Murti Devi vs Uttar Haryana Bijli Vitaran Nigam Ltd.

Hemant Gupta, J.—The petitioner has sought quashing of the order dated 02.01.2006 (Annexure P3) whereby the claim of the petitioner for appointment of her son under ex-gratia Scheme was declined.

Balbir Singh, husband of the petitioner died on 16.02.2005 while working as Assistant Foreman under the respondent. On 28.03.2005, the petitioner made a request for appointment of her son under ex-gratia Scheme. On 02.01.2006, a communication was addressed to the petitioner to seek her option for cash financial assistance i.e. for Rs. 2.5 lacs under the Haryana Compassionate Assistance to Departments of Deceased Government Employees Rules, 2003.

Learned Counsel for the petitioner has relied upon Clause 6(a) of the Rules, 2003 to contend that the list of the dependents is required to be prepared by the Head of Department, who are seeking compassionate appointment. Such list is valid for a period of 3 years and the appointments are required to be given in accordance with the seniority so maintained. Such list is to lapse after 3 years. It is thus contended that on 02.01.2006 when Annexure P3 was addressed, the name of petitioner was on the list required to be maintained by the Department for appointment on compassionate ground. Therefore, the communication seeking for cash financial assistance before the expiry of 3 years is not tenable. The relevant extract from 2003 Rules reads as under:

Option.- (1) A dependent of the deceased/missing Government employee shall give in writing his/her preference of option, within 3 years from the date of death of the Government employee, for one of the following;

(a) ex-gratia appointment on compassionate grounds to a member of the family who was "completely dependent" on the deceased employee and is in extreme financial distress due to the loss of the deceased, namely, the Government employee who dies in " service",

or (b) ex-gratia compassionate financial assistance to the family of the deceased, over and above all other benefits like ex-gratia grant due to his/her family, to be paid @ Rs. 2.5 lacs in case of the family of the deceased not opting for ex-gratia employment.

(2) Exercise of option shall be permitted only once and shall not be changed, once exercised.

Competent Authority.- (1) The Head of the concerned department where the deceased/missing person was employed is competent to give appointment/provide compassionate financial assistance to the completely dependent indigent member of the family of the deceased/missing Government employee.

(a) The head of the Department shall prepare a list of such dependents which shall be valid for a period of 3 years and appointments will be given by the department strictly in accordance with the seniority so maintained.

(b) The validity of the list shall lapse after 3 years.

(c) The dependent of the deceased Government employee can exercise his preference with regard to option as contained in Clause (b) of Sub-rule (1) of Rule 4 of these rules within a period of one month after the expiry of the validity of the list prepared by the department of no post exist in the department for ex-gratia appointment.

It is contended that on 18.11.2005, the State framed Haryana Compassionate Assistance to Departments of Deceased Government Employees Rules, 2005 (herein after referred to as ''the 2005 Rules'') wherein the period for maintaining the list for giving appointment on compassionate ground was fixed 4 years for those dependents of the deceased government employees, who have applied within a period of 6 months. However, it was provided in the Rule 19 of the aforesaid 2005 Rules, that the pending cases will be dealt with under 2003 Rules.

Earlier on 31.01.2008, the State Government was directed to file an affidavit clarifying the stand of the State in respect of the words ''pending cases'' in Rule 19(2) of 2005 Rules and also to disclose as to whether the policy as is applicable on the date of death is to be applied or not. In the affidavit dated 16.02.2008 filed by Mr. M.R. Anand, IAS, Special Secretary to Government of Haryana, it has been pointed out that all the pending cases are required to be dealt with keeping in view the provisions of the Rules existing at the time of pendency of the case and not the date of death of the employee

It may be noticed that on 01.08.2006, another set of Rules came into force titled as the Haryana Compassionate Assistance to the Departments of Deceased Government Employees Rules, 2006 (hereinafter referred to as ''2006 Rules''). Such Rule provides for financial assistance and does not provide for appointment on compassionate grounds. Rule 6 contemplates that all pending cases of ex-gratia assistance shall be covered under the new Rule. Rule 8 contemplates that the families will have the option to opt for the lump-sum ex-gratia grant provided under 2003 Rules or 2005 Rules or the monthly financial assistance provided under 2006 Rules.

In view of Rule 6 of 2003 Rules, the list of eligible family members was to remain valid for a period of 3 years. Balbir Singh, husband of the petitioner died on 16.02.2005. The petitioner made application within 6 months. The name of eligible family members was to remain in the list for appointment on compassionate ground for a period of 3 years. No doubt on 18.11.2005, 2005 Rules, came into force but such Rules does not change the nature of claim of the petitioner as Rule 19(2) of 2005 Rules contemplate that pending cases has to be decided as per the Rules in existence on the date of publication of such Rules i.e. 2003 Rules. Therefore, on 02.01.2006, when option for cash assistance was sought, the name of eligible family members of the deceased - Balbir Singh were required to be maintained on the list in terms of the 2003 Rules for giving appointment on compassionate grounds. 2006 Rules came into force on 01.08.2006 i.e. after the expiry of three years validity of the list. Therefore, in terms of Rules 6 and 8 of the aforesaid 2006 Rules, the option is required to be given to the petitioner for lump-sum ex-gratia grant provided either in 2003, 2005 or 2006 Rules.

In view of the said fact, we are of the opinion that communication Annexure P3 addressed to the petitioner to seek her option for cash assistance was not justified as on that date claim of the petitioner for appointment on compassionate ground was still pending for consideration.

Therefore, we allow the present writ petition and set aside the order Annexure P3. Respondents are directed to give option to the petitioner in terms of Rules 6 and 8 of 2006 Rules forthwith.

Writ petition stands disposed of accordingly.