In W.P.(C) 5570/2012-DEL HC- Private recognized aided school falls under Delhi School Education Act and Rules, 1973; Under Rule 105, mandate is for initial year of probation with subsequent year of extension of services with prior approval of Director: Delhi HC 
Justice Chandra Dhari Singh [11-11-2022]

Read Order: P.K.JAIN v. DIRECTORATE OF EDUCATION AND ANR 

Mansimran Kaur

New Delhi, November 15, 2022:The principal provision under Rule 105 of the Delhi School Education Act and Rules, 1973
provides for an initial probation period of one year andx with the proviso, confers the power to the appointing authority to extend the probation period. This power is also subject to the condition that the period of probation may be extended by ‘another year’ with the prior approval of the Director, the Delhi High Court has clarified.

Justice Chandra Dhari Singh allowed the  instant petition  instituted under Article 226 of the Constitution of India  on behalf of Mukherjee Memorial Senior Secondary School for issuing a  writ, order or direction in the nature of certiorari quashing and set aside the impugned order dated August 9, 2012  passed in Appeal of 2011 may kindly be quashed and set aside and the appeal filed by the  second respondent  before the School Tribunal may be dismissed with costs. Further prayer was made to award the cost of proceedings in favour of the Petitioner and against the Respondents. 

The Single Judge bench was of the view that the Tribunal had committed an error while setting aside the order of the petitioner School terminating the services of the second respondent.

Factual matrix of the case was such that the Petitioner School appointed the second respondent as TGT (Mathematics) on July 8, 2008, along with 17 other appointees, in the pay scale of Rs. 5500-9000. The second Respondent, accordingly, joined his services with the petitioner School on July 14, 2008.

The appointment letter of the newly appointed teachers mentioned that their appointment was subject to two years’ probation. It also stated that after completion of two years’ satisfactory service, the services of the appointee shall be confirmed. 

During the course of his probation, the second respondent was issued various letters and memos for his misconduct and unsatisfactory performance in the School. Pursuant to such memos, the Management Committee of the petitioner School decided to extend the probation period of the second respondent for a further period of six months, i.e., till December 31, 2010 after expiry of the two years’ probation period. 

The second respondent was also intimated that he and his performance during the extended probation period would be under scrutiny.

 On August 30, 2010, the second respondent was issued a Show Cause Notice to explain his unsatisfactory work and conduct. A subsequent memo was also issued to him on September 9, 2010 and a reply to the same was submitted by him. Thereafter, on December  27, 2010, the Management Committee of the School decided to extend the probation period of  the second respondent  for further six months, i.e., till  June  30, 2011.

Against the order of removal from service, the second respondent filed an Appeal bearing with the Delhi School Tribunal,  vide order dated  August  9, 2012 while allowing his Appeal, the Tribunal quashed the order of termination of services and directed the School to reinstate the second  respondent  with all consequential benefits as well as 50% back wages.

 The petitioner, by way of filing the instant appeal, assailed the said order passed in Appeal dated August 9, 2011.

After hearing the submissions from both the sides,the Court noted that a  part of the preliminary arguments on behalf of the second respondent before this Court as well as before the Tribunal was that the probationary period of two years and its extension thereof by the petitioner was not in accordance with law.

It was further noted by the Court that the law regarding probation is clear and has been reiterated by the Division Benches of this Court as well as by the Hon’ble Supreme Court. Being an appointee of a private recognized aided school, the services of the second respondent  are governed by the Delhi School Education Act and Rules, 1973, as per Rule 4 (f).

The legislature, by way of Rule 105 of the DSEAR, sought to offer a protection to the employees kept on probation indefinitely on the ground of unsatisfactory performance. A balance was also sought to be brought about by keeping a check on the appointing authority. Therefore, the intention of the legislature as well as a bare reading of the Rule, which has also been interpreted by the Hon’ble Supreme Court, clarifies that there is a limit to the period for which an employee may be kept on probation under the DSEAR. The mandate is for an initial year of probation with a subsequent year of extension of services with the prior approval of the Director.

In the case at hand, admittedly, after completion of two years of service of the second respondent neither any confirmation of services nor any termination of services order was passed by the petitioner, however the period of probation of the petitioner was extended by virtue of three subsequent orders extending the period thereof. 

The Petitioner School sought to extend the probation period of the second respondent when his conduct and performance was found unsatisfactory. This extension was granted three times for a period of six months each, however, at no occasion was the approval of the Director obtained by the School. 

Since, the provision in its bare language mandates the approval of the Director for extension of probation period and the Hon’ble Supreme Court had also reiterated the necessity of such an approval, an action of the petitioner School extending the period of probation of the second respondent  failing to comply with this substantial condition cannot be said to be an action taken in accordance with law.

However, as per the record, it is evident that the second respondent did not mend his ways and continued to act in defiance and could not deliver the quality of teaching that was reasonably expected from him. Therefore, an extension of probation period by the petitioner could not have been said to be an absolute confirmation of services but was only an opportunity for an employee to keep working at his job, the Court noted. 

The question, at this juncture, which arises and falls for consideration and adjudication by this Court was that considering the probation to be extended wrongly, whether the services of the petitioner were deemed to be confirmed after the initial probation period, as per the appointment letter and also in accordance with the provision under Rule 105 of the DSEAR, of two years ended, the Court further noted. 

In view of the same, the Court took into account the  principle that in the absence of a condition stipulated in the appointment letter or the relevant rules being met there shall be no deemed confirmation of service.  Merely for the reason of continuance of the services of the second respondent the services of a probationer were continued beyond the period of probation fits wholly to the situation at hand, the Court stated. 

The position stands different for cases where there is a negative stipulation that beyond the said period, probation of the second respondent could not have continued, in which case the reasonable and legal consequence that would follow would be deemed confirmation of services, however, this is absolutely not the case before this Court in the dispute between the instant parties, the Court stated. 

After the period of probation prescribed expired and neither any order of confirmation had been passed nor had the person concerned passed the requisite test, could his services not be deemed to have been confirmed merely because the said period had expired. This Court distinguishes with the observations of the Tribunal and finds that the services of the second respondent were not deemed to be confirmed after his probation period expired, irrespective of the fact that such period was prescribed and extended rightly or wrongly, the Court opined 

Thus, at the outset, the Court observed that after the probationary period of the second respondent ended, there was admittedly no order of confirmation of services. Therefore, had there been no extension of the period of probation and even a termination order, the services of the second  respondent  were deemed to be terminated considering that he failed to fulfil the necessary condition of completion of two years’ satisfactory service and that there was no express order of confirmation of employment of the petitioner.

Keeping in view the position reiterated by the Division Benches of this Court as well as by the Hon’ble Supreme Court it is conclusively held that at no point of time were the services of the second respondent deemed to be confirmed since the case of the second respondent did not fall under the category of cases of deemed confirmation as per the guidelines issued and interpreted with respect to Rule 105 of the DSEAR, the Court observed. 

Hence, it was found that the Tribunal had committed an error while setting aside the order of the Petitioner School terminating the services of the second respondent. Accordingly, the instant petition was allowed.