Satish Chander Sharma vs The State Of Himachal Pradesh

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 dated

02.12.2004 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. Verma 25 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 was

26 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