JUGDMENT - VAZIFDAR S.J., J.:---The parties have agreed that the facts and issues in Writ Petition No. 2191 of 2001 are almost identical to those in Writ Petition No. 2239 of 2001. They have agreed that the decision in Writ Petition No. 2239 of 2001 will govern the outcome of Writ Petition No. 2191 of 2001. They have also agreed that both the writ petitions can therefore be disposed of by this common judgment. The references throughout this judgment are in respect of Writ Petition No. 2239 of 2001. 2. Respondent No. 1 is the Chairman/Secretary of Halkarni Bhag Shikshan Prasarak Mandal, Halkarni. Respondent No. 2 is the Head Master of Kadalage High School, District Kolhapur, Maharashtra. Respondent No. 3 is the Education Officer. Respondent No. 4 was joined as a party to the petition on the ground that he was appointed in the post, which was held by the petitioner. Respondent No. 5 is the Presiding Officer of the School Tribunal. Respondent No. 6 is the State of Maharashtra and respondent No. 7 is the Assistant Provident Fund Commissioner, Kolhapur. 3. The petition challenges an order dated 15th December, 2001 of the School Tribunal, dismissing the petitioners appeal under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977 (M.E.P.S. Act). The petitioners appeal under section 9 of the M.E.P.S. Act challenged the "termination" of his services by respondent Nos. 1 and 2 by what is referred to by him as a notice of termination dated 31st March, 1997 and the action of respondent No. 1 in advertising the post for another candidate. 4. By an order of appointment dated 10th June, 1993, the petitioner was appointed as an Assistant Teacher with effect from 14th June, 1993. Clause 2 of the said appointment order is as under:--- "2. *Your appointment is purely temporary for a period of *months/year from 1993 to 1994 in the *leave /deputation vacancy. After expiry of the above period, your services shall stand terminated without any notice. Till the candidates belonging to Backward Class of Scheduled Tribe would become available". OR *Your appointment is on probation for a period of two years. The words appearing after the word OR viz.:--- "*Your appointment is on probation for a period of two years" have been deleted by a cross being placed to the left of the star symbol. It was agreed between Ms. OR *Your appointment is on probation for a period of two years. The words appearing after the word OR viz.:--- "*Your appointment is on probation for a period of two years" have been deleted by a cross being placed to the left of the star symbol. It was agreed between Ms. Deshpande, the learned Counsel appearing on behalf of the petitioner and Shri Bandhiwadekar, the learned Counsel appearing on behalf of respondent Nos. 1 and 2 that the above words "Till the candidates belonging to Backward Class of Scheduled Tribe would become available" are the correct translation from Marathi in which they appear. The petitioner has endorsed the word "Received" and appended his signature thereto at the foot of the order of appointment. The petitioner by his letter dated 14th June, 1993 addressed to respondent No. 2 expressly stated that he was joining as per the above Order No. 2/93-94 dated 10th June, 1993. On the term of the petitioners appointment having come to an end, respondent No. 2 addressed a letter dated 30th March, 1994 to the petitioner informing him that his appointment under the said order dated 14th June, 1993 was for the year 1993-94 and therefore, his services would come to an end on 30th April, 1994. The petitioner was therefore, requested to note the same and hand over charge of the school on 30th April, 1994. The petitioner acknowledge the receipt of this letter. 5. Thereafter the petitioner made a fresh application dated 4th May, 1994 pursuant to which respondent No. 1 by an order of appointment dated 10th June, 1994 appointed the petitioner as an Assistant Teacher for the period 13th June, 1994 to 30th April, 1995. Clause 2 of the said order of appointment was identical to Clause 2 of the earlier orders of appointment including as regards deletion of the term "your appointment is on probation for a period of two years". It was also stated that after expiry of the above period, the petitioners services would stand terminated without any notice. Respondent No. 1 by his letter dated 30th March, 1995 addressed to the petitioner noted that as per the above order of appointment dated 10th June, 1994 his appointment would come to an end on 30th April, 1995 and therefore, requested him to hand over charge of the school. 6. Respondent No. 1 by his letter dated 30th March, 1995 addressed to the petitioner noted that as per the above order of appointment dated 10th June, 1994 his appointment would come to an end on 30th April, 1995 and therefore, requested him to hand over charge of the school. 