Honble YADAV, J–The present writ petition has been filed challenging the vires of proviso (3) added to Rule 7 of the Rajasthan Subordinate Co-operative Service (Class-I) Rules, 1955 (hereinafter referred as the Rules of 1955) which are framed in exercise of powers conferred by the proviso to Article 309 of the Constitution in so far as it provides for fixing the seniority of the petitioner after the direct recruits of the year 1988. The aforesaid proviso (3) added to Rule 7 of the Rules of 1955 is reproduced below for ready reference: ``(3) that the persons who have continuously held the post of Inspectors Gr.II in an adhoc of urgent temporary basis for a period of not less than 5 years as on 1.1.1985 and still holding the post on the date of publication of the amendment in the Rajasthan gazette shall be screened by a Committee consisting of the Registrar, the Dy. Secre- tary to the Govt., Co-operative Department, the Dy. Secretary to Govt. Department of Personnel, and the Deputy Registrar (Admn.) for adjudging their suitability for the post held by them and be appointed to the said post on regular basis in the service, if they possess the qualification prescribed in the rules for direct recruitment. The inter se seniority of these persons shall be determined by the Screening Committee on the basis of length of Service and the seniority of the Inspectors so screened will be assigned below the persons appointed to the post of Co-operative Inspector, Gr. II by direct recruitment through the Commission in the year, 1988. The aforesaid amended proviso (3) to Rule 7 of the Rules of 1955 was published in the Rajasthan Gazette on 5.9.91 and was made enforceable w.e.f. 22.7.91. (2). The brief facts necessary for effective adjudication of the present writ petition which emerge from the record are that the petitioner was appointed as Inspector (Executive) by the Registrar, Co-operative Societies, Rajasthan, Jaipur vide order dated 18.5.62 (Ann.1) on temporary basis for a period of 6 months. In compliance of the aforesaid order he joined his duties on 28.5.1962. However, the services of the petitioner were continued after the expiry of the period of 6 months till further orders by the Registrar vide order dated 18.12.62 (Ann.2). The petitioner thereafter continued to serve the Co-operative Department in the same capacity. (3). In compliance of the aforesaid order he joined his duties on 28.5.1962. However, the services of the petitioner were continued after the expiry of the period of 6 months till further orders by the Registrar vide order dated 18.12.62 (Ann.2). The petitioner thereafter continued to serve the Co-operative Department in the same capacity. (3). It is revealed from perusal of the record that vide order dated 22.7.92 (Annex.3) the petitioner was appointed on substantive basis after screening under proviso (3) to Rule 7 of the Rules of 1955. The aforesaid order dated 22.7.92 (Annex.3) provides that the persons appointed by the said order shall be junior to the persons appointed after being selected by the Rajasthan Public Service Commission, Ajmer in the year 1988 by way of direct recruitment. Thereafter a provisional seniority list of the Inspectors of the Co-operative Department was published where the name of the petitioner was not shown. However, the said seniority list was cancelled by another seniority list dated 23.4.92 (Annex.4). It is pertinent to mention here that in the earlier seniority list published on 1.10.76 the name of the petitioner was shown at Serial No. 679 which is not placed on record. (4). On 22.7.97 learned counsel for the petitioner informed the Court that learned counsel for the respondents Shri Nijuddin Khan has filed reply in this case but reply had not been annexed. On the aforesaid statement at the Bar, the Court directed the office to trace and place the reply on record. The case was directed to be listed in future showing the name of Shri Nijuddin Khan. On the next date of hearing it was reported by office that no reply in this case has been filed. Later on Mr. A.L. Dave appeared as penal lawyer on behalf of respondents. Mr. Dave stated today that respondents do not propose to file reply as vires of proviso (3) to Rule 7 of the Rules of 1955 is challenged in the present petition which involves pure question of law. (5). I have heard learned counsel for the parties and perused the materials available on the record. (6). It is strenuously urged by learned counsel for the petitioner Mr. (5). I have heard learned counsel for the parties and perused the materials available on the record. (6). It is strenuously urged by learned counsel for the petitioner Mr. J.L. Purohit that the petitioner and the other similarly circumstanced persons were appointed on ad hoc basis way back in the year 1962 when even some of the direct recruits of the year 1988 were not born and indisputable services of the petitioner and other persons appointed on ad hoc basis were found to be satisfactory by the Co-opera- tive Department as there was no cause of complaint against them either by public or by superior officers. (7). In the aforesaid backdrop it is contended by learned counsel for the petitioner that the proviso (3) added to Rule 7 of the Rules 1955 regarding inter se seniority of the petitioner and other similarly circumstanced persons to the recruits of 1988 treats un-equals as equals. According to Mr. Purohit those who have experience of more than 20 years to 26 years cannot be treated as equal to those who have directly recruited in the year 1988 hence the proviso (3) added to Rule 7 of the Rules of 1955 in so far as it relates to that aspect of the matter is arbitary unfair and unreasonable and also in violation of Articles 14 and 16 of the Constitution of India. In support of his aforesaid