Holding

Rule 105(1) limits probation to a maximum of two years and continuation beyond that does not constitute deemed confirmation; confirmation requires an explicit order under Rule 105(2).

Summary

The appellant school appointed the first respondent as a teacher on a one‑year probation on 1 July 2008. The probation was extended twice, allowing her to serve as a probationer for nearly five years before she was discharged on 30 June 2013. The Delhi High Court held that the continuation of service beyond the two‑year limit under Rule 105 of the Delhi School Education Rules, 1973 amounted to a deemed confirmation of service. On appeal, the Supreme Court interpreted the phrase “by another year” in Rule 105(1) to mean a single additional year, thereby fixing the maximum probationary period at two years, and held that Rule 105(2) makes an order of confirmation a condition precedent, so no deemed confirmation arises merely from continued service. Consequently, the High Court’s confirmation of the respondent’s service was set aside, but the Court awarded her an ex‑gratia compensation of ₹5,00,000 under its Article 142 powers. The appeal was partly allowed.

Issues considered

The meaning of the words ‘by another year’ in Rule 105(1) of the Delhi School Education Rules, 1973 and whether they limit the total probationary period to two years.
Whether continuation of service beyond the statutory probationary period results in a deemed confirmation of service in the absence of an order of confirmation under Rule 105(2).

Legislation cited

Delhi School Education Act, 1973
Delhi School Education Rules, 1973s. Rule 105(1), s. Rule 105(2)

Subjects

probationdeemed confirmation of serviceservice rules interpretationextension of probationminority institutionex‑gratia compensationstatutory construction

Judgment

[2019] 12 S.C.R. 881 881

DURGABAI DESHMUKH MEMORIAL A
SR. SEC. SCHOOL & ANR.
v.
J.A.J. VASU SENA & ANR.
(Civil Appeal No.5926 of 2019) B
AUGUST 21, 2019
[DR. DHANANJAYA Y CHANDRACHUD AND
ANIRUDDHA BOSE, JJ.]
Delhi School Education Rules, 1973 – r.105 – Probation –
C
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 D
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
E
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 – F
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
G
– 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.
H
881
882 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 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
B
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
C 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
D 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
E 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
F 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
G 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.
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DURGABAI DESHMUKH MEMORIAL SR. SEC. SCHOOL v. 883
J.A.J. VASU SENA

Partly allowing the appeal, the Court A
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 B
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 C
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. D
[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 E
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] F
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 G
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
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884 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 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
B
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]
C 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
D 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
E 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
F 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
G 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
H
DURGABAI DESHMUKH MEMORIAL SR. SEC. SCHOOL v. 885
J.A.J. VASU SENA

post. Rule 105(2) stipulates the satisfaction of the appointing A
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).
B
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] C
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 D
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 E
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 F
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 G
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

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886 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 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]
B 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
C 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
D (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.
E
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;
F 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
G 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
H
DURGABAI DESHMUKH MEMORIAL SR. SEC. SCHOOL v. 887
J.A.J. VASU SENA

of Punjab (1976) 4 SCC 190 : [1977] 1 SCR 229 ; A
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.
B
Principles of Statutory Interpretation by Justice
G P Singh, 14th Ed., at p. 91 – referred to.
Case Law Reference
[1968] SCR 1 distinguished Para 6
C
[2001] 1 Suppl. SCR 532 relied on Para 6
[1958] SCR 1275 referred to Para 23
[1977] 1 SCR 229 referred to Para 23
[2004] 4 Suppl. SCR 127 referred to Para 23
D
[1991] 1 SCR 480 relied on Para 28
(2005) 4 SCC 550 relied on Para 28
[2007] 7 SCR 939 referred to Para 28
[2018] 7 SCR 1191 referred to Para 28 E
[1959] 2 Suppl. SCR 875 followed Para 31
[1959] 2 Suppl. SCR 256 relied on Para 32
[1976] 1 SCR 277 relied on Para 32
[1985] 2 SCR 643 referred to Para 32 F
[1996] 6 Suppl. SCR 798 referred to Para 32
[2008] 7 SCR 168 referred to Para 32
[1964] 6 SCR 279 followed Para 36
(1974) 3 SCC 21 relied on Para 36 G
[1991] 2 SCR 320 referred to Para 36
[1995] 3 SCR 268 referred to Para 36
[1996] 1 Suppl. SCR 600 referred to Para 36
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888 SUPREME COURT REPORTS [2019] 12 S.C.R.

