Durgabai Deshmukh Memorial Senior Secondary School And Another vs J.A.J. Vasu Sena And Another

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No. 5926 of 2019 (@SLP (C) No. 4016 of 2019)

Durgabai Deshmukh Memorial …Appellants Sr. Sec. School & Anr.

Versus

J.A.J Vasu Sena & Anr. …Respondents

JUDGMENT

Dr Dhananjaya Y Chandrachud, J

1 The present appeal arises from a judgment of a Division Bench of the

Delhi High Court dated 7 May 2018 setting aside the judgment of a learned

Single Judge in a Letters Patent Appeal.1 The Division Bench accepted the Signature Not Verified deemed confirmation of the services of the first respondent who was a Digitally signed by SANJAY KUMAR Date: 2019.08.21 16:32:53 IST Reason: probationer in the school of the appellants.

1 LPA No. 86/2018 1 2 Allowing the appeal filed by the first respondent, the Division Bench held

that under Rule 105(1) read with the first proviso of the Delhi School Education

Rules 1973,2 the maximum period of probation permissible is two years. The High

Court held that there is a deemed confirmation of the services of a probationer

who is continued in service beyond the maximum period of probation, even

without the issuance of an order of confirmation by the appointing authority.

Aggrieved, the appellant school and the Andhra Education Society3 are in appeal

before this Court.

3 The appellant is a Delhi administration aided school and a linguistic

minority institution. Pursuant to an advertisement for the filling of various posts in

the appellant school, the first respondent was appointed on probation to the post

of PGT (English General) on 18 June 2008 for a duration of one year. The period

of probation was extended belatedly on 11 February, 2010 for another year on

the ground that the services of the first respondent were unsatisfactory. On 30

November 2011, the period of probation was extended by another year. On 22

May 2013, the Managing Committee of the society which conducts the school

discharged the first respondent from service with effect from 30 June 2013.

4 The first respondent filed an appeal4 before the Delhi School Tribunal5

challenging her discharge with a prayer for reinstatement with consequential

benefits and back wages. By its order dated 23 July 2015, the Tribunal allowed

the appeal and set aside the order of discharge with a direction to the appellants

2 1973 Rules 3 Education society 4 Appeal No. 54/2013 5 Tribunal

2 to reinstate the first respondent with consequential benefits. Assailing the order of

the Tribunal, the appellants filed a Writ Petition6 before the Delhi High Court.

5 The learned Single Judge of the Delhi High Court allowed the petition and

held that no maximum period of probation was spelt out in the letter of

appointment or the 1973 Rules. Any confirmation of service is subject to the work

and conduct of the probationer being satisfactory. Hence, the continuation of the

services of the first respondent beyond the period of probation was held not to

result in a deemed confirmation of service without the issuance of an order of

confirmation by the appointing authority.

6 The Division Bench of the High Court allowed the Letters Patent Appeal

filed by the first respondent and restored the order of the Tribunal. The High

Court took the view that:

(i) Rule 105 of the 1973 Rules fixes a maximum probationary period of two

years and the continuation of service beyond the maximum period

would amount to a deemed confirmation of service by implication, even

without the issuance of an order of confirmation; and

(ii) The appointment letter dated 18 June 2008 stipulated a probation

period of one year. The conduct of the management in allowing the first

respondent to continue in service for nearly five years evidenced the

satisfactory conduct of the first respondent, and resulted in a deemed

confirmation of service.

6 WP (C) No. 10310/2015 3 Relying on the judgment of a Constitution Bench of this Court in State of Punjab

v Dharam Singh7 (―Dharam Singh‖), the High Court held thus:

―We are, therefore, of the view that where the letter of appointment, read in conjunction with the above Rules, fixes a maximum period of two years of probation and where the appellant was permitted to continue in the same post, beyond the maximum period, the same would amount to a deemed confirmation by implication, without the requirement of an express order of confirmation on behalf of the Society‖

The High Court concluded that the case of the first respondent fell in the second

category of cases enumerated by a three judge Bench of this Court in High

Court of MP v Satya Narayan Jhavar8 (―Satya Narayan Jhavar‖), to which we

shall advert in the course of the judgment.

7 Assailing the judgment of the High Court, Mr Yashobant Das, learned

Senior Counsel appearing on behalf of the appellants urged that:

(i) Rule 105 of the 1973 Rules does not envisage a deemed confirmation

of the services of a probationer. Sub-rule (2) of Rule 105 provides that if

the services of the probationer are satisfactory, a confirmation will be

issued upon the expiry of the period of probation or the extended period

of probation;

(ii) Rule 105(1) does not stipulate a maximum period of probation. The

continuation of the services of the first respondent on probation without

an order of confirmation implies an extended period of probation. Under

Rule 105(1), the termination of service without notice during the period

of probation is legally permissible;

7 AIR 1968 SC 1210 8 (2001) 7 SCC 161

4

(iii) The proviso to Rule 105(1) merely exempts a minority institution from

seeking the prior approval of the Director9 for extending the period of

probation by ―another year‖. This cannot be read as limiting the

permissible extension of the probationary period to only one year over

and above the mandatory period of probation. Any extension of the

period of probation beyond the mandatory year of probation shall

require the prior approval of the Director; and

(iv) The High Court failed to consider a binding precedent of a Division

Bench of the Delhi High Court in Dy. Director of Education v Veena

Sharma10 holding that there is no fixed period of probation under Rule

105 of the 1973 Rules and that no question of a deemed confirmation

of service arises.

