CIVIL WRIT PETITION NO.3653 OF 2009 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: JULY 02, 2009
Babita Rani
.....Petitioner
VERSUS
State of Haryana and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. Jagbir Malik, Advocate,
for the petitioner.
Mr. Harish Rathee, Sr.DAG, Haryana,
for the respondents.
****
RANJIT SINGH, J.
Petitioner, a widow of a Constable working with Haryana
Police at Sonepat, has filed this writ petition, seeking quashing of an
order, whereby her claim for grant of financial assistance as per
Haryana Compassionate Assistance to the Dependents of Deceased
Government Employees Rules, 2006 (for short, “2006 Rules”) has
been rejected. She has also prayed for mandamus directing the
respondents to pay her monthly financial assistance under 2006
Rules due to her on account of the death of her husband, who was
the only bread earner in the family.
The respondent-Government though possessed with vast
resources is unjustified in rejecting the claim of the petitioner without
CIVIL WRIT PETITION NO.3653 OF 2009 :{ 2 }:
caring to read 2006 Rules. Rather the action of the respondent
authorities in depositing the payment of Rs.5 lacs to the family of the
deceased employee during January 2009 and to deny the
applicability of 2006 Rules is unfair. This certainly should not be an
approach on the part of welfare State towards the family of its
deceased employee.
The facts necessary to have the hang of the issues
involved may be noticed. The husband of the petitioner expired on
10.2.2006 while on duty. Government had framed rules dated
18.11.2005, regulating the compassionate assistance or appointment
on compassionate grounds to members of family of deceased
Government employee who died while in service or missing
Government employee.
Ex-gratia assistance of Rs.5 lacs was payable to the
family which did not opt for ex-gratia employment or where no such
employment could be offered within a period of three years from the
date of application. This was over and above all other service
benefits to the dependent members of the family. With effect from
1.8.2006, the respondent-Government framed 2006 Rules repealing
the earlier Rules dated 18.11.2005 referred to above. Through 2006
Rules, the Government has brought in some major changes
regarding compassionate assistance to the family of the deceased
Government employee. It is now provided in these rules that on
death of any Government employee, his family would continue to
receive as financial assistance a sum equal to the pay and other
allowances that was last drawn by the deceased employee in the
normal course without raising a specific claim in the following
CIVIL WRIT PETITION NO.3653 OF 2009 :{ 3 }:
manner:-
“a. For a period of fifteen years from the date of death of
the employee, if the employee at the time of his death had
not attained the age thirty-five years.
b. for a period of twelve years or till the date the employee
would have retired from Government service on attaining
the age of superannuation, whichever is less, if the
employee at the time of his death had attained the age of
thirty-five years but had not attained the age of forty-eight
years;
c. for a period of seven years or till the date of employee
would have retired from Government service on
attaining the age of superannuation, whichever is less,
if the employee had attained the age of forty-eight
years.”
The family shall be eligible to receive family pension as
per normal rules only after the period during which he receives the
financial assistance as noted above is completed. This assistance is
in addition to remain in occupation of a Government residence in
occupation of deceased Government employee on payment of
normal rent/licence fee. Rule 6 of 2006 Rules provides that all
pending cases of ex-gratia assistance shall be covered by these new
rules. As per Rule 6 of 2006 Rules, the families have been given
option to opt for lump-sum ex-gratia grant as regulated by earlier
Rules framed in the year 2003 or 2005 in lieu of monthly assistance
provided under 2006 Rules. Though 2005 Rules stands repealed but
this is subject to the right of the family to opt for lump-sum ex-gratia
CIVIL WRIT PETITION NO.3653 OF 2009 :{ 4 }:
assistance in terms of 2006 Rules.
It is averred in the writ petition that the petitioner
submitted her option on 3.12.2007 for grant of financial assistance
for monthly sum equal to the pay and allowance drawn by her late
husband in terms of 2006-Rules (though she was not required to
raise a specific claim). Copy of the representation is on record of the
writ petition as Annexure P-3. When the Government did not take
any action on the said representation, the petitioner followed it up
with another representation dated 4.2.2008, claiming the said relief.
