JUDGMENT:- Both these writ petitions are filed by the Employer challenging the judgment of the School Tribunal, granting relief of reinstatement to the employees. The question about the effect of temporary appointment or time bound appointment made by the management vis-a-vis the provisions of Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, (hereinafter referred to as the Act) arise in both these writ petitions. 2. In Writ Petition No. 1407 of 1997, challenge is to the judgment of School Tribunal dated 2-5-1997 by which the School Tribunal has allowed the appeal of Respondent No.2 employee and has directed the management to reinstate him back in service with continuity and back wages. This Court has while issuing notice in the matter ordered parties to maintain status quo and said order continues to operate till today. The said order was later on clarified while issuing Rule. It appears that thereafter vacancy became available and hence this Court on 10-10-2003 directed the management to appoint Respondent No.2 - employee against that vacancy. The said order has been set aside by the Division Bench in L.P.A. No.37 of 2004 on 29-03-2004 observing that in earlier L.P.A. No.31 of 1998, the earlier order of learned Single Judge restricting stay only to back wages was set aside and the Division Bench there continued the interim order dated 23-03-1998 till disposal of Writ Petition No.1407 of 1997. Thus, Respondent No.2 in this petition is out of employment. 3. In Writ Petition No. 1355 of 1996, the management has challenged the judgment of School Tribunal dated 15-04-1996 by which the School Tribunal has granted relief of reinstatement with continuity and back wages to Respondent No.1 - employee. This Court has on 22-07-1996 only issued Rule in the matter and Respondent No.1 is currently in service. He has put in about 16 years of service and he is now a duly approves! employee by education department. 4. The grievance made by Respondent No.2 in Writ Petition No.1407 of 1997, before the School Tribunal in Appeal was that he was working as Assistant Teacher since 1988 and he was given year to year appointment for the year 1988-89 and 1989-90. He was given appointment against sanctioned post from 01-07 -1990 to 30-04-1991 and thereafter was again reappointed in next session from 01-07-1991 to 30-04-1992. He was given appointment against sanctioned post from 01-07 -1990 to 30-04-1991 and thereafter was again reappointed in next session from 01-07-1991 to 30-04-1992. He contended that he was restrained from signing the muster roll from 11-06-1992 and he is deemed confirmed employee belonging to Other Backward Class Category. It is his case that he was attending the School regularly but he was orally informed that he was terminated from 30-04-1992. The said Appeal was opposed by the present petitioners, who contended that Respondent No.2 was initially appointed for the months on no grant basis with effect from December, 1988 to April, 1989 and thereafter in October, 1989 till 30-04-1990 for seven months. He was not paid salary for vacation and thereafter he was appointed as stop gap arrangement from 0107 -1990 to 30-04-1991 for 10 months on temporary basis and at the end of that period his service stood terminated automatically. It is mentioned that this appointment was made as per letter of Deputy Director of Education dated 14-01-1992. As per similar letter of Deputy Director of Education, Respondent No.2 was again appointed from 01-07-1991 to 3004-1992 temporarily. They denied that appointment was in clear vacancy and stated that he was given one month's notice on 2603-1992 and informed that he stood terminated from 30-04-1992. The said notice when tendered to him, was refused by Respondent No.2 on 27-03-1992 and hence it was forwarded under certificate of posting to him. They also denied that he was deemed confirmed employee and further denied that he was attending the school regularly. They denied the story of oral termination and also denied that his service record was clean and unblemished. They stated that appeal as filed was time barred and further stated that his performance and activities in the school were not proper. Lastly, they explained that in the year 1988 State Government closed down private D.Ed. Colleges and hence students of those colleges launched agitation because of which the government permitted recognised B.Ed. Colleges to accommodate those students and to take care of such increased workload, Respondent No.2 was appointed on temporary basis. It is contended that those students were not regular students of petitioners college but they were merely transferred to the petitioners college for completion of course. 5. Colleges to accommodate those students and to take care of such increased workload, Respondent No.2 was appointed on temporary basis. It is contended that those students were not regular students of petitioners college but they were merely transferred to the petitioners college for completion of course. 5. The School Tribunal has considered the material produced before it and has found that the story of written order of termination or its refusal by Respondent No.2 on 27-03-1992 has not been proved. It has found that the petitioners have practice of maintaining inward and outward register and the alleged termination order dated 26-03-1992 was not given any regular outward number in the outward register. It further found that story of under certificate of posting is also not substantiated. It has concluded that such an order ought to have been forwarded by Registered Post Acknowledgment Due to Respondent No.2. It has also found that the notice dated 26-03-1992 was prepared later on. It has thereafter considered the controversy on merits and found that the petitioners failed to demonstrate that Respondent No.2 was appointed on temporary basis. It found that he was appointed in a clear vacancy and hence it applied the law to the facts proved before it and concluded that he was an employee on probation and he completed his probation satisfactorily and became deemed confirmed employee. It, therefore, found that services could not have been terminated by one month's notice. It, therefore, granted him the relief as mentioned above. 6. In Writ Petition No.1355 of 1996, Respondent No.1 - employee approached the School Tribunal with grievance that being duly qualified for the post of Physical Training Instructor and Assistant Teacher, the petitioners appointed him on that post vide appointment order dated 15-09-1990 and continued him during academic session 1991-92 by fresh appointment order dated 20-06-1991. As the school was not receiving grant-in-aid in that session, no approval was obtained by the management during the session 1990-91. School was admitted to grants and the appointment of Respondent No.1 was approved for the academic session 1991-92. The Education Officer (Secondary), Zilla Parishad, Bhandara, without considering the nature of vacancy and period of employment, accorded approval to all teaching and non-teaching staff from 24-06-1991 till the end of academic session 23-03-1992. School was admitted to grants and the appointment of Respondent No.1 was approved for the academic session 1991-92. The Education Officer (Secondary), Zilla Parishad, Bhandara, without considering the nature of vacancy and period of employment, accorded approval to all teaching and non-teaching staff from 24-06-1991 till the end of academic session 23-03-1992. Respondent No.1 continued to work and he was working against clear permanent vacancy and hence his initial appointment was on probation as per mandate of Section 5(2) of the Act. He completed the period of probation and therefore became deemed confirmed employee as per Section 5(3) of the Act. The management contended before the School Tribunal that this appointment was on temporary basis and later on he was found to be in excess and therefore he was not continued in employment. It appears that his appeal was also time barred and he moved an application for condonation of delay and School Tribunal, after considering the material placed on record, condoned said delay. It further found that Respondent No.1 was in service since 15-09-1990 and notice of termination was dated 04-04-1992. It found that there was no reference in any of these documents or appointment of Respondent No.1 was against reserved category. It further found that the initial appointment of Respondent No.1 ought to have been on probation for two years and it did not accept the contention of the management that he was found to be in excess. It further found that there was no resolution passed by the management regarding termination of his services and hence it granted him relief as mentioned above. 