Supreme Court of India
HEAD MASTER, LAWRENCE SCHOOL LOVEDALEversusJAYANTHI RAGHU & ANR.
- Citation
- 2012 INSC 137
- Decided
- 16 March 2012
- Disposal
- Appeal(s) allowed
- Bench
- DALVEER BHANDARI
Holding
Confirmation of a probationer requires a positive act of the employer; the employee does not become a deemed confirmed employee merely by the lapse of the probationary period.
Summary
The appellant school terminated the services of a teacher who had been appointed on a two‑year probation, extendable by one year, after she allegedly received an unauthorized amount. The termination order was challenged, and the High Court initially set it aside, later holding that the teacher became a confirmed employee after three years of service. The Supreme Court examined whether the phrase “if confirmed” in Rule 4.9 of the Lawrence School Lovedale Rules conferred automatic confirmation upon expiry of the probationary period. It held that confirmation requires a positive act by the employer and cannot be inferred merely from the passage of time. Consequently, the teacher was not a deemed confirmed employee, and a disciplinary enquiry was required before termination. The appeal was allowed, setting aside the High Court’s order to the extent it treated the teacher as confirmed.
Issues considered
- Whether the employee attained the status of a confirmed employee by operation of Rule 4.9 after completing three years of probation without an explicit confirmation order.
- Whether the school was justified in treating the teacher as a probationer and terminating her services without a disciplinary enquiry.
- Interpretation of the phrase “if confirmed” in Rule 4.9 of the Lawrence School Lovedale Rules.
- Whether the principle of deemed confirmation applies to this case.
Subjects
probationconfirmationdeemed confirmationservice rulesdisciplinary enquirytermination of employmentinterpretation of service rulespublic service law
Judgment
[2012] 2 S.C.R. 492
A HEAD MASTER, LAWRENCE SCHOOL LOVEDALE
v.
JAYANTHI RAGHU & ANR.
(Civil Appeal No. 2868 of 2012)
MARCH 16, 2012.
B
[DALVEER BHANDARI AND DIPAK MISRA, JJ.]
SeNice Law:
c Deemed confirmation - Appointment letter stipulating that
the appointee would be on probation for a period of two years
which could be extended for another one year - After the
employee competed three years of service, her services
terminated without holding an inquiry - Held: The status of
0 confirmation has to be earned and conferred - 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 of probationary period as that would
defeat the basic purpose and intent of the Rule which clearly
E 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 considered
opinion of the Court, an order of confirmation is required to
be passed - The order of High Court is set aside to the extent
F that the employee had acquired the status of confirmed
employee and, therefore, holding of enquiry was imperative -
Lawrence School Lovedale (Nilgiris) Rules - r. 4. 9.
Words and Phrases:
G
Expression "if confirmed" as occurring in r.4. 9 of
Lawrence School Lovedale {Nilgiris) Rules - Connotation of
- Explained.
H 492
HEAD MASTER, LAWRENCE SCHOOL LOVEDALE 493
v. JAYANTHI RAGHU & ANR.
Respondent no. 1 was appointed as a teacher in the A
appellant School with effect from 1.9.1993 under an
appointment letter stipulating that she would be on
probation for a period of two years which could be
extended for another one year. In November 1995, she
was stated to have received some unauthorised amount. B
After recording the proceeding, by order dated 18.6.1997,
the services of respondent no. 1 were terminated. The
order was challenged in a writ petition and the Single
Judge of the High Court set it aside holding that the same
was stigmatic in nature and could not have been passed c
without an inquiry. In the writ appeal filed by the school,
though the Division Bench of the High Court observed
that the proceeding did not cast any stigma, it ultimately
held that in the absence of any provision for extension
of probation beyond a period of three years, the services
0
of the teacher would be treated as confirmed after
1.9.1996.
In the instant appeal filed by the School, the question
for consideration before the Court was: "Whether the
appellant-school was justified under the Rules treating E
the respondent-teacher as a probationer and not treating
.her as a deemed confirmed employee ?"
Allowing the appeal, the Court
F
HELD: 1.1 On a plain reading of the letter of
appointment, it is apparent that respondent no. 1 was
appointed as a Mistress in the School on probation for a
.period of two years with .a stipulation that it may be
extended by another year. There is nothing in the terms G
of the letter of! appointment from which it can be
construed that after the expiry of the period of probation,
she would be treated as a deemed confirmed employee .
