ORDER :

Sanjay K. Agrawal, J.

1. The petitioner herein seeks to challenge the constitutional validity of Rule 12(2)(i) as well as Rule 12A of the Chhattisgarh Civil Services (Extraordinary Pension) Rules, 1963 (for short, ‘the Rules of 1963’) being violative of her fundamental right guaranteed under Article 21 of the Constitution of India and also eventually seeks to challenge the order dated 2-9-2022 (Annexure P-1) holding / affirming that the petitioner is not entitled for family pension as per Rule 12(2)(i) of the Rules of 1963.

2. The aforesaid challenge has been made on the following factual backdrop: -

3. The petitioner herein was married to Shri Deepak Upadhyay, who was serving as Constable in the Department of Home and he died while he was on official duty on 25-5-2013 at Bastar and consequently, apart from other benefits, she was granted special pension of Rs.20,700/- per month under the Rules of 1963 by order dated 29-6-2019 which the competent authority has withdrawn by order dated 24-6-2022 / 27-6-2022 (Annexure P-11) with effect from the date of remarriage i.e. 4-6-2021 on the ground that the petitioner has remarried and directed to be withdrawn. Prior to order dated 24-6-2022, the petitioner had filed W.P.(S) No.3911/2020 before this Court in which a prayer was made for not stopping the special family pension to her which was disposed of by the Court to be premature and ultimately, when this order dated 2-9-2022 was passed affirming the withdrawal of family pension, the petitioner has filed this writ petition calling in question Rule 12(2)(i) as well as Rule 12A of the Rules of 1963 pleading inter alia that right to marriage is a part of right to life under Article 21 of the Constitution of India and withdrawal of special family pension on account of her remarriage is violative of the fundamental right guaranteed under Articles 14 & 21 of the Constitution of India. In that view of the matter, Rules 12(2) (i) & 12A of the Rules of 1963 deserve to be declared ultra vires to the provisions of the Constitution of India and violative of her rights guaranteed under Articles 14 & 21 of the Constitution of India.

4. Return has been filed on behalf of the State / respondents No.1 to 5 and 7 stating inter alia that the constitutional validity of a rule can be challenged on a limited ground and there is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It has further been stated that a subordinate legislation can be challenged on the grounds of lack of legislative competence to make the subordinate legislation, violation of fundamental rights guaranteed under the Constitution of India, violation of any provision of the Constitution of India, failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act, repugnancy to the laws of the land, that is, any enactment, and manifest arbitrariness / unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules). Rule 12(2)(i) as well as Rule 12A of the Rules of 1963 do not suffer from any of the jurisdictional incompetence and since the petitioner had already remarried, therefore, by virtue of Rule 12(2)(i) of the Rules of 1963, she is not entitled for family pension and she has rightly been withdrawn the family pension coupled with the fact that she had already been granted compassionate appointment and in that view of the matter, the writ petition deserves to be dismissed.

5. Short rejoinder has been filed controverting the allegations made in the return.

6. Mr. Sourabh Sahu, learned counsel appearing for the petitioner, would submit that Rule 12(2)(i) of the Rules of 1963 restricting the right of withdraw of the Government servant to get special pension till remarriage is violative of the fundamental right guaranteed under Articles 14 & 21 of the Con