Head Master,Lawrence School,Lovedale vs Jayanthi Raghu & Anr

Lovedale ..... Appellant

Versus

Jayanthi Raghu & Anr. ... Respondents

J U D G M E N T

Dipak Misra, J

Leave granted.

2. Questioning the legal acceptability of the Judgment and

Order dated 26.03.2008 passed by the High Court of Judicature

at Madras in W.A. No. 4157 of 2004 whereby the finding recorded

by the learned Single Judge in W.P. No. 15963 of 1997 to the

effect that the order of termination in respect of the first

respondent, a teacher, being stigmatic in nature and having been

2

passed without an enquiry warranted quashment was dislodged

-

by the Division Bench on the foundation that the order of

termination did not cast any stigma, but concurred with the

ultimate conclusion on the base that she was a confirmed

employee and hence, holding of disciplinary enquiry before

passing an order of termination was imperative, the present

appeal by special leave has been preferred under Article 136 of

the Constitution of India.

3. The factual matrix lies in a narrow compass. The first

respondent herein was appointed on the post of a Mistress with

effect from 01.09.1993. It was stipulated in the letter of

appointment that she would be on probation for a period of two

years which may be extended for another one year, if necessary.

In November 1995, while she was working as a Mistress in the

appellant's school, as alleged, she had received some amount

from one Nathan. A meeting was convened on 09.09.1997 and in

the proceeding, certain facts were recorded which need not be

adverted to inasmuch as the said allegations though treated

stigmatic by the learned Single Judge, yet the Division Bench, on

a studied scrutiny of the factual scenario, has opined in

3

categorical terms that the same do not cast any stigma. The said

-

conclusion has gone unassailed as no appeal has been preferred

by the first respondent.

4. To proceed with the narration, after the proceeding was

recorded on 18.06.1997, an order of termination was passed

against the first respondent. As has been stated earlier, the order

of termination was assailed before the Writ Court and the learned

Single Judge axed the order on the ground that the same was

stigmatic in nature. The order passed by the learned Single

Judge was challenged in Writ Appeal under Clause 15 of the

Letters Patent by the present appellant and at that juncture, a

contention was canvassed by the first respondent that by virtue

of the language employed in Rule 4.9 of the Rules of Lawrence

School, Lovedale (Nilgiris) (for short, `the Rules'), she had earned

the status of a confirmed employee having satisfactorily

completed the period of probation and, therefore, her services

could not have been dispensed with without holding an enquiry.

In essence, the proponement was that she was deemed to have

been a confirmed employee of the school and hence, it was

4

obligatory on the part of the employer to hold an enquiry before

putting an end to her services.

-

5. The Division Bench interpreted the Rule and placed reliance

on a three-Judge Bench Decision of this Court in The High

Court of Madhya Pradesh through Registrar and Others v.

Satya Narayan Jhaver1 and came to hold as follows:-

"In terms of Rule 4.9 of the Rules, the

maximum period of probation would be only

three years and the rule does not provide any

further extension of probation. If that be so,

the Headmaster of the school would be entitled

to pass orders as to the confirmation before

the expiry of the maximum period of three

years i.e., 1.9.1996. Factually no such order

was passed in this case and the teacher was

allowed to serve beyond the period of 1.9.1996

till the order of termination dated 18.6.1997

was passed. In the absence of any provision

for extension beyond a period of three years, in

law, as stated by the Supreme Court, the

services of the teacher would be treated as

confirmed after 1.9.1996. Mr. K. R.

Vijayakumar, learned counsel for the school

has submitted that the said rule 4.9

contemplates that only "if confirmed" the

probation would come to an end. The said

submission is based on the rule that the

appointee, if confirmed, shall continue to hold

office till the age of 55 years. In our opinion,

1

(2001) 7 SCC 161 : AIR 2001 SC 3234

5

the said rule relates to the upper age limit for

the entire service, i.e., in the event of a

probationer is confirmed, he would be entitled

to continue till the age of 55 years. The said

rule does not in any way empowers the

Headmaster or the Chairman, as the case may

be, to extend the period of probation beyond

the maximum period of three years."