8 On the other hand, Mr D Rama Krishna, learned counsel appearing on

behalf of the first respondent urged, in support of the impugned judgment of the

High Court, that:

(i) The proviso to Rule 105, in so far as a minority institution is concerned,

stipulates that the approval of the Director shall not be required where

the probation period has been extended ―by another year‖. Rule 105 of

the 1973 Rules fixes a maximum probationary period of two years and

the continuation of service beyond the maximum period would amount

to a deemed confirmation of service by implication;

(ii) There is no requirement for the issuance of an order of confirmation

under Rule 105 of the 1973 Rules. There is a deemed confirmation of 9 As defined under the Delhi Education Act 1973 10 (2010) 175 DLT 311 (DB)

5 the services of a probationer upon the expiry of the maximum

prescribed period for probation. The absence of a stipulation requiring

an order of confirmation in the Rules as well as the appointment letter

leads to the inevitable conclusion that there was a deemed confirmation

of service when the first respondent was continued in service beyond

two years, even without an order of confirmation. Reliance was placed

in this regard on the judgment of this Court in Dharam Singh; and

(iii) The appointment letter of the first respondent dated 18 June 2008

stipulated a probationary period of one year. There was neither a

stipulation for the extension in the probationary period nor a

requirement of the issuance of an order of confirmation.

9 The rival submissions now fall for our consideration.

10 At the outset, it must be noted that Rule 105 of the 1973 Rules as

submitted before this Court and the High Court by the contesting parties reads

thus:

―105. Probation (1) Every employee shall, on initial appointment, be on probation for a period of one year which may be extended by the appointing authority [with the prior approval of the Director] and the services of an employee may be terminated without notice during the period of probation if the work and conduct of the employee, during the said period, is not, in the opinion of the appointing authority, satisfactory:

[Provided that the provisions of this sub-rule relating to the prior approval of the Director in regard to the extension of the period of probation by another year shall not apply in the case of an employee of a minority school:

…]

6 (2) If the work and conduct of an employee during the period of probation is found to be satisfactory, he shall be on the expiry of the period of probation or the extended period of probation, as the case may be confirmed with effect from the date of expiry of the said period.‖

11 It is on the basis of the above provision that the High Court, in the

impugned judgment and in judgments prior to the present case, has concluded

that there is a limitation on the extension of the probationary period stipulated in

Rule 105(1) of the 1973 Rules. On the record before this Court, the words ―by

another year‖ appear only in the first proviso to Rule 105 and not in the principal

provision. The High Court, in the present case and in cases prior to the present

one, has failed to note the amending history of Rule 105 of the 1973 Rules and

has proceeded to analyse an incorrect provision of law. It is pertinent here to

advert to the legislative and drafting history of the provision.

12 In exercise of the powers conferred by Section 28 of the Delhi School

Education Act 1973, the Administrator, with the previous approval of the Central

Government, enacted the 1973 Rules. The 1973 Rules were published in the

Delhi Gazette11 on 31 December 1973 on which date, they also came into force.

Rule 105, as originally enacted, read thus:

―105. Probation (1) Every employee shall, on initial appointment, be on probation for a period of one year which may be extended by the appointing authority by another year and the services of an employee may be terminated without notice during the period of probation if the work, and conduct of the employee, during the said period, is not, in the opinion of the appointing authority, satisfactory:

11 Delhi Gazette – PT 2 – Jan – Dec 1973 at p. 685

7 Provided that no termination from the service of an employee on probation shall be made by a school, other than a minority school, except with the previous approval of the Director.

(2) If the work and conduct of an employee during the period of probation is found to be satisfactory, he shall be on the expiry of the period of probation or the extended period of probation as the case may be, confirmed with effect from the date of expiry of the said period.

(3) Nothing in this rule shall apply to an employee who has been appointed to fill a temporary vacancy or any vacancy for a limited period.‖

(Emphasis supplied)

13 Rule 105 of the 1973 Rules, as originally enacted, stipulated that an

employee shall be appointed on initial probation for a period of one year which

may be extended by the appointing authority ―by another year‖. No separate

provision was stipulated for minority institutions. Two amendments were

subsequently incorporated to the 1973 Rules. On 30 January 1985, the Delhi

School Education (Amendment) Rules 1984 were notified.12 By this amendment,

Rule 110 of the 1973 Rules was substituted.

14 On 23 February 1990, the Delhi School Education (Amendment) Rules

199013 were notified.14 Clause 24 of the Amendment Rules 1990 amended Rule

105 of the 1973 Rules. Clause 24 Reads thus:

―24. amendment of rule 105. – In rule 105 of the principal rules,-

(a) in sub-rule (1), after the words “another year”, the words ―with the prior approval of the Director‖ shall be inserted;

(b) for the proviso to sub-rule (1), the following proviso shall be substituted, namely:-

12

No. F. 5/15/72-Edn./573. in Delhi Gazette (Extraordinary – Part – IV) – Jan-Dec 1985 at p. 2 13 Amendment Rules 1990 14 DSE (A) R, 1990; No. 1339/Act. in Delhi Gazette – Jan-Dec 1990 at p. 60

8 ―Provided that the provisions of this sub-rule relating to the approval of the Director in regard to the extension of the period of probation by another year, shall not apply in the case of an employee of a minority school:

Provided further that no termination from the service of an employee on probation shall be made by a school, other than a minority school, except with the previous approval of the Director.‖

(Emphasis supplied)

15 By virtue of the Amendment Rules 1990:

(i) The words ―with the prior approval of the Director‖ were inserted after

the words ―by another year‖ in the principal part of Rule 105. The prior

approval of the Director was made mandatory where the period of

probation is extended ―by another year‖; and

(ii) The first proviso granted an exemption to the appointing authority of

minority institutions from seeking the prior approval of the Director for

extending the period of probation ―by another year‖.