. In this factual backdrop, the interpretation to be placed
on r. 4.9 of the Lawrence School Lovedale (Nilgiris) Rules H
494 SUPREME COURT REPORTS [2012] 2 S.C.R.
A assumes immense signification. This Court is only '·
required to construe the word 'if confirmed' in their
contextual use in r.4.9. The Division Bench of the High
Court has associated the words with the entitlement of
the age of superannuation. In the considered opinion of
B this Court, the interpretati<?ll placed by the High Court is
unacceptable. The words hlive to be understood in the
context they are used. Rule 4.9 has to be read as a whole
to understand the purport and what the Rule conveys
and means. Regard being,had to the tenor of the Rules,
C the words "if confirmed", read in proper context, confer
a status on the appointee which consequently entitles
him to continue on the post till the age of 55 years, unless
he is otherwise removed from service as per the Rules.
[para 8 and 20) [500-E-F; 508-F-G; 509-E-F]
D
The High Court of Madhya Pradesh through Registrar
and Others v. Satya Narayan Jhaver 2001 (1) Suppl. SCR
532= 2001 AIR 3234 = 2001 (7) SCC 161 - relied on
Sukhbans Singh v. State of Punjab 1963 SCR 416= 1962
E AIR 1711; G.S. Ramaswamy and Ors. v. Inspector-General
of Police, Mysore 1964 SCR 279=1966 AIR 175; State of
Uttar Pradesh v. Akbar Ali Khan 1966 AIR 1842; State of
Punjab v. Dharam Singh 1968 SCR 1=1968 AIR 1210;
Samsher Singh v. State of Punjab and another 1975 (1) SCR
F 814 = 1974 (2) SCC 831; Om Prakash Maurya v. U.P. Co-
operative Sugar Factories Federation, Lucknow and others
1986 SCR 78=1986 AIR 1844; Municipal Corporation, Raipur
v. Ashok Kumar Misra 1991 (2) SCR 320=1991 AIR 1402;
and Dayaram Dayal v. State of M.P. AIR 1997 SC 3269 -
G referred to.
Reserve Bank of India v. Peerless General Finance and
Investment Co. Ltd. and others 1987 (2) SCR 1 = 1987 (1)
SCC 424; S.N. Sharma v. Bipen\Kpmar Tiwari and others
H 1970 (3) SCR 946 = 1970 (1) SCC 653; and State of Tamil
HEAD MASTER, LAWRENCE SCHOOL LOVEDALE 495
v. JAYANTHI RAGHU & ANR.
Nadu v. Kodaikanal Motor Union (P) Ltd. 1986 (2) SCR 927 A
. =1986 ( 3 ) sec 91 - referred to.
1.2 When the language employed under r. 4.9 is
scrutinised, it can safely be concluded that the
entitlement to continue till the age of superannuation, i.e., B
55 years, is not absolute. The power and right to remove
is not obliterated. The status of confirmation has to be
earned and conferred. Had the rule making authority
intended that there would be automatic confirmation, r.4.9
would have been couched in a different language. That c
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 of probationary period as that would defeat the
basic purpose and intent of the Rule which clearly o
postulates "if confirmed". [para 23] (510-G-H; 511-A-C]
1.3 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. E
In the considered opinion of the Court, an order of
confirmation is required to be passed ..The. Division
Bench has clearly flawed by associating the ,words 'if
confirmed' with the entitlement of the,. age of
superannuation without appreciating that the use of the F
said words as a fundamental qualifier negatives deemed
confirmation. Thus, the irresistible conclusion is that the
present case would squarely fall in the last line of cases
as has been enumerated in paragraph 11 of Satya
Narayan Jhaver and, therefore, the principle of deemed G
confirmation is not attracted. [para 23] [511-C-E]
1.4 The order of the High Court is set aside to the
extent that respondent no. 1 had acquired the status of
H
496 SUPREME COURT REPORTS [2012] 2 S.C.R.
A confirmed employee and, therefore, holding of enquiry is
imperative. As far as the conclusion recorded by the
Division Bench that no stigma was cast on the
respondent is concerned, the same having gone
unchallenged, the order in that regard is not disturbed.
