TMI Blog2019 (8) TMI 1850X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent cannot claim a deemed confirmation of service without the issuance of an order of confirmation, the power of this Court to do complete justice under Article 142 of the Constitution must be invoked in an appropriate manner. While there can be no deemed confirmation in the favour of the first respondent, the relief can be suitably moulded by an award of ex-gratia compensation. A teacher who has spent five valuable years of her life and may now be overaged to get suitable employment elsewhere must not be left in the lurch. A management which has defied the law must be put to terms, which we propose to do under Article 142. (i) The words by another year in Rule 105(1) of the 1973 Rules stipulate that the maximum period of probation permissible is two years. The limit equally applies to minority institutions covered by the first proviso to Rule 105; and (ii) Rule 105(2) stipulates a condition precedent to the issuance of an order of confirmation. The continuation of the services of a probationer beyond the period of probation does not amount to a deemed confirmation of service. It is only upon the issuance of an order of confirmation by the appointing authority that a pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the appellants to reinstate the first respondent with consequential benefits. Assailing the order of the Tribunal, the appellants filed a Writ Petition WP (C) No. 10310/2015 before the Delhi High Court. 5 The learned Single Judge of the Delhi High Court allowed the petition and held that no maximum period of probation was spelt out in the letter of appointment or the 1973 Rules. Any confirmation of service is subject to the work and conduct of the probationer being satisfactory. Hence, the continuation of the services of the first respondent beyond the period of probation was held not to result in a deemed confirmation of service without the issuance of an order of confirmation by the appointing authority. 6 The Division Bench of the High Court allowed the Letters Patent Appeal filed by the first respondent and restored the order of the Tribunal. The High Court took the view that: (i) Rule 105 of the 1973 Rules fixes a maximum probationary period of two years and the continuation of service beyond the maximum period would amount to a deemed confirmation of service by implication, even without the issuance of an order of confirmation; and (ii) The appointment letter da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iv) The High Court failed to consider a binding precedent of a Division Bench of the Delhi High Court in Dy. Director of Education v Veena Sharma (2010) 175 DLT 311 (DB) holding that there is no fixed period of probation under Rule 105 of the 1973 Rules and that no question of a deemed confirmation of service arises. 8 On the other hand, Mr D Rama Krishna, learned counsel appearing on behalf of the first respondent urged, in support of the impugned judgment of the High Court, that: (i) The proviso to Rule 105, in so far as a minority institution is concerned, stipulates that the approval of the Director shall not be required where the probation period has been extended by another year . Rule 105 of the 1973 Rules fixes a maximum probationary period of two years and the continuation of service beyond the maximum period would amount to a deemed confirmation of service by implication; (ii) There is no requirement for the issuance of an order of confirmation under Rule 105 of the 1973 Rules. There is a deemed confirmation of the services of a probationer upon the expiry of the maximum prescribed period for probation. The absence of a stipulation requiring an order of conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt here to advert to the legislative and drafting history of the provision. 12 In exercise of the powers conferred by Section 28 of the Delhi School Education Act 1973, the Administrator, with the previous approval of the Central Government, enacted the 1973 Rules. The 1973 Rules were published in the Delhi Gazette [5] on 31 December 1973 on which date, they also came into force. Rule 105, as originally enacted, read thus: 105. Probation (1) Every employee shall, on initial appointment, be on probation for a period of one year which may be extended by the appointing authority by another year and the services of an employee may be terminated without notice during the period of probation if the work, and conduct of the employee, during the said period, is not, in the opinion of the appointing authority, satisfactory: Provided that no termination from the service of an employee on probation shall be made by a school, other than a minority school, except with the previous approval of the Director. (2) If the work and conduct of an employee during the period of probation is found to be satisfactory, he shall be on the expiry of the period of probation or the extende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has, in the present case and prior cases failed to take note of the correct provision as amended from time to time. 16 Rule 105 of the 1973 Rules, as on date, reads thus: 105. Probation (1) Every employee shall, on initial appointment, be on probation for a period of one year which may be extended by the appointing authority by another year [with the prior approval of the Director] and the services of an employee may be terminated without notice during the period of probation if the work and conduct of the employee, during the said period, is not, in the opinion of the appointing authority, satisfactory: [Provided that the provisions of this sub-rule relating to the prior approval of the Director in regard to the extension of the period of probation by another year shall not apply in the case of an employee of a minority school: ] (2) If the work and conduct of an employee during the period of probation is found to be satisfactory, he shall be on the expiry of the period of probation or the extended period of probation, as the case may be confirmed with effect from the date of expiry of the said period. (Emphasis supplied) It is on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 105(1) and in the first proviso to Rule 105 (1) limit the total duration of permissible probation to two years; and (ii) whether the 1973 Rules require the issuance of an order of confirmation for a probationer to be confirmed in service. 