RAJEEV KHURANA v. PRINCIPAL, SARASWATI BAL MANDIR ORS

Judgment

1. The appellant has filed the present appeal, inter alia, impugning an order dated 26.08.2013 (hereafter the impugned order) passed by the learned Single Judge in W.P.(C) No.4968/2008 captioned Rajeev Khurana v. Principal, Saraswati Bal Mandir & Others, whereby the said petition was dismissed. Signature Not Verified Digitally Signed By:TARUN RANA Signing Date:21.02.2025 16:26:53 LPA No.780/2013

2. The appellant had filed the aforesaid petition impugning an order dated 17.09.2007 passed by the Delhi School Tribunal (hereafter the Tribunal) rejecting the appellant’s appeal challenging the order dated 30.04.1998, whereby his services with Saraswati Bal Mandir (hereafter the respondent school) were terminated, during the probation period.

3. The appellant challenged the termination of his services during the probation period on several grounds including that the termination of the services were in violation of the Rule 105 of the Delhi School Education Rules, 1973 (hereafter the DSE Rules) in as much as the services were terminated without approval of the Director of Education (hereafter the DOE).

4. The learned Single Judge rejected the appellant’s contention that the termination of his services was illegal as the appellant was not afforded an opportunity of being heard or on account of violation of the principles of natural justice. The learned Single Judge, following the decision of this court in Kathuria Public School v. Director of Education & Anr.1, rejected the contention that the prior approval of the DOE was required for terminating the services of an employee of an unaided private school.

5. The appellant, who appeared in person, confined his submissions to challenging the termination of his services as illegal, as 1 2005 SCC OnLine Del 778 Signature Not Verified Digitally Signed By:TARUN RANA Signing Date:21.02.2025 16:26:53 LPA No.780/2013 it was without prior approval of the DOE. Thus, the limited question to be addressed is whether the termination of the services of the appellant was illegal for want of the previous approval of the DOE. FACTUAL CONTEXT

6. The appellant was appointed by Samarth Shiksha Samiti (a registered society – hereafter SSS) as TGT (Maths and Science). In terms of an appointment letter dated 03.09.1997, the appellant was appointed in the pay scale of ₹1400-2600 on probation period of two years, with the respondent school. The said appointment letter expressly provided that either party could terminate the employment by giving one month’s notice or one month’s salary in lieu of such notice.

7. Apparently, there were complaints against the appellant from parents of various students. The management of the respondent school also found his work to be unsatisfactory. The management of the respondent school issued the letter dated 01.04.1998 to the appellant pointing out certain deficiencies concerning his work and behaviour. In view of the unsatisfactory performance of the appellant, the management committee of the respondent school recommended that services of the appellant be terminated.

8. In view of the said recommendations, the General Secretary of SSS (Samarth Shiksha Samiti) sent a letter dated 22.04.1998 to the DOE seeking approval for termination of the services of the appellant Signature Not Verified Digitally Signed By:TARUN RANA Signing Date:21.02.2025 16:26:53 LPA No.780/2013 with effect from 30.04.1998. The DOE did not respond to the request. Notwithstanding the same, SSS proceeded to issue termination order dated 30.04.1998. TRIBUNAL’S ORDER

9. The appellant filed the appeal under Section 8(3) of the Delhi School Education Act, 1973 (hereafter the DSE Act) before the Tribunal to assail the termination of his services. The management of the respondent school contested the said appeal. The management of the respondent school also alleged that the appellant had remained absent from his duties for a period of fourteen days without any explanation, which was in violation of the terms of his employment.

10. Based on the pleadings of the parties, the Tribunal framed the following questions for its consideration: “i.) Whether any permission Directorate of Education for terminating the services of a probationer as provided in Provision to Rule 105 of Delhi School Education Rules, 1973? required ii.) Whether a probationer can be terminated for unsatisfactory work without holding any enquiry? iii.) Whether the Appellant was still on probation on 30/04/1998? iv.) Whether the Appellant was put on notice regarding the deficiencies or not?”