B (para 24] (511-F-G]
Case Law Reference:
2001 (1) Suppl. SCR 532 relied on para 5 and
17
c 1963 SCR 416 referred to para 10
1964 SCR 279 referred to para 11
1966 AIR 1842 referred to para 12
D 1968 SCR 1 referred to para 13
1975 (1) SCR 814 referred to para 14
1986 SCR 78 referred to para 15
E 1991 (2) SCR 320 referred to para 16
1987 (2) SCR 1 referred to para 17
1987 (2) SCR 1 referred to para 20
1970 (3) SCR 946 referred to para 21
F
1986 ( 2) SCR 927 referred to para 22
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2868 of 2012.
G From the Judgment & Order dated 26.03.2008 of the High
Court of Judicature at Madras in W.A. No. 4157 of 2004.
K. V. Vishwanathan, Rohini Musa, Binu Tamta for the
· Appellant.
H
HEAD MASTER, LAWRENCE SCHOOL LOVEDALE 497 ·
v. JAYANTHI RAGHU & ANR.
Shweta Bharti, Amit Pawan, Nidhi Chaudhary, Vikash A
Verma, Neha Kapoor, Kenanda for the Respondents.
/ The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. Leave granted.
B
2. Questioning the legal acceptability of the Judgment and
Order dated 26.03.2008 passed by the High Court of
Judicature at Madras in W.A. No. 4157 of 2004 whereby the
finding recorded by the learned Single Judge in W.P. No.
15963 of 1997 to the effect that the order of termination in c
respect of the first respondent, a teacher, being stigmatic in
nature and having been passed without an enquiry warranted
quashment was dislodged by the Division Bench on the
foundation that the order of termination did not cast any stigma,
but concurred with the ultimate conclusion on the base that she D
was a confirmed employee and hence, holding of disciplinary
enquiry before passing an order of termination was imperative,
the present appeal by special leave has been preferred under
Article 136 of the Constitution of India.
3. The factual matrix lies in a narrow compass. The first E
respondent herein was appointed on the post of a Mistress with
effect from 01.09.1993. It was stipulated in the letter of
appointment that she would be on probation for a period of two
years which may be extended for another one year, if
necessary. In November 1995, while she was working as a F
Mistress in the appellant's school, as alleged, she had received
some amount from one Nathan. A meeting was convened on
09.09.1997 and in the proceeding, certain facts were recorded
which need not be adverted to inasmuch as the said allegations
though treated stigmatic by the learned Single Judge, yet the G
Division Bench, on a studied scrutiny of the factual scenario,
has opined in categorical terms that the same do not cast any
stigma. The said conclusion has gone unassailed as no appeal
has been preferred by the first respondent.
H
498 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 4. To proceed with the narration, after the proceeding was
recorded on 18.06.1997, an order of termination was passed
against the first respondent. As has been stated earlier, the
order of termination was assailed before the Writ Court and the
learned Single Judge axed the order on the ground that the
8 same was stigmatic in nature. The order passed by the learned
Single Judge was challenged in Writ Appeal under Clause 15
of the Letters Patent by the present appellant and at that
juncture, a contention was canvassed by the first respondent
that by virtue of the language employed in Rule 4.9 of the Rules
C of Lawrence School, Lovedale (Nilgiris) (for short, 'the Rules'),
she had earned the status of a confirmed employee having
satisfactorily completed the period of probation and, therefore,
her services could not have been dispensed with without
holding an enquiry. In essence, the proponement was that she
was deemed to have been a confirmed employee of the school
D and hence, it was opligatory on the part of the employer to hold ·.
an enquiry before putting an end to her services .
.
5. The Division Bench interpreted the Rule and placed
reliance on a three-Judge Bench Decision of this Court in The
, E High Court of Madhya Pradesh through Registrar and Others ·
v. Satya Narayan Jhaver1 and came .to hold as follows:-
"ln terms of Rule 4.9 of the Rules, the maximum period of
probation would be only three years and the rule does not
provide any further extension of probation. If that be so, the
F
Headmaster of the school would be entitled to pass orders
as to the confirmation before the expiry of the maximum
period of three years i.e., 1.9.1996. Factually no such
order was passed in this case and the teacher was
allowed to serve beyond the period of 1.9.1996 till the
G order of termination dated 18.6.1997 was passed. In the
absence of any provision for extension beyond a period
of three years, in law, as stated by the Supreme Court, the .
services of the teacher would be treated as confirmed after
H 1. (2001) 7 sec 161 : AIR 2001 SC 3234.