6. Thereafter, the petitioner made yet another application dated 21st May, 1995, pursuant to which respondent No. 1 by an order of appointment dated 10th June, 1995 appointed the petitioner as an Assistant Teacher for the period of 12th June, 1995 to 30th April, 1996. Clause 2 of the said order of appointment was identical to Clause 2 of the earlier orders of appointment including as regards deletion of the term "your appointment is on probation for a period of two years". Respondent No. 1 by a letter dated 30th March, 1996, addressed to the petitioner noted that as per the order of appointment dated 10th June, 1995 his services would come to an end on 30th April, 1996. 7. Thereafter, the petitioner by his letter dated 10th May, 1996 made a fresh application to respondent No. 5, requesting that he be appointed as an Assistant Teacher in the said school. The petitioner did not make any grievance in respect of above letters from respondent No. 1 noting that his services would come to an end on the date specified in the respective orders of appointment. By an order of appointment dated 10th June, 1996, the petitioner was appointed to the post of a Teacher for the period 12th June, 1996 to 30th April, 1997. This was the last order of appointment. An agreed translation was provided. Clauses 2, 3 and 5 are important and as follows:--- "2. This appointment has been made in the post belonging to backward class category (D.T.N.T.) and therefore it is on temporary basis and therefore you should give the enclosed undertaking that you have no right over the said post. 3. The said appointment is for academic year 1996-97 only. 5. Clauses 2, 3 and 5 are important and as follows:--- "2. This appointment has been made in the post belonging to backward class category (D.T.N.T.) and therefore it is on temporary basis and therefore you should give the enclosed undertaking that you have no right over the said post. 3. The said appointment is for academic year 1996-97 only. 5. After the end of aforesaid period, your service would come to an end without any notice." Below the said order of appointment, the petitioner gave a written undertaking to the effect that his appointment was made in the post reserved for D.T./N.T. and therefore, his appointment had been made only for the academic year 1996-97 and that he would not stake any claim on the said post and would not make any complaint whatsoever. This undertaking is dated 12th June, 1996. By a further letter dated 12th June, 1996, the petitioner stated that he was joining the duties as per the said order of appointment dated 10th June, 1996. Ultimately, respondent No. 1 by a letter dated 31st March, 1997 stated as follows:--- "Your appointment under Order No. 3 dated 10-6-1997 was for the year 1996-97 and therefore your services come to an end on 30-4-1997. This may be noted and the charge should be handed over on 30-4-1997 after completing school work." It is important to note that the petitioner by his letter dated 31st July, 1997, addressed to respondent No. 2 stated that he wanted to try for employment in another school and therefore, requested that he may be issued "experience certificate of four years". Finally, on 4th August, 1997, the petitioner filed the above petition. 8. Ms. Deshpande contended that the deletion of the term "your appointment is on probation for a period of two years" in the letters of appointment was fabricated. She submitted that the fabrication took place after the orders of appointment were signed by the petitioner and returned to respondent Nos. 1 and 2. This case is an afterthought. In the appeal before the Tribunal, the case was that no appointment letter was issued to the petitioner. However, this contention was given up and changed as mentioned herein when the petitioner was confronted with the orders of appointment acknowledged by him. In fact, this submission before the School Tribunal, was neither averred by her nor argued on behalf of the petitioner. However, this contention was given up and changed as mentioned herein when the petitioner was confronted with the orders of appointment acknowledged by him. In fact, this submission before the School Tribunal, was neither averred by her nor argued on behalf of the petitioner. For this reason also, Ms. Deshpandes' contention cannot be accepted. Further the present contention of Ms. Deshpande was not raised before the School Tribunal. This submission of Ms. Deshpande is therefore, rejected. 