No Deemed Confirmation Of Service Merely Because Services Of Probationer Are Continued Beyond Probationary Period: SC [Read Judgment]

The Supreme Court has observed that, where the relevant Service 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, the bench comprising Justice Dhananjaya Y. Chandrachud and Justice Aniruddha Bose said in Durgabai Deshmukh Memorial Sr. Sec. School vs. J.A.J Vasu Sena.

The contention advanced in this case, which had found favour with High Court, was that, there is a deemed confirmation upon the continuation of service beyond the expiry of the period of probation is negatived by the express language of Rule 105(2) of Delhi School Education Rules 1973. In appeal, the Apex Court bench observed that High Court erred in holding that there is a deemed confirmation where the services of a probationer are continued beyond the expiry of the probationary period. The bench observed:

"It emerges from the consistent line of precedent of this Court 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. Rule 105(2) stipulates the satisfaction of the appointing authority as a condition precedent to the issuance of an order of confirmation. The argument advanced by the learned counsel for the first respondent that there is a deemed confirmation upon the continuation of service beyond the expiry of the period of probation is negatived by the express language of Rule 105(2). In this view, 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 holding that there is a deemed confirmation where the services of a probationer are continued beyond the expiry of the probationary period."

The Court also noted that, in State of Punjab v. Dharam Singh, the Constitution Bench had held that the continuation of the services of a probationer beyond the maximum period of probation would amount to a deemed confirmation of service only in the absence of a stipulation in the relevant rule requiring the probationer to pass a test or fulfill any other condition. In the present case, Rule 105(2) stipulates the satisfaction of the appointing authority as a condition precedent to the issuance of an order of confirmation, it added. Examining the relevant rules, the bench held:

"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;

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." 

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