HEAD MASTER, LAWRENCE SCHOOL LOVEDALE 499
v. JAYANTHI RAGHU & ANR. [DIPAK MISRA, J.]
1.9.1996. Mr. K. R. Vijayakumar, learned counsel for the A
school has submitted that the said rule 4~9 contemplates
that only "if confirmed" the probation would come to an end.
The said submission is based on the rule that the
appointee, if confirmed, shall continue to hold office till the
age of 55 years. In our opinion, the said rule relates to the B
upper age limit for the entire service, i.e., in the event of a
probationer is confirmed, he would be entitled to continue
till the age of 55 years. The said rule does not in any way
empowers the Headmaster or the Chairman, as the case
may be, to extend the period of probation beyond the c
maximum period of three years."
6. Assailing the legal substantiality of the order, Mr. K.V.
Viswanathan, learned senior counsel, has submitted that the
Division Bench has grossly erred by coming to the conclusion
' that after the expiry of the probation period, the first respondent D
became a confirmed employee. It is his further submission that
if the language employed in Rule 4.9 of the Rules, especially
the words "if confirmed", are appreciated in proper perspective,
. there can be no trace of doubt that an affirmative act was
required to be done by the employer without which the employee E
could not be treated to be a confirmed one. The learned senior
counsel would further contend that the High Court has clearly
flawed in its interpretation of the Rule by connecting the factum
of confirmation with the fixation of upper age limit for
superannuation. It is also urged by him that the Division Bench F
has clearly faulted in its appreciation of the law laid down in
Satya Narayan Jhaver(supra) inasmuch as the case of the first
respondEmt squarely falls in the category where a specific act
on the part of th.e employer is an imperative requisite.
G
7. Combating the aforesaid submissions, Ms. Shweta
Basti, learned counsel appearing for the first respondent,
' submitted that the order passed by the High Court is absolutely
impeccable since on a careful scanning of the Rule, it is
discernible that it does not confer any power on the employer H
500 SUPREME COURT REPORTS [2012) 2 S.C.R.
A to extend the period of probation beyond the maximum period
as stipulated in the Rule and, therefore, the principle of deemed
confirmation gets attracted. It is proponed by her that the
emphasis placed on the term "if confirmed" by the appellant is
totally misconcieved and unwarrantf3d because its placement
B in the Rule luminously projects that it has an insegregable nexus
with the age of retirement and it has no postulate which would
destroy the concept of deemed confirmation. It has been further
put forth that the Rule neither lays down any postulate that the
employee shall pass any test nor does it stipulate any condition
c precedent for the purpose of confirmation. Lastly, it is
contended that a liberal interpretation is necessary regard
being had to the uncertainties that is met with by a probationer
after the expiry of the probation period and unless the beneficent
facet is taken note of, the caprice of the employer would prevail
and the service career of an employee would be fossilized.
0
8. To appreciate the rivalised submissions raised at the
Bar, we have carefully perused the letter of appointment and
on a plain reading of the same, it is apparent that the first
respondent was appointed as a Mistress in the School on
E probation for a period of two years with a stipulation that it may
be extended by another year. There is nothing in the terms of
the letter of appointment from which it can be construed that
after the expiry of the period of probation, she would be treated
as a deemed confirmed employee. In this factual backdrop, the
F interpretation to be placed on Rule 4.9 of the Rules assumes
immense signification. The said Rule reads as follows: -
"4.9 All appointments to the staff shall ordinarily be made
on probation for a period of one year which may at the
discretion of the Headmaster or the Chairman in the case
G
of members of the staff appointed by the Board be
extended up to two years. The appointee, if confirmed, shall
continue to hold office till the age of 55 years, except as
otherwise provided ip these Rules. Every appointment shall
be subject to the conditions that the appointee is certified
H
HEAD MASTER, LAWRENCE SCHOOL LOVEDALE 501
v. JAYANTHI RAGHU & ANR. [DIPAK MISRA, J.]
as medically fit for seNice by a Medical Officer nominated A
by the Board or by the Resident Medical Officer of the
School."
