Case details

Court: Supreme Court of India
Decided: 21 August 2019
Bench: D.Y. Chandrachud
Citations: 2019 INSC 937[2019] 12 S.C.R. 881
Type: Judgment (Case Partly allowed)

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Citation: [2019] 12 S.C.R. 881 (search it on the Supreme Court's e-SCR portal)

Supreme Court of India

DURGABAI DESHMUKH MEMORIAL SR. SEC. SCHOOL & ANR. versus VASU SENA & ANR. on 21 August 2019

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DURGABAI DESHMUKH MEMORIALSR. SEC. SCHOOL & ANR.

J.A.J. VASU SENA & ANR.(Civil Appeal No.5926 of 2019)AUGUST 21, 2019

[DR. DHANANJAYA Y CHANDRACHUD ANDANIRUDDHA BOSE, JJ.]

Delhi School Education Rules, 1973 – r.105 – Probation –Deemed confirmation of service – The first respondent joined serviceon probation for a period of one year on 01.07.2008 – However,she continued as a probationer for nearly five years – Thereafter,she was discharged from service w.e.f 30.06.2013 – High Courtheld that r.105 fixes a maximum probationary period of two yearsand the continuation of service beyond the maximum period wouldamount to a deemed confirmation of service by implication, evenwithout the issuance of an order of confirmation – On appeal, held:It has emerged from the consistent line of precedent of SupremeCourt that where the relevant rule or the appointment letter stipulatesa condition precedent to the confirmation of service, there is nodeemed confirmation of service merely because the services of aprobationer are continued beyond the period of probation – It isonly upon the issuance of an order of confirmation that theprobationer is granted substantive appointment in that post –R.105(2) stipulates the satisfaction of the appointing authority as acondition precedent to the issuance of an order of confirmation –In the instant case, there was no order of confirmation and theappointment letter also did not stipulate that the first respondentshall be confirmed upon the expiry of the probationary period –Thus, the continuation of services beyond the period of probationdid not entitle the probationer to a deemed confirmation of service– However, since respondent continued as a probationer for nearlyfive years in the contravention of r.105 as well as the appointmentletter, the respondent granted an award of ex-gratia compensationof Rs.5,00,000/- – Therefore, order of the High Court so far as, itconfirmed the services of the first respondent set aside.

882SUPREME COURT REPORTS

ADelhi School Education Rules, 1973 – r.105 – “by anotheryear” – Meaning of – Held: The plain reading of the words “byanother year” implies that the appointing authority of an institutionmay extend the period of probation by one additional year overand above the mandatory year of probation with the prior approvalof the Director – R.105(1) of the 1973 Rules, therefore, stipulates aBlimitation on the total probationary period to two years – The firstproviso stipulates that the prior approval of the Director shall notbe required in the case of a minority institution.

Interpretation of Statutes – Ordinary and literal constructionof the words – Held: It is a settled position of law that where theCwords of a statute are clear and unambiguous, they must beinterpreted in their ordinary grammatical sense, unless theinterpretation leads to an absurd result – It is only where the languageof a statute, in its ordinary meaning and grammatical construction,leads to a manifest contradiction, or to some inconvenience orDabsurdity, hardship or injustice, that a construction may be put uponit which modifies the meaning of the words.

Interpretation of Statutes – Objective of a proviso – Held: Itis a settled position of law that the objective of a proviso is to carveout from the main section a class or category to which the mainEsection does not apply – A proviso must prima facie be read andconsidered in relation to the principal matter to which it is a proviso– It is not a separate or independent enactment.

Conclusion

The appellant-Delhi Administration aided school and alinguistic minority institution appointed the first respondent onFprobation to the post of PGI (English General) on 18.7.2008 for aduration of one year. The respondent continued as a probationerfor nearly five years. Thereafter, she was discharged from theservice. Aggrieved, the first respondent filed an appeal beforethe Delhi School Tribunal, which was allowed and order ofdischarge was set aside. Appellants filed a writ petition beforeGthe High Court. The High Court held that the conduct of themanagement in allowing the first respondent to continue in servicefor nearly five years evidenced the satisfactory conduct of thefirst respondent and resulted in a deemed confirmation of service.Hence, the present appeal.

Partly allowing the appeal, the Court

HELD: 1. Whether the words “by another year”appearingin the principal part of Rule 105(1) of Delhi School EducationRules, 1973 and in the first proviso to Rule 105 (1) limit the totalduration of permissible probation to two years 1.1 The words of a statute should be understood in thesense in which they best harmonise with the subject of theenactment and the object which the legislature has in view.Thisprinciple should be a useful guide in interpreting the provisionsof delegated legislation in this case, namely Rule 105. Thepurpose of probation is to enable an assessment to be made ofthe performance of an employee. It serves as an opportunity forprobationers to establish by the dint of their work which isrendered during the period of probation, that they are suitablefor being retained in service. On the part of the employer,probation enables the appointing authority to determine thesuitability of the probationer for retention in service.[Para 23] [898-C-D]

1.2 The plain reading of the words “by another year” impliesthat the appointing authority of an institution may extend theperiod of probation by one additional year over and above themandatory year of probation with the prior approval of theDirector. Rule 105(1) of the 1973 Rules therefore stipulates alimitation on the total probationary period to two years. The firstproviso stipulates that the prior approval of the Director shallnot be required in the case of a minority institution. [Para 25][899-B]

1.3 The appellant contended that the words “by anotheryear” in the first proviso to Rule 105(1) cannot be read as limitingthe total period of probation to two years. The contention urgedby the appellants cannot be accepted. The words “by anotheryear” appearing in the principal part of Rule 105(1) must be giventheir plain and literal meaning to imply one additional year. Theappointing authority of an institution may extend the period ofprobation by one additional year over and above the initial periodof one year. This equally applies to minority institutions. The firstproviso stipulates that the provisions of the sub-rule “relating to A

Athe prior approval of the Director” in respect of an extension ofthe probationary period by another year by a minority institutionshall not apply. The proviso merely carves out an exception fromthe principal provision to the effect that in the case of a minorityinstitution, the approval of the Director for the extension ofprobation period by an additional year shall not be required. InBthat view, the words “by another year” in Rule 105(1) of the 1973Rules restrict the maximum permissible period of probation totwo years. This equally applies to minority institutions coveredby the first proviso to Rule 105. [Paras 29 and 33][902-A-C;905-A]C2. Whether the 1973 Rules require the issuance of an orderof confirmation for a probationer to be confirmed in service.

