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Supreme Court of India
Satish Chander Sharma vs The State Of Himachal Pradesh on 16 April, 2025
Bench: Dipankar Datta, Surya Kant
2025 INSC 491
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 179 OF 2018
SATISH CHANDER SHARMA & ORS. PETITIONER(S)
VERSUS
STATE OF HIMACHAL PRADESH & ORS. RESPONDENT(S)
JUDGMENT
UJJAL BHUYAN, J.
Heard learned counsel for the parties.
2. This is a petition filed by three petitioners under
Article 32 of the Constitution of India. Petitioners are retired
officers of Himachal Pradesh State Forest Development
Corporation Limited (briefly ‘the Corporation’ hereinafter).
Signature Not Verified They are aggrieved by denial of pensionary benefits to them in
Digitally signed by
SATISH KUMAR YADAV
Date: 2025.04.16
16:43:26 IST
Reason:
terms of the Himachal Pradesh Corporate Sector Employees
(Pension, Family Pension, Commutation of Pension and
Gratuity) Scheme, 1999 discontinued vide the notification
dated 02.12.2004, which though carved out an exception for
those who had opted for the scheme and had superannuated
prior to 02.12.2004. Hence, they seek a direction to the
respondents for payment of pension to them upon their
superannuation in terms of the said scheme at par with
similarly situated employees who had retired prior to
02.12.2004, by counting their pensionable service from the
date of joining till the date of their superannuation.
3. This issue was earlier raised by a group of petitioners
before the Himachal Pradesh High Court (‘High Court’
hereinafter) by filing writ petitions under Article 226 of the
Constitution of India, the lead case being P.D. Nanda Vs. State
of H.P.1, CWP No. 4425 of 2009. The High Court had allowed
the writ petitions vide the judgment and order dated
19.12.2013 by directing the State to provide pension to the
retired employees of the Corporation in terms of the aforesaid
1
2013 SCC Online HP 5151
2
scheme. This decision was reversed by a two-Judge Bench of
this Court in State of H.P. Vs. Rajesh Chander Sood2.
4. Thereafter, the present writ petition came to be filed
before this Court seeking the same relief. Various contentions
have been raised including the one that the decision in Rajesh
Chander Sood (supra) has ignored several binding precedents
of this Court and is, therefore, a decision rendered per
incuriam.
5. This Court issued notice vide the order dated
20.03.2018. In the said order, a two-Judge Bench of this
Court, after observing that since correctness of this Court’s
judgment in Rajesh Chander Sood (supra) has been
questioned, requested the learned Chief Justice to place the
matter before a three-Judge Bench. This is how the matter has
been placed before the present Bench and heard accordingly.
6. Though learned senior counsel for the respondent-
State has raised a preliminary objection as to maintainability
of the present writ petition, we are of the view that such an
2
(2016) 10 SCC 77
3
objection may be considered while considering the stand of the
respondents.
7. At the outset, it would be apposite to advert to the
relevant facts.
8. The Corporation was incorporated under the
Companies Act, 1956 pursuant to a notification dated
26.03.1974 issued by the Government of Himachal Pradesh. It
is completely owned and controlled by the State Government
inasmuch as 100% of the share capital of the Corporation is
owned by the State of Himachal Pradesh.
9. Petitioner No. 1 was appointed as a Clerk in the
Corporation on 29.10.1975. On 27.03.1981, he was promoted
to the post of Junior Assistant. He was further promoted to the
post of Senior Assistant(Senior Accountant) on 07.11.1984. He
was promoted to the post of Office Manager(Junior) on
03.04.1989 and, thereafter, to the post of Office Manager
(Senior) on 17.11.2011. Petitioner No. 1 superannuated from
service on 31.01.2013.
4
9.1. Petitioner No. 2 was appointed as a Clerk in the
Corporation on 15.02.1988. He was promoted to the post of
Senior Clerk on 15.02.1993 and, thereafter, to the post of
Junior Assistant on 01.01.1996. He was further promoted to
the post of Senior Assistant on 07.09.2009 whereafter he was
promoted to the post of Office Manager (Junior) from which
post he superannuated on 30.09.2016.
9.2. Petitioner No. 3 was appointed to the post of Clerk in
the Corporation on 05.12.1981. He was promoted to the post
of Senior Clerk on 24.05.1985 and, thereafter, to the post of
Junior Assistant on 25.04.1992. He was further promoted to
the post of Senior Assistant on 24.12.1993. On 08.11.2013,
petitioner No. 3 was promoted to the post of Office Manager
(Junior) whereafter he superannuated on 30.11.2014.
10. It is stated that following the revision of pay scales of
government employees by the State Government, the
Corporation also allowed such revision of pay scales.
