JUDGMENT : Ranjan Sharma, Judge Petitioner, Sanjay Kumar, filed Civil Writ Petition No. 4471 of 2014, which was transferred to Learned State Administrative Tribunal ; and upon abolition of Tribunal, the matter stood re-transferred to this Court, as CWPOA No. 4369 of 2019, seeking the following reliefs:- “(i). That the Hon’ble Court may kindly be pleased to declare the Rule or Clause 11(1) of “The H.P. Govt. of Personnel, Clerk, Class III (Non- Gazetted) Common direct Recruitment and Promotion Rules, 2011, whereby the eligibility criteria for the 20% quota under limited Direct Recruitment has been fixed to the extent that ‘Five years regular service or regular combined with continuous service rendered on daily wages or contract basis”, as null and void being ultra vires. (ii). That the respondents may kindly be directed to give appointment to the petitioner as Clerk on the basis of test/result sheet which was conducted by the respondents on 18.02.2012 and 29.06.2013. (iii). That the respondents may kindly be directed to consider the whole services period of the petitioner as regular services which he has rendered in the Education Department w.e.f. 06.10.2000 to till this date as part time water carrier, whole time contingent worker as well as regular services for the purpose of his appointment as Clerk and keeping in view of this, the recommendations of the Respondent No.4 be accepted in the interest of justice. (iv). That the respondents may kindly be directed to issue appointment letter to the petitioner for the post of clerk from the date the similarly situated persons have been appointed with all consequential benefits including seniority.” 2. At the very outset, Learned Counsel, on Instructions, states that petitioner does not press prayer no 14(i), laying a challenge to Clause 11(i) of Recruitment and Promotion Rules in the instant proceedings. [Statement Taken on Record]. FACTUAL MATRIX: 3. Grievance of the petitioner is that he is 10+2 and has passed M.A. [Political Science] as per Annexures P-6 and P-7 and he was initially appointed as Part Time Water Carrier in Education Department on 06.10.2000 and he served as a Part Time Worker for 9 years, 8 months and 27 days till 22.07.2010 [Annexure P-1]. The petitioner was thereafter appointed as Whole Time Contingent Worker w.e.f. 22.07.2010 [Annexure P-1] and he worked as such for 1 year 18 days till 10.08.2011. The petitioner was thereafter appointed as Whole Time Contingent Worker w.e.f. 22.07.2010 [Annexure P-1] and he worked as such for 1 year 18 days till 10.08.2011. The petitioner was regularized as Peon, Class-IV, in Education Department on 10.08.2011 [Annexure P-3]. It is averred that the Respondent No 4-Himachal Pradesh Subordinate Service Selection Board [Now Rajya Chayan Ayog Hamirpur] issued an Advertisement on 14.11.2011 [Annexure P-4] for filling 773 posts of Clerks under 20% Limited Direct Recruitment Quota, by inviting applications latest by 13.12.2011. 3(i). Pursuant to the advertisement, petitioner applied for the post and he appeared in written test on 18.03.2012 and after qualifying the written test, the petitioner passed the typing test on 08.09.2012 and after qualifying the typing test, though the name of the petitioner was recommended for appointment on 23.08.2012 [Annexure P-9], by the Respondent-Board but despite recommendation, the petitioner was not appointed whereas other incumbents who faced the same selection were recommended and appointed as Clerk under Limited Direct Recruitment, over and above the petitioner and the action of the Respondents in denying the appointment to the petitioner was unfair, unjust, illegal, arbitrary and unconstitutional. STAND OF STATE AUTHORITIES IN REPLY- AFFIDAVIT: 4. Pursuant to the issuance of notice by this Court on 15.07.2014, the Respondents 1 and 2-State Authorities have filed the Reply-Affidavit dated 06.08.2014 of Deputy Secretary [Personnel] to the Government of Himachal Pradesh. 4(i). Perusal of Para 4 of the Reply-Affidavit indicates that petitioner does not fulfill the eligibility criteria prescribed for post of Clerk under Limited Direct Recruitment, in terms of the Advertisement dated 14.11.2011 [Annexure P-4], as reiterated in Recruitment and Promotion Rules dated 14.09.2011 [Annexure P-8]. 