9. Ms. Deshpande submitted that the letter dated 31st March, 1997 quoted above was a letter of termination. She further submitted that the order of termination under the provisions of Rule 28(1) of M.E.P.S. Rules even in the case of a temporary employee can be issued only by the management. The letter dated 31st March, 1997 having been issued by the Secretary of the School Committee is not therefore a valid order of termination. This submission is based on a wrong premise. Rule 28(1) of the M.E.P.S. Rules is as follows:--- "Rule 28(1): Removal or termination of service: (1) The services of a temporary employee other than on probation may be terminated by the management at any time without assigning any reason after giving one calender months notice or by paying one months salary (pay and allowances, if any) in lieu of notice. In the case of an employee entitled to vacation, the notice shall not be given during the vacation or so as to cover any part of the vacation or within one month after vacation." In support of her submissions, Ms. Deshpande relied upon the judgment of a learned Single Judge of this Court in the case of (Borivali Education Society another v. Gira T. Desai others)1, reported in 1997(VI) L.J. 549, where it was held that the School Committee under M.E.P.S. Act and Rules does not possess any power to terminate the services of the employee. However, this case is distinguishable from the facts of the present case and in a case similar to the present case, the same learned Judge (R.M. Lodha, J.) distinguished the same. Ms. Deshpande also relied upon an unreported judgment of this Court of S.P. Bharucha, J. (as his Lordship then was) in the case of (Madanlal J. Dalmia and another v. R.R. Harijan and another)2, Writ Petition Nos. Ms. Deshpande also relied upon an unreported judgment of this Court of S.P. Bharucha, J. (as his Lordship then was) in the case of (Madanlal J. Dalmia and another v. R.R. Harijan and another)2, Writ Petition Nos. 2205, 2206 and 2207 of 1985), decided on 16th April, 1986, wherein it has been held as under:--- "The management of a school is that person or body of persons which administers it. A school administered or run by the State Government is so described. A school administered or run by local authority is also so described. It is, therefore, person or body of persons which administers or runs a school that is its management. It is that person or body of person alone which may under section 5(3) terminate the services of a probationer. A School Committee is not the body of person which administers or runs the school. It is constituted only for the objects stated in Schedule A to the aforementioned rules. That it has the power to appoint employees does not, having regard to the express provisions of section 5(3), empower it to terminate the services of probationers." Shri Bandiwadekar in this regard relied upon a judgment of Justice R.M. Lodha, in the case of (Akbar Peerbhoy College and others v. Mrs. Pramila N. Kutty)3, reported in 1998(1) Bom.C.R. (O.O.C.J.)1. In that case, the appointment order stated that the appointment was for current academic year only and shall terminate automatically on the last working day of the year i.e. 20-4-1982. The appointment letter in that case also stated that on the expiry of the said period, the petitioners services shall stand terminated without any notice. In the circumstances, the school by a letter dated 22nd June, 1989 informed the petitioner that in view of the said order of appointment "after expiry of the above period your services shall stand terminated without any notice". After setting out these facts his Lordship referred to Rule 28(1) of M.E.P.S. Rules, and went on to hold as follows:--- 13. "A look at the said rule would show that it provides that services of temporary employee who is not on probation may be terminated by the management at any time without assigning any reason provided one calendar months notice or one months salary (pay and allowances, if any) in view of such notice has been given. "A look at the said rule would show that it provides that services of temporary employee who is not on probation may be terminated by the management at any time without assigning any reason provided one calendar months notice or one months salary (pay and allowances, if any) in view of such notice has been given. In the said rule it cannot be read that where the service of a temporary employee comes to an end automatically by efflux of time as stated in the appointment order yet the management is obliged to give one calendar months notice or to pay one months salary to such temporary employee in lieu of notice. Rule 28(1) is attracted in a situation where either there is no period stated in the appointment order of such temporary employee and his services are sought to be brought to an end or where the period is stated in the appointment order of such temporary employee and the management intends to terminate the services of such temporary employee earlier than the period stated in the appointment order. Rule 28(1) does not contemplate nor does it envisage a situation of its compliance where the services of the temporary employee other than on probation comes to an end on the date stated in the appointment order. In other words, in a case where appointment of temporary employee is for a fixed period and the services of such a temporary employee comes to an end on the expiry of that fixed period, giving of the notice as contemplated under Rule 28(1) is not required nor any specific termination order is required to be passed because in the appointment order itself the period of appointment is fixed and on expiry of that period the appointment comes to an end automatically. 