11. The said questions were decided against the appellant and in favour of the respondent school. Signature Not Verified Digitally Signed By:TARUN RANA Signing Date:21.02.2025 16:26:53 LPA No.780/2013

In regard to the first question, whether permission was required for terminating the services of the appellant in terms of proviso to Rule 105 of the DSE Rules, the Tribunal decided that the issue was settled in favour of the respondent school in view of the decision of the Constitution Bench of the Supreme Court in T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors.2 wherein the Supreme Court had observed as under:- “64. ….We see no reason why the management of a private unaided educational institution should seek the consent or approval of any governmental authority before taking any such action. …….”

13. The Tribunal also referred to the decision of the Division Bench of this court in Kathuria Public School v. Director of Education & Anr.1. In the said case, following the decision of the Supreme Court in T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors.2, this court had held that the provisions dealing with approval in respect of the disciplinary matters of teachers and employees were not applicable to unaided non-minority educational institutions.

14. In regard to the second question, the Tribunal referred to the decision of the Supreme Court in Muir Mills Unit of NTC (U.P.) Ltd. v. Swayam Prakash Srivastava & Anr.3 and held that employer can terminate the services of an employee during the probation period without holding an enquiry and the termination order which holds that the employee’s performance was not satisfactory cannot be termed as

40. The High Court concluded that Rule 105 fixes a maximum probationary period of two years and that consequently, the continuation of the services of the probationer beyond the period of probation would amount to a deemed confirmation of service even without confirmation. Consequently, the case of the first respondent was according to the High Court within the second category of cases enumerated in High Court of MP v. Satya Narayan Jhavar : (2001) 7 SCC 161. This Court in Satya Narayan Jhavar enumerated three lines of cases. The third stipulates 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.

41. Admittedly, the appointment letter does not stipulate respondent shall be confirmed upon the expiry of the probationary period. Rule 105(2) stipulates that an order of confirmation may be issued “if the work and conduct of an employee during the period of probation is found to be satisfactory”. Rule 105(2) lays down a condition precedent to the issuance of an order of confirmation. It is only if the Signature Not Verified Digitally Signed By:TARUN RANA Signing Date:21.02.2025 16:26:53 LPA No.780/2013 satisfied with appointing authority performance of the probationer that an order of confirmation may be issued. Rule 105(2) contains an explicit stipulation requiring the issuance of an order of confirmation by the appointing authority upon its assessment that the performance of the probationer has been satisfactory. The mere continuation of the services of a probationer beyond the period of probation does not lead to a deemed confirmation in service. It is only upon the issuance of an order of confirmation by the appointing authority that probationer is granted substantive appointment in the post. *** ***

50. In the view that we have taken, the High Court has erred in concluding that the case of the first respondent falls within the second category of cases enumerated in Satya Narayan Jhavar. Rule 105(2) stipulates the satisfaction of the appointing authority as a condition precedent to the issuance of an order of confirmation. Admittedly, no order of confirmation was issued by the appointing authority. The case of the first respondent falls squarely within third category of cases enumerated in Satya Narayan Jhavar wherein though the rules prescribe a maximum period of probation and the probationer is continued beyond the expiry of substantive appointment of the probationer is subject to a specific act on the part of the issuing an order of appointing authority of confirmation. In the absence of an order of confirmation, the first respondent did not acquire the status of a confirmed employee. the probationary period,

51. In the present case, the first respondent served as a probationer for nearly five years. Rule 105(1) Signature Not Verified Digitally Signed By:TARUN RANA Signing Date:21.02.2025 16:26:53 LPA No.780/2013 permits the appointing authority to extend the period of probation with the prior permission of the Director. 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. The amending history 29 of the provision shows that prior to the amendment in 1990, no prior approval of the Director was required. 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.

