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Judgment
K. Chandru, J.—These two contempt petitions have been filed by two different Petitioners seeking to punish the Respondents herein for
having disobeyed the order passed by this Court in W.P. Nos. 30017 and 30016 of 2005 respectively. By the common judgment dated
30.10.2006, this Court disposed of the aforesaid writ petitions filed by the Petitioners. In paragraphs 12 to 14 of the said judgment, this Court
directed as follows:
Perused all the provisions of the Act and nowhere it is stated that those who have participated in the agitation in 1986 are not entitled to claim
any pension.
The Petitioners has produced the relevant record disclosing that the Petitioners were arrested along with others and were detained in jail and also
prosecuted and it is for the purpose of protesting the implementation of Hindi in the state of Tamil Nadu and for promoting their regional language
Tamil, the mother tongue of the State. Hence, the Petitioners are entitled for pension as provided under Act 23 of 1983.
It is absurd to mention in the impugned order that the persons participated in 1986 agitation are not entitled for pension, when the statement
and the objectives of the Act are to encourage the mother tongue and progressive of the officials and positive steps have been taken by the citizen.
Apart from the State machinery, it is the duty of the officials of the State at all such to encourage such activity. Therefore, a copy of this order is
marked to the Chief Secretary of the State to issue necessary instructions to all officers of the State to implement the Act of the State for the
betterment of the State.
In the result, the writ petition is allowed and the Respondents aredirected to disburse the pension to the Petitioners strictly in accordance with
theAct within 30 days from the date of receipt of a copy of this order. In theinstant case, the Petitioners were arrested and detained in prison from
27.11.1986. Therefore, the Petitioners are entitled to claim pension from the said date. Nocosts. Consequently, connected WPMP is closed.''
Since the said order was not obeyed, the present contempt petitions came to befiled.
On notice from this Court, the first Respondent - District Collector, Salem has filed a common counter affidavit, dated 03.11.2008. In the
common counter affidavit, it was averred that the Petitioners claimed pension for having participated in Hindi Agitation in the year 1986. Pursuant
to the order passed by this Court, the Petitioners gave their representations to the first Respondent on 26.3.2007, who in turn called for report
from the Revenue Divisional Officer, Attur. Thereafter, the Revenue Divisional Officer, Attur conducted a due enquiry and after perusing the
relevant Government Orders and the copies of the judgments of the Supreme Court and the High Court, rejected the request made by the
Petitioners by an order dated 28.5.2007 stating that pension can be granted only to those who participated in the Hindi Agitation in the year 1965.
The Government by their letter dated 18.11.1996 had informed that those who participated in the Hindi Agitation during the year 1986-87 are
not eligible for pension and there was no proposal to grant pension to those people. Even for persons who are drawing pension, the Government
passed order in G.O. Rt. No. 468, Tamil Development, Religious Endowment and Information Department, dated 23.11.2007 stopping pension in
respect of those who had participated in the Anti-Hindi Agitation. The District Collector also stated by his proceedings dated 29.9.2008, that he
was not in a position to recommend the case of the Petitioners for Tamil Scholar pension in accordance with the rules and decision of the Hon''ble
Supreme Court and the High Court.
A reference was also made to the judgment of the Supreme Court in R.R. Dalavai Vs. The State of Tamil Nadu, . It was also claimed that the
Government Pleader was consulted in this regard and he was of the opinion that in view of the judgment in R.R. Dalavai''s case, cited supra, such
pension can never be granted. It was submitted that they have not committed any willful disobedience of the orders of this Court and if any such
disobedience was committed, it was not intentional. They also sought for an unconditional apology from this Court.
Mr. P. Jagadeesan, learned Counsel appearing for the Petitioners brought to the notice of this Court that the Government had passed a new
enactment under Tamil Nadu Act 23 of 1983, viz., Tamil Nadu Payment of Pensions to Tamil Scholars and Miscellaneous Provisions Act, 1983
introducing sanction of pension or grant of scholarships to those who have exhibited courage or nobility in their zeal to preserve the growth of
Tamil language or Tamil culture or exhibited conspicuous talents in Tamil language and to provide for the sanction of pension or grant to the families
of persons who have evinced remarkable enthusiasm for Tamil language or Tamil culture, and while striving to uphold their enthusiasm for Tamil
language or for the preservation of Tamil culture, lost their life.
But it is not the case of the Petitioners that they have sought for pension under the provisions of the aforesaid Act. Mr. P. Jagadeesan also
referred to two Government Orders in G.O. Ms. No. 136, Tamil Development, Religious Endowment and Information Department, dated
17.4.2008 and G.O. Ms. No. 313, Tamil Development, Religious Endowment and Information Department, dated 29.8.2008 and contended that
the Government by the aforesaid orders granted a monthly pension along with medical allowance for several persons as recommended by the High
Power Committee and by the second Government order, the Government had extended the benefit to several other persons and, therefore, it
cannot be said that the Petitioners can be denied pension on untenable grounds.
The Petitioners cannot go behind the case projected by them before the learned Judge. Their only case was that they should be paid pension on
account of their participation and subsequent incarceration due to Anti Hindi Agitation, which was accepted by the learned single Judge.
