C.W.P No. 12068 of 2006(O&M) ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M No.3662 of 2009 and C.W.P No. 12068 of 2006 Date of decision : April 02, 2009 Lajawati, ...... Petitioner (s) v. State of Haryana and others, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. S.N.Yadav, Advocate for the petitioner. Mr.Harish Rathee, Sr. DAG Haryana for the respondents. *** 1. Whether Reporters of Local Newspapers 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 C.M.No.3662 of 2009 For the reasons stated therein, C.M is allowed and the main case is taken up for hearing today. C.W.P No.12068 of 2006 The husband of the petitioner while working as Head Constable in the Haryana Police died on 3.8.2002. The petitioner applied for compassionate appointment of her son on 29.11.2002 as per the Government instructions under ex-gratia schemes on attaining majority. C.W.P No. 12068 of 2006(O&M) ::2:: However, her claim both for compassionate appointment as well as for grant of financial assistance has been rejected, vide the impugned order (Annexure P-15). Learned counsel for the petitioner states that in the year 2003, Government of Haryana framed rules/regulations on compassionate appointments 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. However, vide letter, Annexure P-11, the claim of the petitioner was rejected on the ground that the benefit of compassionate appointment or financial assistance under 2003 Rules 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, the 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 C.W.P No. 12068 of 2006(O&M) ::3:: 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 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 is 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 C.W.P No. 12068 of 2006(O&M) ::4:: 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 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 C.W.P No. 12068 of 2006(O&M) ::5:: 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 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. C.W.P No. 12068 of 2006(O&M) ::6:: 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. ( AJAY TEWARI ) April 02, 2009. JUDGE `kk'