JUDGMENT - MOHTA ANOOP V., J.:-The present petition is under Articles 226 and 227 of the Constitution of India, filed by the petitioner (Assistant teacher) and thereby, has challenged the order and judgment dated 27th October, 1989, passed by the Presiding Officer, School Tribunal, Mumbai (for short Tribunal), in Appeal No. GEN/71/SND/3 of 1988, whereby, the Tribunal, had allowed the appeal but only granted the benefit under section 11(2)(e) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short “MEPS Act”) and directed to pay six months salary by way of compensation instead of reinstatement, although the termination order dated 30th March, 1988, of the petitioner was set aside. The petitioner, being aggrieved, therefore, has basically prayed for reinstatement as permanent assistant teacher and all other benefits.

2. Heard the learned Counsel appearing for the parties. The basic issue which needs to be answered in this petition is the right of the petitioner, being an open category candidate, to have a status of permanency as assistant teacher on a reserved post.

3. The provisions of the MEPS Act and the Rules made thereunder govern the recruitment and conditions of service of employees in private schools. The relevant Sessions are sections 4, 5 and 9. The relevant Rules are called the Maharashtra Employees of Private School Rules (for short MEPS Rules). The relevant Rules, which covers the case in hand, are Rules 9 and 28.

4. The petitioner was appointed temporarily in the post of assistant teacher for the period 1984-1985 and 1985-1986. Thereafter, he was appointed on probation for a period of two years under section 9(5) of the MEPS Act. The said appointment order itself contained a clause that his appointment would be subject to approval of the Education Department of District Sindhudurg. The respondent-management, however, by an order dated 30th March, 1988, terminated the services of the petitioner. The petitioner, therefore, preferred an appeal under section 9 of the MEPS Act and Rules. The School Tribunal after considering the contentions raised, including the written submissions filed by respondents, passed the impugned order and held that the impugned termination notice dated 30th March, 1988, was illegal, invalid and improper. Accordingly, the appeal was allowed. However not granted reinstatement with back wages, after recording the statement that a suitable substitute from S.T. category is posted. The respondents were directed to give him six months salary only.

5. It appears from the record, as well as the written statement filed by the management that the post in question was reserved for SC/ST candidate. As per the advertisement, the petitioner was appointed for the respective years, subject to the approval from the Education Department, Zilla Parishads, Sindhudurg. The said appointment was purely temporary. As there was no candidate available, belonging to the said reserved category, petitioner was appointed temporarily, on the said post. The said process was continued for two years more. The respondents case is that as the candidate belonging to the reserved category were not available or did not respond to the advertisement and, therefore, were left with no choice, but to appoint the petitioner on a temporary basis. The foundation of the respondents cannot be overlooked as the post was meant for reserved categories and this post was always subject to the approval from the education department. There is no dispute that the petitioner belongs to the open category. The petitioners entitlement to enjoy the post, in the circumstances would be subject to the non-availability of reserved category candidate or such other candidate. The fact that he was appointed from time to time from the year 1984 upto 1987-1988, by that itself, nowhere gives any right to such candidate to claim permanency even after expiry of the alleged probation period, in the facts and circumstances o

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