In the counter affidavit, it was clearly stated by the Respondents thatsuch a pension cannot be granted in the light of the R.R. Dalavai''s case,
citedsupra, and the Government itself had stopped the pension earlier given to suchpersons in the light of G.O. Rt. No. 468, Tamil Development,
Religious Endowment andInformation Department, dated 23.11.2007. In Dalavai''s case, the Supreme Court inparagraphs 4 to 9 had observed as
follows;
The High Court said that the State Legislature has control over purse and that in the view of the State Legislature the agitators against Hindi
fought for a cause and therefore, those who are eligible should be granted pension. The High Court found that if a scheme, is provided which is not
destructive of the Directive Principles but aimed at ameliorating those who the legislature thought deserve that treatment Article 351 was not
violated.
The High Court found that because of Appropriation Act No. 33 of 1974 it could not be said that payment was illegal.
In our opinion the pension scheme formulated by the Tamil Nadu Government contains the vice of disintegration and fomenting fissiparous
tendencies. If any State will be engaged in exciting emotion against Hindi or any other language such provocation has to be nipped in the bud
because these are anti-national and anti democratic tendencies.
The Madras Budget Manual 4th Edition was referred to by the Appellant.
The appreciation in the present case shows that a fund was kept apart to meet the pension scheme. There is no legislative sanction for such pension
scheme. The Government by an executive order could not authorise payment of pension scheme.
The Appellant is right in his contention that the pension scheme is unconstitutional and the budget sanction is equally unconstitutional.
For these reasons, the judgment of the High Court is set aside.
A mandamus will go directing the Respondent to forbear from implementing the pension scheme. The State will be competent to claim refund of
moneys illegally and unconstitutionally paid.
Subsequently, a writ petition was also filed before this Court by Madras Provincial Consumers Association and Freedom Fighters'' Association
represented by its President in W.P. No. 4565 of 1997 seeking for a writ of prohibition prohibiting the State Government from granting pension to
the Hindi language agitators out of tax payers'' money. That writ petition was allowed on 08.10.2003 after following the judgment in Dalavai''s
case, cited supra, against which, the State preferred an appeal in WA.SR. No. 89407 of 2005 belatedly with an enormous delay of 1094 days. A
Division Bench of this Court by a judgment dated 26.3.2007 refused to entertain the writ appeal and refused to condone the delay. During the
course of the proceeding before the Division Bench, the State referred to the subsequent enactment of Tamil Nadu payment of Pension to Tamil
Scholars and Miscellaneous Provisions Act, 1983 (Tamil Nadu Act 23 of 1983). Even that was not taken note of validating the earlier pension.
Therefore, left with no other remedy, the State Government has issued G.O. Rt. No. 468, dated 23.11.2007 and scrapped the pension paid to
those who participated in the Anti Hindi agitation. The Petitioners have not questioned all those above proceedings and by clearly suppressing
those developments, they have secured the order before the learned Single Judge on 30.10.2006, which gave rise to the contempt proceedings.
This Court is satisfied with the explanation offered by the Respondents. In the given case, the Respondents are unable to implement the order
passed by this Court due to reasons beyond their control and certainly, contempt proceedings cannot be used to punish such officials. In this
regard, it is necessary to refer to the judgment of the Supreme Court in Mohd. Iqbal Khanday Vs. Abdul Majid Rather, , wherein it has been held
that impossibility of performance can be a legitimate defence in the contempt petition. The following passages found in paragraphs 14 to 16 of the
said judgment may be usefully reproduced below:
The law of contempt is based on sound public policy by punishing any conduct which shakes the public confidence in the administration of
justice. The order dated 21-9-1992 while directing notice also required the Appellant to accord promotion to the Respondent as Associate
Professor. It requires to be noticed here that is the main prayer in the writ petition itself. In such circumstances, the correctness of such an interim
order is open to serious doubt. For a moment, it is not to be understood that the court has no power to pass such an order but the question is
whether while granting such interim reliefs the discretion of the court has been correctly exercised? If the writ petition is ultimately dismissed, the
Respondent would have gained an undue advantage of getting a promotion undeservedly. But we are not on the merits of the interim order.
Right or wrong, the order has been passed. Normally speaking, it cannot be gainsaid that the order ought to have been obeyed but it appears
that there are insuperable difficulties in implementing the order. First is that the post of Associate Professor, according to the Respondent, is a
selection post. Secondly, the mere seniority, even if that is assured in favour of the Respondent, would not be enough to gain such a promotion.
Thirdly, the specific order of the Government was to exclude the period of deputation on foreign assignment from reckoning the duration of the
teaching experience of the Respondent. Therefore, the Respondent did not possess the requisite qualification. Fourthly, such necessary
qualifications seem to be mandatory under the rules. That being the position to accord such a promotion, will be violative of the rules. Fifthly, the
promotion could be granted only by the Public Service Commission and not by the Appellant.
From the above, it appears that the Appellant was expressing his genuine difficulties with regard to the implementation of the order dated 21-
9-1992. In such a situation the insistence of the courts on implementation may not square with realities of the situation and the practicability of
implementation of the court''s direction. In our considered view, hooking a party to contempt proceedings and enforcing obedience to such orders
hardly lends credence to judicial process and authority; more so, in the peculiar facts and circumstances of the case. The court must always be
zealous in preserving its authority and dignity but at the same time it will be inadvisable to require compliance of an order impossible of compliance
at the instance of the person proceeding against for contempt. Practically, what the court by means of the contempt proceedings seeks is an
execution which cannot meet with our approval.
In view of the above, there is no case made out to punish the Respondents.
Hence, both the contempt petitions stand dismissed.