SOHAN LAL SONI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an old writ petition filed way back in the year 1997 by petitioner Sohan Lal Soni with the prayer that rule 208 of the Rajasthan Service Rules, 1951 (in short the Rules of 1951) and rule 25 of the Rajasthan Civil Services (Pension) Rules, 1996 (in short the Rules of 1996) in so far as these rules provide for forfeiture of past services on resignation be declared as illegal and be struck down as being illegal and unconstitutional and further that rule 244(1) of the Rules of 19951 and rule 50(1) of the Rules of 1996 in so far as they provide for minimum qualifying service and age to become eligible for pension be also struck down as being illegal and unconstitutional. A consequential relief has also been prayed for in that the respondents be directed to grant pension to the petitioner proportionate to the period of service rendered by him by treating his resignation as retirement form service.

(2.) FACTUAL matrix of the case is that the petitioner was appointed as Assistant Teacher in the Education Department of the respondents on 28.1.1955. He was later promoted to the post of Teacher Gr.II vide order dated 7.9.1964. In course of time however he was absorbed on the post of LDC vide order dated 31.1.1966. While so serving, the petitioner resigned from service on 5.6.1968. His resignation was accepted and consequentially he was relieved from service on 9.8.1968. The petitioner had thus completed 12 years and 8 months in the service of the respondents. According to rule 208 of the Rules of 1951 which is in para materia to rule 25 of the Rules of 1996, upon a government servant resigning from service, past period of service rendered by him becomes liable to be forfeited and therefore the petitioner was not held entitled to any kind of pension.

(3.) SHRI N.M. Lodha, learned Additional Advocate General appearing for the respondents argued that while the petitioner resigned form service in the year 1968 he has filed the writ petition after 25 years thereafter as late as in the year 1997 therefore the writ petition is liable to be dismissed. In support of his argument, he has relied upon the judgment of the Hon'ble Supreme Court in Aflatoon & Ors vs. Lt. Governor of Delhi & Ors reported in AIR 1974 SC 2077 and in Vishwas Nagar Evacuee Plot Purchaser Association & Anr. vs. Under Secretary, Delhi Admn. & Ors reported in AIR 1990 SC 849. He argued that resignation cannot be treated at par with the voluntary retirement. Once a government servant resigns his past service is liable to be forfeited by operation of law as contained in rule 208 of the Rules of 1951. Even otherwise, the petitioner cannot be held entitled to pension as he did not complete the qualifying service for voluntary retirement. When the petitioner retired from service in the year 1968, period for qualifying service was 25 years with completion of 50 years of age. The petitioner had neither completed 25 years of service nor had attained 50 years of age. After acceptance of his resignation, he for the first time made representation in the year 1997, which representation itself was enormously delayed. Challenge to Rule 25 of the Rules of 1996 is wholly misconceived because these rules would apply to only such persons who retired from service after 1.10.1996. Moreover, the petitioner has taken steps to challenge rule 208 of the Rules of 1951 at a time when those rules already stood repealed by Rules of 1996 and validity of a repealed rule cannot be subject matter of challenge. SHRI Lodha argued that even otherwise, both the rules i.e. rule 208 of the Rules of 1951 and rule 25 of the Rules of 1996 are valid piece of legislation. There is always a presumption in favour of constitutionality of a law till it is declared ultra vires. SHRI Lodha in this connection relied upon the judgments of the Hon'ble Supreme Court in Bhuri Nath & Ors vs. State of J&K & Ors (1997)2 SCC 745 and in Union of India vs. Elphinstone Spinning and Weaving Co. Ltd. & Ors AIR 2001 SC 724. Citing the judgment of the Hon'ble Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education & Ors vs. Paritosh Bhupesh Kurmarsheth etc etc AIR 1984 SC 1543 and in State of Bihar & Ors etc etc vs. Bihar Distillery Ltd., etc etc AIR 1997 SC 1511, SHRI Lodha argued that a lawfully enacted provision of law can be declared unconstitutional only when it is shown to have been enacted without legislative competence or against parental Act or in violation of any fundamental right. Such an unconstitutionality must be plainly pleaded and clearly established. In examining constitutional validity of legislation, the courts are required to make an endevour to sustain the validity of an Act to the extent possible.