4(ii). Reply-Affidavit indicates that in terms of the Advertisement and the Recruitment & Promotion Rules, 20% posts of Clerks, for which recruitment was initiated, by way of Limited Direct Recruitment was to be filled-up from amongst “Class-IV officials possessing 10+2 qualifications, who were regularized before 31.10.2011, having 5 years regular service or regular combined with continuous service rendered on daily wages or contract or adhoc basis”. It was averred in the Reply that the petitioner has not rendered any service as Class-IV on daily wage or contract and even the service rendered by the petitioner as Part Time Worker from 06.10.2002 till July 2010 and as Whole Time Contingent Paid from July 2010 till 10.08.2011 is not liable to be counted for determining the eligibility of 5 years of regular Class-IV service for post of Clerk under 20% Limited Direct Recruitment Quota, which is a part of promotion, for which the selection was initiated on 14.11.2011 [Annexure P-4]. In view of the ineligibility of the petitioner, Respondents have prayed for the dismissal of the writ petition. STAND OF RESPONDENT No.4-BOARD IN REPLY-AFFIDAVIT: 5. Respondent No.4-Board filed Reply-Affidavit dated 22.08.2014 of Secretary, HP Subordinate Service Selection Board, (now named as HP Rajya Chayan Ayog), Hamirpur. 5(i). Reply-affidavit states that the petitioner was not eligible for the post of Clerk under 20% Limited Direct Recruitment, for non-completion of 5 years of regular Class-IV service, whereas petitioner had rendered only 2 months of regular service as Peon, Class-IV in GMS Ghirtheri, Hamirpur since 10.08.2011 till the date of determining eligibility for regular Class-IV service rendered upto 31.10.2011 as per Advertisement on 14.11.2011 (Annexure P-4). Reply further states that the petitioner has not rendered any service either on daily wage, contact/ adhoc service prior to regular service as Class-IV. Reply states that there was no provision in the Rules, for counting Part Time Service or Whole Time Contingent Paid Service towards eligibility of 5 years service. Reply indicates that though the case of the petitioner was recommended by Respondent-Board but at the time of offering the appointment, the credential and genuineness was to be tested and it is at that time that the Respondent-Board noticed the ineligibility of the petitioner. In this backdrop, the Respondent-Board has prayed for dismissal of the writ petition. REBUTTAL BY PETITIONER: 6. Petitioner filed a rejoinder by reasserting the claim that once petitioner had cleared written test and typing test and had recommended his case for appointment therefore, the respondents could not have denied the appointment to the petitioner. 7. Heard, Ms. Kiran Lata Sharma, Advocate, for the petitioner and Mr. Hemant Kumar Verma, Learned State Counsel for Respondents 1 and 2 and Ms. Aruna Sharma, Advocate, for respondent No.4. ANALYSIS: 8. 7. Heard, Ms. Kiran Lata Sharma, Advocate, for the petitioner and Mr. Hemant Kumar Verma, Learned State Counsel for Respondents 1 and 2 and Ms. Aruna Sharma, Advocate, for respondent No.4. ANALYSIS: 8. Taking into account the entirety of facts and circumstances and the material on record, this Court is of the considered view, that the non- selection of the petitioner for the post of Clerk, under 20% Limited Direct Recruitment, does not suffer from any illegality or infirmity, for the following reasons: 8(i). Respondent State notified the Himachal Pradesh Department of Personnel (Clerk) Class-III, Non-Gazetted Common Direct Recruitment & Promotion Rules dated 14.09.2011 [Annexure P-8] prescribing eligibility for recruitment for the post of Clerk, under 20% Limited Direct Recruitment, as under: “10. Method of recruitment, whether by direct recruitment or by promotion, deputation, transfer and the percentage of posts to be filled in by various method :- i) 70% by direct recruitment on a ‘regular’ basis or by recruitment on contract basis, as the case may be. The contract employees will get emoluments as given in Col. 15-A and will be governed by service conditions as specified in the said column. ii) 20% by limited direct recruitment from amongst the ‘regular Class-IV officials possessing the 10+2 qualification through competitive examination to be conducted by the H.P. Subordinate Services Selection Board, Hamirpur, having five years regular service OR regular combined with continuous service rendered on daily wages or on contract basis, failing which, by direct recruitment on a regular basis or by recruitment on contract basis, as the case may be. The contract employees will get emoluments as given in Col. 15-A and will be governed by service conditions as specified in the said column. (iii). 