9. Keeping in abeyance the interpretation to be placed on
the Rule for a while, it is obligatory to state that there is no B
dispute at the Bar that the first respondent had completed the
period of probation of three years. Thus, the fulcrum of the
controversy is whether the appellant-school was justified under
the Rules treating the respondent-teacher as a probationer and
not treating her as a deemed confirmed employee. We have
reproduced the necessary paragraph from the decision of the C
High .Court and highlighted how the Division Bench has
analysed and interpreted the Rule in question. The bedrock of
the analysis, as is perceivable, is the sentence in Rule 4.9 "the
appointee, if confirmed, shall continue to hold office till the age
of 55 years" fundamentally relates to the fixation of the upper D
age limit for the entire seNice. It has been held that it deals with
the entitlement of an employee to continue till the age of 55
years.
10. "Before we proceed to appreciate whether the E
interpretation placed on the Rule is correct or not, it is apposite
to refer to certain authorities in the field. In Sukhbans Singh v.
State of Punjab 2, the Constitution Bench has opined that a
probationer cannot, after the expiry of the probationary period,
automatically acquire the status of a permanent member of the F
seNice, unless of course, the rules under which he is appointed
expressly provide for such a result.
11. In G. S. Ramaswamy and Ors. v. Inspector-General of
Police, Mysore, another Constitution Bench 3, while dealing
with the language employed under Rule 486 of the Hyderabad G
District Police Manual, referred to the decision in Sukhbans
Singh (supra) and opined as follows: -
. 2. AIR 1962 SC 1711
3. AIR 1966 SC 175. H
502 SUPREME COURT REPORTS [2012) 2 S.C.R.
A "It has been held in that case that a probationer cannot
after the expiry of the probationary period automatically
acquire the status of a permanent member of a service,
unless of course the rules under which he is appointed
expressly provide for such a result. Therefore even though
B a probationer may have continued to act in the post to
which he is 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 probationer will;
c be automatically confirmed after the initial period of
probation is over. It is contended on behalf of the
petitioners before us that the part of r. 486 (which we have
set out above) expressly provides for automatic ,
confirmation after the period of probation is over. We are
of opinion that there is no force in this contention. It is true
D
that the words used in the sentence set out above are not
that promoted officers will be enable or qualified for
promotion at the end of their probationary period which are
the words to be often found in the rules in such eases; even
so, though this part of r. 486 says that "promoted officers ·
E• 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
F he has given satisfaction."
12. In State of Uttar Pradesh v. Akbar Ali Khan 4, another
Constitution Bench ruled that if the order of appointment itself
states that at the end of the period of probation, in the absence
G of any order to the contrary, the appointee will acquire a
. substantive right to the post even without an order of
confirmation. In all other cases, in the absence of such an order
or in the absence of such a service rule, an express order of
confirmation is necessary to give him such a right. Where after
H 4. AIR 1966 SC 1842.
HEAD MASTER, LAWRENCE SCHOOL LOVEDALE 503
v. JAYANTHI RAGHU & ANR. [DIPAK MISRA, J.]
the period of probation, an appointee is allowed to continue in A
the post without an order of confirmation, the only possible view
to take is that by implication, the period of probation has been
extended, and it is not a correct proposition to state that an
appointee should be deemed to be confirmed from the mere
fact that he is allowed to continue after the end of the period of B
probation.
13. In State of Punjab v. Dharam Singh, the Constitution
Bench 5, after scanning the anatomy of the Rules in question,
addressed itself to the precise effect of Rule 6 of the Punjab C
Educational Service (Provincialised Cadre) Class Ill Rules,
1961. The said Rule stipulated that the total period of probation
including extensions, if any, shall not exceed three years. This
Court referred to the earlier view which had consistently stated
that when a first appointment or promotion is made on
probation for a specific period and the employee is allowed to D
continue in the post after the expiry of the period without any
specific order of confirmation, he should be deemed to continue
in his post as a probationer only in the absence of any indication
to the contrary in the original order of appointment or promotion
or the service rules. Under these circumstances, an express E
order of confirmation is imperative to give the employee a
substantive right to the post and from the mere fact that he is
allowed to continue in the post after the expiry of the specified
period of probation, it is difficult to hold that he should be
deemed to have been confirmed. When the service rules fixed F
a certain period of time beyond which the probationary period
cannot be extended and an employee appointed or promoted
to a post on probation is allowed to continue in that post after
completion of the maximum period of probation without an
express order of confirmation, he cannot be deemed to continue G
in that post as a probationer by implication. It is so as such an
· implication is specifically negatived by the service rule
forbidding extension of the probationary period beyond the
maximum period fixed by it.