11. Since the employees of government corporations like
the Corporation enjoyed parity with employees of the State
Government qua all conditions of service, such as, pay scales,
5
allowances etc., the State Government issued a notification
dated 29.10.1999 whereby employees of government
corporations i.e. state public sector undertakings like the
Corporation were extended parity even as regards pensionary
benefits. This scheme was called the Himachal Pradesh
Corporate Sector Employees (Pension, Family Pension,
Commutation of Pension and Gratuity) Scheme, 1999 (referred
to hereinafter as ‘the 1999 Scheme’) and came into effect on
and from 01.04.1999. It was mentioned that all pensionary
benefits of the employees of the corporate sector were to be
determined in accordance with the provisions laid down in the
Central Civil Services (Pension) Rules, 1972 and the Central
Civil Services (Commutation of Pension) Rules, 1981, as
amended, and adopted by the Himachal Pradesh Government
for the state government employees. The 1999 Scheme
contemplated exercise of option by the employees of the
corporate sector as to whether he or she would be governed
under the existing statutory provisions or be governed under
the 1999 Scheme which contemplated creation of a pension
fund. The entire amount of contribution of the concerned
6
public sector undertaking including interest thereon to the
Contributory Provident Fund (CPF) upto 31.03.1999 were to
be transferred to the corpus fund (pension fund) to be
administered and maintained by the Government of Himachal
Pradesh in the Finance Department. It was clarified that the
existing employees who had opted for the 1999 Scheme would
automatically forfeit their claim to the employers’ share of CPF
including interest thereon to the State Government upto
31.03.1999. However, the amount of their subscriptions
alongwith interest would be transferred to the General
Provident Fund (GPF) account, to be allotted and maintained
by the concerned public sector undertaking.
12. It is stated that the Corporation had amended its
byelaws in order to implement the 1999 Scheme. The three
petitioners had exercised their option in favour of the 1999
Scheme since this scheme provided for higher pensionary
benefits.
13. It appears that reservations were expressed regarding
the financial stability of the 1999 Scheme. In the above
backdrop, the State Government constituted a High Level
7
Committee (‘Committee’ hereinafter) in 2003 (21.01.2003) to
review the financial viability of the 1999 Scheme. After a
detailed analysis, the Committee submitted a report on
28.10.2003. The Committee was of the view that the 1999
Scheme was not viable on a self-sustaining basis for the
following reasons:
i) uncertainty in the rate of interest regime;
ii) declining recruitment in the corporate sector
would deplete the size of the corpus to be created
and it would be difficult to honour liabilities
accruing after 10-12 years;
iii) the pension plan envisages payment of pension to
corporate sector employees as is being paid to the
government employees. Government employees at
present are entitled to pension @ 50% of the basic
pay last drawn with linkage to their dearness
allowance. This return does not appear to be
possible from the pension fund proposed to be
created for corporate sector employees.
14. After considering the aforesaid report, Government of
Himachal Pradesh in the Finance Department issued a
notification dated 02.12.2004 whereby the 1999 Scheme was
repealed with immediate effect. It was clarified that consequent
upon the repeal, barring the employees who had retired from
service w.e.f. 01.04.1999 till the date of notification i.e.
02.12.2004, other employees would continue to be covered
8
under those provisions which were applicable to them as on
31.03.1999. While clarifying that the public sector
undertakings would be the pension sanctioning/ disbursing
authority, the employers’ share of CPF including interest
thereon was transferred to the respective public sector
undertakings who were required to form a pension fund. In so
far those employees of the public sector undertakings who had
retired from service during the period w.e.f. 01.04.1999 till the
date of publication of the notification i.e. 02.12.2004, the
repeal notification stated as follows:
Notwithstanding such repeal, the employees of
Himachal Pradesh corporate sector who retired from
service w.e.f. 01.04.1999 till the date of publication of
this notification shall continue to be governed under the
provisions of the scheme so repealed; provided such
retired employees had opted for such scheme and had
otherwise become eligible for pension under the scheme.
15. A large number of writ petitions were filed before the
High Court assailing the notification dated 02.12.2004 and
seeking a direction that pension of the retired employees of the
Corporation should be paid as per the 1999 Scheme. High
Court vide the judgment and order dated 19.12.2013 allowed
all the writ petitions. The cut-off date 02.12.2004 was declared
9
ultra vires but instead of declaring the notification dated02.12.2004 as unconstitutional, the same was read down by
including the writ petitioners and similarly situated employees
who had become members of the 1999 Scheme and had retired
after 02.12.2004 as well as those employees who were already
in service when the 1999 Scheme was notified and had become
members of that scheme and would retire henceforth as
eligible for pension under the 1999 Scheme.
16. The aforesaid decision of the High Court was assailed
by the State before this Court in Rajesh Chander Sood (supra).
A two-Judge Bench of this Court held that it was well within
the authority of the State Government in exercise of its
administrative powers which it had exercised by issuing the
impugned repeal notification dated 02.12.2004 to fix a cut-off
date for continuing the right to receive pension for some and
denying the same to others. The Bench further held that the
government was free to alter its earlier administrative decision
and policy though it should be in consonance with all legal and
statutory obligations. The Bench noted that it was not a case
where the rights which had accrued to the employees under
10
the Employees’ Provident Fund Scheme, 1995 under which the
employees were covered prior to their opting for the 1999
Scheme, had in any manner been altered to their
disadvantage. All that the repeal notification dated 02.12.2004
says is that the concerned employees would be entitled to all
the rights which had accrued to them under the Employees’
Provident Fund Scheme, 1995 and not under the 1999
Scheme. In so far the bona fides of the State Government were
concerned, the Bench observed that the State Government as
a welfare measure had ventured to honestly extend some post-
retiral benefits to the employees of independent legal entities
like the Corporation on the mistaken belief, arising out of a
miscalculation, that the same could be catered out of the
available resources. This measure was adopted by the State
Government not in its capacity as the employer of the
respondent-employees but as a welfare measure. When it
became apparent that the welfare measure extended by the
State Government could not be sustained as originally
understood, the same was withdrawn. Thus, the action of the
State Government was bona fide. State Government had taken
11
a conscious decision and the classification made by the State
Government by fixing 02.12.2004 as the cut-off date was
reasonable and justifiable in law; it also had a nexus to the
object sought to be achieved. In the circumstances, the
decision of the High Court was interfered with.
