Birmati vs State of Haryana and Others

Tejinder Singh Dhindsa, J.—Birmati has filed the instant writ petition praying for the issuance of a writ of mandamus for issuance of directions to the respondent-Authorities to appoint her son Parveen Kumar on compassionate ground as per policy of the State Government, issued vide notification dated 28.2.2003, Annexure P2, or in the alternative to be granted the monthly financial assistance equal to the pay last drawn by her deceased-husband as per Government notification dated 1.8.2006. Facts, in brief, that would be relevant for disposal of the petition would require notice. Husband of the petitioner, namely, Om Parkash was appointed as a Water Carrier on regular basis with the respondent-Haryana Animal Husbandry and Dairy Development Department on regular basis and joined on such post on 4.12.1980. He unfortunately expired on 11.6.2006 while in harness. As per pleadings on record, the petitioner submitted an option in writing seeking compassionate appointment for her son Parveen Kumar under the ex-gratia scheme in the light of State Government notification dated 28.2.2003. Claim of the petitioner was kept pending and was not finalized. Vide memo dated 19.6.2008 issued by the Sub Divisional Officer, Animal Husbandry and Dairy Development, Panipat, the petitioner was called upon to submit an option as regards grant of financial assistance or monthly financial assistance. Vide such memo, it was, however, made clear to the petitioner that the dependent/member of the family of the deceased employee cannot be provided compassionate appointment under the ex gratia scheme. The petitioner responded by submitting a representation dated 4.6.2009 at Annexure P9 and opted for the benefit of monthly financial assistance in terms of Government Rules dated 1.8.2006. Vide order dated 18.2.2010 issued by the Director General, Animal Husbandry and Dairy Development, Haryana, Panchkula, sanction was accorded in favour of the petitioner for grant of lump sum ex-gratia financial assistance of Rs. 5 lacs. Such lump sum financial assistance has not been accepted by the petitioner.

Learned counsel appearing for the petitioner would argue that the petitioner is entitled for the monthly financial assistance as envisaged under the Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2006 (for short as ''the 2006 Rules''). It has further been argued that the action of the respondent-Authorities in according sanction for a lump sum ex-gratia financial assistance of Rs. 5 lacs vide order dated 18.2.2010 at Annexure P10 is arbitrary and in violation of the 2006 Rules.

Claim of the petitioner has been resisted in terms of a written statement having been filed on behalf of respondents No. 1 to 3 wherein it has been stated that a clarification dated 16.1.2009 had been issued by the State Government and as per which wherever PPO/GPO had been issued in case of death that had occurred prior to 1.8.2006, the benefit under 2006 Rules was not admissible. Learned State counsel would submit that as per clarification dated 16.1.2009, the ex-gratia monthly assistance envisaged under the 2006 Rules was denied to the petitioner and instead sanction for a lump sum ex-gratia amount of Rs. 5 lacs in favour of the petitioner had been accorded.

Having heard learned counsel for the parties at length, this Court is of the considered view that the action of the respondent-Authorities in not accepting the claim of the petitioner under the 2006 Rules cannot sustain.

Admittedly, husband of the petitioner expired on 11.6.2006 while in service. It is the case of the respondent-Department itself in the written statement duly filed that at such relevant time, the Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2005 (for short ''the 2005 Rules'') were in force and as such, were applicable. As per the 2005 Rules, there were two options open to the family of the deceased Government employee i.e. (i) to claim ex-gratia appointment on compassionate grounds to an eligible member of the family who was "completely dependent" on the deceased Government employee, or (ii) claim ex-gratia compassionate financial assistance to the family of the deceased over and above all other service benefits @ Rs. 5 lacs. Thereafter, vide notification dated 1.8.2006, the new Rules i.e. 2006 Rules were framed repealing the earlier Rules. The 2006 Rules were made effective with effect from the date of notification itself i.e. 1.8.2006. Rule 5 of the 2006 Rules envisaged the grant of monthly financial assistance and reads in the following terms:

"(1) On the death of any Government employee, the family of the employee 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 two years or till the date the employee would have retired from Govt. 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 thirty five years but had not attained the age of forty-eight years;

(c) for a period of seven years or till the date the employee would have retired from Govt. service on attaining the age of superannuation, whichever is less, if the employee had attained the age of forty years.

(2) The family shall be eligible to receive family pension as per the normal rules only after the period during which he receives the financial assistance as above is completed;

(3) The family of a deceased Govt. employee who was on occupation of a Govt. 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 Govt. 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 constitutional assistance."

Still further, under Rule 6 of the 2006 Rules, it was clearly mandated that all pending cases of ex-gratia assistance shall be covered under the new 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 2006 Rules.

Concededly, the claim of the petitioner was pending as on 1.8.2006 i.e. the date the 2006 Rules came into force. The petitioner had never submitted an option for grant of lump sum ex-gratia grant of Rs. 5 lacs under the 2005 Rules. To the contrary, placed on record at Annexure P9 is the option submitted by the petitioner for grant of financial assistance as per 2006 Rules. The submission of such option vide representation dated 4.6.2009 stands admitted in para 8 of the written statement.

The basis furnished in the written statement as regards denial of ex-gratia monthly financial assistance to the petitioner under the 2006 Rules i.e. on account of a clarification dated 16.1.2009 cannot sustain. The claim of the petitioner is founded on the strength of statutory Rules i.e. the 2006 Rules which were framed in exercise of the powers conferred under proviso to Article 309 of the Constitution of India. The right conferred upon the petitioner on the strength of such statutory provisions i.e. the 2006 Rules cannot be curtailed by the issuance of any subsequent executive instructions. This very issue came up for consideration before a Co-ordinate Bench of this Court in Civil Writ Petition No. 9295 of 2008 titled as Sushila Devi v. State of Haryana and others, decided on 9.7.2009 and while considering the scope of the clarification dated 16.1.2009, it was observed as follows:

"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 overriding 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 v. Uttar Haryana Bijli Vitran Nigam Ltd. and others, 2008 (4) S.C.T. 411, has viewed that all pending cases of ex-gratia assistance are to be covered under 2006-Rules."

As such, it is held that the clarification dated 16.1.2009 cannot stand as an embargo for consideration of the claim, of the petitioner for grant of ex-gratia monthly financial assistance under the 2006 Rules.

Accordingly, in view of the discussion above, the instant petition is allowed. Directions are issued to consider the claim of the petitioner for grant of ex-gratia financial assistance under the Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2006 and by ignoring the clarification dated 16.1.2009. Let such exercise of consideration be finalized within a period of two months from the date of receipt of a certified copy of this order. In case the petitioner is otherwise found entitled to the requisite financial benefit under the 2006 Rules, the same be released to her without any further delay. Petition allowed in the aforesaid terms.