JUDGMENT - MHASE S.B., J.:—This petition is directed against the judgment and order passed by the Presiding Officer, School Tribunal, Nagpur on 7-1-1984 whereby the petitioner was directed to reinstate the respondent No. 1 in service with effect from 17-3-1982 with continuity and seniority in service. Respondent No. 1 is further held to be entitled for future pay and allowances from the date he joins and the respondent No. 1 was directed to join his services forthwith or in any case on or before 30-1-1984.

2. The petitioner is a Science College and the respondent No. 1 was appointed by order dated 26-9-1991 as a part-time teacher purely on temporary basis to teach the subject of Biology (Botany) even though the respondent No. 1 is possessed of M.Sc. degree in Zoology. This was not a regular appointment in a clear vacancy and, therefore, his appointment was on clock-hour basis @ Rs. 10/- per clock-hour. It was a purely temporary appointment subject to the approval from the Education Officer and the Local Managing Committee of the College. Thus, the petitioner was in service from 1st October, 1981. His services were terminated by order dated 16th March, 1982 with effect from 17th March, 1982 since there was no work for respondent No. 1. However, in the petitioner Institution for the academic year 1982-83 there was full work load available and, therefore, advertisement to that effect was issued in the newspaper for the post of teachers to teach various subjects including Botany. The qualification prescribed was M.Sc. IInd Class in the concerned subject preferably with B.Ed. degree. The respondent No. 1 applied for the said post and appeared for interview. However, the petitioner Management did not select the respondent No. 1. Instead, Smt. A. V. Dange who was M.Sc. (Botany) 1st class first from the Nagpur University and also possessed of B.Ed. degree in 1st Class with previous teaching experience of 5½ years in some other colleges, was selected, by order dated 17-3-1982. The interview were held on 5-8-1982 and having found to have failed in the interview, respondent No. 1 applied on 11-8-1982 to the Deputy Director of Education making grievance in respect of his termination. However, it appears that the Deputy Director of Education has not taken cognizance of the said complaint and, therefore, respondent No. 1 filed appeal before the School Tribunal on 22-11-1982.

3. The said appeal was allowed by the impugned judgment. In the facts and circumstances, the Tribunal has held that the respondent No. 1 was appointed in the mid of session. However, his appointment was approved by the Deputy Director of Education and thereby inferred that the respondent No. 1 was qualified to teach Botany subject for the year 1981, observing that the respondent No. 1 might have taken Botany upto graduation and, therefore, his appointment was approved. It was further observed that, therefore, in the academic Sessions 1982-83, he should have been continued when the post became full-time. It was further observed that it was a clear vacancy and as the respondent No. 1 was possessed of requisite qualification, he ought to have been appointed on probation for two years and not for a specific period and, thus, the Tribunal observed that the appellant was appointed on probation of two years under section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and termination of his service from 17th March, 1982 is treated void, because the service rules governing the services of the respondent No. 1 were not followed.

4. The petitioner has submitted that the approach of the Tribunal was not legal. The respondent No. 1 was appointed in a temporary vacancy on clock-wise basis in the mid of the session of the academic year and that too by the Principal of the College making the appointment of respondent No. 1 subject to the approval from Dy. Director of Education and the Local Managing Committee of the College, it was further

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