An appointment on compassionate grounds on probation is also a regular appointment not temporary .

 Explanation and answer of questions concerned with the appointment on compassionate grounds by the larger bench of High court of judicature at Allahabad. 
The
reference 
By a
referring order of a Division Bench dated 5 August 2015, the following
questions of law have been referred for adjudication by the Full Bench1: 
1. Where a
person is granted compassionate appointment as a member of the family of a
deceased employee of the government who has died in harness in relaxation of
the normal rules for recruitment, is it not necessary that even a compassionate
appointee be placed on probation in the first instance, in the same manner as
any other direct recruit, since the provision pertaining to appointment on
probation has not been excluded or exempted in the case of a compassionate
appointment; 
2. Since
an appointment on compassionate grounds on probation is also a regular
appointment and a person appointed as such is not offered a temporary
appointment, whether there is any violation of law or principle in appointing a
person in this category on probation in the first instance; 
3. In view
of the clear distinction in service jurisprudence between a regular and a
temporary appointee, whether the appointment of a person on a compassionate
basis on probation is permissible in law. 
A writ
petition under Article 226 of the Constitution has been instituted by the
Senior General Manager of the Ordnance Factory at Kanpur against a judgment and
order of the Central Administrative Tribunal2 dated 29 May 2015. An Original
Application was filed before the Tribunal by the second respondent in order to
challenge an order dated 25 January 2011 of the General Manager of the Ordnance
Factory and an appellate order dated 21 March 2012. 
The
services of the second respondent, who was offered compassionate appointment,
were put to an end on the ground that his work and performance during the
period of probation were not satisfactory. The Tribunal held that a person who
is appointed on a compassionate basis cannot be appointed on probation, as the
appointment has to be regular/permanent. In arriving at this conclusion, the
Tribunal relied upon the following judgments of this Court: 
(1)
Jagdish Narain Vs Union of India3; 
(2) Sanjai
Kumar Vs Dy Director General (NCE) Directorate, U P4; and 
(3) Ram
Chandra Vs State of U P5. 
In the
view of the Tribunal, a disciplinary enquiry has to be held before terminating
the services of a person appointed on a compassionate basis. The order of
termination was set aside. 
When the
writ petition was taken by the Division Bench, it was urged on behalf of the
petitioner that the judgment in Jagdish Narain (supra) does not lay down the
correct position in law, since it fails to notice that under the scheme
pertaining to compassionate appointment which was notified on 9 October 1998 in
a notification of the Union Government, a relaxation is granted to the
appointee only in certain matters, these being: 
(1) The
normal recruitment process; 
(2) The
ban, if any, on direct recruitment; 
(3) Upper
age limit; 
(4)
Meeting other requirements, such as passing a typing test. 
Hence, it
was urged that other provisions pertaining to direct recruitment would continue
to apply and a compassionate appointee has necessarily to be placed on
probation in the first instance. Such an appointee can be confirmed on the post
only after completing the period of probation satisfactorily. All such
appointments, including an appointment on probation, are regular appointments
and when a person appointed on a compassionate basis is placed on probation,
the appointment continues to be of a regular nature. The Division Bench, while
referring the issue to the Full Bench, held that it was not in agreement with
the law law laid down in Jagdish Narain (supra) which considered the
provisions, inter alia, of the Government Order dated 9 October 1998. In the
view of the Division Bench, a person who is appointed on a compassionate basis,
would necessarily have to be placed on probation in the first instance, in
accordance with the service rules. The consequence is that if he or she does
not complete the period of probation successfully, the services would be liable
to be terminated, like in the case of any other direct recruit. The Division
Bench observed that while provisions pertaining to temporary appointments in
service rules may not be applicable to a compassionate appointee, this does not
give rise to an inference that a person who is appointed on a compassionate
basis, is not to be appointed on probation. 
This is
the background in which the reference before the present Full Bench
arises. 
Compassionate
appointment 
Compassionate
appointment is a concept which has been evolved in our service jurisprudence to
meet situations where an employee of the State dies while in service.
Compassionate appointment as a concept, recognizes that the family of an
employee of the State, who has died while in service, is left to fend for
itself without its wage earner on whom it was dependent. While the sorrow of an
untimely death cannot be assuaged – time and memory being a healer of sorts –
what compassionate appointment provides is an avenue for the family of the
deceased employee to live with a sense of dignity by providing one of its
members employment with the State. 
