HAMDARD PUBLIC SCHOOL Vs. DIRECTORATE OF EDUCATION

JUDGEMENT

(1.) This writ petition filed by the petitioner-school impugns the order of the Delhi School Tribunal dated 29.9.2011. By the impugned order, the Delhi School Tribunal has set aside the office note dated 1.10.2005 of the petitioner-school whereby the services of the respondent No. 2 herein were terminated. Whereas the case of the petitioner-school was and is that respondent No. 2 has been rightly terminated, as she was terminated during the period of probation by a non-stigmatic order, the case of respondent No. 2 herein (appellant before the Delhi School Tribunal) was that in terms of Rule 105 of the Delhi School Education Act and Rules, 1973, probation can originally be for one year with a maximum period of one year's extension, and once the period of two years passes, since there is no provision for extension of probation, the respondent No. 2-probationer would be deemed to be confirmed at the post to which he was appointed. 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:-

(2.) Sub-Rule 1 of Rule 105 provides the original period of probation as one year, and which can be extended by the appointing authority. What is the period for which probation can be extended is however not provided in Sub-Rule 1. Sub-Rule 1 further provides that services of an employee can be terminated without notice during the period of probation if the work and conduct of the employee is not satisfactory. First Proviso to the Sub-Rule 1 states that the requirement of the provision of Sub-Rule 1 of seeking approval of the Director of Education with regard to extension of period of probation by another year shall not apply in case of an employee of a minority school. The first proviso is therefore really limited for getting permission of the Director of Education for extension of the probation period "by another year". It be noted that the expression is not "only another year" or "only another one year" or "a maximum period of another year" or "maximum period of another one year" etc. The expression only uses "another year" without specifying an outer limit of the probation period. Also, even if in some manner of interpretation we take the expression "another year" to mean that there can only be one additional year of probation after the original one year of probation, even then, there is nothing found in the first proviso providing for automatic or deemed confirmation. As already stated above, first proviso only functions in a limited field qua getting permission of Director of Education. Neither the main body of Sub-Rule 1, nor the first proviso, provides for a maximum period of probation, and also they do not provide for automatic or deemed confirmation. The following conclusions therefore in my opinion can safely be drawn from reading of Sub-Rule 1 of Rule 105 alongwith its first Proviso.

(3.) 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:-