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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.  2868  of   2012 (Arising out of SLP (c) No.  21400  of 2008)

Head Master, Lawrence School Lovedale        ….. Appellant

Versus

Jayanthi Raghu & Anr.      … Respondents  

J U D G M E N T  

Dipak  Misra, J

Leave granted.

2. Questioning  the  legal  acceptability  of  the  Judgment  and  

Order dated 26.03.2008 passed by the High Court of Judicature  

at Madras in W.A. No. 4157 of 2004 whereby the finding recorded  

by the learned Single Judge in W.P. No. 15963 of 1997 to the  

effect  that  the  order  of  termination  in  respect  of  the  first  

respondent, a teacher, being stigmatic in nature and having been

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passed without an enquiry warranted quashment was dislodged  

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by  the  Division  Bench  on  the  foundation  that  the  order  of  

termination  did  not  cast  any  stigma,  but  concurred  with  the  

ultimate  conclusion  on  the  base  that  she  was  a  confirmed  

employee  and  hence,  holding  of  disciplinary  enquiry  before  

passing  an  order  of  termination  was  imperative,  the  present  

appeal by special leave has been preferred under Article 136 of  

the Constitution of India.     

3. The  factual  matrix  lies  in  a  narrow  compass.   The  first  

respondent herein was appointed on the post of a Mistress with  

effect  from  01.09.1993.   It  was  stipulated  in  the  letter  of  

appointment that she would be on probation for a period of two  

years which may be extended for another one year, if necessary.  

In November 1995, while she was working as a Mistress in the  

appellant’s  school,  as  alleged,  she  had  received  some  amount  

from one Nathan.  A meeting was convened on 09.09.1997 and in  

the proceeding, certain facts were recorded which need not be  

adverted  to  inasmuch  as  the  said  allegations  though  treated  

stigmatic by the learned Single Judge, yet the Division Bench, on  

a  studied  scrutiny  of  the  factual  scenario,  has  opined   in

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categorical terms that the same do not cast any stigma.  The said  

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conclusion has gone unassailed as no appeal has been preferred  

by the first respondent.    

4. To  proceed  with  the  narration,  after  the  proceeding  was  

recorded  on  18.06.1997,  an  order  of  termination  was  passed  

against the first respondent. As has been stated earlier, the order  

of termination was assailed before the Writ Court and the learned  

Single Judge axed the order on the ground that the same was  

stigmatic  in  nature.   The  order  passed  by  the  learned  Single  

Judge  was  challenged  in  Writ  Appeal  under  Clause  15  of  the  

Letters Patent by the present appellant and at that juncture, a  

contention was canvassed by the first respondent that by virtue  

of  the language employed in Rule 4.9 of the Rules of Lawrence  

School, Lovedale (Nilgiris) (for short, ‘the Rules’), she had earned  

the  status  of  a  confirmed  employee  having  satisfactorily  

completed  the  period  of  probation and,  therefore,  her  services  

could not have been dispensed with without holding an enquiry.  

In essence, the proponement was that she was deemed to have  

been  a  confirmed  employee  of  the  school  and  hence,  it  was

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obligatory on the part of the employer to hold an enquiry before  

putting an end to her services.   

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5. The Division Bench interpreted the Rule and placed reliance  

on  a  three-Judge  Bench  Decision  of  this  Court  in  The  High  

Court of Madhya Pradesh through Registrar and Others v.  

Satya Narayan Jhaver1 and came to hold as follows:-

“In  terms  of  Rule  4.9  of  the  Rules,  the  maximum period of  probation would be  only  three years and the rule does not provide any  further extension of probation.  If that be so,  the Headmaster of the school would be entitled  to  pass  orders  as  to  the  confirmation before  the  expiry  of  the  maximum  period  of  three  years i.e., 1.9.1996.  Factually no such order  was passed in this case and the teacher was  allowed to serve beyond the period of 1.9.1996  till  the  order  of  termination dated 18.6.1997  was passed.  In the absence of any provision  for extension beyond a period of three years, in  law,  as  stated  by  the  Supreme  Court,  the  services  of  the  teacher  would  be  treated  as  confirmed  after  1.9.1996.   Mr.  K.  R.  Vijayakumar,  learned  counsel  for  the  school  has  submitted  that  the  said  rule  4.9  contemplates  that  only  “if  confirmed”  the  probation  would  come  to  an  end.   The  said  submission  is  based  on  the  rule  that  the  appointee, if confirmed, shall continue to hold  office till the age of 55 years. In our opinion,  

