( 1 ) SPECIAL leave granted.

( 2 ). In this appeal a division bench decision of the Rajasthan High court dated 21/12/1989 striking down the date i. e. 29/2/1964 mentioned in Rule 268-H of Rajasthan Service Rules, 1951 as being violative of Article 14 of the Constitution of India, is under challenge. The respondent, Sevanivatra Karamchari Hitkari Samiti, Jodhpur, an unregistered association of retired employees of the government of Rajasthan, moved a writ petition in the Rajasthan High court inter alia contending that the expression "in service on 29/2/1964 who is" as used in Rule 268-H of the Rajasthan Service Rules was discriminatory and violative of Article 14 of the Constitution. It was also contended that such rule was also in conflict with the principle laid down in the decision of this court rendered in D. S. Nakara v. Union ofindia. It was also contended that the said expression being severable from the other part of Rule 268-H, the same should be struck down so that the validity of Rule 268-H without the aforesaid expression is not affected.

( 3 ). By the impugned judgment, the Rajasthan High court has held that under Rule 268-H. the benefit of pension has been given only to the government servants who were in service on 29/2/1964 but such benefit under Rule 268-H was not extended to the government servants who had retired prior to that date. The Rajasthan High court has held that there is no reasonable classification in excluding government servants who were not in service on 29/2/1964 and limiting the benefit of liberalised Family Pension Scheme under Rule 268-H only to such government servants who were in service on 29/2/1964. The High court has also held that such classification without any reasonable basis for discrimination cannot be sustained in view of the decision of this court rendered in D. S. Nakara case.

( 4 ). Rule 268-H of Rajasthan Service Rules, 1951 the validity of which was the subject-matter of challenge before the Rajasthan High court is to the following effect:

"268-H. Options to elect benefits.- Under this Ch. a government servant in service on 29/2/1964 who is governed by the family pension rules contained in Ch. XXIII of these Rules shall have option to elect benefits under this Ch. in substitution of the existing family pension benefits a5 admissible under Ch. XXIII or retain their existing benefits. The option shall be exercised within a period of six months from the date of publication of the Rajasthan Service (Amendment) Rules. 1964, in the Official Gazette, in the form given hereunder. An option once exercised shall be final. Persons who fail to exercise option will be deemed to have elected the benefits under this Chapter.

(2 The option under sub-rule (1 shall be communicated by the Officer concerned to the Head of Office, if he is a non-Gazetted Officer and to the Accountant General, Rajasthan, Jaipur, if he is a Gazetted Officer. The option when received from a non-Gazetted Officer shall be countersigned by the Head of the Office and pasted in the Service Book of the Officer concerned. "

( 5 ). It appears that after the formation of the State of Rajasthan, Rajasthan State Service Rules came into force w. e. f. 1/4/1951. Ch. XXIII of the said Rules provides for grant of family pension in accordance with the provisions contained in Rules 261 to 268. Rule 261 provides :

"a family pension not exceeding the amount specified in Rule 262 may be granted to the family of an officer who dies, whether still in service or after retirement after completion of not less than 20 years qualifying service for a period often years: 120 Provided that the period of payment of family pension will in no case extend beyond a period of five years from the date on which the deceased officer retired or on which he Would have retired on a superannuation pension in the normal course, according as the death takes place after retirement or while the officer is in service. "

( 6 ). Thereafter, a new Ch. being XXIII-A cont