SB Civil Writ Petition No. 948/98 Raj Nagar Palika Sewa Niwrat Karamchari Sansthan VS. The State of Rajasthan & Others 16.11.2010 Hon'ble Mr. Justice Prakash Tatia Mr. RC Joshi with Mrs. Namita Parihar __/ for the petitioner. Mr. SN Kumawat, for the respondents. This writ petition is preferred by the Rajasthan Nagar Palika Sewa Niwrat Karamchari Sansthan. According to the petitioner, it has 39 members who are the retired employees of different Municipal Boards/Council. The details of the members of the employees have been given in Schedule-A annexed to the writ petition. The petitioner association earlier preferred a writ petition (SB Civil Writ Petition No. 288/90) before this Court which was allowed vide order dated 26th February, 1991 wherein it has been held by the High Court that “the order dated 26.5.84 published in the Gazette on 17.9.87 denying the members of the petitioner association the pensionary benefits and the order dated 9.9.88 is declared to be discriminatory qua the members of the petitioner association and thereafter this Court declared that the members of the petitioner association will be entitled to the same pensionary benefits as has been given to the erstwhile employees, who were members of the Municipal Services in Ajmer Merwara”. It was further directed that “the contribution of the provident fund amount paid to the members of the petitioner association shall be adjusted towards the arrears of the total amount of pension to which they are found entitled from the date of entitlement. They shall also be entitled to be paid pension in future month by month in accordance with the provisions of the Rajasthan Service Rules with the benefit of commutation of pension etc. including all facilities which are being provided to the persons placed in similar situation”. Therefore, according to the petitioner, so far entitlement to the pensionary benefits of the members of the petitioner association is concerned, that has attained finality after the decision of this Court delivered in SB Civil Writ Petition No. 288/89 dated 26.2.91. However, the respondent in view of sub clause (b) of Rule 10 of the Rajasthan Municipal Services (Pension) Rules, 1989 (for short, the Rules of 1989) denied the pensionary benefits to the employees particularly the members of the petitioner association for the period for which the Board may not have contributed provident fund or pension fund and according to the petitioner, the last part of the said clause (b) of rule 10 of the Rules of 1989 is ultra vires, discriminatory and therefore liable to be struck down because of the reason that there is no nexus for providing this condition so as to achieve any object. It is also submitted that even if any contribution was required to be made by the Board towards the contributory provident fund or pension fund then that was required to be deducted by the Board and if the Board has not contributed/deducted any amounts towards C.P.F. and pension fund then because of the fault of the Board, the employees cannot be made to suffer because of the non performance of the duties by the Board. It is also submitted that after the judgment dated 26.2.91, when the payment of pension was made to the employees after adjusting C.P.F., the state government could have recovered C.P.F. from the Municipal Boards. The petitioner gave illustration by giving the facts relating to one employee Shri Ram Niwas Chaudhary in para no. 16 of the writ petition wherein it was stated that Ram Niwas retired on 31.12.82 and his C.P.F. was deducted from December 1957 and thus the period from 1.12.1956 to December 1957 has been excluded while computing his pension. Photo stat copy of the pension payment order of Ram Niwas is filed and marked as Ex. 2. The respondent filed reply to the writ petition and pointed out that the judgment of this Court delivered in SB Civil Writ Petition No. 288/89 was held to be ultra vires by the Division Bench of this Court in the case of “Association of Retired Employees of Municipal Council, Jodhpur Vs. The State of Rajasthan & Another” reported in 1992 WLN (UC) 119. It is also submitted by the respondent that a dispute came before this Court in SB Civil Writ Petition No. 1974/92 “Mohan Lal Vs. State of Rajasthan” about the challenge to the cut off date fixed as 1st October, 1987 for entitlement to the pension and said writ petition was allowed on 18th August, 1992 and it was held that said fixing of date was arbitrary. It is also submitted that the matter is now pending before Hon'ble the Supreme Court so far as the controversy in relation to entitlement of pension for the employees who retired prior to 1.10.87 is concerned. Therefore, in this case also employees who have retired prior to 1987, cannot be held at this stage to be entitled to the pensionary benefits. Learned counsel for the respondent in addition to the above, raised preliminary objection with regard to the maintainability of this writ petition on the ground that the petitioner is an unregistered society and has annexed the list of its members from which it is clear that they were the empolyees of the different Municipal Boards in the State of Rajasthan and their employer was concerned Municipal Board but the emplyoer has not been impleaded as party in this writ petition and therefore the petitioners members are not entitled to any relief for want of necessary party. It is also submitted that the pleadings are vague in as much as that the petitioner has not pleaded whether the Municipal Board has recommended their case for the retiremental benefits which may run contrary to the proviso to the rule (b) of Rule 10 of the Rules of 1989 nor pleaded that the decision was taken by the state government