-

6. Assailing the legal substantiality of the order, Mr. K.V.

Viswanathan, learned senior counsel, has submitted that the

Division Bench has grossly erred by coming to the conclusion

that after the expiry of the probation period, the first respondent

became a confirmed employee. It is his further submission that if

the language employed in Rule 4.9 of the Rules, especially the

words "if confirmed", are appreciated in proper perspective, there

can be no trace of doubt that an affirmative act was required to

be done by the employer without which the employee could not

be treated to be a confirmed one. The learned senior counsel

would further contend that the High Court has clearly flawed in

its interpretation of the Rule by connecting the factum of

confirmation with the fixation of upper age limit for

superannuation. It is also urged by him that the Division Bench

6

has clearly faulted in its appreciation of the law laid down in

Satya Narayan Jhaver (supra) inasmuch as the case of the first

respondent squarely falls in the category where a specific act on

the part of the employer is an imperative requisite.

7. Combating the aforesaid submissions, Ms. Shweta Basti,

learned counsel appearing for the first respondent, submitted

that the order passed by the High Court is absolutely impeccable

-

since on a careful scanning of the Rule, it is discernible that it

does not confer any power on the employer to extend the period

of probation beyond the maximum period as stipulated in the

Rule and, therefore, the principle of deemed confirmation gets

attracted. It is proponed by her that the emphasis placed on the

term "if confirmed" by the appellant is totally misconceived and

unwarranted because its placement in the Rule luminously

projects that it has an insegregable nexus with the age of

retirement and it has no postulate which would destroy the

concept of deemed confirmation. It has been further put forth

that the Rule neither lays down any postulate that the employee

shall pass any test nor does it stipulate any condition precedent

7

for the purpose of confirmation. Lastly, it is contended that a

liberal interpretation is necessary regard being had to the

uncertainties that is met with by a probationer after the expiry of

the probation period and unless the beneficent facet is taken note

of, the caprice of the employer would prevail and the service

career of an employee would be fossilized.

8. To appreciate the rivalised submissions raised at the Bar,

we have carefully perused the letter of appointment and on a

plain reading of the same, it is apparent that the first respondent

-

was appointed as a Mistress in the School on probation for a

period of two years with a stipulation that it may be extended by

another year. There is nothing in the terms of the letter of

appointment from which it can be construed that after the expiry

of the period of probation, she would be treated as a deemed

confirmed employee. In this factual backdrop, the interpretation

to be placed on Rule 4.9 of the Rules assumes immense

signification. The said Rule reads as follows: -

"4.9 All appointments to the staff shall ordinarily

be made on probation for a period of one year

which may at the discretion of the Headmaster or

the Chairman in the case of members of the staff

8

appointed by the Board be extended up to two

years. The appointee, if confirmed, shall

continue to hold office till the age of 55 years,

except as otherwise provided in these Rules.

Every appointment shall be subject to the

conditions that the appointee is certified as

medically fit for service by a Medical Officer

nominated by the Board or by the Resident

Medical Officer of the School."

9. Keeping in abeyance the interpretation to be placed on the

Rule for a while, it is obligatory to state that there is no dispute

at the Bar that the first respondent had completed the period of

probation of three years. Thus, the fulcrum of the controversy is

whether the appellant-school was justified under the Rules

treating the respondent-teacher as a probationer and not treating

-

her as a deemed confirmed employee. We have reproduced the

necessary paragraph from the decision of the High Court and

highlighted how the Division Bench has analysed and interpreted

the Rule in question. The bedrock of the analysis, as is

perceivable, is the sentence in Rule 4.9 "the appointee, if

confirmed, shall continue to hold office till the age of 55 years"

fundamentally relates to the fixation of the upper age limit for the

9

entire service. It has been held that it deals with the entitlement

of an employee to continue till the age of 55 years.

10. Before we proceed to appreciate whether the interpretation

placed on the Rule is correct or not, it is apposite to refer to

certain authorities in the field. In Sukhbans Singh v. State of

Punjab2, the Constitution Bench has opined that a probationer

cannot, after the expiry of the probationary period, automatically

acquire the status of a permanent member of the service, unless

of course, the rules under which he is appointed expressly

provide for such a result.

11. In G.S. Ramaswamy and Ors. v. Inspector-General of

Police, Mysore3, another Constitution Bench, while dealing with

-

the language employed under Rule 486 of the Hyderabad District

Police Manual, referred to the decision in Sukhbans Singh

(supra) and opined as follows: -

2 AIR 1962 SC 1711

3

AIR 1966 SC 175

10

"It has been held in that case that a probationer

cannot after the expiry of the probationary period

automatically acquire the status of a permanent

member of a service, unless of course the rules

under which he is appointed expressly provide for

such a result. Therefore even though a

probationer may have continued to act in the

post to which he is 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 contended on

behalf of the petitioners before us that the part of

r. 486 (which we have set out above) expressly

provides for automatic confirmation after the

period of probation is over. We are of opinion that

there is no force in this contention. It is true that

the words used in the sentence set out above are

not that promoted officers will be enable or

qualified for promotion at the end of their

probationary period which are the words to be

often found in the rules in such eases; even so,

though this part of r. 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."

