LPA 342/2010 Page 1 of 19 * HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on : 13th August, 2010 % Judgment Pronounced on: 16th August, 2010 + LPA 342/2010 DY. DIRECTOR OF EDUCATION & ANR. ..... Appellants Through: Mr. A.K. Bhardwaj, Adv. versus VEENA SHARMA ..... Respondent Through: Mr. M.Y. Khan, Advocate CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ Questioning the defensibility of the order dated 25th March, 2010 passed by the learned Single Judge in WP(C) No. 10274/2009, the present appeal has been preferred under Clause 10 of the Letters Patent. 2. The factual expose’ lies in a narrow compass. The respondent-petitioner was appointed as Upper Division Clerk on 17.12.2007 by the Air Force Children Education Society, the respondent No.2 herein. While she was on probation, an order dated 19.3.2009 came to be passed dispensing with her services as the same were no longer required by the society. Being dissatisfied with the said order, the respondent invoked the jurisdiction of this Court under Article 226 of the Constitution of India for issuance of a writ of certiorari for LPA 342/2010 Page 2 of 19 quashment of the order dated 19.3.2009 and further for issuance of a writ of mandamus to command the respondents to take her back on duty and extend the continuity of service along with other benefits. 3. It was contended before the learned Single Judge that the impugned order was passed without following the due procedure of law inasmuch as the respondent was a confirmed employee since she had completed the period of probation and the society had no authority to extend the period of probation. In essence, the proponement was that she was deemed to have been a confirmed employee. That apart, it was urged that the services were not dispensed with as per the terms stipulated in the letter of appointment. 4. The appellants, who were the respondents in the writ court, resisted the aforesaid stand of the respondent-writ petitioner contending, inter alia, that she was a probationer and the scanning of the provisions and the letter of appointment would not ensue or entail in deemed confirmation. 5. The learned Single Judge adverted to the submissions raised at the bar and came to hold that the respondent was a confirmed employee and, therefore, her services could not have been dispensed with in violation of the principles of natural justice and further the condition postulated in the letter of appointment was not satisfied. Being of this view, he directed the present appellants, the respondents in the writ petition, to reinstate her with benefit of continuity of service and full back wages. 6. Mr. A.K. Bhardwaj, learned counsel appearing for the appellants, has raised the following contentions: LPA 342/2010 Page 3 of 19 (a) The learned Single Judge has fallen into error by expressing the opinion that the respondent was a confirmed employee on the basis of the letter of appointment though there is nothing in the said letter which would justifiably lead to such a conclusion. (b) The finding recorded by the learned Single Judge that there has been violation of the principles of natural justice is totally unsustainable inasmuch as the respondent was only a probationer and her services could be terminated during the probation. (c) To confer the benefit of confirmation, an affirmative act was required to be done by the employer and when the same had not taken place by issuing a letter of confirmation on the basis of suitability and satisfactory performance, she could not have been treated to be a confirmed employee. (d) The learned Single Judge has flawed by holding that even during probation her services could only be terminated after issuing one month notice or by making payment of a sum equivalent to the pay and allowance for the period of notice, for the same cannot be treated as a condition precedent. 7. Mr. M.Y. Khan, learned counsel for the respondent, combating the aforesaid submissions, has propounded as follows: (i) The conclusion arrived at by the learned Single Judge as regards the status of the respondent as a confirmed employee is absolutely warrantable and well-founded if the letter of appointment is read in juxtaposition with Section 8 of the Delhi School Education Act, LPA 342/2010 Page 4 of 19 1973 (for short ‘the Act’) and Rule 105 of the Delhi School Education Rules, 1973 (for brevity ‘the Rules’). (ii) The provisions under the aforesaid Act and the Rules are to be construed in favour of the employee regard being had to the fact that the said Act and the Rules have been brought into existence for the benefit of the employees and the beneficent nature of the legislation and the Rules framed thereunder should not be fossilized by placing a narrow interpretation. (iii) It was incumbent on the part of the employer society to comply with the condition stipulated in the letter of appointment itself and the same having not been satisfied, the order passed by the learned Single Judge is invulnerable and withstands scrutiny. 8. To appreciate the submissions raised at the bar, it is apposite to refer to Section 8 which occurs in Chapter IV of the Act. The said provision deals with the terms and conditions of service of employees of recognized private schools. It reads as follows: “8. Terms and conditions of service of employees of recognised private schools- (1) The Administrator may make rules regulating the minimum qualifications for recruitment, and the conditions of service, of employees of recognized private schools: Provided that neither the salary nor the rights in respect of leave of absence, age of retirement and pension of an employee in the employment of an existing school at the commencement of this Act shall be varied to the disadvantage of such employee: Provided further that every such employee shall be entitled to opt for terms and conditions of service as they were applicable to him immediately before the commencement of this Act. LPA 342/2010 Page 5 of 19 (2) Subject to any rule that may be made in this behalf, no employee of a recognised private school shall be dismissed, removed or reduced in rank nor shall his service be otherwise terminated except with the prior approval of the Director. (3) Any employee of a recognised private school who is dismissed, removed or reduced in rank may, within three months from the date of communication to him of the order of such dismissal, removal or reduction in rank, appeal against such