Delhi School Education Rules, 1973 – r.105 – Probation – Deemed confirmation of service – The first respondent joined service on 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 Court held that r.105 fixes a maximum probationary period of two years and the continuation of service beyond the maximum period would amount to a deemed confirmation of service by implication, even without the issuance of an order of confirmation – On appeal, held: It has emerged from the consistent line of precedent of Supreme Court that where the relevant rule or the appointment letter stipulates a condition precedent to the confirmation of service, there is no deemed confirmation of service merely because the services of a probationer are continued beyond the period of probation – It is only upon the issuance of an order of confirmation that the probationer is granted substantive appointment in that post – R.105(2) stipulates the satisfaction of the appointing authority as a condition precedent to the issuance of an order of confirmation – In the instant case, there was no order of confirmation and the appointment letter also did not stipulate that the first respondent shall be confirmed upon the expiry of the probationary period – Thus, the continuation of services beyond the period of probation did not entitle the probationer to a deemed confirmation of service – However, since respondent continued as a probationer for nearly five years in the contravention of r.105 as well as the appointment letter, the respondent granted an award of ex-gratia compensation of Rs.5,00,000/- – Therefore, order of the High Court so far as, it confirmed the services of the first respondent set aside. Delhi School Education Rules, 1973 – r.105 – “by another year” – Meaning of – Held: The plain reading of the words “by another year” implies that the appointing authority of an institution may extend the period of probation by one additional year over and above the mandatory year of probation with the prior approval of the Director – R.105(1) of the 1973 Rules, therefore, stipulates a limitation on the total probationary period to two years – The first proviso stipulates that the prior approval of the Director shall not be required in the case of a minority institution. Interpretation of Statutes – Ordinary and literal construction of the words – Held: It is a settled position of law that where the words of a statute are clear and unambiguous, they must be interpreted in their ordinary grammatical sense, unless the interpretation leads to an absurd result – It is only where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction, or to some inconvenience or absurdity, hardship or injustice, that a construction may be put upon it which modifies the meaning of the words.
Interpretation of Statutes – Objective of a proviso – Held: It is a settled position of law that the objective of a proviso is to carve out from the main section a class or category to which the main section does not apply – A proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso – It is not a separate or independent enactment. The appellant-Delhi Administration aided school and a linguistic minority institution appointed the first respondent on probation to the post of PGI (English General) on 18.7.2008 for a duration of one year. The respondent continued as a probationer for nearly five years. Thereafter, she was discharged from the service. Aggrieved, the first respondent filed an appeal before the Delhi School Tribunal, which was allowed and order of discharge was set aside. Appellants filed a writ petition before the High Court. The High Court held that the conduct of the management in allowing the first respondent to continue in service for nearly five years evidenced the satisfactory conduct of the first respondent and resulted in a deemed confirmation of service. Hence, the present appeal.
Partly allowing the appeal, the Court
HELD: 1. Whether the words “by another year” appearing in the principal part of Rule 105(1) of Delhi School Education Rules, 1973 and in the first proviso to Rule 105 (1) limit the total duration of permissible probation to two years
1.1 The words of a statute should be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view. This principle should be a useful guide in interpreting the provisions of delegated legislation in this case, namely Rule 105. The purpose of probation is to enable an assessment to be made of the performance of an employee. It serves as an opportunity for probationers to establish by the dint of their work which is rendered during the period of probation, that they are suitable for being retained in service. On the part of the employer, probation enables the appointing authority to determine the suitability of the probationer for retention in service. [Para 23] [898-C-D]
1.2 The plain reading of the words “by another year” implies that the appointing authority of an institution may extend the period of probation by one additional year over and above the mandatory year of probation with the prior approval of the Director. Rule 105(1) of the 1973 Rules therefore stipulates a limitation on the total probationary period to two years. The first proviso stipulates that the prior approval of the Director shall not be required in the case of a minority institution. [Para 25] [899-B]
1.3 The appellant contended that the words “by another year” in the first proviso to Rule 105(1) cannot be read as limiting the total period of probation to two years. The contention urged by the appellants cannot be accepted. The words “by another year” appearing in the principal part of Rule 105(1) must be given their plain and literal meaning to imply one additional year. The appointing authority of an institution may extend the period of probation by one additional year over and above the initial period of one year. This equally applies to minority institutions. The first proviso stipulates that the provisions of the sub-rule “relating to the prior approval of the Director” in respect of an extension of the probationary period by another year by a minority institution shall not apply. The proviso merely carves out an exception from the principal provision to the effect that in the case of a minority institution, the approval of the Director for the extension of probation period by an additional year shall not be required. In that view, the words “by another year” in Rule 105(1) of the 1973 Rules restrict the maximum permissible period of probation to two years. This equally applies to minority institutions covered by the first proviso to Rule 105. [Paras 29 and 33][902-A-C; 905-A]