Compassionate
appointment is an exception to the principle that equality of opportunity in
matters of public employment, which is guaranteed by Article 16 of the
Constitution, requires a level playing field for all prospective applicants who
seek employment with the State. Appointing a person in the employment of the
State merely on the ground of the relationship with a government servant will
violate Articles 14 and 16, since it would deprive society at large of an equal
right to apply for and seek selection on the post. Compassionate appointment is
accepted as a valid exception to the general rule, for the reason that its
rational is founded on the principle that there is a public interest inherent
in protecting the dependents of employees of the State from the financial
destitution which may result from an untimely death while in service. The
exception is thus not founded only on the existence of a family relationship.
Besides this, it is founded on dependency and financial need caused by the
death of a wage earner while in service. As an exception, its contours and
ambit are precisely defined or tailored to bring about a proportionality
between the reason for the exception and the means which are used to meet its
purposes. Firstly, the death of the employee of the State should have occurred
while in service or as it is commonly said, while in harness. Secondly, the
financial needs of the family of the deceased employee should justify the grant
of employment in the State on a preferential basis. Absent financial need, no
compassionate appointment can be granted. Thirdly, compassionate appointment is
not a reservation of a post in public employment but an enabling facility which
is provided to meet a situation of financial want and need. Fourthly, the grant
of appointment must ordinarily be proximate in time to the occurrence of the
eventuality of death since the need of a family which has survived a death over
a period of time would, in all reasonable possibility, stand diluted with the
progression of time. Fifthly, the ambit of who can seek compassionate
appointment is specified so as to allow access to the provision to persons
belonging to the immediate family of the deceased who are dependent on him or
her. Sixthly, there is no general right to seek compassionate appointment in
the service of the State. A claim for compassionate appointment can be made
where a policy has been laid down by the State to provide compassionate
appointment under a dying in harness provision. Absent an enabling policy,
there would be no right or claim to compassionate appointment. Where there is a
policy, the claim has to be evaluated strictly according to its terms.
Seventhly, the State while framing a policy for compassionate appointment, can
legitimately define the governing terms and conditions on which compassionate
appointment can be granted, including the post or posts to which the
appointment is to be made. A person who is appointed on a compassionate basis
does not, in that sense, step into the shoes of the deceased government
servant, since he or she is a fresh appointee on direct recruitment to whom
employment is granted on a post or position for which compassionate appointment
is available. The State can also prescribe the extent, proportion or number of
posts to which and the identity of posts against which compassionate
appointment is to be evaluated. 
These only
are some of the principles, and are not intended to be an exhaustive catalogue
of considerations. 
The Scheme
of the Union Government 
The
Division Bench in its referring judgment, referred to a notification of the
Union Government dated 9 October 1998 which provided that compassionate
appointment enables a relaxation or exemption in respect of some matters to be
provided while making appointment. These are (i) the procedure of the normal
recruitment process; (ii) non-applicability of the ban, if any, in a direct
recruitment; (iii) relaxation in the outer limit of age for making an
appointment; and (iv) relaxation on other aspects including a typing
test. 
The Office
Memorandum of 9 October 1998 issued by the Government of India in the Ministry
of Personnel, Public Grievances and Pensions (Department of Personnel and
Training) formulated the governing norms of a Scheme for compassionate
appointment under the Central Government. A number of instructions on
compassionate appointment under the Central Government were issued. These were
brought together and formulated in an Office Memorandum dated 16 January 2013.
The Scheme is an illustration of and embodies many of the principles to which
we have adverted to above. 
Para 1 of
the Scheme for compassionate appointment provides the object of compassionate
appointment in the following terms: 
“1.
OBJECT 
The object
of the Scheme is to grant appointment on compassionate grounds to a dependent
family member of a Government servant dying in harness or who is retired on
medical grounds, thereby leaving his family in penury and without any means of
livelihood, to relieve the family of the Government servant concerned from
financial destitution and to help it get over the emergency.” 