A [1997] 4 Suppl. SCR 214 referred to Para 36
[2012] 2 SCR 492 referred to Para 37
CIVIL APPELLATE JURISDICTION: Civil Appeal No.5926 of
2019.
B From the Judgment and Order dated 07.05.2018 of the High Court
of 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.
C Bharathi Reddy, Ms. Nivedita Nair, Ms. Manjula Gupta, B.V. Balaram
Das, Advs. for the Respondents.
The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J.
D 1. The present appeal arises from a judgment of a Division Bench
of the Delhi High Court dated 7 May 2018 setting aside the judgment of
a learned Single Judge in a Letters Patent Appeal.1 The Division Bench
accepted the deemed confirmation of the services of the first respondent
who was a probationer in the school of the appellants.
E 2. Allowing the appeal filed by the first respondent, the Division
Bench held that under Rule 105(1) read with the first proviso of the
Delhi School Education Rules 1973,2 the maximum period of probation
permissible is two years. The 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
F an order of confirmation by the appointing authority. Aggrieved, the
appellant school and the Andhra Education Society3 are in appeal before
this Court.
3. The appellant is a Delhi administration aided school and a
linguistic minority institution. Pursuant to an advertisement for the filling
G of various posts in the appellant school, the first respondent was appointed
on probation to the post of PGT (English General) on 18 June 2008 for a
duration of one year. The period of probation was extended belatedly on
1
LPA No. 86/2018
2
1973 Rules
H 3
Education society
DURGABAI DESHMUKH MEMORIAL SR. SEC. SCHOOL v. 889
J.A.J. VASU SENA [DR DHANANJAYA Y CHANDRACHUD, J.]

11 February, 2010 for another year on the ground that the services of the A
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 society which conducts the school discharged
the first respondent from service with effect from 30 June 2013.
4. The first respondent filed an appeal4 before the Delhi School B
Tribunal5 challenging her discharge with a prayer for reinstatement with
consequential benefits and back wages. By its order dated 23 July 2015,
the Tribunal allowed the appeal and set aside the order of discharge with
a direction to the appellants to reinstate the first respondent with
consequential benefits. Assailing the order of the Tribunal, the appellants
filed a Writ Petition6 before the Delhi High Court. C

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 D
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 E
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 F
order of confirmation; and
(ii) The appointment letter dated 18 June 2008 stipulated a
probation period of one year. The conduct of the manage-
ment in allowing the first respondent to continue in service for
nearly five years evidenced the satisfactory conduct of the G
first respondent, and resulted in a deemed confirmation of
service.
4
Appeal No. 54/2013
5
Tribunal
6
WP (C) No. 10310/2015 H
890 SUPREME COURT REPORTS [2019] 12 S.C.R.

A Relying on the judgment of a Constitution Bench of this Court in
State of Punjab v Dharam Singh7 (“Dharam Singh”), the High Court
held thus:
“We are, therefore, of the view that where the letter of appointment,
read in conjunction with the above Rules, fixes a maximum period
B of two years of probation and where the appellant was permitted
to continue in the same post, beyond the maximum period, the
same would amount to a deemed confirmation by implication,
without the requirement of an express order of confirmation on
behalf of the Society”
C The High Court concluded that the case of the first respondent
fell in the second category of cases enumerated by a three judge Bench
of this Court in High Court of MP v Satya Narayan Jhavar8 (“Satya
Narayan Jhavar”), to which we shall advert in the course of the
judgment.

D 7. 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 deemed
confirmation of the services of a probationer. Sub-rule (2) of
Rule 105 provides that if the services of the probationer are
E satisfactory, a confirmation will be issued upon the expiry of
the period of probation or the extended period of probation;
(ii) Rule 105(1) does not stipulate a maximum period of
probation. The continuation of the services of the first
respondent on probation without an order of confirmation
F implies an extended period of probation. Under Rule 105(1),
the termination of service without notice during the period
of probation is legally permissible;
(iii) The proviso to Rule 105(1) merely exempts a minority
institution from seeking the prior approval of the Director9
for extending the period of probation by “another year”. This
G
cannot be read as limiting the permissible extension of the
probationary period to only one year over and above the
mandatory period of probation. Any extension of the period
7
AIR 1968 SC 1210
8
(2001) 7 SCC 161
H 9
As defined under the Delhi Education Act 1973
DURGABAI DESHMUKH MEMORIAL SR. SEC. SCHOOL v. 891
J.A.J. VASU SENA [DR DHANANJAYA Y CHANDRACHUD, J.]

of probation beyond the mandatory year of probation shall A
require the prior approval of the Director; and
(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 Sharma10 holding that there is no fixed
period of probation under Rule 105 of the 1973 Rules and B
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 C
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 D
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. E
The absence of a stipulation requiring an order of confirma-
tion in the Rules as well as the appointment letter leads to the
inevitable conclusion that there was a deemed confirmation
of service when the first respondent was continued in
service beyond two years, even without an order of
confirmation. Reliance was placed in this regard on the F
judgment of this Court in Dharam Singh; and
(iii) The appointment letter of the first respondent dated 18 June
2008 stipulated a probationary period of one year. There was
neither a stipulation for the extension in the probationary
period nor a requirement of the issuance of an order of G
confirmation.
9. The rival submissions now fall for our consideration.

