2019 Supreme(SC) 903

SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, ANIRUDDHA BOSE, JJ.
Durgabai Deshmukh Memorial Sr. Sec. School & Anr. – Appellants
Versus
J.A.J Vasu Sena & Anr. – Respondents
Civil Appeal No. 5926 of 2019 (@SLP (C) No. 4016 of 2019)
Decided on : 21-08-2019

IMPORTANT POINTS
(1) Continuation of services of a probationer beyond the period of probation does not amount to a deemed confirmation of service. It is only upon issuance of order of confirmation by appointing authority that a probationer is confirmed in service.
(2) 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 lurch.

Headnote:

(a) Service Law – Confirmation – Probationer – Rule 105(1) read with first proviso of Delhi School Education Rules, 1973 – Appellant is a Delhi administration aided school and a linguistic minority institution – Rule 105(1) of 1973 Rules mandates that every employee shall be appointed on probation for a period of one year – Ordinary and literal construction of the words ‘’another’’ read with words ‘’for a period of one year’’ in Rule 105(1) implies that appointing authority may extend period of probation by one additional year – Contention that words ‘’by another year’’ imply that appointing authority can extend period of probation by one year at a time without any limit cannot be accepted as this would amount to rewriting provision by substituting words ‘’by another year’’ with words ‘’by one year at a time’’, which is impermissible in law – Appointing authority of an institution may extend period of probation by one additional year over and above initial period of one year – This equally applies to minority institutions – It is only if appointing authority is satisfied with performance of probationer that order of confirmation may be issued – Mere continuation of services of a probationer beyond period of probation does not lead to deemed confirmation in service – It is only upon issuance of order of confirmation by appointing authority that probationer is granted substantive appointment in the post – High Court has erred in holding that there is a deemed confirmation where services of a probationer are continued beyond expiry of probationary period – However, 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 lurch – While there can be no deemed confirmation in favour of first respondent, relief can be suitably moulded by award of ex-gratia compensation – Sum of Rs,50,000/- awarded to respondent. [Constitution of India – Article 142] (Paras 20, 22, 23, 24, 29, 33, 35, 38, 48, 49 and 50)

(b) Words and Phrases – Another – Import – Consistent meaning imparted to word “another” is a single addition or one more – Words of a statute should be understood in sense in which they best harmonise with subject of enactment and object which legislature has in view. (Paras 22 and 23)

(c) Interpretation of Statute – Rule of Literal Construction – Where words of a statute are clear and unambiguous, they must be interpreted in their ordinary grammatical sense, unless interpretation leads to an absurd result – It is only where 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 meaning of words. (Para 26)

(d) Statute Law – Role of Proviso – Objective of a proviso is to carve out from main section a class or category to which main section does not apply – A proviso must prima facie be read and considered in relation to principal matter to which it is a proviso – It is not a separate or independent enactment. (Para 26)

(e) Service Law – Confirmation – Probationer – Where relevant rule or appointment letter stipulates a condition precedent to confirmation of service, there is no deemed confirmation of service merely because services of a probationer are continued beyond period of probation – It is only upon issuance of an order of confirmation that probationer is granted substantive appointment in that post. (Para 38)

Facts of the Case:

Points of law that arise for determination in the present appeal are: (i) whether the words ‘’by another year’’ appearing in the principal part of Rule 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. Present appeal arises from a judgment of a Division Bench of Delhi High Court dated 7 May 2018 setting aside the judgment of Single Judge in a Letters Patent Appeal. Division Bench accepted deemed confirmation of the services of the first respondent who was a probationer in the school of appellants. High Court held that there is a deemed confirmation of the services of a probationer who is continued in service beyond the maximum period of probation, even without the issuance of an order of confirmation by the appointing authority. Aggrieved, appellant school and Andhra Education Society3 are in appeal before this Court.

Findings of Court:

Rule 105(1) of the 1973 Rules, by stipulating a maximum permissible period of probation of two years, draws a balance between the interests of appointing authority in extending the period of probation to ensure the quality of education and the interests of probationers in their services not being extended on probation ad nauseum. Continuation of the services of a probationer beyond the period permissible under the 1973 Rules defeats the salutary purpose underlying the limit stipulated on the period of extension that may be effected in probationary period. Upon the expiry of the period of probation, appointing authority is required by law to either confirm services of probationer or terminate their services. Continuation of services of a probationer by appointing authority under Rule 105 of the 1973 Rules beyond the maximum permissible period of probation, constitutes violation of law.

Result : Appeal Partly allowed.