7. I have heard Shri. Parsodkar, learned counsel for the petitioner, Shri. Deshpande, learned counsel for respondent No.2 - employee and Shri. Kothari, learned AGP for Respondents No.1 & 3 in Writ Petition No.1407 of 1997 and Shri. Gordey, learned counsel for the petitioners - management, Shri. Jibhkate, learned counsel for respondent No.1 - employee and Shri. Kothari, learned AGP for respondents No.2 and 3 in Writ Petition No.1355 of 1996. 8. Shri. Parsodkar as also Shri. Gordey, learned counsel have invited attention to the facts of their respective writ petitions to contend that initial appointment of employees was for fixed duration because of temporary appointment. Shri. Parsodkar, learned counsel has pointed out that the closure of illegal D.Ed. 8. Shri. Parsodkar as also Shri. Gordey, learned counsel have invited attention to the facts of their respective writ petitions to contend that initial appointment of employees was for fixed duration because of temporary appointment. Shri. Parsodkar, learned counsel has pointed out that the closure of illegal D.Ed. Colleges and consequent transfer of students of those colleges to petitioners - institution created temporary need for appointment of Respondent No.2. He contends that this aspect is totally lost sight of by the School Tribunal. He states that in such circumstances initially Respondent No.2 was appointed only for a period of ten months and approval given to him by the Deputy Director of Education is subject to adherence to Government orders about filling in reserved posts as per 100 point roster. He further states that on 01-07-1991 another order for a period of ten months was issued and again on 30-04-1992 the Deputy Director of Education has granted approval accordingly directing that appointment should be as per 100 point roster. He has invited attention to the communication dated 23-01-1991 written by the Deputy Director of Education to petitioners mentioning that the said communication is in relation to appointment of Respondent No.2 and in it the Deputy Director of Education has expressly mentioned that the candidate belonging to Scheduled Tribe or Nomadic Tribe ought to have been appointed. The letter mentions that said appointment cannot be approved. He has further contended that these facts are also lost sight of by the School Tribunal while delivering the impugned judgment. He has relied upon the various cases in support of his contention but reference to those cases will be made little later. 9. Shri. Gordey, learned counsel for the petitioners in Writ Petition No. 1355 of 1996 has also invited attention to the facts and contended that appointment of Respondent No.1 was for limited period i.e. till session end with express warning that his service would stand terminated automatically. He further states that he was informed on 04-04-1994 that his appointment would come to an end on 08-05-1992 i.e. at the end of academic session 1991-92. He argues that this communication dated 04-04-1994 was required to be issued because of decrease in number of students below 250, making it impossible for the management to continue the PT.!. He further states that he was informed on 04-04-1994 that his appointment would come to an end on 08-05-1992 i.e. at the end of academic session 1991-92. He argues that this communication dated 04-04-1994 was required to be issued because of decrease in number of students below 250, making it impossible for the management to continue the PT.!. He argues that because of this, Respondent No.1 was rendered surplus and hence he was accordingly issued termination order on 04-04-1992 itself. He contends that practice of discontinuing employee in Summer Vacation and re-appointing him thereafter has not been established before the School Tribunal and in the facts of present case in view of express termination order dated 04-04-1992, there was no scope for inferring any such practice. He further states that the post was not clear and work of Respondent No.1 as P.T.I. was not satisfactory. He contends that in such circumstances, the presumption of School Tribunal that Respondent No.1 was appointed on probation and he became deemed confirmed employee under Section 5(3) of the Act is not justified at all. He invites attention to the fact that employee did not complete two years so as to hold that he became deemed confirmed employee. He has further stated that the petitioners have filed additional affidavit before this Court on 21-09-2006 mentioning therein that the school was not recognised permanently during the period Respondent No.1 was in employment i.e. prior to his termination in issue and it was only receiving provisional recognition. As the recognition was provisional, according to the learned counsel, no permanent appointment could have been made in school and School Tribunal has, therefore, erred in holding that appointment of Respondent No.1 was on probation. He also invites attention to the sanctioned staff for the year 1991-92 and 199293 along with chart showing strength of students with classes and states that in the year 1991-92 there were 244 students while in the year 1992-93 there were 240 students. He has also relied upon various cases in support of his contention. 10. Shri. Parsodkar, as also Shri. Gordey, learned counsel have both relied upon the judgment of this Court in the case of A. P. College Vs. Mrs. Pramila, reported at 1997(3) Mh.L.J. 195 ; Hindustan Education Society Vs. Sk. Kaleem Sk. Gulam Nabi, reported at (1997)5 SCC 152 ; Anna Manikrao Vs. 10. Shri. Parsodkar, as also Shri. Gordey, learned counsel have both relied upon the judgment of this Court in the case of A. P. College Vs. Mrs. Pramila, reported at 1997(3) Mh.L.J. 195 ; Hindustan Education Society Vs. Sk. Kaleem Sk. Gulam Nabi, reported at (1997)5 SCC 152 ; Anna Manikrao Vs. School Tribunal, reported at 1997(3) Mh.L.J. 697 : [1998(3) ALL MR 155]; Vilasrao Vs. A.P.S.P. MandaI, reported at 2004(4) Mh.L.J. 762 ; Bharatiya Gramin Punarrachna Sanstha Vs. Vijay Kumar, reported at (2002)6 SCC 707 , unreported judgment of this Court dated 07-07-1999 in Writ Petition No.3488 of 1999 at Bombay, M. M. College of Science Vs. R. T. Borkar, reported at 1997(2) Mh.L.J. 168. Shri. Gordey, learned counsel has also relied upon judgment in Maharashtra Shikshan Sanstha Vs. State of Maharashtra, reported at 2003(2) Mh.L.J. 92 & upon the Division Bench in M. M. College of Science Vs. R. T. Borkar. The parties have made various arguments relying upon these judgments and I, therefore, find it convenient to consider all these judgments a little later in the body of this judgment. Both of them have during reply arguments attempted to demonstrate how arguments advanced on behalf of employee & case law cited are misconceived. 