to bargain or raise voice against the process, therefore, mere participation in the physical efficiency test would not debar the petitioner, in the facts and circumstances of the case, from challenging the validity of the same. 14. So far as validity and propriety of conducting physical efficiency test of ex-serviceman by the process prescribed under the Rules of 1989 is concerned, it would be relevant to refer that the aforesaid issue has already been examined by this Court in the case of Girdhari Lal Bugaliya Vs. State of Rajasthan & Others, (2012) Supreme (Raj) 796 , where in similar circumstances, while examining both the schemes of the rules, I. e., the Rules of 1988 and the Rules of 1989, this Court has observed as under: “ 15. It is not in dispute that the entire process of selection was pertaining to the ex-service personnel only and that was initiated as per Rules of 1988. The object of the Rules of 1988 is to provide suitable employment to the ex-service personnel as they usually retire from service in early age and even get discharged for several reasons in young or middle age. Looking to the need of their rehabilitation the Governor framed the Rules of 1988. As already stated the maximum age limit under the Rules of 1988 for consideration for appointment is 50 years. The law framing authority considered it appropriate to mention scope of the rules of 1988 by giving prevalence to them vis-a-vis the conditions prescribed under the other service rules. The law framing authority under the Rules of 1988 intentionally made provisions for maximum age limit and for physical fitness, but not for educational qualifications and the experience required, as the every service require independent expertise and skill. The educational qualification thus is to be taken from the other relevant Rules, However, this legal position clearly indicates that the age and physical fitness while making appointments of Ex-servicemen under the Rules of 1988 shall be governed by these rules only and not by any other service rules, but the educational qualification and experience to meet the nature of job shall be settled as per the provisions made in the specific service rules. 16. 16. In the instant case too the respondents while making appointments to the post of Platoon Commander/Sub Inspector (Armed Police), while adopting the educational qualification from the Rules of 1989, should have examined physical fitness of the aspirants as per Rule 8 of the Rules of 1988. 17. The another aspect of the matter is that under the Rules of 1989 recruitment to the post of Sub Inspector/Platoon Commander is essentially from the young boys upto the age of 23 years or in certain cases with relaxation in maximum age limit. The physical fitness of young boys is required to be examined from a different scale than the scale required to be adopted for middle aged persons. Under the Rules of 1988 the maximum age limit given is 50 years and the recruitment is confined to Ex-service personnel. These Ex-service personnel were subjected to vigorous physical fitness while their recruitment and enrollment in defence service. For this reason too moderate physical fitness is prescribed under Rule 8 of the Rules of 1988. If the stand taken by the respondents be accepted then that will be contrary to the object, purpose and thrust of the Rules of 1988 and that shall frustrate the very purpose of enacting special provisions for rehabilitation of the Ex-service personnel.” 15. In the light of aforesaid discussion and the judgments referred hereinabove, it is held that the respondents were not justified in asking the petitioner to undergo rigorous physical efficiency test for the purpose of recruitment to the post of Sub Inspector/Platoon Commander, as the same is contrary to the requirement of moderate physical fitness as prescribed under Rule 8 of the Rules of 1988. The respondents could not have conducted the process as per the Rules of 1989. Thus, action of the respondents is declared arbitrary and illegal. 16. Since the petitioner has already appeared before the interview board and his result was perused by this Court during pendency of the petition, hence, the respondents are directed to examine the moderate physical fitness of the petitioner as per Rule 8 of the Rules of 1988. Thus, action of the respondents is declared arbitrary and illegal. 16. Since the petitioner has already appeared before the interview board and his result was perused by this Court during pendency of the petition, hence, the respondents are directed to examine the moderate physical fitness of the petitioner as per Rule 8 of the Rules of 1988. Thereafter, on being satisfied with petitioner’s physical fitness, his merit position assessed on the basis of overall marks secured by him in written examination and interview etc., shall be compared with other similarly situated candidates appeared at the relevant time in the aforesaid recruitment process and in case, the petitioner secures suitable place in the merit list prepared at the relevant time, the respondents are directed to appoint the petitioner on the post of Sub Inspector/Platoon Commander. It is made clear that the petitioner shall not be entitled for any actual monitory benefits, however, seniority and fixational benefits shall be granted to the petitioner on notional basis from the date on which the persons having lesser/equal marks to the petitioner have been appointed on the said post. 17. Compliance of this order be made by the respondents within a period of three months from the date of receipt of certified copy of this order. 18. Writ petition stands allowed with the aforesaid directions. 19. Pending application, if any, also stands disposed of.