Rule 105 of the Delhi School Education Act and Rules, 1973 does not provide for a maximum period of probation and does not provide for automatic or deemed confirmation. The probation period can be extended by the appointing authority without specifying an outer limit, and the services of an employee can be terminated during the probation period if the work and conduct are unsatisfactory.

VALMIKI J. MEHTA, J.

1. This writ petition filed by the petitioner-school impugns the order of the Delhi School Tribunal dated 29.9.2011. By the impugned order, the Delhi School Tribunal has set aside the office note dated 1.10.2005 of the petitioner-school whereby the services of the respondent no.2 herein were terminated. Whereas the case of the petitioner-school was and is that respondent no.2 has been rightly terminated, as she was terminated during the period of probation by a non-stigmatic order, the case of respondent no.2 herein (appellant before the Delhi School Tribunal) was that in terms of Rule 105 of the Delhi School Education Act and Rules, 1973, probation can originally be for one year with a maximum period of one years extension, and once the period of two years passes, since there is no provision for extension of probation, the respondent no.2-probationer would be deemed to be confirmed at the post to which he was appointed.

2. This issue of whether the period of probation can only be a maximum period of two years i.e. one year with extension of one year, and that whether after two years, there is an automatic confirmation of an employee is indeed a vexed question so far as the Delhi School Education Act and Rules, 1973 are concerned. There is no judgment either of a learned Single Judge of this Court or a Division Bench of this Court or of the Supreme Court interpreting Rule 105. There is no interpretation of Rule 105 in the sense as to whether the period of probation can only be of two years or if it statutorily is stated to be two years, can it not be extended beyond two years inasmuch as the language does not provide for deemed confirmation or automatic confirmation. Let me therefore at the outset reproduce the relevant Rule 105, of the Delhi School Education Act and Rules, 1973, and which reads as under:-

“105. Probation.-(1) Every employee shall, on initial appointment, be on probation for a period of one year which may be extended by the appointing authority [with the prior approval of the Director] and the services of an employee may be terminated without notice during the period of probation if the work and conduct of the employee, during the said period, is not, in the opinion of the appointing authority, satisfactory: [Provided that the provisions of this sub-rule relating to the prior approval of the Director in regard to the extension of the period of probation by another year, shall not apply in the case of an employee of a minority school: Provided further that no termination from the service of an employee on probation shall be made by a school, other than a minority school, except with the previous approval of the Director.]

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

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

3. Sub- Rule 1 of Rule 105 provides the original period of probation as one year, and which can be extended by the appointing authority. What is the period for which probation can be extended is however not provided in Sub-Rule1. Sub- Rule 1 further provides that services of an employee can be terminated without notice during the period of probation if the work and conduct of the employee is not satisfactory. First Proviso to the Sub-Rule 1 states that the requirement of the provision of Sub-Rule 1 of seeking approval of the Director of Education with regard to extension of period of probation by another year shall not apply in case of an employee of a minority school. The first proviso is therefore really limited for getting permission of the Director of Education for extension of the probation period “by another year”. It be noted that the expression is n