[2012] 2 S.C.R. 492

HEAD MASTER, LAWRENCE SCHOOL LOVEDALE v.

JAYANTHI RAGHU & ANR. (Civil Appeal No. 2868 of 2012)

MARCH 16, 2012.

[DALVEER BHANDARI AND DIPAK MISRA, JJ.]

SeNice Law: c Deemed confirmation - Appointment letter stipulating that the appointee would be on probation for a period of two years which could be extended for another one year - After the employee competed three years of service, her services terminated without holding an inquiry - Held: The status of

0 confirmation has to be earned and conferred - 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 E 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 considered opinion of the Court, an order of confirmation is required to be passed - The order of High Court is set aside to the extent F that the employee had acquired the status of confirmed employee and, therefore, holding of enquiry was imperative - Lawrence School Loved ale (Nilgiris) Rules - r. 4. 9.

Words and Phrases:

Expression "if confirmed" as occurring in r.4. 9 of Lawrence School Lovedale {Nilgiris) Rules - Connotation of

- Explained.

HEAD MASTER, LAWRENCE SCHOOL LOVEDALE 493

v. JAYANTHI RAGHU & ANR.

Respondent no. 1 was appointed as a teacher in the A appellant School with effect from 1.9.1993 under an appointment letter stipulating that she would be on probation for a period of two years which could be extended for another one year. In November 1995, she was stated to have received some unauthorised amount.

B After recording the proceeding, by order dated 18.6.1997, the services of respondent no. 1 were terminated. The order was challenged in a writ petition and the Single Judge of the High Court set it aside holding that the same was stigmatic in nature and could not have been passed c without an inquiry. In the writ appeal filed by the school, though the Division Bench of the High Court observed that the proceeding did not cast any stigma, it ultimately held that in the absence of any provision for extension of probation beyond a period of three years, the services 0 of the teacher would be treated as confirmed after 1.9.1996.

In the instant appeal filed by the School, the question for consideration before the Court was: "Whether the appellant-school was justified under the Rules treating E the respondent-teacher as a probationer and not treating .her as a deemed confirmed employee ?"

Allowing the appeal, the Court

HELD: 1.1 On a plain reading of the letter of appointment, it is apparent that respondent no. 1 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 G 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 r. 4.9 of the Lawrence School Lovedale (Nilgiris) Rules H

A assumes immense signification. This Court is only '

required to construe the word 'if confirmed' in their contextual use in r.4.9. The Division Bench of the High Court has associated the words with the entitlement of the age of superannuation. In the considered opinion of B this Court, the interpretati<?ll placed by the High Court is unacceptable. The words hlive 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. Regard being, had to the tenor of the Rules, C 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.

D [para 8 and 20) [500-E-F; 508-F-G; 509-E-F]

The High Court of Madhya Pradesh through Registrar and Others v. Satya Narayan Jhaver 2001 (1) Suppl. SCR 532= 2001 AIR 3234 = 2001 (7) SCC 161 - relied on

Sukhbans Singh v. State of Punjab 1963 SCR 416= 1962 E AIR 1711; G.S. Ramaswamy and Ors. v. Inspector-General of Police, Mysore 1964 SCR 279=1966 AIR 175; State of Uttar Pradesh v. Akbar Ali Khan 1966 AIR 1842; State of Punjab v. Dharam Singh 1968 SCR 1=1968 AIR 1210; Samsher Singh v. State of Punjab and another 1975 (1) SCR F 814 = 1974 (2) SCC 831; Om Prakash Maurya v. U.P. Cooperative Sugar Factories Federation, Lucknow and others 1986 SCR 78=1986 AIR 1844; Municipal Corporation, Raipur

v. Ashok Kumar Misra 1991 (2) SCR 320=1991 AIR 1402; and Dayaram Dayal v. State of M.P. AIR 1997 SC 3269 - G referred to.

Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and others 1987 (2) SCR 1 = 1987 (1) SCC 424; S.N. Sharma v. Bipen\Kpmar Tiwari and others H 1970 (3) SCR 946 = 1970 (1) SCC 653; and State of Tamil

HEAD MASTER, LAWRENCE SCHOOL LOVEDALE 495

v. JAYANTHI RAGHU & ANR.

Nadu v. Kodaikanal Motor Union (P) Ltd. 1986 (2) SCR 927 A . = 1986 ( 3 ) sec 91 - referred to.

1.2 When the language employed under r. 4.9 is scrutinised, it can safely be concluded that the entitlement to continue till the age of superannuation, i.e., B 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, r.4.9 would have been couched in a different language. That c 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 o postulates "if confirmed". [para 23] (510-G-H; 511-A-C]

1.3 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.

E In the considered opinion of the Court, 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 F 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 and, therefore, the principle of deemed G confirmation is not attracted. [para 23] [511-C-E]

1.4 The order of the High Court is set aside to the extent that respondent no. 1 had acquired the status of H

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. (para 24] (511-F-G]

Case Law Reference:

2001 (1) Suppl. SCR 532 relied on para 5 and 17

1963 SCR 416 referred to para 10

1964 SCR 279 referred to para 11

1966 AIR 1842 referred to para 12

1968 SCR 1 referred to para 13

1975 (1) SCR 814 referred to para 14

1986 SCR 78 referred to para 15

1991 (2) SCR 320 referred to para 16

1987 (2) SCR 1 referred to para 17

1987 (2) SCR 1 referred to para 20

1970 (3) SCR 946 referred to para 21

1986 ( 2) SCR 927 referred to para 22

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2868 of 2012.

