The reference

Hon’ble Dr. Dhananjaya Yeshwant Chandrachud, C.J.—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 Bench (The questions have been modified in slight detail by the Full Bench to bring out succinctly the nature of the controversy) :

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.

2. 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 Tribunal (Tribunal) 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.

3. 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 v. Union of India, 2011(8) ADJ 217 (DB);

(2) Sanjai Kumar v. Dy Director General (NCE) Directorate, U.P., 2002(3) ESC 454 (All)(DB); and

(3) Ram Chandra v. State of U.P., 2008(2) ESC 1053 (All)(DB)(LB),.

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.

4. 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.

5. 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