10% by promotion failing which by direct recruitment on a regular basis or by recruitment on contract basis, as the case may be. The contract employees will get emoluments as given in Col. 15-A and will be governed by service conditions as specified in the said column. 11. In case of recruitment by promotion deputation, transfer, grades from which promotion/deputation/transfer is to be made:- (i) 20% by limited direct recruitment from amongst the ‘regular’ Class-IV officials possessing 10+2 qualification through competitive examination to be conducted by the H.P. Subordinate Services Selection Board, Hamirpur, having five years regular service OR regular combined with continuous service rendered on daily wage or on contract basis. The eligible class-IV officials will also qualify the typing test with the minimum speed of 30 words per minute in English Typewriting OR 25 words per minute in Hindi Typewriting to be conducted by the H.P. Subordinate Services Selection Board, Hamirpur as is applicable in case of direct recruitment. (ii) 10% by Promotion …..not relevant… INELIGIBILITY DISENTITLES PETITIONER FOR PROMOTION AS CLERK UNDER 20% LDR : 8(ii). Perusal of Rule 10(ii) and Rule 11 (i) of Recruitment & Promotion Rules dated 14.09.2011 [Annexure P-8], indicates that 20% posts of Clerks are to be filled by Limited Direct Recruitment from amongst regular Class-IV officials possessing 10+2 qualification having 5 years regular service or regular combined with continuous service rendered on daily wages or contract basis. Even, the Advertisement dated 14.11.2011 (Annexure P-4) states that regular Class-IV rendered upto 31.10.2011 was countable for determining eligibility of candidates for Limited Direct Recruitment. In backdrop of Rules and Advertisement, factual matrix reveals that the petitioner joined as a regular Class-IV Peon w.e.f. 10.08.2011 vide Annexure P-1 and P-2 and against the statutory requirement of 5 years regular service as Class-IV, the petitioner had rendered only two months of regular service as Class-IV as on date of the commencement of selection process on 14.11.2011 [Annexure P-4]. Non-fulfillment of 5 years regular service as Class-IV, renders the petitioner ineligible and such an ineligibility disentitles the petitioner for promotion to the post of Clerk under 20% Limited Direct Recruitment Quota. PART TIME SERVICE NOT COUNTABLE FOR DETERMINING ELIGIBILITY: 8(iii). Another plea set up is that the petitioner had rendered service as Class-IV on Part Time from 06.10.2000 till 22.07.2010 as in Certificate, Annexure A-1 and said service should be counted for determining the requirement of 5 years service as Class-IV, for promotion to post of Clerk under 20% Limited Direct Recruitment. Another plea set up is that the petitioner had rendered service as Class-IV on Part Time from 06.10.2000 till 22.07.2010 as in Certificate, Annexure A-1 and said service should be counted for determining the requirement of 5 years service as Class-IV, for promotion to post of Clerk under 20% Limited Direct Recruitment. The above plea is fallacious, Firstly, the Recruitment and Promotion Rules dated 14.09.2011 [Annexure P-8], nowhere recognizes that Part Time Service is to be counted for reckoning eligibility for promotion under LDR ; and secondly, service rendered on Part Time Service cannot be counted for reckoning eligibility for promotion under LDR dehors the Rules ; and thirdly, even in Para 12 (F) the Reply Affidavit, State Authorities have taken a specific stand that the Part Time Service cannot be equated with regular service, as such service was not against sanctioned post, which is for short duration(s) and therefore, no weightage could be given to the petitioner for part time service dehors the Statutory Rules; and fourthly, nothing has been placed on record by the petitioner that the service rendered by the petitioner on part time basis was