C.W.P No. 983 of 2008 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No. 983 of 2008 Date of decision : May 04, 2009 Smt. Santosh Devi, ...... Petitioner (s) v. State of Haryana and others, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. Rakesh Nagpal, 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 The husband of the petitioner was appointed in the year 1987 as Chowkidar on daily wages with the respondent department. His services were regularized on 1.4.1993. He died on 8.7.1994 while in service. The petitioner made a representation to the respondents for her appointment on a suitable post under the Ex-gratia scheme. However, her claim was rejected on the ground that her name was kept in the list of persons of dependents of deceased employees and since three years had passed, the said list had been lapsed. She was, however, given an option to opt for the financial C.W.P No. 983 of 2008 ::2:: assistance as per policy for grant of Rs.2.50 lacs. The petitioner opted for the said assistance. However, this request of the petitioner was also declined on the ground that her husband had not completed minimum three years regular service. As regards this stand, the same is covered by a Division Bench decision of this Court in Smt. Kamlesh vs State of Haryana, 2006(4) SCT 658, wherein it was held as follows :- “If Rule 3(d)(ii) of the Rules is read ejusdem generis as suggested by the learned State counsel rather than interpreting both the clauses independently of each other then the basic object of the rules of ameliorating the sufferings of dependents of deceased Government employee would stand defeated. Such is not the intention of the rule making authority. It is trite to observe that socio-economic legislation is required to be interpreted by keeping in view the object sought to be achieved by such legislation. Moreover, Rule 3(d)(ii) has to be read down by adding words regular service. The plain meaning of the Rule is that an employee should have served the Government for at least for three years which the husband of the petitioner has done. It is also pertinent to notice that any ad hoc service followed by regularization is to qualify for pension as has been held by the Full Bench of this Court in Kesar Chand v. State of Punjab, 1988(2) PLR 223. Therefore, we regret our inability to agree with the learned State counsel and reject the interpretation preferred by the respondents in C.W.P No. 983 of 2008 ::3:: the impugned orders dated 7.6.2006 (Annexure P-3) and 18.8.2005 (Annexure P-5).” In the present case, as the husband of the petitioner died after regularization of service and after completing three years' service, the action of the respondents in rejecting the claim of the petitioner can not be justified. As regards the claim for ex-gratia compensation is concerned, the same is covered by a Division Bench decision of this Court in Raj Kumari v. Uttar Haryana Bijli Vitran Nigam Ltd and others, 2008(4) RSJ 765. wherein it was 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 opt for lump sum ex-gratia grant provided in the 2003 Rules or 2005 Rules in lieu of the monthly financial C.W.P No. 983 of 2008 ::4:: 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 Rajasthan, AIR 1967 SC 1910, which has been repeatedly followed, relied and applied in a number of cases including C.W.P No. 983 of 2008 ::5:: 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 disposed of with a direction to the respondents to grant benefit under the Haryana Compassionate Assistance to the Dependents of the Deceased Government Employees Rules, 2006 to the petitioner within a period of two months from the date of receipt of a certified copy of this order. ( AJAY TEWARI ) May 04, 2009. JUDGE `kk'