5. AIR 1968 SC 1210. H
504 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 14. In Samsher Singh v. State of Punjab and another8,
the seven-Judge Bench was dealing with the termination of
services of the probationers under Rule 9 of the Punjab Civil
Services (Punishment and Appeal) Rules, 1952 and Rule 7(3)
of the Punjab Civil Services (Judicial Branch) Rules, 1951. In
B the said case, the law laid down by the Constitution Bench in
the case of Dharam Singh (supra) was approved but it was
distinguished because of the language of the relevant rule,
especially explanation to Rule 7(1), which provided that every
subordinate Judge in the first instance be appointed on
c probation for two years and the said period may be extended
from time to time either expressly or impliedly so that the total
period of probation including extension does not exceed three
years. The explanation to the said Rule stipulated that the
period of probation shall be deemed to have been extended if
0 a subordinate Judge is not confirmed on the expiry of the period
of probation. Be it noted, reliance was placed on the decision
in Dharam Singh (supra). The larger Bench discussed the
principle laid down in Dharam Singh's case and proceeded to
state as follows: -
E "In Dharam Singh's case (supra) the relevant rule stated
that the probation in the first instance is for one year with
the proviso that the total period of probation including
extension shall not exceed three years. In Dharam Singh's
case he was allowed to continue without an order of
F confirmation and therefore the only possible view in the
absence of anything to the contrary in the Service Rules
was that by necessary implication he must be regarded
as having been confirmed."
G After so stating, the Bench referred to Rule 7(1) and came
to hold as follows: -
'I
".................. the explanation to rule 7(1) shows that the
period of probation shall be deemed to have been
H 6. (1974)2SCC831.
HEAD MASTER. LAWRENCE SCHOOL LOVEDALE 505
v. JAYANTHI RAGHU & ANR. [DIPAK MISRA, J.]
extended impliedly if a Subordinate Judge is not confirmed A
on the expiry of this period of probation. This implied
extension where a Subordinate Judge is not confirmed on
the expiry of the period of probation is not found in Dharam
Singh's case (supra). This explanation in the present case
does not mean that the implied extension of the B
probationary period is only between two and three years.
The explanation on the contrary means that the provision
regarding the maximum period of probation for three
years is directory and not mandatory unlike in Dharam
Singh's case (supra) and that a probationer is not in fact c
confirmed till an order of confirmation is made."
(Emphasis supplied)
15. In Om Prakash Maurya v. U.P. Co-operative Sugar
Factories Federation, Lucknow and others 7, a two-Judge C
Bench was dealing with the case of confirmation under the U.P.
Cooperative Societies Employees Service Regulations, 1975.
After referring to Regulations 17 and 18, it was held that as the
proviso to Regulation 17 restricts the power of the appointing
authority in extending the period of probation beyond the period E
of one year and Regulation 18 provides for confirmation of an
employee on the satisfactory completion of the probationary
period, it could safely be held that the necessary result of the
continuation of an employee beyond two years of probationary
period is that he would be confirmed by implication. F
16. In Municipal Corporation, Raipur v. Ashok Kumar
Misra 8, while dealing with Rule 14 of the Madhya Pradesh
Government Servants' General Conditions of Service Rules,
1961, after referring to earlier pronouncements, it has been held
that if the rules do not empower the appointing authority to G
extend the probation beyond the prescribed period, or where
the rules are absent about confirmation or passing of the
7. AIR 1986 SC 1844.
8. AIR 1991 SC 1402. H
506 SUPREME COURT REPORTS [2012] 2 S.C.R.
A prescribed test for confirmation it is an indication of the
satisfactory completion of probation.