17. Mr. Gopal Sankaranarayan, learned senior counsel
for the petitioners submits that the present proceeding is
concerned with the pensionary rights and entitlement of the
petitioners. This is also concerned with the correctness of the
judgment rendered in Rajesh Chander Sood (supra). This
Court while issuing notice vide the order dated 20.03.2018,
prima facie, agreed with the contention of the petitioners that
the judgment in Rajesh Chander Sood (supra) required re-
consideration by a three-Judge Bench.
17.1. Learned senior counsel submits that the judgment in
Rajesh Chander Sood (supra) is not good law and is per
incuriam as it fails to consider binding precedents of coordinate
and larger benches of this Court. Further, in the said
judgment, the Bench contradicted itself by acknowledging the
12
vested right of the employees under the 1999 Scheme but
denying the benefits accruing therefrom to them.
17.2. Learned senior counsel has referred to paragraphs 69,
70, 71 and 72 of the judgment in Rajesh Chander Sood (supra)
and submits that the Bench had recorded a finding that having
exercised their option for the 1999 Scheme and having forgone
all their rights under the Employees Provident Fund Scheme,
1995, the employees concerned would be covered by the 1999
Scheme. As soon as they came to be covered by the 1999
Scheme, a contingent right came to be vested in them. As a
matter of fact, the Bench had rejected the contention of the
State that the rights of the employees under the 1999 Scheme
would be vested only upon attaining the age of superannuation
and accepted the contention advanced by the employees that
any employee governed by a pension scheme, would be entitled
to the benefits therefrom on attaining the qualifying service
immediately on his enrolment in the said scheme, particularly,
when they had expressly chosen to forgo their rights under the
Employees’ Provident Fund Scheme, 1995.
13
17.3. Adverting to clause 1(2) of the 1999 Scheme, it is
submitted by the learned senior counsel for the petitioners
that the terms of clause 1(2) are clear and unambiguous. By
way of incorporation, the Central Civil Services (Pension)
Rules, 1972 and the Central Civil Services (Commutation of
Pension) Rules, 1981, stood applicable to the employees upon
their opting for the 1999 Scheme.
17.4. In Rajesh Chander Sood (supra), after acknowledging
the vested right of the pensioners, this Court considered the
issue of cut-off date. He submits that while this Court has
upheld fixation of a cut-off date for extending better and higher
pensionary benefits, there are no precedents whereby a cut-off
date for discontinuing the right to receive pension, inter se, a
homogeneous class has been sustained. He submits that
reliance placed on the decisions of this Court in R.R. Verma Vs.
Union of India3 and BALCO Employees’ Union Vs. Union of
India4, was wholly misplaced as those two decisions were
rendered in different contexts.
3
(1980) 3 SCC 402
4
(2002) 2 SCC 333
14
17.5. He further submitted that the judgment in Rajesh
Chander Sood (supra) sustaining the retrospective withdrawal
of the 02.12.2004 notification whereby and whereunder
pensionary rights of only those who had superannuated
between 01.04.1999 and 02.12.2004 were saved as opposed to
saving such rights of all those employees who were in service
between 01.04.1999 and 02.12.2004 was explicitly contrary to
the principles laid down by this Court in a large number of
judgments. If the 1999 Scheme had to be repealed due to the
purported object i.e. financial burden on the State, repealing
of the same by not saving the rights of all those already covered
under the 1999 Scheme would be violative of Article 14 of the
Constitution of India.
17.6. Learned senior counsel submits that the cut-off date
postulated by the notification dated 02.12.2004 providing that
benefits under the 1999 Scheme would be available to those
who had retired between 01.04.1999 and 02.12.2004 (date of
the notification) thereby dividing a homogeneous class without
having any reasonable nexus with the object sought to be
achieved would be violative of Article 14 of the Constitution of
15
India. In this connection, he has referred to and relied upon
the Constitution Bench decision of this Court in D.S. Nakara
Vs. Union of India5. He submits that prior judgments of this
Court wherein similar cut-off dates based on the date of
retirement were struck down by this Court were not considered
in Rajesh Chander Sood (supra).
17.7. Mr. Gopal Sankaranarayan, learned senior counsel
submits that the right to receive pension is a vested right and
once the petitioners had opted for the 1999 Scheme, the same
could not have been withdrawn, that too, unilaterally on the
ground that the State did not have the financial means to
support the scheme. Right to receive pension is not dependent
upon the finances of the State. It was improper for the State
Government to shrug away its responsibility post-introduction
of the 1999 Scheme by labelling it as a self-financing pension
fund created under the 1999 Scheme. This critical aspect was
over-looked in Rajesh Chander Sood (supra).
