TaxTMI 
TaxTMI 
2019 (8) TMI 1850
X X X X Extracts X X X X
X X X X Extracts X X X X
....rs. 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 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 reinst....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of MP v Satya Narayan Jhavar(2001) 7 SCC 161 ("Satya Narayan Jhavar"), 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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: [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 no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....3 Rules. Clause 24 Reads thus: "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:- "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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h cases there is no bar against termination at any point of time after expiry of the period of probation. 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 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 enum....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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." Webster's Dictionary defines the word "another" as "an additional one of the same kind: one more".[9] According to Collins Dictionary 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 substitutin....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 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 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t".... 16. It is a settled rule of interpretation of statutes that if the 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 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) 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 acc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dopted of the words "by another year" in the principal provision of Rule 105(1) 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. 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. 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.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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." In Dwarka Prasad v Dwarka Das Saraf, 1976 SCR (1) 277 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 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 Inspec....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 confirmation by the appointing authority that probationer is granted substantive appointment in the post. 36 In GS Ramaswamy v Inspector General of 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....essarily 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 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) 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... with the letter of 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 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 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 deem....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 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) stipulates the satisfaction of the appointing authority as a condition 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 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the interests of the appointing authority in extending the period of probation to ensure the quality of education and the interests of probationers in their services not being extended on probation ad nauseum. 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 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt 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 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 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 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. ....