1

(2001)  7 SCC 161  :  AIR  2001 SC 3234

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the said rule relates to the upper age limit for  the  entire  service,  i.e.,  in  the  event  of  a  probationer is confirmed, he would be entitled  to continue till the age of 55 years.  The said  rule  does  not  in  any  way  empowers  the  Headmaster or the Chairman, as the case may  be, to extend the period of probation beyond  the maximum period of three years.”  

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6. Assailing  the  legal  substantiality  of  the  order,  Mr.  K.V.  

Viswanathan,  learned  senior  counsel,  has  submitted  that  the  

Division Bench has grossly erred by coming to the conclusion  

that after the expiry of the probation period, the first respondent  

became a confirmed employee.  It is his further submission that if  

the language employed in Rule 4.9 of the Rules, especially the  

words “if confirmed”, are appreciated in proper perspective, there  

can be no trace of doubt that an affirmative act was required to  

be done by the employer without which the employee could not  

be treated to be a confirmed one.  The learned senior counsel  

would further contend that the High Court has clearly flawed in  

its  interpretation  of  the  Rule  by  connecting  the  factum  of  

confirmation  with  the  fixation  of  upper  age  limit  for  

superannuation.  It is also urged by him that the Division Bench

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has clearly faulted in its  appreciation of  the law laid down in  

Satya Narayan Jhaver (supra) inasmuch as the case of the first  

respondent squarely falls in the category where a specific act on  

the part of the employer is an imperative requisite.

7. Combating  the  aforesaid  submissions,  Ms.  Shweta  Basti,  

learned  counsel  appearing  for  the  first  respondent,  submitted  

that the order passed by the High Court is absolutely impeccable  

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since on a careful scanning of the Rule, it is discernible that it  

does not confer any power on the employer to extend the period  

of  probation beyond the maximum period as stipulated in the  

Rule  and,  therefore,  the  principle  of  deemed confirmation gets  

attracted.  It is proponed by her that the emphasis placed on the  

term “if confirmed” by the appellant is totally misconceived and  

unwarranted  because  its  placement  in  the  Rule  luminously  

projects  that  it  has  an  insegregable  nexus  with  the  age  of  

retirement  and  it  has  no  postulate  which  would  destroy  the  

concept of deemed confirmation.  It has been further put forth  

that the Rule neither lays down any postulate that the employee  

shall pass any test nor does it stipulate any condition precedent

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for the purpose of confirmation.  Lastly, it is contended that a  

liberal  interpretation  is  necessary  regard  being  had  to  the  

uncertainties that is met with by a probationer after the expiry of  

the probation period and unless the beneficent facet is taken note  

of,  the  caprice  of  the  employer  would  prevail  and  the  service  

career of an employee would be fossilized.  

8. To appreciate the rivalised submissions raised at the Bar,  

we have carefully  perused the  letter  of  appointment and on a  

plain reading of the same, it is apparent that the first respondent  

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was appointed as a Mistress in the School  on probation for  a  

period of two years with a stipulation that it may be extended by  

another  year.   There  is  nothing  in  the  terms  of  the  letter  of  

appointment from which it can be construed that after the expiry  

of  the period of  probation,  she  would be treated as a deemed  

confirmed employee.  In this factual backdrop, the interpretation  

to  be  placed  on  Rule  4.9  of  the  Rules  assumes  immense  

signification.  The said Rule reads as follows: -

“4.9 All appointments to the staff shall ordinarily  be made on probation for  a period of  one  year  which may at the discretion of the Headmaster or  the Chairman in the case of members of the staff

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appointed by the Board be extended up to two  years.   The  appointee,  if  confirmed,  shall  continue to hold office  till  the  age of  55 years,  except  as  otherwise  provided  in  these  Rules.  Every  appointment  shall  be  subject  to  the  conditions  that  the  appointee  is  certified  as  medically  fit  for  service  by  a  Medical  Officer  nominated  by  the  Board  or  by  the  Resident  Medical Officer of the School.”

