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In tribunal observed thus:

                            paragraphs 17 and     19     the      school
                     
              "17.     ....   ....    ....    In the present

matter, the appellant was untrained and the Deputy Director of Education has given relaxation to his qualification and accorded approval to his appointment on year to year basis only. Therefore, the appellant cannot acquire status of permanent teacher, even though the management of the respondent no.1 has given his appointment order dated 11.6.1992 with effect from 15.6.1992 on probation for a period of 2 academic years 1992 to 1994. Because the said appointment order is against the provisions of Section 5(1) of MEPS Act. Even though appointment order dated 11.6.1992 is given by the respondent no.1 to the appellant on probation for the period of 2 years the Deputy Director of Education has approved it from year to year purely on temporary basis. It is also pertinent to note that the appellant was appointed temporarily for 2 academic years 1990-91 and 1991-92 by issuing 2 separate orders. But as soon as period of appointment orders mentioned in the said appointment orders expired, at the same moment, the services of the appellant automatically came to an end. Because in case of temporary appointment order, even notice under Rule 28 (1) of MEPS Rules 1981 is not required to be given by the management to the teacher after expiry of period of temporary appointment. Subsequently the appointment order dated 11.9.1992 on probation for the period of two years with effect from 15.6.1992 was issued. But the Deputy Director of Education has granted approval to his appointment from year to year basis purely on temporary basis. Therefore, the appellant does not acquire permanent status. In 1997 (3) Maharashtra Law Journal, page 697, Anna Manikrao Pethe V. Presiding Officer, School Tribunal, Aamarawati and Others, the Hon'ble Division Bench of Bombay High Court bench at Nagpur, has clearly held that temporary appointees are not entitled to claim permanent status unless such permanent vacancies are filled in as per section 5 of the Act, temporary appointees can have no grievance. Therefore, in view of the above said ruling, it is clear that, the appellant was not appointed by the management as an Asst. Teacher in the Junior College of Commerce as per section 5 of the MEPS Act. As the appellant was not only qualified to be appointed as an Asst.Teacher in Junior College, because he was not possessing B.Ed. degree. Therefore, in view of Schedule "B" III (1)(d), the appellant cannot acquire permanent status as a teacher.

institution vehemently submitted that the petitioner was not possessing the prescribed qualification as contemplated under section 5 of the MEPS Act read with rule 6 of Schedule B-III of the MEPS Rules and, therefore, he cannot claim benefit of the deemed permanency under sub-section (2) of section 5. He submitted that the petitioner does not comply with basic conditions contemplated under section 5 of the MEPS Act and, therefore, the order of termination cannot be faulted.

"8. A plain reading of section 5 of MEPS Act shows that in order to claim benefit of deemed permanency under sub-section (2) of section 5 of the MEPS Act, a person, who is otherwise eligible to be appointed in a private school, must satisfy three conditions as reflected in sub-section (1). Firstly, his appointment must be on permanent vacancy;

secondly, he must possess the qualification prescribed under Rule 6 read with schedule 'B' of the MEPS Rules; and lastly, his appointment must have been made in the manner prescribed i.e. by due process of selection. In the present case we are not concerned with the last condition. Once an eligible candidate, holding the "prescribed qualification" is selected by selection process i.e. by competition amongst all eligible and desirous candidates, and who is appointed on a "permanent vacant post", the management has no option but to appoint such person on probation for a period of two years. It is neither open for the management to appoint him for one academic year or any period shorter than two years probation period, nor it is open for Education Officer to grant approval for shorter period. Such candidate, appointed on probation, shall enjoy status of deemed permanency on completion of two years, unless extension of probation is informed, or termination is ordered. It is also well settled that the appointment of a person not belonging to reserved category, in a post reserved for a particular category, because the candidate of that category is not available, shall be absolutely temporary and on an year to year basis, governed by sub-rule (9) of Rule 9, although in a permanent vacancy. (see :

was no more available in and after 1995. Respondent No.3, who was working with some other school rendered surplus there and, therefore, the respondent-institution was directed to absorb him in their junior college. Apart from that it is pertinent to note that the commerce wing, where the petitioner was working, was also closed as sufficient number of students were not available and, therefore, the post on which the petitioner was working at the relevant time was not available after 1995. It may also be noticed that before closing down the commerce wing by respondent no.2 - college, respondent no.3 was not absorbed by respondent no.2 repatriated to his original college since the post on and he was which he was directed to be absorbed by respondent no.2 did not exists any more. It is against this backdrop, in my opinion, the judgment of the tribunal warrants no interference by this court. The government resolution relied upon by Mr.Bandiwadekar is also of no avail to the petitioner in view of the fact that the first proviso to rule 6 of the MEPS Rules does not apply to the teachers of the junior colleges apart from the fact the government resolution cannot run counter to section 5 of the MEPS Act. Section 5 does not render any support to the petitioner to claim deemed permanency in respondent no.2 - school. In the result, the writ petition is dismissed. No costs.