JUDGMENT - R.M.S. KHANDEPARKAR, J.:---Heard learned Advocates for the parties. Perused the records.

2. The petitioner challenges the judgment and order dated 5-8-1999 passed by the School Tribunal Aurangabad in Appeal No. 138 of 1998.

3. Few facts, relevant for the decision, are that the petitioner was appointed as a Peon in the primary school belonging to the respondent No. 3 by an order dated 8th October, 1994 on probation for 2 years commencing from 10th of October, 1994. His appointment was duly approved by the Education Officer respondent No. 2 and the same was communicated to the school under letter dated 29th January, 1995. By letter dated 22nd February, 1997 the respondent No. 2 informed the school that on account of fall in the number of students in the school, the strength of the staff of the school ought to have been reduced in accordance with the provisions of law and yet the management has failed to take appropriate action in that regard and, therefore, in future it would be the responsibility of the management to pay the salary of the excess staff without any liability of the Government to provide grant-in-aid in respect of the excess staff. Since 30th December, 1997, the petitioner was prohibited from signing muster roll by the respondents Nos. 3 and 4 and, therefore, the petitioner filed the Appeal No. 138/1994 before the School Tribunal in July 1998. Prior to that, he had approached this Court by Writ Petition No. 694 of 1998, however, in view of availability of alternative efficacious remedy to the petitioner, this Court had refused to entertain the said petition by order dated 21-7-1998, while giving liberty to the petitioner to explore the alternative remedy within 30 days therefrom. Accordingly, the said appeal was filed by the petitioner in the School Tribunal. In spite of service of notice of the appeal, the respondents No. 3 and 4 preferred not to contest the appeal though the respondent No. 2-Education Officer, filed his written statement and objected to the grant of relief to the petitioner on the ground that the post of Peon was abolished during the academic year 1995-96 and, therefore, there was no question of petitioner being continued in the services of the respondent No. 3 after abolition of the said post and hence there was no question of confirmation of the petitioner in the services.

4. The Tribunal, while holding that in view of the Circular dated 22-2-1997 the post of the Peon was abolished and therefore the petitioner is not entitled to claim any relief in the matter as asked for, and, therefore, the appeal was dismissed with the direction that the respondents Nos. 2 and 4 to absorb the petitioner in case the strength of the students in the school exceeds 500.

5. While assailing the impugned judgment, the learned Advocate for the petitioner has submitted that by letter dated 8-10-1994, the petitioner having been appointed on probation for a period of 2 years, his appointment having been approved by the Education Officer and accordingly communicated to the management of the school by letter dated 29-1-1995 and the petitioner having completed the said probation period without any adverse remark, or communication of any such adverse remark to the petitioner, or communication from the management about non requirement of the petitioner after expiry of the said probation period, the petitioner is deemed to have been confirmed in the post of Peon with effect from 10th October, 1996 in terms of section 5(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. Being so, the services of the petitioner could not be terminated otherwise than resorting to the provisions contained in Rule 26 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. Oral termination being not permissible under the said Act and the Rules made thereunder, the refusal on the part of the respondents No. 3 and 4 to sign the muster roll and failure on their par

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