Sangeet Lodha, J.:— This intra court appeal is directed against order dated 11.7.06 of the learned Single Judge of this court, whereby the writ petition preferred by the appellant, an existing employee of the Government of Rajasthan, aspirant for appearing in Rajasthan State & Subordinate Services Combined Competitive Examination, 2003 pursuant to notification dated 6.4.03 issued by the Rajasthan Public Service Commission (‘RPSC’), claiming relaxa-tion in age for five years, being member of Scheduled Caste, over and above the upper age limit prescribed for in-service candidates, stands dismissed.

2. The relevant facts are that RPSC issued an advertisement dated 6.4.2003 inviting applications from the candidates aspirant to appear in Rajasthan State & Subordinate Services Combined Competitive Examination, 2003, to be conducted under the provisions of Rajasthan State & Subordinate Services (Direct Recruitment by Competitive Examination) Rules, 1999 (for short “the Rules”).

3. The appellant, a member of Scheduled Caste, serving in connection with the affairs of the State in substantive capacity, made an application to appear in the said examination. The appellant appeared in the preliminary examination as also in the main examination, however, later, on scrutiny of the appellant's application, it was revealed that he is over age and therefore, his candidature was rejected by the RPSC vide communication dated 29.3.2005 In these circumstances, aggrieved by the action of the RPSC, in rejecting his candidature, the appellant preferred a writ petition before this court, which stands dismissed by the learned Single Judge by the order impugned. Hence, this appeal.

4. Precisely, the case of the appellant was that being in-service candidate, the upper age applicable to him as per proviso (6) to Rule 13 of the Rules, shall be 40 years and being member of Scheduled Caste by virtue of proviso (1) to Rule 13 of the Rules, he is further entitled for relaxation in upper age limit for a period of 5 years. The contention of the appellant was that Rule 13 of the Rules, provides for minimum and maximum age limit of 21 and 33 years respectively for the appearance in the Combined Competitive Examination to be conducted by the RPSC for recruitment to the various posts under the Rules and the provisos thereto, provides for the relaxation in age available to the candidates belonging to the different categories and therefore, as per proviso (6) to Rule 13, the upper age limit prescribed for in-service candidate being 40 years, his candidature ought to have been examined while giving effect to each and every clause providing for age relaxation and accordingly, in the first instance, he was entitled for the benefit of upper age limit of 40 years as provided for under proviso to Rule 13 and thereafter, being member of the Scheduled Caste, further age relaxation of 5 years under proviso (1) to Rule 13 of the Rules. Accordingly, it was contended that the note appended to para (6) of the advertisement by the RPSC, restricting the relaxation in age provided for under clauses (1) to (12) of para (6) to only under one clause out of the various relaxation clauses incorporated, treating the same to be ‘Non-Cumulative’, is contrary to the Rules.

5. The learned Single Judge opined that non-gazetted employees forms an independent class under the Rules and there cannot be further bifurcation as non-gazetted employees belonging to Scheduled Castes, Scheduled Tribes or Other Backward Classes. Learned Single Judge observed that age relaxation is given to the employees connected with the affairs of the State as an incentive for their progress while in service and for this reason, 7% of the vacancies available are reserved for the employees engaged in connection with the affairs of the State. Referring to the sub-rule (2) of Rule 4 of the Rules, the learned Single Judge observed that for the in-service candidate, it is specifically provided that he must not have attained the age of 40 years on the first day of January next following the last date fixed for receipt of application for appearance in the Combined Competitive Examination. The learned Single Judge held that the intention of the legislature to provide relaxation of five years in age to the candidates belonging to Scheduled Castes and Tribes of Rajasthan is only qua the General Candidates and such relaxation is not at all available to the persons already serving in connection with the affairs of the State in substantive capacity. The learned Single Judge found that the interpretation of the Rule 13 of the Rules, as suggested by the appellant, runs contrary to the Rules and against the intention of the legislature.