2. Whether the 1973 Rules require the issuance of an order of confirmation for a probationer to be confirmed in service.
2.1 Admittedly, the appointment letter does not stipulate that the first respondent shall be confirmed upon the expiry of the probationary period. Rule 105(2) stipulates that an order of confirmation may be issued “if the work and conduct of an employee during the period of probation is found to be satisfactory”. Rule 105(2) lays down a condition precedent to the issuance of an order of confirmation. It is only if the appointing authority is satisfied with the performance of the probationer that an order of confirmation may be issued. Rule 105(2) contains an explicit stipulation requiring the issuance of an order of confirmation by the appointing authority upon its assessment that the performance of the probationer has been satisfactory. The mere continuation of the services of a probationer beyond the period of probation does not lead to a deemed confirmation in service. It is only upon the issuance of an order of confirmation by the appointing authority that probationer is granted substantive appointment in the post. [Para 35] [905-F-H; 906-A]
2.2 It emerges from the consistent line of precedent of this Court that where the relevant rule or the appointment letter stipulates a condition precedent to the confirmation of service, there is no deemed confirmation of service merely because the services of a probationer are continued beyond the period of probation. It is only upon the issuance of an order of confirmation that the probationer is granted substantive appointment in that post. Rule 105(2) stipulates the satisfaction of the appointing authority as a condition precedent to the issuance of an order of confirmation. The argument advanced by the learned counsel for the first respondent that there is a deemed confirmation upon the continuation of service beyond the expiry of the period of probation is negatived by the express language of Rule 105(2). In this view, the continuation of services beyond the period of probation will not entitle the probationer to a deemed confirmation of service. The High Court has erred in holding that there is a deemed confirmation where the services of a probationer are continued beyond the expiry of the probationary period. [Para 38] [908-E-G]
3. In the present case, the appointment letter of the first respondent dated 18 June 2008 clearly stipulated that the period of probation shall be “one year from the date of joining.” Rule
105 provides for the extension of the probationary period by another year. The first respondent joined service on probation for a period of one year on 1 July 2008. The period of probation was to come to an end on 1 July 2009, which could be extended by one year under Rule 105. The period of probation was extended belatedly on 11 February, 2010 for another year on the ground that the services of the first respondent were unsatisfactory. On 30 November, 2011, the period of probation was extended by another year. On 22 May, 2013, the Managing Committee of the Education society discharged the first respondent from service with effect from 30 June 2013. [Para 47] [912-G-H; 913-A]
4. The first respondent was continued as a probationer for nearly five years in contravention of Rule 105 of the 1973 Rules as well as the appointment letter dated 18 June 2008. There was no order of confirmation. Though the first respondent cannot claim a deemed confirmation of service without the issuance of an order of confirmation, the power of this Court to do complete justice under Article 142 of the Constitution must be invoked in an appropriate manner. While there can be no deemed confirmation in the favour of the first respondent, the relief can be suitably moulded by an award of ex-gratia compensation. A teacher who has spent five valuable years of her life and may now be overaged to get suitable employment elsewhere must not be left in the lurch. A management which has defied the law must be put to terms, which 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. Inspector
General of Police [1964] 6 SCR 279 – followed.
High Court of MP v. Satya Narayan Jhavar (2001) 7 SCC 161 : [2001] 1 Suppl. SCR 532; Maharashtra State Financial Corporation v. Jaycee Drugs and Pharmaceuticals Pvt. Ltd (1991) 2 SCC 637 : [1991] 1 SCR 480 ; State of HP v. Pawan Kumar (2005) 4 SCC 550; CIT v. Indo-Mercantile Bank Ltd. [1959] 2 SCR Suppl. 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. VR
Pattabiraman (1985) 1 SCC 591 : [1985] 2 SCR 643; JK Industries Ltd. v. Chief Inspector of Factories and Boilers (1996) 6 SCC 665 : [1996] 6 Suppl. SCR 798; Holani Auto Links (P) Ltd. v. State of MP (2008) 13 SCC 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; State of Punjab v. Baldev Singh Khosla (1996) 9 SCC 190 : [1996] 1 Suppl. SCR 600; Chief GM, State Bank of India v. Bijoy Kumar Mishra (1997) 7 SCC 550 : [1997] 4 Suppl. SCR 214 ; Dy. Director of Education v. Veena Sharma (2010) 175 DLT 311 (DB); State of UP v. C Tobit [1958] SCR 1275 ; Santasingh v. State 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. Dilip Kuar and Company (2018) 9 SCC 1 : [2018] 7 SCR 1191 – referred to.
Principles of Statutory Interpretation by Justice G P Singh, 14th Ed., at p. 91 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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