WP(C) No16376/2023 Page 1 of 16

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment Reserved on: 11.03.2026

Judgment delivered on: 15.04.2026

Judgment uploaded on: 15.04.2026

+ W.P.(C) 16376/2023

SMT RASHMI SHARMA .....Petitioner

Versus

UNION OF INDIA & ORS. .....Respondents

Advocates who appeared in this case

For the Petitioner : Mr. Gajendra Giri and Mr. Aditya Giri,

Advs.

For the Respondent : Mr. Niraj Kumar, SCGC with Mr.

Chaitanya Kumar, Advocate.

CORAM:

HON'BLE MR. JUSTICE V. KAMESWAR RAO

HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA

JUDGMENT

MANMEET PRITAM SINGH ARORA , J.

1. The present writ petition has been filed under Article 226 of

Constitution of India with the following prayers:

“It is, therefore, most respectfully prayed that this Hon'ble Court may

graciously be pleased to issue a Writ in the nature of Certiorari

quashing/ setting aside thereby the communication of the respondents

vide No. 10936/ DGBR/ Retire/ 38/ IRLA dated 5.6.2023 and a Writ

in the nature of Mandamus directing the respondents for granting the

WP(C) No16376/2023 Page 2 of 16

Ex- Gratia Compensation to the Petitioner as per the provisions of the

DOP& T OM. NO. 45/55/97 P& PW ( C ) dated 11.9.1998 as

amended on 4.8.2016 as OM NO. F.NO. 38/37/ /2016-P&PW (A) (1)

dated 4.8.2016 and to consider her for compassionate appointment.

Any other or further order/directions may also be passed by this

Hon'ble Court in favor of the Petitioner in the facts and circumstances

of the case to meet the ends of justice.”

2. The relevant facts for adjudicating the present writ are as under:

2.1. The Petitioner’s husband, late Sh. Mukesh Kumar Sharma, served

with the Esteemed Border Roads Organisation [‘EBRO’] as JE (Civil) from

30.09.2002 till his death on 20.12.2021, having rendered about 19 years 2

months 10 days of service. The Petitioner asserts that from 2002 till June

2021 her husband [‘deceased’] was continuously deployed in high-

altitude/hostile and hard areas, and the nature of duties involved exposure to

harsh climatic conditions and occupational hazards.

2.2. It is the case of the Petitioner that the deceased was diagnosed with

cancer in the year 2020 and underwent treatment at Rajiv Gandhi Cancer

Hospital, Delhi, whereafter he resumed his official duties. It is further stated

that on 20.12.2021, while he was on duty, he developed chest pain and was

immediately taken to Yashoda Hospital and Research Centre, Ghaziabad

[‘Hospital’], where he expired. Relying upon the death summary, the

Petitioner asserts that the immediate cause of death was cardio-

pulmonary/cardiac arrest and, therefore, the demise of her husband occurred

while in harness on a working day.

2.3. The Petitioner applied for compassionate appointment on 06.04.2022

and thereafter submitted a representation dated 02.05.2023 seeking ex-gratia

compensation as per the provision of DOP& T OM. NO. 45/55/97 P& PW (C)

dated 11.9.1998 [‘O.M. dated 11.09.1998’] as amended on 4.8.2016 as OM NO.

WP(C) No16376/2023 Page 3 of 16

F.NO. 38/37/ /2016-P&PW (A) (1) dated 4.8.2016 [‘O.M. dated 04.08.2016’].

2.4. The Respondents rejected the Petitioner’s claim of ex-gratia

compensation vide impugned letter dated 05.06.2023, on the ground that the

deceased had died of cancer, which, according to them, constituted a natural

cause of death. The Respondents have further taken the position that the

death had not occurred while the deceased was ‘on duty’.

3. The Petitioner disputes the said reasoning for denying compensation

and asserts that the deceased was not on leave and further contends that the

Respondents have incorrectly attributed the death to cancer as a natural

cause, whereas, according to the medical record relied upon by her, the

immediate cause of death was cardiac arrest.

3.1. Learned counsel appearing for the Petitioner has placed reliance upon,

the decisions in Sangita Tomar v. Union of India

1

, Ram Devi v. DG,

BSF

2

, and Pushpa Devi v. Union of India

3

in support of the submission

that ex-gratia compensation has, in appropriate cases, been held to be

payable where death has occurred, while on duty on account of heart

attack/cardiac arrest. It is contended that the principle emerging from the

aforesaid decisions is that where an employee dies in harness as a result of a

sudden cardiac event, such death ought not to be excluded from the ambit of

ex-gratia compensation merely by characterising it as a natural death and the

claim of the present Petitioner also deserves to be considered in the same

light.