against sanctioned post and such part time service was rendered throughout the day and was a service akin to regular service; and fifthly, the Rule making authority had not given recognition to the Part Time Service for reckoning eligibility of five years regular service or regular combined with continuous daily wage or contract service then, in such eventuality, the Part Time Service cannot be counted for reckoning the eligibility of petitioner for post of Clerk ; and sixthly, once the statutory rules provide for reckoning eligibility for promotion as Clerk under 20% LDR by taking into account five years regular service or regular combined with continuous daily wage or contract service, then, this Court can neither legislate by treating Part Time Service at par with regular service nor can the Part Time Service (rendered without a post and for short daily durations} be equated with service rendered on contract or daily wage {which were rendered against sanctioned post and had all attributes of regular service} and lastly, Rule 10(ii) and Rule 11 (i) expressly provides that it is 5 regular service or regular “combined with” continuous service rendered on “daily wages or contract basis” is countable for reckoning 5 years eligibility. In the instant case, once the petitioner joined as regular Class-IV w.e.f 10.08.2011 and such regular service was not preceeded by daily or contract service and the Rules do not recognize for giving weightage of “Part Time Service” then, the petitioner being ineligible, was validly denied promotion as Clerk under 20% LDR and ineligibility disentitles the petitioner for any relief and the claim is turned down. WHOLE TIME CONTINGENT PAID SERVICE NOT COUNTABLE FOR DETERMINING ELIGIBILITY: 8(iv). Learned Counsel for the petitioner submits that the petitioner had rendered service as Class-IV on Whole Time Contingent Paid from 22.07.2010 to 10.08.2011 as in Certificate, Annexure A-1 and said service deserves to be counted for determining 5 years service as Class-IV, required for promotion as Clerk under 20% Limited Direct Recruitment. The above plea is devoid of any merit, Firstly, the Recruitment and Promotion Rules dated 14.09.2011 [Annexure P-8], nowhere recognizes that Whole Time Contingent Paid Service is to be counted for reckoning the eligibility for promotion under LDR ; and secondly, nothing has been placed on record by the petitioner that the service rendered by petitioner on Whole Time Contingent Paid was against sanctioned post and such service was akin to regular service as a Class-IV employee; and thirdly, even statutory rules provide for reckoning eligibility for promotion as Clerk under 20% LDR, by taking into account five years regular service or regular combined with continuous daily wage or contract service, then, this Court can neither legislate by treating Whole Time Contingent Paid Service at par with regular service nor can such service be equated with the service rendered on contract or daily wage and fourthly, express mandate of Rule 10(ii) and Rule 11 (i) for the post of Clerk under 20% LDR have not been questioned by the petitioner; and lastly, assuming, even if, the service of 1 year and 18 days rendered by petitioner as a Whole Time Contingent Paid Class- IV from 22.07.2010 to 10.08.2011(Annexure P-1) is counted towards the regular service of about 2 months rendered as a Class-IV from 10.08.2011 (Annexure P-1 & P-2) upto the cut-of date i.e. 31.10.2011 mentioned in the in the Advertisement dated 14.11.2011 (Annexure P-4), and in totality, once the petitioner has rendered about 1 year and 3 months of service as Class-IV on regular basis still, petitioner is ineligible for not having rendered 5 years regular service as Class-IV. In the instant case, the non-fulfilment of required 5 years’ service as Class-IV renders the petitioner ineligible and such ineligibility disentitles the petitioner for promotion as Clerk under 20% LDR. CONDITIONS IN ADVERTISEMENT BEING IN CONFORMITY WITH THE STATUTORY RULES TO BE SCUPULOUSLY FOLLOWED: 8(v). Case needs to be tested from another angle. Requirement of 5 years’ service as Class-IV on regular basis or regular service combined with continuous service rendered on daily wages or on contract basis spelt out in the Advertisement on 14.11.2011 [Annexure P-4] conforms