17.8. He further submits that contention of the employees
based on Article 300A of the Constitution of India was also
5
(1983) 1 SCC 305
16
summarily rejected by the Bench without any independent
analysis. When this Court had recognized that the 1999
Scheme created a vested right on the employees, such a
statutory right to receive pension would be in terms of the
Central Civil Services (Pension) Rules, 1972. Such a statutory
right therefore has to be construed as a property right under
Article 300A of the Constitution of India.
17.9. He, therefore, submits that Rajesh Chander Sood
(supra) is not a good law and is per incuriam. The present writ
petition seeking pensionary rights of the petitioners as per the
1999 Scheme may, thus, kindly be allowed by this Court.
18. Per contra, Mr. Devadatt Kamat, learned senior
counsel representing the State of Himachal Pradesh submits
that the present writ petition filed under Article 32 of the
Constitution of India is totally misconceived inasmuch as the
issue raised in the writ petition i.e. entitlement of the
petitioners to pension under the 1999 Scheme at par with
similarly situated employees of the Corporation who had
retired between 01.04.1999 and 02.12.2004 has already been
17
decided by this Court in Rajesh Chander Sood (supra) . On this
ground alone, the writ petition is liable to be dismissed.
18.1. Thereafter, learned senior counsel has adverted to the
facts of the present case and submits that all the issues raised
in the present proceeding were raised in Rajesh Chander Sood
(supra) and adjudicated by this Court.
18.2. Learned senior counsel submits that the High Court
had allowed the earlier batch of writ petitions vide the
judgment and order dated 19.12.2013. This was challenged by
the State before this Court in Rajesh Chander Sood (supra)
which came to be decided on 28.09.2016. Though the present
petitioners had superannuated before that, they did not join
the aforesaid proceedings. As a matter of fact, they did not also
participate in the proceedings before the High Court. Much
after their superannuation, they filed the present writ petition.
There is, thus, considerable delay and laches on the part of the
petitioners in approaching this Court which would, therefore,
disentitle them to any relief.
18.3. Learned senior counsel vehemently argues that the
present writ petition is nothing but a collateral challenge to a
18
binding judgment of this Court in Rajesh Chander Sood
(supra). It is not open to the petitioners to raise the same set
of grounds urged in Rajesh Chander Sood (supra) which were
rejected by this Court. A writ petition cannot be filed to doubt
the correctness of a decision of this Court, he submits.
18.4. Learned senior counsel submits that the principle of
per incuriam is not at all attracted to the facts of the present
case. There is no glaring omission of law and precedent to
constitute per incuriam.
18.5. On the merits of the case, learned senior counsel
submits that financial viability or non-viability was a valid
consideration taken into account by the State while issuing the
repeal notification. The High Level Committee had examined
the issue threadbare and, thereafter, submitted report. Based
on the report of the High Level Committee, the repeal
notification was issued.
18.6. Learned senior counsel submits that petitioners were
not employees of the State Government and, therefore, they
cannot seek service benefits including retiral benefits at par
with State Government employees. State Government had
19
introduced the 1999 Scheme as a welfare measure for the
employees of public sector undertakings like the Corporation
as a welfare State and not as an employer. But when it was
found that available resources were inadequate for funding the
1999 Scheme, the same was withdrawn. However, the interest
of those employees who had opted for the 1999 Scheme and
had retired before issuance of the repeal notification were
protected inasmuch as they were held to be entitled to the
benefits under the 1999 Scheme. The intention was not to
deprive the employees who had retired during the subsistence
of the 1999 Scheme.
18.7. Therefore, he submits that fixation of the date of
issuance of the repeal notification as the cut off date for
allowing those employees who had retired prior thereto to be
entitled to the benefits under the 1999 Scheme, cannot be said
to be arbitrary and violative of Article 14 of the Constitution of
India.
18.8. Learned senior counsel asserts that the 1999 Scheme
was an outcome of a policy decision of the State Government.
Withdrawal of the same is also within the realm of policy
20
making. There is no arbitrariness in such withdrawal.
Principle of natural justice cannot be extended to such a
situation. In the circumstances, learned senior counsel
Mr. Kamat submits that there is no merit at all in the writ
petition, besides being not maintainable. He, therefore, seeks
dismissal of the writ petition.
19. Submissions made by learned counsel for the parties
have received the due consideration of the Court. A large
number of decisions have been cited at the Bar by both the
sides. Those have been considered. However, reference would
be made to only those decisions found relevant and necessary.
20. At the outset, let us examine as to how the High Court
had dealt with the issue. In P.D. Nanda (supra), High Court
held that the moment the employees became members of the
1999 Scheme, they had acquired a vested right and therefore
they were required to be heard before they were taken out of
the ambit of the 1999 Scheme. High Court observed that when
the 1999 Scheme was framed and notified on 29.10.1999
having effect from 01.04.1999, the State Government was
aware of all the legal implications but there was remissness on
21
the part of the State Government as well as the public sector
undertakings towards implementation of the 1999 Scheme.