6. Mr. M.R Singhvi, Senior Advocate appearing on behalf of the appellant contended that the upper age limit of 40 years, as provided for the persons serving in connection with the affairs of the State is a substantive provision, which provides for a different upper age limit for a specified category and it cannot be construed to be a provision granting age relaxation and therefore, the existing employee of the State Government falling in a separate category cannot be denied the benefit of age relaxation available to the members of Scheduled Castes and Scheduled Tribes in terms of proviso (1) to Rule 13 of the Rules. Learned counsel submitted that there is no reason why the relaxation in age as provided under proviso (1) to Rule 13 should not be applied to the persons serving in connection with the affairs of the State, entitled to appear at Combined Competitive Examination by virtue of Rule 4 of the Rules. Learned counsel would submit that there cannot be any distinction between the in-service candidates and candidates belonging to other categories and therefore, the interpretation of the relevant rules sought to be made by the RPSC, runs contrary to the scheme of the Rules, as also against the spirit of the Constitution which mandates for making special provisions for advancement of inter alia Scheduled Castes and Scheduled Tribes. Learned counsel contended that the RPSC, a body responsible to conduct the examination cannot be permitted to put its own interpretation to the provisions of the Rules so as to frustrate the very object of the legislature in making special provision for advancement of the Scheduled Castes and Scheduled Tribes and thus, the explanatory note appended to clause (6) of the advertisement by the RPSC, restricting the scope of relaxation in age under only one clause out of the various clauses specified, deserves to be declared illegal. Learned counsel further submitted that the appellant had disclosed his correct age in the application form and the RPSC found him eligible to appear in the examination and consequently, he appeared in the preliminary examination as well as main examination and therefore, at this belated stage, it is estopped from rejecting the appellant's candidature on the ground of his being over age.

7. On the other hand, counsel appearing for the RPSC submitted that the note appended to para 6 of the advertisement is in conformity with the provisions of Rule 4 and Rule 13 of the Rules and thus, the contention sought to be raised by the appellant that the RPSC has restricted the application of provision for age relaxation to the members of Scheduled Caste and Scheduled Tribes incorporated under the Rules by misinterpreting the provisions, is absolutely fallacious. Learned counsel would submit that the position of the Rules was clarified by the RPSC while issuing the advertisement and thus, the appellant was fully aware that being over age, he is not entitled to compete at the Combined Competitive Examination and therefore, he cannot claim any right whatsoever on the ground that he was permitted to appear in the examination by the RPSC, ignoring that he is over age. Learned counsel submitted that as a matter of fact, it was also clarified in the advertisement issued that the candidate concerned before appearing in the examination must ensure that he is eligible to appear in the examination and that the candidature of the applicant shall be liable to be rejected at any time, if he is found ineligible. Learned counsel would submit that even otherwise, a person ineligible to appear in the examination, cannot claim any right whatsoever for appointment to the post merely because, he was permitted to appear in the Combined Competitive Examination. Reiterating the stand taken before the learned Single Judge, learned counsel submitted that the relaxation in age provided for members of Scheduled Castes and Scheduled Tribes under proviso (1) to Rule 13 is available only to the candidates covered by substantive provisions of Rule 13 and cannot be applied for extending further age relaxation to the persons servicing in connection with the affairs of the State, for whom the upper age limit is separately prescribed as 40 years, under sub-rule (2) of Rule 4 as also under proviso (6) to Rule 13 of the Rules. Learned counsel submitted that the order impugned passed by the learned Single Judge after objective consideration of the relevant provisions of the Rules, does not suffer from any error so as to warrant interference in intra court appeal jurisdiction.

8. We have considered the rival submissions, the relevant provisions of the Rules and the material on record.

9. The controversy raised in the present intra court appeal rolls around the provisions of Rule 4 and Rule 13 of the Rules, which may be beneficially quoted:

“4. Combined Competitive Examination for State and Subordinate Services.-(1) Notwithstanding anything contained in any rules governing direct recruitment through the agency of the commission to the posts in State and Subordinate Services mentioned respectively in Schedule-I and Schedule-II, direct recruitment to such posts shall be made by a Combined Competitive Examination to be conducted by the Commission in accordance with these Rules:

Provided that 7% of the available vacancies in the State Services to be filled in by direct recruitment shall be reserved for candidate, who are non-gazetted employees of the Government, Panchayat Samitis and Zila Parishads. The above reservation shall be determined in accordance with the roster prescribed by the Government.