order to the Tribunal constituted under section 11. (4) Where the managing committee of a recognised private school intends to suspend any of its employees, such intention shall be communicated to the Director and no such-suspension a shall be made, except with the prior approval of the Director: Provided that the managing committee may suspend an employee with immediate effect and without the prior approval of the Director if it is satisfied that such immediate suspension is necessary by reason of the gross misconduct within the meaning of the Code of Conduct prescribed under section 9, of the employee: Provided further that no such immediate suspension shall remain in force for more than a period of fifteen days from the date of suspension unless it has been communicated to the Director and approved by him before the expiry of the said period. (5) Where the intention to suspend, or the immediate suspension of an employee is communicated to the Director, he may, if he is satisfied that there are adequate and reasonable grounds for such suspension, accord his approval to such suspension.” 9. Rule 105 of the Rules which deals with probation is as follows: “105. Probation – (1) Every employee shall, on initial appointment, be on probation for a period of one year which may be extended by the appointing 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: LPA 342/2010 Page 6 of 19 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: 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. (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. (3) Nothing in this rule shall apply to an employee who has been appointed to fill a temporary vacancy or any vacancy for a limited period.” [Emphasis supplied] 10. Clause 3 of the letter of appointment reads as under: “3. The above appointment for UDC is on the first instance, be on probation for 01 year. Afterwards a confirmation letter will be issued to you, subject to suitability and satisfactory services rendered by you. Your services can be terminated by giving one month’s notice on either side without any reasons being assigned. However, the appointing authority reserves the right to terminate your service before the expiry of the stipulated period of notice by making payment of a sum equivalent to the pay and allowance for the period of notice or the un-expired portion thereof.” 11. The issue that emerges for consideration is whether on the basis of the provisions of the Act and the Rules and the letter of appointment, it can be construed that the respondent had become a confirmed employee under a deemed concept after the expiry of the period of probation. Mr. Bhardwaj, learned counsel for the appellants, has commanded us to the decision in State of Punjab v. Dharam Singh, AIR 1968 SC 1210. Mr. Khan, learned counsel for the respondent, submitted that it will depend on the scheme of the Act and LPA 342/2010 Page 7 of 19 the Rules and the facts and circumstances in each case and, hence, the said decision is distinguishable. The learned counsel placed heavy reliance on Wasim Beg v. State of Uttar Pradesh & Ors., 1998 (78) F.L.R. 910. In Dharam Singh (supra), the Apex Court was considering Rule 6 of the Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961. In the said case, the Rule stipulated that the total period of probation including extensions, if any, shall not exceed three years. Their Lordships 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 necessary to give the employee a substantive right to the post and from the mere fact that he is allowed to continue in the post after the expiry of the specified period of probation, it is not possible to hold that he should be deemed to have been confirmed. After referring to the earlier view in Sukhbans Singh v. State of Punjab, AIR 1962 SC 1711, G.S. Ramaswamy & Ors. v. Inspector-General of Police, Mysore, AIR 1966 SC 175 and State of Uttar Pradesh v. Akbar Ali Khan, AIR 1966 SC 1842, the Apex Court interpreted Rule 6(3) of the Rules which arose for interpretation therein and expressed the view that 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 LPA 342/2010 Page 8 of 19 without an express order of confirmation, cannot be deemed to continue in that post as a probationer by implication. It is so as such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. 12. In this context, we may refer with profit to a three-Judge Bench decision in High Court of Madhya Pradesh through Registrar and Others v. Satya Narayan Jhavar, AIR 2001 SC 3234 = (2001) 7 SCC 161. In the said case, the Apex Court was considering the effect and impact of Rule 24 of the Madhya Pradesh Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955. Be it noted, their Lordships were considering the correctness of the decision in Dayaram Dayal v. State of M.P. & Another, AIR 1997 SC 3269, which was also a case under Rule 24 of the Rules wherein it was laid down that as no order of confirmation was passed within the maximum period of probation, the probationer judicial officer could be deemed to have been confirmed after the expiry of four years period of probation. Their Lordships, after referring to the decisions rendered by the Constitution Bench in Dharam Singh (supra) and Samsher Singh v. State of Punjab & Another, AIR 1974 SC 2192 = (1974) 2 SCC 831 and after scanning the anatomy of Rule 24, came to hold as follows: “11. The question of deemed confirmation in service Jurisprudence, which is dependent upon the language of the relevant service rules, has been the 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 in 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 LPA 342/2010 Page 9 of 19 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. 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.” 