The amending history of the 1973 Rules shows that the words ―by another year‖

appearing in the principal part of Rule 105 has not been omitted. The High Court

has, in the present case and prior cases failed to take note of the correct

provision as amended from time to time.

16 Rule 105 of the 1973 Rules, as on date, reads thus:

―105. Probation (1) Every employee shall, on initial appointment, be on probation for a period of one year which may be extended by the appointing authority by another year [with the prior approval of the Director] and the services of an employee may be terminated without notice during the period of probation if the work and conduct of the employee, during

9 the said period, is not, in the opinion of the appointing authority, satisfactory:

[Provided that the provisions of this sub-rule relating to the prior approval of the Director in regard to the extension of the period of probation by another year shall not apply in the case of an employee of a minority school:

…]

(2) If the work and conduct of an employee during the period of probation is found to be satisfactory, he shall be on the expiry of the period of probation or the extended period of probation, as the case may be confirmed with effect from the date of expiry of the said period.‖

(Emphasis supplied)

It is on the basis of the above provision that we proceed to the task of

interpretation relevant to the present dispute.

17 It is appropriate to note the view of a three judge Bench of this Court in

Satya Narayan Jhavar. Surveying the precedent, the Court held thus:

―11. The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject-matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point.

One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation.

The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of

10 probation in case before its expiry the order of termination has not been passed.

The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired.‖

The High Court was of the view that the case of the first respondent fell in the

second category of cases enumerated in Satya Narayan Jhavar, while the

appellant contended that the case of the first respondent falls within the first

category of cases.

18 The points of law that arise for determination in the present appeal are: (i)

whether the words ―by another year‖ appearing in the principal part of Rule

105(1) and in the first proviso to Rule 105 (1) limit the total duration of permissible

probation to two years; and (ii) whether the 1973 Rules require the issuance of an

order of confirmation for a probationer to be confirmed in service.

19 The appointment letter of the first respondent dated 18 June 2008, in so far

as it is relevant, reads thus:

“ANDHRA EDUCATION SOCIETY Smt. Durgabai Deshmukh Memorial Senior Secondary School 1, Deen Dayal Upadhaya Marg, New Delhi- 110002 I.D. No. 2127081

Ref. No. AESSSS/2008-09/DR/112 Date: 18th June, 2008

MEMORANDUM

11 With reference to her interview held on Dt. 24.5.2008 for the post of P.G.T. English (General) in the Andhra Education Society Smt. Durgabai Deshmukh Memorial Senior Secondary School, 1, D.D.U. Marg, New Delhi-110002, Smt. J.A.J. Vasu Sena is hereby informed that the she has been selected for the post of P.G.T. English under the following terms and conditions:-

1. …

2. She will be on probation for a period of one year from the date of joining.

3. During the period of probation her services are liable for termination with one month’s notice on either side.

4. …

5. …

6. …

7. If the offer of appointment is acceptable she must report to duty on 1st July 2008.

8. …

9. …‖

20 Rule 105(1) of the 1973 Rules mandates that every employee shall be

appointed on probation for a period of one year. The appointing authority may

extend the period of probation ―by another year‖ with the prior approval of the

Director. Rule 105(1) also stipulates that if the work and conduct of the

probationer during the probationary period is found unsatisfactory, the appointing

authority may, without notice, discharge the probationer from service. The first

proviso to Rule 105(1) stipulates that where the appointing authority of a minority

institution extends the probationary period ―by another year‖, the prior approval of

the Director shall not be required. This Court is required to construe whether the

words ―by another year‖ appearing in Rule 105(1) and the first proviso of Rule

105 imply one additional year, or one year at a time without any limit.

21 According to the Cambridge English Dictionary, the word ―another‖

means ―one more person or thing or an extra amount.‖ Webster’s Dictionary

12 defines the word ―another‖ as ―an additional one of the same kind: one more‖.15

According to Collins Dictionary of the English Language, the word ―another‖

implies ―one more‖.16 Similarly, according to Lexico Dictionary, the word

―another‖ is ―used to refer to an additional person or thing of the same type as

one already mentioned or known about; one more.‖17

22 The consistent meaning imparted to the word ―another‖ is a single addition

or one more. The ordinary and literal construction of the words ―another‖ read

with the words ―for a period of one year‖ in Rule 105(1) implies that the

appointing authority may extend the period of probation by one additional year.

The contention that the words ―by another year‖ imply that the appointing

authority can extend the period of probation by one year at a time without any

limit cannot be accepted as this would amount to rewriting the provision by

substituting the words ―by another year‖ with the words ―by one year at a time‖,

which is impermissible in law. Further, had the delegate of the legislature

intended that there is no limit on the permissible probationary period, the words

―by another year‖ would have been omitted.

23 The words of a statute should be understood in the sense in which they

best harmonise with the subject of the enactment and the object which the

legislature has in view.18 This principle should be a useful guide in interpreting the

provisions of delegated legislation in this case, namely Rule 105. The purpose of

probation is to enable an assessment to be made of the performance of an

15 Webster’s Third New International Dictionary (1976), p. 89 16 Collins Dictionary of the English Language (1983), p. 58 17 Lexico Dictionary Online (Oxford University Press) 18 State of UP v C Tobit 1958 SCR 1275; Santasingh v State of Punjab (1976) 4 SCC 190; Mukesh Tripathi v Senior Divisional Manager (2004) 8 SCC 387.