17. It is apt to note here that the learned counsel for both
the sides have heavily relied on the decision in High Court of
B. Madhya Pradesh thru. Registrar and others v. Satya Narayan
Jhavar9. In the said case, the three-Judge Bench was
considering the effect and impact of Rule 24 of the Madhya
Pradesh Judicial Service (Classification, Recruitment and
Conditions of Services) Rules, 1955. It may be mentioned that
the decision rendered in Dayaram Dayal v. State of M.P. 10,
C which was also a case under Rule 24 of the said Rules, was
referred to the larger Bench. In Dayaram Dayal (supra), it had
been held that if no order for confirmation was passed within
the maximum period of probation, the probationer judicial officer
could be deemed to have been confirmed after expiry of four
D years peri6d of probation. After referring to the decisions in
Dharam Singh (supra), Sukhbans Singh (supra) and
Shamsher Singh (supra) and other authorities, the three-Judge
Bench expressed thus:-
E "11. The question of deemed confirmation in service
Jurisprudence, which is dependent upon language of the
relevant service rules, has been subject matter of
consideration before this Court times without number in
various decisions and there are three lines of cases on
F this point. One line of cases is where in the service rules
or the letter of appointment a period of probation is
specified and power to extend 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
G
be confirmed. In such cases there is no bar against
termination at any point of time after expiry of the period
of probation. Other line of cases is that where while there
9. (2001) 7 sec 161 : AIR 2001 SC 3234.
H 10. AIR 1997 SC 3629.
HEAD MASTER, LAWRENCE SCHOOL LOVEDALE 507
v. JAYANTHI RAGHU & ANR. [DIPAK MISRA, J.]
is a provision in the rules for initial probation and extension A
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 officer
concerned is deemed to have been confirmed upon
expiry of the maximum period of probation in case before B
its expiry 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 require a specific act on the part of the employer
by issuing an order of confirmation and of passing a test c
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 the
person concerned has passed the requisite test, he
cannot be deemed to have been confirmed merely 0
because the said period has expired."
(underlining is ours)
After so stating, it was further clarified ~s follows: -
E
"38. Ordinarily a deemed confirmation of a probationer
arises when the letter of appointment so stipulates or the
Rules governing service condition so indicate. In the
absence of such term in the letter of appointment or in the
relevant Rules, it can be inferred on the basis of the
relevant Rules by implication, as was the case in Dharam . F
Singh (supra). But it cannot be said that merely because
a maximum period of probation has been provided in
Service Rules, continuance of the probationer thereafter
would ipso facto must be held to be a deemed
confirmation which would certainly run contrary to Seven G
Judge Bench Judgment of this Court in the case of
Shamsher Singh (supra) and Constitution Bench
decisions in the cases of Sukhbans Singh (supra), G.S.
Ramaswamy (supra) and Akbar Ali Khan (supra)."
H
508 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 18. Regard being had to the aforesaid principles, the
present Rule has to be scanned and interpreted. The
submission of Mr. Viswanathan, learned senior counsel for the
appellant, is that the case at hand comes within the third
category of cases as enumerated in para-11 of Satya Narayan
B Jhaver (supra). That apart, it is urged, the concept of deemed
confirmation, ipso facto, would not get attracted as there is
neither any restriction nor any prohibition in'extending the period
of probation. On the contrary, the words "if confirmed" require
further action to be taken by the employer in the matter of
c confirmation.
19. On a perusal of Rule 4.9 of the Rules, it is absolutely
plain that there is no prohibition as was the rule position in
Dharam Singh (supra). Similarly, in Om Prakash Maurya
(supra), there was a restriction under the Regulations to extend
D · the period of probation. That apart, in the rules under
consideration, the said cases did not stipulate that something
else was requir~d to be done by the employer and, therefore,
it was held that the concept of deemed confirmation got
attracted.
E
20. Having so observed, we are only required to analyse
what the words "if confirmed" in their contextual use would
convey. The Division Bench of the High Court has associated
the said words with the entitlement of the age of superannuation.
F In our considered opinion, the interpretation placed by the High
Court is unacceptable. The words have to be understood in the
context they are used. Rule 4.9 has to be read as a whole to
understand the purport and what the Rule conveys and means.
In Reserve Bank of India v. Peerless General Finance and
G Investment Co. Ltd. and others 11 , it has been held as follows:-
"lnterpretation must depend on the text and the context.
They are the bases of interpretation. One may well say if
the text is the texture, context is what gives the colour.
H 11. (1987) 1 sec 424.
HEAD MASTER, LAWRENCE SCHOOL LOVEDALE 509
v. JAYANTHI RAGHU & ANR. [DIPAK MISRA, J.]
