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6. The learned counsel for the respondent submitted that terms of appointment order are not decisive about nature of appointment, while his learned adversary submitted those terms do determine the question and both the learned counsel relied on a number of judgments in support of their respective contentions.

7. I would examine the judgments to find out if, irrespective of terms of appointment order, the petitioner could be held to have been appointed on probation. Before going to the judgments cited, it may be useful to reproduce for ready reference Section 5 of the MEPS Act, which reads as under :

23. The Supreme Court in its two decisions has referred to the appointments of persons against clear vacancies and yet held that the procedure prescribed under Section 5 of the MEPS Act would apply only to the appointments to fill up permanent vacancies. In Hindi Vidya Bhavan, Mumbai and others v. Presiding Officer, School Tribunal, Mumbai and others, reported at 2007(6) Mh.L.J. 563, this Court was dealing with a case of a wholesale departure by a Management by resorting to contract workers. In Maharashtra Shikshan Sanstha and another v. The Presiding Officer, School Tribunal and others, reported at 2007(2) All MR 269, and Yogeshwar Vikas Sanstha and others v. Rajendra T. Shinde and another, reported at 2008(1) Bom CR 297, on facts, the Court was considering the question of filling up of a permanent vacancy and, therefore, obviously procedure prescribed under Section 5 of the MEPS Act would apply even as per the pronouncements of the Supreme Court in two cases referred to above.

24. There can be no doubt that the judgment of the Supreme Court in Hindustan Education Society cannot be construed to lay down a proposition which does not emerge from Sections 5(1) and 5(2) of the MEPS Act, as observed in Maharashtra Shikshan Sanstha [2007(2) All MR 269]. All the same, the fact that the Supreme Court had noted in para 4 of the judgment that the appointment of the Teacher was a temporary appointment against a clear vacancy, had noted the provisions of Section 5 of the MEPS Act and then unequivocally held in para 6 that the appointment could not be construed to be a permanent appointment cannot be wished away. The Apex Court dealt with another similar appointment in Bharatiya Gramin Punarrachana Sanstha similarly. The principle that emerges is that the Managements cannot artificially turn permanent vacancies into temporary vacancies by making appointment thereto for a fixed period. At the same time, a "clear" vacancy need not be confused for a "permanent" vacancy, which would be available without any limit of time. And, only while filling a permanent vacancy procedure prescribed under Section 5 of the MEPS Act would have to be followed.

School, without realizing that the Schools are located at different The social milieu in which the School is located may be different, and the quality of teacher as distinguished from qualifications required in different Schools may be different. A graft of such a teacher

- say from metropolis of Bombay to a tribal area, say Dahanu or metropolis of Nagpur, to a School in tribal area in Gadchiroli, may not work to the advantage of the students and the teachers. Therefore, rather than insisting upon filling up of several clear vacancies in the manner prescribed under Section 5 of the MEPS Act, it would be better to restrict the mandate of Section 5 only to permanent vacancies.