Judgment: 1. The Management of the School challenges by this writ petition the order passed by the School Tribunal, whereby the Tribunal directed reinstatement of respondent no.2. 2. The facts giving rise to the writ petition are as follows Respondent no.2 is a holder of Diploma in Civil Engineering. The petitioner – Institution runs an institution known as ‘Gautam Shikshan Sanstha at Walgaon, Distt.Amravati. The respondent no.2 came to be appointed as an Instructor in the pay scale of 1400 – 2600 in a clear vacancy. He initially came to be appointed in the year 1992 w.e.f. 30/7/1992. He continued to work until 15/8/1995, when all of a sudden his services were orally terminated. According to respondent no.2, he was appointed in a clear vacancy and he worked for a period of more than two years and therefore, he is deemed to be confirmed as an Instructor in the petitioner’s institution. He submits that the order of termination is illegal. 3. Since respondent no.2’s services were terminated, he approached the School Tribunal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. The said appeal was opposed by the present petitioner. It is the contention of the present petitioner that respondent no.2 was appointed temporarily every year for that Academic Session only. The petitioner does not dispute that respondent no.2 came to be appointed for the first time in the year 1992. According to the petitioner, the appointment was made on year to year basis only and there was no permanent appointment. Further, it is the contention of the petitioner that it was respondent no.2, who had abandoned the services and there was no termination at all. 4. The Deputy Director i.e. respondent no.3 had filed statement before the School Tribunal. According to respondent no.3, the appointment of the respondent no.2 was from year to year and it was against the vacancy meant for candidate of reserved category. It is contended that since no candidate was available from the reserved category, the respondent no.2 was appointed on temporary basis and approval for that academic year only was given. It is also contended that as soon as the candidate from the reserved category was available, he has been so appointed and there is no vacancy available. 5. It is contended that since no candidate was available from the reserved category, the respondent no.2 was appointed on temporary basis and approval for that academic year only was given. It is also contended that as soon as the candidate from the reserved category was available, he has been so appointed and there is no vacancy available. 5. The Tribunal found that the termination was illegal and therefore directed the reinstatement and feeling aggrieved thereby the Management prefers this writ petition. 6. I have heard the learned counsel for the petitioner as well as the respondents. 7. Following few are the undisputed facts – Respondent no.2 came to be appointed initially by order dated 28/7/1992 w.e.f. 30/7/1992. This appointment was for the academic Session 1992-1993 only. He was reappointed in 1993-1994 and 1994-95 but these appointments were only for the academic session. Thus, for a consecutive period of three academic sessions, respondent no.2 worked with the petitioner. Thus, respondent no.2’s service with the petitioner for three academic sessions is not disputed. 8. It is the case of respondent no.2 that he was appointed in a clear vacancy and he has put in continuous three years’ service and he has, therefore, acquired a status of a deemed confirmed employee under Section 5 of the M.E.P.S.Act. There does not appear to be dispute with regard to the fact that there was a clear vacancy. However, the appointment was made from year to year only. Learned counsel for the petitioner submits that since the appointment was for specific period, it came to an end after expiry of the period. It was also contended that approval was given from year to year only. Shri Deshpande, learned counsel for the petitioners submits that such temporary appointment was required to be made because the post was reserved for candidate from the reserved category and a candidate from reserved category was not available. He submits that in order that no loss should be caused to the pupils, an arrangement of a temporary teacher was made. He submits that such a course is permissible under Rule 9 of the M.E.P.S.Rules. Rule 9 of the said Rules reads as follows – 9. He submits that in order that no loss should be caused to the pupils, an arrangement of a temporary teacher was made. He submits that such a course is permissible under Rule 9 of the M.E.P.S.Rules. Rule 9 of the said Rules reads as follows – 9. (a) In case it is not possible to fill in the teaching post for which a vacancy is reserved for a person belonging to a particular category of Backward Classes, the post may be filled in by selecting a candidate from the other remaining categories in the order specified in sub-rule (7) and if no person from any of the categories is available, the post may be filled in temporarily on an year to year basis by a candidate not belonging to the Backward Classes. (b) In the case of a non-teaching post, if a person from the particular category of Backward Classes is not available, the Management shall make efforts with regular intervals to fill up the post within the period of five years and the post shall not be filled up during that period by appointing any other person who does not belong to the respective category of Backward Class. 9. It is clear from this rule that the Management has a right to make a temporary appointment against a clear vacancy reserved for the reserved category candidate where such reserved category candidate is not available. It is also clear that such temporary arrangement can continue until a suitable candidate is available from the reserved category. Respondent no.3 has raised a specific defence that this post was meant for reserved category only and every year temporary approval was given with an understanding that the appointment is only temporary against reserved class vacancy. Annexure V – the letter by respondent no.3 to the petitioner written on 29/1/1993 while granting approval for the year 1992-93, makes it clear that the approval is granted for one year subject to filling up of the backlog of the reserved category. Annexure III is another letter of approval dated 18/11/1993. In this letter, it is specifically once again directed that the approval to the six employees is granted temporarily as against vacancy of reserved categories. It was also directed that list of reserved category candidate be called and the process to fill these vacancies of reserved category be undertaken. Annexure III is another letter of approval dated 18/11/1993. In this letter, it is specifically once again directed that the approval to the six employees is granted temporarily as against vacancy of reserved categories. It was also directed that list of reserved category candidate be called and the process to fill these vacancies of reserved category be undertaken. It is, therefore, clear that appointment of present respondent no.2 was as against the vacancy of the reserved category and it