14. .........On the basis of this clause and the appointment order of respondent No. 1, the services of the respondent No. 1 was to come to an end on 20-4-1990 and hence no notice was required to be given to her. 14. .........On the basis of this clause and the appointment order of respondent No. 1, the services of the respondent No. 1 was to come to an end on 20-4-1990 and hence no notice was required to be given to her. The letter dated 19-4-1990 is only in the nature of communication addressed to the respondent No. 1 herein that it would not be possible to continue her services in the college after expiry of period of her service as stated in the appointment order and the said communication dated 19-4-1990 by no stretch of imagination could be construed as a termination notice or order of termination. The services of respondent No. 1 were to come to an end on 20-4-1990 and accordingly her services stood terminated on that date which was clearly stated in the appointment letter itself and no further termination notice or order of termination was required to be given. The aforesaid observations should not be confused regarding the right of the respondent No. 1 in filing appeal under section 9 of the Act and challenging her termination dated 20-4-1990 in accordance with law if she had justifiable grounds for the said purpose. 16. The judgment of this Court in Madanlal Jagannath Dalmia, Writ Petition No. 2205 of 1985 (supra) would only be applicable if the communication dated 19-4-1990 was held to be a notice of termination issued by the Principal. However, I have already held that the communication dated 19-4-1990 by the Principal was communication simpliciter and was not notice of termination and, therefore, the said judgment has no application in the facts and circumstances of the present case." 10. The facts of this case are identical to the facts of the present case. In the present case, the said order of appointment dated 10th June, 1996, expressly stated that the petitioner was being appointed from 12th June, 1996 to 30th April, 1997 for the academic year 1996-97 only and that after the end of the aforesaid period, the petitioners services would come to an end without any notice. In view of Clause 5 therefore respondent Nos. 1 and 2 were not required to issue any order terminating the services of the petitioner. The petitioners appointment came to an end on 30th April, 1997 by operation of Clause 5. The letter dated 31st March, 1997 did not terminate the services of the petitioner. In view of Clause 5 therefore respondent Nos. 1 and 2 were not required to issue any order terminating the services of the petitioner. The petitioners appointment came to an end on 30th April, 1997 by operation of Clause 5. The letter dated 31st March, 1997 did not terminate the services of the petitioner. It merely noted and intimated the fact to the petitioner that under the said order dated 10th June, 1996, his appointment was to come an end on 30th April, 1997. The said letter was not a termination notice or an order of termination. The petitioners services came to an end on 30th April, 1997 and accordingly the petitioners services stood terminated on that date as per the express term of the order of appointment dated 10th June, 1996. Thus construed the provisions of Rule 28(1) of the M.E.P.S. Rules do not apply to the facts of this case. This contention of Ms. Deshpande is therefore also rejected. 11. Ms. Deshpande then submitted that the petitioner, who was initially employed on 10th June, 1993, having completed four years of continuous service, attained the status of permanency in that post. In support of this submission, Ms. Deshpande referred to the judgment of a Division Bench of this Court in the case of (Lalita Thutpi v. C.B. Karkhanis, Presiding Officer, School Tribunal)4, reported in 1997(V) L.J. 476. In this case, the petitioner was appointed as a S.C.C. Teacher in a leave vacancy for the periods from 11th August, 1982 to 13th December, 1982, 14th December, 1982 to 30th April, 1983 and 13th June, 1983 to 30th April, 1984. Her services were terminated on 11th June, 1984. It was held that each of the subsequent appointments was by giving an artificial break. Relying upon various circulars issued by the Government of Maharashtra, the Division Bench held that the petitioner had achieved the status of permanency. From para 15 of the judgment, it appears that the petitioner there was appointed against an open category for the years 1984-85 and 1985-86. In view of this position, coupled with the findings of the Division Bench that the petitioner there had been given artificial breaks, the petitioner was accorded the status of permanency. 