Introduction:

The Supreme Court of India in The Commissioner, Nagpur Municipal Corporation & Ors. v. Lalita & Ors., 2025 LiveLaw (SC) 1065, delivered a significant judgment clarifying the legal principle surrounding the presumption of death and compassionate appointments. The Bench comprising Justice Pankaj Mithal and Justice Prasanna B. Varale set aside an order of the Nagpur Bench of the Bombay High Court which had directed the Nagpur Municipal Corporation to provide compassionate appointment to the son of a missing employee. The Court held that compassionate appointment is not a vested right but a welfare measure intended to alleviate the immediate hardship of a family when an employee dies in harness. Since the employee in question had retired and the family had accepted retirement and pensionary benefits, they could not later claim that he had died in service to avail the benefit of compassionate appointment. The case arose from the disappearance of one Gulab Mahagu Bawankule, a Municipal Corporation employee who went missing on September 1, 2012. Despite his disappearance, the Corporation treated him as being in service until his scheduled retirement on January 31, 2015. The family received all retiral benefits amounting to ₹6.49 lakh and a monthly pension of ₹12,000. Subsequently, in 2022, a civil court declared him dead without specifying an exact date of death. His son thereafter sought compassionate appointment, which the High Court granted by presuming death from the date of disappearance. Aggrieved by the High Court’s decision, the Nagpur Municipal Corporation appealed to the Supreme Court, challenging both the legal foundation of the presumption of death and the misuse of the compassionate appointment scheme.

Arguments:

On behalf of the appellants, Mr. Gagan Sanghi, Advocate, and Mr. Rameshwar Prasad Goyal, AOR, argued that the High Court had erred in law by treating the missing employee as dead from the date of his disappearance. They contended that under Section 108 of the Indian Evidence Act, 1872, the presumption of death arises only after the lapse of seven years from the date a person is last heard of. Until that statutory period expires, the law presumes that the person continues to be alive. Therefore, the High Court’s decision to consider the employee as dead from the date of disappearance was premature and contrary to settled legal principles. The appellants further contended that the compassionate appointment scheme is strictly meant for situations where an employee dies while in harness, i.e., during active service, leaving the family in sudden financial distress. Since Gulab Bawankule was deemed to have continued in service until his retirement on January 31, 2015, and his family had received full retirement benefits and pension, the purpose and spirit of compassionate appointment did not apply. The appellants emphasized that once the family accepted the retiral benefits, they implicitly acknowledged that the employee had retired rather than died in service. Hence, they could not subsequently shift their stance to claim the benefits of a scheme designed for a different contingency. The appellants relied on a series of precedents from the Supreme Court that strictly construed compassionate appointment as an exception to the general rule of public employment under Article 16 of the Constitution, highlighting that it cannot be claimed as a matter of right but only under specific compassionate grounds recognised by law.

Conversely, the respondents, represented by Ms. Chitra Parande, Advocate, assisted by Mr. Shishir Deshpande, AOR, and a team of advocates including Mr. Nilakanta Nayak, Mr. Amit Yadav, and others, argued that the family of the missing employee had suffered immense emotional and financial hardship due to the disappearance of the sole breadwinner. They maintained that the compassionate appointment scheme should be interpreted liberally to serve its underlying humanitarian purpose. The respondents submitted that the employee had gone missing in 2012 while still in service, and though he was later treated as retired in 2015, the reality was that his family had lost his support since 2012. They argued that a civil court had declared him dead in 2022, and such declaration should relate back to the date of disappearance for the purpose of granting compassionate relief. The respondents further asserted that the delay in obtaining a formal declaration of death was not the family’s fault but was due to procedural formalities. They contended that technical interpretations of Section 108 of the Evidence Act should not defeat the larger objective of social welfare embedded in compassionate appointment schemes. They urged the Court to uphold the High Court’s humane approach, which recognised that the purpose of such schemes is to mitigate distress rather than to apply strict statutory presumptions that might work hardship on the dependents of employees. The respondents also argued that since the compassionate appointment scheme is a welfare measure of the Municipal Corporation, the authority has discretion to extend its benefit even in exceptional circumstances where the employee’s disappearance effectively deprived the family of livelihood.

Judgement:

After hearing the arguments, Justice Pankaj Mithal, speaking for the Bench, delivered a reasoned judgment elaborating on the principles of law governing presumption of death and compassionate appointment. The Court observed that the presumption of death under Section 108 of the Indian Evidence Act arises only after the expiry of seven years from the date when a person was last heard of. Before the completion of this statutory period, no court or authority can legally presume that the person is dead. Therefore, the High Court erred in treating the employee as dead from 2012, barely two and a half years before his scheduled retirement, as such presumption could not have legally arisen. The Court further held that since the missing employee was treated to be in continuous service until his retirement date and his family had received all retiral dues and continued to receive monthly pension, the family had accepted the legal position that the employee had retired in the normal course. Once retiral benefits are accepted, the family cannot subsequently turn around to claim that the employee died in harness. The Court emphasized that compassionate appointment is not a hereditary or automatic right; it is a concession and an exception carved out from the general rule of recruitment to public service, meant solely to mitigate the sudden crisis that arises when a serving employee dies leaving the family in immediate distress. Since in the present case the employee was deemed to have completed his service and retired, the condition of “death in harness” was not satisfied.

The Court also took note of the fact that compassionate appointment cannot be claimed as a matter of course merely because the family of a deceased or missing employee continues to face hardship. It reiterated that such appointments are governed strictly by the rules of the employer and cannot be extended beyond the scope of those rules without violating the principle of equality in public employment. The Bench underscored that if courts begin to expand the scope of compassionate appointment beyond its defined limits, it would open the floodgates for claims that undermine merit-based recruitment. The Court observed, “It is pertinent to note that despite having gone missing, the employee was treated to be in continuous service and duly retired on 31.01.2015. The family members were paid all retiral dues and have also been receiving monthly pension. In these circumstances, when the respondent No.2 has accepted that his father had retired, he cannot claim compassionate appointment.” Justice Mithal clarified that the compassionate appointment scheme is not intended to compensate for every loss or hardship but to provide immediate relief in exceptional cases of sudden death during service.

In conclusion, the Supreme Court set aside the judgment of the Bombay High Court’s Nagpur Bench that had directed the Municipal Corporation to grant compassionate appointment to the missing employee’s son. However, in a balanced gesture, the Court left open to the appellants—the Municipal Corporation—the liberty to consider the respondent’s case for appointment to any suitable post within its jurisdiction, independent of the compassionate appointment scheme, by granting age relaxation if permissible under law. The Court’s decision thus struck a balance between the strict legal principles governing presumption of death and compassionate appointment and the equitable consideration of the family’s circumstances. The appeal was accordingly allowed, reaffirming the principle that compassionate appointment cannot be claimed once the family has accepted the retiral dues and pensionary benefits of the missing employee, as such acceptance legally amounts to recognition of the employee’s retirement rather than death in service.