(2) In order to be eligible to compete at the Combined Competitive Examination, an employee referred to in sub-rule (1), must satisfy the following conditions, namely:—

(i) Educational qualifications.-As prescribed in Rule 12 of these Rules.

(ii) Age.- He must have attained the age of 25 years and must not have attained the age of 40 years on the 1st day of January next following the last date fixed for receipt of applications.

(iii) Experience.- He must have completed not less than five years of service whether officiating or substantive, on the 1st day of January next following the last date fixed for receipt of applications.

(3) In filling the vacancies so reserved, the candidates who are “non-gazetted employees” shall be eligible for appointment in the order in which their names appear in the list irrespective of their relative marks as compared with other candidates.

(4) If a sufficient number of candidates who are nongazetted employees is not available for filling all the vacancies so reserved, the remaining vacancies shall be filled by appointing other candidates in the list.”

………..xxxx……………………..xxx………

13. Age.- Notwithstanding anything contained regarding age limit in any of the Service Rules governing direct recruitment through the agency of the Commission to the posts in the State Services and in the Subordinate Services mentioned in Schedule I and in Schedule II respectively, a candidate for direct recruitment to the posts to be filled in by Combined Competitive Examination conducted by the Commission under these Rules must have attained the age of 21 years and must not have attained the age of 33 years on the last date of January next following the last date fixed for receipt of applications: Provided that:—

(1) the upper age limit mentioned above shall be relaxed by 5 years in the case of woman candidate and the candidates belonging to the Scheduled Castes and the Scheduled Tribes of Rajasthan;

(2) the upper age limit mentioned above shall not apply in the case of an ex-prisoner who had served under Government on a substantive basis on any post before conviction and was eligible for appointment under the rules;

(3) the upper age limit mentioned above shall be relaxed by a period of equal to the term of imprisonment served in the case of an ex-prisoner who was not over age before his conviction and was eligible for appointment under the rules;

(4) the upper age limit mentioned above shall be relaxable by a period equal to the service rendered in the N.C.C In the case of Cadet Instructor and if the resultant age does not exceed the prescribed maximum age limit by more than three years, they shall be deemed to be within the prescribed age limit;

(5) the upper age limit for the reservist, namely the defence personnel transferred to the reserve and ex-service personnel shall be 50 years;

(6) the upper age limit for persons service in connection with the affairs of the State in substantive capacity shall be 40 years;

(7) the Released Emergency Commissioned Officers, and Short Service Commissioned Officers after released from the Army shall be deemed to be within the age limit even though they have crossed the age limit when they appear before the Commission had they been eligible as such at the time of their joining the commission in the Army;

(8) if a candidate would have been entitled in respect of his/her age to appear at the examination in any year in which no such examination was held he/she shall be deemed to be entitled in respect of his/her age to appear at the next following examination;

(9) there shall be no age limit in the case of widows and divorced women;

Explanation.- In the case of widow, she will have to furnish a certificate of death of her husband from the competent authority and in case of divorcee she will have to furnish the proof of divorce;

(10) the upper age limit for persons serving in connection with the affairs of Panchayat Samities and Zila Parishads in substantive capacity shall be 40 years;

(11) the upper age limit for the candidates belonging to other Backward Classes shall be 35 years;

(12) the upper age limit for persons serving in State Public Sector undertaking/corporation in substantive capacity shall be 40 years; and

(13) a candidate who was eligible on 1.1.95, in respect of age to appear at the ensuring examination but did not appear or appeared and failed and thereafter became ineligible in respect of age to appear in any of the examination, shall be deemed to be eligible to appear at the next following examination after amendment comes into force.”