to deny full benefit to the member of petitioner Sangh in spite of the recommendation of the case of the petitioners for full pensionary benefits. It is also submitted that some of the employees who have been shown as members of the petitioner association are employees of the Municipal Boards which are falling outside the territorial jurisdiction of the Jaipur Bench of the Rajasthan High Court and that the jurisdiction vest in the Principal Seat at Rajasthan High Court for those employees. It is also submitted that from the pleadings of the petitioner or any other document placed on record, the fact does not come out that whether the Municipal Boards in fact have contributed towards the contributory provident fund or pension fund and if not contributed from which period not contributed for the above two funds. In view of the above, no relief can be given to the petitioners. I have considered the submissions of the learned counsel for the parties and the above facts of the case. It will be worthwhile to recapitulate that same petitioner for its members preferred SB Civil Writ Petitioner No. 288/89 wherein the petitioner annexed Schedule-A along with the writ petition disclosing its members and their service particulars. In all, there were 50 persons and the present writ petition has been filed by 39 members of the petitioner association who are all retired employees of Municipal Boards. Earlier the writ petition was preferred by the petitioners because of the reason that the members of the petitioner association were aggrieved against the order 26th May, 1984 published in the gazette dated 17.9.87 and consequential order denying the pensionary benefits to the members of the petitioner vide order dated 9.9.88. This Court after considering sections 303 to 306 of the Rajasthan Municipalities Act, 1959 providing for creation and constitution of the service in the Municipal Board/Council and enabling provision of Section 297 which empowers the state government in that behalf and after considering the provisions of Provident Fund Rules, 1959 which started governing the service of all employees observed that “by passing the order dated 26.5.84, the state government placed the employees of the Ajmer Municipalities at a different pedestal, more or less, those who were subscribers of the benefit of the pension scheme. However, after promulgation of Rajasthan Municipal Service Rules, 1963, Rajasthan Municipal (Subordinate and Ministerial Service) Rules, 1963 and the Rajasthan Municipal (Class-IV) Service Rules, 1963 the employees of the Municipalities including the employees of the erstwhile Ajmer Merwara State became one class, thus for similarly situated employees no discrimination could be made qua Ajmer Merwara employees as throughout the Rajasthan, including the employees of Ajmer Municipalities, who belong to C.P.F. Scheme”. Thereafter, this Court considered the order of the state government dated 9.9.88 by which pension benefits have been extended to all the employees with effect from 1.10.87 and the employees who had retired prior to this date have been totally ignored. This Court held that “the effect of this is that employees of the Ajmer State being covered by the order dated 26.5.84 are benefited and those who have retired after 1.10.87 have also been benefited and only small number of persons, who are forming the members of the association stand discriminated”. So far the issue whether the petitioner's members are entitled to the pensionary benefit is concerned, that issue has been answered by the judgment delivered in SB Civil Writ Petition No. 288/89 dated 26.2.91 holding that members of the petitioner association are entitled to the pensionary benefit and this judgment has not been challenged by the state government and it has attained finality. Not only this, but the state government has complied with the directions given in this judgment and started making payment of the pensionary benefits to the members of the petitioner association. The controversy in this petition is limited to the only issue that whether in view of proviso (b) of Rule 10 of the Rajasthan Municipal Services (Pension) Rules, 1989, the respondent could have denied the part of the pensionary benefit to the employees though who were eligible in terms of the length of service rendered by them as provided by sub clause 1 (a) of Rule 10 of the Rules of 1989. The proviso has put a rider and this says that a person who has rendered qualifying service shall be entitled to the pensionary benefit provided the Board has contributed towards C.P.F. and Pension Fund as the case may be. According to the learned counsel for the petitioner assuming for the sake of the argument the Board should have contributed towards the contributory fund and or pension fund as the case may be and if that has not been done by the Board then because of that fault of the Board, the employees cannot be made to suffer and further more it was also the duty of the state government to give benefit of the beneficial legislation to the poor employees for whom as back in the year 1991, this Court has given a declaration that the employees are entitled to the pensionary benefit. It was the duty of the welfare state to see that once a beneficial legislation is enacted then this benefit must go to the employees and particularly when this benefit is in relation to the retired empoloyees it was although more necessary for the welfare state to keep their machines in order so as to deduct and obtain any amount which is required to be deducted and obtained either through agency like Board or even from the employees. The petitioners preferred writ petition as back as in the year 1989 for pensionary benefits and