11. Shri. Deshpande, learned counsel, Service) Rules, (hereinafter refereed to as the Rules). He contends that in the facts of present case management has not given any such explanation and hence the School Tribunal is justified in treating the appointment of Respondent No.1 as against clear vacancy. He further states that an adverse inference against the management needs to be drawn. He has relied upon the judgment of the Hon'ble Apex Court reported at AIR 1978 SC 851 , Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others, to state that reason mentioned in termination order cannot be supplemented later on during the pendency of proceedings before the School Tribunal. He also invites attention to the fact that there is no provision which requires that a P.T.I. cannot be appointed if strength of students goes below 250. The Chief Election Commissioner, New Delhi and others, to state that reason mentioned in termination order cannot be supplemented later on during the pendency of proceedings before the School Tribunal. He also invites attention to the fact that there is no provision which requires that a P.T.I. cannot be appointed if strength of students goes below 250. He further has drawn attention to the policy decision of State Government dated 14-05-1987 regarding making appointments of Physical Education Teachers and General Subjects teachers and states that the said resolution only warrants that if number of students are more than 250, the management has to see that there is at least one P.T.I. for each batch of 250 students. According to him, the act of management in treating Respondent No.1 as excess is, therefore, arbitrary and unsustainable. 13. Shri. Deshpande and Shri. Jibhkate, learned counsel have relied upon the following judgments to substantiate their stand. National Education Society High School Vs. Mrs. Lulomool, reported at 1987(2) Bom.C.R. 521 ; Diwaru Vs. Presiding Officer, School Tribunal, reported at 1991(1) CLR 272; High School Education Society Vs. Presiding Officer, School Tribunal, reported at 2005(2) Bom.C.R. 773 : [2005(2) ALL MR 138]; S. P. MandaI Vs. Presiding Officer, School Tribunal, reported at 2005(4) Mh.L.J. 485 ; Ramchandar Vs. H. (S.) N.C. Board, reported at 2006(2) Mh.L.J. 530 , unreported judgment of Division Bench of this Court dated 09-07-2001 in L.P.A. No.53 of 2001 at Nagpur. Kankavali Shikshan Sanstha Vs. M.R. Gavali, reported at 2006(1) ALL MR (S.C.) 266; Jeles Education Society Vs. R. T. Bhitale, reported at 2006(3) Mh.L.J. 349 : [2005(4) ALL MR 944] and Lalitha Thutpi Vs. C.B. Karkhanis, Presiding Officer, School Tribunal, reported at 1997(V) LJ 476. With the assistance of these judgments while furthering the case of their respective clients, both the counsel have also attempted to demonstrate as to how the judgment in the case· of Hindustan Education Society (supra) has been wrongly relied upon by the petitioners in the present matter. In order to demonstrate how the judgments of the Hon'ble Apex Court are to be understood and followed, Shri. Deshpande, learned counsel has placed reliance in the case of Ravindra Singh Vs. Phool Singh, reported at (1995)1 SCC 251 ; Union of India Vs. Dhanwanti Devi, reported at (1996)6 SCC 44 ; Union of India Vs. In order to demonstrate how the judgments of the Hon'ble Apex Court are to be understood and followed, Shri. Deshpande, learned counsel has placed reliance in the case of Ravindra Singh Vs. Phool Singh, reported at (1995)1 SCC 251 ; Union of India Vs. Dhanwanti Devi, reported at (1996)6 SCC 44 ; Union of India Vs. Chajju Ram, reported at (2003)5 SCC 568 : [2003(3) ALL MR 766 (S.C.)] and Mehboob Dawood Shaikh Vs. State of Maharashtra, reported at (2004)2 SCC 362 . Reference to all these judgments will be made little later while considering the case cited on behalf of the petitioners. 14. Insofar as factual findings recorded by the School Tribunal in Writ Petition No. 1407 of 1997 in favour of Respondent No.2 - employee are concerned, the effort of the petitioners has been to show that appointment was not against clear vacancy. The absence of clear vacancy is sought to be justified by mentioning that the State Government had closed illegal D.Ed. Colleges and students taking education in those colleges were transferred to various institutions including institution of petitioners and thus to discharge that temporary increased workload, Respondent No.2 was appointed. However, the petitioners have not produced before the School Tribunal any material to show that the State Government had closed such D.Ed. colleges and any students taking education therein were transferred to petitioners - institution. They have also not proved that therefore there was temporary increase in number of students resulting in temporary increase in workload. The details in this respect could have been pleaded in reply before the School Tribunal and necessary documents could have been filed before it. Even before this Court the adequate material to substantiate that stand could have been produced. However, that has not been done at all. In such circumstances, the contention that there was temporary increase in workload and therefore Respondent No.2 was appointed to take care of that workload has not been rightly accepted by the School Tribunal. This act on the part of School Tribunal is neither perverse nor without jurisdiction and hence that finding cannot be interfered with in writ jurisdiction. 15. The next stand is that Respondent No.2 was appointed against reserved vacancy. Again there is absolutely no material produced to show that Respondent No.2 was appointed against reserved vacancy. In fact, there was no such defence before the School Tribunal at all. 15. The next stand is that Respondent No.2 was appointed against reserved vacancy. Again there is absolutely no material produced to show that Respondent No.2 was appointed against reserved vacancy. In fact, there was no such defence before the School Tribunal at all. The appointment orders of Respondent No.2 do not mention that he was appointed against any reserved vacancy. In the absence of such stand before the School Tribunal and in the absence of any finding about it by the School Tribunal, such an argument cannot be entertained for the first time before this Court. However, this argument is sought to be advanced on the basis of approval letters given by Respondent No.3 - Deputy Director of Education and also because of the Return filed by Respondent No.3 before this Court. In return filed before this Court, Respondent No.3 has mentioned that there was backlog existing right from the day when Respondent No.2 was appointed. It is further mentioned that said post ought to have been filled in by appointing Scheduled Castel Scheduled Tribe/ Vimukta Jati/ Nomadic Tribe candidate as there was backlog of that category. In this background, when the approval letters given by said respondent on 14-01-1991 and 30-04-1992 are considered, the approval letter in its main part clearly mentions that the appointments made are in promotion to reserved posts/vacancies and Government directive in this respect are complied with. This was sought to be explained by the earned counsel for the petitioners by mentioning hat the said proforma is cyclostyled. However, portion which is not applicable has been scored off in it and relevant clauses have been tick marked with "-/" (i.e. right or correct sign) while the clause which is not applicable has been marked with "x" (i.e. wrong sign). Clause 5 which deals with institutions being run on no grant basis has been marked with "x" by Respondent No.3 in both these approval letters. Clause 3 which states that reservation policy has been implemented has been marked with "_/" tick mark to show that its requirement is satisfied. The arguments of learned counsel, therefore, cannot be accepted. Shri. Parsodkar, learned counsel for the petitioners has relied heavily upon the note which is appearing in the table at the end of this approval order. The said note only mentions that appointments should be made as per 100 point roster. The arguments of learned counsel, therefore, cannot be accepted. Shri. Parsodkar, learned counsel for the petitioners has relied heavily upon the note which is appearing in the table at the end of this approval order. The said note only mentions that appointments should be made as per 100 point roster. Note nowhere mentions that appointment of Respondent No.2 is not in accordance with 100 point