-

11

12. In State of Uttar Pradesh v. Akbar Ali Khan4, another

Constitution Bench ruled that if the order of appointment itself

states that at the end of the period of probation, in the absence of

any order to the contrary, the appointee will acquire a

substantive right to the post even without an order of

confirmation. In all other cases, in the absence of such an order

or in the absence of such a service rule, an express order of

confirmation is necessary to give him such a right. Where after

the period of probation, an appointee is allowed to continue in

the post without an order of confirmation, the only possible view

to take is that by implication, the period of probation has been

extended, and it is not a correct proposition to state that an

appointee should be deemed to be confirmed from the mere fact

that he is allowed to continue after the end of the period of

probation.

13. In State of Punjab v. Dharam Singh5, the Constitution

Bench, after scanning the anatomy of the Rules in question,

4

AIR 1966 SC 1842

5

AIR 1968 SC 1210

12

addressed itself to the precise effect of Rule 6 of the Punjab

Educational Service (Provincialised Cadre) Class III Rules, 1961.

The said Rule stipulated that the total period of probation -

including extensions, if any, shall not exceed three years. This

Court referred to the earlier view which had consistently stated

that when a first appointment or promotion is made on probation

for a specific period and the employee is allowed to continue in

the post after the expiry of the period without any specific order

of confirmation, he should be deemed to continue in his post as a

probationer only in the absence of any indication to the contrary

in the original order of appointment or promotion or the service

rules. Under these circumstances, an express order of

confirmation is imperative to give the employee a substantive

right to the post and from the mere fact that he is allowed to

continue in the post after the expiry of the specified period of

probation, it is difficult to hold that he should be deemed to have

been confirmed. When the service rules fixed a certain period of

time beyond which the probationary period cannot be extended

and an employee appointed or promoted to a post on probation is

allowed to continue in that post after completion of the maximum

period of probation without an express order of confirmation, he

13

cannot be deemed to continue in that post as a probationer by

implication. It is so as such an implication is specifically -

negatived by the service rule forbidding extension of the

probationary period beyond the maximum period fixed by it.

14. In Samsher Singh v. State of Punjab and another6, the

seven-Judge Bench was dealing with the termination of services

of the probationers under Rule 9 of the Punjab Civil Services

(Punishment and Appeal) Rules, 1952 and Rule 7(3) of the

Punjab Civil Services (Judicial Branch) Rules, 1951. In the said

case, the law laid down by the Constitution Bench in the case of

Dharam Singh (supra) was approved but it was distinguished

because of the language of the relevant rule, especially

explanation to Rule 7(1), which provided that every subordinate

Judge in the first instance be appointed on probation for two

years and the said period may be extended from time to time

either expressly or impliedly so that the total period of probation

including extension does not exceed three years. The explanation

to the said Rule stipulated that the period of probation shall be

deemed to have been extended if a subordinate Judge is not

6

(1974) 2 SCC 831

14

confirmed on the expiry of the period of probation. Be it noted,

reliance was placed on the decision in Dharam Singh (supra). -

The larger Bench discussed the principle laid down in Dharam

Singh's case and proceeded to state as follows: -

"In Dharam Singh's case (supra) the relevant rule

stated that the probation in the first instance is

for one year with the proviso that the total period

of probation including extension shall not exceed

three years. In Dharam Singh's case he was

allowed to continue without an order of

confirmation and therefore the only possible view

in the absence of anything to the contrary in the

Service Rules was that by necessary implication

he must be regarded as having been confirmed."

After so stating, the Bench referred to Rule 7(1) and came to hold

as follows: -

"..................the explanation to rule 7(1) shows that the period of

probation shall be deemed to have been extended impliedly if a

Subordinate Judge is not confirmed on the expiry of this period

of probation. This implied extension where a Subordinate Judge

is not confirmed on the expiry of the period of probation is not

found in Dharam Singh's case (supra). This explanation in the

present case does not mean that the implied extension of the

probationary period is only between two and three years. The

explanation on the contrary means that the provision regarding

the maximum period of probation for three years is directory and

not mandatory unlike in Dharam Singh's case (supra) and that a

probationer is not in fact confirmed till an order of confirmation

is made."

(Emphasis supplied)

15

-

15. In Om Prakash Maurya v. U.P. Co-operative Sugar

Factories Federation, Lucknow and others7, a two-Judge

Bench was dealing with the case of confirmation under the U.P.