10
(2010) 175 DLT 311 (DB)
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892 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 10. At the outset, it must be noted that Rule 105 of the 1973
Rules as submitted before this Court and the High Court by the contesting
parties reads thus:
“105. Probation (1) Every employee shall, on initial appointment,
be on probation for a period of one year which may be extended
B 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:
C [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:
…]
D (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.”
E 11. It is on the basis of the above provision that the High Court, in
the impugned judgment and in judgments prior to the present case, has
concluded that there is a limitation on the extension of the probationary
period stipulated in Rule 105(1) of the 1973 Rules. On the record before
this Court, the words “by another year” appear only in the first proviso
F to Rule 105 and not in the principal provision. The High Court, in the
present case and in cases prior to the present one, has failed to note the
amending history of Rule 105 of the 1973 Rules and has proceeded to
analyse an incorrect provision of law. It is pertinent here to advert to the
legislative and drafting history of the provision.
12. In exercise of the powers conferred by Section 28 of the
G
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 Gazette11 on 31 December 1973 on
11
Delhi Gazette – PT 2– Jan– Dec 1973 at p. 685
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DURGABAI DESHMUKH MEMORIAL SR. SEC. SCHOOL v. 893
J.A.J. VASU SENA [DR DHANANJAYA Y CHANDRACHUD, J.]

which date, they also came into force. Rule 105, as originally enacted, A
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 B
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, C
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 D
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.”
(Emphasis supplied) E
13. Rule 105 of the 1973 Rules, as originally enacted, stipulated
that an employee shall be appointed on initial probation for a period of
one year which may be extended by the appointing authority “by another
year”. No separate provision was stipulated for minority institutions.
Two amendments were subsequently incorporated to the 1973 Rules. F
On 30 January 1985, the Delhi School Education (Amendment) Rules
1984 were notified.12 By this amendment, Rule 110 of the 1973 Rules
was substituted.
14. On 23 February 1990, the Delhi School Education (Amendment)
Rules 199013 were notified.14 Clause 24 of the Amendment Rules 1990 G
amended 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 H
894 SUPREME COURT REPORTS [2019] 12 S.C.R.

A “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 be
substituted, namely:-
B
“Provided that the provisions of this sub-rule relating to the 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:

C 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.”
(Emphasis supplied)
15. By virtue of the Amendment Rules 1990:
D
(i) The words “with the prior approval of the Director” were
inserted after the words “by another year” in the principal
part of Rule 105. The prior approval of the Director was
made mandatory where the period of probation is extended
“by another year”; and
E (ii) The first proviso granted an exemption to the appointing
authority of minority institutions from seeking the prior
approval of the Director for extending the period of proba-
tion “by another year”.
The amending history of the 1973 Rules shows that the
F words “by another year” appearing in the principal part of
Rule 105 has not been omitted. The High Court 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:
G
“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
H
DURGABAI DESHMUKH MEMORIAL SR. SEC. SCHOOL v. 895
J.A.J. VASU SENA [DR DHANANJAYA Y CHANDRACHUD, J.]

work and conduct of the employee, during the said period, is not, A
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: B
…]
(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 C
said period.”
(Emphasis supplied)
It is on the basis of the above provision that we proceed to the
task of interpretation relevant to the present dispute. D
17. It is appropriate to note the view of a three judge Bench of
this Court in Satya Narayan Jhavar. Surveying the precedent, the Court
held thus:
“11. The question of deemed confirmation in service jurisprudence,
which is dependent upon the language of the relevant service E
rules, has been the subject-matter of consideration before this
Court, times without number in various decisions and there are
three lines of cases on this point.
One line of cases is where in the service rules or in the letter of
appointment a period of probation is specified and power to extend F
the same is also conferred upon the authority without prescribing
any maximum period of probation and if the officer is continued
beyond the prescribed or extended period, he cannot be deemed
to be confirmed. In such cases there is no bar against termination
at any point of time after expiry of the period of probation.
G
The other line of cases is that where while there is a provision in
the rules for initial probation and extension thereof, a maximum
period for such extension is also provided beyond which it is not
permissible to extend probation. The inference in such cases is
that the officer concerned is deemed to have been confirmed
H
896 SUPREME COURT REPORTS [2019] 12 S.C.R.