Para 2
provides for applicability. Where the person on account of whose death
compassionate appointment is provided was a government servant, the following
norm of eligibility is laid down: 
“To a
dependent family member – 
(A) of a
Government servant who – 
(a) dies
while in service (including death by suicide); or 
(b) is
retired on medical grounds under Rule 2 of the CCS (Medical Examination) Rules
1957 or the corresponding provision in the Central Civil Service Regulations
before attaining the age of 55 years (57 years for erstwhile Group ”D’
Government servants); or 
(c) is
retired on medical grounds under Rule 38 of the CCS(Pension) Rules, 1972 or the
corresponding provision in the Central Civil Service Regulations before
attaining the age of 55 years (57 years for erstwhile Group ”D’ Government
servants);” 
Note I
defines the expression “dependent family member” as follows: 
“Note
I “Dependent Family Member” means: 
(a)
spouse; or 
(b) son
(including adopted son); or 
(c)
daughter (including adopted daughter); or 
(d)
brother or sister in the case of unmarried Government servant or (e) member of
the Armed Forces referred to in (A) or (B) of this para, 
-who was
wholly dependent on the Government servant/ member of the Armed Forces at the
time of his death in harness or retirement on medical grounds, as the case may
be.”
Under Para
4, posts to which such appointments can be made are Group ‘C’ posts against the
direct recruitment quota. Para 5 which provides for eligibility is in the
following terms: 
“5.
ELIGIBILITY 
(a) The
family is indigent and deserves immediate assistance for relief from financial
destitution; and 
(b)
Applicant for compassionate appointment should be eligible and suitable for the
post in all respects under the provisions of the relevant Recruitment
Rules.” 
Para 6 of
the Scheme provides for exemptions and relaxation in the following terms: 
“6.
A. EXEMPTIONS 
Compassionate
appointments are exempted from observance of the following requirements:- 
(a)
Recruitment procedure i.e. without the agency of the Staff Selection Commission
or the Employment Exchange. 
(b)
Clearance from the Surplus Cell of the Department of Personnel and
Training/Directorate General of Employment and Training. 
(c) The
ban orders on filling up of posts issued by the Ministry of Finance (Department
of Expenditure). 
B.
RELAXATIONS 
(a) Upper
age limit could be relaxed wherever found to be necessary. The lower age limit
should, however, in no case be relaxed below 18 years of age. 
Note I Age
eligibility shall be determined with reference to the date of application and
not the date of appointment; 
Note II
Authority competent to take a final decision for making compassionate
appointment in a case shall be competent to grant relaxation of upper age limit
also for making such appointment. 
(b) In
exceptional circumstances Government may consider recruiting persons not
immediately meeting the minimum educational standards. Government may engage
them as trainees who will be given the regular pay bands and grade pay only on
acquiring the minimum qualification prescribed under the recruitment rules. The
emoluments of these trainees, during the period of their training and before
they are absorbed in the Government as employees, will be governed by the
minimum of the – 1S pay band Rs.4440-7440 without any grade pay. In addition,
they will be granted all applicable Allowance, like Dearness Allowances, House
Rent Allowance and Transport Allowance at the admissible rates. The same shall
be calculated on the minimum- IS pay band without any grade pay. The period
spent in the-1S pay band by the future recruits will not be counted as service
for any purpose as their regular service will start only after they are placed
in the pay band PB-1 of Rs.5200-20200 along with grade pay of Rs.1800. (Para 1 of
O.M. No.14014/2/2009-Estt.(D) Dated the 11th December, 2009) 
Note In
the case of an attached/subordinate office, the Secretary in the concerned
administrative Ministry/Department shall be the competent authority for this
purpose. 
(c) In the
matter of exemption from the requirement of passing the typing test those
appointed on compassionate grounds to the post of Lower Division Clerk will be
governed by the general orders issued in this regard:- 
(i) by the
CS Division of the Department of Personnel and Training if the post is included
in the Central Secretariat Clerical Service; or 
(ii) by
the Establishment Division of the Department of Personnel and Training if the
post is not included in the Central Secretariat Clerical Service. 
(d) In
case of appointment of a widow not fulfilling the requirement of educational
qualification, against the post of MULTI TASKING STAFF, she will be placed in
Group ‘C’- Pay Band – 1 (Rs. 5200-20200)+ Grade Pay Rs. 1800/- directly without
insisting on fulfillment of educational qualification norms, provided the
appointing authority is satisfied that the duties of the post against which she
is being appointed can be performed with help of some on job training. This
dispensation is to be allowed for appointment on compassionate ground against
the post of MULTI TASKING STAFF only.” 
Para 7
envisages that appointment on compassionate grounds should be made only on a
regular basis and only if regular vacancies meant for that purpose are
available. Compassionate appointments are to be made upto a maximum of 5% of
the vacancies falling under direct recruitment quota in any Group ”C’ posts.
