B.P. Dharmadhikari, J.

1. Heard the learned Counsel for the parties.

2. We have perused judgment delivered by School Tribunal in Appeal No. STN/176/95 on 19.2.1997. There because of three years’ service put in by the present appellant from 1992-93 onwards and provisions of Rule 9(9) (a) of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as “1981 Rules”) an inference of proper selection and, therefore, right to post has been drawn. Accordingly, a relief of reinstatement was given by setting aside the order of termination dated 30.3.1995.

3. Management approached learned Single Judge of this Court in Writ Petition under Articles 226 & 227 of the Constitution of India. That Writ Petition No. 861/97 has been allowed on 16/18 March, 2009. Learned Single Judge has found material on record insufficient to take recourse to Rule 9(9) (a) of 1981 Rules. Thus, judgment of School Tribunal was quashed and set aside. The learned Single Judge has also found that respondent before it worked only in 1992-93 and thereafter in 1994-95. In other words, she was not in employment in 1993-94.

4. This judgment of learned Single Judge has been questioned by appellant in the present appeal.

5. According to Mr. Anil S. Mardikar, learned Senior Counsel for the appellant, provisions of Rule 9(9) (a) permit management to appoint OBC candidate like present appellant on permanent basis if a candidate belonging to particular reserved category is not available. He submits that here after proper selection process, the appellant was appointed. Advertisement specified vacancy to be clear and permanent. Hence, initial appointment itself was on probation and, therefore, after completion of period of two years of service at the end of academic year 1993-94, appellant attained permanency. Hence, her termination by order dated 30.3.1995 which is in third year is unsustainable and any such termination could have been only after proper departmental enquiry.

6. Mr. R.L. Khapre, learned Advocate for respondent nos. 1 to 3, submits that in appeal filed before School Tribunal, no plea of recruitment under Rule 9(9) (a) was raised. School Tribunal merely because provision exists has taken recourse to it without ascertaining necessary facts. He invites attention to observations of learned Single Judge to urge that after due application of mind the finding of lack of material to support such recourse and its validity is recorded. He contends that even material demonstrates that appellant was not employed in 1993-94 and during that period one Mr. Hedau had been working. He contends that this view taken by learned Single Judge does not call for any interference.

7. We have with the assistance of respective Counsel perused the judgment delivered by School Tribunal as also by learned Single Judge. Rule 9(9) (a) of 1981 Rules is an exception and it permits filling in of a teaching post reserved for a particular caste/tribe by a person belonging to other Backward Class/Tribe, if the vacancy could not be filled in by taking recourse to Rule 9(8).

8. The learned Single Judge has correctly appreciated the controversy and recorded a conclusion that material on record was insufficient to demonstrate such a failure on part of management to fill in teaching post through a particular reserved Caste/Tribe candidate.

9. Even if contention of petitioner is accepted to be correct, there were three advertisements, i.e. in the year 1992-93, 1993-94 and 1994-95. In each year appellant applied and was selected. Approval given to her employment, therefore, also would have been in terms of appointment order, i.e. on year to year basis. On the strength of this material, inference by recourse to Rule 9(9) (a) is not possible.

10. The learned Single Judge has also found that if regularly appointment orders were issued to appellant, contention that only in year 1993-94 such an order was not issued to her cannot be accepted. We in this situation do not