2.1 Admittedly, the appointment letter does not stipulatethat the first respondent shall be confirmed upon the expiry ofthe probationary period. Rule 105(2) stipulates that an order ofDconfirmation may be issued “if the work and conduct of anemployee during the period of probation is found to besatisfactory”. Rule 105(2) lays down a condition precedent to theissuance of an order of confirmation. It is only if the appointingauthority is satisfied with the performance of the probationer thatEan order of confirmation may be issued. Rule 105(2) contains anexplicit stipulation requiring the issuance of an order ofconfirmation by the appointing authority upon its assessment thatthe performance of the probationer has been satisfactory. Themere continuation of the services of a probationer beyond theperiod of probation does not lead to a deemed confirmation inFservice. It is only upon the issuance of an order of confirmationby the appointing authority that probationer is grantedsubstantive appointment in the post. [Para 35] [905-F-H; 906-A]

2.2 It emerges from the consistent line of precedent ofthis Court that where the relevant rule or the appointment letterGstipulates a condition precedent to the confirmation of service,there is no deemed confirmation of service merely because theservices of a probationer are continued beyond the period ofprobation. It is only upon the issuance of an order of confirmationthat the probationer is granted substantive appointment in that H

post. Rule 105(2) stipulates the satisfaction of the appointingauthority as a condition precedent to the issuance of an order ofconfirmation. The argument advanced by the learned counsel forthe first respondent that there is a deemed confirmation uponthe continuation of service beyond the expiry of the period ofprobation is negatived by the express language of Rule 105(2).In this view, the continuation of services beyond the period ofprobation will not entitle the probationer to a deemed confirmationof service. The High Court has erred in holding that there is adeemed confirmation where the services of a probationer arecontinued beyond the expiry of the probationary period.[Para 38] [908-E-G]

3. In the present case, the appointment letter of the firstrespondent dated 18 June 2008 clearly stipulated that the periodof probation shall be “one year from the date of joining.” Rule105 provides for the extension of the probationary period byanother year. The first respondent joined service on probationfor a period of one year on 1 July 2008. The period of probationwas to come to an end on 1 July 2009, which could be extendedby one year under Rule 105. The period of probation wasextended belatedly on 11 February, 2010 for another year on theground that the services of the first respondent wereunsatisfactory. On 30 November, 2011, the period of probationwas extended by another year. On 22 May, 2013, the ManagingCommittee of the Education society discharged the firstrespondent from service with effect from 30 June 2013.[Para 47] [912-G-H; 913-A]

4. The first respondent was continued as a probationer fornearly five years in contravention of Rule 105 of the 1973 Rulesas well as the appointment letter dated 18 June 2008. There wasno order of confirmation. Though the first respondent cannot claima deemed confirmation of service without the issuance of an orderof confirmation, the power of this Court to do complete justiceunder Article 142 of the Constitution must be invoked in anappropriate manner. While there can be no deemed confirmationin the favour of the first respondent, the relief can be suitablymoulded by an award of ex-gratia compensation. A teacher who A

Ahas spent five valuable years of her life and may now be overagedto get suitable employment elsewhere must not be left in thelurch. A management which has defied the law must be put toterms, which this Court propose to do under Article 142.[Para 48] [913-B-C]

Tahsildar Singh v. The State Of Uttar Pradesh [1959]2 Suppl. SCR 875 ; GS Ramaswamy v. InspectorGeneral of Police[1964] 6 SCR 279 – followed.

High Court of MP v. Satya Narayan Jhavar (2001) 7SCC 161 : [2001] 1 Suppl. SCR 532;MaharashtraState Financial Corporation v. Jaycee Drugs andPharmaceuticals Pvt. Ltd (1991) 2 SCC 637 : [1991] 1SCR 480 ; State of HP v. Pawan Kumar (2005) 4 SCC550;CIT v. Indo-Mercantile Bank Ltd.[1959] 2 SCRSuppl. 256;Dwarka Prasad v. Dwarka Das Saraf[1976] 1 SCR 277 ; Kedar Nath Bahl v. State of Punjab(1974) 3 SCC 21;Head Master, Lawrence School,Lovedale v. Jayanthi Raghu (2012) 4 SCC 793 : [2012]2 SCR 492 – relied on.

State of Punjab v. Dharam Singh AIR 1968 SC 1210 :[1968] SCR 1 – distinguished.

State of Rajasthan v. Babu Ram(2007) 6 SCC 55 :[2007] 7 SCR 939;S Sundaram Pillai v. VRPattabiraman(1985) 1 SCC 591 : [1985] 2 SCR 643;JK Industries Ltd. v. Chief Inspector of Factories andBoilers (1996) 6 SCC 665 : [1996] 6 Suppl. SCR 798;Holani Auto Links (P) Ltd. v. State of MP (2008) 13SCC 185 : [2008] 7 SCR 168 ;Municipal Corporation,Raipur v. Ashok Kumar Misra (1991) 3 SCC 325 :[1991] 2 SCR 320;Jai Kishan v. Commissioner of Police(1995) 3 Suppl. SCC 364 : [1995] 3 SCR 268; Stateof Punjab v. Baldev Singh Khosla (1996) 9 SCC 190 :[1996] 1 Suppl. SCR 600; Chief GM, State Bank ofIndia v. Bijoy Kumar Mishra(1997) 7 SCC 550 :[1997] 4 Suppl. SCR 214 ; Dy. Director of Educationv. Veena Sharma (2010) 175 DLT 311 (DB); State ofUP v. C Tobit [1958] SCR 1275 ;Santasingh v. State F

DURGABAI DESHMUKH MEMORIAL SR. SEC. SCHOOL v.J.A.J. VASU SENA

of Punjab(1976) 4 SCC 190 : [1977] 1 SCR 229 ;Mukesh Tripathi v. Senior Divisional Manager(2004) 8 SCC 387 : [2004] 4 Suppl. SCR 127 ;Commissioner of Customs (Import), Mumbai v. DilipKuar and Company (2018) 9 SCC 1 : [2018] 7 SCR1191 – referred to.

Principles of Statutory Interpretation by JusticeG P Singh, 14[th] Ed., at p. 91 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No.5926 of2019.

BFrom the Judgment and Order dated 07.05.2018 of the High Courtof Delhi at New Delhi in LPA No.17/2018.

Yashobant Das, Sr. Adv., Rajesh Srivastava, Hanu Bhaskar,Ms. Shubhangi Rathore, Ms. Suresh Kumari, Advs. for the Appellants.

Ms. Madhvi Divan, ASG D. Rama Krishna Reddy, Mrs. D.CBharathi Reddy, Ms. Nivedita Nair, Ms. Manjula Gupta, B.V. BalaramDas, Advs. for the Respondents.

The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, J.D1. The present appeal arises from a judgment of a Division Benchof the Delhi High Court dated 7 May 2018 setting aside the judgment ofa learned Single Judge in a Letters Patent Appeal.[1] The Division Benchaccepted the deemed confirmation of the services of the first respondentwho was a probationer in the school of the appellants.