A upon expiry of the maximum period of probation in case before its
expiry the order of termination has not been passed.
The last line of cases is where, though under the rules maximum
period of probation is prescribed, but the same requires a specific
act on the part of the employer by issuing an order of confirmation
B and of passing a test for the purposes of confirmation. In such
cases, even if the maximum period of probation has expired and
neither any order of confirmation has been passed nor has the
person concerned passed the requisite test, he cannot be deemed
to have been confirmed merely because the said period has
expired.”
C
The High Court was of the view that the case of the first respondent
fell in the second category of cases enumerated in Satya Narayan
Jhavar, while the appellant contended that the case of the first respondent
falls within the first category of cases.

D 18. The 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.
E
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
F I.D. No. 2127081
Ref. No. AESSSS/2008-09/DR/112 Date: 18th June, 2008

MEMORANDUM

G
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
H P.G.T. English under the following terms and conditions:-
DURGABAI DESHMUKH MEMORIAL SR. SEC. SCHOOL v. 897
J.A.J. VASU SENA [DR DHANANJAYA Y CHANDRACHUD, J.]

1. … A
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 ter-
mination with one month’s notice on either side.
4. … B
5. …
6. …
7. If the offer of appointment is acceptable she must report to
duty on 1st July 2008.
8. …
C
9. …”
20. Rule 105(1) of the 1973 Rules mandates that every employee
shall be appointed on probation for a period of one year. The appointing
authority may extend the period of probation “by another year” with the
prior approval of the Director. Rule 105(1) also stipulates that if the
work and conduct of the probationer during the probationary period is D
found 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 institution
extends the probationary period “by another year”, the prior approval of
the Director shall not be required. This Court is required to construe E
whether the words “by another year” appearing in Rule 105(1) and the
first proviso of Rule 105 imply one additional year, or one year at a time
without any limit.
21. According to the Cambridge English Dictionary, the word
“another” means “one more person or thing or an extra amount.” F
Webster’s Dictionary defines the word “another” as “an additional
one of the same kind: one more”.15 According to Collins Dictionary of
the English Language, the word “another” implies “one more”.16
Similarly, according to Lexico Dictionary, the word “another” is “used
to refer to an additional person or thing of the same type as one already
mentioned or known about; one more.”17 G

22. The consistent meaning imparted to the word “another” is a
single 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) H
898 SUPREME COURT REPORTS [2019] 12 S.C.R.

A words “another” read with the words “for a period of one year” in Rule
105(1) implies that the appointing authority may extend the period of
probation by one additional year. The contention that the words “by
another year” imply that the appointing authority can extend the period
of probation by one year at a time without any limit cannot be accepted
as this would amount to rewriting the provision by substituting the words
B
“by another year” with the words “by one year at a time”, which is
impermissible in law. Further, had the delegate of the legislature intended
that 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 in
C which they best harmonise with the subject of the enactment and the
object which the legislature has in view.18 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
D 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.
E 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 probationary period one
F year at a time without a limit will allow an appointing authority to extend
the probationary period, with the prior approval of the Director, of a
probationer ad nauseum. This would allow an appointing authority to
convert a period of probation, which serves the limited and time bound
purpose of ascertaining suitability, into a temporary appointment and defeat
G the purpose of probationary service in educational institutions. Though
the legislature or the delegated authority is empowered in a given case
to stipulate that there is no bar on the period of probation, the interpretation

18
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.
H
DURGABAI DESHMUKH MEMORIAL SR. SEC. SCHOOL v. 899
J.A.J. VASU SENA [DR DHANANJAYA Y CHANDRACHUD, J.]