to the express mandate of the Recruitment and Promotion Rules dated 14.09.2011 [Annexure P-8], for reckoning the eligibility for filling up 20% posts of Clerk under 20% LDR. The Advertisement and Statutory Rules do not recognize the Part Time Service rendered as Class-IV for reckoning the eligibility. In these circumstances, once Part Time Service is neither recognized nor countable for reckoning the eligibility and after excluding part time service, once the petitioner has not rendered the requisite 5 years of regular service or regular combined continuous daily or contract service (impliedly by including whole time contingent paid service) therefore, for non-completion of required 5 years’ service, the petitioner being ineligible had neither any right nor any locus to be considered or to be promoted as Clerk under 20% LDR dehors the statutory rules. Denial of promotion to the petitioner as a Clerk, under 20% LDR quota, in view of his ineligibility under the terms of the advertisement which conform to the statutory rules, does not suffer from any infirmity or perversity. RECOMMENDATION WILL NOT CONFER RIGHT: 8(vi). Learned Counsel for petitioner contends that once the petitioner was allowed to participate in the selection process and he had qualified the written test on 18.03.2012 and the typing test on 08.08.2012 and his name was recommended for post of Clerk by the Respondent-Board on 23.08.2012 [Annexure P-9] then, the action of the respondents in not appointing/promoting the petitioner as Clerk is illegal. The above contention is mis-conceived, for the reason, that mere recommendation of the name of the petitioner will not confer an indefeasible right of appointment, as per mandate of the Hon’ble Supreme Court in Shankarsan Dash versus Union of India (1991) 3 SCC 47 in the following terms: 7. The above contention is mis-conceived, for the reason, that mere recommendation of the name of the petitioner will not confer an indefeasible right of appointment, as per mandate of the Hon’ble Supreme Court in Shankarsan Dash versus Union of India (1991) 3 SCC 47 in the following terms: 7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, Neelima Shangla v. State of Haryana and Others, or Jitendra Kumar and Others v. State of Punjab and Others.” Even otherwise, it is not the case of the petitioner that he was eligible for the post of Clerk under 20% LDR, for which selection process was initiated on 14.11.2011, Annexure P-4. Material on record, clearly establishes the ineligibility of petitioner. Moreover, the Reply Affidavit indicates that the candidature of the petitioner and others was provisional and such candidates had furnished an undertaking that in case they were found to be ineligible, they shall not have any claim/ right. Reply further indicates that before offering appointment, the credential and genuineness were to be tested and it is at that time that the Respondent-Board noticed the ineligibility of the petitioner, for not possessing 5 years’ service as regular Class-IV, as on the cut-off date dated 31.10.2011, mentioned in the advertisement dated 14.11.2011, vide Annexure P-4. PRINCIPLES FOR DETERMINING ELIGIBILITY RENDER PETITIONER INELIBIBLE: 8(vii). PRINCIPLES FOR DETERMINING ELIGIBILITY RENDER PETITIONER INELIBIBLE: 8(vii). In terms of the mandate of Law, eligibility of a person for the post is to be reckoned on the cut-off date spelt out in the Statutory Rules and/or the Advertisement and in case, no such cut-off date is prescribed in the Statutory Rules and the Advertisement then, eligibility of a person for a post is to be reckoned on the last date of receipt of applications, in view of settled law, as detailed herein. 