10. As per Rule 4 of the Rules, the direct recruitment to the posts in the State & Subordinate Services as mentioned respectively in the Schedule I and Schedule II, appended to the Rules, shall be made by a Combined Competitive Examination to be conducted by the RPSC in accordance with the procedure laid down under the Rules. But then, by virtue of proviso to Rule 4(1) of the Rules, 7% of the available vacancies in the State services to be filled in by direct recruitment shall be reserved for candidates who are non-gazetted employees of the Government, Panchayat Samitis and Zila Parishads, which is determined in accordance with the roster prescribed by the Government. It is pertinent to note that sub-rule (2) of Rule 4 specifically provides eligibility of an employee referred to in Rule 4(1) of the Rules indicated above, to compete at the Combined Competitive Examination, which includes the condition in terms that he must have attained the age of 25 years and must not have attained age of 40 years on the first day of January next following the last date fixed for receipt of application but, does not provide for eligibility qualification for the candidates appearing in Combined Competitive Examination for filling up the vacancies other than the vacancies reserved under proviso to Rule 4(1), for candidates who are non-gazetted employees of the Government, Panchayati Samitis and Zila Parishads. Suffice it to say that Rule 4(2) of the Rules, exclusively deals with eligibility of nongazetted employees of the Government, Panchayat Samitis and Zila Parishads, to compete at the Combined Competitive Examination against the post reserved for them in terms of proviso to Rule 4(1) of the Rules.

11. The eligibility of the candidates from the open market aspirant to appear at the Combined Competitive Examination against the vacancies other than the vacancies reserved under Rule 4(1) of the Rules, is dealt with under Part III of the Rules. Rule 12 of the Rules deals with the educational qualification and Rule 13 regarding the age limit of a candidate for direct recruitment to the post to be filled in by Combined Competitive Examination. As per Rule 13, the candidate for direct recruitment must have attained the age of 21 years and must not have attained the age of 33 years on the first day of January next following the last date fixed for receipt of applications. But then, provisos (1) to (13) to Rule 13 of the Rules, provides for relaxation in upper age limit prescribed as above or prescribes a different upper age limit for the different categories of candidates as specified, or carves out an exception to the applicability of the upper age limit.

12. As per proviso (1) to Rule 13, the upper age limit mentioned above i.e 33 years shall be relaxed by 5 years in case of woman and the candidates belonging to Schedule Castes and Schedule Tribes of Rajasthan. Similarly, as per proviso (14), the upper age limit mentioned above shall be relaxed by 5 years in case of candidates belonging to the Other Backward Classes. As per proviso (3), the upper age limit mentioned above shall be relaxed by a period equal to the term of imprisonment served in case of ex-prisoner who was not over age before his conviction and was eligible for appointment under the Rules. Proviso (4) extends relaxation in upper age limit not exceeding 3 years in case of candidates who have rendered services in NCC. Proviso (2) while carving out an exception regarding the upper age limit prescribed as above, provides that the upper age limit as mentioned above, shall not apply in case of ex-prisoner who had served under Government on a substantive basis on any post before conviction and was eligible for appointment under the Rules. Proviso (9) specifically provides that there shall be no age limit in case of widows and divorced woman. On the other hand, wherever, it is considered necessary, a different upper age limit has been prescribed by the legislature for different classes of persons. As per proviso (5) to the Rule 13, the upper age limit for the reservist namely the defence personnel transferred to the reserve and ex-service personnel shall be 50 years. Further, as per proviso (6) to Rule 13, the upper age limit for the persons serving in connection with affairs of the State in substantive capacity shall be 40 years. Likewise, under proviso (10), the upper age limit for persons serving in connection with affairs of Panchayat Samitis and Zila Parishads in substantive capacity, has also been prescribed as 40 years and under proviso (12), the upper age limit for the persons serving in State Public Sector Undertakings and Corporations has also been prescribed as 40 years.