13 employee. It serves as an opportunity for probationers to establish by the dint of

their work which is rendered during the period of probation, that they are 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.

24 The limit placed on the permissible extension of the probationary period

draws a balance between the opportunity that must be afforded to a probationer

to modify and improve the quality of service and a mandate that the appointing

authority of an educational institute hires qualified teachers. To impart a meaning

to the words ―by another year‖ that the appointing authority may extend the

probationary period one year at a time without a limit will allow an appointing

authority to extend the probationary period, with the prior approval of the Director,

of a probationer ad nauseum. This would allow an appointing authority to convert

a period of probation, which serves the limited and time bound purpose of

ascertaining suitability, into a temporary appointment and defeat the purpose of

probationary service in educational institutions. Though the legislature or the

delegated authority is empowered in a given case to stipulate that there is no bar

on the period of probation, the interpretation that we have adopted is supported

by the words of Rule 105(1) and the ordinary meaning imparted to the word

―another‖.

25 The plain reading of the words ―by another year‖ implies that the

appointing authority of an institution may extend the period of probation by one

additional year over and above the mandatory year of probation with the prior

14 approval of the Director. Rule 105(1) of the 1973 Rules therefore stipulates a

limitation on the total probationary period to two years. The first proviso stipulates

that the prior approval of the Director shall not be required in the case of a

minority institution.

26 The principle which we have adopted accords with a consistent line of

precedent of this Court. It is a settled position of law that where the words of a

statute are clear and unambiguous, they must be interpreted in their ordinary

grammatical sense, unless the interpretation leads to an absurd result. It is only

where the language of a statute, in its ordinary meaning and grammatical

construction, leads to a manifest contradiction, or to some inconvenience or

absurdity, hardship or injustice, that a construction may be put upon it which

modifies the meaning of the words.

27 Justice G P Singh, in his seminal book Principles of Statutory

Interpretation19, states thus:

―The words of a statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context, or in the object of the statute to suggest the contrary.‖

Craies in his Treatise on Statute Law,20 states thus:

―The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary

19 Justice G P Singh, Principles of Statutory Interpretation, 14th Ed., at p. 91 20 Craies on Statute Law, 7th Ed., at p. 64

15 and natural sense. The words themselves alone do in such a case best declare the intention of the lawgiver.‖

28 In Maharashtra State Financial Corporation v Jaycee Drugs and

Pharmaceuticals Pvt. Ltd21, the appellant sought to proceed against the

sureties upon the failure of the respondent to repay a loan. Section 31(1) of the

State Financial Corporations Act 1951 stipulated that a suit may be instituted

before the District Judge within whose jurisdiction the concern carries on

business. Section 32(11) stipulated that the functions of a District Judge under

the said section shall be exercisable, in a Presidency town, where there is a city

civil court ―having jurisdiction‖, by a judge of that court and ―in the absence of

such court, by the High Court‖. The appellant contended that the words ―having

jurisdiction‖ read with the pecuniary jurisdiction of the Bombay City Civil Court as

contained in Section 3 of the Bombay City Civil Court Act 1948 required that

where the liability sought to be enforced was above INR 50,000 the petition by

the appellant was maintainable in the High Court alone. Accepting this

contention, a three judge Bench of this Court held thus:

―15. In our opinion, the extent of the liability stated in the application as contemplated by sub-section (2) of Section 31 of the Act would represent the value of the claim of the Corporation and if such value is up to Rs 50,000 the application would lie in the city civil court and if it is more than that amount it would lie in the High Court. This interpretation would give meaning and relevance to the words ―having jurisdiction‖ used in sub-section (11) of Section 32. A different interpretation would render superfluous or otiose not only the words ―having jurisdiction‖ but also the words ―and in the absence of such court, by the High Court‖….

16. It is a settled rule of interpretation of statutes that if the language and words used are plain and

21 (1991) 2 SCC 637

16 unambiguous, full effect must be given to them as they stand and in the garb of finding out the intention of the legislature no words should be added thereto or substracted therefrom. Likewise, it is again a settled rule of interpretation that statutory provisions should be construed in a manner which subserves the purpose of the enactment and does not defeat it and that no part thereof is rendered surplus or otiose.‖ (Emphasis supplied)

In State of HP v Pawan Kumar,22 it was contended that the safeguards provided

in Section 5023 of the Narcotics Drugs and Psychotropic Substances Act 1985

regarding search of any ―person‖ would also apply to any bag, briefcase or any

such article or container, which is being carried by him. The word ―person‖ was

not defined in the Act. A three judge Bench of this Court, having regard to the

scheme of the Act and the context in which the word ―person‖ has been used,

rejected the contention and held thus:

―8. One of the basic principles of interpretation of statutes is to construe them according to plain, literal and grammatical meaning of the words. If that is contrary to, or inconsistent with, any express intention or declared purpose of the statute, or if it would involve any absurdity, repugnancy or inconsistency, the grammatical sense must then be modified, extended or abridged, so far as to avoid such an inconvenience, but no further. The onus of showing that the words do not mean what they say lies heavily on the party who alleges it. He must advance something which clearly shows that the grammatical construction would be repugnant to the intention of the Act or lead to some manifest absurdity.‖

22 (2005) 4 SCC 550 23 ―50. Conditions under which search of persons shall be conducted.—(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in sub-section (1).

