MODI, J. - (1.) THIS is a writ application by the petitioner Omprakash under Art.226 of the Constitution.
(2.) THE material facts leading up to this application may be shortly stated as follows. THE petitioner held the post of Commandant, 5th Battalion, Rajasthan Armed Constabulary, Ganganagar, at the relevant time. He applied for retirement on medical grounds some time in the beginning of 1957, and proceeded on leave on the 23rd November, 1957, whereafter he did not resume his duty. On the 10th December, 1957, he again pressed his request for retirement on medical grounds as a result of which he was examined by a Medical Board at Udaipur on the 15th January, 1959, and the said Board were of the opinion that the petitioner was unfit for further service and that being so, the Government ordered that the petitioner be retired on medical grounds with effect from the 15th January, 1959. In support of this submission our attention has been invited to the order of the Government dated the 19th/20th May, 1959, Ex. 3 which reads as follows: "Government of Rajasthan Home 'E' Department No. D 2567/59 F. 35/1(142) HE/55 Dt. Jaipur the 19/20 May. 1959 Shri Om Prakash, RPC is retired from Government Service with effect from the 15th January, 1959 on medical grounds. By order, Sd/- Secretary to Govt." By an order of the Government dated the 13th July, 1959, Ext. 4, the Government accorded ex-post facto sanction to the grant of leave to the petitioner from the 23rd November, 1957, to the 14th January, 1959. In the meantime on the 28th February, 1959, the petitioner was informed vide Ex. 5 that it was proposed to hold an inquiry against him under rule 16 of the Rajasthan Civil Services (Classification Control and Appeal) Rules 1950, (hereinafter referred to as the Rules of 1950) and the allegations on which the inquiry was proposed to be held and the charges framed on that basis were also forwarded to him and he was asked to submit a written statement of his defence. THE petitioner denied the charges and Shri S.L. Ahuja, Commissioner for Departmental Inquiries, Rajasthan, was appointed Inquiry Officer to inquire into the same. THE Commissioner found that out of the four charges levelled against the petitioner, charge No.2 regarding the making of fictitious appointments of some five constables and charge No. 4 in connection with making some irregular purchases of rations and other stores had been satisfactorily proved against the petitioner but the remaining two were held not to have been proved, and, therefore, we need say nothing about them for the purposes of the matter before us. On the basis of this inquiry and after consulting the Public Service Commission about the action to be taken against the petitioner, the Government finally ordered that the salary drawn by the aforesaid five constables be recovered from the monthly pension of the petitioner in suitable instalments not exceeding l/4th of his pension and further that l/4th of the pension admissible to him be permanently with-drawn, vide Ex. 8. This order is dated 21st June, 1961, the validity of which is being challenged before us by the petitioner. It will be noted that by the time this order came to be passed, the grounds with effect from the 15th January, 1959. This application has been opposed by the State. The principal grounds on which the above-mentioned order has been challenged before us are three in number. (1) Rule 170 of the Rajasthan Service Regulations as it existed at the time of the petitioner from his service stood as follows: "170. Government reserves to itself the right to order the recovery from the pension of a Government Servant any amount on account of losses found in judicial or departmental proceedings to have been caused to Government by the negligence or fraud of such Government servant during his service; Provided that - (1) such departmental proceedings, if not instituted while the officer was on duty - (i) shall not be instituted save with the sanction of Government; (ii) shall be instituted before the Government servant's retirement from service or within a year from the date on which he was last on duty whichever is later; (iii) shall be in respect of an event which took place not more than one year before the date on which the Government servant was last on duty, and (iv) shall be conducted by such authority and in such places, as Government may direct. (2) all such departmental proceedings shall be conducted if the Government servant concerned so requests in accordance with the procedure applicable to departmental proceedings on which an order of dismissal from service may be made; and (3) such judicial proceedings; if not instituted while the Government servant was on duty, shall have been instituted in accordance with sub-clause (ii) and (iii) of clause (1)." The contention is that this rule merely allowed the Government to order the recovery from the pension of the Government servant such amount of which loss was proved to have been caused to it by the negligence or fraud of such Government servant during his service as a result of judicial or departmental proceedings, but it gave no warrant for the permanent withholding of any part of such pension. It is admitted that this rule was later amended by an order of the Governor dated the 1st December, 1958, and the amended rule in so far as it is material reads as follows: "The Governor further reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from the pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to Government by misconduct or negligence during his service including service rendered on re-employment after retirement: Provided that - (a) such departmental proceedings, if not instituted while officer was on duty either before retirement or during re-employment, (i) ... ... ... ... ... ... ... ... ... ... ... (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings." This rule as amended was however admittedly published for the first time in the Rajasthan Rajpatra dated the 15th January, 1959, in Part (iv) (C) at page 1359. It has been strenuously submitted before us that although the amended rule was sanctioned by the Governor on the 1st December, 1958, it could not come into operation as a matter of law until it was published on the 15th January, 1959, and as the petitioner had already been retired from the 15th January, 1959, it could not be pressed into service against him and consequently that part of the Government order by which one-fourth of his pension was forfeited permanently was illegal and deserved to be quashed. (2) R. 170 was in any case incapable of being attracted into application against the petitioner as he could not be said to be on duty, being on leave, when the inquiry was instituted against him on the 28th February, 1958, and he had never resumed duty until he was actually retired on the 15th January, 1959. (3) The inquiry having been avowedly commenced under the Rules of 1950, should have been conducted and completed in accordance with the new Rules of 1958 which were brought into force from the 7th May, 1959, by virtue of the proviso (b) to rule 33(1) thereof, which lays down that any proceedings under the said rules, notifications or orders pending at the commencement of these rules shall be continued and disposed of as far as may be, in accordance with the provisions of these rules; and under this head a strong grievance has been raised that under rule 16(10)(i)(b) a notice stating the action proposed to be taken in regard to him namely that a part of his pension was proposed to be forfeited permanently