13. After so holding, their Lordships referred to the decision in Sukhbans Singh v. State of Punjab (supra) wherein the Constitution Bench was considering the question of confirmation under Rule 22 of the Punjab Civil Service (Executive Branch) Rules, 1930 which provided that a candidate on first appointment to the service shall remain on probation for a period of 18 months and the proviso thereto enabled the respondents not to extend the period of probation. Rule 24 of the said Rules provided that on completion of the period of probation prescribed or extended, a member of the service would be qualified for substantive appointment. The three-Judge Bench observed that the fact that a person is a probationer implies that he has to prove his worth and suitability for the higher post in which he is officiating and if his work is not found to be satisfactory, he is liable to be reverted to his original post even without assigning any reason. LPA 342/2010 Page 10 of 19 14. Thereafter, their Lordships referred to the decision in G.S. Ramaswamy & Ors. (supra), another Constitution Bench decision which was considering a case of promotion of Sub-Inspector of Police under Rule 486 of the Hyderabad District Police Manual which provided that all officers who are promoted will be on probation for a period of two years and they would be reverted at any time during the aforesaid period if their work and conduct were not found to be satisfactory or they were found unsuitable for the appointment to which they had been promoted. The three-Judge Bench while discussing the ratio of the Constitution Bench came to hold that the Constitution Bench had repelled the contention and held that such a Rule does not contemplate automatic confirmation after the probationary period of two years, as a promoted officer can be confirmed under the Rules only if he has given satisfaction, which conduct of giving satisfaction must be fulfilled before a promoted officer can be confirmed under the Rules and the same obviously means that the authority competent to confirm an officer must pass an order to the effect that the probationer has given satisfaction. 15. After dealing with the ratio of the aforesaid two Constitution Benches, their Lordships proceeded to deal with the view expressed in Akbar Ali Khan (supra) wherein the Constitution Bench has held thus: “The law on the point is now well settled. Where a person is appointed as a probationer in any post and a period of probation is specified, it does not follow that at the end of the said specified period of probation he obtains confirmation automatically even if no order is passed in that behalf. Unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of the specified period, or there is a specific service rule to that effect, the expiration of the probationary period does not necessarily lead to confirmation. At the end of the LPA 342/2010 Page 11 of 19 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. The position of the appellant, therefore, till the abolition of the post on 4.11.1958, was that he continued to be a probationer and has no right to the post. It, therefore, follows that when the tenure of the post came to an end, he was automatically reverted to his original post as an Inspector on which he had the lien." 16. At this juncture, we may state with profit that in Satya Narayan Jhavar (supra), their Lordships distinguished the decision in Dharam Singh (supra). After noting Rule 6(3) of the relevant Rules and reproducing a passage from the decision, their Lordships opined thus: “19. From the aforesaid passage, it would be clear that as Rule 6 did not require a person to pass any test or to fulfill any other condition before confirmation, this Court was of the view that upon the expiry of maximum period of probation the probationer could be deemed to have been confirmed which goes to show that if such provision would have been there in the Rules, the conclusion might have been otherwise.” 17. Be it noted, the decision rendered in Wasim Beg (supra) was pressed into service which has also been heavily relied upon by Mr. Khan in the case at hand. While dealing with the ratio in the said case, their Lordships referred to the relevant Rule relating to confirmation, which is as follows: “Confirmation - An employee directly appointed or promoted to any post in the Corporation shall be deemed to have become a confirmed employee in that grade after he has successfully completed the period of probation.” LPA 342/2010 Page 12 of 19 18. After referring to the said Rule, their Lordships referred to the facts and eventually came to hold as follows: “21. In the said case no maximum period of probation was prescribed either by the letter of appointment or the rules. The Rules laid down that an employee shall be deemed to have become a confirmed employee after he has successfully completed the period of probation. From the affidavit filed by the Corporation as well as from the report of the Managing Director, it was clear that the incumbent was considered by the Board as having satisfactorily completed his period of probation on 9.1.1979 i.e. before expiry of one year period of probation and was considered as a regular employee from 10.1.1979. From the affidavit filed by the Corporation it was clear that the services of the incumbent were satisfactory for the first few years and work was very good and only thereafter his work deteriorated as a result of which the Corporation suffered losses. Thus in view of the stand taken that the incumbent had successfully completed the period of probation, he was deemed to have become a confirmed employee, as enumerated in the Rules referred to above.” 19. After distinguishing the said case, the three-Judge Bench referred to Samsher Singh (supra), 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 General Manager, State Bank of India v. Bijoy Kumar Mishra, (1997) 7 SCC 550 and expressed the view as follows: “37. Ordinarily a deemed confirmation of a probationer arises when the letter of appointment so stipulates or the Rules governing service conditions 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 the Service Rules, continuance of the probationer thereafter would ipso facto must be held to be a deemed confirmation LPA 342/2010 Page 13 of 19 which would certainly run contrary to the seven-Judge Bench judgment of this Court in the case of Shamsher Singh (supra) and the Constitution Bench decisions in the cases of Sukhbans Singh (supra), G.S. Ramaswamy (supra) and Akbar Ali Khan (supra). 20. In this context, it is apposite to refer to Commissioner of Police, Hubli & Another v. R.S. More, AIR 2003 SC 983 wherein the Apex Court was addressing itself to the question whether the continuance of the probationer on the post beyond the probation period or extended period, as the case may be, entitled him to have any claim to deemed confirmation in the absence of any specific order passed by the competent authority to that effect. Their Lordships referred to the decision in Satya Narayan Jhavar (supra) and held as follows: “8. In our view, the case at hand falls under category 3.