Maharashtra Regional Board of Education and Junior Colleges of Education of the Church of North India and anr. Vs. Presiding Officer, Additional School Tribunal and ors. - Court Judgment

Excerpt:
- karnataka municipalities act, 1964 [k.a. no. 22/1964]. disqualification; r.m. lodha, s.a. bobde & s.b. deshmukh, jj] disqualification of councillor express finding by caste scrutiny commi8ttee that caste certificate was obtained fraudulently or by making false claim, not necessary cancellation of caste certificate by scrutiny committee implies said fact and is sufficient. disqualification is proper. - 1 management on 26-6-1967 and he worked as in-charge head master from 1-9-1990 to 25-6-1991. he further states that during this period, his work was excellent and there were no complaints against him and no adverse remarks were communicated to him at any point of time. he states that on 26-6-1992, he approached the management for obtaining the experience certificate since he was thinking of also applying to other schools in search of better prospects. on the contrary, it is the certificate on the basis of which he has been reverted to the post of assistant teacher and the said certificate is clearly erroneous and without any sanction. however, all these aspects are not clearly reflected in the order sheets which are placed on record. 7. the perusal of impugned judgment shows that the school tribunal found that there could not be any stipulation of period of probation in the case of shri gajbhiye and further he was not temporarily appointed to the said post and the management failed to establish that the said appointment of shri gajbhiye was subject to decision of appeal filed by shri jacob. however, on 6-5-2004, both the counsel submitted that they would like to advance short arguments orally and the matter was accordingly adjourned to 7-6-2004 at 2.15 p. the manner in which the proceedings were fought before the school tribunal, clearly show that there was no collusion between the parties at that time. 2 filed an application for dismissal of appeal as infructuous on behalf of respondent management as well as on her behalf. the said application is dated 26-9-2003 and various objections like the fact of appeal of shri jacob allowed by the school tribunal, the fact of shri jacob has received, his regular complete salary till april 1993, that he is receiving his final pension as head master, that respondent no. on identical issue it is observed in para 11: in view of the above we are satisfied that the impugned order dated 19th april, 1994 (annexure b-5) by which the petitioner was removed form the office of the presidentship as well as membership of the committee cannot be sustained. 'the present writ petition filed by the petitioner rests more on strong ground and we have already come to the conclusion that in view of the reasons stated above, the impugned order cannot be sustained and deserves to be quashed. however, as already pointed out above, in view of the stands of the management, the management was well aware that their action of reversion is in challenge before the school tribunal and hence, this point needs no further scrutiny. this position in law is well settled and reference in this respect can be made to the judgment of the apex court in the case of state of u. this is apart from the fact that the reversion order was bad in law since being a direct appointee to the post of probation officer, she could not have been reverted to any post much less to the post of assistant superintendent, district shelter workshop which post she had never held. state of karnataka, reported in air2003sc355 ,clearly reveals that the right of minority to establish and administer the school is not absolute. 2 joined services later on as assistant teacher during pendency of his appeal before the school tribunal, he cannot be estopped from getting the fruits of his success before the school tribunal.dharmadhikari b.p., j.1. rule. rule is made returnable forthwith by consent of the parties. heard shri mohgaonkar, learned counsel for the petitioners, shri bhure, learned counsel for respondent no. 2 and shri patel, a.g.p. for respondents nos. 1 and 3.2. the petitioners in this petition are the management and the head mistress of mission high school, ganeshpur, bhandara, as petitioners no. 1 and 2 respectively. in this petition, they have challenged the judgment delivered on 29-1-2004 by respondent no. 1- school tribunal, nagpur in appeal s.t.n. no. 143 of 1992. the said appeal was filed by the present respondent no. 2 shri gajbhiiye, challenging the order/certificate dated 26-6-1992 by which he was reverted from the post of head master of mission high school, bhandara, to the post of assistant teacher. respondent no. 3 in the present petition is the education officer (secondary), zilla parishad, bhandara, who is the approving authority for all appointments/petitions made by the