E2. Allowing the appeal filed by the first respondent, the DivisionBench held that under Rule 105(1) read with the first proviso of theDelhi School Education Rules 1973,[2] the maximum period of probationpermissible is two years. The High Court held that there is a deemedconfirmation of the services of a probationer who is continued in servicebeyond the maximum period of probation, even without the issuance ofFan order of confirmation by the appointing authority. Aggrieved, theappellant school and the Andhra Education Society[3] are in appeal beforethis Court.

3. The appellant is a Delhi administration aided school and alinguistic minority institution. Pursuant to an advertisement for the fillingGof various posts in the appellant school, the first respondent was appointedon probation to the post of PGT (English General) on 18 June 2008 for aduration of one year. The period of probation was extended belatedly on 1 LPA No. 86/20182 1973 RulesH3 Education society

11 February, 2010 for another year on the ground that the services of thefirst respondent were unsatisfactory. On 30 November 2011, the periodof probation was extended by another year. On 22 May 2013, theManaging Committee of the society which conducts the school dischargedthe first respondent from service with effect from 30 June 2013.

4. The first respondent filed an appeal[4] before the Delhi SchoolTribunal[5] challenging her discharge with a prayer for reinstatement withconsequential benefits and back wages. By its order dated 23 July 2015,the Tribunal allowed the appeal and set aside the order of discharge witha direction to the appellants to reinstate the first respondent withconsequential benefits. Assailing the order of the Tribunal, the appellantsfiled a Writ Petition[6] before the Delhi High Court.

5. The learned Single Judge of the Delhi High Court allowed thepetition and held that no maximum period of probation was spelt out inthe letter of appointment or the 1973 Rules. Any confirmation of serviceis subject to the work and conduct of the probationer being satisfactory.Hence, the continuation of the services of the first respondent beyondthe period of probation was held not to result in a deemed confirmationof service without the issuance of an order of confirmation by theappointing authority.

6. The Division Bench of the High Court allowed the LettersPatent Appeal filed by the first respondent and restored the order of theTribunal. The High Court took the view that:

(i) Rule 105 of the 1973 Rules fixes a maximum probationaryperiod of two years and the continuation of service beyondthe maximum period would amount to a deemed confirmationof service by implication, even without the issuance of anorder of confirmation; and F

(ii) The appointment letter dated 18 June 2008 stipulated aprobation period of one year. The conduct of the manage-ment in allowing the first respondent to continue in service fornearly five years evidenced the satisfactory conduct of theGfirst respondent, and resulted in a deemed confirmation ofservice.

4 Appeal No. 54/2013

5 Tribunal

6 WP (C) No. 10310/2015

ARelying on the judgment of a Constitution Bench of this Court inState of Punjab v Dharam Singh[7](“Dharam Singh”), the High Courtheld thus:

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

CThe High Court concluded that the case of the first respondentfell in the second category of cases enumerated by a three judge Benchof this Court in High Court of MP v Satya Narayan Jhavar[8] (“SatyaNarayan Jhavar”), to which we shall advert in the course of thejudgment.

D7. 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 deemedconfirmation of the services of a probationer. Sub-rule (2) ofRule 105 provides that if the services of the probationer areEsatisfactory, a confirmation will be issued upon the expiry ofthe period of probation or the extended period of probation;

(ii) Rule 105(1) does not stipulate a maximum period ofprobation. The continuation of the services of the firstrespondent on probation without an order of confirmationFimplies an extended period of probation. Under Rule 105(1),the termination of service without notice during the periodof probation is legally permissible;

(iii) The proviso to Rule 105(1) merely exempts a minorityinstitution from seeking the prior approval of the Director[9]for extending the period of probation by “another year”. ThisGcannot be read as limiting the permissible extension of theprobationary period to only one year over and above themandatory period of probation. Any extension of the period 7 AIR 1968 SC 12108 (2001) 7 SCC 161H9 As defined under the Delhi Education Act 1973

of probation beyond the mandatory year of probation shallrequire the prior approval of the Director; and

(iv) The High Court failed to consider a binding precedent of aDivision Bench of the Delhi High Court in Dy. Director ofEducation v Veena Sharma[10]holding that there is no fixedperiod of probation under Rule 105 of the 1973 Rules andthat no question of a deemed confirmation of service arises.

8. On the other hand, Mr D Rama Krishna, learned counselappearing on behalf of the first respondent urged, in support of theimpugned judgment of the High Court, that:

(i) The proviso to Rule 105, in so far as a minority institution isconcerned, stipulates that the approval of the Director shallnot be required where the probation period has been extended“by another year”. Rule 105 of the 1973 Rules fixes amaximum probationary period of two years and thecontinuation of service beyond the maximum period wouldamount to a deemed confirmation of service by implication;

(ii) There is no requirement for the issuance of an order ofconfirmation under Rule 105 of the 1973 Rules. There is adeemed confirmation of the services of a probationer uponthe expiry of the maximum prescribed period for probation.The absence of a stipulation requiring an order of confirma-tion in the Rules as well as the appointment letter leads to theinevitable conclusion that there was a deemed confirmationof service when the first respondent was continued inservice beyond two years, even without an order ofconfirmation. Reliance was placed in this regard on thejudgment of this Court in Dharam Singh; and

(iii) The appointment letter of the first respondent dated 18 June2008 stipulated a probationary period of one year. There wasneither a stipulation for the extension in the probationaryperiod nor a requirement of the issuance of an order ofconfirmation.

9. The rival submissions now fall for our consideration.

A10. At the outset, it must be noted that Rule 105 of the 1973Rules as submitted before this Court and the High Court by the contestingparties reads thus:

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

[Provided that the provisions of this sub-rule relating to the priorapproval of the Director in regard to the extension of the periodof probation by another year shall not apply in the case of anemployee of a minority school:

…]

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

E11. It is on the basis of the above provision that the High Court, inthe impugned judgment and in judgments prior to the present case, hasconcluded that there is a limitation on the extension of the probationaryperiod stipulated in Rule 105(1) of the 1973 Rules. On the record beforethis Court, the words “by another year” appear only in the first provisoFto Rule 105 and not in the principal provision. The High Court, in thepresent case and in cases prior to the present one, has failed to note theamending history of Rule 105 of the 1973 Rules and has proceeded toanalyse an incorrect provision of law. It is pertinent here to advert to thelegislative and drafting history of the provision.

12. In exercise of the powers conferred by Section 28 of theGDelhi School Education Act 1973, the Administrator, with the previousapproval of the Central Government, enacted the 1973 Rules. The 1973Rules were published in the Delhi Gazette[11] on 31 December 1973 on 11 Delhi Gazette – PT 2– Jan– Dec 1973 at p. 685H

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 extendedby the appointing authority by another year and the services ofan employee may be terminated without notice during the periodof probation if the work, and conduct of the employee, during thesaid period, is not, in the opinion of the appointing authority,satisfactory:

Provided that no termination from the service of an employee onprobation 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 ofprobation is found to be satisfactory, he shall be on the expiry ofthe period of probation or the extended period of probation as thecase may be, confirmed with effect from the date of expiry of thesaid period.

