High Court Punjab-Haryana High Court

Krishna Devi vs State Of Haryana And Others on 4 March, 2009

Punjab-Haryana High Court
Krishna Devi vs State Of Haryana And Others on 4 March, 2009
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