Service Lawyer: In Delhi schools there is no deemed confirmation of a teacher after expiry of probation period; SC.

Supreme Court of India

Justice D Y Chandrachud and Justice Aniruddha Bose

The SC { Durgabai Deshmukh Memorial Sr. Sec. School & Anr. v. J.A.J Vasu Sena & Anr. } holds in those cases where the rules prescribe a maximum period of probation but also require a specific act on the part of the employer of issuing an order of confirmation for the purposes of confirmation. In such cases, there is no deemed confirmation of the services of a probationer on their continuation in service beyond the maximum period of probation. 

It was held that it emerges from the consistent line of precedent of the SC that where the relevant rule or the appointment letter stipulates a condition precedent to the confirmation of service, there is no deemed confirmation of service merely because the services of a probationer are continued beyond the period of probation. It is only upon the issuance of an order of confirmation that the probationer is granted substantive appointment in that post. It was further held that Rule 105(2) stipulates the satisfaction of the appointing authority as a condition precedent to the issuance of an order of confirmation. It was held that the continuation of services beyond the period of probation will not entitle the probationer to a deemed confirmation of service. The High Court has erred in present case in holding that there is a deemed confirmation where the services of a probationer are continued beyond the expiry of the probationary period.

In the present case, the first respondent served as a probationer for nearly five years. Rule 105(1) of the Delhi School Education Rules 1973 permits the appointing authority to extend the period of probation with the prior permission of the Director, maximum upto 2 years. The proviso stipulates that no prior approval of the Director is required for the extension of the probationary period by the appointing authority of a minority institution.  By virtue of the Amending Rules 1990 the prior approval of the Director was made mandatory, save and except for extensions in the case of minority institutions, for the grant of any extension in the probationary period. The absolute discretion vested with the appointing authority of an institution was made subject to the prior approval of the Director. As the probation period was continued beyond 2 years, the DB of HC held in favour of the teacher that there would be deemed confirmation of the teacher in view of the rules. The assail has been laid down to the said judgment by the Management - which came to be allowed by the SC.

It was held by the SC that while there can be no deemed confirmation in the favour of the first respondent, the relief can be suitably moulded by an award of ex-gratia compensation.  It was further held that a teacher who has spent five valuable years of her life and may now be overaged to get suitable employment elsewhere must not be left in the lurch. A management which has defied the law must be put to terms. Accordingly, the compensation of Rs. 5 Lakhs was awarded by the SC.

It was further held by the SC that the continuation of the services of a probationer by the appointing authority under Rule 105 of the 1973 Rules beyond the maximum permissible period of probation, constitutes a violation of law. It was held, though, there is no provision for deemed confirmation, the conduct of the management may result in other consequences, including a decision in regard to whether the recognition of a school which consistently violates the law should be withdrawn.

In the present case, the Division Bench held that under Rule 105(1) read with the first proviso of the Delhi School Education Rules 1973, the maximum period of probation permissible is two years, therefore, there is a deemed confirmation of the services of a probationer who is continued in service beyond the maximum period of probation, even without the issuance of an order of confirmation by the appointing authority. The said view was set aside by the SC, by holding, there is no deemed confirmation as per rules.

However, the SC held that this case shall not have bearing in earlier cases which have attained finality.