must have been given to him calling upon him to submit such representation as he might wish to make against the proposed action and that as such notice was not given it amounted to a grave irregularity not only in itself but because the matter thereafter came to be forwarded to the Public Service Commission for its opinion without any such representation of the petitioner having been forwarded to it, the simple reason being that the petitioner had not been furnished any opportunity whatever to submit such a representation against the action which was proposed to be and eventually taken against him. We propose to consider the first objection first, as, in our opinion, it goes to the root of the whole matter so far as the permanent forfeiture of the petitioner's pension is concerned. The important question which emerges for determination under this head is as to which rule, that is the original rule 170 or that as amended should be held to be lawfully in force at the time when the petitioner was retired on medical grounds or was thus discharged from service on the 15th January, 1959. It is contended by the learned Deputy Government Advocate that as the amended rule had been passed by the Governor on the 1st December, 1959, it must be accepted as having been brought into force from that date regardless of the consideration that it was published for the first time on the 15th January, 1959, by which date the petitioner had admittedly been retired. If the contention of the learned Deputy Government Advocate is accepted as correct, then we have no doubt that the action taken by the Government was permissible under rule 170 as amended. But, if, on the other hand, the correct position is that that rule could not be accepted as having been lawfully brought into force before the date of its publication, then the only rule which was in force was rule 170 as it originally existed and which, it is admitted before us and is indeed indisputable, did not permit the permanent withholding of the pension of a Government servant under any circumstances. On giving our careful and anxious consideration to this aspect of the case, we are definitely of the opinion that the amended rule 170 which is a statutory rule under Art. 309 of the Constitution could be properly accepted to have been brought into force only with effect from the date it was published in the State Gazette and not earlier. In support of this view, we should like to invite reference to a bench decision of this Court in Somnathmal vs. The State of Rajasthan (1) in which it was accepted, relying on the observations of the Supreme Court in Harlal vs. The State of Rajasthan (2) that one of the essential attributes of the enforceability of a rule as a matter of law is its publication so that those whom it was intended to govern knew what the rule was and how it reacted on them. Said their Lordships in Harlal's case (supra). "In the absence of any special law or custom, we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normaly know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential." The principle of these observations squarely applies to the rule before us and we cannot help pointing out that in the absence of the publication of this rule, it would be impossible for those concerned to know about its existence, and it must follow therefore that they could not be held bound by it unless and until it was published. The conclusion, to our mind, is therefore irresistible that the amended rule 170 for the first time became enforceable on the 15th January, 1959, when it was first published and could not receive effect from the 1st December, 1958, being the date on which it was passed by the Government. Under these circumstances the only further question that remains to consider is whether rule 170 as amended could properly be held to be applicable against the petitioner who, as we have already said, had been retired on medical grounds on his own request before it came into force on the 15th January, 1959. We were disposed to think on first principles governing relationship between a master and a servant that the latter could not be held bound by a rule which had been brought into force only after he had been retired or discharged from service. But we need not pursue this line of reasoning any further because the matter seems to us to be concluded by rule 4-A of the Rajasthan Service Regulations. That rule reads as under - "4-A. The Government reserve to themselves the right of changing the rules regarding pay and acting allowances and leave and pension from time to time at their discretion. An Officer's claim to pay and allowances is regulated by the rules in force at the time in respect of which the pay and allowances are earned; to leave by the rules in force at the time the leave is applied for and granted; and to pension by the rules in force at the time when the officer resigns or is discharged from the service of Government. As to whether a person who has been invalided from service on medical grounds can be said to have been discharged or not, we would invite reference to rule 236 particularly with reference to its heading which reads as follows - "Applicant to be discharged. 236. A Government servant who has submitted under rule 229 a medical certificate of incapacity for further service must not (except for special reasons to be reported to Government) be retained in active service pending a decision on his application for pension, nor can he obtain leave of absence. Without the special orders of the authority which has power to sanction the pension, service after the date of such medical certificate does not count for pension." The position which thus emerges is that a State employee must be governed in the matter of his pension by the Rules which happen to be in force at the time when he resigns or is discharged from the service of the Government whether on medical grounds or otherwise. It is the rules which are in force at the time of such discharge which would be relevant to determine any question relative to his pension, and a rule which might have been introduced later by way of amendment or otherwise would be of no avail. In this state of the rules, our conclusion is that the petitioner, so far as his pension is concerned, would fall to be governed by rule 170 as it existed at the time of his discharge from service. It is admitted before us that viewed in this light, rule 170 as it came to be amended latter and as such came into force from the 13th January, 1959, as discussed above, could not be pressed into service against the petitioner and his case is squarely governed by the rule as it existed originally at the time of his discharge on the 15th January, 1959. There can be no question that the original rule 170 did not contain any provision for the permanent withholding of a Government Servant's position for any reason whatever, and, therefore, there is no escape from the conclusion that such action could not be taken against him according to law and we have, therefore, no other alternative but to quash it. In view of the above conclusion, learned counsel for the petitioner does not press his remaining contentions, and, therefore, we have not thought it necessary to deal with them. The result is that we allow this petition in part and hereby quash as illegal and inoperative that part of the Government order dated the 21st June, 1961, by which one-fourth of the petitioner's pension was withdrawn permanently. Having regard to all the circumstances of the case, we would leave the parties to bear their own costs. ;