:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1679 OF 2009 WRIT PETITION NO. 1679 OF 2009 WRIT PETITION NO. 1679 OF 2009 Sou. Vaijayantimala Namdeo Patil ..Petitioner versus Datta Shikshan Prasarak Mandal Khanapur, through Chairman & Ors. ..Respondents Mr. Sangramsinh Yadav for the Petitioner. Mr. M. S. Topkar for the Respondent Nos. 1 & 2. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. DATE : 3RD MARCH, 2009 DATE : 3RD MARCH, 2009 DATE : 3RD MARCH, 2009 P.C. P.C. P.C. . Heard the learned counsel for the parties. 2. The petitioner has challenged the Order of the School Tribunal dated 16.12.2008 dismissing her appeal against her termination. The School Tribunal has found that the petitioner’s services were not terminated illegally. In fact, the learned Tribunal has found that the appointment of the petitioner itself was illegal as having been done without following the procedure prescribed by law and therefore she could not be treated either as a probationer or a permanent employee. The main :2: contention on behalf of the petitioner is that the petitioner’s appointment which is in an open category need not have been made in pursuance of an advertisement which is contemplated by Rule 9 sub rule 8, which requires an advertisement to be published before filling up vacancies reserved for the backward class mentioned in sub rule (7). Though the submission is in accordance with literal construction of sub rule (3) of Rule 9 which has been considered and rejected by the Division Bench of this Court in Priyadarshini Education Trust & Priyadarshini Education Trust & Priyadarshini Education Trust & Ors. vs. Ratis (Rafia) Bano d/o. Abdul Rasheed Ors. vs. Ratis (Rafia) Bano d/o. Abdul Rasheed Ors. vs. Ratis (Rafia) Bano d/o. Abdul Rasheed and Ors. [ 2007 (6) Mh.L.J. 667], and Ors. [ 2007 (6) Mh.L.J. 667], and Ors. [ 2007 (6) Mh.L.J. 667], where the Division Bench observed in paragraph 11 as follows : ".....We are unable to visualise a possibility of deserving candidate knowing about the vacancies in any private schools, unless the school invites applications by advertisement. The persons, who may learn about vacancies without advertisement, may only be kith and kins or those in close contact with the management or at the most staff members. If argument of Advocate Shri Kazi is to be accepted, it will be tantamount to accepting that rule 9 is drafted in such a manner to promote nepotism, so far as appointments of open category candidates to teaching and non-teaching posts in private schools are concerned. If the argument of Advocate Shri Kazi is to be accepted, Rule 9 will have to be read in a fashion, where reserved category candidates are required to enter the service by competing amongst themselves, but an open category candidate may be in a :3: position to seek an appointment without competing. Legislature could not have intended to prescribe a manner of recruitment which would discriminate between reserved and un-reserved categories in respect of manner in which they can seek appointments. A legislation making it easier for a reserved candidate, may be justified, in view of Article 15(4) of the Constitution. But a reverse position cannot be justified by any line of argument. ......Any procedure for recruitment / appointment, which does not afford equal opportunity to all eligible and deserving candidates to compete for seeking appointment and employment, must be seen and termed as unconstitutional as being violative of Articles 14 and 16(1). .................It is evident that once a person is selected in the manner prescribed and duly appointed, the Management or the School Committee has no option. Such a person must be appointed on probation......." In this view of the matter, it cannot be said that the Judgment of the learned School Tribunal suffers from any error of law apparent on the face of the record. The learned School Tribunal has rightly relied upon the Judgment of the Supreme Court in the case of Secretary, State of Karnataka vs. Umadevi 2006 2 C.L.R. 261. There is thus no merit in the petition, which is hereby dismissed. (S. A. BOBDE, J.) (S. A. BOBDE, J.) (S. A. BOBDE, J.)