Judgment Per R.C. Chavan, J 1. The question that falls for consideration in this Letters Patent Appeal is, whether an appeal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 lies against an order appointing a teacher as an in-charge Assistant Head Master? 2. The appellant no. 1 Nagpur Shikshan Mandal is a Society which administers and manages appellant no. 2 School. A substantive vacancy came into being on account of retirement of the earlier incumbent in the post of Assistant Head Master. By a resolution dated 27th June 2005, the Managing Committee of the appellant no. 1 Society resolved that though a vacancy has occurred in the post of Assistant Head Master in Shri Dadasaheb Dhanwate Nagar Vidyalaya on account of superannuation of one Shri L.K.Naik, it is not necessary to fill in the post of Assistant Head Master then. It took a decision to hand over the charge of the post of Assistant Head Master to Shri B.S. Jambhule, the respondent no. 3 in this appeal. Respondent no. 3, it was resolved, should be given the additional charge of the post of Assistant Head Master pursuant to the said resolution. An order dated 29/6/2005 came to be issued to Shri B.S. Jambhule assigning him additional charge of the post of Assistant Head Master and it was informed that he will have to act as an in-charge Assistant Head Master until further orders. Since then no further orders have been issued and the ad-hoc arrangement continues. 3. Aggrieved by the appointment of the respondent no. 3 as an in-charge Assistant Head Master, the present respondent no. 1 preferred an appeal under Section 9 of the MEPS Act before the School Tribunal contending inter-alia therein that his claim to the promotional post of Assistant Head Master has been superseded and hence, questioned the legality and propriety thereof. 4. The appellants herein moved an application raising a preliminary objection to the maintainability of the appeal by contending that there is no substantive appointment made in the post of Assistant Head Master and thus, the right of the appellant to the promotional post has not been superseded and hence, the appeal is not maintainable. 4. The appellants herein moved an application raising a preliminary objection to the maintainability of the appeal by contending that there is no substantive appointment made in the post of Assistant Head Master and thus, the right of the appellant to the promotional post has not been superseded and hence, the appeal is not maintainable. The Tribunal, rejecting the preliminary objection, held that an appeal under Section 9 of the MEPS Act is very much maintainable even against an order of appointment of an incharge Assistant Head Master. 5. Aggrieved by the order passed by the School Tribunal, a writ petition was carried to this Court which is heard and decided by the learned single Judge of this Court by its judgment dated 9th January 2007. The learned single Judge, concurring with the view taken by the School Tribunal, has held that the appeal filed by the respondent no. 1 herein before the School Tribunal was maintainable as an appeal lies even against an ad-hoc arrangement appointing a person as in-charge. While reaching the said conclusion, the learned single Judge has placed reliance on Section 5 of the MEPS Act and rule 3 of the MEPS Rules. After observing that Section 5 of the MEPS Act casts a statutory obligation on the management to fill in the permanent vacancy by appointing a person duly qualified to fill the said vacancy and being of the view that the management has violated the said obligation, he concluded that the rightful claimant has been denied the promotional post. Reading rule 3 (3) of the MEPS Rules in the light of the statutory obligation cast by Section 5 of the MEPS Act, a finding is reached that an appeal is maintainable. 6. Reading rule 3 (3) of the MEPS Rules in the light of the statutory obligation cast by Section 5 of the MEPS Act, a finding is reached that an appeal is maintainable. 6. The learned counsel for the appellants has contended that for making a substantive promotion, certain procedure is required to be followed which is bound to consume some time and till a substantive appointment by promotion is made, the management is very much within its right to make an ad-hoc arrangement by appointing some person as an in-charge or by handing over the additional charge of the promotional post to some one who is holding a substantive post in a lower cadre for the time being and this arrangement cannot be termed as a final decision which could result in supersession of claim of any other person who has a legitimate claim to the promotional post. The submission is that at times in unforeseen situation, the management has to make ad-hoc arrangement such as the one made in the present case and the same does not clothe the ad-hoc appointee with any right which would give rise to a corresponding right in an employee who is said to be adversely affected by the ad-hoc arrangement to file an appeal before the School Tribunal. The learned counsel has submitted that Section 5 does not oblige the management to fill in the post immediately. On the contrary, the language used in Section 5 of the Act is indicative of a discretion being vested in the management to make an ad-hoc arrangement until a substantive appointment is made. Use of the words .as soon as possible. appearing in Section 5 (1) of the MEPS Act goes to clearly permit the management to make a stop-gap arrangement till a regular appointment is made. 7. The appellants have placed reliance on the judgment of the Supreme Court in the case of Ramakant Shripad Sinai Advalpalkar v. Union of India & ors reported in AIR 1991 SC 1145 . In the said case, the appellants had sought a mandamus directing the respondents to absorb him in an equivalent post to that of Treasurer of a financial institution of the former Portuguese Government in Goa after its take-over by the Indian Government. The appellant was holding the post of Grade III Officer. In the said case, the appellants had sought a mandamus directing the respondents to absorb him in an equivalent post to that of Treasurer of a financial institution of the former Portuguese Government in Goa after its take-over by the Indian Government. The appellant was holding the post of Grade III Officer. In the year 1963 the post of Treasurer in the establishment having fallen vacant, the appellant was asked to perform the duties of the post of Treasurer on the stipulation that he would draw, besides the monthly salary of his own post, a given amount of allowance. In the above set of facts, the Supreme Court held thus : .The arrangements contemplated by this order plainly does not amount to a promotion of the appellant to the post of Treasurer. The distinction between a situation where a Government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion. In such a case he does not get the salary of the higher post; but gets only that in service parlance is called a .charge allowance.. Such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it. The person continues to hold his substantive lower post and only discharges the duties of the higher post essentially as a stop-gap arrangement. 