Punjab-Haryana High CourtHaryana Vidyut Prasaran Nigam Limited ... vs Smt. Kelo Devi And Another on 7 November, 2012Bench:A.K. Sikri,Rakesh Kumar JainLPA No. 1078 of 2012 (O&M)                                          -1-


   IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                   CHANDIGARH

                              LPA No. 1078 of 2012 (O&M)
                              Date of Decision : 7th November, 2012

           Haryana Vidyut Prasaran Nigam Limited and others

                                                          ...Appellants
                              Versus

           Smt. Kelo Devi and another
                                                        ...Respondents

CORAM: HON'BLE MR. JUSTICE A.K. SIKRI, CHIEF JUSTICE
       HON'BLE MR. JUSTICE RAKESH KUMAR JAIN

Present: Mr. Narender Hooda, Senior Advocate,
         with Mr. P.S. Sullar, Advocate,
         for the appellants.

           Mr. Sandeep Parkash Chahar, Advocate,
           for the respondents.
                                ****

A.K. SIKRI, C.J.Taking note of the facts of this case, in the first instance,

would bring into focus the controversy as well. Therefore, we

proceed to state these facts which are also in narrow compass. The

respondent No. 1 is the widow of Late Sh. Ram Kishan and the

respondent No. 2 is his son. Sh. Ram Kishan was working with the

appellant/Haryana Vidyut Prasaran Nigam Limited, who died in

harness on 04.10.2005, while working on the post of Carrier

Attendant. He was 50 years of age at that time. Vide order dated

03.01.2006, the appellants had granted an ex-gratia amount of

Rs. 25,000/- as an immediate relief. Thereafter, however, vide letter

dated 10.08.2006, the respondent No. 1 was informed that herLPA No. 1078 of 2012 (O&M)                                           -2-request for appointment on compassionate basis cannot be

considered as she was found ineligible being less educated and,

therefore, her case had been listed with other cases to be considered

for compassionate financial assistance and would be dealt in its turn.

The State of Haryana has framed Rules known as 'Haryana

Compassionate         Assistance   to   the   Dependents   of   Deceased

Government Employees Rules, 2003' (hereinafter referred to as

Rules, 2003) in exercise of powers conferred by the proviso toArticle 309of the Constitution of India to regulate the compassionate

assistance by way of ex-gratia financial assistance or ex-gratia

appointments on compassionate grounds to the members of the

family of the deceased government employee who die while in

service. The object of these Rules is to assist the family of the

deceased employee in tiding over the emergency situations, resulting

from the loss of bread-earner by giving one of the two following

options:-(i)         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 employee who dies in 'harness'.(ii)        Ex-gratia compassionate financial assistance to the family

of the deceased over and above all other benefits like ex-gratia grants

due to his family to be paid at the rate of Rs. 2.5 lacs, in cases where

the family of the deceased does not opt for ex-gratia employment.In     2006,     the    State     has    promulgated     theLPA No. 1078 of 2012 (O&M)                                             -3-'Haryana Compassionate Assistance to the Dependents of Deceased

Government Employees Rules, 2006' (hereinafter referred to as

Rules, 2006) which are enforced vide notification dated 01.08.2006.Rules, 2006 have also been framed in exercise of powers conferred

by proviso toArticle 309of the Constitution of India with the object

to assist the family of the deceased/missing government employees

of Groups C and D in tiding over the emergent situation, resulting

from the loss of the bread-earner while in regular service by giving

financial assistance. Rules 5 and 6 of these Rules are relevant for our

purposes and, therefore, they are reproduced below:-"(1) On the death of any government employee, the
                  family of the employees 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 twelve years or till the date the
                  employee would have retired from government 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 forty eight years;(c) For a period of seven years or till the date the
                  employee would have retired from government service
                  on attaining the age of superannuation, whichever is
                  less, if the employee had attained the age of forty
                  eight 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.LPA No. 1078 of 2012 (O&M)                                           -4-(3) The family of a deceased government employee
                  who was in occupation of a government residence
                  would continue to retain the residence on payment of
                  normal rent/license 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
                  government 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 purposes of calculation of
                  assistance.(6) 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
                  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."The respondent No. 1 gave option for financial assistance