that we have adopted is supported by the words of Rule 105(1) and the A
ordinary meaning imparted to the word “another”.
25. 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 B
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.
26. The principle which we have adopted accords with a consistent
line of precedent of this Court. It is a settled position of law that where C
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 D
words.
27. Justice G P Singh, in his seminal book Principles of Statutory
Interpretation19, states thus:
“The words of a statute are first understood in their natural, ordinary E
or popular sense and phrases and sentences are construed
according to their grammatical meaning, unless that leads to some
absurdity or unless there is something in the context, or in the
object of the statute to suggest the contrary.”
Craies in his Treatise on Statute Law,20 states thus: F
“The cardinal rule for the construction of Acts of Parliament is
that they should be construed according to the 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
G
words themselves alone do in such a case best declare the intention
of 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
H
900 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 28. In Maharashtra State Financial Corporation v Jaycee
Drugs and Pharmaceuticals Pvt. Ltd21, 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
B
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
C Civil Court as contained in Section 3 of the Bombay City Civil Court Act
1948 required that where the liability sought to be enforced was above
INR 50,000 the petition by the appellant was maintainable in the High
Court alone. Accepting this contention, a three judge Bench of this Court
held thus:
D “15. In our opinion, the extent of the liability stated in the application
as contemplated by sub-section (2) of Section 31 of the Act would
represent the value of the claim of the Corporation and if such
value is up to Rs 50,000 the application would lie in the city civil
court and if it is more than that amount it would lie in the High
Court. This interpretation would give meaning and relevance to
E the words “having jurisdiction” used in sub-section (11) of Section
32. A different interpretation would render superfluous or otiose
not only the words “having jurisdiction” but also the words “and in
the absence of such court, by the High Court”….
16. It is a settled rule of interpretation of statutes that if the
F language and words used are plain and unambiguous, full
effect must be given to them as they stand and in the garb
of finding out the intention of the legislature no words should
be added thereto or substracted therefrom. Likewise, it is
again a settled rule of interpretation that statutory provisions
G should be construed in a manner which subserves the
purpose of the enactment and does not defeat it and that
no part thereof is rendered surplus or otiose.”
(Emphasis supplied)
21
(1991) 2 SCC 637
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DURGABAI DESHMUKH MEMORIAL SR. SEC. SCHOOL v. 901
J.A.J. VASU SENA [DR DHANANJAYA Y CHANDRACHUD, J.]

In State of HP v Pawan Kumar,22 it was contended that the A
safeguards provided in Section 50 23 of the Narcotics Drugs and
Psychotropic 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 the
Act. A three judge Bench of this Court, having regard to the scheme of
B
the 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 to
construe them according to plain, literal and grammatical meaning
of the words. If that is contrary to, or inconsistent with, any express
C
intention or declared purpose of the statute, or if it would involve
any absurdity, repugnancy or inconsistency, the grammatical sense
must then be modified, extended or abridged, so far as to avoid
such an inconvenience, but no further. The onus of showing that
the words do not mean what they say lies heavily on the party
who alleges it. He must advance something which clearly shows D
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 Ram24 and
Commissioner of Customs (Import), Mumbai v Dilip Kumar and E
Company.25

22
(2005) 4 SCC 550
23
“50. Conditions under which search of persons shall be conducted.—(1) When any F
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 G
shall, if he sees no reasonable ground for search, forthwith discharge the person but
otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.”
24
(2007) 6 SCC 55
25
(2018) 9 SCC 1
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902 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 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
B
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
C 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.
30. Keeping in view the special status conferred on minority
institutions, the first proviso to Rule 105(1) grants an exemption to the
D appointing authority from seeking the prior approval of the Director to
extend the period of probation by an additional year over and above the
mandatory period of probation. This grants the final say in determining
the first extension of the probationary period by another year to the
appointing authority itself. The interpretation that we have adopted of
the words “by another year” in the principal provision of Rule 105(1)
E equally applies to the words “by another year” in the first proviso to
Rule 105(1). To accept the position that no limit is placed on the extension
of the probationary period in the proviso would allow the proviso to be
read as a separate provision and impart a meaning to the words “by
another 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 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.
G In Tahsildar Singh v The State Of Uttar Pradesh,26 a six judge
Bench of this Court was required to interpret the proviso to Section 162
of the Code of Criminal Procedure 1973. Section 162(1)27 provided that
26
1959 Supp (2) SCR 875

H
DURGABAI DESHMUKH MEMORIAL SR. SEC. SCHOOL v. 903
J.A.J. VASU SENA [DR DHANANJAYA Y CHANDRACHUD, J.]

where the statement of a person to a police officer during investigation A
is taken in writing, the person shall not be required to sign the document
nor shall the writing be used as evidence. The proviso empowered the
court, in its discretion and on the request of the accused, to refer to the
written statement and direct that the accused be furnished with a copy.
The proviso provided that the statement may be used to “contradict” the
B
witness “in the manner provided by Section 145 of the Indian Evidence
Act, 1872.” The Court rejected the argument that the proviso could 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 C
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. D
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 construc-
tion, which is that a section or enactment must be construed as a
whole, each portion throwing light if need be on the rest. E
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, the court should not so construe F
27
162. (1) No statement made by any person to a police officer in the course of an
investigation under this Chapter, shall, if reduced to writing, be signed by the person
making it; nor shall any such statement or any record thereof, whether in a police diary
or otherwise, or any part of such statement or record, be used for any purpose, save as
hereinafter provided, at any inquiry or trial in respect of any offence under investigation
at the time when such statement was made: G
Provided that when any witness is called for the prosecution in such inquiry or trial
whose 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, by
the prosecution, to contradict such witness in the manner provided by section 145 of
the Indian Evidence Act, 1872(1of 1872); and when any part of such statement is so
used, any part thereof may also be used in the re-examination of such witness, but for
the purpose only of explaining any matter referred to in his cross-examination.] H
904 SUPREME COURT REPORTS [2019] 12 S.C.R.