12. Firstly, in the present case, the petitioners appointment were against a reserved category as provided in each of the orders of appointment. In view of this position, coupled with the findings of the Division Bench that the petitioner there had been given artificial breaks, the petitioner was accorded the status of permanency. 12. Firstly, in the present case, the petitioners appointment were against a reserved category as provided in each of the orders of appointment. Secondly, it is stated that the appointment had been made in the post belonging to backward category and therefore, it was on a temporary basis and the petitioner should give the enclosed undertaking that he had no right over the said post. The petitioner gave an undertaking to that effect on 12th June, 1996. For the academic year 1997-98, respondent No. 1 issued an advertisement, inviting applications from eligible backward class candidates for several posts of the Assistant Teachers. Respondent Nos. 1 and 2 appointed respondent No. 4 as an Assistant Teacher from 1-7-1997 on probation for a period of two years. Respondent No. 4 belongs to the Hindu Dhangar Nomadic Tribe and holds a B.Sc. and a B.Ed. degree and is therefore, qualified and eligible for the reserved post of Assistant Teacher. The appointment of respondent No. 4 was approved by the Education Officer and the salary grant for him was also released. It was only thereafter that the petitioner filed the appeal before the School Tribunal on 4th August, 1997. In the circumstances, there is no question of the petitioner, an open category candidate, having gained the status of permanency in the said reserved post. 13. Shri Bandiwadekar submitted that even if the petitioner had been appointed in a clear vacancy in a open category post, he would not attain the status of permanency as his was a temporary appointment. He drew my attention to an unreported judgment of a learned Single Judge of this Court (D.K. Deshmukh, J.) in (Writ Petition No. 3488 of 1999)5, (Appellate Side) dated 7th July, 1999. The facts of that case are similar to the facts of the present case. In that case, the respondent was appointed on a purely temporary basis for one academic year with effect from 15th July, 1993. It was stated in the order of appointment that at the end of the academic year, his services shall stand terminated, without any notice. The facts of that case are similar to the facts of the present case. In that case, the respondent was appointed on a purely temporary basis for one academic year with effect from 15th July, 1993. It was stated in the order of appointment that at the end of the academic year, his services shall stand terminated, without any notice. Thereafter the petitioner was again appointed by an order dated 24th June, 1994 pursuant to an application by him, in response to an advertisement dated 7th June, 1994. This order of appointment stated that the petitioner was appointed against the post, which was reserved for persons belonging to Scheduled Castes. This appointment was with effect from 25th June, 1994 for the academic year 1994-95 at the end of which by an order dated 23rd March, 1995, the services of the respondent were terminated with effect from 30th April, 1995. This order of termination was challenged by the respondent before the School Tribunal. The School Tribunal set-aside the order, terminating his services and granted him re-instatement. Against that order, the school preferred a writ petition, which was dismissed by this Court. The Supreme Court however, set-aside the order passed by the School Tribunal and this Court and remanded the matter to the School Tribunal, directing it to hold an enquiry as to whether the appointment of Teachers was against a reserved post or in open category. On remand, the School Tribunal once again allowed the appeal. The School Tribunal found that the Teachers appointment was not on a reserved post, but was in the open category. However, inspite of that, this Court relying upon the judgment of the Supreme Court in the case of (Hindustan Education Society v. Sk. Kaleem Sk. Gulam Nabi)6, reported in 1998(2) Bom.C.R. (S.C.)146, held that the management is competent to make temporary appointments even