(3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.‖

17 The above principles have been consistently followed by this Court including in

the decisions in State of Rajasthan v Babu Ram24 and Commissioner of

Customs (Import), Mumbai v Dilip Kumar and Company.25

29 The appellant contended that the words ―by another year‖ in the first

proviso to Rule 105(1) cannot be read as limiting the total period of probation to

two years. The contention urged by the appellants cannot be accepted. The

words ―by another year‖ appearing in the principal part of Rule 105(1) must be

given their plain and literal meaning to imply one additional year. The appointing

authority of an institution may extend the period of probation by one additional

year over and above the initial period of one year. This equally applies to minority

institutions. The first proviso stipulates that the provisions of the sub-rule ―relating

to the prior approval of the Director‖ in respect of an extension of the probationary

period by another year by a minority institution shall not apply. The proviso

merely carves out an exception from the principal provision to the effect that in

the case of a minority institution, the approval of the Director for the extension of

probation period by an additional year shall not be required.

30 Keeping in view the special status conferred on minority institutions, the

first proviso to Rule 105(1) grants an exemption to the appointing authority from

seeking the prior approval of the Director to extend the period of probation by an

additional year over and above the mandatory period of probation. This grants

the final say in determining the first extension of the probationary period by

another year to the appointing authority itself. The interpretation that we have

24 (2007) 6 SCC 55 25 (2018) 9 SCC 1

18 adopted of the words ―by another year‖ in the principal provision of Rule 105(1)

equally applies to the words ―by another year‖ in the first proviso to Rule 105(1).

To accept the position that no limit is placed on the extension of the probationary

period in the proviso would allow the proviso to be read as a separate provision

and impart a meaning to the words ―by another year‖ that is not in accordance

with its plain grammatical meaning.

31 It is a settled position of law that the objective of a proviso is to carve out

from the main section a class or category to which the main section does not

apply. A proviso must prima facie be read and considered in relation to the

principal matter to which it is a proviso. It is not a separate or independent

enactment.

In Tahsildar Singh v The State Of Uttar Pradesh,26 a six judge Bench of this

Court was required to interpret the proviso to Section 162 of the Code of Criminal

Procedure 1973. Section 162(1)27 provided that where the statement of a person

to a police officer during investigation is taken in writing, the person shall not be

required to sign the document nor shall the writing be used as evidence. The

proviso empowered the court, in its discretion and on the request of the accused,

to refer to the written statement and direct that the accused be furnished with a

26 1959 Supp (2) SCR 875 27

162. (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872(1of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.]

19 copy. The proviso provided that the statement may be used to ―contradict‖ the

witness ―in the manner provided by Section 145 of the Indian Evidence Act,

1872.‖ The Court rejected the argument that the proviso could be read isolated

from the principal provision to confer a right of cross-examination other than by

way of contradiction and allow through a back door, the inference of oral

statements made by the witness to the officer that were not reduced in writing.

Construing the proviso in light of the bar on the evidentiary value of statements

recorded in writing in the principal provision, the Court laid down the principle on

interpreting a proviso in the following terms:

―14. This leads us to the main question in the case i.e. the interpretation of Section 162 of the Code of Criminal Procedure. The cardinal rule of construction of the provisions of a section with a proviso is succinctly stated in Maxwell's Interpretation of Statutes, 10th Edn., at p. 162 thus:

―The proper course is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light if need be on the rest.

The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together is to prevail.‖

Unless the words are clear, the court should not so construe the proviso as to attribute an intention to the legislature to give with one hand and take away with another. To put it in other words, a sincere attempt should be made to reconcile the enacting clause and the proviso and to avoid repugnancy between the two.‖

(Emphasis Supplied)

20 32 Similarly, in CIT v Indo-Mercantile Bank Ltd.,28 a three judge Bench of

this Court, interpreting the meaning of the proviso to Section 24 of the Indian

Income Tax Act 1922 held thus:

―The territory of a proviso therefore is to carve out an exception to the main enactment and exclude something which otherwise would have been within the section. It has to operate in the same field and if the language of the main enactment is clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that that is its necessary effect.‖

In Dwarka Prasad v Dwarka Das Saraf,29 a four Judge Bench of this Court,

interpreting the scope and extent of the word ―accommodation‖ in a proviso

added by an amending act to the UP (Temporary) Control of Rent and Eviction

Act 1947 held thus:

―…if, on a fair construction, the principal provision is clear, a proviso cannot expand or limit it…It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment…A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction.‖

The above principles have been consistently followed by subsequent benches of

this Court in S Sundaram Pillai v VR Pattabiraman,30 JK Industries Ltd. v

28 1959 SCR Supp (2) 256 29 1976 SCR (1) 277 30 (1985) 1 SCC 591

21 Chief Inspector of Factories and Boilers,31 and Holani Auto Links (P) Ltd. v

State of MP.32

33 In the view that we have taken, the words ―by another year‖ in Rule 105(1)

of the 1973 Rules restrict the maximum permissible period of probation to two

years. This equally applies to minority institutions covered by the first proviso to

Rule 105. The proviso merely exempts the appointing authority of minority

institutions from seeking the prior approval of the Director where an extension of

the probationary period is effected within the maximum permissible extension of

two years. Though the High Court concluded that the maximum permissible

period of probation under Rule 105(1) is two years, it proceeded to record its

finding upon an incorrect provision of law. For the reasons that we have recorded

above, the total period of probation under Rule 105 of the 1973 Rules cannot

extend beyond two years.