The public sector undertakings were required to immediately
transfer the funds at their disposal towards creation of the
corpus fund. When the employees had opted for the 1999
Scheme, they automatically ceased to be members of the
previous 1995 Scheme. Therefore, withdrawal of the 1999
Scheme was improper. Though the High Court found the
notification dated 02.12.2004 to be bad in law, it expressed
the view that to effectuate the purport of the 1999 Scheme,
the said notification was required to be read down by
including those employees who became members of the
scheme and had retired before 02.12.2004 as entitled to the
benefits under the 1999 Scheme, instead of declaring the
same to be unconstitutional. High Court also rejected the
contention of the State Government that the 1999 Scheme
could not be implemented due to financial crunch. While
allowing the writ petitions, High Court declared the cut-off
date of 02.12.2004 to be ultra vires. The repeal notification dated
02.12.2004 was read down by including those writ petitioners
22
and similarly situated employees for the purpose of pensionary
benefits. High Court held as follows:
80. Accordingly, in view of the analysis and discussion
made hereinabove, all the writ petitions are allowed. The
cut-off date 02.12.2004 is declared ultra vires.
Notification dated 02.12.2004 is read down to save it
from unconstitutionality, irrationality, arbitrariness or
unreasonableness by including the petitioners and
similarly situated employees also, who had become
members of the scheme notified on 29.10.1999 and have
retired after 02.12.2004 and those employees who were
already in service when the pension scheme was notified
on 29.10.1999 and had become members of that scheme
and shall retire hereinafter, for the purpose of
pensionary benefits after applying the principle of
severability. The Regional Provident Fund
Commissioner, Shimla is directed to transfer the entire
amount of the CPF to a corpus fund to be administered
and maintained by the Government of Himachal
Pradesh in the Finance Department including upto date
interest, within a period of two weeks. Thereafter, the
Pension Sanctioning Authority is directed to sanction
the pension/gratuity/commutation of pension after
proper scrutiny of the cases forwarded by the concerned
Public Sector Undertaking and issue pension payment
order to the Pension Disbursing Authority strictly as per
23
para 6 of the scheme notified on 29.10.1999 with
interest @ 9% per annum, within a period of 12 weeks
from today. Pending application(s), if any, also stand
disposed. No costs.
21. This decision of the High Court was challenged by the
State Government before this Court in Rajesh Chander Sood
(supra). This Court first posed the question as to whether a
vested right came to be created in the employees of the
corporate bodies when they came to be governed by the 1999
Scheme. On due consideration, this Court expressed the view
that such employees who had exercised their option to be
governed by the 1999 Scheme came to be regulated by the said
scheme immediately on their having submitted their option. In
addition, all those employees who did not exercise any option
were automatically deemed to have opted for the 1999 Scheme.
As soon as the concerned employees came to be governed by
the 1999 Scheme, a contingent right stood vested in them. On
the question as to whether such a contingent right was binding
and irrevocable, this Court held that the same was not binding
on the State Government. Before dealing with the said issue,
this Court examined the question as to whether the State
24
Government was justified in postulating a cut-off date by
which some of the employees governed by the 1999 Scheme
(those who had retired prior to 02.12.2004 were entitled to
draw pension under the 1999 Scheme whereas those who had
not retired by the time the repeal notification was issued on
02.12.2004 were denied such benefit), the above question was
answered by this Court in the following manner:
75. Having given our thoughtful consideration to the
issue canvassed, and having gone through the
judgments cited, we are of the considered view that this
Court has repeatedly upheld a cut-off date, for extending
better and higher pensionary benefits, based on the
financial health of the employer. A cut-off date can,
therefore, legitimately be prescribed for extending
pensionary benefits, if the funds available cannot
assuage the liability, to all the existing pensioners. We
are, therefore, satisfied to conclude that it is well within
the authority of the State Government, in exercise of its
administrative powers (which it exercised, by issuing the
impugned Repeal Notification dated 02-12-2004) to fix a
cut-off date, for continuing the right to receive pension
in some, and depriving some others of the same. This
right was unquestionably exercised by the State
Government, as determined by this Court, in R.R. Verma25
case [R.R. Verma v. Union of India, (1980) 3 SCC 402:
1980 SCC (L&S) 423] , wherein this Court held that the
Government was vested with the inherent power to
review. And that the Government was free to alter its
earlier administrative decisions and policy. Surely, this
is what the State Government has done in the present
controversy. But this Court in the abovementioned
judgment, placed a rider on the exercise of such power
by the Government. In that, the exercise of such power
should be in consonance with all legal and statutory
obligations.
21.1. A contention was raised on behalf of the employees
that by application of the principle of estoppel/ promissory
estoppel, the State should not have gone back on the 1999
Scheme by issuing the repeal notification dated 02.12.2004.
