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I have held in the judgment that Rule 105 does not provide for any maximum period of probation and nor does the same provide for automatic confirmation in service. I have also however held that considering right to education has become a fundamental right under Article 21A of the Constitution of India, probationary period of teachers cannot continue indefinitely. I have also held that issue with respect to confirmation will have to be looked into as per the specific terms of appointment of a probationary teacher. Paras 3 and 11 of the said judgment read 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.

11. Now that takes us to the most vexed question as to what should be a reasonable period. We will have to keep in mind Article 21A of the Constitution for this purpose. To understand the issue of what should be a reasonable period qua Rule 105 as regards a teacher, let us start with two extreme examples. One extreme example is that probation period cannot be extended at all for the third year and the other extreme example is that the probation period can be kept on extending by the management even till the age of superannuation. Obviously, both these extreme situations cannot decide what is a reasonable period. In many statutory rules and rules of many organizations , there is provided a three year period of probation like in the case of Lawrence School (supra). Therefore, probation period undoubtedly can be of 3 years under Rule 105 because as already stated there is no outer limit of probation period provided. The question is that for how long beyond the third year can a period of probation continue. In my opinion, reasonable period will have to be dependent on the facts of each case including as to what is the post or nature of employment in question, what are the terms and conditions agreed to at the time of original appointment and subject of course to the same being in accordance with Delhi School Education Act and Rules, 1973. The nature of job or duties to be performed by the teacher will also have to be kept in mind. It will also have to be kept in mind whether the teacher will be overage for similar employment if he/she is not confirmed. Keeping in mind all the relevant facts, probation period, except in exceptional cases, so far as a teacher is concerned, should not continue beyond a period of 5 years from the first date of appointment. Even a period of 4/5 years has to be really in a very grave and exceptional case depending on the facts of that case. However, I do not express myself finally with respect to what should be a reasonable period between 3 to 5 years because Courts will necessarily examine that aspect in the facts and circumstances of each individual case. I am making these specific observations with respect to the maximum period of probation being ordinarily only of 5 years because in the absence of fixing an outer limit by the statute viz Rule 105, the entire purpose of a probation period and a probationary teacher being confirmed would be defeated by the machinations of the management of the schools in certain cases thus affecting education and bringing in of Article 21A in the Constitution. Therefore, I hold that the Rule 105 must be so interpreted that the reasonable period therein should ordinarily be around three years, should not extend beyond five years in most of the cases, and, in the rarest or rare cases, one more year upto 6 years may be considered. However again at the cost of repetition it is stated that six years period is being observed only as a most grave and rarest of rare circumstance in a case, and ordinarily, a probation period qua a teacher should not extend beyond/around three years which is a reasonable period, and as per the facts and circumstances of certain case, and which issues/decisions are of course justiciable before Courts the probation period can go up to 5/6 years as stated above."

9. On behalf of respondent No.1, it is argued before me that respondent No.1 stood automatically confirmed after the original period of probation of one year because the extended period of probation was given after a gap of about three months. It is also argued that in terms of sub-Rule (2) of Rule 105, respondent No.1 should be held to have completed the probationary period successfully as the services were satisfactory in the probationary period. Reliance is placed in support of the arguments placed upon the judgment of a learned Single Judge of this Court in the case of The Management, Hindu Education Society and Anr. Vs. Govt. of NCT of Delhi and Ors. 133 (2006) DLT 83.

(2012) 4 SCC 793 wherein the Supreme Court has said that once the relevant rule uses the expression "if confirmed" it is necessary that a specific order is passed to show confirmation of a probationer, and that a probationer cannot argue that merely because the probationary period is completed, there would be deemed or automatic confirmation of the services of a probationer. I therefore hold that there is no deemed confirmation of services of the respondent No.1 as a probationer.

11. Also, the argument that respondent no.1 has satisfactorily completed her service and she was entitled to be confirmed as per sub-Rule 2 of Rule 105 is an argument without merit because admittedly respondent no.1 during the probationary period received the letters dated 5.10.2007 and 24.3.2008 from the petitioner-school, and both of which letters referred to the unsatisfactory services of the respondent no.1. I cannot agree with the arguments urged on behalf of respondent no.1 that these letters should not be treated as sufficient because written memos were not issued inasmuch as there is no requirement in law that written memos should be issued for unsatisfactory work. In fact the Supreme Court has repeatedly observed that principles of natural justice have not to be followed while terminating the services of a probationer. Three judgments of the Supreme Court in this regard are Muir Mills Unit of NTC (U.P.) Ltd. Vs. Swayam Prakash Srivastava & Anr. (2007) 1 SCC 491, Rajesh Kumar Srivastava Vs. State of Jharkhand and Ors. (2011) 4 SCC 447 and Chaitanya Prakash and Anr. Vs. H. Omkarappa (2010) 2 SCC 623.