34 The High Court concluded that Rule 105 fixes a maximum probationary

period of two years and that consequently, the continuation of the services of the

probationer beyond the period of probation would amount to a deemed

confirmation of service even without an order of confirmation. Consequently, the

case of the first respondent was according to the High Court within the second

category of cases enumerated in Satya Narayan Jhavar. This Court in Satya

Narayan Jhavar enumerated three lines of cases. The third stipulates those

cases where the rules prescribe a maximum period of probation but also require

a specific act on the part of the employer of issuing an order of confirmation for

31 (1996) 6 SCC 665 32 (2008) 13 SCC 185

22 the purposes of confirmation. In such cases, there is no deemed confirmation of

the services of a probationer on their continuation in service beyond the

maximum period of probation.

35 Admittedly, the appointment letter does not stipulate that the first

respondent shall be confirmed upon the expiry of the probationary period. Rule

105(2) stipulates that an order of confirmation may be issued ―if the work and

conduct of an employee during the period of probation is found to be

satisfactory‖. Rule 105(2) lays down a condition precedent to the issuance of an

order of confirmation. It is only if the appointing authority is satisfied with the

performance of the probationer that an order of confirmation may be issued. Rule

105(2) contains an explicit stipulation requiring the issuance of an order of

confirmation by the appointing authority upon its assessment that the

performance of the probationer has been satisfactory. The mere continuation of

the services of a probationer beyond the period of probation does not lead to a

deemed confirmation in service. It is only upon the issuance of an order of

confirmation by the appointing authority that probationer is granted substantive

appointment in the post.

36 In GS Ramaswamy v Inspector General of Police33, a Constitution

Bench of this Court considered the promotions of Sub-Inspectors of Police under

Rule 486 of the Hyderabad District Police Manual which stipulated that all officers

who are promoted will be on probation for a period of two years and that they

may be reverted during the aforesaid period if their work and conduct is not found

33 (1964) 6 SCR 279

23 satisfactory. Noting that the Rule stipulated that ―promoted officers will be

confirmed at the end of their probationary period if they have given satisfaction‖,

this Court held thus:

―8… Therefore even though a probationer may have continued to act in the post to which he is appointed on probation for more than the initial period of probation, he cannot become a permanent servant merely because of efflux of time, unless the Rules of service which govern him specifically lay down that the probationer will be automatically confirmed after the initial period of probation is over…It is true that the words used in the sentence set out above are not that promoted officers will be eligible or qualified for promotion at the end of their probationary period which are the words to be often found in the Rules in such cases; even so, though this part of Rule 486 says that “promoted officers will be confirmed at the end of their probationary period”, it is qualified by the words “if they have given satisfaction”. Clearly therefore the Rule does not contemplate automatic confirmation after the probationary period of two years, for a promoted officer can only be confirmed under this Rule if he has given satisfaction. This condition of giving satisfaction must be fulfilled before a promoted officer can be confirmed under this Rule and this condition obviously means that the authority competent to confirm him must pass an order to the effect that the probationary officer has given satisfaction and is therefore confirmed.‖

(Emphasis supplied)

In Kedar Nath Bahl v State of Punjab34, the appellant was appointed to a post

in the Punjab Provincial Service Class I. The appointment letter stipulated that

the period of probation shall be six months. The appellant continued on probation

beyond the stipulated period of six months and was eventually reverted back to

his previous post. He instituted proceedings challenging his order of reversion.

The appellant contended that upon the expiry of the period of probation, he was

34 (1974) 3 SCC 21

24 deemed to be confirmed in service. Rejecting this contention, a three judge

Bench of this Court held thus:

―9. …The law on the point is now well settled. Where a person is appointed as a probationer in any post and a period of probation is specified, it does not follow that at the end of the said specified period of probation he obtains confirmation automatically even if no order is passed in that behalf. Unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of the specified period, or there is a specific service rule to that effect, the expiration of the probationary period does not necessarily lead to confirmation. At the end of the period of probation an order confirming the officer is required to be passed and if no such order is passed and he is not reverted to his substantive post, the result merely is that he continues in his post as a probationer…The terms of appointment do not show that the appellant would be automatically confirmed on the expiry of the first six months of probation nor is any rule brought to our notice which has the effect of confirming him in the post after six months of probation.‖ (Emphasis supplied)

This view is also affirmed by the judgments of this Court in Municipal

Corporation, Raipur v Ashok Kumar Misra35, Jai Kishan v Commissioner of

Police36, State of Punjab v Baldev Singh Khosla37 and Chief GM, State Bank

of India v Bijoy Kumar Mishra38.

37 Recently, in Head Master, Lawrence School, Lovedale v Jayanthi

Raghu39, a two judge Bench of this Court held that even where the relevant rule

prescribes a maximum period of probation, the use of the words ―if confirmed‖

35 (1991) 3 SCC 325 36 1995 Supp (3) SCC 364 37 (1996) 9 SCC 190 38 (1997) 7 SCC 550 39 (2012) 4 SCC 793

25 denote a condition precedent and that there is no deemed confirmation of

service unless a specific order of confirmation is issued. The Court held thus:

―38. Had the rule-making authority intended that there would be automatic confirmation, Rule 4.9 would have been couched in a different language. That being not so, the wider interpretation cannot be placed on the Rule to infer that the probationer gets the status of a deemed confirmed employee after expiry of three years of probationary period as that would defeat the basic purpose and intent of the Rule which clearly postulates ―if confirmed‖. A confirmation, as is demonstrable from the language employed in the Rule, does not occur with efflux of time. As it is hedged by a condition, an affirmative or positive act is the requisite by the employer. In our considered opinion, an order of confirmation is required to be passed.‖ (Emphasis supplied)

38 It emerges from the consistent line of precedent of this Court that where

the relevant rule or the appointment letter stipulates a condition precedent to the

confirmation of service, there is no deemed confirmation of service merely

because the services of a probationer are continued beyond the period of

probation. It is only upon the issuance of an order of confirmation that the

probationer is granted substantive appointment in that post. Rule 105(2)

stipulates the satisfaction of the appointing authority as a condition precedent to

the issuance of an order of confirmation. The argument advanced by the learned

counsel for the first respondent that there is a deemed confirmation upon the

continuation of service beyond the expiry of the period of probation is negatived

by the express language of Rule 105(2). In this view, the continuation of services

beyond the period of probation will not entitle the probationer to a deemed

confirmation of service. The High Court has erred in holding that there is a

deemed confirmation where the services of a probationer are continued beyond

the expiry of the probationary period.