8. Per contra, learned counsel for the respondent no. 1 has contended that having regard to the scheme of the MEPS Act and the Rules regulating the appointment including the appointment by promotion, there is no scope to infer any authority or power with the management to make an ad-hoc arrangement. It is contended that every vacancy occurring must be filled in by making substantive appointment. It is too wide a proposition to be accepted. Be it an appointment to a post or an appointment by promotion, time is consumed in the process to reach a final decision in that regard by the management. It is contended that every vacancy occurring must be filled in by making substantive appointment. It is too wide a proposition to be accepted. Be it an appointment to a post or an appointment by promotion, time is consumed in the process to reach a final decision in that regard by the management. When it is a fresh appointment, the procedure laid down such as, calling of applications from open market, getting the names of suitable candidates sponsored from Employment Exchange and/or Social Welfare Department; holding of interviews; passing of resolution for selection etc. has to be gone into. When it is an appointment by promotion, procedure prescribed by rule 3 has to be followed. Section 5 of the Act also postulates a substantive appointment to be made as soon as possible and if it be so, it has to be by necessary implication held that the power of the employer to make a stopgap or ad-hoc arrangement cannot be doubted. It will not be out of place to mention that the power and authority of the employer is only restricted to the extent it is regulated by the provisions of the Act and the Rules and in the area which is not regulated by the provisions of the Act and the Rules, the employer will be within its right to regulate its affairs. 9. It is a settled position in service jurisprudence that when a person is made to act as an in-charge in a higher cadre on account of administrative exigencies, the said assignment cannot be termed as promotion and does not cloth him with any right qua the promotional post. He is not even paid in the scale of pay admissible to the promotional post. To hold that an appeal under Section 9 of the MEPS Act is maintainable against an order of appointment as an in-charge would tantamount to conferring a higher status on a person appointed as an in-charge on account of stop-gap arrangement being made. The same cannot be done. Thus, the respondent no. 3 has not assumed any right to the promotional post on account of he being appointed as an in-charge Assistant Head Master. If this be the position in law, the necessary corollary thereof is that no one including the respondent no.1 can be said to be aggrieved by such an appointment. The same cannot be done. Thus, the respondent no. 3 has not assumed any right to the promotional post on account of he being appointed as an in-charge Assistant Head Master. If this be the position in law, the necessary corollary thereof is that no one including the respondent no.1 can be said to be aggrieved by such an appointment. A person would be aggrieved only when a substantive appointment by promotion is made. The learned counsel for the respondent no.1 has also placed reliance on an unreported judgment of Division Bench of this Court in the case of Pramod Vasantrao Deshmukh v. The State of Maharashtra and ors (Writ Petition No. 3230 of 2007) which goes to dismiss the writ petition. One of us (Shri R.C. Chavan, J) is a party to the said judgment. The question as to whether an appeal is maintainable under Section 9 of the MEPS Act against an order of appointment by promotion as in-charge had not come up for consideration directly, nonetheless this Court has dismissed the writ petition by placing reliance on the same judgment the correctness of which is questioned in the present Letters Patent Appeal rendered by the learned single Judge and relegated the petitioner to alternate remedy assumed to be available to the petitioner before the School Tribunal in the form of an appeal. As the question which has arisen in the present Letters Patent Appeal did not fall for consideration and has not been decided by the Division Bench, the said judgment does not lay down any ratio which would bind this Court. With a risk of repetition, it is pointed out that the said petition was not entertained by observing that an alternative remedy in the form of appeal is available. In this view of the matter, the said judgment does not carry case of the respondent no.1 any further. 10. We are of the clear view that no appeal lies against an order appointing a teacher as in-charge Assistant Head Master, hence we hold that the appeal preferred by the respondent no. 1 challenging such an order is misconceived and is not maintainable in law. Hence, writ petitioner succeeds. 11. The learned counsel for respondent no. 1 has vehemently contended that the ad-hoc arrangement made in the year 2005 is continued till date, thereby depriving the legitimate claimant of his right to the post. 1 challenging such an order is misconceived and is not maintainable in law. Hence, writ petitioner succeeds. 11. The learned counsel for respondent no. 1 has vehemently contended that the ad-hoc arrangement made in the year 2005 is continued till date, thereby depriving the legitimate claimant of his right to the post. This grievance, no doubt, has to be redressed. It is, no doubt true that in many cases, the management inordinately delay granting substantive promotion for no valid reason and permit a person of its choice to hold on the charge of the promotional post, thereby depriving legitimate claimant of the benefits of the promotional post. This has to be deprecated. We categorically asked the learned counsel appearing for management as to within what time it would complete the process and make substantive appointment to the post of Assistant Head Master. On instructions from the management, a categorical statement is made by the counsel that the process will be completed and a substantive appointment will be positively made within a period of three months from today. We accept the undertaking. 12. In the result, Letters Patent Appeal is allowed. The impugned orders passed by the learned single Judge in Writ Petition No. 2563 of 2006 dated 9.1.2007 so also the order passed by the School Tribunal dated 13.12.2005 are quashed and set aside. We declare that the appeal filed by respondent no. 1 before the School Tribunal against an order passed by the appellants appointing respondent no. 3 as in-charge Assistant Head Master is not maintainable in law under Section 9 of the MEPS Act. We accept the undertaking given by the learned counsel for the appellants that the post of assistant Head Master shall be substantively filled in within three months from today and hence, no further orders in that regard are necessary to be passed. (R.C. Chavan, J) (A.P. Deshpande, J) hsj