JUDGMENT -V.K. BARDE, J.:----The facts giving rise to this writ petition are as follows :- (a) Respondent No. 1 is the Education Society running Arts, Science and Commerce College known as Maharashtra Udayagiri Mahavidyalaya at Udgir. The petitioner was appointed as Lecturer in Biology Department, as per letter dated 13-9-1979. Shri N.V. Kulkarni of the Institute had gone on study leave and therefore, Shri P.K. Pole was directed to look after the work of Shri Kulkarni and in the resultant vacancy, the petitioner was appointed as temporary Lecturer with the condition that, in case, Shri Pole had to return to his substantive post, then the services of the petitioner would stand terminated. The appointment was made by the Principal under the emergency powers vested in him subject to the approval of the committee of the Institute and Deputy Director of Education, Aurangabad. (b) After this appointment, the petitioner continued in service till 20-6-1980. Thereafter, again as per order dated 4-8-1980, the petitioner was appointed as temporary Lecturer on the same condition as per appointment order dated 13-9-1979 and then the petitioner continued in service of the institute as Lecturer till 14-1-1984. Shri Kulkarni had returned to his post on 1-6-1982, that means, even after return of Shri Kulkarni the petitioner was continued in service till 14-1-1984. His services came to be terminated as per order dated 15-12-1983. Under this order, the petitioner was informed that as there was no work load in the subject in which he was appointed as Lecturer, his services were no more required by the institute and he was being retrenched with effect from 15-1-1984. (c) Against this order of termination of service, the petitioner filed appeal before School Tribunal, Aurangabad, being Appeal No. 1/1984. The petitioner challenged his termination on the ground that it was mala fide, the statement made in the order, that there was no work load, was false statement, there was enough work load, for continuation of the petitioner in service. His juniors were retained in service, while his services were terminated. It was also contended that the Lecturers working in Senior College were allowed to work in Junior College and, therefore, work load of Junior College was shown less. However, as per the Government Resolutions, the Lecturers working in Senior College cannot be given work in Junior College. His juniors were retained in service, while his services were terminated. It was also contended that the Lecturers working in Senior College were allowed to work in Junior College and, therefore, work load of Junior College was shown less. However, as per the Government Resolutions, the Lecturers working in Senior College cannot be given work in Junior College. So, the calculation of work load was completely wrong, the petitioner ought to have been continued in service. The petitioner has become permanent employee of the institute because he had completed more than two year's service. The petitioner has, therefore, prayed that the order of termination dated 15-12-1983 be set aside and he be reinstated in service. 2. The learned Member of the School Tribunal by his judgment dated 2-8-1984, dismissed the appeal. Hence, the present petition. 3. The petitioner has raised practically the same points in this writ petition which he had raised in the appeal. 4. It is not in dispute that the first appointment of the petitioner was during the leave vacancy and the second appointment of the petitioner was also during the leave vacancy and these two appointment letters which are at Exhibits "A" and "B" with the compilation are not in dispute. So also, it is not in dispute that Shri Kulkarni returned to the services of the institute with effect from 1-6-1982 and the petitioner continued in service till 14-1-1984, even after return of Shri Kulkarni. However, it appears that after 1-6-1982, no formal order was passed for continuation of the petitioner in service, either for a fixed period or as a temporary or on probation. The services of the petitioner stood terminated because of the order dated 15-12-1983 and, therefore, the question arises what was the nature of the services of the petitioner from 1-6-1982 to 15--12-1983. 5. The learned Counsel for the petitioner has argued with reference to the provisions of section 5(2) of the Maharashtra Employees of Private Schools Conditions of Service) Regulation Act, 1977 (For short, hereinafter referred to as "the Act"). Section 5(2) reads as under :- "Every person appointed to fill a permanent vacancy shall be on probation for a period of two years. Subject to the provisions of sub-sections (4) and (5), he shall, on completion of this probation period of two years, be deemed to have been confirmed." 6. Section 5(2) reads as under :- "Every person appointed to fill a permanent vacancy shall be on probation for a period of two years. Subject to the provisions of sub-sections (4) and (5), he shall, on completion of this probation period of two years, be deemed to have been confirmed." 6. To take advantage of this provision, first it must be proved that the appointment was to fill in permanent vacancy. It is already pointed out that the first two appointment letters were for the leave vacancy period and not to fill in permanent vacancy. The petitioner somehow continued in service after 1-6-1982. But here again, there is nothing on record to show that he was continued to fill in permanent vacancy. No formal order was issued. Mere continuation in service, in such circumstances, cannot be treated as the appointment was to fill in permanent vacancy. Here it is worth noting that the petitioner has nowhere alleged that there was a permanent vacancy even after return of Shri Kulkarni and to fill in that vacancy, the petitioner was appointed. So, if the petitioner was not appointed to fill in a permanent vacancy, he cannot take advantage of deeming provision of section 5(2) of the Act. 7. If the appointment of the petitioner continued upto return of Shri Kulkarni, that is, till 1-6-1982, as an