The General Manager/Administrator, Dakshin Haryana Bijli Vitran Nigam Limited and Others vs Pehladi

A.K. Sikri, C.J.—The husband of the respondent herein, who was working as Lineman with the appellants, died in harness on 03.01.2006. Her elder son made application for compassionate appointment on the post of Lower Division Clerk under the Haryana Compassionate Assistance to the Dependents of Deceased Employees Rules, 2005 (hereinafter referred to as Rules 2005). However, as the elder son of the respondent was already employed in Assam Rifles, this request was withdrawn and thereafter the respondent applied for ex-gratia financial assistance of Rs. 5 lacs under Rules 2005. Before this request could be considered and appropriate orders passed, another policy known as the ''Haryana Compassionate Assistance to Dependents of Deceased Government Employees Rules, 2006'' (hereinafter referred to as Rules 2006) came into force w.e.f. 01.08.2006. The respondent, thereafter, opted for the benefit of financial assistance under Rules 2006, which request was denied. Instead, the request of the respondent was considered under Rules 2005 and even the request for financial assistance of Rs. 5 lacs was rejected vide orders dated 16.01.2007 on the ground that since her son was employed, the income earned by him goes beyond the prescribed limit as per Rules 2005. The respondent challenged this order by filing the writ petition and contended that her case should have been considered under Rules 2006. This plea of the respondent was accepted by the learned Single Judge vide impugned judgement. In this appeal filed against that judgement, the entire thrust of the appellants is on the Full Bench judgement of this Court in CWP No. 4303 of 2009 and connected petitions decided on 20.04.2012 with lead case titled as Krishna Kumari Vs. State of Haryana and others. In that case, the Full Bench was concerned with Rules 2003 under which application was submitted by the dependent of the deceased seeking appointment on compassionate grounds. However, application of the dependent was kept pending and in the meantime Rules 2006 were promulgated, which were less favourable to the dependent. The case of the dependent was considered under the latter Rules. The Full Bench was of the view that merely by keeping the request pending and delaying the matter, the authorities could not take advantage of their own wrong and the case would be governed by the policy in vogue at the time when the death had occurred. It is on this basis, learned counsel for the appellants argues that since the husband of the respondent died on 03.01.2006 when Rules 2005 were prevalent and she even exercised her option under this policy for lump sum amount of Rs. 5 lacs, she has to be paid that amount only and cannot claim the benefit of Rules 2006.

Precisely, this very question came up for consideration before this very Division Bench in Haryana Vidyut Prasaran Nigam Limited and others Vs. Smt. Kelo Devi and another, LPA No. 1078 of 2012 decided on 07.11.2012. The Division Bench took note of the aforesaid Full Bench judgement and clarified that the ratio of the case was that the benefit which was more beneficial to the dependent of the deceased could not be taken away by its own fault by the department in delaying the matter. Moreover, provisions of Rules 5 and 6, as extracted above, were taken into consideration on the basis of which it was held in that judgement that since Rule 6 gives an option to the dependent whose case is still pending even to opt for a benefit under Rules 2006, this benefit would be available to the dependent of the deceased. Relevant discussion, in this behalf, is contained in the following portion of the said judgment:-

Still normally, following the aforesaid Full Bench judgement, we could hold that Rules 2003 would be applicable which were prevalent at the time of death of the husband of the respondent No. 1. However, in Rules 2006, a provision is made, which changes the entire complexion of the case. It is Rule 6 thereof which gives option to the family of the deceased and has already been reproduced above. This Rule 6 is framed keeping in view the provision of financial assistance in mind. It states that two cases of ex-gratia assistance would be covered under the new Rules. Moreover, option is given to the families to opt for the lump sum ex-gratia provided in Rules 2003 or 2005, as the case may be, in lieu of monthly financial assistance provided under Rules 2006. The objective of this Rule can be summarized by observing that the intention of the government was to provide monthly financial assistance, as per Rules 2006, instead of lump sum amount of Rs. 2.5 lacs under Rules 2003. The scheme of 2006 provides, as per Clause 5, this monthly financial assistance for a period of 15 years from the date of death of an employee to a sum equal to the pay and other allowances that was last drawn by the deceased employee, if the deceased had not attained the age of 35 years; for a period of 12 years if the employee had attained the age of 35 years but had not attained the age of 48 years; and for a period of 7 years if the deceased had attained the age of 48 years.

Alternatively, whether the family of such a deceased employee wants lump sum ex-gratia under the old Rule or monthly financial assistance under Rules 2006, the option for that purpose is given to the family. If the judgement of the Full Bench is read in the context of financial assistance as well (though that judgement was given in the context of compassionate appointment), it would amount to annihilating Rule 6 altogether. Therefore, the ratio of the Full Bench judgement is to be limited to the cases of compassionate appointment and it cannot be read in the context of ex-gratia financial assistance which was not the subject matter before the Full Bench. Extending that principle here would not only lead to illogical results, but will be contrary to the expressed provision contained in Rule 6. Furthermore, the spirit behind the Full Bench judgement was to construe a provision which is favourable to such persons, scheme being benevolent in nature.

Going by these considerations and particularly having regard to the plain language of Rule 6 of Rules 2006, when we find that option was given to the respondent No. 1 and she exercised her option to be covered by Rules 2006 and on that basis the appellants had even passed the order dated 08.02.2007 granting her the benefits in terms of Clause 5 of Rules 2006 which she was enjoying, such a benefit cannot be taken away by recalling that order.

Thus, we are of the opinion that in terms of Rules 5 and 6 of Rules 2006, it was the right of the respondent to exercise her option under Rules 2006 when by that time her earlier option under Rules 2005 had not been fructified, as no decision thereupon was taken. Learned counsel for the appellants, however, refers to circular dated 08.06.2007 issued by the Chief Secretary to the Government of Haryana. Clause 3 thereof reads as under:-

Clause 3:-In cases where death happened prior to 01.08.2006 and where PPO/GPO have been issued by your office cannot opt for new scheme introduced w.e.f. 01.08.2006.

It is submitted that in the case of the respondent, GPO/PPO No. 3386 dated 17.05.2006 had already been issued by the Pension Department of the appellants and, therefore, the case of the respondent was not covered under Rules 2006. However, this contention warrants to be rejected outrightly.

As pointed out above, the option is given under the Rules. These Rules were framed under proviso to Article 309 of the Constitution of India and, thus, have statutory force. The effect thereof cannot be nullified and these Rules cannot be supplanted by the administrative instructions in the manner it is to be sought vide circular dated 08.06.2007. Not only it is a trite proposition of law in respect of these very Rules, this particular proposition has been laid down by a Division Bench of this Court in Raj Kumari Vs. Uttar Haryana Bijli Vitran Nigam Ltd. and others, 2008(4) RSJ 765. We, thus, do not find any merit in this appeal, which is accordingly dismissed.