Honble RAJENDRA SAXENA, J.—By means of this writ petition the petitioners have challenged the vires of the Note No. 2 of Rule 268-D of the Rajasthan Services Rules, 1951 (in short, the RSR,) and sought a mandamus declaring that a wife, who has contracted marriage after the death of first wife of a husband, who has retired from the Government service, is also included in the definition of word, "family" and further declaring that Smt Noor Bano (petitioner No.2), the wife of petitioner No. I, Ibrahim Khan is entitled to family pension after his death.

2. Petitioner Ibrahim Khan retired on 1st Sept., 1977 from the post of District Revenue Accountant in Collectorate, Sikar. During his service period and at the time of retirement, he had nominated his wife Smt. Patasi as nominee and successor for grant of family pension. Consequent to his retirement his pension case was finalise and pension payment order vide PPO order Anpexure 2 after commutation of his pension were issued by the Treasury Officer, Churu. Smt. Patasi expired on 16-3-79 as per death certificate (Annex.3). Thereafter, on 13 .03.1980, Ibrahim Khan contracted second marriage with Smt. Noor Bano, petitioner No. 2 according to the Muslim rites and a certificate of Kaji, who performed the said marriage was issued and copy thereof is Annex. 4. Ibrahim Khan thereafter submitted an application dated 13-1-82 (Annex.5) along with nomination papers, the photos of both husband and wife namely, petitioners Nos. 1 and 2 (Annex.6) duly attested by the District Notary, Churu and the death certificate of Smt. Patasi, nominating his second wife Smt. Noor Bano as the person entitled to receive family pension. But that application was not entertained and was retimed by the Chief Pension Officer with the endor-sementdated 27:1-82 to the effect that under Rule 268-D of the RSR any marriage contracted after the retiremint, does not entitle the wife to claim family pension. Thereafter, the petitioner No. I relying on the law laid down in Smt. Bhagwanti Vs. Union of India (1), submitted another application dated 18-6-90 (Annex.7), to the Director, Pension Department (Respondent No.2) praying for the grant of nomination in favour of his second wife Smt. Noor Bano for family pension through registered post and also as many as eight reminders, which failed to evoke any response. Ultimately, the petitioner also sent a D.O. letter dated 20-7-91 to respondent No. 2 but that also failed to fetch any reply. The petitioner has alleged that the Note (2) under Rule 268-D of the RSR is wholly illegal, arbitrary and against the object and purpose of grant of family pension and prayed that the same be struck down.

3. The respondents in their counter dated 17-2-92 have not disputed the factual position detailed in the writ petition, but have averred that under Rule 4-A of the RSR the benefit of pension and other retirementary benefits are regulated in light of the Rules in force and family pension of the members of the family as per the position as stood on the date of retirement of a Govt. employee. It has further been asserted that since petitioner No. l has re-married after his retirement, Smt. Noor Bano does not fall within the meaning of definition of "family under Rule 268-D of the RSR, because as per Note (2), marriage after retirement will not be recognised for the purpose of the said Rule. It has been reiterated that Note (2) under Rule 268-D is legal, proper and justified and the same is neither arbitrary nor violative of Article 14 of the Constitution of India.

4. We have heard the learned counsel for petitioners and the learned Dy. Government Advocate at considerable length and perused the relevant record.

5. Shri D.S. Shishodia, Sr. Advocate for petitioners has vehemently contended that the pension to a Government employee is payable on the consideration of his past services rendered by him and that payability of the family pension is also basically on the self same consideration. He has contende

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