Allahabad High Court: While answering a reference, a Full Bench has held that appointment of a person on compassionate basis on probation is permissible in law. Where a dependent family member of a State employee who died in harness, is appointed on compassionate ground, the same can be made on probation. The Bench comprising of Dr D.Y. Chandrachud, C.J., Yashwant Varma and M.K. Gupta, JJ. observed that 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.
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 probation period were not satisfactory. Relying on Jagdish Narain v. Union of India, 2011 SCC Online All 1089, the Central Administrative Tribunal had held that a person appointed on compassionate basis cannot be appointed on probation, as the appointment has to be regular/permanent.
However, when the matter came up before the Division Bench, it referred the issue to the Full Bench, holding that it was not in agreement with the law rendered in Jagdish Narain and observed that 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.
Dealing with the issue of compassionate appointment in detail, the Full Bench observed that 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. The Court held that 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. Probationary appointment does not leave the employee with a sword of uncertainty (as the Division Bench held in Jagdish Narain) hanging over his head. 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.
Overruling Jagdish Narain, the Court observed that appointment on compassionate grounds on probation is also a regular appointment and a person appointed as such is not offered temporary appointment, such an appointee can be placed on probation in the first instance. The petition was directed to be placed before the appropriate Bench for disposal in light of this judgment. [Ordnance Factory v. Central Administrative Tribunal, 2016 SCC OnLine All 106 decided on February 12, 2016]