petitioners. the appeal mentioned above was filed by shri gajbhiye under section 9 of the maharashtra employees of private schools (conditions of service) regulation act, 1977, (hereinafter referred to as the act of 1977), contending that he was appointed to the post of head master and as such he could not have been reverted to the post of assistant teacher.3. in this appeal memo, he has pointed out that he was originally appointed as assistant teacher with petitioner no. 1 management on 26-6-1967 and he worked as in-charge head master from 1-9-1990 to 25-6-1991. he further states that during this period, his work was excellent and there were no complaints against him and no adverse remarks were communicated to him at any point of time. he further states that the post of head master of mission high school, bhandara, became vacant and an advertisement was issued by the management for filling in that post. in response to that advertisement, he applied and interviews were held on 1-5-1991. he further states that he was selected and given appointment on probation vide appointment letter dated 24-6-1991 with effect from 24-6-1991. he further mentions that his appointment as head master was challenged before the school tribunal by another assistant teacher shri a. p. shinde vide appeal no. s.t. no. 156 of 1991 and in this appeal the management filed written statement mentioning that the appellant (shri gajbhiye) was not promoted but was selected for appointment as head master after being interviewed. the education officer refused to give approval to the appointment of shri gajbhiye as head master and the management challenged this action of education officer before the high court in writ petition no. 881 of 1992. the high court vide its order dated 30-4-1991 directed the education officer, zilla parishad, bhandara, to grant approval to the appointment of shri gajbhiye and accordingly, the education officer granted approval in his favour. he further states that he worked satisfactory all throughout and his period of probation was to expire on 25-6- 1992 and he was to be continued further. he states that on 26-6-1992, he approached the management for obtaining the experience certificate since he was thinking of also applying to other schools in search of better prospects. the secretary of management issued certificate dated 26-6-1992 mentioning therein that the work of shri gajbhiye was satisfactory. however, in the said certificate, it was also mentioned that after expiry of period of probation, shri gajbhiye stands reverted back to the post of assistant teacher with effect from 26-6-1992. this certificate / order issued by the secretary was challenged before the school tribunal on various grounds including the ground that he was never promoted as head master but was appointed after due selection process and as such he could not have been reverted to the post of assistant teacher. he further mentioned that there was no adverse remarks against him and his work was extremely satisfactory and there was no reason to revert him.4. in his appeal, he has further raised a ground that his probation as mentioned has commenced on 26-6-1991 and therefore, on 26-6-1992, he was deemed to have been confirmed in the post of head master. he further mentions that there is no separate order of reversion passed and no such order is communicated to him. on the contrary, it is the certificate on the basis of which he has been reverted to the post of assistant teacher and the said certificate is clearly erroneous and without any sanction. he contends that the said certificate is revealing mala fide intention on the part of the management. it appears that he filed the appeal before respondent no. 1 school tribunal on 29-6-1992 and the management thereafter filed its reply to the application for grant of stay on 31-5-1993. in this reply, the management pointed out that shri gajbhiye has worked as in-charge head master from 26-6-1991 to 25-6-1992 on probation. he was reverted back to his original post of assistant teacher on 26-6-1992. the approval of the education officer was obtained only for submitting salary statements and bills for drawing salaries of other staff of this school. his probation came to an end on 25- 6-1992. it was further contended that certificate is nor an order and does not give any cause of action. it was also mentioned that the appeal itself has become infructuous in view of the judgment of the school tribunal in another appeal having no. 224 of 1991 which was filed by shri m.y. jacob. it is stated that the said appeal was decided on 17-9-1992 by the school tribunal and the school tribunal directed the management to reinstate shri jacob with continuity of service and back wages from 1-2-1991 till shri jacob resume his duties. it was mentioned that shri jacob was earlier head master, who came to be terminated and challenged his termination by filing appeal no. 224 