3.2. He contends that the Respondents have also acted arbitrarily in the

matter of compassionate appointment by adopting an improper cut-off and

1

W.P.(C) 6176/2020, decided 01.09.2022

2

W.P.(C) 3527/2013, decided 27.05.2015

3

CWP No. 6894/2015, decided on 18.04.2017

WP(C) No16376/2023 Page 4 of 16

delayed schedule for considering vacancies of year 2022 and rejecting

Petitioner’s candidature vide impugned order dated 25.09.2024 [impugned

in the rejoinder] on alleged technical grounds including the Petitioner’s

higher qualification.

4. In these circumstances, the Petitioner has filed the present petition

seeking to grant ex-gratia compensation of Rs. 25,00,000/- under the O.M.

dated 11.09.1998 as amended by O.M. dated 04.08.2016, and to reconsider

her case for compassionate appointment in accordance with the applicable

policy/guidelines.

Submission on behalf of the Respondent

5. Learned counsel for the Respondents states that the deceased was

granted 06 days Casual Leave from 13.12.2021 to 20.12.2021. He stated that

while the deceased was on leave, he was admitted to the Hospital on

20.12.2021, and expired on the same day as per the medical certificate.

5.1. He relies on the death certificate which records the cause of death as

“Recurrent Metastatic Carcinoma of Buccal Mucosa with Sepsis with Shock

with Hypoalbuminemia, Hypokalemia Type-II Respiratory Failure with

hyperbilirubinemia”, [‘cancer’] and contends that the demise was due to

natural cause, and not by heart attack.

5.2. He further states that prior to death, the deceased had availed more

than 595 days of leave between 20.05.2018 and 08.06.2021 on various

grounds, remained off duty for long periods, and overstayed sanctioned

leave on several occasions. He states that the deceased was also undergoing

treatment for mouth cancer (left buccal mucosa).

5.3. He states that all pensionary benefits have already been released to the

Next of Kin [‘NoK’] through DGBR/Pension Cell.

WP(C) No16376/2023 Page 5 of 16

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’s case, along with 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

09.01.2018 and a consolidated merit list was prepared against vacancy year

2022, where the Petitioner was awarded 45 RMP, however, due to a capping

on the vacancies which can be filled up with compassionate appointments,

the Petitioner who was at serial no. 394 out of 543 candidates could not be

offered the candidature, due to lack of vacancies. He refers to the impugned

communication dated 25.09.2024 issued to the Petitioner conveying the 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

compassionate grounds, 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 Court has heard the learned counsels for the parties and perused

the record.

4

DoPT O.M. F. No. 14014/02/2012-Estt.(D)

WP(C) No16376/2023 Page 6 of 16

7. The issues arising for consideration in the present writ 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 of the Petitioner’s case for

compassionate appointment against the vacancy of 2022.

(i) Entitlement of ex-gratia compensation

8. The Learned counsel for the Petitioner contends that late Sh. Mukesh

Kumar Sharma (‘the deceased’) was working with the ERBO as JE (Civil)

since 30.09.2002. Starting from 2002 till June 2021, the deceased was

continuously deployed in very hostile locations. 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, occupational pollutants. He submits that the condition of cancer

contracted by the deceased, in the present case is attributable to large

amount of dust from rocks, soil and gravel, specially during blasting, drilling

and crushing as part of his duties as a JE along with occupation pollutants

like diesel exhaust and equipment fumes, dust particles, silica exposure, UV

radiation and physical strain. He submits that therefore the disease 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, where he died on the same day and the immediate cause of death

was recorded as ‘cardio pulmonary arrest’. 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 the Respondent has erroneously rejected the claim of

ex-gratia compensation vide impugned letter dated 05.06.2023 and have

WP(C) No16376/2023 Page 7 of 16

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 also disputes the stand of the Respondent that the deceased 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

course of performance of duties. Since the controversy in the present matter

turns upon the scope and applicability of the said 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 natural death due to cancer. He states that 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 of the deceased occurred due to ‘Recurrent Metastatic Carcinoma of

WP(C) No16376/2023 Page 8 of 16

Buccal Mucosa with Sepsis with Shock with Hypoalbuminemia,

Hypokalemia Type-II Respiratory Failure with hyperbilirubinemia’, though,

the immediate cause has been recorded as ‘Cardio Pulmonary Arrest’. The

relevant extract of the medical certificate reads as under:

9.2. Additionally, he states that deceased was on sanctioned six (6) days’

casual leave w.e.f. 13.12.2021 to 20.12.2021, with due permission to avail

18th and 19th December, 2021 (Saturday and Sunday) as intervening

WP(C) No16376/2023 Page 9 of 16

holidays. He states that during the said leave period, the deceased was

admitted to the Hospital on 20.12.2021, where he passed 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 compensation as per the OM 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 the judgments of the 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 the case 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

completing ambush-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. The Court observed that the death of the force personnel suffered

after performing actual duty would be a case of an accidental death in the

course of performance of duties. In these facts, the Court concluded that the

family of the force personnel therein was entitled to ex-gratia lumpsum

WP(C) No16376/2023 Page 10 of 16

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

11.09.1998 as modified by OM dated 04.08.2016. In the said case, the Court

concluded that the force personnel was serving a hard posting in Arunachal

Pradesh when he died of a heart attack on 21.01.2018. The Court noted that

on 20.01.2018, the force personnel has gone to visit a road sector O-K-S-R-

T Road and Shergaon-Morshing-Phudung Road and returned to his location

at Shergaon at 1910 hours, and while returning he complained of chest pain.