52. The power vested in the Director serves as a check on the absolute discretion of the appointing authority to extend the probationary period. The power vested in the Director, however, to approve a request of the appointing authority is not unbridled. Rule 105(1) stipulates that the services of a probationer may be terminated without notice during the period of probation where the services of the probationer are not “in the opinion of the appointing authority, satisfactory”. Rule 105(2) stipulates that an order of confirmation may be the appointing the opinion of issued authority, the performance of the probationer is satisfactory. The discretion of the Director must be exercised objectively on the basis of the material produced by the appointing authority bearing on the performance of a probationer. if,

53. 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 Signature Not Verified Digitally Signed By:TARUN RANA Signing Date:21.02.2025 16:26:53 LPA No.780/2013 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 30 be sought before extending the period of probation ensures that the appointing authority may not probationary period without legitimate reason. The extension of the probationary period by the appointing authority, save and except for minority institutions, without the prior approval of the Director is impermissible in law. extend

54. Rule 105(1) of the 1973 Rules, by stipulating a maximum permissible period of probation of two years, draws a balance between the interests of the appointing authority in extending the period of probation to ensure the quality of education and the interests of probationers in their services not being extended on probation ad nauseum. The continuation of the services of a probationer beyond the period permissible under the 1973 Rules defeats the salutary purpose underlying the limit stipulated on the period of extension that may be effected in the probationary period. Upon the expiry of the period of probation, the appointing authority is required by law to either confirm the services of the probationer or terminate their services. 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. Though as we have held, there is no provision for deemed confirmation, the conduct in other consequences, including a decision in regard to the recognition of a school which whether the management may result Signature Not Verified Digitally Signed By:TARUN RANA Signing Date:21.02.2025 16:26:53 LPA No.780/2013 consistently withdrawn.” violates should

45. The following propositions emerge from the plain reading of the judgment of the Supreme Court in Durgabai Deshmukh Memorial Senior Secondary School and Anr. v. J.A.J. Vasu Sena and Anr.11 and Rule 105 of the DSE Rules: (i) that every employee on an initial appointment would be on probation for a period of one year; (ii) that the probation can be extended by a further period of one year and no further; (iii) that prior approval of the DOE is mandatory for such extension of probation beyond the initial probation period of one year. (iv) that the services of employee would be continued only if the “work and conduct of the employee during the probation period is found satisfactory.” (v) that an employee will not be considered as deemed confirmed without the employer confirming his employment.

46. At the end of the probation period, the employer would require to take a decision whether it would terminate the services of the probationer or confirm the same. Extending of the probation beyond the period as stipulated would violate the law. It necessarily follows from the aforesaid that the services of an employee as a probationer Signature Not Verified Digitally Signed By:TARUN RANA Signing Date:21.02.2025 16:26:53 LPA No.780/2013 cannot continue beyond the period of one year or two years with the prior approval of the DOE. At the end of the probation period, the services of the employee are either required to be confirmed in terms of Sub-rule (2) of Rule 105 of the DSE Rules or are required to be discharged. As explained by the Supreme Court in Durgabai Deshmukh Memorial Senior Secondary School and Anr. v. J.A.J. Vasu Sena and Anr.11, extending the probation period beyond the maximum period of two years is not an option. Thus, in any case, the services of an employee cannot be continued on probation beyond the period of two years, which is the outer limit provided under the DSE Rules.

47. It is also obvious that in the event the services of an employee are unsatisfactory, the same are required to be terminated at the end of the probation period. Rule 105 of the DSE Rules does not contemplate continuation of the services of a probationer whose performance is found to be unsatisfactory beyond the period as specified for want of permission of the DOE. Plainly, the requirement of seeking prior approval of the DOE for terminating the services of an employee during the probation period cannot be construed to mean that the employer is bound to confirm his employment at the end of the probation period if such approval is not forthcoming. In terms of Sub- rule (2) of Rule 105 of the DSE Rules, the confirmation of services at the end of the probation period, is contingent on the work and conduct of the employee during the period of probation being satisfactory. This assessment is required to be made by the employer alone. Thus, if the Signature Not Verified Digitally Signed By:TARUN RANA Signing Date:21.02.2025 16:26:53 LPA No.780/2013 DOE does not grant approval for termination of the services of an employee during the probation period, at the most the same would be required to be continued till the end of the probation period.