under the aforesaid Rules in the prescribed form. Order dated

08.02.2007 was passed by the appellants granting compassionate

financial assistance equal to the pay and other allowances that was

last drawn by the deceased in normal course in favour of the

respondent No. 1 w.e.f. 01.08.2006 to 04.10.2012. However,

thereafter, the appellants passed order dated 29.02.2008 withdrawing

the earlier order dated 08.02.2007 vide which financial assistance

was given to the respondent No. 1 under Rules 2006 on the ground

that the deceased had expired before Rules 2006 i.e. on 04.10.2005

when Rules 2003 were in force. Therefore, the case of the respondentLPA No. 1078 of 2012 (O&M)                                           -5-No. 1 was to be considered under Rules 2003, as per which, she was

entitled for grant of Rs. 2.5 lacs in lump sum. It was also directed

that difference of amount of salary and family pension already paid

be adjusted while making payment of Rs. 2.5 lacs.In the meantime, the respondent No. 2, son of the deceased,

had also made a request for appointment on compassionate grounds

under Rules 2003 which request was rejected vide order dated

29.09.2008.Challenging both these orders, the respondents filed the

writ petition under Article 226/227 of the Constitution of India. The

learned Single Judge has affirmed the order rejecting the request for

appointment of the respondent No. 2 on ex-gratia basis which is not

under challenge before us. Therefore, this part is not required to be

considered. However, in so far as the order dated 29.02.2008

withdrawing the benefit given to the respondent No. 1 under Rules

2006 is concerned, that order is set aside by the learned Single Judge

holding that the respondent No. 1 was entitled to the benefit of Rules

2006 by virtue of Rule 6 thereof which provides an option to her to

be considered under Rules 2003 or Rules 2006.The reason for taking

this view is contained in para 2 of the impugned judgement dated

29.02.2012, which is reproduced below:-"On the basis the order passed already provided for
                  a monthly payment was withdrawn and lump sum
                  grant of Rs. 2.5 lacs was offered to be given and also
                  deposited in the account directly. The petitioner
                  would not want the lump sum assistance and says that
                  under the 2006 rules themselves, there was an option
                  under clause 6 which made possible to obtainLPA No. 1078 of 2012 (O&M)                                           -6-assistance in the manner provided under 2006 rules
                  or take a lump sum grant either under 2003 rules or
                  2005 rules as the case may be. If the rules are
                  provided for such an option and the petitioner had
                  actually exercised the option to receive the monthly
                  payment on the basis of the last pay drawn, the
                  instructions cannot over ride such a rule and direct
                  but gives its applicability to be effective to persons
                  who had died subsequently to 01.08.2006. Counsel
                  for the respondent is fair to state that even the
                  instructions dated 19.07.2007 were quashed by this
                  Court. I do not have the details of the judgement but
                  suffice it to hold that such an instruction cannot be
                  issued against the express provisions under 2006
                  rules allowing for its applicability to all pending
                  cases relating to compassionate assistance. The
                  impugned order is quashed."Challenging this part of the order, present intra-Court

appeal is preferred by the appellants. As per the appellants, the case

of the respondent No. 1 was to be governed by Rules 2003, which

aspect was even clarified vide communication dated 19.07.2007,

stipulating that Rules 2006 would be applicable only to persons who

died after 01.08.2006 and for the persons who died earlier the lump

sum payment as provided for the compassionate scheme under Rules

2003 alone was to be considered and paid. The entire case rests on

the interpretation which is to be given to Rule 6 of Rules 2006.Before we advert to this aspect, it would be imperative to

take note of a Full Bench judgement of this Court inKrishna

Kumari Vs State of Haryana and othersalongwith bunch of writ

petitions decided on 20.04.2012, the subject matter of which was

these Rules, as the said judgement is relied upon by learned counsel

for both the parties in support of their submissions.The question of law which was referred to can be gaugedLPA No. 1078 of 2012 (O&M)                                           -7-from the reading of the opening paras of the judgement which are as