Government still did not move. The petitioner then served a notice
dated 2.5.2008 on the respondents as a final demand notice for
justice-cum-advance notice of writ petition. The respondent-
Government still remain unmoved. The petitioner thereafter filed Civil
Writ Petition No.21579 of 2008 before this Court, which was
disposed on 23.12.2008 with a direction to the respondents to decide
the legal notice dated 2.5.2008 within a period of two months from
the date of receipt of copy of the said order. Respondents, thus, were
forced to deal and decide the claim of the petitioner. Instead of
granting the prayer made by the petitioner for payment in terms of
2006 Rules, which was clearly admissible, the respondents sought
the account number of the petitioner and then deposited a sum of
Rs.5 lacs in the said account on 31.1.2009. Respondents, thus,
rejected the claim of the petitioner for payment of monthly sum
equal to the pay and allowance drawn by her late husband as was
claimed. It is stated that the petitioner is not entitled to the benefit of
sum equivalent to monthly salary as sought by her in terms of 2006-
rules. This order (Annexure P-8) passed by the respondents has
CIVIL WRIT PETITION NO.3653 OF 2009 :{ 5 }:
now been impugned by the petitioner through the present writ
petition.
On a notice being issued, reply on behalf of respondent
Nos.1 to 4 has been filed by respondent No.4. It is stated that the
present writ petition is not maintainable as ex-gratia assistance
amounting to Rs.5 lacs has already been paid to the petitioner. The
respondents would point out that the death of late husband of the
petitioner was prior to 1.8.2006 as he died on 10.2.2006 and hence,
the petitioner is not entitled to get the compassionate assistance of a
sum equal to pay and other allowances drawn by her late husband in
terms of 2006-Rules. Plea is that the petitioner can not be granted
monthly assistance as she has been paid ex-gratia payment of Rs.5
lacs.
A little application of mind would have informed the
respondent that the claim made by the petitioner was fully justified in
terms of the provision made in 2006-Rules itself. The respondent
could still have seen reasons when they were put to notice of this writ
petition. The pleas being raised now to pray for denying the relief to
the petitioner would reflect not only the non-application of mind but
insensitive approach on the part of the respondents towards the
family of its deceased employee which had lost a bread-earner. The
laudable aim of the rules is to help the family to tide over emergent
situation seems to have been lost sight by the respondents.
The husband of the petitioner died on 10.2.2006 but still
the ex-gratia payment of Rs.5 lacs was made to the petitioner only on
31.1.2009 that too after she had approached this Court leading to
passing of the order requiring the respondents to decide her claim. If
CIVIL WRIT PETITION NO.3653 OF 2009 :{ 6 }:
2005-Rules were to govern the case of the petitioner, then she
should have been released this amount soon after the death of her
husband on 10.2.2006. Respondent would be at great difficulty in
applying 2005-Rules to make this ex-gratia payment to the petitioner.
Perusal of 2005-Rules would show that ex-gratia financial assistance
of Rs.5 lacs is to be paid in cases where family does not opt for ex-
gratia employment or where no such appointment can be offered
within a period of 3 years from the date of making application. This
ex-gratia assistance is only granted when ex-gratia appointment on
compassionate grounds is not opted for by the family or the post is
not available. There is nothing on record to show that the petitioner
had opted for payment of ex-gratia financial assistance of Rs.5 lacs.
All this, however, would now be academic as 2005-Rules
were repealed w.e.f. 1.8.2006 and till this date, the case of the
petitioner had not been finalized and, thus, was pending. Rule 6 of
2006-Rules, thus, would come into play and would regulate the grant
of financial assistance. This rule clearly provide that all pending
cases of ex-gratia assistance shall be covered under the new Rules.
As per this Rule, ex-gratia lump-sum grant as provided in 2003 or
2005-Rules can be granted only if it is so opted by the families in lieu
of monthly financial assistance provided under 2006-Rules. As
already noted, 2005-Rules have been repealed by 2006-Rules and
could validly govern the grant of ex-gratia payment only if so opted by
the family. The record would show that the petitioner has opted for
monthly financial assistance in terms of 2006-Rules and, thus, could
not have been paid ex-gratia lump-sum grant of Rs.5 lacs under the
rules, which stood repealed. Rule 6 of 2006-Rules unambiguously
CIVIL WRIT PETITION NO.3653 OF 2009 :{ 7 }:
provide that all pending cases of ex-gratia assistance shall be
covered under the new rules (2006-Rules). On the face of such clear
and categoric rule position, there would have been no scope of any
doubt but the respondents have still choose to plead this unfair
stand. Rule 6 of 2006-Rules reads as under:-
“”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.”