of 1991 before the school tribunal, nagpur. the present respondent no. 2 shri gajbhiye was appointed during the pendency of the said appeal and as such, his appointment was subject to the decision of appeal and hence of purely temporary nature. it is further mentioned that the order of school tribunal, granting relief of reinstatement to shri jacob has been challenged by the management before the high court in writ petition no. 2572 of 1992 and the high court granted stay to the order of the school tribunal. it is, however, also pleaded that salary and allowances of shri jacob are being drawn with effect from 1-2-1991. they also pointed out that one shri a.p. shinde, assistant teacher, working with them challenged the appointment of shri gajbhiye by filing appeal no. 156 of 1991 before the school tribunal itself and the said appeal is pending. it was contended that as the question involved in appeal no. 156 of 1991 had bearing on appeal no. 143 of 1992, filed by shri gajbhiye, and in view of the mandate of section 10 of the civil procedure code, hearing of appeal filed by shri gajbhiye need to be stayed. it was further stated that from 26-6-1992 shri gajbhiye had vanished from the school without any intimation to the school authorities and with some files and documents. it is contended in this reply that till the date of filing of the reply, leave of shri gajbhiye had not been sanctioned. it further mentioned that the conduct and attitude of shri gajbhiye is not befitting to the post of head mater and therefore, he was reverted to his substantive post of assistant teacher in view of unsatisfactory performance. it was further stated that when this decision, to revert shri gajbhiye was taken, the post of head master in mission high school, bhandra, was filled in by transferring shri c.s. waghmare, head master of gardiner high school, nagpur. it was further stated that shri waghmare joined the duties and the education department had given approval to his appointment. in reply, it was stated that the status quo order of school tribunal operated in favour of shri waghmare. it was, therefore, contended that shri gajbhiye never deserved the post of head master and his appeal also suffered from non-joinder of necessary party because shri waghmare has not been joined as a party. the request was, therefore, made to dismiss the application for grant of stay and also the appeal.5. after the respondent management filed its reply before the school tribunal, it appears that on 29-4-1993, respondent no. 2 shri gajbhiye moved an application for amendment of appeal memo in which he sought permission to raise additional grounds and also permission to join parties. he contended that the actual order of revision dated 23-6-1992 was not served on him when he filed appeal before the school tribunal. he stated that the said order was served on him by the management on 10-7-1992 and therefore, he wanted to challenge the said impugned order dated 23-6-1992 in the appeal. it is to be noticed that in the appeal which is filed, the education institution and its secretary shri subhash bhalerao were the only respondents. by this amendment, respondent no. 2 proposed to add the education officer (secretary), zilla parishad, bhandara, shri c.s. waghmare and mrs. ashok gaikwad as parties to his appeal. mrs. gaikwad was appointed as head mistress in vacancy caused by transfer of shri waghmare. it further appears that the reply was filed by the management to this application on 9-3-1995, however, the said copy is not filed on record. it further appears that during the pendency of appeal before the school tribunal, there was one more application moved for addition of parties and then one application for deletion of parties. petitioner no. 2 also appeals to have moved an application to intervene and to be joined as party and a preliminary objection was also raised by the management for dismissal of the appeal. however, all these aspects are not clearly reflected in the order sheets which are placed on record. more reference in this respect will be made in the body of the judgment at appropriate place.6. be that as it may, ultimately, the school tribunal appears to have decided the matter on 29-1-2004 and by the said judgment, it allowed the appeal. it quashed and set aside the impugned order of reversion of respondent no. 2 of the post of assistant teacher from the post of head master vide communication dated 26-6-1992 and the letter dated 23-6-1992 and it directed the respondent-management and its chief executive officer to reinstate shri gajbhiye to his original post of head master with continuity and back wages. the said order was directed to be complied within 30 days. so far as the direction to pay the difference of pay from the date of revision of shri gajbhiye is concerned, 60 days time was given to the management. it is further directed that in default of the management to pay the said