Punjab-Haryana High Court
Darshana Devi vs State Of Haryana And Others on 14 May, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
CWP No. 19322 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No. 19322 of 2010
Date of Decision : May 14, 2012
Darshana Devi
.... PETITIONER
Vs.
State of Haryana and others
..... RESPONDENTS
CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present : Mr. Sukhdeep Singh Sandhu, Advocate,
for the petitioner.
Mr. Harish Rathee, Sr. DAG, Haryana.
AUGUSTINE GEORGE MASIH, J. (ORAL)
Petitioner has approached this court by assailing the order dated 08.09.2009 (Annexure P-3) passed by the Superintendent of Police, Rohtak, vide which the option exercised by the petitioner for grant of monthly financial assistance under Rule 5 of the Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2006 (hereinafter referred to as '2006 Rules') has been rejected on the ground that a CWP No. 19322 of 2010 2 clarification has been issued by the Chief Secretary to Government of Haryana vide letter dated 08.06.2007, according to which, the claimants in the case, where death happened prior to 01.08.2006 and where Pension Payment Orders/GPO's have been issued, cannot opt for new scheme introduced from 01.08.2006.
Counsel for the petitioner contends that this stand of the respondents cannot be pressed into service qua the petitioner in the light of order dated 13.07.2009 passed by this Court in CWP No. 6492 of 2008 preferred by the petitioner where petitioner had been given liberty to file a representation to the respondents to change her option from grant of lump-sum payment of Rs. 5 lacs as ex-gratia payment to that of Monthly Assistance Scheme. His further contention is that the statutory Rules cannot be, by instructions/letters, obliterated and the statutory Rules shall over-ride the effect of the instructions/letters issued by the authorities, which is contrary to the Rules itself. His submission is that if the letter dated 08.06.2007 is given precedence, Rule 6 of the 2006 Rules would loose its relevance and it would amount to deleting the said Rule. This, the counsel contends, is not in accordance with law and, therefore, the impugned order cannot sustain.
On the other hand, counsel for the State submits that the petitioner has rightly been denied the benefit of the 2006 Rules as she has already been granted the benefit of family pension. Reliance has also been placed upon a Full Bench judgment of this Court in CWP No. 19322 of 2010 3 CWP No. 4303 of 2009 titled as Krishna Kumari vs. State of Haryana and others, to contend that the Policy, which was in force at the time of death of the employee, would be applicable and since the husband of the petitioner died on 23.10.2005 and 2006 Rules came into force on 01.08.2006, the same would not apply to the claim of the petitioner disentitling her to the claim as made by her in the present writ petition. On this basis, he prays for dismissal of the present writ petition.
I have heard the counsel for the parties and have gone through the records of the case.
The husband of the petitioner died on 23.10.2005. On the said date, Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2005 (hereinafter referred to as 2005 Rules) were in force. The petitioner had approached the respondents within the time prescribed for doing so under the said Rules claiming the benefit of the Rules. In the meantime, the said Rules were replaced by the 2006 Rules. Rule 5 of 2006 Rules provided that 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. The period, for which the said assistance would be applicable, was dependent upon the age of the employee and after the conclusion of the said period, the family was CWP No. 19322 of 2010 4 eligible to receive family pension as per normal Rules. Rule 6 of these very Rules provided that all pending cases of ex-gratia assistance shall be covered under the new Rules and the calculation of the period and payment shall be made to such cases from the date of notification of the 2006 Rules. The families were, however, given an option to opt for lump-sum ex-gratia grant, as provided in the Rules, 2003 or 2005, as the case may be, in lieu of the monthly financial assistance provided under the 2006 Rules.
