CWP No.13407 of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.13407 of 2008
Decided on : 04.03.2009
Krishna Devi
....Petitioner
VERSUS
State of Haryana and others
....Respondents
CORAM:- HON’BLE MR. JUSTICE AJAY TEWARI
Present:- Mr. G. P. Singh, Advocate
for the petitioner.
Mr. Harish Rathee, Sr. DAG, Haryana.
AJAY TEWARI J.
The husband of the petitioner was murdered while on duty on
23.06.1998. She applied for compassionate appointment of her son on
08.09.1998 as per the Government instructions under ex-gratia schemes on
attaining majority as per the existing instructions and practices and the name
of the son of the petitioner was kept on the waiting register at Sr. No.31 on
17.09.1998.
Learned counsel for the petitioner states that in the year 2003,
Government of Haryana framed rules on compassionate appointment and
also made a provision for grant of assistance to the tune of Rs.2.50 lakh in
case the family of the deceased Government employee opts for the same or
there is no vacancy to be offered to the dependents. Vide letter dated
06.12.2005, she was informed that no financial assistance could be given to
her under the 2003 Rules as the benefit of compassionate appointment or
CWP No.13407 of 2008 -2-
financial assistance could only be given within three years and as three
years had already passed so no benefit could be granted to the petitioner.
It is further stated that in the year 2005 Government again
framed rules regarding appointment on compassionate ground. The lump
sum amount of financial compensation was increased to Rs.5.00 lacs. As
matters stand, neither she or her son was given a job nor the lump sum
assistance, which has resulted in the filing of this writ petition.
Learned counsel for the petitioner has restricted his claim to the
grant of assistance under the Haryana Compassionate Assistance to the
Dependents of the Deceased Government Employees Rules, 2006 policy.
Clauses 6 and 8 of which are reproduced herein below:-
“6. All pending cases of ex-gratia assistance shall be
covered under the new rules. The calculation of the period
and payment shall be made to such cases from the date of
notification of these rules. However, the families will have
the option to opt for the lump sum ex-gratia grant provided
in the Rules, 2003 or 2005, as the case may be, in lieu of the
monthly financial assistance provided under the Haryana
Compassionate Assistance to the Dependents of the
Deceased Government Employees Rules, 2006.
8. The Haryana Compassionate Assistance to the
Dependents of Deceased Government Employees Rules,
2005, which are in force immediately before the
commencement of these rules are hereby repealed:
Provided that families will have the option to opt for
the lump sum ex-gratia grant provided in the rules 2003 or
CWP No.13407 of 2008 -3-2005, as the case may be, in lieu of the monthly financial
assistance provided under these rules:
Provided further that in all pending cases where the
family exercises the option to receive the financial
assistance under these rules, the calculation of the period
and payment shall be made from the date of notification of
these rules.”
In view of the above, learned counsel for the petitioner states
that the petitioner would be satisfied if the assistance be granted to the
petitioner in terms of Clauses 6 and 8 (supra).
Learned counsel for the petitioner has relied upon the case of
Raj Kumari V. Uttar Haryana Bijli Vitran Nigam Ltd. and others
reported as 2008(4) RSJ 765 wherein a Division Bench of this Court held as
follows:-
“6. All pending cases of ex-gratia assistance shall be
covered under the new rules – The calculation of the period
and payment shall be made to such cases from the date of
notification of these rules. However, the families will have
the option to opt for the lump sum ex-gratia grant provided.
In the Rules, 2003 or 2005, as the case may be, in lieu of
the monthly financial assistance provided under the
Haryana Compassionate Assistance to the Dependents of
the Deceased Government Employees Rules, 2006.”
A perusal of the aforementioned rule shows that all
pending cases of ex-gratia assistance are to be covered
under the 2006 Rules and the payments is required to be
CWP No.13407 of 2008 -4-made from the date of notification of these rules i.e.
1.8.2006 (P-9). An option has been given to the families to
opt for lump sum ex-gratia grant provided in the 2003
Rules or 2005 Rules in lieu of the monthly financial
assistance under the 2006 Rules. Accordingly, the
petitioner has been rightly given the benefit of these rules
by passing order dated 13.03.2007 (P-5).
8. The action of the respondents in withdrawing order
dated 13.03.2007 on account of subsequent amendment, on
that basis the amendment made by the State of Haryana on
9.8.2007 (R-1) is absolutely unwarranted and, therefore,
unsustainable in the eyes of law because the 2006 Rules
have been framed under Article 309 of the Constitution and
the letter dated 9.8.2007 (R-1) has been issued by the
Financial Commissioner and Principal Secretary to
Government of Haryana. It is well settled that an order
passed by the Financial Commissioner cannot have the
effect of wiping the rules framed under Article 309 of the
Constitution, which in the present case were framed on
1.8.2006 (P-9). A perusal of the notification dated
1.8.2006 shows that the 2006 Rules have been framed
under Article 309 of the Constitution. It is trite to observe
that the rules framed under Article 309 of the Constitution
cannot be varied, substituted or amended even by issuing
executive instructions under Article 162 of the
Constitution. In that regard reliance may be placed on a
CWP No.13407 of 2008 -5-Constitution Bench judgment of Hon’ble the Supreme
Court in the case of Sant Ram Sharma Vs. State of
Rajasthan, AIR 1967 SC 1910, which has been repeatedly
followed, relied and applied in a number of cases including
Dhananjay Malik Vs. State of Uttaranchal, 2008(4) SCC
171 and A. Manoharan vs. Union of India, 2008(3) SCC
641, wherein it has been held that in any case such
executive instructions cannot be given retrospective effect.
In the present case, a letter issued by the Financial
Commissioner, which can not even regarded as executive
instructions under Article 162 of the Constitution, has been
relied upon by the respondents to argue that the 2006 Rules
framed under Article 309 of the Constitution (P-9) stand
abrogated to adversely affect the rights of the petitioner.
Such an argument apparently would not be acceptable.
The petition stands disposed of in the above terms.”
Consequently, this writ petition is allowed and the relief now
sought by the learned counsel for the petitioner is granted. The respondents
are directed to accept option of the petitioner for assistance as per 2006
policy. The necessary benefits be released to the petitioner within two
months from the date of receipt of a certified copy of this order.
March 04, 2009 ( AJAY TEWARI ) ashish JUDGE