Rashmi Sharma v. Union of India & Ors.

5.4. As regards ex-gratia lump sum compensation, he states that the manner/cause of death does not fall within the scope of O.M. dated 11.09.1998, as amended by O.M. dated 04.08.2016, and therefore the case is not covered for grant of ex-gratia compensation.

5.5. Regarding compassionate appointment, he submits that the Petitioner’scase, alongwith other eligible cases, was placed before a Board of Officers for assessment of Relative Merit Points [‘RMP’] as per parameters laid down in MoD (D/Lab) ID No. 19(2)/2017/D(Lab) dated 09.01.2018and a consolidated merit list was prepared against vacancy year 2022, wherethePetitionerwas awarded 45 RMP, however,dueto a capping on the vacancies which can be filled up with compassionate appointments, thePetitioner who was at serialno. 394 out of 543 candidates could not be offered thecandidature, dueto lack of vacancies. He refers to the impugned communicationdated25.09.2024issuedto thePetitionerconveyingthe said decision.

5.6. He relies on O.M. dated 16.01.2013[4], stating that compassionate appointment is subject to relative merit and is limited to 5% of direct recruitment vacancies in Group ‘C’ posts.

5.7. He states that no assurance can be given for appointment on compassionategrounds, and the Petitioner’s case depends upon her RMP and position on the eligible candidates list. However, as recorded in the order dated 25.09.2024 she can apply for the next vacancy year. Case Analysis

6. This Courthas heardthelearned counsels for theparties and perused the record.

7. The issues arisingfor consideration in thepresentwrit petition are (a) the claim of ex-gratia compensation as per OM dated 11.09.1998 as amended on 04.08.2016;and (b)re-consideration ofthe Petitioner’scase for compassionate appointment against the vacancy of 2022.

(i) Entitlement of ex-gratia compensation

8. The Learned counselfor thePetitioner contendsthat late Sh. Mukesh Kumar Sharma (‘thedeceased’) was working with the ERBO as JE (Civil) since 30.09.2002. Starting from 2002 till June 2021, the deceased was continuouslydeployed in very hostilelocations. He submits that the nature of duties required the deceased to work in harsh climatic conditions, including high altitudes and regular exposure to extreme hostile weather conditions,occupationalpollutants. Hesubmitsthat the condition of cancer contracted by the deceased, in the present case is attributable to large amountofdust from rocks, soiland gravel, specially duringblasting, drilling and crushingas partofhis duties as a JE along with occupation pollutants like diesel exhaustand equipmentfumes, dustparticles,silica exposure, UV radiationand physicalstrain. Hesubmitsthat thereforethedisease of cancer contracted by the deceased is attributable to the service conditions. Additionally, it is the stand of the Petitioner that while the deceased was ‘on duty’ on 20.12.2021,he felt pain in his chest and was taken to the Hospital, wherehedied on the same day and the immediate cause of death was recorded as ‘cardio pulmonaryarrest’. He states that in these facts the Petitioner is entitled to receive ex-gratia lumpsum compensation of Rs. 25 lakhs in terms of OM dated 11.09.1998 as amended on 04.08.2016.

8.1. He contends that theRespondent haserroneouslyrejected theclaim of ex-gratia compensation vide impugned letter dated 05.06.2023 and have incorrectly attributed the death to cancer terming it as a natural cause, whereas, according to the medical certificate dated 20.12.2021, the immediate cause of death is recorded as cardio pulmonary arrest’. The Petitioner alsodisputesthestand oftheRespondentthatthedeceased was on leave on the day of his demise, i.e., on 20.12.2021.

8.2. The specific entry in the OM dated 04.08.2016 relied upon by the Petitioner pertains to cases where death occurs due to an accident in the courseof performanceof duties. Sincethecontroversy in thepresent matter turnsuponthescopeand applicability ofthesaid OM dated 04.08.2016, the relevant extract of the OM dated 04.08.2016 is reproduced hereinbelow:

9. Conversely, leaned counsel for the Respondent states that the deceased died a naturaldeath dueto cancer. He statesthat the deceased had remained on leave for a total period of 595 days between 20.05.2018 to 08.06.2021 on various grounds and was also undergoing treatment for mouth cancer (left buccal mucosa).