contention he placed reliance on a decision rendered by the Supreme Court in case of S.B. Patwardhan and another vs. State of Maharashtra and others (1), another decision rendered by the Apex Court in case of D.K. Mitra and others vs. Union of India and others (2) and again a decision rendered by the Apex Court in case of Union of India and others vs. Ansusekhar Guin and others (3). (8). Learned counsel appearing on behalf of respondents refuted the aforesaid argument advanced by learned counsel for the petitioner with equal vehemence. It is urged by Mr. Dave, learned counsel appearing for the respondents that the petitioner cannot be allowed to approbate and reprobate the added proviso (3) to Rule 7 of the Rules of 1955. According to Mr. Dave on one hand the aforesaid rule regularises the services of petitioner and other similarly situated persons and on the other hand it determines the inter se seniority between them and direct recruits of the year 1988. According to Mr. Dave on one hand the aforesaid rule regularises the services of petitioner and other similarly situated persons and on the other hand it determines the inter se seniority between them and direct recruits of the year 1988. It is vehemently contended by Mr. Dave that the petitioner cannot be allowed to rely on the provisions of proviso (3) to Rule 7 of the Rules of 1955 which are favourable to him and challenge the vires of those provisions of the said Rule which are not favourable and beneficial to him. (9). It would be convenient to treat the argument of learned counsel for respondents Mr. Dave as a preliminary objection to the maintainability of the present writ petition because once he succeeded to establish that principle of app- robate and reprobate is extendable to the facts of the case, the further discussion relating to offending provisions of proviso (3) to Rule 7 of the Rules of 1955 quoted with emphasis hereinabove would become an empty formality. (10). I am of the view that the decision of the aforesaid preliminary objection raised by Mr. Dave depends upon whether the beneficial part of proviso (3) to Rule 7 of the Rules of 1955 is severable to the offending part of the same provisions relating to fixation of seniority. To my mind if the answer of the aforesaid question is given in affirmation only then the beneficial part of the said provision can be retained while striking down the offending part being violative of Article 14 and 16 of the Constitution otherwise not. (11). The principle of `severance for taking out the unconstitutional provision from an otherwise constitutional measures has been well recognised and the said principle cannot be allowed to be hedged with the principle of approbate and reprobate as urged by learned counsel for the respondents. i am not sure about any constitutional principle which inhibits the Court from striking down an unconstitu- tional part of legislative action as is brought to my notice in the present case. In my humble opinion whenever classification is held to be impermissible then the beneficial measure can be retained by removing the unconstitutional portion of classification. (12). i am not sure about any constitutional principle which inhibits the Court from striking down an unconstitu- tional part of legislative action as is brought to my notice in the present case. In my humble opinion whenever classification is held to be impermissible then the beneficial measure can be retained by removing the unconstitutional portion of classification. (12). On the basis of aforesaid discussion it is held that in the present case the beneficial portion of proviso (3) to Rule 7 of the Rules of 1955 is severable to the unconstitutional classification of the same proviso. (13). It is observed here that just as a mala fide act has no existence in the eye of Law, an act which is found to be unreasonable vitiates the law and procedure alike. Here in the present case vires of proviso (3) added to Rule 7 of the Rules of 1955 is to be examined in the light of the procedure prescribed for inter se seniority between the ad hoc appointees who were in service from the last 20 to 26 years in the Department as Inspectors without any cause of complaint to the direct recruits of the year 1988 as Inspectors. At this state I pose a question as to whether the afo- resaid procedure prescribed by adding proviso (3) to Rule 7 of the Rules of 1955 enhances efficiency in administration or reduce it ? The question which is to be ascertained while deciding the vires of the aforesaid Rule would be what object the Rule Making Authority intends to achieve by adding proviso (3) to Rule 7 of the Rules of 1955 thereby giving seniority to direct recruits of the year 1988 to those appointed on ad hoc basis in the year 1962 when some of the direct recruits of 1988 Inspectors were not even born and some of them may not have even started to go to school. Whether the procedure which is unjust or unfair in the facts and circumstances of the case attracts the vires of unreasonableness thereby vitiating the law which prescribes inter se seniority of ad hoc appointees of 1962 with the direct recruits of the year 1988. (14). Whether the procedure which is unjust or unfair in the facts and circumstances of the case attracts the vires of unreasonableness thereby vitiating the law which prescribes inter se seniority of ad hoc appointees of 1962 with the direct recruits of the year 1988. (14). I am also of the view that while adjudicating the vires of proviso (3) to Rule 7 of the Rules of 1955, the protection of Article 14 and 16 (1) of the Constitution is also to be examined with care and caution. It is to be seen whether the offending classification of proviso (3) to Rule 7 of the Rules of 1955 in substance intends to eat away the protection guaranteed