The petitioner-Educational Institution running a school has preferred this writ petition being aggrieved by the order passed by the learned Presiding Officer, School Tribunal, Aurangabad in Appeal No. 167 of 1994-M decided on 14-2-1997, whereby the oral termination with effect from 318-1994 was quashed and set aside and order was passed to reinstate the (appellant)-respondent No. 1 in the post of Head Master along with full backwages and continuity of service within 40 days and to pay the arrears of backwages.

2. Present respondent No. 1 Uttam Shrikhande approached the School Tribunal with a case that he is M.A., BEd. He is also belonging to physicallyhandicapped category. He was appointed as Assistant Teacher in Dayanand Vidyalaya, Kaigaon, Taluka Sillod, District Aurangabad run by the petitioner-institution with effect from 1-7-1989. In the year 1992 he was appointed as Head Master of the school. Initially the school was run on non-grant basis, however, subsequently it was granted aid. The appellant was appointed as Head Master as he was possessing requisite qualification and teaching experience. He worked in that post till 31-8-1994. However, the Secretary of the petitioner-institution wanted respondent No.3 to be appointed in place of respondent No. 1 being relative of the President of the petitioner-institution. Respondent No.3 was also working as Assistant Teacher in the same school. Respondent No.1 requested the Secretary of petitioner-institution to give confirmation to him and release salary not paid to him from June, 1993. Being aggrieved thereby the services of respondent No.1 were terminated with effect from 31-8-1994 and, therefore, he approached the School Tribunal.

3. The petitioner-institution is the main contestant. It came with a case that respondent No. 1 was wrongly appointed as Head Master in the year 1992-93 and same mistake occurred in the year 1993-94. Respondent No. 1 was not holding necessary experience as required by Rule 3 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as, "the Rules of 1981 "). It is further stated that the President of the petitioner-institution directed respondent No. 1 to hand over charge of the post of Head Master to respondent No.3. Accordingly respondent No.1 handed over charge of the post of Head Master to respondent No. 3 with effect from 13-6-1994. It is case of the petitioner-institution that on 1-7-1994 respondent No. 1 submitted resignation. This resignation was accepted by the petitioner-institution in the meeting of its Executive Committee on 13-7-1994 and accordingly respondent No.1 was intimated.

4. Thus it is case of the petitioner-institution that respondent No. 1 tendered voluntary resignation as he was asked to step down from the post of Head Master and to work as Assistant Teacher; whereas it is case of respondent No. 1 that it was case of oral termination. It is argued before the School Tribunal that the alleged letter of resignation was obtained under duress and it was not voluntary. The said plea was accepted by the School Tribunal. It came to the conclusion that it is case of oral termination and not of voluntary resignation.

5. It is argued before this Court by the learned advocate for the petitioner-institution that respondent No. 1 was not duly qualified. A reference was made to Rule 3 of the Rules of 1981 and it is pointed .out that for appointment as a Head Master full time experience of 5 years after graduation in a Secondary School was required. In this case respondent No. 1 was appointed as Assistant Teacher in the year 1989 and was appointed as Head Master in the year 1992-93 and same mistake occurred in the year 1993-94.

6. Learned advocate for respondent No. 1 argued that if the appointment of respondent No. 1 was not as per Rule 3 of the Rules of 1981, the petitioner-institution could have held necessary inquiry and could have passed necessary order of reduction in rank af