The appointing authority is empowered to hold back 5% of the vacancies in the
aforesaid categories to be filled by direct recruitment through the Staff
Selection Commission or otherwise so as to fill vacancies by appointment on
compassionate grounds. A person selected for appointment on compassionate
grounds has to be adjusted in the recruitment roster against the appropriate
category – SC/ST/OBC/General – depending upon the category to which he or she
belongs. Para 7 (c) provides as follows: 
“(c)
While the ceiling of 5% for making compassionate appointment against regular
vacancies should not be circumvented by making appointment of dependent family
member of Government servant on casual/daily wage/ad-hoc/contract basis against
regular vacancies, there is no bar to considering him for such appointment if
he is eligible as per the normal rules/orders governing such
appointments.” 
Para 8
contemplates that an application for compassionate appointment is to be
considered without any time limit and a decision has to be taken on merits in
each case. Para 11 refers to the financial aspects which are to be placed in
evaluation and is as follows: 
“11.
WHERE THERE IS AN EARNING MEMBER 
(a) In
deserving cases even where there is already an earning member in the family, a
dependent family member may be considered for compassionate appointment with
prior approval of the Secretary of the Department/Ministry concerned who,
before approving such appointment, will satisfy himself that grant of
compassionate appointment is justified having regard to number of dependents,
assets and liabilities left by the Government servant, income of the earning
member as also his liabilities including the fact that the earning member is
residing with the family of the Government servant and whether he should not be
a source of support to other members of the family. 
(b) In
cases where any member of the family of the deceased or medically retired
Government servant is already in employment and is not supporting the other
members of the family of the Government servant, extreme caution has to be
observed in ascertaining the economic distress of the members of the family of
the Government servant so that the facility of appointment on compassionate
ground is not circumvented and misused by putting forward the ground that the
member of the family already employed is not supporting the family.” 
Under Para 14, a person who is appointed on compassionate
grounds has to furnish an undertaking to maintain the other members of the
family who were dependent on the deceased government servant, properly. In the
event that it is established subsequently, at any time, that the members of the
family are being neglected and are not being maintained properly, the
appointment may be terminated forthwith. Under Para 17, the services of a
compassionate appointee can be terminated upon the issuance of a notice to show
cause for non-compliance of the conditions contained in the letter of
appointment. Para 17 is in the following terms:
 
“17
TERMINATION OF SERVICE 
The
compassionate appointments can be terminated on the ground of noncompliance of
any condition stated in the offer of appointment after providing an opportunity
to the compassionate appointee by way of issue of show cause notice asking
him/her to explain why his/her services should not be terminated for
non-compliance of the condition(s) in the offer of appointment and it is not
necessary to follow the procedure prescribed in the Disciplinary
Rules/Temporary Service Rules for his purpose.” 
The
Department of Personnel and Training in its Establishment ‘D’ Division, has
prepared a tabulated statement of Frequently Asked Questions (FAQs) on
compassionate appointment. Among them, in item 44, is the following: 
44 
Question 
Whether
a person appointed on compassionate grounds as ‘Trainee’ will have probation
period. 
Answer 
Yes. The
probation period, as specified in Recruitment rules of the post/grade against
which he/she is appointed would commence from the date he/she acquires minimum
educational qualification. 
Now, in this
background, the basic issue which is to be addressed in these proceedings needs
to be considered. 
Probation 
Where a person is
recruited as a direct recruit in the service of the State, the appointment is
made on a probationary basis so as to enable the appointing authority to assess
the conduct, work and character of the probationer during the period of probation.
During the period of probation, the services of a probationer are assessed to
determine the suitability of the probationer for retention in service. A direct
recruit in the employment of the State is appointed to the regular service. An
appointment on probation does not detract from the nature of the appointment
which is to a regular service. Probation is merely an opportunity for the
probationer to establish by dint of the work which is rendered during the
period of probation, that he or she is suitable for being retained in service.
On the part of the employer, probation enables the appointing authority to
determine the suitability of the probationer for retention in service. There is
a well accepted distinction in law and in service jurisprudence between a
probationary appointment and a temporary appointment. Temporary appointments in
the central civil services are governed by the Central Civil Services
(Temporary Services) Rules 1965. The services of a temporary government servant
are liable to termination at any time by a notice in writing furnished either
by the government servant to the appointing authority or by the appointing
authority to the government servant. The object and purpose of a probationary
appointment is to enable the employer to observe the performance of the
employee during the period of probation and to test the capacity, conduct and
character of the employee as a basis to determine suitability for retention in
service. 