19 The appointment letter of the first respondent dated 18 June 2008, in so far as it is relevant, reads thus: ANDHRA EDUCATION SOCIETY Smt. Durgabai Deshmukh Memorial Senior Secondary School 1, Deen Dayal Upadhaya Marg, New Delhi- 110002 I.D. No. 2127081 Ref. No. AESSSS/2008-09/DR/112 Date: 18th June, 2008 MEMORANDUM With reference to her interview held on Dt. 24.5.2008 for the post of P.G.T. English (General) in the Andhra Education Society Smt. Durgabai Deshmukh Memorial Senior Secondary School, 1, D.D.U. Marg, New Delhi-110002, Smt. J.A.J. Vasu Sena is hereby informed that the she has been selected for the post of P.G.T. English under the following terms and conditions:- 1. 2. She will be on probation for a period of one year from the date of joining. 3. During the period of probation her services are liable for termination with one month s notice on either side. 4. 5. 6. 7. If the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harmonise with the subject of the enactment and the object which the legislature has in view. State of UP v C Tobit 1958 SCR 1275; Santasingh v State of Punjab (1976) 4 SCC 190; Mukesh Tripathi v Senior Divisional Manager (2004) 8 SCC 387 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. 24 The limit placed on the permissible extension of the probationary period draws a balance between the opportunity that must be afforded to a probationer to modify and improve the quality of service and a mandate that the appointing authority of an educational institute hires qualified teachers. To impart a meaning to the words by another year that the appointing authority may extend the proba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the lawgiver. 28 In Maharashtra State Financial Corporation v Jaycee Drugs and Pharmaceuticals Pvt . Ltd (1991) 2 SCC 637, the appellant sought to proceed against the sureties upon the failure of the respondent to repay a loan. Section 31(1) of the State Financial Corporations Act 1951 stipulated that a suit may be instituted before the District Judge within whose jurisdiction the concern carries on business. Section 32(11) stipulated that the functions of a District Judge under the said section shall be exercisable, in a Presidency town, where there is a city civil court having jurisdiction , by a judge of that court and in the absence of such court, by the High Court . The appellant contended that the words having jurisdiction read with the pecuniary jurisdiction of the Bombay City Civil Court as contained in Section 3 of the Bombay City Civil Court Act 1948 required that where the liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that the words do not mean what they say lies heavily on the party who alleges it. He must advance something which clearly shows that the grammatical construction would be repugnant to the intention of the Act or lead to some manifest absurdity. The above principles have been consistently followed by this Court including in the decisions in State of Rajasthan v Babu Ram (2007) 6 SCC 55 and Commissioner of Customs (Import), Mumbai v Dilip Kumar and Compan y. (2018) 9 SCC 1 29 The appellant contended that the words by another year in the first proviso to Rule 105(1) cannot be read as limiting the total period of probation to two years. The contention urged by the appellants cannot be accepted. The words by another year appearing in the principal part of Rule 105(1) must be given their plain and literal meaning to imply one additional year. The appointing authority of an institution may extend the period of probation by one additional year over and above the initial period of one year. This equally applies to minority institutions. The first proviso stipulates that the provisions of the sub-rule relating to the prior approval of the Director in respect of an exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be read isolated from the principal provision to confer a right of cross-examination other than by way of contradiction and allow through a back door, the inference of oral statements made by the witness to the officer that were not reduced in writing. Construing the proviso in light of the bar on the evidentiary value of statements recorded in writing in the principal provision, the Court laid down the principle on interpreting a proviso in the following terms: 14. This leads us to the main question in the case i.e. the interpretation of Section 162 of the Code of Criminal Procedure. The cardinal rule of construction of the provisions of a section with a proviso is succinctly stated in Maxwell's Interpretation of Statutes, 10th Edn., at p. 162 thus: The proper course is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light if need be on the rest. The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together is to prevail. Unless the words are clear, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... institutions from seeking the prior approval of the Director where an extension of the probationary period is effected within the maximum permissible extension of two years. Though the High Court concluded that the maximum permissible period of probation under Rule 105(1) is two years, it proceeded to record its finding upon an incorrect provision of law. For the reasons that we have recorded above, the total period of probation under Rule 105 of the 1973 Rules cannot extend beyond two years. 34 The High Court concluded that Rule 105 fixes a maximum probationary period of two years and that consequently, the continuation of the services of the probationer beyond the period of probation would amount to a deemed confirmation of service even without an order of confirmation. Consequently, the case of the first respondent was according to the High Court within the second category of cases enumerated in Satya Narayan Jhavar. This Court in Satya Narayan Jhavar enumerated three lines of cases. The third stipulates those cases where the rules prescribe a maximum period of probation but also require a specific act on the part of the employer of issuing an order of confirmation for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the words to be often found in the Rules in such cases; even so, though this part of Rule 486 says that promoted officers will be confirmed at the end of their probationary period , it is qualified by the words if they have given satisfaction . Clearly therefore the Rule does not contemplate automatic confirmation after the probationary period of two years, for