In the absence of Rule 6, the respondents could have had
some justification to say that these Rules would not apply to the
cases where death had taken place prior to the coming into force of
2006 Rules but on the face of Rule 6, they certainly can not be
permitted to make such a plea. Without doubt, the case of the
petitioner was pending on 1.8.2006, when 2006 Rules came into
operation, though the death of her husband was prior to this date.
The petitioner has clearly averred in Para 5 of the petition that she
had opted for grant of financial assistance in terms of 2006-Rules
and these averments have been admitted by the respondents. Still, it
is stated that as per the instructions of the Government, the petitioner
is not entitled to get compassionate financial assistance in terms of
CIVIL WRIT PETITION NO.3653 OF 2009 :{ 8 }:
2006-Rules. This stand of the respondent-Government is clearly in
violation of the provisions of Rule 6 of 2006 Rules and, thus, is totally
misconceived. The respondents could have had some justification to
take this stance if the case of the petitioner had been finalized prior
to 1.8.2006. Concededly, a sum of Rs.5 lacs was deposited in the
accounts of the petitioner on 31.1.2009 and that too after the
direction by this Court on 23.12.2008, passed on an earlier writ
petition filed by the petitioner. The averments made to this effect in
Para 11 of the petition have again not been denied by the
respondents. The action of the respondents, thus, in not applying
2006-Rules for providing monthly financial assistance to the
petitioner is clearly unsustainable. Division Bench of this Court in the
case of Raj Kumari Vs. Uttar Haryana Bijli Vitran Nigam Ltd. And
others, 2008 (4) SCT 411, has viewed that all pending cases of ex-
gratia assistance are to be covered under 2006-Rules. There is, thus,
no scope of any doubt in this regard and even Rule 6 is abundantly
clear that all pending cases of ex-gratia assistance are to be covered
under 2006-Rules. Though not required but the petitioner has
already opted for assistance under 2006-Rules and lump-sum ex-
gratia payment could have been made to the petitioner only if she
had opted for the same as provided under Rule 6.
The action of the respondent-Government, thus, in
rejecting the claim of the petitioner for payment of sum equal to pay
and other allowances last drawn by the deceased husband of the
petitioner has been illegally and wrongly rejected and can not be
sustained. The writ petition is allowed and order, Annexure P-8
passed by respondent No.4 is set-aside. Direction is hereby issued
CIVIL WRIT PETITION NO.3653 OF 2009 :{ 9 }:
to the respondents to pay sum equal to pay and other allowances
that was last drawn by the deceased husband of the petitioner in
terms of Rule 5 of `2006 Rules’ in addition to the other benefits, to
which the petitioner is entitled to in terms of the said Rules. Since the
ex-gratia payment of Rs.5 lacs has been deposited in the accounts of
the petitioner without her consent and she has now been held
entitled to monthly financial assistance under 2006 Rules, she would
be required to return this amount of Rs.5 lacs. Let her do so by way
of cheque/draft in the name of respondent No.4 within a period of
one month from today. The petitioner would be entitled to the monthly
financial assistance from the date of notification of `2006 Rules’ as
provided under Rule 6 of 2006-Rules. Since there is no justification
on the part of the respondents in delaying the payment of this ex-
gratia payment to the petitioner, I see no justification in directing the
petitioner to return this amount with interest as prayed by the State
counsel. Rather, I would find justification in directing the payment of
the amount due to the petitioner, which is payable from 1.8.2006 with
interest at the rate of 6% per annum from the date it is due to the
date of payment. If the amount due is not released within a period of
six weeks from today, then the respondents should pay the amount
with 9% interest per annum from the date it is due to the date of
payment. On the other hand, if the petitioner fails to refund the ex-
gratia payment received by her within the time as directed, then
interest as awarded shall not be payable.
July 02, 2009 ( RANJIT SINGH ) khurmi JUDGE