CIVIL WRIT PETITION NO.9295 of 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JULY 09, 2009 Sushila Devi .....Petitioner 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.Neeraj Kumar, Advocate, for the petitioner. Mr.Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The question raised in the present writ petition relates to interpretation of rules framed for ex-gratia assistance known as “Haryana Compassionate Assistance to the Dependents of Deceased Government Employees, Rules, 2003 (hereinafter called, “2003 Rules”). The petitioner is a wife of Constable Ramphal Singh, who died in harness on 14.7.2005. The question to be seen is whether she will be entitled to financial assistance in terms of the latest rules now framed in the year 2006 or employment/ex-gratia lump-sum payment under the rules framed in the years 2003 or 2005. CIVIL WRIT PETITION NO.9295 of 2008 :{ 2 }: The State Government had framed rules in the year 2003 for compassionate appointment to the dependents of the employees who died in harness. Under the Rules, dependents of the deceased Government employee had the option to receive ex-gratia appointment on the compassionate ground to a member of family who was completely dependent on the deceased employee or lump- sum ex-gratia financial assistance of Rs.2.5 lacs, to such dependent who does not opt for ex-gratia appointment. Certain amendments were made in these rules in the year 2004. On 22.5.2006, respondent No.5, Superintendent of Police, Kaithal, sent a letter to the petitioner that her request for Government service under ex-gratia scheme has not been received. It was also mentioned that 10+2 certificate was to be submitted within three years as otherwise the case would become time barred. The petitioner thereafter sent more than one applications for grant of appointment under the ex-gratia scheme. She also passed 10+2 from the Central Board of School Education within 3 years period as stipulated. She, however, was not given the ex-gratia appointment. The petitioner then filed a representation to the Chief Minister, Haryana. Director General of Police, Haryana, had then issued an order dated 2.11.2006 according permission for financial assistance of sum equal to the pay and other allowances that were last drawn by the deceased husband of the petitioner with effect from 1.8.2006. She was also informed that she would not be entitled to get pension w.e.f. 1.8.2006 during the period she would draw pay and allowances under the new scheme. It may need a mention here that 2003 Rules were CIVIL WRIT PETITION NO.9295 of 2008 :{ 3 }: amended in the year 2005 regulating the compassionate assistance or appointment on compassionate grounds to the members of family of the deceased, who died while in serving or missing Government employee. Ex-gratia assistance of Rs.5.00 lacs was payable to the family which did not opt for ex-gratia appointment or where no such appointment could be offered within 3 years from the date of application. This was over and above all other service benefits. With effect from 1.8.2006, the Government has framed new Rules repealing the earlier Rules made and given effect from 18.11.2005. Through these new Rules framed in 2006, the Government has brought in some major changes regarding compassionate assistance to the family of the deceased Government employees. It is now provided in these rules that on death of any Government employee, his family would continue to receive as financial assistance a sum equal to the pay and other allowances that were last drawn by the deceased employee in the normal course without raising a specific claim. The family is eligible to receive family pension as per normal rules only after the period during which he received the financial assistance. Accordingly, the order directing grant of these allowances as a sum equal to pay and other allowances last drawn was made in terms of 2006 Rules. The petitioner, however, represented and prayed for compassionate appointment. On 12.2.2008, she was informed that she has not submitted her option for compassionate financial assistance till now. It was clarified that necessary sanction for grant of compassionate financial assistance of Rs.2.5 lacs shall be accorded in favour of the petitioner. However, she was also informed CIVIL WRIT PETITION NO.9295 of 2008 :{ 4 }: that amount of Rs.1,36,396/- which was paid to her from August 2006 to September 2007 will be recovered from the financial assistance granted to the petitioner. This order has now been challenged by the petitioner through the present petition. Notice of motion was issued and reply has been filed on behalf of the State. Reference is made to the Compassionate Assistance Rules framed in the year 2006. In the reply, it is stated that as per Rule 6, all the pending cases of ex-gratia assistance are to be covered under the new Rules. It is also disclosed that the petitioner had opted in writing for monthly assistance, provision for which is made under 2006 Rules. It is also stated that her written option was sent to the Director General of Police and accordingly she was granted financial assistance in terms of 2006 Rules. To justify