Petitioner approached the respondents for grant of Rs. 5 lacs as per Rule 2(ii) of the 2005 Rules. The same was declined by the respondents leading to her filing CWP No. 6492 of 2008 which came up for hearing before this Court on 13.07.2009 when the following order was passed:-
" The husband of the petitioner died on 23.10.2005 while on duty. As per rules then prevalent, the petitioner was entitled to seek appointment on the compassionate ground or alternatively an ex-gratia amount in terms of Haryana compassionate Assistance to the Dependents of Deceased Government Employee Rules, 2003. The petitioner avers that she was asked to wait for three years to opt for either of the two options available to her. In July, 2008, petitioner approached respondent No. 3 to ask for lump-sum payment in terms of rules amended in the CWP No. 19322 of 2010 5 year 2005. The petitioner was then apprised that these rules have further been amended in August, 2006 and as per these rules, the petitioner was not entitled to appointment on compassionate grounds, but instead she was entitled to monthly payment equal to the last pay drawn by her deceased husband. She was also informed that she has an option to ask for one time ex-gratia payment according to the Rules of 2003 or 2005. The petitioner opted for ex-gratia payment of Rs. 5.00 lacs in terms of 2005 Rules. She has now been apprised that she is entitled to ex-gratia payment in terms of 2003 Rules, which are applicable in her case.
After arguing for some time, the counsel seeks permission to make a representation as the petitioner being illiterate could not properly exercise her option. She, as per the counsel, was under the impression that she would be entitled to Rs. 5.00 lacs as ex-gratia payment. Let the petitioner make a representation to the respondents to change her option. If she does so within a period of two weeks from today, the respondents shall consider her request and pass an order in accordance with law. The petitioner, however, would be paid the dues, which, according to the respondents she is entitled to in terms of the rule position. CWP No. 19322 of 2010 6 The writ petition is accordingly disposed of."
As per above orders passed by this Court, petitioner submitted a representation dated 24.07.2009 (Annexure P-2), which was finally decided by the respondents vide order dated 08.09.2009 (Annexure P-3) rejecting the claim of the petitioner on the ground that the clarification issued through a letter dated 08.06.2007 by the Chief Secretary to Government of Haryana did not entitle her to the claim, as made by her through her representation as the death of the husband of the petitioner had occurred prior to 01.08.2006 and PPOs/GPOs have been issued and, therefore, the option, as exercised by the petitioner, was not in consonance with the said clarification disentitling her the benefit of 2006 Rules and the change of her option. In the light of Rule 6 of the 2006 Rules, the stand of the respondents rejecting the claim of the petitioner is not sustainable as a letter, which may be in the form of a clarification, cannot nullify the effect of the statutory Rules. As per Rule 6, all pending cases were to be covered by the 2006 Rules and this fact is further supported by the order, which has been passed by this Court in CWP No. 6492 of 2009 and in any case, it is not disputed by the respondents initially that her claim would not be covered by the 2006 Rules. Now a ground has been raised by the respondents and that too, in the light of the Full Bench judgment of this Court that the instructions, which were invoked at the time of death of the husband CWP No. 19322 of 2010 7 of the petitioner, would govern the grant of the compassionate assistance as per the Rules.
This contention of the respondents cannot be accepted on the ground that the judgment of the Full Bench primarily deals with the situation where an employee, who had earlier opted for the benefit under the statutory Rules, then prevalent, had not been granted the benefit of those Rules in the light of the subsequent Rules coming into force which were not more beneficial than the initial Rules. The Full Bench has also taken into consideration the delay in claiming the benefit under the then prevalent Rules and had disentitled those claimants only.
Present is a case where, in the light of the order passed by this Court in an earlier writ petition preferred by the petitioner, she had given an option, which has been rejected on a ground, which is not sustainable as the rejection is based upon a letter of clarification issued by the Government of Haryana, which is contrary to the statutory Rules governing the claim of the petitioner. It is by now well settled that the executive instructions cannot over-ride the statutory Rules and the rights conferred thereunder cannot be taken away by such instructions/letters. On this ground also, the impugned order cannot sustain.
In view of the above, the present writ petition is allowed. Petitioner is held entitled to the benefit, as claimed by her under the 2006 Rules. The consequential benefits be released to the petitioner CWP No. 19322 of 2010 8 within a period of two months from the date of receipt of certified copy of this order.
It goes without saying that the benefits, which the petitioner had earlier been granted i.e. in the form of family pension, shall be adjusted towards the benefits which would now accrue to the petitioner as a consequence of the present order.
(AUGUSTINE GEORGE MASIH )
May 14, 2012 JUDGE
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