(3) Nothing in this rule shall apply to an employee who has beenappointed to fill a temporary vacancy or any vacancy for a limitedperiod.”

13. Rule 105 of the 1973 Rules, as originally enacted, stipulatedthat an employee shall be appointed on initial probation for a period ofone year which may be extended by the appointing authority “by anotheryear”. 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) Rules1984 were notified.[12] By this amendment, Rule 110 of the 1973 Ruleswas substituted.

14. On 23 February 1990, the Delhi School Education (Amendment)Rules 1990[13] were notified.[14] Clause 24 of the Amendment Rules 1990Gamended Rule 105 of the 1973 Rules. Clause 24 Reads thus:

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

“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 besubstituted, namely:- “Provided that the provisions of this sub-rule relating to the approvalof the Director in regard to the extension of the period of probationby another year, shall not apply in the case of an employee of aminority school:

Provided further that no termination from the service of anemployee on probation shall be made by a school, other than aminority school, except with the previous approval of the Director.”

15. By virtue of the Amendment Rules 1990:

(i) The words “with the prior approval of the Director” wereinserted after the words “by another year” in the principalpart of Rule 105. The prior approval of the Director wasmade mandatory where the period of probation is extended“by another year”; and

(ii) The first proviso granted an exemption to the appointingauthority of minority institutions from seeking the priorapproval of the Director for extending the period of proba-tion “by another year”.

The amending history of the 1973 Rules shows that the words “by another year” appearing in the principal part ofRule 105 has not been omitted. The High Court has, in thepresent case and prior cases failed to take note of the correctprovision 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 extendedby the appointing authority by another year [with the priorapproval of the Director] and the services of an employee maybe 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:

…]

It is on the basis of the above provision that we proceed to thetask of interpretation relevant to the present dispute.

17. It is appropriate to note the view of a three judge Bench ofthis Court in Satya Narayan Jhavar. Surveying the precedent, the Courtheld thus:

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

One line of cases is where in the service rules or in the letter ofappointment a period of probation is specified and power to extendthe same is also conferred upon the authority without prescribingany maximum period of probation and if the officer is continuedbeyond the prescribed or extended period, he cannot be deemedto be confirmed. In such cases there is no bar against terminationat any point of time after expiry of the period of probation.

The other line of cases is that where while there is a provision inthe rules for initial probation and extension thereof, a maximumperiod for such extension is also provided beyond which it is notpermissible to extend probation. The inference in such cases isthat the officer concerned is deemed to have been confirmed A

upon expiry of the maximum period of probation in case before itsexpiry the order of termination has not been passed.

The last line of cases is where, though under the rules maximumperiod of probation is prescribed, but the same requires a specificact on the part of the employer by issuing an order of confirmationand of passing a test for the purposes of confirmation. In suchcases, even if the maximum period of probation has expired andneither any order of confirmation has been passed nor has theperson concerned passed the requisite test, he cannot be deemedto have been confirmed merely because the said period hasexpired.”

The High Court was of the view that the case of the first respondentfell in the second category of cases enumerated in Satya NarayanJhavar, while the appellant contended that the case of the first respondentfalls within the first category of cases.

D18. The points of law that arise for determination in the presentappeal are: (i) whether the words “by another year”appearing in theprincipal part of Rule 105(1) and in the first proviso to Rule 105 (1) limitthe total duration of permissible probation to two years; and (ii) whetherthe 1973 Rules require the issuance of an order of confirmation for aprobationer to be confirmed in service.E

19. The appointment letter of the first respondent dated 18 June2008, 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- 110002I.D. No. 2127081

Date: 18[th] June, 2008

Ref. No. AESSSS/2008-09/DR/112

MEMORANDUM

With reference to her interview held on Dt. 24.5.2008 for the postof 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 ishereby informed that the she has been selected for the post ofP.G.T. English under the following terms and conditions:-

1. …

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

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

4. …5.…

6. …

7. If the offer of appointment is acceptable she must report toduty on 1[st] July 2008.

8. …

9. …”

20. Rule 105(1) of the 1973 Rules mandates that every employeeshall be appointed on probation for a period of one year. The appointingauthority may extend the period of probation “by another year” with theprior approval of the Director. Rule 105(1) also stipulates that if thework and conduct of the probationer during the probationary period isfound 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 institutionextends the probationary period “by another year”, the prior approval ofthe Director shall not be required. This Court is required to construewhether the words “by another year” appearing in Rule 105(1) and thefirst proviso of Rule 105 imply one additional year, or one year at a timewithout 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 defines the word “another” as “an additionalone of the same kind: one more”.[15] According to Collins Dictionary ofthe English Language, the word “another” implies “one more”.[16]Similarly, according to Lexico Dictionary, the word “another” is “usedto refer to an additional person or thing of the same type as one alreadymentioned or known about; one more.”[17]

22. The consistent meaning imparted to the word “another” is asingle addition or one more. The ordinary and literal construction of the 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)

Awords “another” read with the words “for a period of one year” in Rule105(1) implies that the appointing authority may extend the period ofprobation by one additional year. The contention that the words “byanother year” imply that the appointing authority can extend the periodof probation by one year at a time without any limit cannot be acceptedas this would amount to rewriting the provision by substituting the wordsB“by another year” with the words “by one year at a time”, which isimpermissible in law. Further, had the delegate of the legislature intendedthat 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 inCwhich they best harmonise with the subject of the enactment and theobject which the legislature has in view.[18] This principle should be auseful guide in interpreting the provisions of delegated legislation in thiscase, namely Rule 105. The purpose of probation is to enable anassessment to be made of the performance of an employee. It serves as Dan opportunity for probationers to establish by the dint of their workwhich is rendered during the period of probation, that they are suitablefor being retained in service. On the part of the employer, probationenables the appointing authority to determine the suitability of theprobationer for retention in service.

E24. The limit placed on the permissible extension of the probationaryperiod draws a balance between the opportunity that must be affordedto a probationer to modify and improve the quality of service and amandate that the appointing authority of an educational institute hiresqualified teachers. To impart a meaning to the words “by another year”that the appointing authority may extend the probationary period oneFyear at a time without a limit will allow an appointing authority to extendthe probationary period, with the prior approval of the Director, of aprobationer ad nauseum. This would allow an appointing authority toconvert a period of probation, which serves the limited and time boundpurpose of ascertaining suitability, into a temporary appointment and defeatGthe purpose of probationary service in educational institutions. Thoughthe legislature or the delegated authority is empowered in a given caseto stipulate that there is no bar on the period of probation, the interpretation 18State of UP v C Tobit 1958 SCR 1275; Santasingh v State of Punjab (1976) 4SCC 190; Mukesh Tripathi v Senior Divisional Manager (2004) 8 SCC 387.H

that we have adopted is supported by the words of Rule 105(1) and theordinary meaning imparted to the word “another”.