Cooperative Societies Employees Service Regulations, 1975. After

referring to Regulations 17 and 18, it was held that as the proviso

to Regulation 17 restricts the power of the appointing authority

in extending the period of probation beyond the period of one

year and Regulation 18 provides for confirmation of an employee

on the satisfactory completion of the probationary period, it could

safely be held that the necessary result of the continuation of an

employee beyond two years of probationary period is that he

would be confirmed by implication.

16. In Municipal Corporation, Raipur v. Ashok Kumar

Misra8, while dealing with Rule 14 of the Madhya Pradesh

Government Servants' General Conditions of Service Rules, 1961,

after referring to earlier pronouncements, it has been held that if

7

AIR 1986 SC 1844

8

AIR 1991 SC 1402

16

the rules do not empower the appointing authority to extend the

probation beyond the prescribed period, or where the rules are

absent about confirmation or passing of the prescribed test for -

confirmation it is an indication of the satisfactory completion of

probation.

17. It is apt to note here that the learned counsel for both the

sides have heavily relied on the decision in High Court of

Madhya Pradesh thru. Registrar and others v. Satya

Narayan Jhavar9. In the said case, the three-Judge Bench was

considering the effect and impact of Rule 24 of the Madhya

Pradesh Judicial Service (Classification, Recruitment and

Conditions of Services) Rules, 1955. It may be mentioned that

the decision rendered in Dayaram Dayal v. State of M.P.10,

which was also a case under Rule 24 of the said Rules, was

referred to the larger Bench. In Dayaram Dayal (supra), it had

been held that if no order for confirmation was passed within the

maximum period of probation, the probationer judicial officer

9

(2001) 7 SCC 161 : AIR 2001 SC 3234

10

AIR 1997 SC 3269

17

could be deemed to have been confirmed after expiry of four years

period of probation. After referring to the decisions in Dharam

Singh (supra), Sukhbans Singh (supra) and Shamsher Singh

(supra) and other authorities, the three-Judge Bench expressed

thus:-

-

"11. The question of deemed confirmation in service

Jurisprudence, which is dependent upon language of the relevant

service rules, has been 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 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. 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 officer concerned is deemed to have been confirmed upon

expiry of the maximum period of probation in case before its

expiry 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 require 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 the person

concerned has passed the requisite test, he cannot be deemed to

have been confirmed merely because the said period has

expired."

(underlining is ours)

18

After so stating, it was further clarified as follows: -

-

"38. Ordinarily a deemed confirmation of a probationer arises

when the letter of appointment so stipulates or the Rules

governing service condition so indicate. In the absence of such

term in the letter of appointment or in the relevant Rules, it can

be inferred on the basis of the relevant Rules by implication, as

was the case in Dharam Singh (supra). But it cannot be said that

merely because a maximum period of probation has been

provided in Service Rules, continuance of the probationer

thereafter would ipso facto must be held to be a deemed

confirmation which would certainly run contrary to Seven Judge

Bench Judgment of this Court in the case of Shamsher Singh

(supra) and Constitution Bench decisions in the cases of

Sukhbans Singh (supra), G.S. Ramaswamy (supra) and Akbar Ali

Khan (supra)."

18. Regard being had to the aforesaid principles, the present

Rule has to be scanned and interpreted. The submission of Mr.

Viswanathan, learned senior counsel for the appellant, is that the

case at hand comes within the third category of cases as

enumerated in para-11 of Satya Narayan Jhaver (supra). That

apart, it is urged, the concept of deemed confirmation, ipso facto,

would not get attracted as there is neither any restriction nor any

prohibition in extending the period of probation. On the

contrary, the words "if confirmed" require further action to be

taken by the employer in the matter of confirmation.

-

19 19. On a perusal of Rule 4.9 of the Rules, it is absolutely plain

that there is no prohibition as was the rule position in Dharam

Singh (supra). Similarly, in Om Prakash Maurya (supra), there

was a restriction under the Regulations to extend the period of

probation. That apart, in the rules under consideration, the said

cases did not stipulate that something else was required to be

done by the employer and, therefore, it was held that the concept

of deemed confirmation got attracted.

20. Having so observed, we are only required to analyse what

the words "if confirmed" in their contextual use would convey.

The Division Bench of the High Court has associated the said

words with the entitlement of the age of superannuation. In our

considered opinion, the interpretation placed by the High Court

is unacceptable. The words have to be understood in the context

they are used. Rule 4.9 has to be read as a whole to understand

the purport and what the Rule conveys and means. In Reserve

Bank of India v. Peerless General Finance and Investment

Co. Ltd. and others11, it has been held as follows: -

11 (1987) 1 SCC 424

20

"Interpretation must depend on the text and

the context. They are the bases of interpretation.

