CIVIL WRIT PETITION NO.3564 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: NOVEMBER 26, 2009 Bimla Devi and others .....Petitioners 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. Sandeep K. Sharma, Advocate, for the petitioners. Mr. Yashwinder Singh, AAG, Haryana, for the State. **** RANJIT SINGH, J. Though the Government has formulated a Scheme to provide for ex-gratia financial assistance on compassionate grounds to members of the family of the deceased Government employee who dies while in service but such cases are hardly decided with any compassion. As a result, large number of dependents of the deceased employees are made to approach the Court for grant of necessary relief. This is not only an added burden on the already burdened Courts but is a source of great harassment for a dependent CIVIL WRIT PETITION NO.3564 OF 2009 :{ 2 }: of an employee who is in need of immediate assistance. On some earlier occasion, it was impressed upon the Government officials through the State counsel to consider such cases in the light of the settled position of law so as to avoid unnecessary litigation before this Court. It was also emphasized that person should not be forced to approach the Court with the same issues which are decided and are settled. Yet there has been no improvement seen and cases of compassionate assistance are rejected in routine, forcing the people to approach the Court for seeking the relief on the grounds which are fully settled by the judicial precedents. This does not reflect very happy situation. With the above position in mind, Civil Writ Petition Nos.3564 of 2009 (Bimla Devi and others Vs. State of Haryana and others), 3663 of 2009 (Umesh Devi Vs. State of Haryana and others) , 5080 of 2009 (Om Pati Vs. State of Haryana and others), and 1428 of 2009 (Usha Rani Vs. State of Haryana and others) are taken up for hearing together and are being disposed of through this common order by awarding an exemplary costs to bring home the point so that this unnecessary litigation is brought to an end. It will be rather sad to notice that the present cases are the such where the compassionate assistance was allowed to the petitioners on the basis of the Rules position but the same has been withdrawn subsequently without justification. The justification, as is offered in the present cases, was a subject matter of consideration by this Court and has been negatived. Still the orders are being passed in routine on the basis of same very instructions which have been held invalid by this Court in more than one case. This tendency CIVIL WRIT PETITION NO.3564 OF 2009 :{ 3 }: needs to be curbed with a hope that the authorities would start applying their mind. The facts, in brief, of Civil Writ Petition No.3564 of 2009 are that the petitioners are the legal heirs of deceased Shyam Lal, who was serving in the office of the Superintendent of Police, Jhajjar as Exemptee Head Constable. Late Shyam Lal met with an accident and breathed his last on 15.6.2006. The petitioners, being legal heirs of the deceased employee, were given pensionary benefits. The petitioners also applied for compassionate assistance as per the Rules framed by the Government. While the case of the petitioners was under consideration, the Government notified new Rules known as Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2006 (for short, “2006 Rules”). The petitioners were entitled to opt for assistance under 2006 Rules in terms of Paragraph 6 of the rules and upon exercise of their option in this regard, they were granted financial assistance of a sum equal to pay and other allowances that were last drawn by late Shyam Lal. Order in this regard was duly passed, copy of which has been placed on record as Annexure P-4. As per the Rules, the petitioners were not entitled to get pension with effect from 1.8.2006, which is the date from which they were entitled to draw the pay and allowances under the Scheme. The petitioners, thus, continued to receive the financial assistance from 1.8.2006 to July 2008. Suddenly, w.e.f. July 2008, without assigning any reason and without affording any opportunity, the payment of the financial assistance was discontinued. The petitioners would rightly term this action to be illegal and arbitrary. The petitioners made representation on CIVIL WRIT PETITION NO.3564 OF 2009 :{ 4 }: 26.9.2008 and in response, they received a communication dated 15.12.2008, asking them to give their written consent for receipt of lump-sum payment of Rs.five lacs as ex-gratia payment in terms of Compassionate Assistance Rules, 2005 applicable prior to 2006 Rules. The petitioners accordingly have approached this Court against this action of the respondents. In response, the respondents have placed reliance on a letter issued by Chief Secretary, Haryana, on 8.6.2007, which is issued by way of clarification to Accountant General, Haryana. It is stated in this communication that where the death has occurred prior to 1.8.2006 and where PPO and GPO has been issued by the office, then person can not opt for new Scheme introduced w.e.f. 1.8.2006. It is then stated that the husband of petitioner No.1 died on 15.6.2006 and pension was released w.e.f. 16.6.2006. So, it is stated that 2006 Rules would not be applicable in this case. It is accordingly stated that the compassionate assistance already granted has been withdrawn. Almost similar are the facts in Civil Writ Petition No.3663 of 2009. The petitioner is a wife of late exemptee Head Constable Sajjan Singh, who met with an accident while on duty with S.P., Jhajjar and expired on 15.6.2006. Like in the above-noted case, the petitioner was granted financial assistance under 2006 Rules, which she received from 1.8.2006 to July 2008. The same has been withdrawn, against which the petitioner filed a representation on 2.9.2008. Like in the other case, the petitioner herein also received a communication for giving consent of receipt of lump-sum payment under 2005 Rules. She is again before the Court to impugn this CIVIL WRIT PETITION NO.3564 OF 2009 :{ 5 }: order. Petitioner in Civil Writ Petition No.5080 of 2009 is an unfortunate wife of Sadhu Singh who was working as Agriculture Development Officer and died on 8.8.2005. The petitioner applied for job for her son, who is stated to be highly qualified. In response, she received a communication on 27.9.2006 to give option if she wanted to be governed by 2006 or 2005 or 2003 Rules for grant of financial assistance. On 26.10.2006, the petitioner opted for consideration of financial assistance in terms of 2006 Rules. Sanction was duly granted for compassionate assistance through a letter