dues, the education officer shall deduct the said dues of pay from the non-salary grant due and payable to the management and pay it directly to shri gajbhiye. it is this order which forms the subject-matter of this writ petition.7. the perusal of impugned judgment shows that the school tribunal found that there could not be any stipulation of period of probation in the case of shri gajbhiye and further he was not temporarily appointed to the said post and the management failed to establish that the said appointment of shri gajbhiye was subject to decision of appeal filed by shri jacob. it has contended that the appointment of shri gajbhiye was of permanent nature.8. in the petition, the petitioners, after narrating the facts, have contended that shri gajbhiye was temporarily promoted subject to decision in the appeal filed by shri jacob and his reversion to the substantive post was immediately at the end of his probation period. it is contended that there was no permanent appointment of shri gajbhiye as head master and the observations on these lines in the impugned judgment of the school tribunal are perverse. it is further contended that the application for amendment moved by shri gajbhiye, challenging the actual order of revision dated 23-6-1992 was never allowed by the school tribunal and the school tribunal could not have quashed and set aside the said order dated 23-6-1992. it is further pleaded in the petition that in view of the judgment of the apex court in the case of hindustan education society another v. sk. kaleem sk. gulam nabi and ors., reported in : (1997)illj1071sc , the school tribunal ought to have held that the promotion given to shri gajbhiye was of temporary nature and therefore, the school tribunal could not have ordered his reinstatement. it is further contended that respondent no. 2 did not join proper parties in his appeal before the school tribunal. respondent no. 1 had filed a caveat before this court vide caveat application no. 281 of 2004 and when this petition was considered for the first time on 1-3-2004, the parties were directed to maintain status quo. the said order was thereafter continued from time to time and is in operation even today. on 29-1-2003, the then single judge to whom the matter was assigned had passed an order and directed the office not to list the matter before him. thereafter on 16-4- 2004, an order came to be passed and the concerned parties agreed that the petition should be disposed of finally at the stage of admission itself, that is how, the matter is being disposed of finally at the stage of admission itself.9. shri mohgaonkar, advocate appearing for the petitioners filed his written notes of arguments on 30-4-2004. shri khapre, advocate appearing for respondent no. 2 filed his written notes of arguments on 5-5-2004. on that date, counsel for the petitioners took time to file additional written notes of arguments in the reply. however, on 6-5-2004, both the counsel submitted that they would like to advance short arguments orally and the matter was accordingly adjourned to 7-6-2004 at 2.15 p.m. the matter was somehow, not listed on 7-6-2004 and it came to be listed on 8-6-2004 at 2.15 p.m. it could not be taken up on 8-6-2004 at 2.15 p.m. in view of new sitting arrangements and instructions and hence it was adjourned to 9-6-2004 at 4.15 p.m. on that day, the oral arguments of the parties were heard. the parties sought time to furnish xerox copies of the relevant case law in support of their arguments and the office was directed to place the matter after the case law was filed. however, till 28-6-2004, only the petitioners and respondent no. 2 submitted xerox copies of their list of reliances. shri deshpande, advocate who had filed an application for intervention in the matter, did not submit any list of reliances and hence the matter was required to be listed on 30-6- 2004 at 4.15 p.m.10. on 30-6-2004, advocate shri deshpande, for the applicant intervenor stated that he would be filing his case law/reliance's by 2nd july, 2004. therefore, the matter was adjourned to 5-7-2004.at 4.15 p.m. on that day, shri deshpande, furnished list of his reliances to counsel for the petitioners and filed the same on record, therefore, the matter was adjourned to 7-7- 2004 at 4.15 p.m. for giving opportunity to the petitioners. on 7-7-2004, the intervenor-applicant filed his written notes of arguments and again the matter was required to be adjourned to 12-7-2004 4.15 p.m. for arguments, if any, by the petitioners. on 12-7-2004, the petitioners filed their counter written notes and the hearing came to an end. case was adjourned to 19-7-2004 at 4.15 p.m. for judgment. however, because of other work it could not be taken up on 19-7-2004 and came to be adjourned to 22-7- 2004 for pronouncement of judgment.11. before shri mohgaonkar, learned counsel for the petitioners open his arguments. shri khapre, learned counsel