RULE. Rule made returnable forthwith. The petition is heard finally at the stage of admission as the notice of final disposal was issued by an order dated 24.11.2010 and the respondents are duly served with the notice.

2. The petitioner was admittedly working as a peon with the respondent no.2-Society since the year 1989. Thus, it is the case of the petitioner that he was appointed as a peon by the management in the year 1981. It is also not in dispute that on 27.11.1991, the appointment of the petitioner on the post of peon was approved by the Education Officer with effect from 11.05.1991 until further orders. The petitioner was continued in service as a peon, when in the year 2001 a chargesheet was issued against him levelling certain charges of misconduct. An enquiry was held against the petitioner under the provisions of Rule 36 and 37 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 and in pursuance of the enquiry report, the petitioner's services were terminated by an order dated 21.02.2002.

3. The petitioner preferred an appeal before the School Tribunal challenging his termination order. In view of the directions issued by this Court in the case of Anna Pethe, reported in 1997 (3) Mh.L.J. 697 (Anna Manikrao Pethe Versus Presiding Officer, School Tribunal, Amravati and Aurangabad Division, Amravati & others), the Tribunal framed the three preliminary issues pertaining to the recognition of the school, the appointment of the appellant/petitioner in accordance with the provisions of Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and in regard to grant approval to the appointment of the petitioner by the Education Officer. The issue as regards the recognition of the school under the Act of 1977 was answered in the affirmative and in favour of the petitioner. The Tribunal, however, held that the appointment of the petitioner was not made as per Section 5 of the Act of 1977 and the Rules of 1981 framed thereunder. The Tribunal held that the issue as regards the grant of approval to the appointment of the petitioner on the post of Peon by the Education Officer in accordance with the Act and the Rules became redundant in view of answering the second issue about the legality of the appointment in the negative and against the petitioner. Since it was held by the Tribunal that the appointment of the petitioner was not in accordance with Section 5 of the Act of 1977 and the Rules of 1981, the Tribunal dismissed the appeal filed by the petitioner.

4. Mrs. Patil, the learned counsel for the petitioner, submitted that in the instant case, the

Tribunal ought not have framed the second issue about the legality of the appointment of the petitioner in accordance with the provisions of Section 5 of the Act of 1977 as it was not the case of the management that the petitioner was working as a Peon on temporary basis and was not a permanent employee. The learned counsel for the petitioner submitted that the very fact that the respondent-management held a full fledged enquiry against the petitioner under the provisions of Rule 36 and 37 of the Rules of 1981, itself showed that the petitioner was a permanent and confirmed employee and his appointment was made in pursuance of the provisions of Section 5 of the Act of 1977. Taking this Court through the written statement of the respondent/ management, it is canvassed on behalf of the petitioner that it is not the case of the management that the petitioner was a temporary employee and his services were not confirmed. In the absence of such pleadings, according to the learned counsel for the petitioner, there was all the more reason for the Tribunal for not framing the issue about the legality of the appointment of the petitioner in accordance with the provisions of Section 5 of the Act of 1977. Since it was not the case of the respondent-management that the appointment of the petitioner was not m