S.B. Deshmukh, J.

1. 1. Heard. Rule. Rule made returnable forthwith by consent of parties.

2. 2. This writ petition is directed against the judgment dated 26th August 2003 passed by respondent No. 3 in Appeal No. STN/195/1996.

.3. The admitted facts are that the respondent No. 1 was appointed as Assistant Teacher vide order dated 12th August 1993 for academic session 1993-94 on temporary basis. At the time of appointment, the respondent No. 1 was graduate only and had not obtained professional qualification and thus was not qualified for appointment to the post of Assistant Teacher. Thereafter, it seems that the petitioner has acquired necessary qualification of B.Ed. By appointment order dated 15-7-1994 the respondent No. 1 was appointed as Assistant Teacher for the sessions 1994-95 and 1995-96 on probation. A perusal of the said appointment order which is placed on

.record shows that the respondent No. 1 was B.Sc. B.Ed, and the appointment on probation for the aforesaid period is subject to approval of the Education Officer (Sec), Zilla Parishad, Wardha. Respondent No. 1 has signed the appointment order acknowledging receipt and acceptance of the said order which, according to the petitioners, was delivered by hand. The respondent No. 1 joined his duties on 16th July 1994.

3. 4. Respondent No. 1 filed appeal before the Tribunal challenging the order of termination dated 7-4-1996. The said order placed on record informed the respondent No. 1 that he was appointed upto the end of session 1995-96 on purely temporary basis and his services will be terminated from the last working day of the said session. The appeal was filed on 17-7-1996 after expiration of the period of limitation. However, the delay was condoned by the respondent No. 3. Respondent No. 1s contention is that though he was appointed on probation for a period of two years, his services have been terminated vide order dated 7-4-1996 showing his appointment on purely temporary basis.

.5. In their written statement filed before the Tribunal, the petitioners contended that the termination order dated 7-4-1996 was in fact withdrawn by the management as the same was issued through inadvertence and the petitioners clarified that the termination was effected vide order dated 9-4-1996 in accordance with the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules framed thereunder. The petitioners contended that the respondent No. 1 suppressed the order dated 9-4-1996 and was trying to take undue advantage of the order dated 7-4-1996 which was issued through inadvertence and which was withdrawn. The petitioners contended that before completion of probation period and acquiring status of permanency, the

.services of the respondent No. 1 have been terminated with due observance to law. The petitioners have placed on record written communication addressed by the Head-master of its school complaining about the misbehaviour and unsatisfactory work and conduct on the part of the respondent No. 1. Thus, according to the petitioners, the termination was proper and justified.

4. 6. The Tribunal by the impugned judgment and order allowed the appeal of respondent No. 1. The Tribunal found that the report of the Head-master was manipulated and was prepared with mala fide intention in order to remove the petitioner from service. The Tribunal directed reinstatement of respondent No. 1 and has granted other ancillary reliefs.

5. 7. As aforesaid, the petitioners in their Written Statement itself contended that the termination order dated 7-4-1996 was withdrawn and subsequent order dated 9-4-1996. was issued. Despite this position, the respondent No. 1 did not choose to amend his pleadings and proceeded with the appeal as was framed and filed impugning the order dated 7-4-1996. The Tribunal conveniently quashed the order dated 7-4-1996 or 9-4-1996. In my view, the Tribunal could not have quashed and set aside the order dated 9-4-1996 as th