The judgments on
which the reference is made 
In a judgment of a
Division Bench of this Court Ravi Karan Singh Vs State of U P6, the issue which
was considered, was whether an appointment made under the Uttar Pradesh
Recruitment of Dependents of Government Servants (Dying in Harness) Rules,
19747 is a permanent or a temporary appointment. A Single Judge, disagreeing
with earlier decisions which had held that an appointment under the Dying in
Harness Rules is a permanent appointment, had referred the issue to a larger
Bench. Answering the reference, the Division Bench held as follows: 
“In our
opinion, an appointment under the Dying in Harness Rules has to be treated as a
permanent appointment otherwise if such appointment is treated to be a
temporary appointment then it will follow that soon after the appointment the
service can be terminated and this will nullify the very purpose of the Dying
in Harness Rules because such appointment is intended to provide immediate
relief to the family on the sudden death of the bread-earner. We, therefore,
hold that the appointment under Dying in Harness Rule is a permanent
appointment and not a temporary appointment and hence the provisions of U.P.
Temporary Government Servant (Termination of Services) Rules, 1975 will not
apply to such appointments.” 
In Sanjai Kumar Vs
Dy Director General (NCE) Directorate (supra), the services of a person, who
was appointed on compassionate grounds, were terminated under the Uttar Pradesh
Temporary Government Servants (Termination of Service) Rules, 1975 treating it
to be a temporary appointment. A learned Single Judge set aside the
appointment. The Division Bench observed that neither was a notice served nor
was an opportunity furnished to the employee to explain his misconduct. The
Division Bench held that on the allegation against the petitioner which was
noted in the judgment of the Single Judge, it was open to the State to have
held an enquiry. The Division Bench followed the earlier decision in Ravi Karan
Singh in coming to the conclusion that an appointment under the Dying in
Harness Rules has to be treated as a permanent appointment and hence a
termination on the basis that it was of a temporary nature would be
illegal. 
In Ram Chandra Vs
State of U P (supra), the father of the petitioner was working as a Class-IV
employee in the Rajkiya Vastukala Mahavidyalaya and died while in service. The
petitioner was appointed on a compassionate basis under the Dying in Harness
Rules. His services were terminated. The State Public Services Tribunal
dismissed the claim petition. The State sought to sustain the termination by
submitting that the appointment had been made on a temporary basis and the work
and conduct of the petitioner were not satisfactory. The Division Bench held
that: 
“… It is
settled law that the appointments made under the provisions of the U.P.
Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974
are of permanent nature. Since appointment of the petitioner was of permanent
nature, the provisions of U.P. Temporary Government Servants (Termination of
Service) Rules, 1975 were not applicable…” 
In Jagdish Narain
(supra), a permanent employee of the Union of India having died in harness, his
son was appointed on probation subject to the condition that if his services
were found to be unsatisfactory during the period of probation, they were liable
to be dispensed with. On finding that the work of the petitioner was
unsatisfactory, his services were terminated. The ground of challenge before
the Tribunal was that since the termination was for absence from duty, it ought
to have been preceded by an enquiry into misconduct. The Tribunal dismissed the
Original Application upon which a writ petition was filed before this Court.
The Division Bench referred to an Office Memorandum dated 30 June 1987 of the
Union Ministry of Personnel, Public Grievances and Pensions (Department of
Personnel and Training) which held the field at the material time. Para 7 (a)
contemplated that appointments on compassionate grounds should be made only on
a regular basis and that too, only if regular vacancies meant for that purpose
are available. The Division Bench held that an appointment on probation is made
under the relevant service rules governing recruitment and conditions of
service. On the other hand, an appointment on compassionate grounds is not made
under the service rules but is “a special kind of legislation unknown to
the general procedure of recruitment” in the service rules. The Division
Bench made that distinction in the following observations: 
“It appears
that the nature of the petitioner’s appointment on probation is an outcome of
the appointment made under the relevant service rules, meant for general
selection containing recruitment and conditions of service, where the person
after adopting the procedure of selection is appointed on probation basis. The
appointment on probation basis is the quite known feature of service rules
meant for the purposes of selection and appointments on various posts. In some
rules there are provisions that after expiry of the fixed term of probation if
nothing adverse is communicated, the service of such employees shall be deemed
to be confirmed. There are also conditions in the relevant service rules that
the probation period can be extended and in case the work of the employee
appointed on probation basis is not satisfactory, his services can be
terminated also. 