to the petitioner and other similarly circumstanced Inspectors under Article 14 and 16 (1) of the Constitution and they have been singled out for harsh treatment in preference to their juniors. (15). An identical question came up for consideration before the Supreme Court in case of D.S. Nakara and others vs. Union of India (4). After an exhaustive review of almost all decisions bearing on the question of Article 14 and 16 (1) of the Constitution Honble Supreme Court speaking through D.A. Desai, J. the then, in case of D.S. Nakara (supra) ruled which reads thus:- ``15, Thus the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguished persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question. (16). The next question in this regard would arise on whom burden of proof lies to establish rational principle on which the classification is founded correlated to the object sought to be achieved. Answer to the aforesaid question is not far to seek. (16). The next question in this regard would arise on whom burden of proof lies to establish rational principle on which the classification is founded correlated to the object sought to be achieved. Answer to the aforesaid question is not far to seek. As the trust of Article 14 and 16 of the Constitution is that the citizen is entitled to equality before law and equal treatment in the service of State from the date of appointment till the age of his superannuation hence whenever and wherever a classification is challenged before the Court, burden of proof lies upon the State to satisfy the twin tests of reasonable classification having rational principle correlated to the object sought to be achieved. (17). With the aforesaid circumspection now let us examine vires of offending provisions of added proviso (3) to Rule 7 of the Rules of 1955. (18). After examining offending classification of proviso (3) added to Rule 7 of the Rules of 1955 I am of the view that there is no intelligible reason in fixing the seniority inter se of the ad hoc appointees of 1962 at par with direct recruits of 1988. The aforesaid proviso, fixing inter se seniority cannot be argued that it depends on the efficiency of the incumbent nor on the availability of substantive vacancies. The vice of proviso (3) to Rule 7 of the Rules of 1955 is that it leaves the valuable right of seniority to depend upon the mere accident of regularisation of service of petitio- ner and similarly situated appointees without any fault on their part. It is unconscionable to allow seniority of the petitioner and other similarly situated appointees on the post of Inspectors to depend on the accident of their regularisation in service who continuously worked in the Department for more than two decades. I am also of the view that the proviso (3) to Rule 7 of the Rules of 1955 in so far as it relates fixing seniority of the petitioner and similarly, circumstanced appointees below the direct recruits of the year 1988 is unjust and unequitable resulting in a peculiar situation in service jurisprudence which is not permissible within the meaning of Article 14 and 16 of the Constitution. (19). The respondents miserably failed to establish twin tests and burden of proof as discussed hereinabove. (19). The respondents miserably failed to establish twin tests and burden of proof as discussed hereinabove. The respondents also failed to satisfy this Court that either the petitioner or other similarly situated appointees on the post of Inspectors are lacking efficiency in discharge of their duties to the satisfaction of the Department in comparison to afresh recruits of the year 1988. In view of this the respondents by adding proviso (3) to Rule 7 of the Rules of 1955 in so far as it relates to seniority of the petitioner to the new recruits of 1988 cannot be allowed to give undue advantage to the direct recruits of the year 1988. If offending part of proviso (3) added to Rule 7 of the Rules of 1955 is allowed to stand it will have a demoralising effect on service in the Department and the most inequitous approach of the Government would be more damaging than increasing the efficiency of administration amongst its employees. (20). From the discussion made hereinabove, I am clearly of the opinion that it would be equitable dispensation of justice to fix the inter se seniority between the direct recruits of 1988 and the ad hoc appointees on the basis of their length of continuous service. For fixation of seniority length of continuous service is a well accepted rule when the service rule does not prescrible a mode of fixing inter se seniority. (21). I am fortified in taking the aforesaid view from the decisions cited by learned counsel for the petitioner in case of S.B. Patwardhan & Anr. (supra) in case of D.K. Mitra & Ors. (supra) and in case of Ansusekhar Guin & Ors. (supra). (22). Upshot of the aforesaid discussion is that the instant writ petition is allowed. Proviso (3) added to Rule 7 of the Rules of 1955 in so far as it provides for inter se seniority of the petitioner and other similarly circumstanced appointees below the direct recruits of 1988 is hereby struck down being ultra vires to Article 14 and 16 of the Constitution. The respondents are directed to fix inter se seniority between the direct recruits and the ad hoc appointees on the basis of their length of continuous service. Both the parties are directed to bear their own costs. (23). The respondents are directed to fix inter se seniority between the direct recruits and the ad hoc appointees on the basis of their length of continuous service. Both the parties are directed to bear their own costs. (23). After dictation of the order learned members of the Bar present in Court made a request to make the order reportable. Request is allowed and the order is made reportable.