issued on 1.12.2006. In her case also, a letter was issued on 12.5.2008 to withdraw the approval already granted and a sum of Rs.2.5 lacs was sanctioned as a compassionate assistance in terms of 2003 Rules. Feeling aggrieved against the same, the petitioner is, thus, before the Court. The case of the petitioner in Civil Writ Petition No.1428 of 2009 is not much different. She is a widow of Constable Baljinder Singh who died on 4.9.2005. The petitioner submitted a representation to S.P., Jhajjar, for appointment as a Constable in place of her husband under the Compassionate Appointment Scheme. Her case was forwarded to the Director General of Police, Haryana. After due consideration, D.G.P., allowed the grant of financial assistance to the petitioner in terms of 2006 Rules. She was, thus, granted financial assistance of a sum equal to pay and allowances last drawn by her late husband through an order dated 9.3.2007. The petitioner continued to receive this financial assistance, which was stopped w.e.f. August 2008. She was sent a CIVIL WRIT PETITION NO.3564 OF 2009 :{ 6 }: letter on 15.12.2008, asking for consent to receive lump-sum compensation of Rs.2.5 lacs. After serving a legal notice to the respondents, the petitioner is also before this Court to impugn this action of the respondents. It is, thus, seen that in all the above noted cases the compassionate assistance was granted to the respective petitioners in terms of 2006 Rules. This was a legally correct and valid decision in terms of the Rules. The order granting financial assistance has been withdrawn and in justification, reference, in all these cases is made to the communication issued by Chief Secretary, Haryana. This very communication has been subject matter of adjudication by a Division Bench of this Court and it has been viewed that the executive/administrative or clarification can not be issued to amend the statutory rules framed under Article 309 of the Constitution. This view is well known to the respondents. Still, they would insist upon defending their action which can be termed as illegal. More than one opportunity were granted to the State counsel to have instructions and to allow the financial assistance in terms of 2006 Rules, to which the petitioners in all these cases were legally entitled to. On 17.9.2009, the case was adjourned to enable the Government counsel to see if the respondents themself would reconsider the issue. On 6.10.2009, the State counsel made a statement before the Court that the relief claimed in the writ petitions is under active consideration of the respondents especially in view of the law laid down by this Hon'ble Court. Still nothing was done and an attempt was made again to defend this action. It would be seen that a similar issue arose before a CIVIL WRIT PETITION NO.3564 OF 2009 :{ 7 }: Division Bench of this Court in Raj Kumari Vs. Uttar Haryana Bijli Vitran Nigam Ltd. and others, 2008 (4) SCT 411 and it has been held that all pending cases of ex gratia are to be covered under 2006 Rules. This was also a case where the ex gratia payment having been allowed was withdrawn on the basis of a letter issued by the Financial Commissioner. The Division Bench of this Court held that executive/administrative or clarification cannot amend the statutory rules framed under Article 309 of the Constitution. Thus, the justification given by the respondents to withdraw the assistance after having provided the same to the petitioner is wholly unjustified, unwarranted and cannot be sustained. It may also be noticed that the respondents have rightly granted the ex-gratia financial assistance to the petitioners in all these cases under 2006 Rules. The action to withdraw this compassionate assistance, apparently is misconceived. Rule 6 of 2006 Rules categorically provides that ex- gratia assistance shall be covered under the new rules. It is only that the families effected will have the option to opt for lump sum ex-gratia grant provided under Rules 2003 or 2005 in lieu of monthly financial assistance. In these cases, the petitioners had sought monthly financial assistance on being apprised by the Rule position as contained in 2006 Rules. Thus, they did not opt for lump sum ex- gratia grant provided under Rules 2003 or 2005. Their claim had not been finalised when the new rules came into existence w.e.f 1.8.2006. As per Rule 6, the pending cases are to be covered by the new Rules. Thus, 2006 Rules will clearly apply to the cases of the petitioners. This aspect has already been considered by this Court in Civil Writ Petition No.3653 of 2009 (Babita Rani Vs. State of Haryana CIVIL WRIT PETITION NO.3564 OF 2009 :{ 8 }: and others), which was allowed on 2.7.2009. Even the aspect of the applicability of previous rules on the ground that death was prior to 1.8.2006 was considered by this Court in Babita Rani's case (supra) and it is observed as under:- “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 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.” There is, thus, no justification on the part of the respondents to either withdraw the financial assistance or to defend the same in view of the law as laid down above. The respondents CIVIL WRIT PETITION NO.3564 OF 2009 :{ 9 }: continued to be adament which would show them in poor light. The respondents had an option to challenge the orders passed by the court but once these have acquired finality, then these are required to be followed. It is because of inappropriate action on the part of the respondents that the persons like the petitioners have to file these petitions before this Court for seeking same relief, which ought to have been allowed by the respondents themselves. The respondents themselves should be responsible for the welfare of their employees and their dependents. The action of the respondents certainly is such which has not only resulted in wasting the time of this Court but has forced the helpless poor petitioners to incur substantial amount for getting the relief, which is due to them as a matter of right. The writ petitions are accordingly allowed. The petitioners are held entitled to monthly financial assistance from the date of notification of 2006 Rules i.e. 1.8.2006. The payment due to the petitioners be released within a period of one month from the date of receipt of copy of this order. The petitioners would be entitled to receive the financial assistance from the date it was discontinued. Since the petitioners have been made to file this unnecessary litigation, they are held entitled to exemplary costs, which are assessed as Rs.20,000/- in each case. November 26, 2009 ( RANJIT SINGH ) khurmi JUDGE