Supreme Court: The bench of Dr DY Chandrachud and Aniruddha Bose, JJ has held that the words “by another year” in Rule 105(1) of Delhi School Education Rules 1973 stipulate that the maximum period of probation permissible is two years.
Amending History of Rule 105 of the Delhi School Education Rules, 1973
Rule 105 of the 1973 Rules, as originally enacted, stipulated that an employee shall be appointed on initial probation for a period of one year which may be extended by the appointing authority “by another year”. No separate provision was stipulated for minority institutions. Two amendments were subsequently incorporated to the 1973 Rules. On 30 January 1985, the Delhi School Education (Amendment) Rules 1984 were notified. 12 By this amendment, Rule 110 of the 1973 Rules was substituted. The Court noticed that the amending history of the 1973 Rules shows that the words “by another year” appearing in the principal part of Rule 105 has not been omitted.
“By another year” – Meaning
The consistent meaning imparted to the word “another” is a single addition or one more. The ordinary and literal construction of the words “another” read with the words “for a period of one year” in Rule 105(1) implies that the appointing authority may extend the period of probation by one additional year.
“The contention that the words “by another year” imply that the appointing authority can extend the period of probation by one year at a time without any limit cannot be accepted as this would amount to rewriting the provision by substituting the words “by another year” with the words “by one year at a time”, which is impermissible in law.”
Hence, the Court said that had the delegate of the legislature intended that there is no limit on the permissible probationary period, the words “by another year” would have been omitted.
The limit placed on the permissible extension of the probationary period draws a balance between the opportunity that must be afforded to a probationer to modify and improve the quality of service and a mandate that the appointing authority of an educational institute hires qualified teachers. To impart a meaning to the words “by another year” that the appointing authority may extend the probationary period one year at a time without a limit will allow an appointing authority to extend the probationary period, with the prior approval of the Director, of a probationer ad nauseum.
Prior approval of Director
The prior approval of the Director, save and except for minority institutions, is mandatory and must be complied with as a condition precedent for the valid exercise of the power to extend the period of probation. The Director is required to assess the determination of the appointment authority and based on that assessment, to decide whether to approve an extension of the probationary period. The provision which mandates that the prior approval of the Director shall be sought before extending the period of probation ensures that the appointing authority may not extend the probationary period without legitimate reason.
Conclusion
- The words “by another year” in Rule 105(1) of the 1973 Rules stipulate that the maximum period of probation permissible is two years. The limit equally applies to minority institutions covered by the first proviso to Rule 105; and
- Rule 105(2) stipulates a condition precedent to the issuance of an order of confirmation. The continuation of the services of a probationer beyond the period of probation does not amount to a deemed confirmation of service. It is only upon the issuance of an order of confirmation by the appointing authority that a probationer is confirmed in service
[Durgabhai Deshmukh Memorial Sr. Sec. School v. JAJ Vasu Sena, 2019 SCC OnLine SC 1075, decided on 21.08.2019]
