JUDGMENT :

1. Anand Kanwar, respondent in the appeal herein, applied for the post of Senior Teacher in response to an advertisement by the Rajasthan Government in the year 1989. She was over-age having crossed the age of 40. She appeared in the preliminary examination conducted by the Rajasthan Public Service Commission (the Commission), but at the time of viva voce test, she was told that being overaged, she was not eligible to be considered for the post. Her candidature was, thus, cancelled. She challenged the same by way of a writ petition before the Rajasthan High Court. A Division Bench of the High Court allowed the writ petition and directed the Commission to permit her to compete in the selection. It is not disputed that she has been selected in the process. and has also been given appointment under the directions of the High Court. This Court while issuing notice in the special leave petition, permitted the respondent to continue subject to the final decision by this Court.

2. It was not disputed before the High Court that prior to 1988, recruitment to the cadre of Assistant Teachers was made only in the year 1983. Recruitment to the said cadre is by way of direct recruitment and also by promotion. During the period 1983-89 promotions were being made to the cadre, but no direct recruitment was made. The only contention raised by the respondent before the High Court was that it was mandatory for the Rajasthan Government to have filled the quota of direct recruits during all those years. It was further contended that had the posts meant for direct recruitment been advertised during the year 1983-89, the respondent could have applied and may have been selected. She contended that at that point of time, she could not be rejected on the ground of over-age. The High Court accepted the contentions on the following reasoning:

".The last advertisement was issued in the. year 1983 and this advertisement has been issued in the year 1989 that is after a lapse of about six years and the petitioner has completed her age of 40 years in the year 1.986. It has been held in this authority that if year-wise vacancies are not determined and if the advertisements are issued to fill up the vacancies of six years by the one advertisement, then the person's candidature cannot be rejected on that account.

The competent authority cannot avoid this responsibility by sheer inaction or omission and failure on the part of the competent authority cannot be used as a basis for denying eligibility to those who are eligible in a particular year but become ineligible on account of absence of determination of the vacancies.. She could have been denied right of a consideration only if there existed no vacancies till the time she has attained the age of 40 years. If vacancies were existing, she had a right of consideration and consequently the petitioner who has been allowed to appear in the interview, under the orders of the Court, her result of the interview be declared and if she is found suitable for appointment on the basis of the merit that has been assigned to her by the Public Service Commission, she be afforded appointment as a Senior Teacher, which has now been designated as Lecturer in Secondary/Senior Secondary Section). The result be declared within a period of three weeks from today and if shy, is entitled to be appointed then appointment be accorded to her within 3 months from today."

3. We are of the view that the High Court fell into patent error bordering on perversity in issuing the mandamus on the reasoning quoted above. It is settled proposition of law that the eligibility of a candidate has to be determined on the basis of the terms and conditions of the advertisement in response to which the candidate applies. There is nothing on the record to show that the State Government was in any manner negligent or at fault in not making the direct recruitment during the period 1983-89. Be that as it may, the High Court was not justified in takin