WP/7930/2009 : 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7930 OF 2009 Janata Seva Mandal, Nasik & Anr. .. Petitioners V/s. Uttam Bachhu Nagare & Anr. .. Respondents Mr. Anilkumar Patil for the Petitioners. Mr. Vishal Kanade i/b. Mrs. J.V. Kanade for Respondent No.1. Mr. P.I. Khemani, AGP, for Respondent No.2. CORAM : SMT. NISHITA MHATRE, J. DATED : 5 TH AUGUST, 2010. P.C.: 1. This Writ Petition has been preferred against the Judgment and Order of the School Tribunal, Nasik, dated 1st July, 2009 passed in Appeal No.NSK/18/2008. According to the Petitioners, the Respondent No.1 was employed in view of the fact that they could not get a suitable candidate from the backward classes. The Petitioners contend that the appointment of Respondent No.1 was on “a year to year basis” and, therefore, was temporary in nature. The Petitioners also contend that the WP/7930/2009 : 2 : Respondent No.2, i.e. the Education Officer, refused approval to his appointment and therefore the Petitioner-Management had no option but to terminate the services of the Respondent No.1. 2. These contentions of the Petitioners have been adequately dealt with by the School Tribunal. It is now well settled that in view of Rule 9(9)(a) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, 1977 and Rules, 1981, (for short “the MEPS Act”), if a candidate from one category of backward classes is not available, then a candidate from another category of backward classes can be appointed. Such appointment would be on a regular basis and not on a year to year basis. Therefore, the contention that the employment of Respondent No.1 was temporary has rightly been discarded by the School Tribunal. 3. The School Tribunal has concluded that Respondent No.1 worked continuously with the WP/7930/2009 : 3 : Petitioners for two years. Thus the employment of Respondent No.1 was permanent in nature in view of Section 5(2) of the MEPS Act. All the requisites of Section 5 of the MEPS Act were required to be followed before terminating the services of Respondent No.1. Admittedly, no notice or wages in lieu of such a notice were offered to Respondent No.1 prior to his termination from the services. Nor was any enquiry held against Respondent No.1 prior to terminating his services. In these circumstances, in my opinion, no error has been committed by the School Tribunal. 4. The learned Advocate for the Petitioners has relied on the Judgment of the Supreme Court in the case of Bharatiya Gramin Punarrachana Sanstha vs. Vijay Kumar & Ors., reported in (2002) 6 SCC 707 , in which the Supreme Court was concerned with a case where the services of an employee were terminated before completion of the statutory period of probation. The employer filed a copy of the roster before the Court and contended that the WP/7930/2009 : 4 : Respondent could not have been appointed as it was vacancy for the reserved category candidates. The Supreme Court held that since the employee had been terminated from service before the probation period expired, he was not entitled to be reinstated as a permanent employee. The facts in the present case are different. The Respondent No.1 had completed 2 years in employment, after which he was terminated from service. This judgment has no bearing on the facts in the present case. 5. The Supreme Court in the case of Kankavali Shikshan Sanstha & Ors. vs. M.R. Gavali & Ors., reported in (2005) 13 SCC 638 , dealt with a matter where Rule 9(9)(a) was considered. The Supreme Court has reiterated its earlier decision in the case of Shakuntala Ganpatsa Shirbhate vs. Industrial Wvg. Co-op. Society and has held as follows : “14.The law laid down by this Court on the interpretation of Rule 9(9)(a) in our view resolves the controversy WP/7930/2009 : 5 : in the present case. The first respondent was appointed in 1994. The vacancy was reserved for an ST candidate. At that stage there was no candidate belonging to ST available. There is no dispute about the fact that the first respondent belongs to the Hindu Mali community which is an OBC. In the circumstances, in terms of the provisions of Rule 9(9)(a) since no other candidate belonging to ST was available, the first respondent was entitled to appointment on a regular basis. This Court, in the above case, held that in the absence of a candidate belonging to the reserved category concerned, the Rule enjoins year-to-year appointment only if an available candidate does not belong to a backward class. The respondent belonging as he does to a backward class was entitled to a regular appointment. The subsequent appointment of P.B. Lohar, the 3rd respondent herein again, operates to displace the first respondent because in any event much prior thereto the first respondent had duly crystalised the right. In any event, it has not been demonstrated before this Court that the 3rd respondent was appointed subsequently in the vacancy created by the termination of the first respondent.” 6. Admittedly the vacancy arose in the S.T. Category. The Respondent No.1 who belongs to the OBC was appointed as there were no suitable WP/7930/2009 : 6 : candidates available in the order of preference mentioned in Rule 9(7). This judgment has been followed by the learned Single Judge of this Court in the case of Bhairvnath Shikshan Mandal & Anr. vs. Raju Haribhau Thombe, reported in 2009 (2) Bom.C.R. 539. 7. In my view, the order of the School Tribunal needs no interference as there are no infirmities in the order. In any event, merely because the approval has not been granted, the Petitioners could not have terminated the services of Respondent No.1. 8. The Writ Petition is rejected.