appointment on leave vacancy, then he cannot take advantage of that period, to consider that it was period to be calculated as the petitioner working on probation. The period, with effect from 1-6-1982 till the order of termination of service dated 15-12-1983, is the only period when the petitioner was in actual service of respondent No. 1 not on leave vacancy and this period is not of two years for the petitioner to claim that he be considered as deemed permanent by the analogy used in sub-section (2) of section 5 of the Act. So, from this point of view also, the petitioner cannot take advantage of section 5(2) of the Act. 8. Now, coming to the question of work load because the letter of termination indicates that as there was no work load available, his services were terminated. So, from this point of view also, the petitioner cannot take advantage of section 5(2) of the Act. 8. Now, coming to the question of work load because the letter of termination indicates that as there was no work load available, his services were terminated. The various documents on record indicate that there was work load of 84 periods in Biology Department of the College, and the petitioner has contended that this work load was sufficient for appointment of 3 full time Lecturers and one part time Lecturer. Even then, the petitioner's services were terminated for want of work load. This happened because the two lecturers, namely. Shri Bongulwar and Shri Wardhman, who were Lecturers in Senior College were given period of Junior College and that caused reduction of work load of Junior College. 9. According to the petitioner, the Government Resolution prohibited from such distribution of work load and consequential reduction of work load in Junior College. However, the learned Member of the Tribunal has considered this aspect of the case in his judgment and he has pointed out that the Government Resolution dated 14th March, 1980 gave permission to the Management to allot the work load of Junior College to the Lecturers from Senior College but on doing so in consequence work load of Junior college has to be reduced to the extent periods allotted to Lecturers from Senior College. 10. From the documents produced on record, it appears that Shri Bongulwar and Shri Vardhman who were permanent Lecturers in Senior College were not having sufficient work load. So, each of them was given 5 periods work load in Junior College besides 15 periods work load to Senior College. To protect the services of the permanent Lecturers, it was done. It was so permitted by the Government Resolution dated 14-3-1980. There is no substance in the contention of the petitioner that the work load of Junior College was wrongly given to the Lecturers from Senior College and the petitioner could have been accommodated on the basis of the work load of Junior College by itself. There was no sufficient work load to continue the service and, therefore, the petitioner's services stood terminated. 11. In the appeal filed before the Tribunal, the petitioner had contended that all the respondent Nos. 4 to 7 were junior to him in the service of the institute. There was no sufficient work load to continue the service and, therefore, the petitioner's services stood terminated. 11. In the appeal filed before the Tribunal, the petitioner had contended that all the respondent Nos. 4 to 7 were junior to him in the service of the institute. However, the learned Member of the Tribunal has given the finding that the respondent Nos. 4 to 6 were senior to the petitioner. The learned Counsel for the petitioner has admitted that Shri Pole was senior to the petitioner in Biology Department. From the findings recorded by the learned Member of the Tribunal, it is very well established that Shri Badihaveli and Shri Wadkar both were senior to the petitioner, not on the ground that they had come in the service earlier than the petitioner but on the ground that they were working in different departments and there they were senior, while the petitioner in Biology Department was the junior most. So, there could not be any comparison between the petitioner and respondent Nos. 5 and 6. 12. So far as Shri Kariappa, respondent No. 7 is concerned, it appears that he was working as part time Lecturer on the approved work load. Furthermore, both the petitioner and Shri Kariappa, had come into service on one and the same date. But Shri Kariappa was elder in age to the petitioner. Shri Kariappa was having teaching qualification of B.Ed and the petitioner was not having teaching qualification of B.Ed. The learned Member of the Tribunal has rightly come to the conclusion that Shri Kariappa was senior to the petitioner in Biology Department. So his services could not be terminated on the ground that he being junior most in the Department. He was continued as part time Lecturer. While the petitioner was claiming the post of full time Lecturer. 13. After the return of Shri Kulkarni, the petitioner had written a letter to the management on 31-6-1982, copy of which is filed on record by the respondents as Annexure "R-3". By this letter, the petitioner had requested the management to continue his services treating him junior to Shri P.K. Pole, even after return of Shri Kulkarni in the services of the Institute. However, it appears that no reply was given to this letter. But the petitioner was continued till 14-1-1984 without passing any formal order. 14. By this letter, the petitioner had requested the management to continue his services treating him junior to Shri P.K. Pole, even after return of Shri Kulkarni in the services of the Institute. However, it appears that no reply was given to this letter. But the petitioner was continued till 14-1-1984 without passing any formal order. 