9.1. He submits that the death certificate expressly records, the cause of death ofthe deceased occurred due to ‘Recurrent Metastatic Carcinoma of Buccal Mucosa with Sepsis with Shock with Hypoalbuminemia, Hypokalemia Type-IIRespiratoryFailurewith hyperbilirubinemia’,though, theimmediatecausehas been recorded as ‘Cardio Pulmonary Arrest’. The relevant extract of the medical certificate reads as under:

9.2. Additionally, hestates thatdeceased was on sanctioned six (6) days’ casualleavew.e.f. 13.12.2021to 20.12.2021, with due permission to avail 18th and 19th December, 2021 (Saturday and Sunday) as intervening holidays. He states that during the said leave period, the deceased was admittedto the Hospital on 20.12.2021, wherehepassed away on the same day and was therefore not ‘on duty’.

9.3. In these facts, the Respondent contends that the family of the deceased is not entitled to claim ex-gratia compensationas per theOM dated 11.09.1998 as amended by OM dated 04.08.2016, as the death of the deceased was neither an accident nor did it occur on duty. It is contended that therefore there is no causal connection between the death of the deceased and the service.

10. The fundamental basis of the Petitioner’s claim for ex-gratia compensation is based on thejudgmentsofthe Division Bench in Ram Devi (supra), Sangita Tomar (supra) and on the judgment in Pushpa Devi (supra). Thus, before we opine upon the Petitioner’s challenge to the impugned order dated 05.06.2023, we deem it appropriate to set out the relief granted by the coordinate Benches in the aforesaid judgments.

10.1. In thecase of Ram Devi (supra), the Division Bench was concerned with the claim of ex-gratia compensation as per OM dated 11.09.1998 as modified by OM dated 02.09.2008. In the said case, the Court concluded that the force personnel died due to heart attack within 15 minutes of completingambush-cum-patrolling duty at the border outpost. The Court held that the stress occured while performing the ambush-cum-patrolling duty could have contributed to the heart attack suffered by the force personnel. TheCourtobservedthatthedeath oftheforce personnel suffered after performing actual duty would be a case of an accidental death in the courseof performanceof duties. In thesefacts, theCourt concluded that the family of the force personnel therein was entitled to ex-gratia lumpsum compensation as per OM dated 11.09.1998 as modified by OM dated 02.09.2008.

10.2. In the case of Sangita Tomar (supra) the Division Bench was concerned with the claim of ex-gratia compensation as per OM dated 11.09.1998as modified by OM dated 04.08.2016. In thesaid case, theCourt concluded thattheforce personnelwas servinga hard posting in Arunachal Pradeshwhen hedied of a heart attack on 21.01.2018. TheCourt noted that on 20.01.2018, theforcepersonnelhas goneto visit a road sector O-K-S-R- T Road and Shergaon-Morshing-PhudungRoad and returnedto his location at Shergaon at 1910hours, andwhilereturninghe complained ofchest pain. The Courtnotedthatthough theforcepersonnel was rushed to the military Hospital, which was located at a distance of 65 kilometres, immediate medical assistancecould not be provided to him and it was provided only after three [3] hours. In these facts, the Court concluded that the force personnel’s death occurred during the official course of his duties and therefore the family of the force personnel was held entitled to ex-gratia compensation.

10.3. The Petitioner has also relied upon the judgment of High Court of Punjab and Haryana in Pushpa Devi (supra) for grant of ex-gratia compensation,wherethedeath was causeddueto heart attack.In the facts of the said case, the Court noted that since at the time of the death the force personnelwas ‘on duty’ and he died due to heart attack, the family of the deceased would be entitled to ex-gratia compensation.

10.4. Thus, as can be seen in theaforesaid judgmentstheCourts concluded that the deceased force personnel therein was ‘on duty’ at the time of his death and his death by heartattack, occurred dueto serviceconditions. And, on thesefindings, theCourtsgranted ex-gratia compensationto thefamily of the deceased personnel therein.