9. Keeping in abeyance the interpretation to be placed on the  

Rule for a while, it is obligatory to state that there is no dispute  

at the Bar that the first respondent had completed the period of  

probation of three years.  Thus, the fulcrum of the controversy is  

whether  the  appellant-school  was  justified  under  the  Rules  

treating the respondent-teacher as a probationer and not treating  

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her as a deemed confirmed employee.  We have reproduced the  

necessary paragraph from the  decision of  the  High Court  and  

highlighted how the Division Bench has analysed and interpreted  

the  Rule  in  question.   The  bedrock  of  the  analysis,  as  is  

perceivable,  is  the  sentence  in  Rule  4.9  “the  appointee,  if  

confirmed, shall continue to hold office till the age of 55 years”  

fundamentally relates to the fixation of the upper age limit for the

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entire service.  It has been held that it deals with the entitlement  

of an employee to continue till the age of 55 years.   

10. Before we proceed to appreciate whether the interpretation  

placed on the  Rule  is  correct  or  not,  it  is  apposite  to refer  to  

certain authorities in the field.  In Sukhbans Singh v. State of  

Punjab2, the Constitution Bench has opined that a probationer  

cannot, after the expiry of the probationary period, automatically  

acquire the status of a permanent member of the service, unless  

of  course,  the  rules  under  which  he  is  appointed  expressly  

provide for such a result.

11. In  G.S.  Ramaswamy and Ors.  v.  Inspector-General  of  

Police, Mysore3, another Constitution Bench, while dealing with  

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the language employed under Rule 486 of the Hyderabad District  

Police  Manual,  referred  to  the  decision  in  Sukhbans  Singh  

(supra) and opined as follows: -

2

AIR 1962 SC 1711

3

AIR 1966 SC 175

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“It has been held in that case that a probationer  cannot after the expiry of the probationary period  automatically acquire the status of a permanent  member of a service, unless of course the rules  under which he is appointed expressly provide for  such  a  result.  Therefore  even  though  a  probationer  may  have  continued  to  act  in  the  post to which he is on probation for more than  the initial period of probation, he cannot become  a permanent servant merely because of efflux of  time,  unless  the  Rules  of  service  which govern  him  specifically  lay  down  that  the  probationer  will;  be automatically confirmed after the initial  period  of  probation  is  over.  It  is  contended on  behalf of the petitioners before us that the part of  r.  486 (which we have set out above) expressly  provides  for  automatic  confirmation  after  the  period of probation is over. We are of opinion that  there is no force in this contention. It is true that  the words used in the sentence set out above are  not  that  promoted  officers  will  be  enable  or  qualified  for  promotion  at  the  end  of  their  probationary  period which are  the  words to  be  often found in the rules in such eases; even so,  though this part of  r.  486 says that "promoted  officers  will  be  confirmed  at  the  end  of  their  probationary period", it is qualified by the words  "if they have given satisfaction". Clearly therefore  the  rule  does  not  contemplate  automatic  confirmation after the probationary period of two  years,  for  a  promoted  officer  can  only  be  confirmed  under  this  rule  if  he  has  given  satisfaction.”

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12. In  State of Uttar Pradesh v.  Akbar Ali Khan4,  another  

Constitution Bench ruled that if the order of appointment itself  

states that at the end of the period of probation, in the absence of  

any  order  to  the  contrary,  the  appointee  will  acquire  a  

substantive  right  to  the  post  even  without  an  order  of  

confirmation.  In all other cases, in the absence of such an order  

or  in  the  absence  of  such a  service  rule,  an express  order  of  

confirmation is necessary to give him such a right.  Where after  

the period of probation, an appointee is allowed to continue in  

the post without an order of confirmation, the only possible view  

to take is that by implication, the period of probation has been  

extended,  and it  is  not  a  correct  proposition  to  state  that  an  

appointee should be deemed to be confirmed from the mere fact  

that  he  is  allowed  to  continue  after  the  end  of  the  period  of  

probation.