A the proviso as to attribute an intention to the legislature to
give with one hand and take away with another. To put it in
other words, a sincere attempt should be made to reconcile
the enacting clause and the proviso and to avoid repugnancy
between the two.”
B (Emphasis Supplied)
32. Similarly, in CIT v Indo-Mercantile Bank Ltd.,28 a three
judge Bench of this Court, interpreting the meaning of the proviso to
Section 24 of the Indian Income Tax Act 1922 held thus:
“The territory of a proviso therefore is to carve out an exception
C to the main enactment and exclude something which otherwise
would have been within the section. It has to operate in the same
field and if the language of the main enactment is clear it cannot
be used for the purpose of interpreting the main enactment or to
exclude by implication what the enactment clearly says unless
the words of the proviso are such that that is its necessary effect.”
D
In Dwarka Prasad v Dwarka Das Saraf,29 a four Judge Bench
of 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 proviso
E cannot expand or limit it…It is a settled rule of construction that 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…A proviso ordinarily is but a proviso,
although the golden rule is to read the whole section, inclusive of
F the proviso, in such manner that they mutually throw light on each
other and result in a harmonious construction.”
The above principles have been consistently followed by
subsequent benches of this Court in S Sundaram Pillai v VR
Pattabiraman,30 JK Industries Ltd. v Chief Inspector of Factories
and Boilers,31 and Holani Auto Links (P) Ltd. v State of MP.32
G

28
1959 SCR Supp (2) 256
29
1976 SCR (1) 277
30
(1985) 1 SCC 591
31
(1996) 6 SCC 665
H 32
(2008) 13 SCC 185
DURGABAI DESHMUKH MEMORIAL SR. SEC. SCHOOL v. 905
J.A.J. VASU SENA [DR DHANANJAYA Y CHANDRACHUD, J.]

33. In the view that we have taken, the words “by another year” A
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. The proviso merely exempts
the appointing authority of minority institutions from seeking the prior
approval of the Director where an extension of the probationary period
B
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. C
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 D
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 purposes of confirmation. In such cases, there is no deemed E
confirmation of the services of a probationer on their continuation in
service beyond the maximum period of probation.
35. 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 F
“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 G
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
H
906 SUPREME COURT REPORTS [2019] 12 S.C.R.

A confirmation by the appointing authority that probationer is granted
substantive appointment in the post.
36. In GS Ramaswamy v Inspector General of Police33, a
Constitution Bench of this Court considered the promotions of Sub-
Inspectors of Police under Rule 486 of the Hyderabad District Police
B Manual which stipulated that all officers who are promoted will be on
probation for a period of two years and that they may be reverted during
the aforesaid period if their work and conduct is not found satisfactory.
Noting that the Rule stipulated that “promoted officers will be confirmed
at the end of their probationary period if they have given satisfaction”,
this Court held thus:
C
“8… Therefore even though a probationer may have continued to
act in the post to which he is appointed on probation for more than
the initial period of probation, he cannot become a permanent
servant merely because of efflux of time, unless the Rules
of service which govern him specifically lay down that the
D probationer will be automatically confirmed after the initial
period of probation is over…It is true that the words used in
the sentence set out above are not that promoted officers will be
eligible or qualified for promotion at the end of their probationary
period which are the words to be often found in the Rules in such
E 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
F 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
G the effect that the probationary officer has given satisfaction
and is therefore confirmed.”
(Emphasis supplied)

33
(1964) 6 SCR 279
H
DURGABAI DESHMUKH MEMORIAL SR. SEC. SCHOOL v. 907
J.A.J. VASU SENA [DR DHANANJAYA Y CHANDRACHUD, J.]

In Kedar Nath Bahl v State of Punjab34, the appellant was A
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 reversion. The appellant
B
contended that upon the expiry of the period of probation, he was deemed
to be confirmed in service. Rejecting this contention, a three judge Bench
of this Court held thus:
“9. …The law on the point is now well settled. Where a person is
appointed as a probationer in any post and a period of probation is
specified, it does not follow that at the end of the said specified C
period of probation he obtains confirmation automatically even if
no order is passed in that behalf. Unless the terms of
appointment clearly indicate that confirmation would
automatically follow at the end of the specified period, or
there is a specific service rule to that effect, the expiration D
of the probationary period does not necessarily lead to
confirmation. At the end of the period of probation an order
confirming the officer is required to be passed and if no
such order is passed and he is not reverted to his
substantive post, the result merely is that he continues in
his post as a probationer…The terms of appointment do not E
show that the appellant would be automatically confirmed on the
expiry of the first six months of probation nor is any rule brought
to our notice which has the effect of confirming him in the post
after six months of probation.”
(Emphasis supplied) F

