Ganeshi Devi vs R. Venkateshwaran <BR> Suwa Devi Vs G.S. Sandhu

Alok Sharma, J.—All these six contempt petitions entail an address on a similar question with regard to non compliance with the judgments on two different dates passed by this court with regard to payment of pension to the petitioners by virtue of their being ex-employees of the Municipalities in the State of Rajasthan.

The case of the petitioners is that vide judgments dated 12-8-2011 (26-7-2012 in Contempt Petition No. 337/2013) their claim of grant of pension came to be disposed of in terms of the judgment dated 26-7-2002 passed by this court in case of Mohan Lal Sharma Vs. State of Rajasthan (S.B. Civil Writ Petition No. 1974/1994). It has been submitted that in the case of Mohan Lal Sharma decided on 26-7-2002 along with 18 other connected matters, this court found that classification of those who retired prior to October, 1987 differently from those who retired thereafter from service with Municipalities in the State of Rajasthan was arbitrary as retired employees of the Municipalities in State of Rajasthan were entitled to be considered as one homogeneous group not to be differentially conferred the right to pension. Hence holding that the eligibility criteria devised by Rules 3 and 4 of the Rajasthan Municipalities (Pension) Rules, 1989 for payment of pension was violative of Article 14 and therefore deserving to be struck down, the court directed that all retired employees of the Municipalities in Rajasthan irrespective of the date of their retirement were entitled to pension and consequential benefits after adjusting the contribution of provident fund paid to them from the arrears of pension payable in terms of the judgment of the court.

It is submitted that the judgments of this court passed on 12-8-2011 and 26-7-2012 have not been set aside, modified or varied in D.B. Civil Special Appeal, and have therefore attained finality. Yet the petitioners have not been allowed fruition of the judgments and in fact petitioner Savitri Devi (contempt petition No. 1191/2011) has since expired and the contempt petition laid by her is being now contested through her legal representatives. Counsel submit that this late should befall the other petitioners.

Mr. S.K. Gupta, learned AAG appearing on behalf of respondents submits that the judgment dated 26-7-2002 in the case of Mohan Lal Sharma (supra), which was the bedrock of the judgments dated 12-8-2011 and 26-7-2012 passed in the writ petitions filed by the petitioners, is under challenge before the Hon''ble Supreme Court by way of Special Leave to Appeal (Civil) No. 17923/2009. Therein the Hon''ble Supreme Court on 7-8-2009 while issuing notice has directed that "in the meanwhile, contempt proceedings shall remain stayed." Counsel submits that in fact the learned Single Judge himself also while passing the judgment dated 12-8-2011 and 26-7-2012 observed that his judgment/s would abide the final determination in the case of Mohan Lal Sharma (supra), challenge whereto was on record. Counsel has submitted that the Hon''ble Supreme Court in the State''s appeal in the case of Mohan Lal Sharma has directed that contempt proceedings shall remain stayed. He submits that now therefore there cannot be any conceivable justification in entertaining or considering the present contempt petitions as it is not conceivable that while the Hon''ble Supreme Court in the case of Mohan Lal Sharma vide interim order dated 7-8-2009 has stayed contempt proceedings for its alleged non compliance, the present contempt petitions arising out of the judgments dated 12-8-2011 and 26-7-2012 rendered only relying upon the judgment in the case of Mohan Lal Sharma can be entertained. It has been submitted that in the facts and circumstances of the case, the respondents cannot be held to be guilty of willful default for their alleged failure to comply with the judgments dated 12-8-2011 and 26-7-2012. Consequently the contempt petitions be dismissed.

At this stage, Mr. Anoop Dhand, learned counsel for the petitioners has submitted that the respondents have granted pensionary benefits to several similarly situated persons, in spite of the interim order dated 7-8-2009 passed by the Hon''ble Supreme Court, and yet the petitioners are being denied the same benefits in a manner palpably discriminatory. Mr. S.K. Gupta, learned AAG would however submit that it is a fundamental principle of law that one illegality does not justify another as equality is a positive not a negative concept, and any wrongful payment of pension to any person, if at all, is a separate matter, for which the Government would take appropriate action. But that by itself cannot constitute a valid ground for the entertainment of the present contempt petitions.

Heard learned counsel for the parties and perused the judgments dated 12-8-2011 and 26-7-2012. It is apparent that the said judgments were passed relying upon the judgment in the case of Mohan Lal Sharma (supra) and while passing the judgments the court was conscious of the fact that the judgment in the case of Mohan Lal Sharma was under challenge before a higher court. It was therefore observed that the court''s judgments would be subject to outcome of the proceedings before the Hon''ble Supreme Court in case of Mohan Lal Sharma. And the Hon''ble Supreme Court in SLP filed by the State against the judgment in the case of Mohan Lal Sharma (supra) vide its interim order dated 7-8-2009 has directed that contempt proceedings arising therefrom shall in the meantime remain stayed during pendency of the SLP filed by the State.

In my considered opinion, in the facts obtaining "willful default" as attributed to the respondents in not complying with the judgments dated 12-8-2011 and 26-7-2012 is not conceivable and no contempt is even prima facie made out. In the circumstances, the contempt petitions are liable to be dismissed. Dismissed. Notices are discharged.

The petitioners shall however be free to move an application for recall of this order and revival of contempt petitions in the event the interim order dated 7-8-2009 passed by the Hon''ble Supreme Court is vacated, set aside or varied to the petitioners'' advantage, or if otherwise the Special Leave to Appeal filed by the State in case of Mohan Lal Sharma is dismissed