under:-"This order shall dispose of a bunch of writ petitions
                  which have been preferred by various petitioners.
                  However, the facts have been referred from CWP No.
                  4303 of 2009.The question of law, which has been referred to this
                  Full Bench for decision is as regards the rules which
                  would be applicable to government employees who
                  seek compassionate appointment whether it would be
                  the rules in operation at the time of death of the
                  employee or the rules applicable on the date when
                  case is considered by the appropriate authority. In
                  view of the conflicting views by various Division
                  Benches, the case has been referred to the Full
                  Bench."From the aforesaid, it becomes clear that in so far as

question of law referred to the Full Bench is concerned, it was

identical to the question which was arisen before us. Interestingly,

however,      this    question   had   arisen   in   completely   reverse

circumstances than those before us, which read as under:-"Petitioner's husband, who had been working as
                  Junior Engineer in Haryana Irrigation Department,
                  expired on 23rd February, 1995. On 5th May, 1995,
                  she moved an application to respondent department
                  for providing employment on compassionate grounds
                  to her only son namely, Manoj Kumar, who at that
                  time was seven years old. A letter was thereafter
                  addressed from the Superintending Engineer,
                  Narnaul requesting that a post be kept reserved for
                  the minor child of the widow in order to consider his
                  case on attaining majority. In the year 2005,
                  petitioner moved an application that her son be
                  considered for appointment on compassionate
                  ground as he had attained age of 17 years and was
                  going to appear in B.A. final year examination. She
                  relied upon letter, Annexure P-2 and instructions
                  issued by government dated 27th March, 1991.
                  However, application was rejected by the
                  respondents vide their letter dated 18th August, 2006.LPA No. 1078 of 2012 (O&M)                                            -8-The petitioner protested and sent representations.
                  However, stand of respondents remained the same.
                  They communicated to the petitioner that there was
                  no provision for employment under new policy dated
                  3rd August, 2006, thus petitioner was at liberty to opt
                  for financial assistance under the new scheme which
                  would be considered by the department."Thus, that case pertained to claiming appointment on

compassionate ground which provision was there in Rules 2003.

Under this provision, application for appointment on compassionate

ground was made in the year 2005. However, by the time this request

was rejected on 18.08.2006, new policy as per Rules 2006 had come

into force w.e.f. 03.08.2006, which provided for financial assistance.

On this basis, on the application of new policy, request of the

petitionerin that casewas rejected.The Court answered the question by holding that the policy

prior to 2006 would be applicable when the deceased employee died.

Reason given was that if the application for appointment was made

on the basis of policy prevalent at that time which gave right to the

dependent of the deceased employee to seek appointment on

compassionate basis this right could not have been taken away

merely because the application was kept pending for years and in the

meantime new policy came into force. The argument of the petitioner

that the policy on compassionate appointment being in a nature of

the social welfare measure needed interpretation was accepted. The

concluding portion of the said judgement reads as under:-"In view of this clear enunciation of law we cannot
                   but come to the conclusion that rules applicable on
                   the date of death/incapacitation of an employee needLPA No. 1078 of 2012 (O&M)                                             -9-to be followed. Needless to observe it is upto the
                   authority to consider the application without
                   inordinate delay and take a decision thereon. In the
                   eventuality application remains pending for
                   considerable period and some other policy comes
                   into operation, no fault can be found on part of the
                   employee. This appears to be the principle
                   recognized by the apex court in its recent judgement
                   in Bhawani Prasad Sonkar's case. As held therein,
                   application for compassionate employment has to be
                   preferred without undue delay and has to be
                   considered within a reasonable period of time as
                   compassionate appointment is to meet the sudden
                   crisis on account of death or invalidation of the
                   bread winner of the family. We, thus, come to the
                   conclusion that in case an application is made by the
                   dependent belatedly or is considered after inordinate
                   delay, basic requirement of meeting the immediate
                   crisis becomes redundant. Since the objective of the
                   policy is to rescue the family from sudden event
                   plunging it into penury, consideration of application
                   after number of years would be beyond the principles
                   accepted by the apex court in its various decisions. In
                   such circumstances, it would be difficult to accept the
                   exception to the general rule of employment as
                   envisaged byArticles 14and16of the Constitution
                   of India. We answer the reference accordingly."The answer was, thus, given taking note of the situation