It is also quite
well known feature and settled principle that the appointment on compassionate
ground is not made under the relevant service rules governing the general
selection, including recruitment and conditions of service. This is a special
kind of legislation unknown to the general procedure of recruitment contained
in various service rules. Here, the intention of the legislature is, to save
out the family from financial crunch which falls upon the family after the
death of the employee who dies in harness.” 
The Division Bench
held that the Office Memorandum of 1987 contemplated that appointments on a
compassionate basis were permanent in nature and there was no reference in it
to the appointment being on probation. In the view of the Division Bench,
“the sword of uncertainty” could not be allowed to hang on the head
of an employee appointed on compassionate grounds, otherwise he would not be
able to discharge his duties with full devotion. The view of the Division Bench
was that in the scheme governing appointments on compassionate grounds, there
was no provision for appointment on probation and hence the issuance of a
letter of appointment on probation to a compassionate appointee was arbitrary
and unsustainable. The Division Bench held as follows: 
“As would
reveal from the foregoing discussions and the Circular relied upon by the
respondents, meant for appointment on compassionate grounds, there is no
provision for appointment on probation/temporary basis and in absence of any
such provision under the relevant circular/rule under which petitioner’s
appointment was made, the respondents’ stand cannot be justified in putting the
condition of appointment on probation basis. It is settled law that if a
statute provides to do a thing in a particular manner then that thing has to be
performed in that very manner and in not doing so it leads towards futility
having no avail and void. Therefore, we are of the considered opinion that in
absence of any such provision under the relevant Circular governing the
appointment on compassionate grounds, for making appointment on probation
basis, the respondent’s putting a rider on probation basis in appointment
letter is totally misplaced, arbitrary and unsustainable in the eye of
law.” 
In the view of the
Division Bench, once the appointment was permanent in nature, the placement of
a condition of probation was unjustified. Reinstatement was ordered with half
the back wages. 
Now, at the outset,
it would be necessary to make a distinction between the decisions which were
delivered in Ravi Karan Singh, Sanjai Kumar and Ram Chandra on the one hand,
and the last judgment of the Division Bench in Jagdish Narain on the other. 
The decision in Ravi
Karan Singh holds that the appointment of a person who is appointed under the
Dying in Harness Rules cannot be terminated under the rules applicable to
temporary government servants. The rationale for this position in law is that
if the appointment is treated to be temporary, this will nullify the purpose of
compassionate appointment which is to provide succour and relief to the family
of the bread earner who has died while in service. This principle that the
services of a person who is appointed on compassionate grounds, cannot be
dispensed with by applying the rules prescribed for temporary government
servants, was applied in Sanjai Kumar and later in Ram Chandra. Neither of
these decisions deals with whether an appointment on a compassionate basis can
be made in the first place on probation. That was not in issue before the three
Division Benches and the issue has not been considered as a result. However,
the decision in Jagdish Narain cites the earlier decisions in Ravi Karan Singh,
Sanjai Kumar and Ram Chandra in support of the proposition that a compassionate
appointment cannot be made on probation. Neither of the three earlier decisions
of the Division Benches justify the finding or inference that a compassionate
appointment cannot be made on probation since, as a matter of fact, that was
neither the issue nor the principle of law enunciated by the Division
Benches. 
With respect, we are
unable to agree with the principle of law which has been laid down by the
Division Bench in Jagdish Narain. An appointment which is made on a
compassionate basis has to be made on a regular basis. Both Paras 7(a) of the
Office Memorandum dated 9 October 1998 issued by the Union Government in the
Department of Personnel and Training of the Ministry of Personnel, Public
Grievances and Pensions and Para 7(a) of the more recent Office Memorandum
dated 16 January 2013 provide that appointments on compassionate grounds should
be made only on a regular basis and “that too”, only if regular
vacancies meant for that purpose are available. Making an appointment on a
regular basis is not incompatible with the placement of the person appointed on
probation. Appointment on probation is nonetheless an appointment to regular
service and does not detract from the nature of the appointment. Probationary
appointment does not leave the employee with a sword of uncertainty (as the
Division Bench held in Jagdish Narain) hanging over his or her head. The period
of probation is a period during which the appointing authority is entitled to
assess the suitability of the employee for being retained in service. The
retention or dispensation of the services of a probationer does not lie at the
whim and fancy of the appointing authority, and is governed by the settled
principles of service jurisprudence of making a bona fide assessment of the
suitability for retention of the employee, based on his or her performance and
work during the period of probation. An employee who is appointed on a
compassionate basis is not immune from the operation of the general rules of
service. What the scheme for compassionate appointment does is to provide
certain exemptions and relaxations which are specifically codified (in Para 6
of the earlier O M dated 9 October 1998 and the O M dated 16 January 2013).