8(vii-a). The issue regarding the date by which candidates for selection must possess the minimum qualifications prescribed for recruitment is no more res-integra, in view of the judgement passed by Three Judges of the Honble Supreme Court in Dr M.A. Nair vs Union of India , (1993) 2 SCC 429 , mandating that the eligibility is to be considered on the date specified in recruitment notice, failing which, eligibility is to be reckoned on last date of receiving applications, in following terms:- 9. It is well settled that suitability and eligibility has to be considered with reference to the last date for receiving the applications, unless, of course, the notification calling for applications itself specifies such a date. 8(vii-b). Similar view was reiterated by the Hon’ble Supreme Court in Rekha Chaturvedi vs University of Rajasthan and others , (1993) Supp (3) SCC 168, held as under: 10. The contention that the required qualifications of the candidates should be examined with reference to the date of selection and not with reference to the last date for making applications has only to be stated to be rejected. The date of selection is invariably uncertain. In the absence of knowledge of such date the candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or not, if they are yet to acquire the qualifications. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications in praesenti even to make applications for the posts. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications in praesenti even to make applications for the posts. The uncertainty of the date may also lead to a contrary consequence, viz., even those candidates who do not have the qualifications in praesenti and are likely to acquire them at an uncertain future date, may apply for the posts thus swelling the number of applications. But a still worse consequence may follow, in that it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others, arbitrarily. Hence, in the absence of a fixed date indicated in the advertisement /notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications. ” 8(vii-c). Affirming the proposition laid in the case of Rekha Chaturvedi (supra), similar principle was reiterated by the Three Judges of the Honble Supreme Court in Ashok Kumar Sharma vs Chander Shekhar , (1997) 4 SCC 18 , that the eligibility of a candidate for a post is to be determined with reference to the date specified in the advertisement/recruitment notice, which is a representation to the public and the government is bound by such representation and it cannot act contrary to it, by observing, in following terms:- 6. The proposition that where applications are called for prescribing a particular date as the last date for fling the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued /published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued /published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority Judgement. 8(vii-d). After taking into account the principles outlined by Three Judges in the cases of Dr M V Nair and in the case of Ashok Kumar Sharma (supra), for determining eligibility of a candidate for a post, the Honble Supreme Court has reiterated these principles in the case of Bhupinderpal Singh vs State of Punjab , (2000) 5 SCC 262 , in following terms:- 13. Placing reliance on the decisions of this Court in Ashok Kumar Sharma Vs. Chander Shekhar & Anr. JT 1997 (4) SC 99; A.P. Public Service Commission Vs. B. Sarat Chandra & Ors. 1990 (4) SLR 235 ; The Distt. Collector and Chairman, Vizianagaram (Social Welfare Residential School Society) Vizianagaram and Anr. Vs. M. Tripura Sundari Devi 1990 (4) SLR 237 ; Mrs. Rekha Chaturvedi Vs. University of Rajasthan & Ors. JT 1993 (1) SC 220; Dr. M.V. Nair Vs. Union of India & Ors. 1993 (2) SCC 429 ; and U.P. Public Service Commission, U.P., Allahabad & Anr. Vs. Collector and Chairman, Vizianagaram (Social Welfare Residential School Society) Vizianagaram and Anr. Vs. M. Tripura Sundari Devi 1990 (4) SLR 237 ; Mrs. Rekha Chaturvedi Vs. University of Rajasthan & Ors. JT 1993 (1) SC 220; Dr. M.V. Nair Vs. Union of India & Ors. 1993 (2) SCC 429 ; and U.P. Public Service Commission, U.P., Allahabad & Anr. Vs. Alpana JT 1994 (1) SC 94, the High Court has held (i) that the cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decisions of this Court and is therefore well settled and hence cannot be found fault with. However, there are certain special features of this case which need to be taken care of and justice done by invoking the jurisdiction under Article 142 of the Constitution vested in this Court so as to advance the cause of justice. 