roster. The facts above clearly show that effort of the petitioners to contend that such appointment of Respondent No.2 was against reserved category therefore, cannot be appreciated for the first time in this writ petition. The attention is also invited to communication dated 23-01-1991 written by Respondent No.3 to the petitioners about grant of approval to services of Respondent No.2. The said communication mentions that there was back log for Scheduled Tribe and Nomadic Tribe and management, therefore, could not have appointed Respondent No.2, who belongs to OBC category. This communication is contrary to stand taken by Respondent No.3 in Return filed on affidavit dated 05-03-1998 before this Court. In said Return, Respondent No.3 has stated that post occupied by Respondent No.2 ought to have been filled in by appointing SC/ST or VI/NT candidate as there was back log of this category. These SC category and VI category are two newly added categories in said affidavit which do not find mention in said letter dated 23-01-1991. In any case, if this was the position, said communication ought to have been placed for consideration of School Tribunal by the petitioners. This defence also ought to have been raised by them in answer to the claim of the present Respondent No.1. It is to be noted that on 04-02-1992, the Principal of petitioners - institution has written to the Deputy Director of Education mentioning that Respondent No.2 a candidate is appointed again in clear vacancy as Assistant Teacher and his work was satisfactory and good. The School Tribunal has accepted this subsequent letter written by the management itself to the Deputy Director of Education. In such circumstances, not raising this defence before the School Tribunal by the petitioners is itself fatal and such defence cannot be allowed to be raised for the first time in present writ petition. In any case material on record does not lend support to it. 16. The Hon'ble Apex Court has in Kankavali Shikshan Sanstha Vs. In such circumstances, not raising this defence before the School Tribunal by the petitioners is itself fatal and such defence cannot be allowed to be raised for the first time in present writ petition. In any case material on record does not lend support to it. 16. The Hon'ble Apex Court has in Kankavali Shikshan Sanstha Vs. M. R. Gavali (supra) has considered the provisions of Rule 9(9)(a) of the Rules and in paragraph 19 has accepted the conclusions reached by High Court in the -matter. The Hon'ble Apex Court has found that post occupied by the employee was reserved post and in case of certain contingencies of non filling of that post, a person belonging to other reserved category could have occupied said post. The Hon'ble Apex Court noticed that employee before it belonged to DBC category and could have occupied that post. It is further noticed that the management removed him and transferred another employee on that post and said employee was again DBC only. The post was reserved for ST candidate and as ST candidate was not available, candidate belonging to DBC category was appointed. 17. In Jeles Education Society Vs. R. T. Bhitale [2005(4) ALL MR 944] (supra), this Court has also taken similar view and it has been noticed that when a suitable candidate belonging to particular reserved category is not available and candidate from DBC category is appointed, his appointment cannot be treated as temporary appointment. In the judgment of this Court, teacher belonging to OBC was appointed from 07-12-1987 to 30-03-1988 in a vacancy which was reserved for ST category and his services came to an end at the end of academic session on 30-04-1988. His appeal was allowed by the School Tribunal. The contention of the management before the High Court was that appointment of such teacher came to an end by efflux of time. In paragraph 8, after considering the provisions of Rule 9(9)(a) of the Rules and an earlier judgment of the Hon'ble Apex Court in the case of Shakuntala G. Shirbhate Vs. Industrial Waving Co-operative Society and Ors., reported at AIR 1994 SC 36 , this Court has observed as under: "This judgment does not make a distinction between persons appointed for a temporary period from the backward classes and from the open category. Industrial Waving Co-operative Society and Ors., reported at AIR 1994 SC 36 , this Court has observed as under: "This judgment does not make a distinction between persons appointed for a temporary period from the backward classes and from the open category. However, the interpretation of Rule 9(9)(a) of the MEPS Rules was not in question in these judgments." This judgment of the Hon'ble Apex Court in Shakuntala G. Shirbhate (supra) is also relied upon by the Hon'ble Apex Court in its later judgment mentioned above i.e. Kankavali Shikshan Sanstha (supra). 18. In view of this position in law, it is apparent that the petitioners can not now before this Court make a grievance that appointment of Respondent No.2 was against reserved category. 19. In Writ Petition No.1355 of 1996, the petitioners - management has contended that the School Tribunal has erroneously condoned the delay by observing that the employee has bonafide believed that he would be given employment again in the academic session 1992-93. The learned counsel has contended that in view of the express termination order dated 04-04-1992 with effect from 08-05-1992 issued by the management, there was no reason for Respondent No.1 - employee to dwell under any such impression. However, the perusal of said order dated 04-04-1992 nowhere shows that the order indicated that Respondent No.1 would not be appointed again. The School Tribunal has found that in private schools the employees are required to rely upon assurances of management and they are interviewed again after termination and are reappointed. The School Tribunal has, therefore, accepted the plea of Respondent No.1 for condonation of delay. It is well known that in private schools on many occasions appointments are only made till session end and fresh appointment order is again given in next session though there is termination order at the end of earlier academic session. In these circumstances, I do not find any perversity or jurisdictional error in the approach of School Tribunal. It cannot be forgotten that Respondent No.1 is continuing in employment and has completed 16 years of service and his employment and service is approved by Respondent No.2 - Education Officer, I, therefore, do not find any substance in the this contention of the petitioners. 20. The other contention of the petitioners is that there was reduction in number of students in the academic year 1992-93 and hence respondent No.1 was rendered surplus. 20. The other contention of the petitioners is that there was reduction in number of students in the academic year 1992-93 and hence respondent No.1 was rendered surplus. Again this is not the reason put forth in the order of termination dated 04-04-1992. It is well known that strength of students is ascertained on 30th September in each academic year. Thus strength of students for the year 1992-93 was ascertained on 30-09-1992 and hence it was not available on 04-04-1992 when management terminated Respondent No.1. Next session of which the students strength is being pointed out itself began in last week of June, 1992. It therefore, cannot be accepted that management terminated Respondent No.1 because he was found to be excess. 