Those exemptions and relaxations are that – firstly, the ordinary procedure for
recruitment through the agency of the Employment Exchange or the Staff
Selection Commission need not be observed; secondly, clearance from the surplus
cell is not required; and thirdly, the ban order, if any, on filling up of
posts issued by the Union Ministry of Finance in the Department of Expenditure
are not applied. Para 6 also contemplates a relaxation in the upper age limit,
in the fulfillment of the minimum educational standards and the passing of a
typing test. The exemptions and relaxations must be confined to those which are
prescribed by the policy and cannot be extended by the Court beyond what has
been prescribed. Determining the nature and extent of exemptions and
relaxations is a matter of executive policy. The Court in the exercise of its
jurisdiction under Article 226 cannot re-write or re-frame policies, judicial
review being confined to whether there is a constitutional violation. The
Division Bench in Jagdish Narain has erred in holding that the Office
Memorandum does not contemplate an appointment being made on probation and in
concluding that an appointment on compassionate basis being “a special
kind of legislation unknown to the general procedure of recruitment” in
the service rules, a compassionate appointee cannot be placed on probation. A
person who is appointed on a compassionate basis obtains employment without
having to go through the ordinary procedure of recruitment and where a
relaxation is required, by relaxing norms such as the upper age limit, minimum
educational requirements and typing test. Again, here it is necessary to
emphasise that these relaxations are granted because they are envisaged in the
policy. But once appointed, a person who is recruited as a direct recruit on a
compassionate basis is appointed ‘on a regular basis’ and against regular
vacancies available for that purpose. A person appointed on a compassionate
basis has to fulfill all the other obligations and responsibilities of the
service. Such an appointee cannot claim immunity from an assessment by the
employer of the suitability for retention in service. Such suitability is
determined during the period of probation. The policy which has been framed,
does not provide that a person who is recruited on compassionate basis, would
not be placed on probation nor does it grant an exemption from the normal rules
of appointment on probation. With respect, the Division Bench in Jagdish Narain
erred in placing the test exactly in reverse, to the effect that there is
nothing in the policy which requires appointment on probation. Once the policy
clearly specifies that appointment would be made on a regular basis and against
a regular vacancy, the appointment would have to be made in a manner consistent
with the service rules. We, therefore, hold that there is nothing intrinsically
wrong or contrary to law in a person who is appointed to a post on a
compassionate basis being placed on probation. We, therefore, overrule the
judgment of the Division Bench in Jagdish Narain (supra). We hold that the
earlier decisions of the Division Benches in Ravi Karan Singh, Sanjai Kuamr,
and Ram Chandra did not deal with the issue which has fallen for
determination. 
We, accordingly,
answer the questions which have been referred to the Full Bench in the
following terms: 
(1) Re Question (1):
Where a person is appointed on a compassionate basis as a dependent member of
the family of an employee of the State who has died in harness, such an
appointment can be made on probation. The object and purpose of appointing a
person on probation is to determine the suitability of the person for retention
in service. Appointment of a person who is engaged on a compassionate basis on
probation is not contrary to law or unlawful. 
(2) Re Question (2):
Since an appointment on compassionate grounds on probation is also a regular
appointment and a person appointed as such is not offered a temporary
appointment, such an appointee can be placed on probation in the first
instance. 
(3) Re Question (3):
The appointment of a person on a compassionate basis on probation is
permissible in law. 
The reference is
accordingly answered. The petition shall now be placed before the appropriate
Bench according to roster for disposal in light of this judgment. 
February 12,
2016 
AHA 
(Yashwant Varma, J)
(M K Gupta, J) (Dr D Y Chandrachud, CJ) 

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