IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 2012
(Arising out of SLP (c) No. 21400 of 2008)
Head Master, Lawrence School
Lovedale ..... Appellant
Versus
Jayanthi Raghu & Anr. ... Respondents
J U D G M E N T
Dipak Misra, J
Leave granted.
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
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 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
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
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 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.
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 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 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 and hence, it was obligatory
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
High Court of Madhya Pradesh through Registrar and
Others v. Satya Narayan Jhaver1 and came to hold as
follows:-
"In 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 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
(2001) 7 SCC 161 : AIR 2001 SC 3234
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 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
1.9.1996. Mr. K. R. Vijayakumar, learned
counsel for the 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 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
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 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 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 has clearly faulted in its appreciation of the law laid
down in Satya Narayan Jhaver (supra) inasmuch as the
case of the first respondent squarely falls in the category
where a specific act on the part of the employer is an
imperative requisite.
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 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 unwarranted because its placement
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 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.
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 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
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 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
in these Rules. Every appointment shall be
subject to the conditions that the appointee is
certified as medically fit for service by a
Medical Officer nominated 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
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 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 age limit for
the entire service. 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
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 Punjab2, 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 service, 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, Mysore3, another Constitution Bench, while dealing
with -
the language employed under Rule 486 of the Hyderabad
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
"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 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;
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 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
will be confirmed at the end of their
probationary period", it is qualified by the
words "if they have given satisfaction". Clearly
therefore the rule does not contemplate
automatic confirmation after the probationary
period of two years, for a promoted officer can
only be confirmed under this rule if he has
given satisfaction."
-
12. In State of Uttar Pradesh v. Akbar Ali Khan4, another
Constitution Bench ruled that if the order of appointment
itself states that at the end of the period of probation, in the
absence 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 the period of probation, an appointee is allowed to
continue in 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 probation.
4
AIR 1966 SC 1842
13. In State of Punjab v. Dharam Singh5, the Constitution
Bench, after scanning the anatomy of the Rules in question,
addressed itself to the precise effect of Rule 6 of the Punjab
Educational Service (Provincialised Cadre) Class III 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
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 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
5
AIR 1968 SC 1210
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 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 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.
14. In Samsher Singh v. State of Punjab and another6,
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
the said case, the law laid down by the Constitution Bench in
6
(1974) 2 SCC 831
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
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 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: -
"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 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."
After so stating, the Bench referred to Rule 7(1) and came to
hold as follows: -
"..................the explanation to rule 7(1) shows that the period
of probation shall be deemed to have been extended impliedly
if a Subordinate Judge is not confirmed 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 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 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 others7, a two-Judge
Bench was dealing with the case of confirmation under the
U.P. Cooperative Societies Employees Service Regulations,
7
AIR 1986 SC 1844
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 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.
16. In Municipal Corporation, Raipur v. Ashok Kumar
Misra8, 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 extend the probation beyond the prescribed period, or
where the rules are absent about confirmation or passing of
the prescribed test for -
8
AIR 1991 SC 1402
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
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, 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 years period of probation. After referring to the
9
(2001) 7 SCC 161 : AIR 2001 SC 3234
10
AIR 1997 SC 3269
decisions in Dharam Singh (supra), Sukhbans Singh (supra)
and Shamsher Singh (supra) and other authorities, the three-
Judge Bench expressed thus:-
-
"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 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 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 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 officer
concerned is deemed to have been confirmed upon expiry of
the maximum period of probation in case before 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 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 because the said
period has expired."
(underlining is ours)
After so stating, it was further clarified as follows: -
-
"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 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 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)."
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 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
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 the period of probation. That apart, in the rules under
consideration, the said cases did not stipulate that something
else was required to be done by the employer and, therefore, it
was held that the concept of deemed confirmation got
attracted.
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. 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 Investment Co. Ltd. and others11, it has been
held as follows: -
"Interpretation 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. Neither can
be ignored. Both are important. The
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 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 these glasses we must look at
the Act as a whole and discover what each
section, each clause, each phrase and each
word is meant 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 to be
11
(1987) 1 SCC 424
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
"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.
-
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
others12. In the said case, a three-Judge Bench was
interpreting the words "if he thinks fit" as provided under
Section 159 of the Code of Criminal Procedure, 1898. It
12
(1970) 1 SCC 653
related to the exercise of power by the Magistrate. In that
context, the Bench observed thus: -
"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 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 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 fit", the second alternative could have
been held to be independent 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."
-
22. In State of Tamil Nadu v. Kodaikanal Motor Union (P)
Ltd.13, 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: -
"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 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 can
safely be concluded that the entitlement to continue till the
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 not so, the wider interpretation cannot
13
(1986) 3 SCC 91
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 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
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 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 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 disturbed. The
parties shall bear their respective costs.
==
......................................J.
[Dalveer Bhandari]
......................................J.
[Dipak Misra]
New Delhi;
March 16, 2012.
