Document Fragment View

Matching Fragments

2. This issue of whether the period of probation can only be a maximum period of two years i.e one year with extension of one year, and that whether after two years, there is an automatic confirmation of an employee is indeed a vexed question so far as the Delhi School Education Act and Rules, 1973 are concerned. There is no judgment either of a learned Single Judge of this Court or a Division Bench of this Court or of the Supreme Court interpreting Rule 105. There is no interpretation of Rule 105 in the sense as to whether the period of probation can only be of two years or if it statutorily is stated to be two years, can it not be extended beyond two years inasmuch as the language does not provide for deemed confirmation or automatic confirmation. Let me therefore at the outset reproduce the relevant Rule 105, of the Delhi School Education Act and Rules, 1973, and which reads as under:-

(vi) Neither the main Sub-Rule 1 and nor the first proviso to Sub-Rule 1 in any manner specifically and categorically not only does not provide for a maximum period of probation but they also do not provide for deemed or automatic confirmation.

4. Once a relevant rule or provision of law does not provide for any specific period, then, the issue which arises is that can a teacher be continued indefinitely and interminably by simply extending the probation period and which can be the case of a school either on the basis of the aforesaid Rule 105 or on the basis of an appointment letter which does not provide for a maximum period of probation. Before I refer to the relevant observations of the Supreme Court as to what should be taken as the maximum period of probation when the statute does not provide for any specific period, at this stage, it will be relevant to refer to the terms of appointment of the respondent no.2. These terms of appointment of respondent no.2 are as under:-

37. Bearing 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.

38. Had the rule making authority intended that there would be automatic confirmation, Rule 4.9 would have been couched in a different language. That being not so, the wider interpretation cannot be placed on the Rule to infer that the probationer gets the status of a deemed confirmed employee after expiry of three years of probationary period as - that would defeat the basic purpose and intent of the Rule which clearly 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.

(Underlining added)

10. The Hon‟ble Supreme Court in the case of Lawrence School (supra) has also referred to its various earlier judgments including Constitution Bench judgments on the aspect of maximum period of probation of automatic/ deemed confirmation as to whether an order is required for confirmation or not where/when such order is required and so on. On these issues and with reference to the relevant Rule 4.9, it has been held in Lawrence School's case (supra) that although the relevant rule specifically provided for a maximum period of probation only of two years, yet, since the expression used in the rule was „if confirmed‟, there is no automatic or deemed confirmation of an employee merely because maximum two years period of probation is completed. Of course, what should then be a maximum period of probation does not seem to find mention, however in my opinion, this aspect will stand covered by the ratio of the judgment in the case of Sharda Devi (supra) which requires that where no period is provided by the statute, the period can only be a reasonable period.