The Court noted that though the force personnel was rushed to the military

Hospital, which was located at a distance of 65 kilometres, immediate

medical assistance could 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, where the death was caused due to heart attack. In the facts of

the said case, the Court noted that since at the time of the death the force

personnel was ‘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 the aforesaid judgments the Courts concluded

that the deceased force personnel therein was ‘on duty’ at the time of his

death and his death by heart attack, occurred due to service conditions. And,

WP(C) No16376/2023 Page 11 of 16

on these findings, the Courts granted ex-gratia compensation to the family 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 20.12.2021 and 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

20.12.2021 with permission to avail 18

th

and 19

th

December, 2021, being a

Saturday and Sunday. It is stated that while the deceased was on leave when

he was admitted at the Hospital 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 party has been able to produce any 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 20.12.2021 by his brother which indicates that the deceased was

WP(C) No16376/2023 Page 12 of 16

with his family and on leave. We also note that 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 are therefore in these facts unable to conclude that deceased was

‘on duty’ as on 20.12.2021. Moreover, since Respondent is a government

organisation and the counter affidavit has 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 medical certificate has been extracted above and it clearly records

that the immediate cause of the 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). The said medical certificate is undisputed and

infact the Petitioner has also placed reliance upon the same.

We are therefore, unable to accept the submission of the Petitioner

that the cause of 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.

WP(C) No16376/2023 Page 13 of 16

Even otherwise we 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 demonstrate that the deceased was diagnosed with

cancer on 02.04.2020 and was undergoing treatment at Patna and thereafter

at Rajeev Gandhi Cancer Hospital Delhi. In fact, admittedly, the deceased

was posted by the Respondents 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 therefore unable to conclude that the death of late Sh. Mukesh

Kumar Sharma had any causal connection with his service conditions.

14. In view of the aforesaid findings, we are unable to find any illegality

in the impugned order dated 05.06.2023 passed by the Respondents rejecting

the Petitioner’s claim for ex-gratia compensation as we are of the opinion

that the death of late Sh. Mukesh Kumar Sharma 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 steno experience and had duly applied for the vacancies

of 2022. It is stated that during the pendency of the present proceedings the

Petitioner has received a communication dated 25.09.2024 stating that her

candidature could not be considered against the vacancies for the year 2022.

The said order has been impugned in the rejoinder.

WP(C) No16376/2023 Page 14 of 16

15.1. The Petitioner contends that the impugned 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 Respondent has contended that the Petitioner’s application was

duly placed before the Board of Officers for consideration against the

vacancy year 2022. It is stated that appointment on compassionate ground is

regulated by OM dated 16.01.2013 and 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

appointment is made after 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 out of 100 points scale on the basis of the economic status

of a family as per the governing OMs and the Petitioner was given 45 RMP.

16.2. It is stated that vide impugned 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

wrong merit points 45 by the Board of Officers against the expected merit

points 61 and therefore there has been wrong calculation of merit points

depriving her of consideration for the vacancy year 2022. In view of this, the

Petitioner seeks re-consideration for the vacancy year 2022.

18. We have considered the submissions of the 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’s application has been duly considered for the vacancy year

WP(C) No16376/2023 Page 15 of 16

2022, however, due to the capping of 5% on compassionate appointments

against direct recruitments and large number of eligible applicants, the

Petitioner who was at serial no. 394 out of 543 eligible candidates could not

be offered appointment. The Respondent has called upon the Petitioner to

apply for the vacancy year 2023, however, Petitioner has not applied for the

same.

19. Although the Petitioner has impugned the communication dated

25.09.2024, whereby she was informed of the Respondent’s inability to offer

her appointment for the vacancy year 2022, no cogent grounds for

challenging the said order have been made out. The Petitioner has been

unable to demonstrate any 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

25.09.2024 was raised by way of amendment to 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 embark upon an enquiry as to the breakup of the merit points

45 awarded to the Petitioner, especially since the vacancies for the year 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

WP(C) No16376/2023 Page 16 of 16

points awarded to her by the Board of Officers shall also be communicated

to her within four [4] weeks of the decision thereon, so as to enable her to

avail of her remedies in accordance with law, in the event her candidature is

once again rejected for the said vacancy year.

23. No further directions for compassionate appointment are being issued

in the present proceedings.

24. With the aforesaid directions, the petition stands disposed of. Pending

applications stand disposed of.

MANMEET PRITAM SINGH ARORA

(JUDGE)

V. KAMESWAR RAO

(JUDGE)

APRIL 15, 2026/rhc/AJ