11. In this background of law settled by the aforesaid judgments, this Court has to determine whether late Sh. Mukesh Kumar Sharma was ‘on duty’on 20.12.2021and whether his death due to heart attack occurred on account of his service conditions.

12. The Petitioner has contended that the deceased was ‘on duty’ on 20.12.2021 and was posted at HQ DGBR New Delhi w.e.f. June 2021. On the other hand, the Respondent in its counter affidavit has contended that the deceased had availed casual leave w.e.f. 13.12.2021 to 20.12.2021with permission to avail 18th and 19th December, 2021, being a Saturdayand Sunday.It is stated thatwhilethe deceased was on leave when he was admittedat theHospital on 20.12.2021 and he passed away on the same day, as per the medical certificate. It is thus contended that the deceased was not ‘on duty’ as on 20.12.2021. The Petitioner in the rejoinder has disputed this stand of the Respondent and asserted that the deceased was not on leave as on 20.12.2021, but ‘on duty’.

12.1. Neither partyhas been ableto produceany documents to substantiate their respective stands. Thus, the contention of the Petitioner that the deceased was ‘on duty’ as on 20.12.2021 is a disputed question of fact.

12.2. We have, however, perused the medical certificate dated 20.12.2021 issued by the Hospital and find that the same records the name of one Mr. Rakesh Ranjan as the brother of the deceased, in the right hand corner, which leads the Court to believe that the deceased was brought to the Hospital on 20.12.2021by his brother which indicatesthatthedeceased was with his family and on leave. We also notethat the Hospital in question is a cancer institute and considering the admitted fact that the deceased was undergoing cancer treatment at the relevant time, it appears that the deceased was consciously brought to the said Hospital due to his medical history of cancer.

12.3. We arethereforein thesefacts unable to conclude that deceased was ‘on duty’as on 20.12.2021. Moreover, since Respondent is a government organisationand thecounteraffidavithas been sworn by the Joint Director (legal) deposing that the deceased was on leave as on 20.12.2021, we are unable to reject the said assertion of facts

13. Notwithstanding the aforesaid conclusion, we have also examined whether the death of late Sh. Mukesh Kumar Sharma was due to heart attack, as contended in the petition.

13.1. The medicalcertificate has been extracted aboveand it clearly records that theimmediatecauseofthe death as cardio pulmonary arrest, however, the antecedent cause is expressly recorded as “Recurrent Metastatic Carcinoma of Buccal Mucosa with Sepsis with Shock with Hypoalbuminemia, Hypokalemia, Type-II Respiratory Failure with Hyperbilirubinemia”(cancer). Thesaid medical certificateis undisputedand infact the Petitioner has also placed reliance upon the same. We are therefore, unable to accept the submission of the Petitioner that thecauseof death is heart attack and not cancer, as this is contrary to the medical opinion recorded in the said certificate.

13.2. In the present petition, there are pleadings to allege that the cancer was caused due to service conditions and there is no family history of cancer, however, this submission was not pressed during oral arguments. Even otherwisewe do not find any medical opinion on record to accept the said contention raised in the petition and we are unable to presume that cancer was caused due to the service conditions.

13.3. The facts on record demonstratethatthedeceased was diagnosed with cancer on 02.04.2020 andwas undergoingtreatmentat Patna and thereafter at Rajeev Gandhi Cancer Hospital Delhi. In fact, admittedly, the deceased was postedby theRespondents at Delhi to enable him to continue with his cancer treatment w.e.f. June 2021 and he unfortunately passed away on 20.12.2021 due to cancer, as recorded in the medical certificate. In these facts, we are thereforeunableto concludethatthe death of late Sh. Mukesh Kumar Sharma had any causal connection with his service conditions.

14. In view of the aforesaidfindings, we are unable to find any illegality in the impugnedorderdated 05.06.2023passed by theRespondents rejecting thePetitioner’s claim for ex-gratia compensation as we are of the opinion that thedeath oflateSh. Mukesh KumarSharma did not occur in the course of performance of his duties. Therefore, the relief seeking quashing of the decision dated 05.06.2023 is hereby rejected.