21. This story of employee being in excess is based upon the argument that a Physical Training Instructor is required to be provided only after 250 students and if number of students is less than 250, there is no such requirement. The perusal of the chart showing strength of students placed on record by the management shows that in the year 1991-92 there were 244 students and the petitioners 1anagement has not contended that Respondent No.1 was surplus during this year. In 1992-93 aid strength has gone down by only four students i.e. total strength was of 240 students and management is seeking to contend that respondent No.1 was rendered surplus. In the light of conclusions mentioned above, this stand as beyond comprehension. The perusal of Government decision dated 14-05-1987 in this respect reveals that government has stated that the number of teachers in any school should be arranged that there should be at least one P.T.I. for 250 number of students. The government has also stated that the management has to take precautions to see that on account of providing employment to P.T.I., number of total sanctioned post of teachers as per rules is not exceeded. It is, therefore, apparent that government has nowhere said that if number of students is less than 250, there need not be any P.T.I. The government has further clarified that such P.T.I. should have at least 50% workload of physical education subject and he can be given workload of teaching regular subjects for the subjects studied by him for degree examination. It is, therefore, apparent that even this stand or defence of the petitioners is without any merit. 22. It is, therefore, apparent that even this stand or defence of the petitioners is without any merit. 22. Lastly, it is sought to be argued that the recognition to the petitioners was only from year to year. The documents in this respect are produced for the first time along with affidavit on 21-09-2006. There is no prayer made by the petitioners seeking permission to produce any additional material evidence on record. The documents are not accepted by Respondent No.1, who has filed his counter affidavit on 25-09-2006. The perusal of documents filed by the management shows that on 30-10-1985, the Education department has found certain lacunae during inspection. On 19-02-1986, the approval has been given for the first time for the period from 01-06-1984 to 31-03-1985. The next document is a communication dated 23-08-1991 by which the recognition has been temporarily extended from 01-07-1991 to 30-06-1992. The last document filed is the order dated 15-07-1992 by which recognition is extended from 01-07-1992 to 30-06-1993. Again there is no explanation as to why this stand was not taken before the School Tribunal, as to why these documents were not filed before it, Respondent No.1 in his affidavit has pointed out that even after 22 years of opening of school, the petitioners are seeking only recognition on year to year basis. He has stated that Respondent No.1 was appointed after School completed five years and therefore it should have been permanently recognised. It is pointed out that there are several permanent teaching and non-teaching employees with the petitioners. It is also pointed out that the Secretary of petitioner No.1 - institution has appointed his brother-in-law on 01-01-1987 as teacher though he was only B.Sc. at that time. It is stated that he is the only employee continuing since then. The attention has been invited to provisions of clauses 4.1 and 4.2 of Secondary School Code. The perusal of said clause clearly demonstrates that initial recognition of new school is to be continued, from year to year basis for subsequent four years by appropriate authority and after the period of five years, such school is to be considered for permanent recognition. The perusal of said clause clearly demonstrates that initial recognition of new school is to be continued, from year to year basis for subsequent four years by appropriate authority and after the period of five years, such school is to be considered for permanent recognition. In the facts of present case, when it has been shown to this Court that the School of petitioners is running since last 22 years on year to year recognition and it is also shown that there are number of permanent teaching and non-teaching employees, the stand of petitioners insofar as present grievance & employee is concerned, is found to be totally irrelevant. It is liable to be discarded as last minute effort out of desperation. If there was any merit in such stand, the petitioners ought to have and would have raised it before the School Tribunal. 23. This brings me to the consideration of third issue which is involved in both the Petitions. The appointment order in Writ Petition No.1407 of 1997 is for specific period as already mentioned above. Similarly, the appointment order in other Writ Petition is also for particular period i.e. till session end. In Writ Petition No.1407 of 1997 School Tribunal has relied upon the letter dated 04-02-1992 written by the Principal of petitioner institution to Deputy Director of Education seeking approval to the appointment of Respondent No.2 therein and in said letter it has been twice mentioned that employee has been appointed against clear vacancy. The controversy needs to be looked into in this background. 24. The judgment of this Court in A. P. College Vs. Mrs. Pramila (supra) in paragraph 14 finds that when the appointment order itself prescribed that it was on purely temporary basis for particular period and mentioned that the service was to come to an end thereafter, the services of employee therein came to an end on 20-04-1990 and no notice as required by Rule 28(1) of MEPS Rules was required to be served upon her. It has been noticed that letter dated 19-04-1990 issued by the management was only at the most an intimation and it could not have been construed as termination order. The said employee was appointed as Assistant Teacher in 1981 and she continued till 20-04-1990. It has been noticed that letter dated 19-04-1990 issued by the management was only at the most an intimation and it could not have been construed as termination order. The said employee was appointed as Assistant Teacher in 1981 and she continued till 20-04-1990. It is to be noticed that she was not having requisite qualification for teacher in Junior Colleges as prescribed in Schedule B of MEPS Rules, 1981. The observations need to be considered in this background. 25. The next ruling on which reliance has been placed is the judgment of the Hon'ble Court in Hindustan Education Society (supra). There the appointment was for a period of 11 months from 11-06-1992 to 10-05-1993 in clear vacancy. The Hon'ble Apex Court has noticed that the order of appointment was purely temporary for limited period and hence the Hon'ble Apex Court has further stated that approval given by the competent authority was also for such temporary appointment. It noticed that when permanent appointment is to be effected, the provisions of Section 5(1) and 5(2) are required to be followed. It, therefore, held that the appointment of employee i.e. respondent before Hon'ble Apex Court could not be construed as permanent appointment. This judgment & judgment in A. P. College Vs. Mrs. Pramila (supra) are considered by me while delivering a judgment in High School Education Society Vs. Presiding Officer, School Tribunal, reported at 2005(2) ALL MR 138. The judgment of Hon'ble Apex Court is also considered by this Court in its various other reported matters. Reference to these cases will be made little later. However, both the counsel for the petitioners have relied upon other judgment of this Court in Vilasrao Vs. A.P.S.P. Mandal (supra). In the said case, the candidate appointed was belonging to open category and he was appointed on a post which was reserved for SC/ST candidate. This Court has observed that unless the post becomes de-reserved, candidate from open category cannot be appointed against it and his appointment is only as temporary appointment. There cannot be any quarrel with this proposition of petitioner but then on facts, it has no application here. 26. The judgment of learned Single Judge of this Court at Bombay in Writ Petition No.3488 of 1999 delivered on 07-07-1999 is also sought to be relied upon. There cannot be any quarrel with this proposition of petitioner but then on facts, it has no application here. 26. The judgment of learned Single Judge of this