D. D. SINHA, J.

( 1 ) HEARD learned counsel for the petitioner as well as learned counsel for the respondents.

( 2 ) THE learned counsel for the petitioner has stated that the petitioner was employed as Assistant Teacher in Jawahar Urdu high School, Ashti, run by Respondent No. 1- management. The Respondent No. 2 was also appointed in the same School. It is submitted that in the present writ petition, the petitioner has challenged the order of appointment of respondent No. 2 as Head Master on the ground that the petitioner was eligible and entitled to be appointed on the post of Head Master from 1-6-1990 till 7-5-1997 i. e. the date on which he was made to retire as Assistant Teacher.

( 3 ) THE learned counsel for the petitioner contended that the petitioner has acquired qualification i. e. B. Sc. B. Ed. , before he was appointed as Assistant Teacher and therefore, on the date of appointment i. e. on 26-8-1975 the petitioner was B. Sc. B. Ed. On the other hand, the Respondent No. 2 was appointed as Assistant Teacher on 15-7-1973 and at the relevant time he only had B. A. qualification.

( 4 ) THE learned counsel for the petitioner further contended that one Mr. M. M. Quereshi, who was the Head Master, was suspended by order dated 15-2-1982 and on his suspension, the petitioner being the senior-most teacher was appointed as in-charge Head master of the School. It is submitted that the order of appointment of the petitioner as in-charge head Master shows that the management had specifically mentioned therein, that petitioner being the senior-most teacher was directed to receive the complete charge from Mr. M. M. Quereshi, suspended head Master and was asked to look after the affairs of the School as in-charge Head Master. The learned Counsel for the Petitioner therefore contended that in the year 1982 itself the petitioner was senior-most teacher and therefore he was made in-charge Head Master by the Management. The learned counsel for the petitioner further contended that the appointment of the petitioner as in-charge Head master was approved by the Education Officer vide letter dated 23-3-1982.

( 5 ) THE counsel for the petitioner has contended that at the later point of time, for the personal reasons, the petitioner wrote a letter dated 5-7-1983 to the Respondent- management for reverting the petitioner from the post of in-charge Head Master to his original post of Science Teacher. It is contended that mr. Quereshi was terminated from service w. e. f. 3-3-1990 and after his termination, regular vacancy occurred for the post of Head master and therefore, as per provisions of explanation to sub-clause (3) of Rule 3 of the maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, the petitioner who was the senior-most teacher was required to be considered by the respondent-Management for appointment to the post of Head Master.

( 6 ) IT is further contended that though the Management, after the petitioner was reverted back to his original post of Science teacher, has appointed Respondent No. 2 as in-charge Head Master, who continued to be the in-charge Head Master till 1990, could not have been continued after the termination of mr. Quereshi in the year 1990, and when the regular vacancy occurred for the post of Head master then as per sub-clause (3) of Rule (3), it is the senior-most teacher alone who is entitled to be considered for the post of Head master and as per Explanation to sub-clause (3), the petitioner ought to have been considered for the post of Head Master and should have been appointed as Head Master of the School w. e. f. 1-6-1990, and the Management should have given the pay scale applicable to the post of Head Master with all consequential benefits including the pension which is applicable to the post of Head Master.

( 7 ) THE counsel for the Respondent nos. 1 and 2 has not disputed the above referred iacts placed before us by the learned counsel for the petitioner, however, contended