One may well say if the text is the texture, -

context is what gives the colour. Neither can be

ignored. Both are important. The interpretation

is best which makes the textual interpretation

match the contextual. A statute is best

interpreted when we know why it was enacted.

With this knowledge, the statute must be read,

first as a whole and then section by section,

clause by clause, phrase by phrase and word by

word. If a statute is looked at, in the context of

its enactment, with the glasses of the statute-

maker, provided by such context, its scheme, the

sections, clauses, phrases and words may take

colour and appear different than when the

statute is looked at without the glasses provided

by the context. With these glasses we must look

at the Act as a whole and discover what each

section, each clause, each phrase and each word

is meant and designed to say as to fit into the

scheme of the entire Act. No part of a statute

and no word of a statute can be construed in

isolation. Statutes have to be construed so that

every word has a place and everything is in its

place."

Keeping the said principle in view, we are required to appreciate

what precisely the words "if confirmed" contextually convey.

Regard being had to the tenor of the Rules, the words "if

confirmed", read in proper context, confer a status on the

appointee which consequently entitles him to continue on the

post till the age of 55 years, unless he is otherwise removed from

service as per the Rules.

21 -

21. It is worth noting that the use of the word "if" has its own

significance. In this regard, we may usefully refer to the decision

in S.N. Sharma v. Bipen Kumar Tiwari and others12. In the

said case, a three-Judge Bench was interpreting the words "if he

thinks fit" as provided under Section 159 of the Code of Criminal

Procedure, 1898. It related to the exercise of power by the

Magistrate. In that context, the Bench observed thus: -

"The use of this expression makes it clear that

Section 159 is primarily meant to give to the

Magistrate the power of directing an investigation

in cases where the police decide not to investigate

the case under the proviso to Section 157(1), and

it is in those cases that, if he thinks fit, he can

choose the second alternative. If the expression

"if he thinks fit" had not been used, it might have

been argued that this section was intended to

give in wide terms the power to the Magistrate to

adopt any of the two courses of either directing

an investigation, or of proceeding himself or

deputing any Magistrate subordinate to him to

proceed to hold a preliminary enquiry as the

circumstances of the case may require.

Without the use of the expression "if he

thinks fit", the second alternative could have

been held to be independent of the first; but the

use of this expression, in our opinion, makes it

plain that the power conferred by the second

12

(1970) 1 SCC 653

22

clause of this section is only an alternative to the

power given by the first clause and can,

therefore, be exercised only in those cases in

which the first clause is applicable."

-

22. In State of Tamil Nadu v. Kodaikanal Motor Union (P)

Ltd.13, the Court, while interpreting the words "if the offence had

not been committed" as used in Section 10-A(1) of the Central

Sales Tax Act, 1956, expressed the view as follows: -

"In our opinion the use of the expression `if'

simpliciter, was meant to indicate a condition,

the condition being that at the time of assessing

the penalty, that situation should be visualised

wherein there was no scope of committing any

offence. Such a situation could arise only if the

tax liability fell under sub-section (2) of Section 8

of the Act."

23. Bearing in mind the aforesaid conceptual meaning, when

the language employed under Rule 4.9 is scrutinised, it can

safely be concluded that the entitlement to continue till the age of

superannuation, i.e., 55 years, is not absolute. The power and

right to remove is not obliterated. The status of confirmation

has to be earned and conferred. Had the rule making authority

13

(1986) 3 SCC 91

23

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. The Division Bench has clearly flawed by associating the

words `if confirmed' with the entitlement of the age of

superannuation without appreciating that the use of the said

words as a fundamental qualifier negatives deemed confirmation.

Thus, the irresistible conclusion is that the present case would

squarely fall in the last line of cases as has been enumerated in

paragraph 11 of Satya Narayan Jhaver (supra) and, therefore,

the principle of deemed confirmation is not attracted.

24. In the result, the appeal is allowed and the judgment and

order passed by the High Court are set aside to the extent that

24

the first respondent had acquired the status of confirmed

employee and, therefore, holding of enquiry is imperative. As far

as the conclusion recorded by the Division Bench that no stigma

was cast on the respondent is concerned, the same having gone

-

unchallenged, the order in that regard is not disturbed. The

parties shall bear their respective costs.

......................................J.

[Dalveer Bhandari]

......................................J.

[Dipak Misra]

New Delhi;

March 16, 2012.

***