(ii) Consideration of the Petitioner for compassionate appointment

15. The Petitioner has also prayed that she must be considered for compassionate appointment. It is stated that she is a widow, has a minor child and her in laws. It is stated that she is holding the qualification of M.A., B.Ed., with stenoexperience and had duly applied for the vacancies of 2022. It is stated that duringthependencyof the present proceedings the Petitioner hasreceived a communication dated 25.09.2024 stating that her candidaturecould not beconsidered againstthevacancies for theyear 2022. The said order has been impugned in the rejoinder.

15.1. The Petitionercontendsthattheimpugned order directs her to apply for the vacancy year of 2023 with a fresh application and supporting documents, which is onerous. It is contended that the Petitioner’s candidature which was verified for the vacancy year 2022 ought to be reconsidered against the vacancies for 2022.

16. The Respondenthascontended that the Petitioner’s application was duly placed before the Board of Officers for consideration against the vacancy year 2022. It is stated thatappointmenton compassionateground is regulated by OM dated 16.01.2013and such appointments can be upto 5% of vacancies falling under direct recruitment quota in any Group ‘C’ post.

16.1. It is stated that case of an applicant/Petitioner for compassionate appointmentis madeafter assessing the RMP in accordance with the MoD (D/Lab) ID No. 19(2)/2017/D(Lab) dated 09.01.2018. It is stated that the RMP is assessed outof100 pointsscaleon the basis of the economic status of a family as per thegoverningOMs and thePetitioner was given 45 RMP.

16.2. It is stated that videimpugned order dated 25.09.2024 the Petitioner was also called upon to apply afresh for next vacancy year.

17. In response, the Petitioner contends that Petitioner was awarded wrongmerit points45 by the Board of Officers against the expected merit points 61 and therefore there has been wrong calculation of merit points deprivingher of consideration for thevacancyyear 2022. In view of this, the Petitioner seeks re-consideration for the vacancy year 2022.

18. We haveconsideredthesubmissionsofthe parties on this issue. The Respondents have not disputed that the Petitioner is entitled for consideration for compassionate appointment and have submitted that in fact, Petitioner’sapplicationhas been duly considered for the vacancy year 2022, however, dueto thecapping of 5% on compassionate appointments against direct recruitments and large number of eligible applicants, the Petitioner whowas at serialno. 394 out of543 eligible candidates could not be offered appointment. The Respondent has called upon the Petitioner to applyfor thevacancy year 2023, however,Petitioner hasnot applied for the same.

19. Although the Petitioner has impugned the communication dated 25.09.2024, whereby shewas informed oftheRespondent’sinabilityto offer her appointment for the vacancy year 2022, no cogent grounds for challenging the said order have been made out. The Petitioner has been unableto demonstrateany illegality or arbitrariness in the decision-making process of the Respondent that led to the issuance of the communication dated 25.09.2024.

20. Since no substantive challenge to the impugned order dated 25.09.2024was raised by way ofamendmentto the writ petition, the stand of the Respondent regarding the basis for assessing the Petitioner’s merit points at 45 has not come on record.

21. This petition has been pending since the year 2023 and we find no reason now to embarkuponan enquiryas to thebreakup of the merit points 45 awarded to thePetitioner,especially sincethevacancies for theyear 2022 have already been filled and third-party rights have been created.

22. However, since the Petitioner’s entitlement to apply for compassionate appointment is not in dispute and she remains eligible to apply afresh, we direct that, in the event the Petitioner submits an application for the upcoming vacancy year, the same shall be duly considered. In such an event, the break-up as well as the basis of the merit points awarded to her by theBoard of Officers shall also be communicated to her within four [4] weeks of the decision thereon, so as to enable her to availof her remedies in accordancewith law, in theevent her candidature is once again rejected for the said vacancy year.

23. No further directionsfor compassionateappointment arebeing issued in the present proceedings.

24. With theaforesaid directions, thepetitionstandsdisposed of. Pending applications stand disposed of.

MANMEET PRITAM SINGH ARORA (JUDGE)

V. KAMESWAR RAO

(JUDGE) APRIL 15, 2026/rhc/AJ