against a clear vacancy. Paragraph 6 of the judgment in Writ Petition No. 3488 of 1999, dated 7th July, 1999 is relevant for the present purpose, which reads as under:--- "6. The School Tribunal, after enquiry, has found that the post against which the respondent was appointed was not a post reserved for Scheduled Caste candidate, but it was an open category post. Paragraph 6 of the judgment in Writ Petition No. 3488 of 1999, dated 7th July, 1999 is relevant for the present purpose, which reads as under:--- "6. The School Tribunal, after enquiry, has found that the post against which the respondent was appointed was not a post reserved for Scheduled Caste candidate, but it was an open category post. If the finding recorded by the School Tribunal is accepted, then also, in terms of the judgment of the Supreme Court in Hindustan Education Society case, a management is competent to make a temporary appointment even against the clear vacancy. The learned Counsel appearing for the respondent submits that sub-section (2) of section 5 of the Act clearly lays down that every person appointed against a permanent vacancy, shall be on probation for a period of two years. In the submission of the learned Counsel, if the finding of the Tribunal that the appointment of the respondent was against the clear vacancy is correct, then the appointment of the respondent has to be taken as an appointment on probation for a period of two years and that would be the situation in relation to his first appointment dated 14th July, 1993. It has to be pointed out here that it was a consistent view taken by this Court also that in case an appointment is being made against clear permanent vacancy and the candidate is selected after following the procedure laid down by law for selecting candidates for appointment against clear and permanent vacancies, then the management has no power to make an appointment on temporary basis. The appointment has to be on probation. Even if the management in the appointment order says that the appointment is on temporary basis, the Court will assume the appointment to be on probation. This Court has taken this view in its judgment in the case of (National Education Society High School and Junior College v. Mrs. Lulomool Monachary)7, reported in 1987(2) Bom.C.R. 521 . This view was thereafter followed in several cases. This Court has taken this view in its judgment in the case of (National Education Society High School and Junior College v. Mrs. Lulomool Monachary)7, reported in 1987(2) Bom.C.R. 521 . This view was thereafter followed in several cases. It is to be noted that section 5(2) of the Act also lays down that appointment against a permanent vacancy shall be on probation, therefore, the view of this Court consistently was that if the management makes an appointment of a duly qualified and selected candidate against a permanent vacancy, the appointment, notwithstanding the fact in the appointment order, the appointment is described as temporary, the Court will treat the appointment as made on probation. However, the Supreme Court by its judgment in Hindustan Education Societys case has taken a different view and it is clear from that judgment that a management can make appointment even against a clear vacancy on temporary basis because in paragraph 4 of the Supreme Court judgment in Hindustan Education Societys case it is observed thus:--- Thus, it could be seen that the appointment of the first respondent was only a temporary appointment against a clear vacancy." Thereafter, the Supreme Court in paragraph 5 has observed thus:--- "In view of the above and the order of appointment, the appointment of the respondent was purely temporary for a limited period." In the concluding paragraph 6, the Supreme Court has observed thus:--- "Under these circumstances, the appointment of the respondent cannot be considered to be a permanent appointment. As a consequence, the direction issued by the High Court in the impugned judgment dated 31-7-1996 in Writ Petition No. 5821 of 1995 that he was regularly appointed is clearly illegal and cannot be sustained." It is clear that according to the Supreme Court judgment in Hindustan Education Societys case, now in terms of the provisions of section 5 of the Act, an appointment on temporary basis can be made in a clear vacancy and the services of such a person can be terminated by a simpliciter order of termination. In the present case, that is what has been done. The appointment of the respondent was on temporary basis and the same has been terminated by a simple order of termination. In the present case, that is what has been done. The appointment of the respondent was on temporary basis and the same has been terminated by a simple order of termination. In my opinion therefore, the case is