25. The plain reading of the words “by another year” implies thatthe appointing authority of an institution may extend the period ofprobation by one additional year over and above the mandatory year ofprobation with the prior approval of the Director. Rule 105(1) of the1973 Rules therefore stipulates a limitation on the total probationary periodto two years. The first proviso stipulates that the prior approval of theDirector shall not be required in the case of a minority institution.

26. The principle which we have adopted accords with a consistentline of precedent of this Court. It is a settled position of law that wherethe words of a statute are clear and unambiguous, they must beinterpreted in their ordinary grammatical sense, unless the interpretationleads to an absurd result. It is only where the language of a statute, in itsordinary meaning and grammatical construction, leads to a manifestcontradiction, or to some inconvenience or absurdity, hardship or injustice,that a construction may be put upon it which modifies the meaning of thewords.

27. JusticeG P Singh, in his seminal book Principles of StatutoryInterpretation[19], states thus:

“The words of a statute are first understood in their natural, ordinaryor popular sense and phrases and sentences are construedaccording to their grammatical meaning, unless that leads to someabsurdity or unless there is something in the context, or in theobject 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 isthat they should be construed according to the intention expressedin the Acts themselves. If the words of the statute are themselvesprecise and unambiguous, then no more can be necessary than toexpound those words in their ordinary and natural sense. Thewords themselves alone do in such a case best declare the intentionof the lawgiver.”

19 Justice G P Singh, Principles of Statutory Interpretation, 14th Ed., at p. 91

20 Craies on Statute Law, 7th Ed., at p. 64

A28. In Maharashtra State Financial Corporation v JayceeDrugs and Pharmaceuticals Pvt. Ltd[21], the appellant sought to proceedagainst the sureties upon the failure of the respondent to repay a loan.Section 31(1) of the State Financial Corporations Act 1951 stipulatedthat a suit may be instituted before the District Judge within whosejurisdiction the concern carries on business. Section 32(11) stipulatedBthat the functions of a District Judge under the said section shall beexercisable, in a Presidency town, where there is a city civil court “havingjurisdiction”, by a judge of that court and “in the absence of such court,by the High Court”. The appellant contended that the words “havingjurisdiction” read with the pecuniary jurisdiction of the Bombay CityCCivil Court as contained in Section 3 of the Bombay City Civil Court Act1948 required that where the liability sought to be enforced was aboveINR 50,000 the petition by the appellant was maintainable in the HighCourt alone. Accepting this contention, a three judge Bench of this Courtheld thus:

D“15. In our opinion, the extent of the liability stated in the applicationas contemplated by sub-section (2) of Section 31 of the Act wouldrepresent the value of the claim of the Corporation and if suchvalue is up to Rs 50,000 the application would lie in the city civilcourt and if it is more than that amount it would lie in the HighCourt. This interpretation would give meaning and relevance toEthe words “having jurisdiction” used in sub-section (11) of Section32. A different interpretation would render superfluous or otiosenot only the words “having jurisdiction” but also the words “and inthe absence of such court, by the High Court”….

16. It is a settled rule of interpretation of statutes that if theFlanguage and words used are plain and unambiguous, fulleffect must be given to them as they stand and in the garbof finding out the intention of the legislature no words shouldbe added thereto or substracted therefrom. Likewise, it isagain a settled rule of interpretation that statutory provisionsGshould be construed in a manner which subserves thepurpose of the enactment and does not defeat it and thatno part thereof is rendered surplus or otiose.”

In State of HP v Pawan Kumar,[22] it was contended that thesafeguards provided in Section 50[23] of the Narcotics Drugs andPsychotropic 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 theAct. A three judge Bench of this Court, having regard to the scheme ofthe 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 toconstrue them according to plain, literal and grammatical meaningof the words. If that is contrary to, or inconsistent with, any expressintention or declared purpose of the statute, or if it would involveany absurdity, repugnancy or inconsistency, the grammatical sensemust then be modified, extended or abridged, so far as to avoidsuch an inconvenience, but no further. The onus of showing thatthe words do not mean what they say lies heavily on the partywho alleges it. He must advance something which clearly showsthat the grammatical construction would be repugnant to theintention of the Act or lead to some manifest absurdity.”

The above principles have been consistently followed by this Courtincluding in the decisions in State of Rajasthan v Babu Ram[24] andCommissioner of Customs (Import), Mumbai v Dilip Kumar andCompany.[25]

22 (2005) 4 SCC 550

23 “50. Conditions under which search of persons shall be conducted.—(1) When anyofficer duly authorised under Section 42 is about to search any person under theprovisions 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 ofthe 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 himbefore 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 broughtshall, if he sees no reasonable ground for search, forthwith discharge the person butotherwise shall direct that search be made.

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

24 (2007) 6 SCC 5525 (2018) 9 SCC 1

A29. The appellant contended that the words “by another year” inthe first proviso to Rule 105(1) cannot be read as limiting the total periodof probation to two years. The contention urged by the appellants cannotbe accepted. The words “by another year” appearing in the principalpart of Rule 105(1) must be given their plain and literal meaning to implyone additional year. The appointing authority of an institution may extendBthe period of probation by one additional year over and above the initialperiod of one year. This equally applies to minority institutions. The firstproviso stipulates that the provisions of the sub-rule “relating to the priorapproval of the Director” in respect of an extension of the probationaryperiod by another year by a minority institution shall not apply. The provisoCmerely carves out an exception from the principal provision to the effectthat in the case of a minority institution, the approval of the Director forthe extension of probation period by an additional year shall not be required.

30. Keeping in view the special status conferred on minorityinstitutions, the first proviso to Rule 105(1) grants an exemption to theDappointing authority from seeking the prior approval of the Director toextend the period of probation by an additional year over and above themandatory period of probation. This grants the final say in determiningthe first extension of the probationary period by another year to theappointing authority itself. The interpretation that we have adopted ofthe words “by another year” in the principal provision of Rule 105(1)Eequally applies to the words “by another year” in the first proviso toRule 105(1). To accept the position that no limit is placed on the extensionof the probationary period in the proviso would allow the proviso to beread as a separate provision and impart a meaning to the words “byanother year” that is not in accordance with its plain grammatical meaning.F

31. It is a settled position of law that the objective of a proviso isto carve out from the main section a class or category to which the mainsection does not apply. A proviso must prima facie be read and consideredin relation to the principal matter to which it is a proviso. It is not aseparate or independent enactment.GIn v The State Of Uttar Pradesh[[26]]