for respondent no. 2 raised two preliminary objections. he contended that the petition as filed is not maintainable as it is not supported by any resolution of petitioner no. 1 trust. he further contended that petitioner no. 2 has no locus to challenge the order of reinstatement passed in respondent no. 2's favour by the school tribunal. shri mohgaonkar, learned counsel for the petitioners while submitting his reply to this petition, pointed out that petitioner no. 1 is vice president as per schedule 1. he contended that the recorded president and recorded secretary are already dead and there is no objection to the petition filed, by any of the trustees. he further contended that insofar as petitioner no. 2 is concerned, she is duly appointed as head mistress and her appointment is also approved by respondent no. 3 education officer. he contended that if respondent no. 2 is required to be reinstated as head master, petitioner no. 2 will loose her post.12. coming to the merits of the matter, shri mohgaonkar, learned counsel for the petitioners, after giving chronology contended that respondent no. 2 was appointed only for one year and immediately after that he was sent back to his substantive post as assistant teacher. he contended that this was a purely temporary arrangement. he further argued that order dated 23-6- 1992, by which respondent no. 2 was sent back as assistant teacher has not been challenged before the school tribunal by respondent no. 2 and he challenged only certificate issued to him by the then secretary. he contended that the subsequent head masters were also not joined as parties by respondent no. 2 before the school tribunal. he pointed out that the selection of petitioner no. 2 was challenged before the education officer and the education officer by his order dated 18-10-2002 upheld her appointment. he further contended that the education officer has pointed out that the appointment of respondent no. 2 is illegal and this order of education officer was challenged by management in writ petition which came to be subsequently dismissed. he, therefore, contended that this observation of the education officer has become final and the school tribunal could not have ignored it. he further contended that respondent no. 2 never worked as assistant teacher after 23-6-1992 and joined duties after long break i.e. on 1-7-1996 and thereafter he has been working as assistant teacher till this date. the school tribunal has nor considered this aspect. he further contended that the application for amendment of appeal memo filed by respondent no. 2 was not allowed by the school tribunal and perusal of order sheets of the appeal proceedings would show that there are some interpolations and tampering in it. he has specifically invited the attention to the order dated 30-8-2002, 5-9-2002, 7-10-2002, 24-9-2002 and also order dated 23-82002 and 30-8-2002. he has stated that he raised objections about order sheets before the school tribunal in his notes of arguments. he contends that the order of reversion dated 23-6-1992 which was not challenged before the school tribunal has been quashed by it. insofar application for intervention vide civil application no. 2024 of 2004 is concerned, he contends that the name of intervenor shri b.b. chougule does not figure in schedule 1, maintained under provisions of bombay public trust act. shri mohgaonkar, learned counsel for the petitioners has relied upon various cases to which reference will be made at appropriate juncture, in this judgment.13. shri khapre, learned counsel for respondent no. 2 pointed out the amendment was allowed by the school tribunal and order dated 23-6-1992 was very much challenged before the school tribunal. he further contended that his prayer clause (a) in appeal memo is very wide and he has also prayed for quashing and setting aside of 'any other order, resolution passed by respondents.' he further stated that the provisions of maharashtra employees of private schools (conditions of service) regulation act, 1977, does not contemplates appointment of head master on probation and as such mention of probation in his appointment order is contrary to law and cannot override the provisions of section 5. according to him, mention of probation for one year in his order of appointment is redundant. he argued that it is not the case of the petitioner that work of respondent no. 2 was not satisfactory. he further pointed out that the school tribunal did not grant any express stay in his favour and therefore, he had no option but to work as assistant teacher. he contended that he was very much prosecuting his appeal before the school tribunal and his resumption as assistant teacher on 1-7-1996 cannot operate as estoppel or waiver. he further argued that it was not necessary for respondent no. 2 to join subsequent head masters/ head mistress as party respondents in appeal memo before the school tribunal