KANT A BHATNAGAR, J. - (1.) THE question raised, point agitated and the relief sought against in this writ petition is the negation of the equality to the persons similarly situated, by fixings specific date September 20, 1972 in the definition of the term 'deceased Government Servant' in R. 2 (e) of the Rajasthan Recruitment of Dependents of Government Servants dying while in Service Rules, 1975 (hereinafter to be referred as 'the Rules') through a Notification viz. Department of personnel (A -. II) Notification No. F. 3 (6) Karmik/ka-II/75, dated September 29, 1975 by which the benefit to recruitment to the members of the family of the deceased under the Rules was limited only to the members of the family of the Government servant dying on or after September 2, 1972.
(2.) THE brief facts of the case as disclosed in the writ petition and the reply filed there to, are that petitioner Shashikant's father Manpharlal, a constable in Police Department, posted at Pali, while going in a Jeep of the police Department proceeding in hot pursuit of an opium smuggler, met a fatal accident on January 27, 1968 leaving behind him his widow Smt. Urmila Devi and the petitioner, a child of. four and half years, and another child of three or four months old. THE means of the livelihood of the family "thereafter was a petty amount of Rs. 144/-P. M, by way of family pension. When the petitioner attained the age of majority and passed his Higher Secondary examination, his mother made an application to the Inspector General of Police for providing a job to him on compassionate grounds of the family facing great financial hardship. At the direction of the higher authority the request was sympathetically considered by the Superintendent of Police, Pali and the petitioner was appointed as L. D. C. on probation of two years Vide order dated September 24, 1962 (Annexure-1) meant to be under the Rules. Vide letter dated October 20, 1982 (Annexure-11) the Deputy Inspector General of Police, Head Quarter Jaipur forwarded the applications of five persons including Smt. Urmila Devi, mother of the petitioner seeking appointment under the Rules and requested for action at the higher level. THE services of the petitioner were terminated vide order dated June 8, 1983 (Anne-xure-III) on the ground that the candidates regularly selected by the Public Service Commission Rajasthan, Ajmer were available. At the representation of Smt. Urmila Devi against the termination of the services of the petitioner the Deputy Inspector General of Police Head Quarter, Jodhpur wrote a letter dated August 19, 1983 (IV) to the Deputy Inspector General of Police, Jodbpur Range, Jodhpur, mentioning that the appointment was given to Shashi Kant, being the eldest son of deceased Constable Manohar Lal and that the availability of the regularly selected candidates from Rajasthan Public Service Commission will not affect the services of the petitioner and that in case the post on which Sashi Kant was appointed had been filled up and there may not be any vacancy at Pali, he may be appointed on the vacant post of L. D. C. in Banner District. In reply to the aforesaid letter, the Superintendent of Police, Pali sent the letter dated July 29, 1983 (Annexure-V) to the Deputy Inspector General of Police, Head Quarter, Jaipur stating that Manoharlal had expired on January 27, 1968 whereas the Rules were framed in the year 1975 and family members of only those persons dying after the issuance of the circular being entitled for appointment under the Rules, Manoharlal's the son Shashi Kant was not entitled to appointment under the Rules and that there was no vacancy even of L. D. C It was further stated that so far as the appointment on the post of Constable is concerned, the Board has not been constituted and whenever the Board would be constituted his case would be sympathetically considered. As the Department was sympathetic towards the family of the deceased Constable Manoharlal, the Superintendent of Police, Pali in compliance to the directions of the Special Inspector General of Police, vide order dated January 16, 1981 (Annexure-VI) appointed the petitioner as L. D. C. temporarily for a period of four months with a further direction that on regularly selected candidates from the Rajasthan Public Service Commission being available, the services of the petitioner would be terminated. Vide order dated May 15, 1985 (Annexnre-VII) the services of the petitioner were terminated at the expiry of the period of four months envisaged in the Order dated January 16, 1984 (Annexnre-VI ). Again a sympathetic view was taken and vide order dated May 21, 1984 (Annexure VIII), the Superintendent of Police, Pali appointed the petitioner as L. D. C. temporarily for a period of three months with a further order that in case of availability of regularly selected candidates from the Rajasthan Public Service Commission the services of the petitioner would be immediately terminated. The petitioner apprehending termination of his services on August 1. 6, 1984 filed petition under Article 226 of the Constitution of India in this Court for quashing the Orders dated June 8, 1983 (Annexure-III) and May 15, 1985 (Annexure VII) terminating his services for striking down the words 'on or after 2nd day of September, 1972' occuring in R. 2 (e) of the Rules as they are ultravires of Articles 14 and 16 of the Constitution of India and prayed for directions to the respondents to give him substantive appointment from the date he was given the initial appointment. In response to the show cause notice, reply was filed on behalf of the respondents and it was contended that the Rules came into force on September 29, 1975 and the case of the petitioner was not covered under the Rules because his father had died on January 27, 1968 and the services of the petitioner was terminated for that reason as evident from the letter of the Deputy Inspector General of Police dated June 4, 1983 (Annexure-R/3) by which the Superintendent of Police, Pali was directed to terminate the services of the petitioner because his appointment not being under the Rules was not being regular. That since the selected candidates from the Rajasthan Public Service Commission were available, petitioner was removed from service on August 18,1984. It has been further stated in the reply that 1975 Rules being prospective in operation the petitioner, whose father had expired in the year 1968 was not entitled to any benefit under these Rules. Mr. M. Mridul, learned counsel for the petitioner placing reliance on the principles enunciated in various authorities, which we would presently discuss, strenuously contended that the purpose of framing of the Rules would be frustrated by mentioning a specific date in the definition of the term "deceased Government Servant" in the Rules. According to Mr. Mridul the fixing of the date has no nexus with the object of the Rules. That, the date September 2, 1972 occuring in R. 2 (e) of the Rules is arbitrary as it devides 'deceased Government servants' in two categories, one of those dying before September 2,1972 and the other of those dying on or after September 2, 1972.
(3.) MR. J. P. Joshi, learned Additional Advocate General controverting these contentions submitted that the Rules are prospective in operation and the Government cannot be obliged to make the Rules effective retrospectively. The entertainability of the writ petition has been challenged on the ground that the case of the] petitioner is not covered by the Rules as they stand and there is no infringement of any legal right of the petitioner which may entitle him to invoke the extra ordinary jurisdiction of this Court. In order to appreciate the arguments of the learned counsel for the parties, it would be profitable to look to the object of framing the Rules and its Scheme. A circular dated September 2, 1972 regarding the relief to the Government Servant who dye in harness leaving their families in indigent circumstances, was issued. It has been mentioned there in that the question of providing such a relief was under consideration of the Government for sometime. Then in exercise of the powers under Art. 309 of the Constitution, Rajasthan Recruitment of Dependents of Government Servants Dying while in Service Rules, 1975 were framed. Sub Rule (2) of R. I of the Rules made the Rules enforceable from the date of their publication in the Rajasthan Rajpatra which date is October 2, 1975. As stated earlier, the definition of the term "deceased Government servant" was changed by inserting the words 'on or after 2nd day of September 1972, in R. 2 (e) of the Rules, The words 'who dying while in service on or after the commencement of these Rules' occuring in R. 5 of the Rules relating to the recruitment of the members of the family of the deceased, were substituted by the words 'deceased Government servant'. ;