In Tahsildar Singh v The State Of Uttar Pradesh,[[26]] a six judgeBench of this Court was required to interpret the proviso to Section 162of the Code of Criminal Procedure 1973. Section 162(1)[27] provided that

where the statement of a person to a police officer during investigationis taken in writing, the person shall not be required to sign the documentnor shall the writing be used as evidence. The proviso empowered thecourt, in its discretion and on the request of the accused, to refer to thewritten statement and direct that the accused be furnished with a copy.The proviso provided that the statement may be used to “contradict” thewitness “in the manner provided by Section 145 of the Indian EvidenceAct, 1872.” The Court rejected the argument that the proviso could beread isolated from the principal provision to confer a right of cross-examination other than by way of contradiction and allow through aback door, the inference of oral statements made by the witness to theofficer that were not reduced in writing. Construing the proviso in lightof the bar on the evidentiary value of statements recorded in writing inthe principal provision, the Court laid down the principle on interpreting aproviso in the following terms:

“14. This leads us to the main question in the case i.e. theinterpretation of Section 162 of the Code of Criminal Procedure.The cardinal rule of construction of the provisions of a sectionwith a proviso is succinctly stated in Maxwell’s Interpretation ofStatutes, 10th Edn., at p. 162 thus:

“The proper course is to apply the broad general rule of construc-tion, which is that a section or enactment must be construed as awhole, each portion throwing light if need be on the rest.The true principle undoubtedly is, that the sound interpretationand meaning of the statute, on a view of the enacting clause,saving clause, and proviso, taken and construed together is toprevail.”

Unless the words are clear, the court should not so construe 27 162. (1) No statement made by any person to a police officer in the course of aninvestigation under this Chapter, shall, if reduced to writing, be signed by the personmaking it; nor shall any such statement or any record thereof, whether in a police diaryor otherwise, or any part of such statement or record, be used for any purpose, save ashereinafter provided, at any inquiry or trial in respect of any offence under investigationat the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trialwhose 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, bythe prosecution, to contradict such witness in the manner provided by section 145 ofthe Indian Evidence Act, 1872(1of 1872); and when any part of such statement is soused, any part thereof may also be used in the re-examination of such witness, but forthe purpose only of explaining any matter referred to in his cross-examination.]

Athe proviso as to attribute an intention to the legislature togive with one hand and take away with another. To put it inother words, a sincere attempt should be made to reconcilethe enacting clause and the proviso and to avoid repugnancybetween the two.”

(Emphasis Supplied)

32. Similarly, in CIT v Indo-Mercantile Bank Ltd.,[28] a threejudge Bench of this Court, interpreting the meaning of the proviso toSection 24 of the Indian Income Tax Act 1922 held thus:

“The territory of a proviso therefore is to carve out an exceptionCto the main enactment and exclude something which otherwisewould have been within the section. It has to operate in the samefield and if the language of the main enactment is clear it cannotbe used for the purpose of interpreting the main enactment or toexclude by implication what the enactment clearly says unlessthe words of the proviso are such that that is its necessary effect.”DIn Dwarka Prasad v Dwarka Das Saraf,[29] a four Judge Benchof 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 provisoEcannot expand or limit it…It is a settled rule of construction that aproviso must prima facie be read and considered in relation to theprincipal matter to which it is a proviso. It is not a separate orindependent enactment…A proviso ordinarily is but a proviso,although the golden rule is to read the whole section, inclusive ofFthe proviso, in such manner that they mutually throw light on eachother and result in a harmonious construction.”

The above principles have been consistently followed bysubsequent benches of this Court in S Sundaram Pillai v VRPattabiraman,[30]JK Industries Ltd. v Chief Inspector of Factoriesand Boilers,[31] and Holani Auto Links (P) Ltd. v State of MP.[32]G

28 1959 SCR Supp (2) 25629 1976 SCR (1) 27730 (1985) 1 SCC 591

31 (1996) 6 SCC 665H32 (2008) 13 SCC 185

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 periodof probation to two years. This equally applies to minority institutionscovered by the first proviso to Rule 105. The proviso merely exemptsthe appointing authority of minority institutions from seeking the priorapproval of the Director where an extension of the probationary periodis effected within the maximum permissible extension of two years.Though the High Court concluded that the maximum permissible periodof probation under Rule 105(1) is two years, it proceeded to record itsfinding upon an incorrect provision of law. For the reasons that we haverecorded above, the total period of probation under Rule 105 of the 1973Rules cannot extend beyond two years.

34. The High Court concluded that Rule 105 fixes a maximumprobationary period of two years and that consequently, the continuationof the services of the probationer beyond the period of probation wouldamount to a deemed confirmation of service even without an order ofconfirmation. Consequently, the case of the first respondent was accordingto the High Court within the second category of cases enumerated inSatya Narayan Jhavar. This Court in Satya Narayan Jhavarenumerated three lines of cases. The third stipulates those cases wherethe rules prescribe a maximum period of probation but also require aspecific act on the part of the employer of issuing an order of confirmationfor the purposes of confirmation. In such cases, there is no deemedconfirmation of the services of a probationer on their continuation inservice beyond the maximum period of probation.

35. Admittedly, the appointment letter does not stipulate that thefirst respondent shall be confirmed upon the expiry of the probationaryperiod. Rule 105(2) stipulates that an order of confirmation may be issued“if the work and conduct of an employee during the period of probationis found to be satisfactory”. Rule 105(2) lays down a condition precedentto the issuance of an order of confirmation. It is only if the appointingauthority is satisfied with the performance of the probationer that anorder of confirmation may be issued. Rule 105(2) contains an explicitstipulation requiring the issuance of an order of confirmation by theappointing authority upon its assessment that the performance of theprobationer has been satisfactory. The mere continuation of the servicesof a probationer beyond the period of probation does not lead to a deemedconfirmation in service. It is only upon the issuance of an order of A

Aconfirmation by the appointing authority that probationer is grantedsubstantive appointment in the post.

36. In GS Ramaswamy v Inspector General of Police[33], aConstitution Bench of this Court considered the promotions of Sub-Inspectors of Police under Rule 486 of the Hyderabad District PoliceManual which stipulated that all officers who are promoted will be onprobation for a period of two years and that they may be reverted duringthe aforesaid period if their work and conduct is not found satisfactory.Noting that the Rule stipulated that “promoted officers will be confirmedat the end of their probationary period if they have given satisfaction”,this Court held thus:

“8… Therefore even though a probationer may have continued toact in the post to which he is appointed on probation for more thanthe initial period of probation, he cannot become a permanentservant merely because of efflux of time, unless the Rulesof service which govern him specifically lay down that theprobationer will be automatically confirmed after the initialperiod of probation is over…It is true that the words used inthe sentence set out above are not that promoted officers will beeligible or qualified for promotion at the end of their probationaryperiod which are the words to be often found in the Rules in suchcases; even so, though this part of Rule 486 says that“promoted officers will be confirmed at the end of theirprobationary period”, it is qualified by the words “if theyhave given satisfaction”. Clearly therefore the Rule doesnot contemplate automatic confirmation after theprobationary period of two years, for a promoted officer canonly be confirmed under this Rule if he has givensatisfaction. This condition of giving satisfaction must befulfilled before a promoted officer can be confirmed underthis Rule and this condition obviously means that theauthority competent to confirm him must pass an order tothe effect that the probationary officer has given satisfactionand is therefore confirmed.”