where a benefit available under the said scheme which was prevalent

at the time of death was taken away by the promulgation of new

scheme. The Court took the view that since such a benefit had

accrued to the dependents of the deceased employee, namely,

consideration of their cases for compassionate appointment, the

dependents should not be deprived of this benefit because of the fault

of the employer in keeping the application pending with coming into

force the new policy.Learned counsel for the appellants has strongly relied upon

the aforesaid judgement to contend that in so far as the question ofLPA No. 1078 of 2012 (O&M)                                        -10-law is concerned, the same is answered by the Full Bench holding

that Rules in operation at the time of death of the employee are to be

made applicable and on this principle, Rules 2003 would be

applicable in the instant case. Interestingly, however, in the present

case, we are faced with a situation where by Rules 2006, better

benefit is provided than prevalent in Rules 2003, in so far as

financial assistance is concerned.Thus, the Full Bench was faced with a situation, where

benefit of compassionate appointment to the destitute family of the

deceased which was available in Rules 2003 was taken away in

Rules 2006 and the question was answered in that context holding

that such a benefit could not be taken away by the new Rules in

those cases where death took place before the incorporation of the

new scheme. On the contrary, in the present case, we are concerned

with compassionate financial assistance and provision in this aspect

in Rules 2006 is more favourable than what was available in Rules

2003. In such circumstances, the applicability of the aforesaid

judgement of the Full Bench in the present set of facts with

altogether different question seems to be doubtful.While interpreting the Rule in the aforesaid manner and

distinguishing the judgement of the Full Bench to the present set of

circumstances, we are guided by the law laid down by the Hon'ble

Supreme Court inOriental Insurance Co. Ltd. Vs Smt. Raj

Kumari and others2007 (13) SCALE 113. In the said case, well

known proposition, namely, it is ratio of a case which is applicableLPA No. 1078 of 2012 (O&M)                                            -11-and not what logically flows therefrom is enunciated in a lucid

manner. We would like to quote the following observations

therefrom:-"10. Reliance on the decision without looking into the
                  factual background of the case before it is clearly
                  impermissible. A decision is a precedent on its own
                  facts. Each case presents its own features. It is not
                  everything said by a Judge while giving a judgment
                  that constitutes a precedent. The only thing in a
                  Judge's decision binding a party is the principle upon
                  which the case is decided and for this reason it is
                  important to analyse a decision and isolate from it the
                  ratio decidendi. According to the well-settled theory
                  of precedents, every decision contains three basic
                  postulates - (i) findings of material facts, direct and
                  inferential. An inferential finding of facts is the
                  inference which the Judge draws from the direct," or
                  perceptible facts; (ii) statements of the principles of
                  law applicable to the legal problems disclosed by the
                  facts; and (iii) judgment based on the combined effect
                  of the above.A decision is an, authority for what it
                  actually decides. What is of the essence in a decision
                  is its ratio and not every observation found therein
                  nor what logically flows from the various
                  observations made in the judgment. The enunciation
                  of the reason or principle on which a question before
                  a Court has been decided is alone binding as a
                  precedent. (See:State of Orissa Vs Sudhansu
                  Sekhar Misra and Ors.(1970) ILLJ 662 SC and
                  Union of India and Ors. Vs Dhanwanti Devi and
                  Ors.(1996) 6 SCC 44. A case is a precedent and
                  binding for what it explicitly decides and no more.
                  The words used by Judges in their judgments are not
                  to be read as if they are words in Act of Parliament.In Quinn Vs Leathern (1901) AC 495 (H.L.), Earl of
                  Halsbury LC observed that every judgment must be
                  read as applicable to the particular facts proved or
                  assumed to be proved, since the generality of the
                  expressions which are found there are not intended to
                  be exposition of the whole law but governed and
                  qualified by the particular facts of the case in which
                  such expressions are found and a case is only an
                  authority for what it actually decides.11. Courts should not place reliance on decisions
                  without discussing as to how the factual situation fitsLPA No. 1078 of 2012 (O&M)                                             -12-in with the fact situation of the decision on which
                  reliance is placed. Observations of Courts are neither
                  to be read as Euclid's theorems nor as provisions of
                  the statute and that too taken out of their context.
                  These observations must be read in the context in
                  which they appear to have been stated. Judgments of
                  Courts are not to be construed as statutes. To
                  interpret words, phrases and provisions of a statute, it
                  may become necessary for judges to embark into
                  lengthy discussions but the discussion is meant to
                  explain and not to define. Judges interpret statutes,
                  they do not interpret judgments. They interpret words
                  of statutes; their words are not to be interpreted as
                  statutes. In London Graving Dock Co. Ltd. V. Horton
                  1951 AC 737 Lord Mac Dermot observed:The matter cannot, of course, be settled merely by
                  treating the ipsissima vertra of Willes, J as though
                  they were part of an Act of Parliament and applying
                  the rules of interpretation appropriate thereto. This is
                  not to detract from the great weight to be given to the
                  language actually used by that most distinguished
                  judge."In this case, the Hon'ble Supreme Court also highlighted