This view is also affirmed by the judgments of this Court in
Municipal Corporation, Raipur v Ashok Kumar Misra 35, Jai
Kishan v Commissioner of Police36, State of Punjab v Baldev Singh
Khosla 37 and Chief GM, State Bank of India v Bijoy Kumar
Mishra 38. G

34
(1974) 3 SCC 21
35
(1991) 3 SCC 325
36
1995 Supp (3) SCC 364
37
(1996) 9 SCC 190
38
(1997) 7 SCC 550 H
908 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 37. Recently, in Head Master, Lawrence School, Lovedale v
Jayanthi Raghu39, a two judge Bench of this Court held that even where
the relevant rule prescribes a maximum period of probation, the use of
the words “if confirmed” denote a condition precedent and that there is
no deemed confirmation of service unless a specific order of confirmation
is issued. The Court held thus:
B
“38. Had the rule-making authority intended that there would be
automatic confirmation, Rule 4.9 would have been couched in a
different language. That being not so, the wider interpretation
cannot be placed on the Rule to infer that the probationer gets the
status of a deemed confirmed employee after expiry of three years
C of probationary period as that would defeat the basic 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
D 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
E
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
F 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
G
that there is a deemed confirmation where the services of a probationer
are continued beyond the expiry of the probationary period.

39
H (2012) 4 SCC 793
DURGABAI DESHMUKH MEMORIAL SR. SEC. SCHOOL v. 909
J.A.J. VASU SENA [DR DHANANJAYA Y CHANDRACHUD, J.]

39. It was briefly urged by Mr Yashobant Das, learned Senior A
Counsel appearing on behalf of the appellants that the Division Bench of
the High Court failed to follow a judgment of a coordinate Bench of the
High Court in Veena Sharma. In that case, a termination order was
issued to an Upper Division Clerk during the period of her probation.
Contending that her termination was not in accordance with the letter of
B
appointment and that her services were deemed to be confirmed, the
case of the employee reached the High Court. The appointment letter
expressly stated that a letter of confirmation shall be issued upon the
expiry of the probationary period. Justice Dipak Misra (as he then was)
rejected the contention that Rule 105 of the 1973 Rules stipulated a
deemed confirmation of service on the grounds that there is no fixed C
period of probation and that the work and conduct of the employee must
be proved to be satisfactory.
40. In the present case, the Division Bench of the High Court
adverted to the decision in Veena Sharma and distinguished it on the
ground that the appointment letter stipulated the requirement of an express D
letter of confirmation. Further, the argument urged on behalf of the
appellant cannot be accepted as the facts of that case are distinguishable
for the principal reason that no interpretation of the exemption stipulated
for minority institutions in the proviso was involved.
41. The High Court relied on the Constitution Bench judgment of
this Court in Dharam Singh to hold that upon the expiry of the E
probationary period, the first respondent is deemed to be confirmed in
service. In Dharam Singh this Court interpreted Rule 640 of the Punjab
Educational Service (Provincialised Cadre) Class III Rules, 1961. The
Rules stipulated that the period of probation shall be one year and the
total period of probation shall not exceed three years. The Court granted F
relief to the claimants as their services were continued beyond three
40
“6(1). Members of the Service, officiating or to be promoted against permanent
posts, shall be on probation in the first instance for one year.
(2) Officiating service shall be reckoned as period spent on probation, but no member
who has officiated in any appointment for one year shall be entitled to be confirmed
unless he is appointed against a permanent vacancy.
(3) On the completion of the period of probation the authority competent to make G
appointment may confirm the member in his appointment or if his work or conduct
during the period of probation has been in his opinion unsatisfactory he may dispense
with his services or may extend his period of probation by such period as he may deem
fit 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 exceed
three years.
H
…”
910 SUPREME COURT REPORTS [2019] 12 S.C.R.

A years and the relevant rules and the appointment letter did not stipulate
the issuance of any order 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
B 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
C them to pass any test or to fulfil any other condition before
confirmation. There was no compelling reason for dispensing
with their services and re-employing 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-
D 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 of confirmation by so
allowing them to continue in their posts after October 1,
E 1960.”
(Emphasis supplied)
In Dharam Singh, the Constitution Bench held that the continuation
of the services of a probationer beyond the maximum period of probation
F would amount to a deemed confirmation of service only in the absence
of a stipulation in the relevant rule requiring the probationer to pass a
test or fulfill any other condition. In the present case, Rule 105(2)
stipulates the satisfaction of the appointing authority as a condition
precedent to the issuance of an order of confirmation. The High Court
has thus failed to notice the distinguishing features which emerge from
G the judgment of this Court in Dharam Singh.
42. In the view that we have taken, the High Court has erred in
concluding that the case of the first respondent falls within the second
category of cases enumerated in Satya Narayan Jhavar. Rule 105(2)

