Mohammed Bashuir Khan @APPELLANT@Hash Shri C.K. Mathew

Contempt of the order dated 26-7-2002 in SBCWP No.6223/1997 has been alleged in this petition, thereunder 18 petitions, including that of the

petitioner, were decided with petition No.1974/1992, Mohan Lal Sharma Vs. State of Rajasthan, which was the lead case. The respondents were

directed to accord due pensionary benefits to the petitioners after adjusting the contribution of Provident Fund paid to them from the arrears of pension

computed consequent to the court's order dated 26-7-2002.

The petitioner states to have made several representations for compliance with the order dated 26-7-2002, but to no avail. He then sent a notice to the

respondents through his counsel on 10-42009, and yet no response emanating thereto, this contempt petition has been filed.

The respondents have filed a reply of denial of alleged contempt. Their case is that though DB Civil Special Appeal No.884/2002 against the order

dated 26-7-2002 in the case of the petitioner was first dismissed in default on 14-2-2008, it was subsequently restored vide order dated 13-1-2011 and

disposed of referring to an order in a similar DBC Special Appeal (Writ) No.961/2002 decided on 22-10-2009 as under:-

This court had occasion to deal with the case of similar special appeals, which came to be considerd subsequently after the decision dated 22-10-2009

and taking note of the above facts this court disposed of the appeals on 29-9-2010 by the following order:

These appeals are disposed of in terms of the following consent order:

The other similar matters have been dismissed by the order of this court in DBCivil Special Apeal (Writ) No.961/2002 dated 22-10-2009. The Special

Leave to Appeal No.CC-10660/2010 against the aforesaid judgment is pending in the Supreme Court. In case, the judgment of this court is affirmed

by the Apex Court, the judgment of this court will prevail. In case, the judgment in similar matter is set aside, obviously the judgment of the Apex

Court will prevail in these matters also.

It is relevant to state that Mohan Lal Sharma's writ Petition No.1974/1992, with which the petitioner's writ petition No.6223/1997 was decided on 26-

7-2002, was put to challenge before the Division Bench in DBCSAW No.935/2002, which appeal was dismissed on 21-4-2009. Aggrieved the State

preferred a Special Leave to Appeal (Civil) No.17923/2009 before the Apex Court, wherein on 7-8-2009 while issuing notice to respondents the Apex

court stayed contempt proceedings. The said order dated 7-82009 was made absolute on 9-5-2012. There is nothing on record to show nor is it even

contended that the SLP aforesaid has been dismissed or the order dated 9-5-2012 therein vacated or modified to the petitioner's benefit.

Mr. S.K. Gupta, AAG, counsel for respondents submitted that in view of the interim order dated 7-8-2009 in Special leave to Appeal No.17923/2009,

State of Rajasthan Vs. Mohan Lal, and its confirmation on 9-5-2012 passed by the Apex Court, contempt petitions in matters of similarly situate

persons i.e. SBCCP No.1176/2011 and others came to be dismissed on 9-10-2014 as under:-

“In my considered opinion, in the facts obtaining “willful defaultâ€​ as attributed to the respondents in not complying with the judgments dated 12-

8-2011 and 26-72012 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.â€​

Mr. S.K. Gupta submitted that the judgment dated 26-7-2002 in writ petition (SBCWP No.1974/1992) of Mohan Lal Sharma (supra) decided along

with the petitioner's writ petition (SBCWP No.6223/1997) is thus under challenge before the Apex Court by way of Special Leave to Appeal (Civil)

No.17923/2009. The State's DB Civil Special Appeal against the judgment dated 26-7-2002 of which contempt has been alleged has subsequent to its

restoration disposed of on 13-1-2011 linking the petitioner's rights to the determination thereof in identical matters. The said rights are not yet finally

determined and in the identical case of Mohan Lal Sharma decided on 26-7-2002 along with the petitioner and of others SLP is pending before the

Apex Court where an interim order has been passed staying the contempt proceedings. He submits that therefore there cannot be any conceivable

justification in entertaining or considering the petitioner's contempt petition in the instant case. In the facts and circumstances of the case, the

respondents cannot even remotely be liable for willful default for their alleged failure to comply with the judgment dated 26-7-2002. Consequently the

contempt petitions be dismissed.

Mr. R.C. Joshi submitted that the order dated 13-1-2011 in the restoration application in DB Special Appeal (Writ) No.884/2002 at the State's instance

was not passed after notice to the petitioner, and hence the said order cannot be read against the petitioner. Mr. R.C. Joshi also raised the issue of the

petitioner's age and despite 16 years lapsing he is being denied benefit of pension as directed by order dated 26-7-2002.

Heard learned counsel for the parties. Considered.

The argument of Mr. R.C. Joshi counsel for the petitioner as to the order in restoration and disposal passed simultaneously on 131-2011 in the

restoration application No.03984/2009 in DB Special Appeal (Writ) No.884/2002 not being relevant as it was without notice to the petitioner is of no

avail. The said order of the court stands as of today. The petitioner was free to take his remedies there against on whatever grounds may have

obtained in law. Unless the court interferes in appropriate proceedings there against, it is binding on the petitioner, so too on this court. It is apparent in

the facts of the case recorded in the detailed arguments of Mr.S.K. Gupta, that the judgment 26-7-2002, in view of the order dated 13-12011 inÂ

restoration application No.03984/2009 in DB Special Appeal (Writ) No.884/2002, is now subject to the outcome of the proceedings before the Apex

Court in case of Mohan Lal Sharma (supra) and as directed by the Apex Court therein, contempt proceedings qua the order dated 26-7-2002 remain

stayed. In my considered opinion, in the facts obtaining “willful default†as attributed to the respondents in not complying with the judgment dated

26-7-2002 cannot be made out. In the circumstances, the contempt petition is liable to be dismissed. Dismissed. Notices are discharged.

The petitioner shall however be free to move an application for recall of this order and revival of contempt petition in the event the interim order dated

7-8-2009 as confirmed on 9-5-2012 by the Apex Court in the case of State of Rajasthan Vs. Mohan Lal, Special Leave to Appeal No.17923/2009 is

vacated, set aside or varied to the petitioner's advantage, or if otherwise the Special Leave to Appeal filed by the State in case of Mohan Lal Sharma

(supra) is dismissed.