From the Judgment & Order dated 26.03.2008 of the High Court of Judicature at Madras in W.A. No. 4157 of 2004.

K. V. Vishwanathan, Rohini Musa, Binu Tamta for the Appellant.

v. JAYANTHI RAGHU & ANR.

Shweta Bharti, Amit Pawan, Nidhi Chaudhary, Vikash A Verma, Neha Kapoor, Kenanda for the Respondents.

/ The Judgment of the Court was delivered by

DIPAK MISRA, J. 1. 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 c 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 D 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 E 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 F 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 G 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

8 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 C 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 D and hence, it was opligatory 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 , E High Court of Madhya Pradesh through Registrar and Others ·

v. Satya Narayan Jhaver1 and came .to hold as follows:-

"ln 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., 1.9.1996. 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

H 1.

(2001) 7 sec 161 : AIR 2001 SC 3234.

HEAD MASTER, LAWRENCE SCHOOL LOVEDALE 499

v. JAYANTHI RAGHU & ANR. [DIPAK MISRA, J.]

1.9.1996. Mr. K. R. Vijayakumar, learned counsel for the A 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 B 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 c 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 D 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 E 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 F has clearly faulted in its appreciation of the law laid down in Satya Narayan Jhaver(supra) inasmuch as the case of the first respondEmt squarely falls in the category where a specific act on the part of th.e 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 H

A 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 unwarrantf3d because its placement B 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 c 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

0 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 E 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 F 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 ip these Rules. Every appointment shall be subject to the conditions that the appointee is certified

v. JAYANTHI RAGHU & ANR. [DIPAK MISRA, J.]

as medically fit for seNice by a Medical Officer nominated A 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 B 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 C 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 D age limit for the entire seNice. 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 E 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 F seNice, 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, Mysore, another Constitution Bench3, while dealing with the language employed under Rule 486 of the Hyderabad G District Police Manual, referred to the decision in Sukhbans Singh (supra) and opined as follows: -

. 2.

AIR 1962 SC 1711

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 G 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

H 4.

AIR 1966 SC 1842.

v. JAYANTHI RAGHU & ANR. [DIPAK MISRA, J.]

the period of probation, an appointee is allowed to continue in A 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 B probation.

13. In State of Punjab v. Dharam Singh, the Constitution Bench5, after scanning the anatomy of the Rules in question, addressed itself to the precise effect of Rule 6 of the Punjab C Educational Service (Provincialised Cadre) Class Ill 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 D 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 E 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 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 F 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 G 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.

AIR 1968 SC 1210.

14. In Samsher Singh v. State of Punjab and another8, 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 B the said case, the law laid down by the Constitution Bench in 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 c 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

0 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: -

E "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 F 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."

G After so stating, the Bench referred to Rule 7(1) and came to hold as follows: -

'I " .................. the explanation to rule 7(1) shows that the period of probation shall be deemed to have been

H 6.

(1974)2SCC831.

HEAD MASTER. LAWRENCE SCHOOL LOVEDALE 505

v. JAYANTHI RAGHU & ANR. [DIPAK MISRA, J.]

extended impliedly if a Subordinate Judge is not confirmed A 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 B 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 c 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 C Bench was dealing with the case of confirmation under the U.P.

Cooperative Societies Employees Service Regulations, 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 E 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 G extend the probation beyond the prescribed period, or where the rules are absent about confirmation or passing of the

AIR 1986 SC 1844.

AIR 1991 SC 1402.

A prescribed test for 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 B. 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, C 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 D years peri6d of probation. After referring to the 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

(2001) 7 sec 161 : AIR 2001 SC 3234.

10. AIR 1997 SC 3629.

v. JAYANTHI RAGHU & ANR. [DIPAK MISRA, J.]

is a provision in the rules for initial probation and extension A 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 B 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 c 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 0 because the said period has expired."

(underlining is ours)

After so stating, it was further clarified s follows: - E "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 . F 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 G 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 B 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 c 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 D the period of probation. That apart, in the rules under consideration, the said cases did not stipulate that something else was requird 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.

F 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 G Investment Co. Ltd. and others11, it has been held as follows:-

"lnterpretation 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.

11. (1987) 1 sec 424.

v. JAYANTHI RAGHU & ANR. [DIPAK MISRA, J.]

Neither can be ignored. Both are important. The A 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 B 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 c these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word iscrneant 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 0 to be 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 E "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 G Code of Criminal Procedure, 1898. It related to the exercise of power by the Magistrate. In that context, the Bench observed thus: -

12. (1970) 1 sec 653.

"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 fif, 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

13. (1986) sec 91.

 v. JAYANTHI RAGHU & ANR. [DIPAK MISRA, J.]

can safely be concluded that the entitlement to continue till the A 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 be placed on the Rule B

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 c 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 D 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 F 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 G disturbed. The parties shall bear their respective costs.

R.P.

Appeal allowed.