Neither can be ignored. Both are important. The A
interpretation is best which makes the textual interpretation
match the contextual. A statute is best interpreted when we
know why it was enacted. With this knowledge, the statute
must be read, first as a whole and then section by section,
clause by clause, phrase by phrase and word by word. If B
a statute is looked at, in the context of its enactment, with
the glasses of the statute-maker, provided by such context,
its scheme, the sections, clauses, phrases and words may
take colour and appear different than when the statute is
looked at without the glasses provided by the context. With c
these glasses we must look at the Act as a whole and
discover what each section, each clause, each phrase and
each word iscrneant and designed to say as to fit into the
scheme of the entire Act. No part of a statute and no word
of a statute can be construed in isolation. Statutes have
0
to be construed so that every word has a place and
everything is in its place."
Keeping the said principle in view, we are required to
appreciate what precisely the words "if confirmed" contextually
convey. Regard being had to the tenor of the Rules, the words E
"if confirmed", read in proper context, confer a status on the
appointee which consequently entitles him to continue on the
post till the age of 55 years, unless he is otherwise removed
from service as per the Rules.
F
21. It is worth noting that the use of the word "iF has its
own significance. In this regard, we may usefully refer to the
decision in S.N. Sharma v. Bipen Kumar Tiwari and others 12•
In the said case, a three-Judge Bench was interpreting the
words "if he thinks fit" as provided under Section 159 of the G
Code of Criminal Procedure, 1898. It related to the exercise
of power by the Magistrate. In that context, the Bench observed
thus: -
12. (1970) 1 sec 653. H
510 SUPREME COURT REPORTS [2012] 2 S.C.R.
A "The use of this expression makes it clear that Section 159
is primarily meant to give to the Magistrate the power of
directing an investigation in cases where the police decide
not to investigate the case under the proviso to Section
157(1 ), and it is in those cases that, if he thinks fit, he can
B choose the second alternative. If the expression "if he
thinks fit" had not been used, it might have been argued
that this section was intended to give in wide terms the
power to the Magistrate to adopt any of the two courses
of either directing an investigation, or of proceeding
c himself or deputing any Magistrate subordinate to him to
proceed to hold a preliminary enquiry as the
circumstances of the case may require.
Without the use of the expression "if he thinks fif, the
second alternative could have been held to be independent
D of the first; but the use of this expression, in our opinion,
makes it plain that the power conferred by the second
clause of this section is only an alternative to the power
given by the first clause and can, therefore, be exercised
only in those cases in which the first clause is applicable."
E
22. In State of Tamil Nadu v. Kodaikanal Motor Union (P)
13
Ltd. the Court, while interpreting the words "if the offence had
,
not been committed" as used in Section 10-A(1) of the Central
Sales Tax Act, 1956, expressed the view as follows: -
F "In our opinion the use of the expression 'if simpliciter, was
meant to indicate a condition, the condition being that at
the time of assessing the penalty, that situation should be
visualised wherein there was no scope of committing any
offence. Such a situation could arise only if the tax liability
G fell under sub-section (2) of Section 8 of the Act."
23. Bearing in mind the aforesaid conceptual meaning,
when the language employed under Rule 4.9 is scrutinised, it
H 13. (1986) sec 91.
HEAD MASTER, LAWRENCE SCHOOL LOVEDALE 511
· v. JAYANTHI RAGHU & ANR. [DIPAK MISRA, J.]
can safely be concluded that the entitlement to continue till the A
age of superannuation, i.e., 55 years, is not absolute. The power
and right to remove is not obliterated. The status of confirmation
has to be earned and conferred. 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 B
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 of probationary
period as that would defeat the basic purpose and intent of the
Rule which clearly postulates "if confirmed". A confirmation, as c
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. The Division Bench has clearly flawed by D
associating the words 'if confirmed' with the entitlement of the
age of superannuation without appreciating that the use of the
said words as a fundamental qualifier negatives deemed
confirmation. Thus, the irresistible conclusion is that the present
case would squarely fall in the last line of cases as has been
E
enumerated in paragraph 11 of Satya Narayan Jhaver (supra)
and, therefore, the principle of deemed confirmation is not
attracted.
24. In the result, the appeal is allowed and the judgment
and order passed by the High Court are set aside to the extent F
that the first respondent had acquired the status of confirmed
employee and, therefore, holding of enquiry is imperative. As
far as the conclusion recorded by the Division Bench that no
· stigma was cast on the respondent is concerned, the same
having gone unchallenged, the order in that regard is not G
disturbed. The parties shall bear their respective costs.
R.P. Appeal allowed.
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