because doctrine of lis pendens is applicable and all subsequent appointees will be automatically governed by the decision of the school tribunal. he further stated that vice president cannot become whole sole and cannot file such petition and therefore 26 trustees in all who have to come together and pass a resolution in this respect. he pointed out that one of the trustees is the applicant intervenor in civil application no. 2024 of 2004. he pointed out that the contention of the petitioners that shri b.b. chougule is not trustee, is not correct because such allegations were also made by one shri bhelwar and one shri choudhary. though initial injunction was granted in their favour by charity commissioner, it was later on vacated. he further mentions that order dated 18-10- 2002 relied upon by the petitioners was not produced before the school tribunal and further the said order does not conclude the issue in as much as it was subject to proceedings before the school tribunal. he lastly stated that the word 'appointment' in section 5 of m.e.p.s. act, will also include the word promotion. he also relied upon some cases, to which reference will be made at appropriate stage. in his reply to argument of shri khapre, shri mohgaonkar, learned counsel pointed out that section 5 is not applicable in case of promotion and again pointed out that order dated 18-10-2002 of the education officer passed under rule 3(6) is statutory order and has achieved finality.14. shri patel, learned assistant government pleader, appearing for respondent no. 3 contends that the education officer has granted approval to the appointment of petitioner no. 2 as head mistress and hence, her appointment is valid.15. insofar as application for intervention is concerned, it is apparent that respondent no. 2 was appointed in the year 1991 by a body of which shri bhalerao was secretary. thereafter, it appears that shri bhalerao, as secretary, contested the matter before the school tribunal. the manner in which the proceedings were fought before the school tribunal, clearly show that there was no collusion between the parties at that time. the present writ petition is filed by vice president along with existing head mistress smt. khisty. they are challenging the order of the school tribunal, which is in favour of respondent no. 2. it is therefore, apparent that there is no collusion now also. on the contrary, the intervenor seems to represent a group which has passed resolution in favour of respondent no. 2 and against petitioner no. 2. therefore, the intervenor is indirectly trying to protect the interest of respondent no. 2. it is also on record that they have cancelled appointment of petitioner no. 2 by order dated 13-4-2002. it appears that this cancellation could not have any effect because the said faction does not seem to be in power insofar as administration of petitioner no. 1- institution is concerned. the scope of present petition is very limited. the school tribunal could not have gone into the legality or otherwise of the persons occupying the positions of office bearers of the trust, in challenge to an order of reversion or termination. this court is required to examine the validity of decision reached by the school tribunal and there are two contesting parties before it. as such, additional intervention is not at all necessary.16. the learned counsel for the parties have commented upon the names of their clients either appearing in schedule 1 or not finding place in schedule 1. however, that controversy is redundant insofar as present petition is concerned. the rival group not administering school cannot be permitted to utilise the forum of school tribunal to capture power. therefore, it is not necessary to allow the application for intervention. civil application no. 2024 of 2004 is, therefore, rejected. the perusal of written notes of arguments filed by the applicant-intervener and also his case laws on record shows that stand taken by the intervenor-applicant and the stand taken by respondent no. 2 is identical. as the stand of respondent no. 2 is being examined by this court, it is apparent that no prejudice is going to be caused to intervenor by rejection of this application.17. this brings us to two preliminary objections raised by respondent no. 2. first is about the absence of resolution authorising petitioner no. 1 to file the present writ petition. it is no doubt true that petitioner no. 1 is an artificial entity and all its decision are required to be taken through resolutions. though the petitioners or respondent no. 2 have not placed on record any constitution, the intervenor has placed on record the constitution which shows that it is the secretary, who can file proceedings or through whom the trust can be sued. however, as it appears from the discussion above, though the secretary reverted respondent no. 2 and though secretary contested the proceedings before