completely covered by the law laid down by the Supreme Court in Hindustan Education Societys case." The learned Judge granted the petitioner therein leave under Article 133 read with Article 134-A of the Constitution of India to appeal to the Supreme Court. The Supreme Court however dismissed the appeal. This judgment is binding on me. 14. In the present case, the petitioners appointment was purely on a temporary basis viz. from 10th June, 1996 to 30th April, 1997; the management was competent to make the appointment on a temporary basis and by operation of Clause 5 of the said order of appointment dated 10th June, 1996, the services of the petitioner came to an end, without any need for further notice on 30th April, 1997. The submission of Ms. Deshpande, that the petitioner had attained the status of permanency is therefore rejected for this reason as well. 15. At this stage it would be convenient to deal with the submission of Shri Bandiwadekar that the petitioner had accepted his term as having expired by efflux of time and cannot now therefore claim the status of permanency. As stated above on receipt of letter dated 31st July, 1997 from respondent No. 2, intimating the fact that his appointment would come to an end on 30th April, 1997, there was no protest or demur from the petitioner to the same. In fact the petitioner by his letter dated 31st July, 1997, requested respondent No. 2 for a certificate, stating his experience with respondent No. 2 as he wanted to try for employment in another school. This clearly establishes that the petitioner accepted the fact that his employment had come to an end from 30th April, 1997. Shri Bandiwadekar therefore, rightly submitted that in the circumstances, the petitioner is not entitled to now claim the status of permanency. In respect of his submission, Shri Bandiwadekar relied upon a judgment of the Supreme Court in the case of (Suneeta Aggarwal v. State of Haryana and others)8, reported in A.I.R. 2000 Supreme Court 1058. In that case, the management of the industitution advertised a post of "Hindi Lecturer". The appellant and certain others applied for the post. In respect of his submission, Shri Bandiwadekar relied upon a judgment of the Supreme Court in the case of (Suneeta Aggarwal v. State of Haryana and others)8, reported in A.I.R. 2000 Supreme Court 1058. In that case, the management of the industitution advertised a post of "Hindi Lecturer". The appellant and certain others applied for the post. The nominee of the Vice Chancellor and Director of Higher Education, approved the name of the appellant to be placed at serial No. 2, whereas one Kiran Bala was placed at serial No. 1. However, the Selection Committee recommended the name of the appellant for the said post. This was not approved by the Vice Chancellor, who, by an order dated 5th August, 1996 directed the said post to be re-advertised. Accordingly on 13th November, 1996, the post was again advertised and in response thereto, the appellant applied for being considered for the same. The appellant before the Selection Committee "without any kind of protest simultaneously filed a writ petition, challenging the order of the Vice Chancellor dated 5th August, 1996." The Supreme Court held that the appellant had disentitled herself to seek the relief in a writ petition. The following observations of the Supreme Court apply to the facts of the present case:--- "Narration of aforestated facts would show that the appellant had disentitled herself to seek relief in the writ petition filed by her before the High Court. The appellant did not challenge the order of the Vice Chancellor declining to accord approval to her selection and, on the contrary, she applied afresh to the said post in response to re-advertisement of the post without any kind of protest. Not only did she apply for the post, but also she appeared before the Selection Committee constituted consequent upon re-advertisement of the post and that too without any kind of protest, and on the same day she filed a writ petition against the order of the Vice Chancellor declining to accord his approval and obtained an ad interim order....... The appellant having appeared before the Selection Committee without any protest and having taken a chance, we are of the view that the appellant is estopped by her conduct from challenging the earlier order of the Vice Chancellor. The High Court was justified in refusing to accord any discretionary relief in favour of the appellant. The appellant having appeared before the Selection Committee without any protest and having taken a chance, we are of the view that the appellant is estopped by her conduct from challenging the earlier order of the Vice Chancellor. The High Court was justified in refusing to accord any discretionary relief in