Head Master, Lawrence
School Lovedale Vs. Jayanthi Raghu & ANR.
[CIVIL APPEAL No.
2012 (Arising out of SLP (c) No. 21400 of 2008]
J U D G M E N T
Dipak Misra, J
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.
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.
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.
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."
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
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
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.
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
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."
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.
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.
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 17113 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."
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
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.
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 1210the 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.
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 831the 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.
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)
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 18441975. 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.
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.
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 323410 AIR 1997 SC 3269decisions 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)."
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.
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.
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
In Reserve Bank of India
v. Peerless General Finance and Investment Co. Ltd. and others, 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.
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 653related 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."
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."
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 91be 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.
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.