This Court repelled the above contention as under:
79. We are of the considered view that the principle of
estoppel/promissory estoppel cannot be invoked at the
hands of the respondent employees, in the facts and
circumstances of this case. It is not as if the rights which
had accrued to the respondent employees under the
Employees’ Provident Fund Scheme, 1995 (under which
the respondent employees were governed, prior to their
being governed by the 1999 Scheme) have in any
manner been altered to their disadvantage. All that was26
taken away, and given up by the respondent employees
by way of foregoing the employer’s contribution up to 31-
3-1999 (including the accrued interest thereon), by way
of transfer to the corpus fund, was restored to the
respondent employees. All the respondent employees,
who have been deprived of their pensionary claims by
the Repeal Notification dated 02-12-2004, would be
entitled to all the rights which had accrued to them,
under the Employees’ Provident Fund Scheme, 1995. It
is, therefore, not possible for us to accept that the
respondent employees can be stated to have been made
to irretrievably alter their position, to their detriment.
Furthermore, all the corporate bodies (with which the
respondent employees, are engaged) are independent
juristic entities, as held in State of Assam v. Barak
Upatyaka D.U. Karmachari Sanstha [State of
Assam v. Barak Upatyaka D.U. Karmachari Sanstha,
(2009) 5 SCC 694 : (2009) 2 SCC (L&S) 109] . The mere
fact that the corporate bodies under reference, are fully
controlled by the State Government, and the State
Government is the ultimate authority to determine their
conditions of service, under their articles of association,
is inconsequential. Undoubtedly, the respondent
employees are not government employees. The State
Government, as a welfare measure, had ventured to
honestly extend some post-retiral benefits to employees
of such independent legal entities, on the mistaken
27
belief, arising out of a miscalculation, that the same can
be catered to, out of available resources. This measure
was adopted by the State Government, not in its
capacity as the employer of the respondent employees,
but as a welfare measure. When it became apparent that
the welfare measure extended by the State Government,
could not be sustained as originally understood, the
same was sought to be withdrawn.
21.2. Therefore, this Court held that it was not possible in
law to apply the principle of estoppel/ promissory estoppel to
the facts of the present controversy.
21.3. As regards the financial viability of the 1999 Scheme,
this Court held thus:
84. Moving to the next contention. A serious dispute has
been raised before us, in respect of the financial viability
of the 1999 Scheme. Insofar as the appellant State is
concerned, it was asserted on its behalf, that a High-
Level Committee was constituted by the Finance
Department of the State Government on 21-1-2003. The
said committee comprised of Managing Directors of the
public sector undertakings and corporations concerned.
The task of the High-Level Committee was to examine
the financial viability of the 1999 Scheme. The said
committee submitted a report dated 28-10-2003,
28
returning a finding that the 1999 Scheme was not
financially viable, and would not be self-sustaining. It is,
therefore, that a tentative decision was taken by the
State Government, to withdraw the 1999 Scheme.
85. To determine the modalities for withdrawing the
1999 Scheme, on the basis of the above report, the
matter was jointly examined by the Finance Department
and the Law Department of the State Government,
wherein, in consonance with the advice tendered by the
Law Department it was decided that the 1999 Scheme
should not be withdrawn retrospectively. Based on the
advice of the Law Department, it was finally decided that
those who had commenced to draw pensionary benefits
under the 1999 Scheme, would not be deprived of the
same. And that, the 1999 Scheme should be withdrawn
prospectively, for those whose right to receive
pensionary benefits had not arisen, as they had not yet
retired from service. In the above view of the matter, it
was contended on behalf of the State Government that
the action of the State Government in issuing the Repeal
Notification dated 2-12-2004, was certainly not an
arbitrary exercise of the power of administrative review.
It was submitted that the same was based on two
factors. Firstly, the financial unviability of the scheme.
And secondly, those who had already commenced to
draw pensionary benefits under the 1999 Scheme, were
not to be affected. It was, therefore, pointed out that the
29
classification made by the State Government was
reasonable and justifiable in law, and it also had a nexus
to the object sought to be achieved.
86. It is in the above scenario that the legality and
justiciability of the 1999 Scheme, will have to be
examined. The submission advanced at the behest of the
respondent employees was that it was not permissible
for the State Government to advance any such plea,
because the State Government must be deemed to have
examined the financial viability of the Scheme, before
the 1999 Scheme was given effect to. And that, it does
not lie in the mouth of the State Government, after giving
effect to the 1999 Scheme, to assert that the 1999
Scheme was not financially viable. It was insisted that
even if data pertaining to the financial viability of the
Scheme, as was sought to be relied upon was correct,
financial deficiencies, if any, could be catered to by the
State Government, from the vast financial resources
available to it. And further, that the 1999 Scheme in
terms of the determination rendered by the High Court,
even if permitted to be repealed, should not impact the
rights of the respondent employees, towards pensionary
benefits.
87. We have given our thoughtful consideration to the
above contention. It is not possible for us to accept the
instant contention, advanced on behalf of the
30
respondent employees. The calculations projected at the
behest of the State Government, to demonstrate the
financial unviability of the Scheme, have not been
disputed. The same have been detailed in paras 10 and
11 above. The basis thereof, projected by the High-Level
Committee, admittedly constitutes the rationale for
issuing the Repeal Notification dated 02-12-2004. We
are of the view that the consideration at the hands of the
State Government was conscious and pointed, and was
supported by facts and figures. It is apparent that out
of 17 corporations/boards who were invited to express
their views on the issue, only 7 had actually done so. It
is not the case of the respondent employees that any one
of those who had expressed their views, contested the
fact that the pension scheme was not self-financing.
