LPA No.2137 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.2137 of 2011 (O&M) Date of Decision: November 23, 2011 Uttar Haryana Bijli Vitran Nigam Limited and others .......Appellants Versus Sheela Devi .......Respondent CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA Present: Mr.Narinder Hooda, Advocate for the appellants. <><><> TEJINDER SINGH DHINDSA, J. CM No.5751 of 2011 On account of the averments made in the application, the delay of 76 days in filing the Letters Patent Appeal is condoned. CM No.5752 of 2011 2. C.M. allowed. Annexures A1 and A2 are taken on record. LPA No.2137 of 2011 3. The Uttar Haryana Bijli Vitran Nigam Limited has directed the present Letters Patent Appeal against the judgment dated 3.8.2011 passed by the learned Single Judge in Civil Writ Petition No.727 of 2010 whereby the widow of deceased Zile Singh, Assistant Lineman, has been allowed benefit towards financial assistance in case she exercises her option in the LPA No.2137 of 2011 (O&M) 2 same terms as referred to in the case of Sushila Devi v. State of Haryana and others, 2009(3) SCT 715. 4. Brief facts are that the husband of the respondent, namely, Shri Zile Singh, Assistant Lineman, died on 23.8.004 while in harness. The widow approached the appellant-Nigam to consider her son for compassionate appointment as the family was in extreme financial distress. As no response was forthcoming, a legal notice was also served on 12.4.2008. Ultimately, the respondent was constrained to file the writ petition in this Court seeking directions for the grant of compassionate appointment to her son under the ex-gratia scheme. It is noticed that the Executive Engineer of the appellant-Nigam placed on record a letter dated 26.7.2011 wherein it was stated that there was a complete ban on compassionate appointment under the ex-gratia scheme and respondent was at liberty to exercise her option for a lump sum cash financial assistance of Rs.2.5 lacs only. The learned Single Judge having considered the entire issue ultimately found that the compassionate appointment was not permissible as the claim of the respondent was fairly low in seniority, but, however, held the widow to be entitled to compassionate financial assistance in terms of the Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2006 (for brevity '2006 Rules'). Ultimately, the writ petition was allowed to the extent that in case the widow exercises her option for financial assistance within a period of one month, she would be granted the same in terms of Sushila Devi's case (supra). 5. Mr.Narender Hooda, Advocate for the appellant has been heard at length. The primary contention raised by the learned counsel is that as per LPA No.2137 of 2011 (O&M) 3 the new Ex-gratia Rules, 2006, the respondent's son is not eligible for compassionate appointment under the ex-gratia scheme and the only option available is to opt for a lump sum cash financial assistance of Rs.2.5 lacs. Mr.Hooda states that the appellant-Nigam is still willing to make such payment of Rs.2.5 lacs as financial assistance to the respondent on account of death of Shri Zile Singh, Assistant Lineman on 23.8.2004. Rules 5 and 6 of the 2006 Rules read as follows: “Rule 5. (1) On the death of any Government employee, the family of the employees 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: (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 of 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 the 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. (2) The family shall be eligible to receive family pension as per the normal rules only after the period during which he receives LPA No.2137 of 2011 (O&M) 4 the financial assistance as above is completed. (3) The family of a deceased Government employee who was in occupation of a Government residence would continue to retain the residence on payment of normal rent/licence fee for a period of one year from the date of death of the employee. (4) Within fifteen days from the date of death of a Government employee, an ex-gratia assistance of twenty five thousand rupees shall be provided to the family of the deceased employee to meet the immediate needs on the loss of the bread earner. (5) House Rent Allowance shall not be a part of allowance for the purpose of calculation of assistance.” “Rule 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.” 6. A perusal of the aforementioned provisions would make it apparent that on the death of an employee, his/her family is to continue to receive financial assistance of a sum equal to the pay and other allowances that was last drawn by the deceased employee in the normal course subject to various conditions enumerated in Rule 5. The applicability of the 2006 Rules, even as regards the respondent is concerned in the light of the fact LPA No.2137 of 2011 (O&M) 5 that her husband expired in the year 2004, is covered under Rule 6 which clearly stipulates that all pending cases of ex-gratia assistance shall be covered under the new Rules. 7. The argument raised on behalf of the appellant-Nigam seeking to restrict the financial assistance to a lump sum cash payment of Rs.2.5 lacs is purportedly on the basis of a notification dated 9.8.2007 issued by the Financial Commissioner and Principal Secretary to Government of Haryana which is being viewed as an amendment to the 2006 Rules. It has been asserted that such amendment had been duly adopted by the appellant- Nigam on 6.9.2007. In terms of such notification dated 9.8.2007, referred to hereinabove, in all cases where pension, GPF and leave encashment had already been granted, the dependents of deceased employees were not entitled for pay and allowances last drawn by the deceased except lump sum cash financial assistance of Rs.2.5 lacs. 8. The validity and legality of such purported amendment by virtue of the notification dated 9.8.2007 came up for consideration before a Division Bench of this Court in the matter of Civil Writ Petition No.4074 of 2008, Raj Kumari v. Uttar Haryana Bijli Vitran Nigam Ltd. and others, decided on 29.8.2008, reported as 2008(4) SCT 411. The Division Bench held as follows: “8. The action of the respondents in withdrawing order dated 13.3.2007 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 of the Constitution and the letter dated 9.8.2007 (R-1) LPA No.2137 of 2011 (O&M) 6 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 Constitution Bench judgment of Hon'ble the Supreme Court in the case of Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910, which has been repeatedly followed, relied and applied in a number of cases including Dhananjay Malik v. State of Uttranchal, 2008(2) SCT 659: 2008(3) RAJ 249: (2008) 4 SCC 171 and A.Manoharan v. 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. Therefore, LPA No.2137 of 2011 (O&M) 7 issuance of impugned letters dated 21.9.2007 and 14.1.2008 (P- 6 & P-7) respectively, asking the petitioner to change her option once again by opting for one time lump-sum ex-gratia payment on the basis of the letter of the Financial Commissioner, dated 9.8.2007 as adopted by respondent No.1 on 6.9.2007, would be unsustainable and the same are, thus, liable to be set aside.” 9. The Division Bench has clearly held that the 2006 Rules have been framed under Article 309 of the Constitution of India and the notification dated 9.8.2007 having been issued by the Financial Commissioner and Principal Secretary to Government of Haryana cannot have the effect of amending the rules framed under Article 309 of the Constitution. It has been held that 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. 10. In the light of the decision of a Co-ordinate Bench in the case of Raj Kumari (supra), we cannot accept the plea of the appellant-Nigam that the financial assistance to be granted to the respondent is to be limited to Rs.2.5 lacs only. Her claim for financial assistance is to be seen as per Rule 5 of the 2006 Rules. 11. Mr.Hooda, at this stage, brings to our notice that the appellant- Nigam has filed SLP in the Hon'ble Supreme Court against judgment in Raj Kumari's case (supra) in which notice has been issued. He has also submitted that the contempt proceedings initiated by the petitioner therein before this Court have been stayed by the Hon'ble Supreme Court. However, we have been informed that the operation of the judgment in Raj LPA No.2137 of 2011 (O&M) 8 Kumari's case (supra) has not been stayed. 12. For the reasons recorded above, we see no basis to interfere with the impugned judgment dated 3.8.2011 passed by the learned Single Judge in Civil Writ Petition No.727 of 2010. 13. The Letters Patent Appeal is, accordingly, dismissed. ( PERMOD KOHLI ) ( TEJINDER SINGH DHINDSA ) JUDGE JUDGE November 23, 2011 SRM Note: Whether referred to the Reporter? Yes/No