26 39 It was briefly urged by Mr Yashobant Das, learned Senior Counsel

appearing on behalf of the appellants that the Division Bench of the High Court

failed to follow a judgment of a coordinate Bench of the High Court in Veena

Sharma. In that case, a termination order was issued to an Upper Division Clerk

during the period of her probation. Contending that her termination was not in

accordance with the letter of appointment and that her services were deemed to

be confirmed, the case of the employee reached the High Court. The

appointment letter expressly stated that a letter of confirmation shall be issued

upon the expiry of the probationary period. Justice Dipak Misra (as he then was)

rejected the contention that Rule 105 of the 1973 Rules stipulated a deemed

confirmation of service on the grounds that there is no fixed period of probation

and that the work and conduct of the employee must be proved to be satisfactory.

40 In the present case, the Division Bench of the High Court adverted to the

decision in Veena Sharma and distinguished it on the ground that the

appointment letter stipulated the requirement of an express letter of confirmation.

Further, the argument urged on behalf of the appellant cannot be accepted as the

facts of that case are distinguishable for the principal reason that no interpretation

of the exemption stipulated for minority institutions in the proviso was involved.

41 The High Court relied on the Constitution Bench judgment of this Court in

Dharam Singh to hold that upon the expiry of the probationary period, the first

respondent is deemed to be confirmed in service. In Dharam Singh this Court

interpreted Rule 640 of the Punjab Educational Service (Provincialised Cadre)

40 ―6(1). Members of the Service, officiating or to be promoted against permanent posts, shall be on probation in the first instance for one year.

27 Class III Rules, 1961. The Rules stipulated that the period of probation shall be

one year and the total period of probation shall not exceed three years. The Court

granted relief to the claimants as their services were continued beyond three

years and the relevant rules and the appointment letter did not stipulate the

issuance of any order of confirmation. The Court held thus:

―9. Immediately upon completion of the extended period of probation on October 1, 1960, the appointing authority could dispense with the services of the respondents if their work or conduct during the period of probation was in the opinion of the authority unsatisfactory. Instead of dispensing with their services on completion of the extended period of probation, the authority continued them in their posts until sometime in 1963, and allowed them to draw annual increments of salary including the increment which fell due on October 1, 1962. The rules did not require them to pass any test or to fulfil any other condition before confirmation. There was no compelling reason for dispensing with their services and re- employing them as temporary employees on October 1, 1960, and the High Court rightly refused to draw the inference that they were so discharged from services and re-employed. In these circumstances, the High Court rightly held that the respondents must be deemed to have been confirmed in their posts. Though the appointing authority did not pass formal orders of confirmation in writing, it should be presumed to have passed orders of confirmation by so allowing them to continue in their posts after October 1, 1960.‖ (Emphasis supplied)

In Dharam Singh, the Constitution Bench held that the continuation of the

services of a probationer beyond the maximum period of probation would amount

(2) Officiating service shall be reckoned as period spent on probation, but no member who has officiated in any appointment for one year shall be entitled to be confirmed unless he is appointed against a permanent vacancy.

(3) On the completion of the period of probation the authority competent to make appointment may confirm the member in his appointment or if his work or conduct during the period of probation has been in his opinion unsatisfactory he may dispense with his services or may extend his period of probation by such period as he may deem fit or revert him to his former post if he was promoted from some lower post:

Provided that the total period of probation including extensions, if any, shall not exceed three years. …‖

28 to a deemed confirmation of service only in the absence of a stipulation in the

relevant rule requiring the probationer to pass a test or fulfill any other condition.

In the present case, Rule 105(2) stipulates the satisfaction of the appointing

authority as a condition precedent to the issuance of an order of confirmation.

The High Court has thus failed to notice the distinguishing features which emerge

from the judgment of this Court in Dharam Singh.

42 In the view that we have taken, the High Court has erred in concluding that

the case of the first respondent falls within the second category of cases

enumerated in Satya Narayan Jhavar. Rule 105(2) stipulates the satisfaction of

the appointing authority as a condition precedent to the issuance of an order of

confirmation. Admittedly, no order of confirmation was issued by the appointing

authority. The case of the first respondent falls squarely within the third category

of cases enumerated in Satya Narayan Jhavar wherein though the rules

prescribe a maximum period of probation and the probationer is continued

beyond the expiry of the probationary period, the substantive appointment of the

probationer is subject to a specific act on the part of the appointing authority of

issuing an order of confirmation. In the absence of an order of confirmation, the

first respondent did not acquire the status of a confirmed employee.

43 In the present case, the first respondent served as a probationer for nearly

five years. Rule 105(1) permits the appointing authority to extend the period of

probation with the prior permission of the Director. The proviso stipulates that no

prior approval of the Director is required for the extension of the probationary

period by the appointing authority of a minority institution. The amending history

29 of the provision shows that prior to the amendment in 1990, no prior approval of

the Director was required. By virtue of the Amending Rules 1990 the prior

approval of the Director was made mandatory, save and except for extensions in

the case of minority institutions, for the grant of any extension in the probationary

period. The absolute discretion vested with the appointing authority of an

institution was made subject to the prior approval of the Director.