13. In  State of  Punjab  v.  Dharam Singh5,  the  Constitution  

Bench,  after  scanning  the  anatomy  of  the  Rules  in  question,  

4

AIR 1966 SC 1842

5

AIR 1968 SC 1210

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addressed  itself  to  the  precise  effect  of  Rule  6  of  the  Punjab  

Educational Service (Provincialised Cadre) Class III Rules, 1961.  

The said Rule stipulated that the total period of probation -

including extensions, if any, shall not exceed three years.  This  

Court referred to the earlier view which had consistently stated  

that when a first appointment or promotion is made on probation  

for a specific period and the employee is allowed to continue in  

the post after the expiry of the period without any specific order  

of confirmation, he should be deemed to continue in his post as a  

probationer only in the absence of any indication to the contrary  

in the original order of appointment or promotion or the service  

rules.   Under  these  circumstances,  an  express  order  of  

confirmation  is  imperative  to  give  the  employee  a  substantive  

right to the post and from the mere fact that he is allowed to  

continue in the post after the expiry of  the specified period of  

probation, it is difficult to hold that he should be deemed to have  

been confirmed.  When the service rules fixed a certain period of  

time beyond which the probationary period cannot be extended  

and an employee appointed or promoted to a post on probation is  

allowed to continue in that post after completion of the maximum  

period of probation without an express order of confirmation, he

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cannot be deemed to continue in that post as a probationer by  

implication.  It is so as such an implication is specifically -

negatived  by  the  service  rule  forbidding  extension  of  the  

probationary period beyond the maximum period fixed by it.

14. In  Samsher Singh v.  State of Punjab and another6, the  

seven-Judge Bench was dealing with the termination of services  

of  the  probationers  under  Rule  9  of  the  Punjab Civil  Services  

(Punishment  and  Appeal)  Rules,  1952  and  Rule  7(3)  of  the  

Punjab Civil Services (Judicial Branch) Rules, 1951.  In the said  

case, the law laid down by the Constitution Bench in the case of  

Dharam Singh (supra) was approved but it was distinguished  

because  of  the  language  of  the  relevant  rule,  especially  

explanation to Rule 7(1), which provided that every subordinate  

Judge in the  first  instance be appointed on probation for  two  

years and the said period may be extended from time to time  

either expressly or impliedly so that the total period of probation  

including extension does not exceed three years.  The explanation  

to the said Rule stipulated that the period of probation shall be  

deemed  to  have  been  extended  if  a  subordinate  Judge  is  not  

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(1974) 2 SCC 831

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confirmed on the expiry of the period of probation.  Be it noted,  

reliance was placed on the decision in Dharam Singh (supra).  -

The larger Bench discussed the principle laid down in Dharam  

Singh’s  case and proceeded to state as follows: -

“In Dharam Singh’s case (supra) the relevant rule  stated that the probation in the first instance is  for one year with the proviso that the total period  of probation including extension shall not exceed  three  years.   In  Dharam  Singh’s  case  he  was  allowed  to  continue  without  an  order  of  confirmation and therefore the only possible view  in the absence of anything to the contrary in the  Service Rules was that by necessary implication  he must be regarded as having been confirmed.”

After so stating, the Bench referred to Rule 7(1) and came to hold  

as follows: -

“..................the explanation to rule 7(1) shows that the period of  probation shall be deemed to have been extended impliedly if a  Subordinate Judge is not confirmed on the expiry of this period  of probation. This implied extension where a Subordinate Judge  is not confirmed on the expiry of the period of probation is not  found in Dharam Singh's case (supra). This explanation in the  present case does not mean that the implied extension of the  probationary period is only between two and three years. The  explanation on the contrary means that the provision regarding  the maximum period of probation for three years is directory and  not mandatory unlike in Dharam Singh's case (supra) and that a  probationer is not in fact confirmed till an order of confirmation  is made.”