Those who expressed their views affirmed that the
pension scheme could be salvaged only with government
support. Those who did not express their views,
obviously had no comments to offer. The position
projected by the State Government, therefore, cannot be
considered to have been effectively rebutted. Certain
facts and figures, have indeed been projected, on behalf
of the respondent employees. These have been recorded
by us in paras 60 and 61. Financial calculations cannot
be made casually, on a generalised basis. In the absence
of any authenticity, and that too with reference to all the
20 corporate entities specified in Schedule I of the 1999
31
Scheme, the projections made on behalf of the
respondent employees, cannot be accepted, as
constituting a legitimate basis, for a favourable legal
determination. Since the respondent employees have
not been able to demonstrate that the foundational basis
for withdrawing the 1999 Scheme, was not premised on
any arbitrary consideration, or alternatively, was not
founded on any irrelevant consideration, it is not
possible for us to accept the contention that the
withdrawal of the 1999 Scheme, was not based on due
consideration, or that, it was irrational or arbitrary or
unreasonable. We are also satisfied that the action of the
State Government, in allowing those who had already
started earning pensionary benefits under the 1999
Scheme, was based on a legitimate classification,
acceptable in law. In the above view of the matter, the
action of the State Government cannot be described as
arbitrary, and as such, violative of Article 14 of the
Constitution of India. We are also satisfied in concluding
that the understanding of the State Government (which
had resulted in introducing the 1999 Scheme) on being
found to be based on an incorrect calculation, with
reference to the viability of the corpus fund (to operate
the 1999 Scheme), had to be administratively reviewed.
And that the State Government’s determination in
exercising its power of review, was well founded.
32
21.4. Having held so, this Court accepted the contention
canvassed on behalf of the State that budgetary allocations are
a matter of policy decision and that the High Court should not
have transferred the financial liability of the Corporation to run
the 1999 Scheme to the State Government. This Court held as
follows:
88. It is also not possible for us to accept that any court
has the jurisdiction to fasten a monetary liability on the
State Government, as is the natural consequence, of the
impugned order passed by the High Court, unless it
emerges from the rights and liabilities canvassed in the
lis itself. Budgetary allocations, are a matter of policy
decisions. The State Government while promoting the
1999 Scheme, felt that the same would be self-financing.
The State Government never intended to allocate
financial resources out of State funds, to run the
pension scheme. The State Government, in the instant
view of the matter, could not have been burdened with
the liability, which it never contemplated, in the first
place. Moreover, it is the case of the respondent
employees themselves, that a similar pension scheme,
floated for civil servants in the State of Himachal
Pradesh, has also been withdrawn. The State
Government has demonstrated its incapacity, to provide
the required financial resources. We are, therefore, of
33
the view that the High Court should not (as it could not)
have transferred the financial liability to run the 1999
Scheme, to the State Government. Similar suggestions
made by the corporate bodies concerned, cannot
constitute a basis for fastening the residuary liability on
the Government.
21.5. This Court rejected the contention of the employees
that they should be treated similarly like government
employees. Claim for parity with government employees was
held to be wholly misconceived. Thereafter, this Court held
that the State Government had the competence to repeal the
1999 Scheme. By doing so, the State Government had not
curtailed the right of the employees to receive pension; they
would continue to receive pension under the erstwhile pension
scheme but would not get the additional benefits under the
1999 Scheme.
22. Though learned senior counsel for the petitioners had
argued that the judgment in Rajesh Chander Sood (supra) is
per incuriam, we are unable to hold so. This Court had given
elaborate reasons while allowing the civil appeal of the State
thereby reversing the judgment of the High Court, including
34
upholding the cut-off date of 02.12.2004. Merely because
according to the petitioners the reasons given in the judgment
while accepting the stand of the State may not be in sync with
previous decisions, it cannot be said to be a judgment rendered
per incuriam. The concept of per incuriam is too well settled to
warrant a detailed analysis here. The judgment rendered in
Rajesh Chandra Sood (supra) by no stretch can be said to have
ignored any binding precedent. Hence, the same cannot be
said to be a judgment rendered per incuriam.
23. From the above, it is evident that the contentions that
are being raised now were all advanced before this Court in
Rajesh Chander Sood (supra) and those were all adjudicated.
It is not open for the petitioners to once again seek the same
reliefs as was sought in the earlier round of litigation which
were negatived by this Court. High Court had allowed the claim
of the employees (petitioners of the previous round and
similarly situated employees like the present petitioners).
When this Court had set aside the judgment of the High Court,
it is evident that the claim of not only those petitioners but
similarly situated employees (like the present petitioners) were
35
also negatived. Therefore, there cannot be any challenge either
directly or collaterally to the decision of this Court in Rajesh
Chander Sood (supra) in a proceeding under Article 32 of the
Constitution of India.