44 The power vested in the Director serves as a check on the absolute

discretion of the appointing authority to extend the probationary period. The

power vested in the Director, however, to approve a request of the appointing

authority is not unbridled. Rule 105(1) stipulates that the services of a probationer

may be terminated without notice during the period of probation where the

services of the probationer are not ―in the opinion of the appointing authority,

satisfactory‖. Rule 105(2) stipulates that an order of confirmation may be issued

if, in the opinion of the appointing authority, the performance of the probationer is

satisfactory. The discretion of the Director must be exercised objectively on the

basis of the material produced by the appointing authority bearing on the

performance of a probationer.

45 The prior approval of the Director, save and except for minority institutions,

is mandatory and must be complied with as a condition precedent for the valid

exercise of the power to extend the period of probation. The Director is required

to assess the determination of the appointment authority and based on that

assessment, to decide whether to approve an extension of the probationary

period. The provision which mandates that the prior approval of the Director shall

30 be sought before extending the period of probation ensures that the appointing

authority may not extend the probationary period without legitimate reason. The

extension of the probationary period by the appointing authority, save and except

for minority institutions, without the prior approval of the Director is impermissible

in law.

46 Rule 105(1) of the 1973 Rules, by stipulating a maximum permissible

period of probation of two years, draws a balance between the interests of the

appointing authority in extending the period of probation to ensure the quality of

education and the interests of probationers in their services not being extended

on probation ad nauseum. The continuation of the services of a probationer

beyond the period permissible under the 1973 Rules defeats the salutary purpose

underlying the limit stipulated on the period of extension that may be effected in

the probationary period. Upon the expiry of the period of probation, the appointing

authority is required by law to either confirm the services of the probationer or

terminate their services. The continuation of the services of a probationer by the

appointing authority under Rule 105 of the 1973 Rules beyond the maximum

permissible period of probation, constitutes a violation of law. Though as we have

held, there is no provision for deemed confirmation, the conduct of the

management may result in other consequences, including a decision in regard to

whether the recognition of a school which consistently violates the law should be

withdrawn.

47 In the present case, the appointment letter of the first respondent dated 18

June 2008 clearly stipulated that the period of probation shall be ―one year from

31 the date of joining.‖ Rule 105 provides for the extension of the probationary

period by another year. The first respondent joined service on probation for a

period of one year on 1 July 2008. The period of probation was to come to an end

on 1 July 2009, which could be extended by one year under Rule 105. The period

of probation was extended belatedly on 11 February, 2010 for another year on

the ground that the services of the first respondent were unsatisfactory. On 30

November, 2011, the period of probation was extended by another year. On 22

May, 2013, the Managing Committee of the Education society discharged the first

respondent from service with effect from 30 June 2013.

48 The first respondent was continued as a probationer for nearly five years in

contravention of Rule 105 of the 1973 Rules as well as the appointment letter

dated 18 June 2008. There was no order of confirmation. Though the first

respondent cannot claim a deemed confirmation of service without the issuance

of an order of confirmation, the power of this Court to do complete justice under

Article 142 of the Constitution must be invoked in an appropriate manner. While

there can be no deemed confirmation in the favour of the first respondent, the

relief can be suitably moulded by an award of ex-gratia compensation. A teacher

who has spent five valuable years of her life and may now be overaged to get

suitable employment elsewhere must not be left in the lurch. A management

which has defied the law must be put to terms, which we propose to do under

Article 142.

32 49 We hold and declare that:

(i) The words ―by another year‖ in Rule 105(1) of the 1973 Rules stipulate

that the maximum period of probation permissible is two years. The

limit equally applies to minority institutions covered by the first proviso

to Rule 105; and

(ii) Rule 105(2) stipulates a condition precedent to the issuance of an order

of confirmation. The continuation of the services of a probationer

beyond the period of probation does not amount to a deemed

confirmation of service. It is only upon the issuance of an order of

confirmation by the appointing authority that a probationer is confirmed

in service.

50 We direct, in the exercise of the jurisdiction of this Court under Article 142

of the Constitution, that the appellants shall pay over to the first respondent a

sum of INR 5,00,000 within a period of four weeks from the date of receipt of a

certified copy of this order, failing which the amount shall carry an interest of 9%

per annum till the date of realisation.

51 We affirm the view of the Delhi High Court to the extent that the maximum

permissible period of probation under Rule 105 of the 1973 Rules is two years,

although for the reasons that we have indicated above. The High Court, in the

present case and in prior cases, has failed to take note of the amending history

of Rule 105 of the 1973 Rules and has relied on an incorrect provision of law. We

clarify that previous litigation under Rule 105 of the 1973 Rules which has

attained finality shall not be reopened. The judgment of the Delhi High Court, in

33 so far as it confirmed the services of the first respondent is set aside. The appeal

is partly allowed in the above terms.

52 We direct the Registry to forward a copy of this judgment to the Chief

Librarian, Supreme Court of India, the Registrar General, Delhi High Court and

the Department of Education, National Capital Territory of Delhi for recording the

correct provisions of Rule 105 of the 1973 Rules in their records.

53 There shall be no order as to costs.

54 Pending application(s), if any, shall stand disposed of.

………..…………................................J. [Dr Dhananjaya Y Chandrachud]

…....…………………………...............J. [Aniruddha Bose]

New Delhi August 21, 2019

34