In Kedar Nath Bahl v State of Punjab[34], the appellant wasappointed to a post in the Punjab Provincial Service Class I. Theappointment letter stipulated that the period of probation shall be sixmonths. The appellant continued on probation beyond the stipulated periodof six months and was eventually reverted back to his previous post. Heinstituted proceedings challenging his order of reversion. The appellantcontended that upon the expiry of the period of probation, he was deemedto be confirmed in service. Rejecting this contention, a three judge Benchof this Court held thus:

“9. …The law on the point is now well settled. Where a person isappointed as a probationer in any post and a period of probation isspecified, it does not follow that at the end of the said specifiedperiod of probation he obtains confirmation automatically even ifno order is passed in that behalf. Unless the terms ofappointment clearly indicate that confirmation wouldautomatically follow at the end of the specified period, orthere is a specific service rule to that effect, the expirationof the probationary period does not necessarily lead toconfirmation. At the end of the period of probation an orderconfirming the officer is required to be passed and if nosuch order is passed and he is not reverted to hissubstantive post, the result merely is that he continues inhis post as a probationer…The terms of appointment do notshow that the appellant would be automatically confirmed on theexpiry of the first six months of probation nor is any rule broughtto our notice which has the effect of confirming him in the postafter six months of probation.”

This view is also affirmed by the judgments of this Court inMunicipal Corporation, Raipur v Ashok Kumar Misra[35], JaiKishan v Commissioner of Police[36], State of Punjab v Baldev SinghKhosla[37] and Chief GM, State Bank of India v Bijoy KumarMishra[38].

34 (1974) 3 SCC 2135 (1991) 3 SCC 32536 1995 Supp (3) SCC 36437 (1996) 9 SCC 19038 (1997) 7 SCC 550

A37. Recently, in Head Master, Lawrence School, Lovedale vJayanthi Raghu[39],a two judge Bench of this Court held that even wherethe relevant rule prescribes a maximum period of probation, the use ofthe words “if confirmed” denote a condition precedent and that there isno deemed confirmation of service unless a specific order of confirmationis issued. The Court held thus:B“38. Had the rule-making authority intended that there would beautomatic confirmation, Rule 4.9 would have been couched in adifferent language. That being not so, the wider interpretationcannot be placed on the Rule to infer that the probationer gets thestatus of a deemed confirmed employee after expiry of three yearsCof probationary period as that would defeat the basic purpose andintent of the Rule which clearly postulates “if confirmed”. Aconfirmation, as is demonstrable from the languageemployed in the Rule, does not occur with efflux of time.As it is hedged by a condition, an affirmative or positive actDis the requisite by the employer. In our considered opinion,an order of confirmation is required to be passed.”

38. It emerges from the consistent line of precedent of this Courtthat where the relevant rule or the appointment letter stipulates a conditionprecedent to the confirmation of service, there is no deemed confirmationEof service merely because the services of a probationer are continuedbeyond the period of probation. It is only upon the issuance of an orderof confirmation that the probationer is granted substantive appointmentin that post. Rule 105(2) stipulates the satisfaction of the appointingauthority as a condition precedent to the issuance of an order ofFconfirmation. The argument advanced by the learned counsel for thefirst respondent that there is a deemed confirmation upon the continuationof service beyond the expiry of the period of probation is negatived bythe express language of Rule 105(2). In this view, the continuation ofservices beyond the period of probation will not entitle the probationer toa deemed confirmation of service. The High Court has erred in holdingGthat there is a deemed confirmation where the services of a probationerare continued beyond the expiry of the probationary period.

39. It was briefly urged by Mr Yashobant Das, learned SeniorCounsel appearing on behalf of the appellants that the Division Bench ofthe High Court failed to follow a judgment of a coordinate Bench of theHigh Court in Veena Sharma. In that case, a termination order wasissued to an Upper Division Clerk during the period of her probation.Contending that her termination was not in accordance with the letter ofappointment and that her services were deemed to be confirmed, thecase of the employee reached the High Court. The appointment letterexpressly stated that a letter of confirmation shall be issued upon theexpiry of the probationary period. Justice Dipak Misra (as he then was)rejected the contention that Rule 105 of the 1973 Rules stipulated adeemed confirmation of service on the grounds that there is no fixedperiod of probation and that the work and conduct of the employee mustbe proved to be satisfactory.

40. In the present case, the Division Bench of the High Courtadverted to the decision in Veena Sharma and distinguished it on theground that the appointment letter stipulated the requirement of an expressletter of confirmation. Further, the argument urged on behalf of theappellant cannot be accepted as the facts of that case are distinguishablefor the principal reason that no interpretation of the exemption stipulatedfor minority institutions in the proviso was involved.

41. The High Court relied on the Constitution Bench judgment ofthis Court in Dharam Singh to hold that upon the expiry of theprobationary period, the first respondent is deemed to be confirmed inservice. In Dharam Singh this Court interpreted Rule 6[40 ] of the PunjabEducational Service (Provincialised Cadre) Class III Rules, 1961. TheRules stipulated that the period of probation shall be one year and thetotal period of probation shall not exceed three years. The Court grantedrelief to the claimants as their services were continued beyond three40 “6(1). Members of the Service, officiating or to be promoted against permanentposts, shall be on probation in the first instance for one year.

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

(3) On the completion of the period of probation the authority competent to makeappointment may confirm the member in his appointment or if his work or conductduring the period of probation has been in his opinion unsatisfactory he may dispensewith his services or may extend his period of probation by such period as he may deemfit 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 exceedthree years.

…”

Ayears and the relevant rules and the appointment letter did not stipulatethe issuance of any order of confirmation. The Court held thus:

“9. Immediately upon completion of the extended period ofprobation on October 1, 1960, the appointing authority coulddispense with the services of the respondents if their work orBconduct during the period of probation was in the opinion of theauthority unsatisfactory. Instead of dispensing with their serviceson completion of the extended period of probation, the authoritycontinued them in their posts until sometime in 1963, and allowedthem to draw annual increments of salary including the incrementwhich fell due on October 1, 1962. The rules did not requireCthem to pass any test or to fulfil any other condition beforeconfirmation. There was no compelling reason for dispensingwith their services and re-employing them as temporary employeeson October 1, 1960, and the High Court rightly refused to drawthe inference that they were so discharged from services and re-Demployed. In these circumstances, the High Court rightly heldthat the respondents must be deemed to have been confirmed intheir posts. Though the appointing authority did not passformal orders of confirmation in writing, it should bepresumed to have passed orders of confirmation by soallowing them to continue in their posts after October 1,E1960.”

