Delhi High Court
Smt. Kamlesh vs The Chief General Manager, State ... on 25 August, 2009
Author: Sunil Gaur
* HIGH COURT OF DELHI : NEW DELHI
Judgment reserved on : August 17, 2009
Judgment delivered on : August 25, 2009
+ W.P. (C) No.166/2009
% Smt. Kamlesh ... Petitioner
Through: Mr. Kartar Singh, Advocate.
versus
The Chief General Manager,
State Bank of India & Ors. ... Respondents
Through: Mr. S.L. Gupta and Mr. Virender Singh,
Advocates.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local
papers may be allowed to see
the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be
reported in the Digest?
SUNIL GAUR, J.
1. Petitioner's husband had died in harness. She is seeking
employment on compassionate grounds. In the alternative, prayer is
for 'ex-gratia' payment under the SBI Scheme for payment of ex-
gratia lump sum amount.
2. Petitioner, upon untimely death of her husband, had sought
employment with Respondent - Bank, vide application (Annexure P-
6). According to the Petitioner, Respondent No. 2 had recommended
W.P. (C) No.166/2009 Page 1
Petitioner's application for appointment on compassionate ground
vide communication (Annexure P-7) to the Higher Authorities. In
December, 2006, Petitioner was verbally informed by the officials of
Respondent No. 2 (hereinafter referred to as Respondent - Bank)
that the Scheme of Employment has been replaced by new scheme
(Annexure P-8) vide which instead of employment on compassionate
ground, 'ex-gratia' lump sum amount is paid. On 23rd January, 2007,
Petitioner claims to have applied for 'ex-gratia' payment and on 27th
July, 2007, Petitioner was informed vide letter (Annexure P-9) that
her request for 'ex-gratia' lump sum amount payment cannot be
considered as the last date for applying for the same was up to 31 st
August, 2006. However, Petitioner was again informed on 26th June,
2008, vide communication (Annexure P-10) that delayed submission
of the application, was the reason for denial of 'ex-gratia' lump sum
amount to her.
3. In this petition, Petitioner claims that the new Scheme
(Annexure P-8) came into force on 4th August, 2006 and although,
Petitioner's application for appointment on compassionate ground
was pending, Respondent - Bank did not inform the Petitioner about
the new Scheme (Annexure P-8) and when Petitioner was verbally
informed about it, in December, 2006, she immediately applied for the
'ex-gratia' payment.
W.P. (C) No.166/2009 Page 2
4. Respondent - Bank in its counter affidavit, asserts that
compassionate appointment cannot be offered to the Petitioner in
view of the decision of the Apex Court in case of „Umesh Kumar
Nagpal vs. State of Haryana and Others‟, JT 1994 (3) SC 525.
Regarding the grant 'ex-gratia' payment to the Petitioner, the stand of
the Respondent - Bank is that the time for applying for the same was
up to 31st August, 2006 and the Petitioner had applied for the same
beyond the last date and so, the alternate relief prayed for, cannot be
granted. It is also pointed out that the Petitioner had refused to accept
the 'ex-gratia' lump sum amount vide her letter of 28th January, 2006
(Annexure R-1).
5. In the rejoinder, filed by the Petitioner, it has been denied that
the Petitioner had refused to accept the 'ex-gratia' lump sum amount
in lieu of appointment of compassionate ground. However, the
Petitioner does not state that the letter (Annexure R-1), purportedly
written by her, is not signed by her.
6. After having heard both the sides and upon perusal of the
material on record, I find that the scope of the power to issue writ of
mandamus has been highlighted by the Apex Court in „State of U.P.
& Others vs. Harish Chandra & Others‟ (1996) 9 SCC 309, in the
following words:-
"Under the Constitution a mandamus can be issued by
the court when the applicant establishes that he has a
W.P. (C) No.166/2009 Page 3
legal right to the performance of legal duty by the party
against whom the mandamus is sought and the said right
was subsisting on the date of the petition. The duty that
may be enjoined by mandamus may be one imposed by
the Constitution or a Statute or by Rules or orders having
the force in law. But no mandamus can be issued to direct
the Government to refrain from enforcing the provisions of
law or to do something which is contrary to law."
7. Whether letter (Annexure R-1) refusing to accept 'ex-gratia'
payment was written by the Petitioner is a disputed question of fact,
which cannot be gone into these writ proceedings. The only option is
to let the Petitioner negate letter (Annexure R-1) by resorting to file a
civil suit. For want of proof, the relief prayed for cannot be granted in
these proceedings. Fresh attempt in January, 2007, to obtain relief
prayed for, cannot be acceded to, till petitioner succeeds in dislodging
the letter Annexure R-1.
8. Consequently, this writ petition is disposed of while giving
liberty to the Petitioner to take recourse in civil remedy as available
under the law. In case, Petitioner chooses to file a civil suit, then
anything stated herein shall have no bearing on merits.
9. No costs.
Sunil Gaur, J.
August 25, 2009
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