8(vii-e). While dealing with the issue regarding the date on which a candidate should fulfil the qualifications or eligibility for a post has been spelt out by the Hon’ble Supreme Court in Divya vs Union of India and others (2024) 1 SCC 448 , in following terms: 46. It is also very well settled that if there are relevant rules which prescribe the date on which the eligibility should be possessed, those rules will prevail. In the absence of rules or any other date prescribed in the prospectus/advertisement for determining the eligibility, there is a judicial chorus holding that it would be the last date for submission of the application. (See Rekha Chaturvedi v. University of Rajasthan 1993 Supp (3) SCC 168; Bhupinderpal Singh v. State of Punjab (2000) 5 SCC 262 ; Ashok Kumar Sonkar v. Union of India (2007) 4 SCC 54 . 58. In this case, rules clearly exist in the form of CSE-2022. (See Rekha Chaturvedi v. University of Rajasthan 1993 Supp (3) SCC 168; Bhupinderpal Singh v. State of Punjab (2000) 5 SCC 262 ; Ashok Kumar Sonkar v. Union of India (2007) 4 SCC 54 . 58. In this case, rules clearly exist in the form of CSE-2022. It has also been settled that determination of eligibility cannot be left uncertain till the final stages of selection, since that would lead to uncertainty. [See A.P. Public Service Commission v. B. Sarat Chandra para 7]. Further, it is well settled that if rules prescribe the last date on which eligibility should be possessed, any relaxation would prejudice non-applicants who for want of possession of eligibility would not have applied. Relaxation would then be selective, leading to discrimination.” 8(vii-f). The question regarding date on which the eligibility of a candidate for a post was to be determined stands answered by the Constitutional Bench of the Honble Supreme Court in Tej Prakash Pathak versus Rajasthan High Court , (2025) 2 SCC 01, in following terms:- 14. In various judicial pronouncements, the law governing recruitment to public services has been colloquially termed as “the rules of the game”. The “game” is the process of selection and appointment. Courts have consistently frowned upon tinkering with the rules of the game once the recruitment process commences. This has crystallized into an oft-quoted legal phrase that “the rules of the game must not be changed midway, or after the game has been played”. Broadly speaking these rules fall in two categories. Once which prescribes the eligibility crieteria (i.e. essential qualifications) of the candidates seeking employment; and the other which stipulates the method and manner of making the selection from amongst the eligible candidates. 15. Cut-off date with reference to which eligibility has to be determined is the date appointed by the relevant service rules; where no such cut-off date is provided in the rules, then, it will be the date appointed in the advertisement inviting applications; and if there is not such date appointed then eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received. 8(vii-g). 8(vii-g). Recently, the Honble Supreme Court has outlined in Soumen Paul and others vs Shrabani Nayek and others , 2025 SCC Online SC 720, that eligibility of a candidate for a post as prescribed in the Rules or the Advertisement has to be followed, and in absence of any such date in the Rules/Advertisement, the eligibility has to be tested on the last date of receipt of applications indicated in the recruitment notice-advertisement, in the following terms:- 31. The principles laid down by this Court in Bhupinderpal Singh (supra) and the subsequent decisions as referred to in Rakesh Kumar Sharma (supra) and also that of the Constitution Bench in Tej Prakash (supra) hold that the qualifications must be possessed as per those prescribed in the rules or the notification and in the absence of both, by reference to the last date appointed for receiving the applications. The recruitment notification dated 21.10.2022 indicated that the appellants’ will be given an opportunity, and that intendment must inure to their benefit. Under similar circumstances in Bhupinderpal Singh (supra), this Court exercised its power and jurisdiction under Article 142 of the Constitution to validate and legitimise the recruitment process…..” Perusal of Advertisement dated 14.11.2011 [Annexure P-4], reveals that for promotion to post of Clerk under 20% Limited Direct Recruitment, Class-IV employees should possess 5 years regular service or regular combined with continuous service rendered on daily wages or contract basis as on the cut-off date 31.10.2011. Once the advertisement