CWP No. 635 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 635 of 2009 Date of Decision: May 14, 2009 Darshani Devi ...... Petitioner Versus State of Haryana and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr. Raghubir Tejpal, Advocate for the petitioner. Mr. Harish Rathee, Senior DAG, Haryana. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. The husband of the petitioner who was serving in police department died in a road accident on 18.6.2006. The petitioner received financial assistance i.e. a sum equal to the pay and other allowances that was last drawn by her late husband and she got the same uptil March, 2008 but later on it was stopped in pursuance of Chief Secretary's letter No. 10366 dated 28.02.2008. She claims that she is entitled to get assistance as per 2006 policy. Learned counsel for the petitioner states that as per 2006 policy CWP No. 635 of 2009 2 all the pending matters for ex gratia financial assistance shall be covered under the new rules. The petitioner has served a legal notice upon the respondents to which the only reply is that the matter has been sent for clarification to the Government. In the written statement the benefit of the 2006 policy is sought to be denied on the ground that the death of the husband of the petitioner took place on 18.6.2006 whereas the 2006 policy came into effect on 1.9.2006. Learned counsel for the petitioner has also 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 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 CWP No. 635 of 2009 3 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 Constitution Bench judgment of Hon'ble the Supreme Court in the case of Sant Ram Sharma Vs. State of CWP No. 635 of 2009 4 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 restore financial assistance to the petitioner 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. (AJAY TEWARI) JUDGE May 14 , 2009 sunita