(Emphasis supplied)

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15. In  Om  Prakash  Maurya v.  U.P.  Co-operative  Sugar  

Factories  Federation,  Lucknow  and  others7, a  two-Judge  

Bench was dealing with the case of confirmation under the U.P.  

Cooperative Societies Employees Service Regulations, 1975.  After  

referring to Regulations 17 and 18, it was held that as the proviso  

to Regulation 17 restricts the power of the appointing authority  

in extending the period of  probation beyond the period of  one  

year and Regulation 18 provides for confirmation of an employee  

on the satisfactory completion of the probationary period, it could  

safely be held that the necessary result of the continuation of an  

employee  beyond  two  years  of  probationary  period  is  that  he  

would be confirmed by implication.

16. In  Municipal  Corporation,  Raipur  v.  Ashok  Kumar  

Misra8,  while  dealing  with  Rule  14  of  the  Madhya  Pradesh  

Government Servants’ General Conditions of Service Rules, 1961,  

after referring to earlier pronouncements, it has been held that if  

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AIR 1986 SC 1844

8

AIR 1991 SC 1402

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the rules do not empower the appointing authority to extend the  

probation beyond the prescribed period, or where the rules are  

absent about confirmation or passing of the prescribed test for -

confirmation it is an indication of the satisfactory completion of  

probation.

17. It is apt to note here that the learned counsel for both the  

sides  have  heavily  relied  on  the  decision  in  High  Court  of  

Madhya  Pradesh  thru.  Registrar  and  others  v.  Satya  

Narayan Jhavar9.  In the said case, the three-Judge Bench was  

considering  the  effect  and  impact  of  Rule  24  of  the  Madhya  

Pradesh  Judicial  Service  (Classification,  Recruitment  and  

Conditions of Services) Rules, 1955.  It may be mentioned that  

the  decision  rendered  in  Dayaram Dayal v.  State  of  M.P.10,  

which was also  a  case  under  Rule  24 of  the  said  Rules,  was  

referred to the larger Bench.  In Dayaram Dayal (supra), it had  

been held that if no order for confirmation was passed within the  

maximum  period  of  probation,  the  probationer  judicial  officer  

9

(2001) 7 SCC 161 : AIR 2001 SC 3234

10

AIR 1997 SC 3269

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could be deemed to have been confirmed after expiry of four years  

period of probation.  After referring to the decisions in Dharam  

Singh (supra),  Sukhbans Singh (supra) and  Shamsher Singh  

(supra) and other authorities, the three-Judge Bench expressed  

thus:-

-

“11. The question of deemed confirmation in service  Jurisprudence, which is dependent upon language of the relevant  service rules, has been subject matter of consideration before this  Court times without number in various decisions and there are  three lines of cases on this point. One line of cases is where in  the service rules or the letter of appointment a period of  probation is specified and power to extend the same is also  conferred upon the authority without prescribing any maximum  period of probation and if the officer is continued beyond the  prescribed or extended period, he cannot be deemed to be  confirmed. In such cases there is no bar against termination at  any point of time after expiry of the period of probation. Other  line of cases is that where while there is a provision in the rules  for initial probation and extension thereof, a maximum period for  such extension is also provided beyond which it is not  permissible to extend probation. The inference in such cases is  that officer concerned is deemed to have been confirmed upon  expiry of the maximum period of probation in case before its  expiry order of termination has not been passed. The last line of  cases is where though under the rules maximum period of  probation is prescribed, but the same require a specific act on  the part of the employer by issuing an order of confirmation and  of passing a test for the purposes of confirmation. In such cases,  even if the maximum period of probation has expired and neither  any order of confirmation has been passed nor the person  concerned has passed the requisite test, he cannot be deemed to  have been confirmed merely because the said period has  expired.”