expressly provides that a candidate should possess required 5 years’ service on the cut-off date i.e. 31.10.2011 and the petitioner did not possess the requisite service on the cut-off date mentioned in the Advertisement; then, the petitioner being ineligible has neither any locus nor any right for appointment under 20% LDR. The ineligibility of the petitioner as on the cut-off date prescribed in advertisement, disentitles the petitioner for appointment as Clerk. Claim of petitioner for appointment, despite being ineligible, for not fulfilling the requisite 5 years regular or regular combined with continuous daily or contract service as Class-IV employee does not suffer from any infirmity or illegality. The ineligibility of the petitioner as on the cut-off date prescribed in advertisement, disentitles the petitioner for appointment as Clerk. Claim of petitioner for appointment, despite being ineligible, for not fulfilling the requisite 5 years regular or regular combined with continuous daily or contract service as Class-IV employee does not suffer from any infirmity or illegality. The denial of appointment to the petitioner as Clerk under 20% Limited Direct Recruitment is in accordance with the principles outlined by Honble Supreme Court in the cases of Dr MV Nair, Rekha Chaturvedi, Ashok Kumar Sharma, Bhupinderpal Singh, Divya, Tej Prakash Pathak and Soumen Paul (supra), mandating that in case, the Rules or the Advertisement mentions the cut-off date (31.10.2011) by which eligibility {of 5 years regular service as Class IV or regular combined with continuous daily wage or contract service} is to be determined then, such cut-off date is to be scrupulously followed. The plea of Learned Counsel for the petitioner that eligibility of petitioner was to be determined on last date receipt of applications {13.12.2011} in terms of the Advertisement dated 14.11.2011, Annexure P-4, is misconceived, for the reason, that such a plea for reckoning eligibility on last date of receipt of applications was applicable if the Statutory Rules or the advertisement did not expressly indicates the cut-off date on which eligibility of a candidate for a post was to be determined, which situation does not exist in the instant case. Thus, the non fulfilment of 5 years’ service as Class-IV on regular basis or regular combined with continuous daily wage or contract service as on the cut-off date (31.10.2011} mentioned in the advertisement renders the petitioner ineligible for the post of Clerk in terms of the advertisement, and such ineligibility disentitles the petitioner for any relief. In above backdrop, mere recommendation of the candidature of petitioner will not confer any enforceable and indefeasible right of appointment, dehors the Recruitment & Promotion Rules and the Advertisement and accordingly, the claim is turned down. 9. Learned Counsel for the petitioner admits that during the pendency of the instant petition, the petitioner stands promoted as Clerk and is now working as Junior Assistant in the Respondent- Department. Subsequent events negate the claim of the petitioner that due to his ineligibility, he was rightly not given appointment as Clerk under 20% Limited Direct Recruitment Quota in pursuance to the Advertisement dated 14.11.2011 [Annexure P-4]. Subsequent events negate the claim of the petitioner that due to his ineligibility, he was rightly not given appointment as Clerk under 20% Limited Direct Recruitment Quota in pursuance to the Advertisement dated 14.11.2011 [Annexure P-4]. 10. No other point was argued/pressed DIRECTIONS: 11. In view of above discussion and for the reasons recorded herein above, the instant petition is dismissed, in the following terms:- “(i). Non appointment of the petitioner for the post of Clerk under 20% Limited Direct Recruitment in pursuance to the Advertisement dated 14.11.2011 [Annexure P-4], being ineligible does not suffer from any infirmity or illegality; (ii). Mere recommendation does not confer any enforceable and indefeasible right of appointment, despite being ineligible, dehors the Statutory Rules and the terms of the Advertisement; (iii). Parties to bear respective costs. In the aforesaid terms, the instant petition along with pending miscellaneous application(s), if any, shall also stand disposed of.