24. In Naresh Shridhar Mirajkar Vs. State of
Maharashtra6, a nine-Judge Bench of this Court considered
the question as to whether a judicial order passed by the High
Court prohibiting publication in newspapers of evidence given
by witnesses pending the hearing of the suit was amenable to
be corrected by a writ of certiorari under Article 32(2) of the
Constitution of India. Other issues were also gone into by this
Court but that may not be relevant for the purpose of the
present discourse. After deliberating on the facts and law, this
Court opined that validity or propriety of such an order passed
by the High Court could not be raised in writ proceedings
taken out for the issuance of a writ of certiorari under Article
32. This Court declared that it was impossible to accept the
argument of the petitioners that judicial orders passed by the
6
AIR 1967 SC 1
36
High Courts in or in relation to proceedings pending before
them are amenable to be corrected by this Court under Article
32 of the Constitution of India.
25. This Court in Sub-Inspector Sadhan Kumar Goswami
Vs. Union of India7, considered a writ petition filed under
Article 32 of the Constitution of India seeking to reopen a
judgment of this Court rendered under Article 136 of the
Constitution of India. After an analysis of the facts, this Court
declared that merely because the petitioners were not parties
to the previous decision, they could not file a writ petition
under Article 32 of the Constitution of India. In fact, this Court
took serious exception to the filing of such writ petitions.
26. Rupa Ashok Hurra Vs. Ashok Hurra8 was a case where
a Constitution Bench of this Court considered the question as
to whether a writ petition under Article 32 of the Constitution
of India can be maintained to question the validity of a
judgment of this Court after the petition for review of the said
judgment was dismissed. While deliberating upon the said
7
(1997) 2 SCC 225
8
(2002) 4 SCC 388
37
question, this Court referred to its previous decision in A.R.
Antulay Vs. R.S. Nayak9 where a seven-Judge Bench of this
Court held that an order of this Court was not amenable to
correction by issuance of a writ of certiorari under Article 32
of the Constitution of India. Rupa Ashok Hurra (supra), of
course, went on to hold that to prevent abuse of its process
and to cure gross miscarriage of justice, this Court may
reconsider its judgment(s) in exercise of its inherent power. For
that, this Court provided for a curative jurisdiction post-
dismissal of review petition by filing curative petition. In the
present proceedings, we are not required to delve into the
contours of curative jurisdiction.
27. This Court in Omprakash Verma Vs. State of Andhra
Pradesh10 reiterated the well-settled principle that a judgment
of the Supreme Court cannot be collaterally challenged on the
ground that certain points had not been considered.
28. Again, in the case of Indian Council for Enviro-Legal
Action Vs. Union of India11, this Court held that a writ petition
9
(1988) 2 SCC 602
10
(2010) 13 SCC 158
11
(2011) 8 SCC 161
38
filed under Article 32 of the Constitution of India assailing the
correctness of a decision of the Supreme Court on merits or
seeking reconsideration is not maintainable. Referring to its
earlier decision in Khoday Distilleries Ltd. Vs. Registrar
General, Supreme Court of India 12, the Court held that
reconsideration of the final decision of the Supreme Court after
review petition is dismissed by way of a writ petition under
Article 32 of the Constitution of India cannot be sustained.
Judgment and order of this Court passed under Article 136 of
the Constitution of India is not amenable to judicial review
under Article 32 of the Constitution.
29. Thus, law is well settled that a decision rendered by
this Court, be it at the stage of special leave petition or post
grant of leave while exercising jurisdiction under Article 136 of
the Constitution of India, cannot be assailed directly or
collaterally under Article 32. Remedy of an aggrieved litigant is
to file for review. If the grievance persists even thereafter, he
may invoke the curative jurisdiction subject to compliance of
the requirements of such jurisdiction. But certainly it is not
12
(1996) 3 SCC 114
39
open for him to file a writ petition under Article 32 of the
Constitution of India seeking the same relief.
30. Therefore, it is crystal clear that the present writ
petition is thoroughly misconceived and is liable to be
dismissed. However, before parting with the record, we would
like to emphasize and reiterate the principle of finality of an
adjudication process. Finality of a lis is a core facet of a sound
judicial system. Litigation which had concluded or had
reached finality cannot be reopened. A litigant who is aggrieved
by a decision rendered by this Court in a special leave petition
or in a civil appeal arising therefrom can seek its review by
invoking the review jurisdiction and thereafter through a
curative petition. But such a decision cannot be assailed in a
writ proceeding under Article 32 of the Constitution of India. If
this is permitted, then there will be no finality and no end to
litigation. There will be chaos in the administration of justice.
31. In Green View Tea & Industries Vs. Collector 13, this
Court expressed the view that finality of an order of the
Supreme Court should not lightly be unsettled. This salutary
13
(2002) 1 SCC 109
40
principle was reiterated by this Court in Indian Council for
Enviro-Legal Action Vs. Union of India14.
32. Thus, having regard to the discussions made above,
we are of the unhesitant view that the present writ petition
filed under Article 32 of the Constitution of India is wholly
misconceived. The decision of this Court in Rajesh Chander
Sood (supra) is clearly binding on the petitioners. That being
the position, there is no merit in the writ petition which is
accordingly dismissed.
33. Considering the fact that petitioners are retired
employees and senior citizens, we refrain from imposing any
cost.
..……………………………J.
[SURYA KANT]
……………………………..J.
[DIPANKAR DATTA]
……………………………..J.
[UJJAL BHUYAN]
NEW DELHI;
APRIL 16, 2025.
14
(2011) 8 SCC 161
41
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