Court at Bombay in Writ Petition No.3488 of 1999 delivered on 07-07-1999 is also sought to be relied upon. In this judgment, the learned Single Judge has found that the School Tribunal after enquiry has recorded a finding that appointment of employee before it was not on post reserved for SC candidate but it was an open category post. The learned Single Judge has thereafter proceeded further and has further observed that even if this finding of School Tribunal is accepted then also in terms of judgment of Hon 'ble Apex Court in the case of Hindustan Education Society (supra), as the appointment of employee was on temporary basis i.e. with effect from 25-06-1994 for the academic year 1994-95, the order of School Tribunal was unsustainable. The learned Single Judge has also noticed that this Court was consistently following the view taken by this Court as reported in National Education Society High School Vs. Mrs. Lulomool (supra). The learned Single Judge felt that because of the above referred verdict of the Hon'ble Apex Court, the said view could not be held to be good law. The learned Single Judge has, therefore, held that the appointment was temporary and hence the School Tribunal could not have given relief of reinstatement to such employee. The relevant observations of learned Single Judge in Writ Petition No.3488 of 1999 in unreported judgment delivered at Bombay on 07-07-1999 are as under: "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's 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. 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 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 a 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's High School and Junior College Vs. Mrs. Lulomool Monachary, 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 Society's 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 Society's case it is observed thus: "Thus, it could be seen that the appointment of the first respondent was only a temporary appointment against clear vacancy." Thereafter, the Supreme Court in paragraph 5 has observed thus: "In view of the above 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 31-07-1996 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 Society's 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 simplicitor 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 Society's case." 27. The judgment of the Hon'ble Apex Court in Hindustan Education Society's case (supra) is also considered by the Division Bench of this Court in Anna Manikrao Pethe [1998(3) ALL MR 155] (supra), therein in paragraph 14 the Division Bench has noticed that the Hon'ble Supreme court has held that temporary appointees are not entitled to claim permanent status until and unless such permanent vacancies are filled in as per Section 5 of the MEPS Act. The Division Bench noticed that the facts in the case of Hindustan Education Society's case reveal that employee there was untrained teacher and during the relevant three years, he was appointed on purely temporary basis. The Division Bench noticed that the facts in the case of Hindustan Education Society's case reveal that employee there was untrained teacher and during the relevant three years, he was appointed on purely temporary basis. As already mentioned above, I have considered this judgment also in judgment in High School Education Society [2005(2) ALL MR 138] (supra) and found that the judgment does not by lay down a proposition that all appointments made by the management mentioning a particular time limit in appointment order do not become temporary appointments. Merely because appointment order uses the word "temporary" or "till particular date or session end" or provides for automatic termination, it does not become a temporary appointment in terms of rule 10 of MEPS Rules and therefore can be viewed as appointment on probation. 28. At this stage, it will be appropriate to note the view of this Court as expressed in National Education Society High School (supra), which has been followed since long. This Court has held that an appointment is said to be a temporary appointment, which must be against a temporary vacancy. The relevant observations are contained in paragraph 4 and said paragraph reads as under: "Having regard to the factual position, the main question is whether respondent was appointed to fill in a permanent vacancy? Section 5 of the Act requires the management to fill in as soon as possible in the manner prescribed every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy. Respondent was appointed to vacancy created by the exit of Mrs. Kochar. If Mrs. Kochar was in a permanent vacancy and there is no dispute on that aspect of the case her replacement could not be by (but) a probationer in a permanent vacancy. Mr. Vashi, to counter this, refers me to the words used in the notices inviting applications for filing up the post year after year, the appointment letters and the applications submitted by the respondent in response to the notices inviting applications. Whatever words may have been employed by the parties, the matter is governed by the Act and the Rules - the latter being the Maharashtra Employees of Private School (Conditions of Service) Rules 1981. Under Rule 10 of these rules, employees are categories as under permanent .... non-permanent temporary........ probationer. Whatever words may have been employed by the parties, the matter is governed by the Act and the Rules - the latter being the Maharashtra Employees of Private School (Conditions of Service) Rules 1981. Under Rule 10 of these rules, employees are categories as under permanent .... non-permanent temporary........ probationer. A "temporary employee" has been defined in Rule 10 as one who has been appointed to a temporary vacancy for a fixed period. Can it be said that respondent was appointed to a temporary vacancy? The answer must be clearly in the negative. The appointment could be temporary in the sense that she was going to be on probation for a certain number of years. That however did not change her status from that of a probationer to a temporary hand. Petitioner, and, on its behalf Mr. Vashi, fairly concede that they have no grievance for against the competence and character of the respondent. In fact, awards were given to the respondent for non competence. Therefore, the limited duration appointments were not because of any deficiency. In her performance during the academic sessions 1984-85 and 1985-86. It was referred to Schedule D of the Rules in support of the contention that the orders of appointments were in the form prescribed. That hardly makes any difference, for the Courts will treat that as done which was required to be done by the law to be done, irrespective of what in fact was/is shown to have been done. A permanent vacancy having been created, and, there being (no) defect in the capacity and qualifications of respondent, her appointment should have been on probation. That petitioner chose to word the appointment letter differently and that respondent acquiesced in that position does not lead to a different result. At the date the appointment was made, petitioner was under no obligation to conform to the rules requiring appointment of teachers from the recovered (reserved) categories. The need to conform to the reservations, arose latter on and that was because there was an increase in the strength of the staff. This strength went beyond 10 and it was this excess which brought petitioner under the constraint to observe the reservation requirement. The need to conform to the reservations, arose latter on and that was because there was an increase in the strength of the staff. This strength went beyond 10 and it was this excess which brought petitioner under the constraint to observe the reservation requirement. Whoever else had to be sent, petitioner could not send out respondent because she had been appointed at a time when the strength was less than 10 and next because she had come in as a probationer vis-a-vis a permanent vacancy. Therefore, on an interpretation of the rules applicable, the grievance made by the respondent was correct and the appeal was rightly allowed." (Note :- Words in bracket inserted by me.) 29. The same view is taken by subsequent Division Bench in Diwaru Vs. Presiding Officer, School Tribunal (supra). In view of the language of Section 5(1) of the Act, the Division Bench has noticed that it was obligatory for the management to fill in every permanent vacancy by appointing a person duly qualified to fill such vacancy and in view of Section 5(2) of the Act such person has to be on probation for two years and after completion of such two years subject to sub-sections (4) and (5), he is deemed to have been confirmed. 