got the relief from this Court in the year 1991 and in the year 1989, the Rules of 1989 were also in force. The respondents in their reply have not given material particulars which they could have given in the light of the averments made by the petitioners so as to make it clear whether the petitioners have been given benefit of the pension for the period for which the Board has contributed towards C.P.F. and Pension Fund and whether the respondents have denied the benefit to any employee from the particular date. In a representative writ litigation, the facts needed to be replied for each of the members in that writ litigation and it is the duty of the respondent to submit the reply to the facts relating to each of the members of the petitioner association because of the reason that once a writ petition is maintainable then this certainly permits the petitioner to plead the cases of its members. It is the duty of the respondent to segregate case of individual to show that one or some of the members of the petitioner association are not entitled to the relief. Certainly, in pension matters, the fact of each employee is relevant and the petitioners first writ petition no. 288/89 was not only entertained but was allowed by this Court and directions issued in that writ petition were followed by the respondent state. Therefore, at the belated stage of second round of litigation in the year 1998 after seven years to the decision of the earlier writ petition in the year 1991, the respondent cannot plead that present writ petition of the same petitioner is not maintainable because it is an unregistered society. It is also clear from the judgment rendered in Writ Petition No. 288/89 that this Court directed the respondent state that the contribution in the provident fund amount paid to the petitioner association shall be adjusted towards arrears of total amount of pension to which they are found entitled from the date of retirement. In totality it was the duty of the respondent to obtain the contribution of the amount from the Municipal Boards referred to above and the entire exercise is required to be undertaken now by the respondent state to find out whether the Municipal Board has contributed towards the C.P.F. and the pensionary fund for the employees in question whose names are in Schedule-A annexed to the present writ petition. At this juncture it is worthwhile to mention that the judgment rendered in SB Civil Writ Petition No. 288/89 dated 26.2.91 came up for consideration before this Court in the case of Association of Retired Employees of Municipal Council, Jodhpur Vs. The State of Rajasthan & Another reported in 1992 Weekly Law Note (UC) 119, and the Division Bench of this Court held that the judgment in SB Civil Writ Petition No. 288/89 dated 26.2.91 is per incurium. The present petition is not for enforcement of that right as created by the judgment delivered in SB Civil Writ Petition No. 288/89 and there was no reason and occasion for the petitioner to seek enforcement of the judgment delivered in writ petition no. 288/89 because of the reason that even state do not choose to challenge that judgment. Rather the state accepted that judgment, implemented it and has given benefit to the petitioners under the judgment years before and, therefore, this is not the issue in this writ petition which sought to be raised during the course of argument by submitting that the judgment of writ petition SB Civil Writ Petition no. 288/89 has been declared per incurium by the Division Bench of the High Court. The petitioners' entitlement till today has not been denied with respect of pensionary benefits and when there is no relief seeking enforcement of that judgment which is declared per incurium At this stage, explanation appended to sub rule 2 of Order 47 C.P.C. will be relevant which clearly says that the fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. Therefore, once the judgment has attained finality no other parties can get its reversal. Therefore, because of the judgment delivered in the case of “Association of Retired Employees of Municipal Council, Jodhpur” (supra), the respondent cannot take any benefit. Further more the issue whether the employees who retired before 1st October, 1987 are entitled to the pensionary benefit also cannot be re-opened on the plea raised by the respondent so far as members of petitioner are concerned. In view of the above reasons, it is held that the question of entitlement of the petitioners to the pension has already been decided by the judgment delivered in the case of Rajasthan Nagar Palika Sewa Niwrat Karamchari Sangh Vs. State of Rajasthan and Others in SB Civil Writ Petition No. 288/89 dated 26.2.91 and cannot be re-opened and therefore the litigation relating to the cut of date cannot debar this court from deciding the writ petition as no purpose can be served by keeping this writ petition pending because of that reason. It is held that the members of the petitioner association are entitled to the pensionary benefit even for the period for which the Board has not contributed towards C.P.F. or pensionary fund. However, while giving payment of arrears if any amount is found due in employees on this count, that amount can be adjusted by the State. In view of the above, this writ petition stands allowed and the respondents are directed to examine the case of each individual petitioner and give benefits to the members of the petitioner Sangh of the pension which has been denied by the application of proviso (b) of rule 10 of the Rules of 1989. The exercise shall be completed by the respondent state within a period of six months from the date of receipt of copy of this judgment. (Prakash Tatia), J. dsr/