MODI, J.—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.

3. This application has been opposed by the State.

4. 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) shal

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