was an appointment falling under Rule 9 (a) of M.E.P.S. Rules. Therefore, even if respondent no.2 had worked for a period of three years in a clear vacancy, it could not be said to be an appointment falling under Section 5 of the M.E.P.S.Act. 10. Mr.Ingole, learned counsel for respondent no.2, urged that appointment being against clear vacancy and respondent no.2 having worked for two years continuously, he is deemed to be confirmed. He submitted that there is no evidence of these vacancies being reserved for reserved classes candidate available on record. He submitted that under such circumstances, the court should not accept the contention. The submission has no force. In the instant case, the approval letters issued by the Deputy Director which are referred to above, make it clear that all six appointments were approved against reserved category and temporary approval is granted. In this letter, further there was a direction to undertake the regular process of appointment of reserved category candidates. Mr.Ingole, learned counsel for respondent no.2, had relied on decision reported in 2007(2) Mh.L.J. 105 (President, Mahila Mandal, Sinnar and anr. ..vs.. Sunita Bansidhar Patole). The court observes as follows – 14. Once it is clear that the post wherein the respondent was appointed was a permanent vacancy, unless it is specifically disclosed by the Roster that the same was meant to be filled in by appointment of a reserved category candidate, the provisions of section 5(1) of the M.E.P.S. Act are clearly attracted. In the case in hand, it is not in dispute that the post which was occupied by the respondent was a permanent vacancy. The contention that it was for reserved category candidate is already found to be devoid of substance. In the case in hand, it is not in dispute that the post which was occupied by the respondent was a permanent vacancy. The contention that it was for reserved category candidate is already found to be devoid of substance. Obviously, when the respondent was duly selected and appointed by issuing appropriate order of appointment on 1st July, 1988, the same was to be considered as in terms of the provisions of law comprised under Section 5(1). Once there is an appointment in accordance with the provisions of law compromised under Section 5(1) and the candidate so appointed completes period of two years of service, the provisions of section 5(2) are naturally attracted. The decision has no bearing on the case at hand. In the instant case, the evidence available clearly goes to show that the appointment was temporary because of the fact that it was made against post reserved for reserved category candidate. 11. Shri Deshpande, learned counsel for the petitioners submits that when an appointment is said to be temporary, it could not be said to be permanent. All the appointment orders clearly go to show that the appointment was temporary and for a fixed period of Academic Session only. The Supreme Court in a decision reported in AIR 1997 (SC), 2126 (Hindustan Education Society ..vs.. Sk.Kaleem Sk.Gulam Nabi) observes as follows. 4. Thus, it could be seen that the appointment of the first respondent was only a temporary appointment against a clear vacancy. The appointments are regulated and controlled by the provisions of the Maharashtra Employees of Private School (Conditions of Service) Regulation Ac, 1977. Section 5 of the Act postulates as under : “5. Certain obligations of Managements of private Schools.- (1 The Management shall, as soon as possible, fill in, in the manner prescribed, every permanent vacancy in a private school by appointment of a person duly qualified to fill such vacancy: Provided that, unless such vacancy is to be filled in by promotion, the management shall, before proceeding to fill in such vacancy, ascertain from the Educational Inspector, Greater Bombay, or as the case may be, the Education Officer, Zilla Parishad, whether there is any suitable person available on the list of surplus persons maintained by him for absorption in other schools; and in the event of such person being available, the Management shall appoint that person in such vacancy. (2 Every person appointed to fill a permanent vacancy shall be on probation for a period of two years. Subject to the provisions of Ss.(3 and (4, he shall, on completion of this probation period of two years, be deemed to have been confirmed. (3 If in the opinion of the Management, the work or behaviour of any probationer, during the period of his probation, is not satisfactory, the Management may terminate his services at any time during the said period after giving him one month’s notice, or salary of one month in lieu of notice. (4 If the services of any probationer are terminated under Ss. (3 and he is reappointed by the Management in the same school or any other school belonging to it within a period of one year from the date on which his services were terminated, then the period of probation undergone by him previously shall be taken into consideration in calculating the required period of probation for the purposes of Ss.(2. (4A) Nothing in Ss.(2,(3 or (4 shall apply to a person appointed to fill a permanent vacancy by promotion or by absorption as provided under the proviso to Ss.(1. (5 The Management may fill in every temporary vacancy by appointing a person duly qualified to fill such vacancy. The order of appointment shall be drawn up in the form prescribed in that behalf, and shall state the period of appointment of such person.” 5. In view of the above and the order of appointment, the appointment of the respondent was purely temporary for a limited period. Obviously, the approval given by the competent authority was for that temporary appointment. As regards permanent appointments, they are regulated by Ss. (1 and (2 of Section 5 of the Act according to which the Management shall, as soon as possible, fill up, in the manner prescribed, every permanent vacancy in a private school by appointment of a person duly qualified to fill in such vacancy. Every person so appointed shall be put on probation for a period of two years subject to the provisions of Ss.(4 and (5. He shall, on completion of the probation period of two years, be confirmed. 6. Under these circumstances, the appointment of the respondent cannot be considered to be a permanent appointment. Every person so appointed shall be put on probation for a period of two years subject to the provisions of Ss.(4 and (5. He shall, on completion of the probation period of two years, be confirmed. 6. 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. If the ratio of this decision is to be applied then even a notice of termination of services is not necessary, since the services come to an end upon expiry of period for which appointment was made. In the instant case, the appointment could be said to have come to an end on expiration of the Academic Sessions. 12. The learned judge of the Tribunal did not consider all these aspects and came to wrong conclusions. In the circumstances, the writ petition must succeed. The writ petition is allowed. The order passed by the School Tribunal is set aside and quashed. No order as to costs.