14. The learned Counsel for the respondent institute has argued that it was expected that additional divisions would be sanctioned and with that hope, the services of the petitioner, who happened to be son-in-law of the President of Institute, were continued. This is really regrettable position. When additional divisions were not granted, when there was no work load available, and when Shri Kulkarni had returned to the service, considering this position, the petitioner's services ought to have been terminated immediately on return of Shri Kulkarni. It appears that only because the petitioner was son-in-law of the President of the Institute, his services were continued and by way of safeguard, no formal order was passed in this respect. So, in a way, the continuation of the petitioner was gratuitous and, in such circumstances, the petitioner cannot claim any legal rights. 15. When it is found that there was no sufficient work load and the petitioner was junior most, it cannot be said that the order dated 15-12-1983 was issued with mala fide. It is the contention of the petitioner that the father-in-law of the petitioner had started an enquiry against the Principal of the College for alleged malpractices. Thereafter, there was change in the Managing body and the father-in-law of the petitioner could not continue as Chairman of the Managing Committee. So, the new Managing Committee got pressure on the Principal to remove the petitioner from the service. 16. Besides making these allegations, no substantive evidence was brought before the Tribunal and it is also not brought before this Court to hold that there was any such enquiry during the relevant time against the Principal and that has caused passing of the order of termination of the services of the petitioner. The very circumstance, that even after return of Shri Kulkarni the petitioner was continued in service, goes to indicate that the Principal was not holding any mala fide intentions against the petitioner. Probably because the petitioner happened to be son-in-law of the Chairman, he was continued in service. The very circumstance, that even after return of Shri Kulkarni the petitioner was continued in service, goes to indicate that the Principal was not holding any mala fide intentions against the petitioner. Probably because the petitioner happened to be son-in-law of the Chairman, he was continued in service. But the explanation is given that the institute was expecting that there would be additional division, and then there would be sufficient work load, hence the petitioner was continued in service. 17. Considering the letter Exhibit R-2 (Page 88), it can be said that for the year 1982-1983, additional division was granted. But for the next year, there was no such grant of additional division to the College. So, under the expectancy of receiving permission to run additional division, the services of the petitioner were continued. But otherwise he had no legal right to continue in service after 1-6-1982. The ground of mala fide, thus, fails. 18. In this respect, the learned Counsel for respondent No. 1 has pointed out the letter dated 30th August, 1990 from the Institute to the petitioner which indicates that when the work load was available, the petitioner was recalled in service as per the provisions of Rule 26(3) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (For short, hereinafter referred to as "the Rules"). So, if there had been any mala fide on the part of the Institute against the petitioner, nearly six years after termination of services of the petitioner, he would not have been called back in the service. Whatever it may be, the fact remains that there was no sufficient work load to continue the petitioner in service. He was the junior most. He was not appointed on any permanent vacancy and, therefore, his services were rightly terminated. 19. The learned Counsel for the petitioner has argued that if this was the termination of the services as per Rule 26 of the Rules, then three months notice ought to have been served on the petitioner. However, there was only one month's notice. As per Rule 26 of the Rules, if three months notice was not served, then he was entitled to get pay to three months in lieu of the notice. But here, the petitioner was not paid his salary from June 1983 till the date of his termination. However, there was only one month's notice. As per Rule 26 of the Rules, if three months notice was not served, then he was entitled to get pay to three months in lieu of the notice. But here, the petitioner was not paid his salary from June 1983 till the date of his termination. This circumstance is pleaded by way of technical fault as well as to indicate mala fide. 20. I have already pointed out that the petitioner has failed to prove mala fide. So far as technical fault is concerned, it is contended that there was no notice of termination of service as contemplated under Rule 26 of the Rules. The notice ought to have been of three months or in lieu of notice, the petitioner ought to have been paid three months salary. By filing additional affidavit on record, the respondent-institute, has made it clear that the petitioner is paid salary upto 14th January, 1984, that means, period of one month is covered but the period of two months has remained and the salary of the period of two months was not paid to the petitioner. 21. But here again, it must be noted that Rule 26 of the Rules is applicable to the permanent employees and not to other employees. The petitioner, as of right, cannot claim three months salary by taking advantage of Rule 26. It is already pointed out that the petitioner was not a permanent employee of the institute. He was continued in service from June, 1982 to January 1984 without any legal basis. There was no formal order of his appointment. In fact, his services had to be presumed to be terminated with effect from 1-6-1982, the date on which Shri Kulkarni returned to the services of the institute and, in such circumstances, when the petitioner has received salary of further period, no doubt, by rendering services as Lecturer, he cannot dwell on technicalities of Rule 26 to claim three months salary in lieu of the notice. Hence, there is no substance in the petition. 22. In the result, the writ petition is dismissed. Rule is discharged. No order as to costs. Writ petition dismissed. -----