ORAL JUDGMENT:

1. This writ petition is preferred by the Society running the school against the order passed by the School Tribunal directing the reinstatement of respondent no.2.

2. The facts giving rise to the writ petition are as follows -

Petitioner no.1 is an institute, which runs a school. Respondent no.2 applied to the said school for being appointed as an Assistant Teacher. Respondent no.2 is M.Sc. in Mathematics and B.Ed. and belongs to Scheduled Castes. Respondent no.2 had applied to the petitioner in response to the advertisement issued by petitioner no.1. It found respondent no.2 to be eligible for the said post and he came to be appointed as an Assistant Teacher. He worked as an Assistant Teacher from 21/8/1993 to the end of Session, 1994. The Education Officer had also accorded an approval to the appointment of respondent no.2. The petitioner in 1994-95 advertised the post of Junior Lecturer. Respondent no.2 applied for the said post being qualified for the said post. He was appointed by order dated 1/9/1994. He was appointed on a probation of two years. It was a clear vacant post. Respondent no.2 was during service tenure, also deputed for the H.S.C. Examination paper valuation. After completing that work, when respondent no.2 came back to the school in April, 1995, to his utter surprise, his services were terminated. Feeling aggrieved by the termination, respondent no.2 preferred an appeal before the School Tribunal seeking his reinstatement. The petitioner had contested the appeal. It is the contention of the petitioner that since the appointment of respondent no.2 was temporary it automatically came to an end at the end of the year. There was no clear and vacant post of Lecturer. It is the contention of petitioner that there was no reason for respondent no.2 being surprised by the order of termination, since respondent no.2 was very much aware that his appointment was against reserved post and the posts were required to be filled as per roster. Petitioner nos.1 and 2 deny that the approval granted by respondent no.3 confers any right on respondent no.2. It is contended by the respondents that one Mrs. Meshram and Shende were appointed as Assistant Teacher in the year 1990 and they were senior to respondent no.2 and therefore, they were required to be absorbed first. The approval to the respondent no.2’s appointment was refused by the Education Officer also on the ground that the surplus teachers have to be absorbed first.

3. The learned Judge of the Tribunal found that respondent no.2 was entitled to reinstatement by virtue of provisions contained in Section 5 and Rules 9(9)(a) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. Holding so, he directed the reinstatement and feeling aggrieved thereby, this writ petition is preferred.

4. I have heard the learned counsel for the petitioners and the respondents.

5. Respondent no.2 was appointed by order dated 1/7/1994 as Junior Lecturer against the post advertised. Respondent no.2 was duly qualified to hold the post is not disputed. His services were terminated w.e.f. 4/5/1995 is also not disputed. The post against which he was appointed was reserved for O.B.C. candidate is also not disputed. Respondent no.2 belongs to Scheduled Caste is also further not disputed. The post against which he was appointed was otherwise in a clear vacancy is further not disputed. The judgment of the Tribunal shows that the appointment was on probation and for a period of two years. Annexure ‘B’ is the order of appointment and the said appointment order clearly indicates that the appointment is on probation for a period of two years. It was contended by the petitioners that the post against which respondent no.2 was appointed was a post reserved for the O.B.C. category. It is contended that respondent being Scheduled Caste, he could not claim that it was a clear vacancy for him. It was further submitted that since at that time O.B.C. cand