The appointing authority has the power to relax the upper age limit in exceptional cases after obtaining approval from the Government.

1. 1. By this petition under Article 226 of the Constitution, the petitioner is challenging the order dated, 23.1.96 (Annex.7) of the Rajasthan Public Service Commission (for short the RPSC) whereby his application form for direct recruitment to the post of Sub-Inspector under the Rajasthan Police Subordinate Service Rules, 1989 (hereinafter to be referred to as the Rules of 1989) was rejected on the ground of being over-age.

2. Put briefly, the necessary facts which are not in dispute are thus:

The R.P.S.C. invited applications, vide Advertisement No. 6/94-95 dated. 3.10.94 for direct recruitment to the posts of Sub-Inspector through the Combined Competitive Examination, 1994. The last date for submission of the application forms was 26.11.94. The age prescribed for candidates as per the rules of 1989 and as well as the Advertisement, was 20 years as the minimum age and 23 years as the maximum age. It was prescribed in the advertisement that the candidate should have obtained the age of 20 years on January 1, 1995, but should not have attained the age of 23 years. The petitioner was allowed to appear in the written examination which was held on May 14, 1995 in which he was declared successful. He was also successful in the Physical Efficiency Test, but on scrutiny of the application form, he was found not eligible being over-age by one day on 1.1.95, the cut off date as per the rules and the advertisement.

3. In view of the authoritative decisions of this Court in State of Rajasthan v. Prabhu Dayal Sesma and of the Apex Court in Prabhu Dayal Sesma v. State of Rajasthan and another, 1986 (4) S.C.C. 59 , it cannot be disputed that the petitioner was over age on 1.1.95 by one day. In the case of Prabhu Dayal Sesma (supra), the Supreme Court has held as under:

"As already stated a legal day commences at 12'o Clock midnight and continues until the same hour the following night. It would therefore appear that the appellant having been born on January 2, 1956, he had not only attained the age of 28 years but also completed the same at 12 o'clock on the midnight of January 1, 1984. On the next day i.e. on January 2, 1984, the appellant would be one day more than 28 years. The learned Judges were therefore right in holding that the appellant was disqualified for direct recruitment to the Rajasthan Administrative Service and as such, was not entitled to appear at the examination held by the Rajasthan Public Service Commission in 1983. We affirm the view taken by the learned judges as also the decision in G. Vatsala Rani case."

Having held so, it observed in para-15 thus:-

"It is rather unfortunate that the appellant should upon the construction placed on Rule 11-B of the Rajasthan State and Subordinate Services (Direct Recruitment by Competitive Examination) Rules, 1962 fail to secure entry into the Rajasthan Administrative Service and allied services of the Government of Rajasthan merely because he exceeds the upper age limit just by one day. The Government ought to consider the question of relaxing the upper age limit in the case of the appellant in order to mitigate the hardship, if otherwise permissible. There is need for a provision like the proviso to Rule 4 of the Indian Administrative Service (Appointment of Competitive Examination) Regulations, 1955, conferring the power of relaxation on the State Government under certain conditions without which a deserving candidates would be rendered ineligible for appointment."

4. In the writ petition, the petitioner challenges the cut off date to be arbitrary. This contention has no merit after the full Bench decision of this Court in Surendra Singh Rao and others v. State of Rajasthan, 1995 (1) WLC (Raj.) 197 . This petition was filed on 7.2.96 and thereafter, the petitioner made representation to the Home Secretary, Government of Rajasthan, Jaipur on 27.3.96 with a request to grant relaxation in upper-age limit of one day in the case of the petitioner in exercise of powers under r