H
DURGABAI DESHMUKH MEMORIAL SR. SEC. SCHOOL v. 911
J.A.J. VASU SENA [DR DHANANJAYA Y CHANDRACHUD, J.]

stipulates the satisfaction of the appointing authority as a condition A
precedent to the issuance of an order of confirmation. Admittedly, no
order of confirmation was issued by the appointing authority. The case
of the first respondent falls squarely within the third category of cases
enumerated in Satya Narayan Jhavar wherein though the rules prescribe
a maximum period of probation and the probationer is continued beyond
B
the expiry of the probationary period, the substantive appointment of the
probationer is subject to a specific act on the part of the appointing
authority of issuing an order of confirmation. In the absence of an order
of confirmation, the first respondent did not acquire the status of a
confirmed employee.
43. In the present case, the first respondent served as a probationer C
for nearly five years. Rule 105(1) permits the appointing authority to
extend the period of probation with the prior permission of the Director.
The proviso stipulates that no prior approval of the Director is required
for the extension of the probationary period by the appointing authority
of a minority institution. The amending history of the provision shows D
that prior to the amendment in 1990, no prior approval of the Director
was required. By virtue of the Amending Rules 1990 the prior approval
of the Director was made mandatory, save and except for extensions in
the case of minority institutions, for the grant of any extension in the
probationary period. The absolute discretion vested with the appointing
authority of an institution was made subject to the prior approval of the E
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 F
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. G
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.

H
912 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 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 required to assess the determination of the
appointment authority and based on that assessment, to decide whether
to approve an extension of the probationary period. The provision which
B
mandates that the prior approval of the Director shall be sought before
extending the period of probation ensures that the appointing authority
may not extend the probationary period without legitimate reason. The
extension of the probationary period by the appointing authority, save
and except for minority institutions, without the prior approval of the
C Director is impermissible in law.
46. 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 the appointing authority in extending the period of probation
to ensure the quality of education and the interests of probationers in
D their services not being extended on probation ad nauseum. The
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 the
probationary period. Upon the expiry of the period of probation, the
appointing authority is required by law to either confirm the services of
E the probationer or terminate their services. The continuation of the services
of a probationer by the appointing authority under Rule 105 of the 1973
Rules beyond the maximum permissible period of probation, constitutes
a violation of law. Though as we have held, there is no provision for
deemed confirmation, the conduct of the management may result in other
F consequences, including a decision in regard to whether the recognition
of a school which consistently violates the law should be withdrawn.
47. 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
G 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
H November, 2011, the period of probation was extended by another year.
DURGABAI DESHMUKH MEMORIAL SR. SEC. SCHOOL v. 913
J.A.J. VASU SENA [DR DHANANJAYA Y CHANDRACHUD, J.]

On 22 May, 2013, the Managing Committee of the Education society A
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 B
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. C
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: D

(i) The words “by another year” in Rule 105(1) of the 1973
Rules stipulate that the maximum period of probation per-
missible is two years. The limit equally applies to minority
institutions covered by the first proviso to Rule 105; and
E
(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 probationer F
is confirmed in service.
50. We direct, in the exercise of the jurisdiction of this Court under
Article 142 of the Constitution, that the appellants shall pay over to the
first respondent a sum of INR 5,00,000 within a period of four weeks
from the date of receipt of a certified copy of this order, failing which G
the amount shall carry an interest of 9% per annum till the date of
realisation.
51. We affirm the view of the Delhi High Court to the extent that
the maximum permissible period of probation under Rule 105 of the
H
914 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 1973 Rules is two years, although for the reasons that we have indicated
above. The High Court, in the present case and in prior cases, has failed
to take note of the amending history of Rule 105 of the 1973 Rules and
has relied on an incorrect provision of law. We clarify that previous
litigation under Rule 105 of the 1973 Rules which has attained finality
shall not be reopened. The judgment of the Delhi High Court, in so far as
B
it confirmed the services of the first respondent is set aside. The appeal
is partly allowed in the above terms.
52. We direct the Registry to forward a copy of this judgment to
the Chief Librarian, Supreme Court of India, the Registrar General, Delhi
High Court and the Department of Education, National Capital Territory
C of Delhi for recording the correct provisions of Rule 105 of the 1973
Rules in their records.
53. There shall be no order as to costs.
54. Pending application(s), if any, shall stand disposed of.
D
Ankit Gyan Appeal partly allowed.

E

F

G

H