In Dharam Singh, the Constitution Bench held that the continuationof the services of a probationer beyond the maximum period of probationwould amount to a deemed confirmation of service only in the absenceFof a stipulation in the relevant rule requiring the probationer to pass atest or fulfill any other condition. In the present case, Rule 105(2)stipulates the satisfaction of the appointing authority as a conditionprecedent to the issuance of an order of confirmation. The High Courthas thus failed to notice the distinguishing features which emerge fromGthe judgment of this Court in Dharam Singh.

42. In the view that we have taken, the High Court has erred inconcluding that the case of the first respondent falls within the secondcategory of cases enumerated in Satya Narayan Jhavar. Rule 105(2)

stipulates the satisfaction of the appointing authority as a conditionprecedent to the issuance of an order of confirmation. Admittedly, noorder of confirmation was issued by the appointing authority. The caseof the first respondent falls squarely within the third category of casesenumerated in Satya Narayan Jhavar wherein though the rules prescribea maximum period of probation and the probationer is continued beyondthe expiry of the probationary period, the substantive appointment of theprobationer is subject to a specific act on the part of the appointingauthority of issuing an order of confirmation. In the absence of an orderof confirmation, the first respondent did not acquire the status of aconfirmed employee.

43. In the present case, the first respondent served as a probationerfor nearly five years. Rule 105(1) permits the appointing authority toextend the period of probation with the prior permission of the Director.The proviso stipulates that no prior approval of the Director is requiredfor the extension of the probationary period by the appointing authorityof a minority institution. The amending history of the provision showsthat prior to the amendment in 1990, no prior approval of the Directorwas required. By virtue of the Amending Rules 1990 the prior approvalof the Director was made mandatory, save and except for extensions inthe case of minority institutions, for the grant of any extension in theprobationary period. The absolute discretion vested with the appointingauthority of an institution was made subject to the prior approval of theDirector.

44. The power vested in the Director serves as a check on theabsolute discretion of the appointing authority to extend the probationaryperiod. The power vested in the Director, however, to approve a requestof the appointing authority is not unbridled. Rule 105(1) stipulates thatthe services of a probationer may be terminated without notice duringthe period of probation where the services of the probationer are not “inthe opinion of the appointing authority, satisfactory”. Rule 105(2) stipulatesthat an order of confirmation may be issued if, in the opinion of theappointing authority, the performance of the probationer is satisfactory.The discretion of the Director must be exercised objectively on the basisof the material produced by the appointing authority bearing on theperformance of a probationer.

A45. The prior approval of the Director, save and except for minorityinstitutions, is mandatory and must be complied with as a conditionprecedent for the valid exercise of the power to extend the period ofprobation. The Director is required to assess the determination of theappointment authority and based on that assessment, to decide whetherto approve an extension of the probationary period. The provision whichBmandates that the prior approval of the Director shall be sought beforeextending the period of probation ensures that the appointing authoritymay not extend the probationary period without legitimate reason. Theextension of the probationary period by the appointing authority, saveand except for minority institutions, without the prior approval of theCDirector is impermissible in law.46. Rule 105(1) of the 1973 Rules, by stipulating a maximumpermissible period of probation of two years, draws a balance betweenthe interests of the appointing authority in extending the period of probationto ensure the quality of education and the interests of probationers inDtheir services not being extended on probation ad nauseum. Thecontinuation of the services of a probationer beyond the period permissibleunder the 1973 Rules defeats the salutary purpose underlying the limitstipulated on the period of extension that may be effected in theprobationary period. Upon the expiry of the period of probation, theappointing authority is required by law to either confirm the services ofEthe probationer or terminate their services. The continuation of the servicesof a probationer by the appointing authority under Rule 105 of the 1973Rules beyond the maximum permissible period of probation, constitutesa violation of law. Though as we have held, there is no provision fordeemed confirmation, the conduct of the management may result in otherFconsequences, including a decision in regard to whether the recognitionof a school which consistently violates the law should be withdrawn.

47. In the present case, the appointment letter of the first respondentdated 18 June 2008 clearly stipulated that the period of probation shallbe “one year from the date of joining.” Rule 105 provides for theGextension of the probationary period by another year. The first respondentjoined service on probation for a period of one year on 1 July 2008. Theperiod of probation was to come to an end on 1 July 2009, which couldbe extended by one year under Rule 105. The period of probation wasextended belatedly on 11 February, 2010 for another year on the groundthat the services of the first respondent were unsatisfactory. On 30HNovember, 2011, the period of probation was extended by another year.

On 22 May, 2013, the Managing Committee of the Education societydischarged the first respondent from service with effect from 30 June2013.

48. The first respondent was continued as a probationer for nearlyfive years in contravention of Rule 105 of the 1973 Rules as well as theappointment letter dated 18 June 2008. There was no order ofconfirmation. Though the first respondent cannot claim a deemedconfirmation of service without the issuance of an order of confirmation,the power of this Court to do complete justice under Article 142 of theConstitution must be invoked in an appropriate manner. While there canbe no deemed confirmation in the favour of the first respondent, therelief 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 beoveraged to get suitable employment elsewhere must not be left in thelurch. A management which has defied the law must be put to terms,which we propose to do under Article 142.

49. We hold and declare that:

(i) The words “by another year” in Rule 105(1) of the 1973Rules stipulate that the maximum period of probation per-missible is two years. The limit equally applies to minorityinstitutions covered by the first proviso to Rule 105; and E(ii) Rule 105(2) stipulates a condition precedent to theissuance of an order of confirmation. The continuation ofthe services of a probationer beyond the period ofprobation does not amount to a deemed confirmation ofservice. It is only upon the issuance of an order ofconfirmation by the appointing authority that a probationerFis confirmed in service.

50. We direct, in the exercise of the jurisdiction of this Court underArticle 142 of the Constitution, that the appellants shall pay over to thefirst respondent a sum of INR 5,00,000 within a period of four weeksfrom the date of receipt of a certified copy of this order, failing whichthe amount shall carry an interest of 9% per annum till the date ofrealisation.

51. We affirm the view of the Delhi High Court to the extent thatthe maximum permissible period of probation under Rule 105 of the H

A1973 Rules is two years, although for the reasons that we have indicatedabove. The High Court, in the present case and in prior cases, has failedto take note of the amending history of Rule 105 of the 1973 Rules andhas relied on an incorrect provision of law. We clarify that previouslitigation under Rule 105 of the 1973 Rules which has attained finalityshall not be reopened. The judgment of the Delhi High Court, in so far asBit confirmed the services of the first respondent is set aside. The appealis partly allowed in the above terms.

52. We direct the Registry to forward a copy of this judgment tothe Chief Librarian, Supreme Court of India, the Registrar General, DelhiHigh Court and the Department of Education, National Capital TerritoryCof Delhi for recording the correct provisions of Rule 105 of the 1973Rules in their records.

53. There shall be no order as to costs.

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

Ankit Gyan

Appeal partly allowed.