their action in paying lump-sum payment and ordering recovery, as noticed, it is stated that the matter was reconsidered by the Chief Secretary and it was clarified that where death had happened prior to 1.8.2006 and where pension payment order or gratuity has been issued, then he/she can not opt for new scheme introduced with effect from 1.8.2006. Accordingly, the case of the petitioner was reconsidered and direction to pay lump-sum assistance in lieu of monthly assistance was made. I have heard learned counsel for the parties. Apparently, the respondents have not treated the case of the petitioner fairly. The Director General of Police had rightly allowed monthly assistance to the petitioner in terms of 2006 Rules and the same has wrongly been withdrawn to grant lump-sum assistance of Rs.2.5 lacs in terms of 2003 Rules. Rule 6 of 2006 Rules clearly provides that all pending CIVIL WRIT PETITION NO.9295 of 2008 :{ 5 }: cases of ex-gratia assistance shall be covered by these new Rules. Not only that, the families were given option for lump-sum ex-gratia grant as regulated by earlier Rules framed in the years 2003 and 2005 in lieu of monthly assistance provided under 2006 Rules. Though 2005 Rules stand repealed but this is subject to the right of the family to opt for lump-sum ex-gratia assistance as permitted in terms of 2006 Rules. Concededly, the husband of the petitioner died on 14.7.2005. Though 2003 Rules were then applicable, yet the case of the petitioner was not finalised. In other words, her case remained pending. Subsequently, 2005 Rules were formulated. Still, the petitioner was not released any ex-gratia payment or given employment. It clearly emerges from the record that respondent No.5 himself has issued a letter on 22.5.2006, stating that request for ex- gratia assistance or employment has not been received from the petitioner, meaning thereby that her case was still under consideration. The petitioner then made a representation to the Chief Minister on 25.5.2006 and then the order dated 2.11.2006 was passed, granting her monthly assistance in terms of 2006 Rules. These Rules have been made effective w.e.f. 1.8.2006. The financial assistance to the petitioner accordingly was correctly allowed under these Rules, as can be clearly made out from Rule 6, which reads as under:- “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 CIVIL WRIT PETITION NO.9295 of 2008 :{ 6 }: 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.” It is clear that till 2.11.2006, the case of the petitioner has not been finalised and it was pending. All pending cases of ex-gratia assistance, as per Rule 6, shall be covered under the new Rules. No doubt, the petitioner had an option to opt for lump-sum ex-gratia as provided for in Rules of 2003 and 2005 in lieu of this monthly financial assistance. Reply filed by the respondents would show that the petitioner had opted for payment under 2006 Rules. It is so stated in Para 2 of the preliminary submissions of the reply, which is as under:- “The petitioner opted in writing for monthly assistance provisions for which are made under new Rule-2006. Her written option was sent to the Director General of Police, Haryana on the prescribed proforma vide this office memo.No.50145 dated 17.10.2006. The Director General of Police Haryana has granted as financial assistance a sum equal to the pay and other allowances that was last drawn by late Constable Ramphal No.299/KTL under rule 5(1) of ex-gratia rule-2006 w.e.f. 1.8.2006 which was received in this office vide his office endst.No.18016- 20/W-5 dated 2.11.2006, in accordance with the payment of monthly financial assistance was started to the CIVIL WRIT PETITION NO.9295 of 2008 :{ 7 }: petitioner.” This would clearly show that the petitioner did not opt for ex-gratia payment as admissible under Rules 2003 or 2005. The concession granted to the petitioner has been withdrawn on the basis of the clarification issued by the Chief Secretary. This clarification is contrary to the Rule position as would emerge from Rule 6 noticed above. The clarification issued by the Chief Secretary can not have over-riding effect over the Rules framed under Article 309 of the Constitution of India. Clearly, the case of the petitioner was pending and would be governed by 2006 Rules. She had given an option for ex-gratia assistance under these Rules and she did not opt for 2003 or 2005 Rules. The clarification issued by the Chief Secretary is contrary to the Rule position and, thus, can not be sustained. Even the Division Bench of this Court in the case of Raj Kumari Vs. Uttar Haryana Bijli Vitran Nigam Ltd. And others, 2008 (4) SCT 411, has viewed that all pending cases of ex-gratia assistance are to be covered under 2006-Rules. The impugned order, therefore, can not be sustained. The same is set-aside. Direction is hereby issued that the petitioner be paid the financial assistance in terms of 2006 Rules as earlier ordered and the impugned order, withdrawing the compassionate financial assistance and recovery of sum of Rs.1,36,396/- would stand quashed. The writ petition is allowed in the above terms. July 09, 2009 ( RANJIT SINGH ) khurmi JUDGE