30. In High School Education Society's case [2005(2) ALL MR 138] (supra), I have considered this 'position and in paragraph 15, I have also made reference to the judgment of the Hon'ble Apex Court in Hindustan Education Society's case (supra). The other judgment on which both the counsel for the petitioners have placed reliance i.e. in BhartiyaGramin Punarrachana Sanstha . (supra) is also considered by me in paragraph 15. In High School Education Society's case (supra), the Assistant Teacher was appointed initially for a period of five months from 01-12-1986 mentioning it to be of purely temporary nature and he was continued thereafter upto 30-04-1988. After 30-04-1988 he was continued without any order upto 23-09-1988. It was found that his appointment order was not on temporary basis as per MEPS Rules and it was therefore held that he was appointed on probation. 31. In S. P. Mandal Vs. Presiding Officer, School Tribunal (supra), the employee was appointed by order dated 04-08-1987 as purely temporary measure for 1987-88 session and by order dated 01-09-1988 he was again appointed for 1988-89 session. 31. In S. P. Mandal Vs. Presiding Officer, School Tribunal (supra), the employee was appointed by order dated 04-08-1987 as purely temporary measure for 1987-88 session and by order dated 01-09-1988 he was again appointed for 1988-89 session. The employee challenged his oral termination with effect from 20-04-1989 and 20-06-1989 or 02-09-1989. The judgment of Hon'ble Apex Court in Hindustan Education Society's case, the judgment of this Court in A. P. College Vs. Mrs. Pramila reported at 1997(3) Mh.L.J. 195 were held to be not attracted because of the facts. It has been noticed that in Hindustan Education Society's case, procedure prescribed for permanent appointment as contemplated by Section 5(1) and 5(2) was not followed. 32. This Court has in Ramchandar Vs. H. (S.) N.C. Board (supra) has considered the provisions of Rule 10 of the Rules and also appointment order which mention that appointment was temporary against clear vacancy and after examining the facts has found that the vacancy was clear vacancy due to resignation of another employee and therefore the appointment was not in temporary vacancy. It is to be noted that Rule (10) of the Rules states that a temporary employee is one who is appointed against a temporary vacancy for fixed period. The Division Bench judgment in LP.A. 53 of 2001 decided on 09-07-2001 at Nagpur again holds that it is incumbent upon the management to give appointment on probation for a period of two years when vacancy is clear. It has been held by the Division Bench that it is not open to the management to circumvent law by giving appointment for a period of less than two years since that would be in contravention of Section 5(2) of the Act. 33. All the above judgments have been questioned by the petitioners in view of the observations made by the Hon'ble Apex Court in Hindustan Education Society's case and also unreported judgment of learned Single Judge of this Court dated 07-07-1999 (supra). It is to be noticed that though learned Single Judge has on 07-07-1999 found it difficult to apply the entire earlier law mentioned above, particularly in National Education Society High School (supra), the learned Single Judge has found that a question of wide public importance arose for consideration and it needed to be considered and decided finally by the Hon'ble Apex Court. Therefore, he granted leave to appeal to Supreme Court. Therefore, he granted leave to appeal to Supreme Court. In the facts before the learned Single Judge, the order of appointment stipulated that it was against post reserved for SC candidate and for one academic year only and it also mentioned that at the end of said period employees's service would stand terminated without any notice. The learned Single Judge found that the observations of the Hon'ble Apex Court in the case of Hindustan Education Society's case (supra) clearly show that the management was empowered to make temporary appointment even against a clear vacancy. The mode and manner in which the some judgments (supra) have considered this ruling of Hon'ble Apex Court is already been discussed above. It was found that in the facts of said case before the Hon'ble Apex Court appointment was not made after complying with provisions of Section 5(1) and 5(2) of the Act and the employee was untrained teacher. However, to consider the situation properly, the order of Division Bench dated 31-07-1996 delivered by Aurangabad Bench of this Court in Writ Petition No.5821 of 1995 which gave rise to Civil Appeal No.197 of 1997 (Hindustan Education Society's case supra) was called for and perused. Its perusal clearly reveals that the employee there was not qualified because he was not holding the qualification of D.Ed. and hence his appointment was for year to year basis. It also appears that though his appointment was from year to year basis, the Education department had granted him approval for more than one year and this act of Education department was also challenged before the Division Bench at Aurangabad. It is, therefore, clear that observations made by the Hon'ble Apex Court will have to be understood in the facts of the case before it. The Hon'ble Apex Court has not laid down that every clear vacancy can be filled in by the management by appointing employee on temporary basis. Such an interpretation of judgment of Hon'ble Apex Court would directly militate with language of Section 5(1) and 5(2) of the Act. 34. The Hon'ble Apex Court has not laid down that every clear vacancy can be filled in by the management by appointing employee on temporary basis. Such an interpretation of judgment of Hon'ble Apex Court would directly militate with language of Section 5(1) and 5(2) of the Act. 34. The learned counsel for respondent No.2 - employee in Writ Petition No. 1407 of 1997 has invited attention to various judgments of the Hon'ble Apex Court to urge that the learned Single Judge of this Court in unreported judgment dated 07 -07 -1999 (supra) did not receive proper assistance and has not properly appreciated the law laid down by the Hob'ble Apex Court. The perusal of judgment in Ravindra Singh Vs. Phool Singh (supra) shows that there the suit filed was for declaration of agricultural holding and after appropriate enquiry his holding was determined that he was holding surplus land to the extent of 8.26 Acres. The lands sold by him on 02-09-1975 and 03-09-1975 were included in his holding as per the law. When the stage of surrender of surplus land arrived, Phool Singh sought to surrender land which was transferred by him. The prescribed authority did not agree and Phool Singh filed writ petition in Allahabad High Court. Allahabad High Court dismissed that writ petition and thereafter a Special Leave Petition was filed before the Hon'ble Apex Court. Said Special Leave Petition was dismissed on 07-05-1981 observing that Special Leave Petition was dismissed but Phool Singh would be entitled to choice in respect of plots forming the subject matter of sale deed. This choice given was interpreted by the authorities below in favour of Phool Singh and the authorities accepted the surrender of transferred lands. The Hon'ble Apex Court in paragraph 7 has observed that such interpretation of its order was not proper. The Hon,ble Apex Court in the process has observed that its order cannot be understood as laying down a proposition contrary to law and it also cannot be construed in a manner inconsistent with the provisions of law. 35. In Union of India Vs. Dhanwanti Devi (supra), the Hon'ble Apex Court has explained that what is the essence in a decision is its ratio and not every observation found therein and also not what logically follows from various observations made in the judgment. 