13. Thus, a conjoint reading of Rule 4 and Rule 13 of the Rules, makes it abundantly clear that Rule 4(2)(ii) deals with the minimum and maximum age limit for the candidates who are non-gazetted employees of the Government, Panchayat Samitis and Zila Parishads, aspirant to compete at the Combined Competitive Examination against the vacancies reserved for them by virtue of proviso to Rule 4(1) of the Rules, whereas, Rule 13(1) deals with the eligibility regarding the age limit of the candidates from the open market aspirant to compete at Combined Competitive Examination, conducted by the RPSC, obviously, for the vacancies other than the vacancies reserved for in-service candidates in terms of proviso to Rule 4(1) of the Rules or the vacancies so reserved for in-service candidate which remains unfilled.

14. As a general rule, in terms of Rule 13, the candidate for direct recruitment to the post to be filled in by Combined Competitive Examination must have attained the age of 21 years and must not have attained the age of 33 years. But then, as noticed hereinabove, under provisos (1) to (14) to Rule 13, while extending the benefit of relaxation in age in respect of the specified classes or relaxing the age limit as such, a different upper age limit has been prescribed for distinct classes. Apparently, the relaxation in age by 5 years in case of woman candidate and candidates belonging to the Scheduled Castes and Scheduled Tribes of Rajasthan, relates to the upper age limit as prescribed under Rule 13 in respect of the candidates in general, aspirant to appear at the Combined Competitive Examination and the same cannot be read as provisos to the various provisos to Rule 13 of the Rules, which prescribe a different upper age limit for the classes specified. It is pertinent to note that under Rule 13, the upper age limit of 40 years has been prescribed not only for the persons serving in connection with the affairs of the State or Panchayati Samiti and Zila Parishad in substantive capacity, who are entitled to compete for recruitment to the post against 7% vacancies reserved under proviso to Rule 4(1) of the Rules but also, for the persons serving in the State Public Undertakings and Corporations in substantive capacity. Thus, it is apparent that in relaxation of the main provision, providing for the upper age limit as 33 years, for the aforesaid in-service candidates, who have spent a considerable period of their life in serving the State Government or its undertakings/organisations, treating them to be a distinct class, different upper age limit has been prescribed by incorporating proviso (6) to Rule 13, so as to give them a chance to improve their career.

15. In the considered opinion of this court, a different upper age limit having been prescribed for the in-service candidates, as aforesaid, treating them to be a distinct class, no distinction can be made between Govt. servants so as to make them entitled to claim relaxation under proviso (1) or (14) to Rule 13, being member of Scheduled Castes, Scheduled Tribes or Other Backward Classes, as the case may be. We are of the considered opinion that if the interpretation of Rule 13, as suggested on behalf of the appellant is accepted, it will amount to reading something in the rule, which is not there. It is well settled that the function of the court is only to expound the law and not to legislate and therefore, it is not possible to interpret the Rule 13 of the Rules, in the manner suggested on behalf of the appellant, so as to extend the applicability of relaxation in age as provided for under proviso (1) to Rule 13 of the Rules to the distinct classes as specified under various provisos to Rule 13 of the Rules. Thus, the upper age limit for the in-service candidates specified, aspiring to appear at Combined Competitive Examination, either against vacancies reserved in terms of Rule 4(1) of the Rules or the remaining vacancies, remains the same i.e 40 years, without there being any further entitlement for relaxation in age in terms of proviso (1) to Rule 13 of the Rules.

16. For the aforementioned reasons, we are completely in agreement with the learned Single Judge that the relaxation in age by 5 years, as provided for under proviso (1) to Rule 13 of the Rules, in case of woman and candidates belonging to Scheduled Castes and Scheduled Tribes, is only qua the upper age limit prescribed for the candidates in general and such relaxation is not available to the persons serving in connection with affairs of the State in the substantive capacity, in whose respect, a different upper age limit has been prescribed under proviso (6) to Rule 13 of the Rules.

17. In view of the interpretation of Rule 13 as aforesaid, the explanatory note appended to clause (6) of the advertisement by RPSC, restricting the scope of relaxation in age under only one clause out of the various clauses specified, is absolutely in conformity with the mandate of Rule 13 of the Rules and cannot be said to be illegal.

18. In the result, this intra court appeal fails, it is hereby dismissed. No order as to costs.

Rule 4 and Rule 13 of the Rules,