(underlining is ours)

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After so stating, it was further clarified as follows: -

-

“38. Ordinarily a deemed confirmation of a probationer arises  when the letter of appointment so stipulates or the Rules  governing service condition so indicate. In the absence of such  term in the letter of appointment or in the relevant Rules, it can  be inferred on the basis of the relevant Rules by implication, as  was the case in Dharam Singh (supra). But it cannot be said that  merely because a maximum period of probation has been  provided in Service Rules, continuance of the probationer  thereafter would ipso facto must be held to be a deemed  confirmation which would certainly run contrary to Seven Judge  Bench Judgment of this Court in the case of Shamsher Singh  (supra) and Constitution Bench decisions in the cases of  Sukhbans Singh (supra), G.S. Ramaswamy (supra) and Akbar Ali  Khan (supra).”

18. Regard being had to the aforesaid principles,  the  present  

Rule has to be scanned and interpreted.  The submission of Mr.  

Viswanathan, learned senior counsel for the appellant, is that the  

case  at  hand  comes  within  the  third  category  of  cases  as  

enumerated in para-11 of Satya Narayan Jhaver (supra).  That  

apart, it is urged, the concept of deemed confirmation, ipso facto,  

would not get attracted as there is neither any restriction nor any  

prohibition  in  extending  the  period  of  probation.   On  the  

contrary,  the words “if  confirmed” require  further  action to be  

taken by the employer in the matter of confirmation.  

-

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19. On a perusal of Rule 4.9 of the Rules, it is absolutely plain  

that there is no prohibition as was the rule position in Dharam  

Singh (supra).  Similarly, in Om Prakash Maurya (supra), there  

was a restriction under the Regulations to extend the period of  

probation.  That apart, in the rules under consideration, the said  

cases did not stipulate that something else was required to be  

done by the employer and, therefore, it was held that the concept  

of deemed confirmation got attracted.

20. Having so observed, we are only required to analyse what  

the words “if  confirmed” in their contextual use would convey.  

The Division Bench of the High Court has associated the said  

words with the entitlement of the age of superannuation.  In our  

considered opinion, the interpretation placed by the High Court  

is unacceptable.  The words have to be understood in the context  

they are used.  Rule 4.9 has to be read as a whole to understand  

the purport and what the Rule conveys and means.  In Reserve  

Bank of India  v.  Peerless General Finance and Investment  

Co. Ltd. and others11, it has been held as follows: -

11

(1987) 1 SCC 424

20

“Interpretation must depend on the text and  the context.  They are the bases of interpretation.  One may well say if the text is the texture, -

context is what gives the colour.  Neither can be  ignored.  Both are important.  The interpretation  is  best  which  makes  the  textual  interpretation  match  the  contextual.   A  statute  is  best  interpreted when we know why it  was enacted.  With this knowledge, the statute must be read,  first  as  a  whole  and  then  section  by  section,  clause by clause, phrase by phrase and word by  word.  If a statute is looked at, in the context of  its  enactment,  with  the  glasses  of  the  statute- maker, provided by such context, its scheme, the  sections,  clauses,  phrases and words may take  colour  and  appear  different  than  when  the  statute is looked at without the glasses provided  by the context.  With these glasses we must look  at  the  Act  as  a  whole  and discover  what  each  section, each clause, each phrase and each word  is meant and designed to say as to fit  into the  scheme of the entire Act.   No part of  a statute  and no  word of  a  statute  can be  construed in  isolation.  Statutes have to be construed so that  every word has a place and everything is in its  place.”

Keeping the said principle in view, we are required to appreciate  

what  precisely  the  words  “if  confirmed”  contextually  convey.  

Regard  being  had  to  the  tenor  of  the  Rules,  the  words  “if  

confirmed”,  read  in  proper  context,  confer  a  status  on  the  

appointee  which consequently  entitles  him to  continue  on the  

post till the age of 55 years, unless he is otherwise removed from  

service as per the Rules.

