TaxTMI 
TaxTMI 
2019 (8) TMI 1850
X X X X Extracts X X X X
X X X X Extracts X X X X
....eemed confirmation of the services of a probationer who is continued in service beyond the maximum period of probation, even without the issuance of an order of confirmation by the appointing authority. Aggrieved, the appellant school and the Andhra Education Society[2] 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 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 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 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 appeal (Appeal No. 54/2013) before the Delhi School Tribunal[3] challenging her discharge with a prayer for reinstatement with consequential benefits and back ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r"), to which we shall advert in the course of the judgment. 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 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 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 Director[4] for extending the period of probation by "another year". This 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 of p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f probation if the work and conduct of the employee, during the said period, is not, in the opinion of the appointing authority, satisfactory: [Provided that the provisions of this sub-rule relating to the prior approval of the Director in regard to the extension of the period of probation by another year shall not apply in the case of an employee of a minority school: ...] (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." 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 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al of the Director" shall be inserted; (b) for the proviso to sub-rule (1), the following proviso shall be substituted, namely:- "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: 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: (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 (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 probation "by another year". The amending history of the 1973 Rules shows that the words "by another year" appearing in the principal part of Rule....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 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 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 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." 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. 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 R....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onary of the English Language, the word "another" implies "one more".[10] 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."[11] 22 The consistent meaning imparted to the word "another" is a single addition or one more. The ordinary and literal construction of the 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 "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 which they best harmonise with the subject of the ena....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... which we have adopted accords with a consistent line of precedent of this Court. It is a settled position of law that where 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 words. 27 Justice G P Singh, in his seminal book Principles of Statutory Interpretation[12], states thus: "The words of a statute are first understood in their natural, ordinary 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,[13] states thus: "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 wor....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... subserves the purpose of the enactment and does not defeat it and that no part thereof is rendered surplus or otiose." (Emphasis supplied) In State of HP v Pawan Kumar, (2005) 4 SCC 550 it was contended that the safeguards provided in Section 50[14] 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 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 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1 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. In Tahsildar Singh v The State Of Uttar Pradesh, 1959 Supp (2) SCR 875 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)[15] provided that where the statement of a person to a police officer during investigation 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 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 r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fair construction, the principal provision is clear, a proviso 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 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, (1985) 1 SCC 591 JK Industries Ltd. v Chief Inspector of Factories and Boilers, (1996) 6 SCC 665 and Holani Auto Links (P) Ltd. v State of MP. (2008) 13 SCC 185 33 In the view that we have taken, 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. The proviso merely exempts the appointing authority of minority institutions from seeking the prior approval of the Directo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Police (1964) 6 SCR 279, a Constitution Bench of this Court considered the promotions of Sub-Inspectors of Police under Rule 486 of the Hyderabad District Police 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: "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 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 cases; eve....
X X X X Extracts X X X X
X X X X Extracts X X X X
....robation." (Emphasis supplied) This view is also affirmed by the judgments of this Court in Municipal Corporation, Raipur v Ashok Kumar Misra, (1991) 3 SCC 325 Jai Kishan v Commissioner of Police, 1995 Supp (3) SCC 364 State of Punjab v Baldev Singh Khosla (1996) 9 SCC 190 and Chief GM, State Bank of India v Bijoy Kumar Mishra. (1996) 9 SCC 190 37 Recently, in Head Master, Lawrence School, Lovedale v Jayanthi Raghu, (2012) 4 SCC 793 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: "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 of probationary period as that would defeat the basic purpose and intent of the Rule which clearly postulate....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 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 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 probationary period, the first respondent is deemed to be confirmed in service. In Dharam Singh this Court interpreted Rule 6 [16] 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 relief to the claimants as their services were continued beyond three 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 upo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e rules prescribe a maximum period of probation and the probationer is continued beyond 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 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 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 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of 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 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 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 November, 2011, the period of probation was extended by an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ovision 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 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 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 [1] 1973 Rules [2] Education society [3] Tribunal [4] As defined under the Delhi Education Act 1973 [5] Delhi Gazette - PT 2 - Jan - Dec 1973 at p. 685 [6] No. F. 5/15/72-Edn./573. in Delhi Gazette (Extraordinary - Part - IV) - Jan-Dec 1985 at p. 2 [7] Amendment Rules 1990 [8] DSE (A) R, 1990; No. 1339/Act. in Delhi Gazette - Jan-Dec 1990 at p. 60 [9] Webster's Third New International Dictionary (1976), p. 89 [10] Collins Dictionary of the English Language (1983), p. 58 [....