35. In Union of India Vs. Dhanwanti Devi (supra), the Hon'ble Apex Court has explained that what is the essence in a decision is its ratio and not every observation found therein and also not what logically follows from various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved and the enunciation of reason or principle on which a question before a Court has been decided is alone binding as a precedent. It is also stated that no judgment can be read as if it is a statute. 36. In Union of India Vs. Chajju Ram [2003(3) ALL MR 766 (S.C.)] (supra), again the Hon'ble Apex Court has laid down that a decision is an authority for what it decides and not what can logically be deduced therefrom. The Hon'ble Apex Court has also observed that a little difference in facts or additional facts may lead to a different conclusion. 37. In Mehboob Dawood Shaikh Vs. State of Maharashtra (supra), the Hon'ble Apex Court has stated that a judgment has to be understood in the light of facts of that case and no more should be read into it than what it actually says. It is neither desirable nor permissible to pick out a word or a sentence from the judgment of the Supreme Court divorced from the context of the question under consideration and treat it to be complete law decided by the Supreme Court. 38. It is therefore clear that in the facts of Hindustan Education Society's case (supra), the employee was not holding D.Ed. qualification and therefore was untrained and he could not have been appointed permanently to fill in clear vacancy. He was, therefore, being appointed on year to year basis. It is apparent that these facts were not brought to the notice of this Court when it decided Writ Petition No.3488 of 1999 (Bombay) on 07-07-1999. However, this Court was aware of the implications arising and therefore thought it fit that matter should be decided once for all by the Hon 'ble Apex Court and hence granted leave to employee to appeal. The employee in that case was in service and this Court protected his services for a period of eight weeks. However, this Court was aware of the implications arising and therefore thought it fit that matter should be decided once for all by the Hon 'ble Apex Court and hence granted leave to employee to appeal. The employee in that case was in service and this Court protected his services for a period of eight weeks. I, therefore, find that reliance upon the judgment of Hindustan Education Society's case (supra) or said unreported judgment dated 07-07-1999 by learned counsel for the petitioners is clearly erroneous. The said judgments cannot be construed to lay down a proposition which does not emerge from reading of Section 5(1) and 5(2) of the Act or Rule 10 of the Rules. 39. The learned counsel for the petitioners have also contended that employees have not put in two years of service therefore the presumption of deemed confirmation under Section 5(2) of the Act, does not arise. Here, as already observed by the School Tribunal, no material whatsoever has been produced before the School Tribunal to show that work or behaviour of respective employees was not satisfactory. On the contrary in Writ Petition No.1407 of 1997, the School Tribunal has considered the letter of management which expressly mentions that the work of Respondent No.2 - employee therein was satisfactory and good. In both these cases, the termination of services of these employees is not on account of fact that their work or behaviour is found to be not satisfactory. The learned counsel for the petitioners have placed reliance upon the judgment of the Hon'ble Apex Court in Bhartiya Gramin Punarrachana Sanstha Vs. Vijay Kumar (supra). There the Hon'ble Apex Court has found that presumption under Section 5(2) of the Act arises only when employee has successfully completed the period of probation of two years. The Hon'ble Apex Court noticed that employee before it was appointed only for a period of two academic years and was not put on probation. The order specifically mentions that after expiry of said period of two years, his service was to come to an end without any notice and undertaking was also obtained from him that after expiry of said term, he would not claim any right to the post. It is in this background that the Hon'ble Apex Court noticed that such employee was bound to continue in service only till the end of academic session 1997-98. It is in this background that the Hon'ble Apex Court noticed that such employee was bound to continue in service only till the end of academic session 1997-98. It is apparent that this ruling has no application in both the petitions. 40. In Writ Petition No.1407 of 1997, the management itself had sent proposal for approval mentioning that vacancy was clear and the conduct and work of Respondent No.2 was good and satisfactory. In Writ Petition No.1355 of 1996, there is nothing to demonstrate that work and conduct of said employee was not satisfactory. The subsequent developments show that employee has put in about 16 years of service as of now and his services are also duly approved by the Education department. In these circumstances, I do not find any merit even in this argument. 41. Shri. Gordey, learned counsel has also relied upon judgment in Maharashtra Shikshan Sanstha Vs. State of Maharashtra, reported at 2003(2) Mh.L.J. 92 . However, the perusal of facts therein reveal that there the appointment of employee was found to be temporary because school itself was granted recognition from year to year basis for a period of three years consecutively and approval of employee was not for more than one year, the said appointment was not permanent appointment. The facts discussed above clearly distinguish this case and it is not applicable here. Here petitioners have & already had other permanent teaching and non-teaching staff on roll. Similarly, reliance upon the Divi~ion Bench in M. M. College of Science Vs. R. T. Borkar (supra) by Shri. Gordey is again misconceived because there the Division Bench has noticed that there was no workload required to be assigned to the teacher and his appointment was on clock hour basis and hence the employee was appointed on non permanent temporary vacancy. The facts clearly show that said ruling again has no application here. 42. In both writ Petitions it has been demonstrated that institution in which employees were/have been working are recognised. There is no challenge to the legality or otherwise of the appointments and their appointments were also approved by the Education department. I, therefore, find that no case is made out for interference in writ jurisdiction. Writ Petitions are accordingly dismissed. There shall be no order as to costs. There is no challenge to the legality or otherwise of the appointments and their appointments were also approved by the Education department. I, therefore, find that no case is made out for interference in writ jurisdiction. Writ Petitions are accordingly dismissed. There shall be no order as to costs. Shri Parsodkar, learned counsel for the petitioners - management in Writ Petition No.1407 of 1997 states that the interim order operating in the petition should be continued for a period of four weeks. The request is opposed by Shri. Deshpande, learned counsel for respondent No.2. However, in the interest of justice, said interim order in continued for a period of four weeks. Petition dismissed.