a promoted officer can only be confirmed under this Rule if he has given satisfaction. This condition of giving satisfaction must be fulfilled before a promoted officer can be confirmed under this Rule and this condition obviously means that the authority competent to confirm him must pass an order to the effect that the probationary officer has given satisfaction and is therefore confirmed. (Emphasis supplied) In Kedar Nath Bahl v State of Punjab (1974) 3 SCC 21, the appellant was appointed to a post in the Punjab Provincial Service Class I. The appointment letter stipulated that the period of probation shall be six months. The appellant continued on probation beyond the stipulated period of six months and was eventually reverted back to his previous post. He instituted proceedings challenging his order of revers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose and intent of the Rule which clearly postulates if confirmed . A confirmation, as is demonstrable from the language employed in the Rule, does not occur with efflux of time. As it is hedged by a condition, an affirmative or positive act is the requisite by the employer. In our considered opinion, an order of confirmation is required to be passed. (Emphasis supplied) 38 It emerges from the consistent line of precedent of this Court that where the relevant rule or the appointment letter stipulates a condition precedent to the confirmation of service, there is no deemed confirmation of service merely because the services of a probationer are continued beyond the period of probation. It is only upon the issuance of an order of confirmation that the probationer is granted substantive appointment in that post. Rule 105(2) stipulates the satisfaction of the appointing authority as a condition precedent to the issuance of an order of confirmation. The argument advanced by the learned counsel for the first respondent that there is a deemed confirmation upon the continuation of service beyond the expiry of the period of probation is negatived by the express language of Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of confirmation. The Court held thus: 9. Immediately upon completion of the extended period of probation on October 1, 1960, the appointing authority could dispense with the services of the respondents if their work or conduct during the period of probation was in the opinion of the authority unsatisfactory. Instead of dispensing with their services on completion of the extended period of probation, the authority continued them in their posts until sometime in 1963, and allowed them to draw annual increments of salary including the increment which fell due on October 1, 1962. The rules did not require them to pass any test or to fulfil any other condition before confirmation. There was no compelling reason for dispensing with their services and reemploying them as temporary employees on October 1, 1960, and the High Court rightly refused to draw the inference that they were so discharged from services and re-employed. In these circumstances, the High Court rightly held that the respondents must be deemed to have been confirmed in their posts. Though the appointing authority did not pass formal orders of confirmation in writing, it should be presumed to have passed orders o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od. The absolute discretion vested with the appointing authority of an institution was made subject to the prior approval of the Director. 44 The power vested in the Director serves as a check on the absolute discretion of the appointing authority to extend the probationary period. The power vested in the Director, however, to approve a request of the appointing authority is not unbridled. Rule 105(1) stipulates that the services of a probationer may be terminated without notice during the period of probation where the services of the probationer are not in the opinion of the appointing authority, satisfactory . Rule 105(2) stipulates that an order of confirmation may be issued if, in the opinion of the appointing authority, the performance of the probationer is satisfactory. The discretion of the Director must be exercised objectively on the basis of the material produced by the appointing authority bearing on the performance of a probationer. 45 The prior approval of the Director, save and except for minority institutions, is mandatory and must be complied with as a condition precedent for the valid exercise of the power to extend the period of probation. The Director is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfactory. On 30 November, 2011, the period of probation was extended by another year. On 22 May, 2013, the Managing Committee of the Education society discharged the first respondent from service with effect from 30 June 2013. 48 The first respondent was continued as a probationer for nearly five years in contravention of Rule 105 of the 1973 Rules as well as the appointment letter dated 18 June 2008. There was no order of confirmation. Though the first respondent cannot claim a deemed confirmation of service without the issuance of an order of confirmation, the power of this Court to do complete justice under Article 142 of the Constitution must be invoked in an appropriate manner. While there can be no deemed confirmation in the favour of the first respondent, the relief can be suitably moulded by an award of ex-gratia compensation. A teacher who has spent five valuable years of her life and may now be overaged to get suitable employment elsewhere must not be left in the lurch. A management which has defied the law must be put to terms, which we propose to do under Article 142. 49 We hold and declare that: (i) The words by another year in Rule 105(1) of the 1973 Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jan-Dec 1990 at p. 60 [9] Webster s Third New International Dictionary (1976), p. 89 [10] Collins Dictionary of the English Language (1983), p. 58 [11] Lexico Dictionary Online (Oxford University Press) [12] Justice G P Singh, Principles of Statutory Interpretation, 14th Ed., at p. 91 [13] Craies on Statute Law, 7th Ed., at p. 64 [14] 50. Conditions under which search of persons shall be conducted.-(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in sub-section (1). (3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female ..... X X X X Extracts X X X X X X X X Extracts X X X X
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