that one additional different fact may result in different outcome. It

is clear from the following observations therein:-"13. Circumstantial flexibility, one additional or
                 different fact may make a world of difference between
                 conclusions in two cases. Disposal of cases by blindly
                 placing reliance on a decision is not proper.14. The following words of Lord Denning in the
                 matter of applying precedents have become locus
                 classicus:Each case depends on its own facts and a close
                 similarity between one case and another is not enough
                 because even a single significant detail may alter the
                 entire aspect, in deciding such cases, one should
                 avoid the temptation to decide cases (as said by
                 Cordozo) by matching the colour of one case against
                 the colour of another. To decide therefore, on which
                 side of the line a case falls, the broad resemblance to
                 another case is not at all decisive.LPA No. 1078 of 2012 (O&M)                                            -13-Precedent should be followed only so far as it marks
                 the path of justice, but you must cut the dead wood
                 and trim off the side branches else you will find
                 yourself lost in thickets and branches. My plea is to
                 keep the path to justice clear of obstructions which
                 could impede it."The aforesaid principle was reiterated inGovernment of

Karnataka and others Vs Smt. Gowramma and others2007(14)

SCALE 613, wherein, the Court observed as under:-"10. Courts should not place reliance on decisions
                 without discussing as to how the factual situation fits
                 in with the fact situation of the decision on which
                 reliance is placed. Observations of Courts are neither
                 to be read as Euclid's theorems nor as provisions of
                 the statute and that too taken out of their context.
                 These observations must be read in the context in
                 which they appear to have been stated. Judgments of
                 Courts are not to be construed as statutes. To
                 interpret words, phrases and provisions of a statute, it
                 may become necessary for judges to embark into
                 lengthy discussions but the discussion is meant to
                 explain and not to define. Judges interpret statutes,
                 they do not interpret judgments. They interpret words
                 of statutes; their words are not to be interpreted as
                 statutes. In London Graving Dock Co. Ltd. Vs
                 Horton 1951 AC 737, Lord Mac Dermot observed:The matter cannot, of course, be settled merely by
                 treating the ipsissima vertra of Willes, J as though
                 they were part of an Act of Parliament and applying
                 the rules of interpretation appropriate thereto. This is
                 not to detract from the great weight to be given to the
                 language actually used by that most distinguished
                 judge."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 thereofLPA No. 1078 of 2012 (O&M)                                        -14-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 FullLPA No. 1078 of 2012 (O&M)                                        -15-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. Learned Single

Judge, therefore, rightly set aside orders dated 29.02.2008. We, thus,

do not find any merit in the present appeal which is accordingly

dismissed with costs quantified at Rs. 10,000/-.(A.K. SIKRI)
                                          CHIEF JUSTICE


                                     (RAKESH KUMAR JAIN)
                                           JUDGE
7th November, 2012
Amodh