21

-

21. It is worth noting that the use of the word “if” has its own  

significance.  In this regard, we may usefully refer to the decision  

in  S.N. Sharma v.  Bipen Kumar Tiwari and others12.  In the  

said case, a three-Judge Bench was interpreting the words “if he  

thinks fit” as provided under Section 159 of the Code of Criminal  

Procedure,  1898.   It  related  to  the  exercise  of  power  by  the  

Magistrate.  In that context, the Bench observed thus: -

“The use of  this expression makes it  clear that  Section  159  is  primarily  meant  to  give  to  the  Magistrate the power of directing an investigation  in cases where the police decide not to investigate  the case under the proviso to Section 157(1), and  it is in those cases that, if he thinks fit, he can  choose the second alternative.  If the expression  “if he thinks fit” had not been used, it might have  been  argued  that  this  section  was  intended  to  give in wide terms the power to the Magistrate to  adopt any of the two courses of either directing  an  investigation,  or  of  proceeding  himself  or  deputing  any Magistrate  subordinate  to  him to  proceed  to  hold  a  preliminary  enquiry  as  the  circumstances of the case may require.

Without  the  use  of  the  expression  “if  he  thinks  fit”,  the  second  alternative  could  have  been held to be independent of the first; but the  use of this expression, in our opinion, makes it  plain  that  the  power  conferred  by  the  second  

12

(1970) 1 SCC 653

22

clause of this section is only an alternative to the  power  given  by  the  first  clause  and  can,  therefore,  be  exercised  only  in  those  cases  in  which the first clause is applicable.”

-

22. In  State of Tamil Nadu  v.  Kodaikanal Motor Union (P)  

Ltd.13, the Court, while interpreting the words “if the offence had  

not been committed” as used in Section 10-A(1) of the Central  

Sales Tax Act, 1956, expressed the view as follows: -

“In  our  opinion  the  use  of  the  expression  ‘if’  simpliciter,  was  meant  to  indicate  a  condition,  the condition being that at the time of assessing  the penalty,  that situation should be visualised  wherein there  was no scope of  committing  any  offence.  Such a situation could arise only if the  tax liability fell under sub-section (2) of Section 8  of the Act.”

23. Bearing in mind the  aforesaid conceptual  meaning,  when  

the  language  employed  under  Rule  4.9  is  scrutinised,  it  can  

safely be concluded that the entitlement to continue till the age of  

superannuation, i.e., 55 years, is not absolute.  The power and  

right to remove is not obliterated.   The status of confirmation  

has to be earned and conferred.  Had the rule making authority  

13

(1986) 3 SCC 91

23

intended that there would be automatic confirmation, Rule 4.9  

would have been couched in a different language.  That being not  

so, the wider interpretation cannot be placed on the Rule to infer  

that  the  probationer  gets  the  status  of  a  deemed  confirmed  

employee after expiry of three years of probationary period as -

that would defeat the basic purpose and intent of the Rule which  

clearly  postulates  “if  confirmed”.   A  confirmation,  as  is  

demonstrable from the language employed in the Rule, does not  

occur with efflux of  time.   As  it  is  hedged by a condition,  an  

affirmative or positive act is the requisite by the employer.  In our  

considered opinion,  an order of  confirmation is  required to be  

passed.  The Division Bench has clearly flawed by associating the  

words  ‘if  confirmed’  with  the  entitlement  of  the  age  of  

superannuation  without  appreciating  that  the  use  of  the  said  

words as a fundamental qualifier negatives deemed confirmation.  

Thus, the irresistible conclusion is that the present case would  

squarely fall in the last line of cases as has been enumerated in  

paragraph 11 of Satya Narayan Jhaver (supra) and, therefore,  

the principle of deemed confirmation is not attracted.

24. In the result, the appeal is allowed and the judgment and  

order passed by the High Court are set aside to the extent that

24

the  first  respondent  had  acquired  the  status  of  confirmed  

employee and, therefore, holding of enquiry is imperative.  As far  

as the conclusion recorded by the Division Bench that no stigma  

was cast on the respondent is concerned, the same having gone  

-

unchallenged,  the  order  in  that  regard  is  not  disturbed.   The  

parties shall bear their respective costs.

......................................J.      [Dalveer Bhandari]

......................................J.      [Dipak Misra]

New Delhi; March 16, 2012.