favour of the appellant. The writ petition was rightly dismissed......." Though the facts of the case before the Supreme Court and the present petition are not identical, the ratio of that judgment squarely applies to the facts of the present case. 16. At this stage, Ms. Deshpande further submitted that respondent Nos. 1 and 2 by an advertisement wrongly invited the application for four posts, three of which were reserved for the candidates from reserved categories and only one was reserved for a candidate from the open category. It is her case that this exceeds the ceiling of 50% for reserved candidates. According to her not one but two posts ought to have been kept for the open category candidates. Considering the view taken above relying upon an unreported judgment of D.K. Deshmukh, J., these submissions of Ms. Deshpande do not carry out the matter any further. For even assuming that the petitioners appointment was made in the open category, it was open to the management to do so only for a limited period. This is precisely what the management did by its order of appointment dated 10th June, 1996. As already stated above by operation of Clause 5 thereof, the petitioners term came to an end on 30th April, 1997. 17. Moreover, this submission is also based on an erroneous premise. Ms. Deshpande has not been able to show whether in fact the reservations in respect of respondent No. 1 exceeded 50%. The finding in the impugned order of this question of fact is that the reservation did not exceed 50%. I find nothing to indicate that this finding of fact was erroneous or perverse. Ms. Deshpande submitted that the School Tribunal while rejecting this submission, ought not to have relied upon the report of the Joint Commissioner (Backward Cell), Pune. According to her, the competent authority to go into this question of fact was the Education Officer of the relevant Zilla Parishad. Ms. Deshpande submitted that the School Tribunal while rejecting this submission, ought not to have relied upon the report of the Joint Commissioner (Backward Cell), Pune. According to her, the competent authority to go into this question of fact was the Education Officer of the relevant Zilla Parishad. In this regard, she relied upon a circular of the Education, Employment and Youth Health Service Department No. SUN.2679/527/XXX-XXXVII, dated 24th October, 1989, which provides that: "Under Circular, Education Youth Services Department No. SSN-2676 55711-XXX-XXXVII, dated 7-9-1976 the Education Officers of all Zilla Parishad/Education Inspectors, Greater Bombay, were requested to verify, at the time of annual inspection of secondary schools, whether the prescribed percentage of reservation of posts for backward communities is maintained by the managements." 18. This submission cannot be accepted for more than one reason. Firstly, this point has not even been raised in the petition. Secondly, the said circular does not designate the Education Officer with such powers that only his report can be relied upon while arriving at a decision in an appeal under section 9 of the M.E.P.S. Act. Thirdly, it was not even suggested that the Joint Commissioner (Backward Cell), Pune, whose report was relied upon by the School Tribunal was biased or that the report was wrong. In the circumstances, there was no occasion for the School Tribunal to doubt the veracity/accuracy of the report. Shri Bandiwadekar rightly submitted that the petitioner not having questioned the accuracy/relevance of the report of the Joint Commissioner before the School Tribunal, it is not open for him to raise the same for the first time in a writ petition under Article 227 of the Constitution of India, challenging the impugned order. 19. Further Shri Bandiwadekar invited my attention to a circular dated 11th May, 1990 Part 2 Clause 1 whereof is relevant and the agreed translation reads as under:--- "This cell (i.e. backward class cell) should mainly verify the 100 point and 50 point rosters". Mr. Bandiwadekar also relied upon a letter, dated 1st January, 1994 from respondent No. 3, directing all schools within his jurisdiction to get all the rosters verified from the Assistant Commissioner Backward Cell, Pune. He stated that respondent Nos. 1 and 2 complied with the directions in the circular. The Tribunals reliance upon the report of the Joint Commissioner, (Backward Cell) in these circumstances cannot be faulted. 20. He stated that respondent Nos. 1 and 2 complied with the directions in the circular. The Tribunals reliance upon the report of the Joint Commissioner, (Backward Cell) in these circumstances cannot be faulted. 20. In the circumstances, the petitions are dismissed. However, in the facts and circumstances of the present case, there shall be no order as to costs. Petition dismissed. -----