48. In the present case, the appellant was appointed on 03.09.1997 and his services were terminated on 30.04.1998. Rule 105 of the DSE Rules provides that every employee be appointed on probation for the period of one year. The appellant was appointed on probation for a period of two years, which is contrary to Rule 105 of the DSE Rules. In terms of Rule 105 of the DSE Rules, the appellant’s probation period could not be extended after 03.09.1998 without permission of the DOE. As explained by the Supreme Court in Durgabai Deshmukh Memorial Senior Secondary School & Another v. J.A.J Vasu Sena & Another11 at that stage, the employer was required to confirm the services in terms of Sub-rule (2) of Rule 105 of the DSE Rules, if the performance of the probationer is satisfactory; or discharge the employee if his conduct and performance is not found satisfactory; or seek approval of the DOE for further extension of the probation period of one year.

49. Sub-rule (2) of Rule 105 of the DSE Rules expressly provides that the services of the employee would be confirmed at the end of the probation period if the work and conduct of the probationer were found to be satisfactory. Plainly, an employer cannot be compelled to confirm the services of the employee, who is on probation and at the same time, the probation cannot be extended, without the employer’s Signature Not Verified Digitally Signed By:TARUN RANA Signing Date:21.02.2025 16:26:53 LPA No.780/2013 desiring such extension and the DOE approving the same. It necessarily follows that the service of the probationer would require to be terminated at the end of the probation period if the employer found the same to be unsatisfactory.

50. In the present case, it is apparent that the respondent school had found the services of the appellant to be unsatisfactory and, therefore, the question of confirming the same under Sub-rule (2) of Rule 105 of the DSE Rules does not arise.

51. The contention that the services of the employee on probation would continue indefinitely for want of prior approval of the DOE without confirmation, is clearly erroneous.

52. Thus, even if it is accepted that the termination of the services of the appellant during probation period was not in conformity with Rule 105 of the DSE Rules. At best, his services could have continued till the expiry of period of one year, that is, till 03.09.1998 but no further.

53. In the given circumstances, we are unable to accept the appellant’s submission that he is entitled to be reinstated in service with full back wages considering the period of probation under Rule 105 of the DSE Rules was fixed as one year and could not be extended without the prior approval of the DOE. It must be accepted that, at the most, the appellant could remain on probation till the end of the period of one year from the date he was appointed. Signature Not Verified Digitally Signed By:TARUN RANA Signing Date:21.02.2025 16:26:53 LPA No.780/2013

54. It is material to note that the appellant has not sought any consequential relief for his reinstatement with back wages either in the writ petition or in the present appeal. We also note that the only relief sought by the appellant in the writ petition was for setting aside the order dated 17.09.2007 of the Tribunal.

55. In view of the aforesaid discussions, the impugned order is set aside. The Tribunal’s order to the extent it holds that the respondent school did not require the approval of the DOE for terminating the services of the appellant during the probation period is erroneous and is set aside.

56. Considering the Tribunal found no fault with respondent school’s finding that the appellant’s performance was not satisfactory during the probation period, we do not consider it apposite to accede to the appellant’s oral request for any further relief.

57. The appeal is allowed in the aforesaid terms. VIBHU BAKHRU, J ANOOP KUMAR MENDIRATTA, J FEBRUARY 21, 2025 M Signature Not Verified Digitally Signed By:TARUN RANA Signing Date:21.02.2025 16:26:53 LPA No.780/2013