the school tribunal, the secretary is presently not available. the president and secretary are both dead and therefore, the petition is filed by vice president. the intervenor have not placed on record any resolution, seeking permission or directing withdrawal of present petition. the head mistress petitioner no. 2 appointed earlier is acting presently and her appointment is approved by the education officer. whether any legal meeting could have been held or not for such resolution is also not clear. the persons at the helm of affairs in trust, appear to have acted further in the interest of trust. in such circumstances, i hold that the absence of resolution is not fatal to the present petition.18. the other preliminary objection raised by shri khapre, learned counsel for respondent no. 2 is that petitioner no. 2 has no locus to file present petition. as already pointed out above, petitioner no. 2 has been appointed as head mistress in a vacancy which is being claimed by present respondent no. 2. the direct effect of the judgment of the school tribunal is that petitioner no. 2 may be required to lose her post as head mistress. she had filed an application for intervention before the school tribunal but that application was rejected. the effect of present litigation of petitioner no. 2 is therefore, apparent. whether she was necessary party in school tribunal is also to be decided here. it cannot, therefore, be said that petitioner no. 2 has no locus to challenge the adverse order of school tribunal.19. shri mohgaonkar, learned counsel appearing for the petitioners has pointed out the order dated 18-10-2002 passed by the education officer in which the education officer has observed that appointment of present respondent no. 2 as head master of mission high school, bhandara, is totally wrong and illegal because the so-called management did not follow the proper procedure as per requirements of the rule. the education officer has further observed that the appointment of petitioner no. 2 mrs. khisty, has been made by the selection committee and her appointment is legal. in fact the education officer observed that appointing authority subhash bhalerao is mentioned as secretary of the management in the schedule 1 of the bombay public trust act and so long as name is not removed from schedule i, he is very much competent to act for and on behalf of the management. the education officer has, therefore, concluded that the appointment made by m.r.b.e. (legal management) of head mistress of mission high school, bhandara, is valid and legal and mrs. triveni khisty is entitled to act as head mistress of mission high school, bhandara. the perusal of the said order reveals that it is in fact a letter addressed to dr. ismail kallellu and dr. bharat chaugule and also to mrs. triveni khisty. it is on the subject of approval granted by the education officer (secondary), zilla parishad, to appointment of mrs. triveni khisty as head mistress of mission high school and three other teachers. it is with reference to a letter dated 16-10-2002 of dr. ismail kallellu. it is mentioned that hearing was conducted on 16-10-2002. it means that the hearing was conducted immediately after the letter was tendered by dr. ismail kallellu to the education officer. in other words, the purpose of said hearing was only to examine the appointments of mrs. triveni khisty and three other teachers. thus, the issue of validity or otherwise of appointment of respondent no. 2 was not before the education officer. the education officer has not given any reasons as to why the appointment of shri s.t. gajbhiye is totally wrong and illegal. the education officer has only mentioned that the management did not follow the proper procedure as per requirement of the rule. however, what procedure has not been followed or what part of procedure has not been followed or how it has been breached, is not pointed by the education officer. further, the contention of dr. kallellu before the education officer appears to be that appointment of shri s.t. gajbhiye was temporary and was done on promotion as per seniority. this plea is not taken by petitioner no. 1 management, before the school tribunal at all. it is admitted position that respondent no. 2 was appointed after issuance of advertisement and holding of interview. the order of education officer is stated to have been challenged before this court and it is also mentioned that writ petition was rejected. however, the order of this court is not on record. in this background and particularly when all these grounds were not raised in defence before the school tribunal and these facts find mention in submissions on affidavit filed by petitioner no. 2 on 8-3-2004 before this court for the first time, it is not possible to accept the contentions of the petitioners on the strength of said order of education officer. the said contention is, therefore, rejected.20. shri mohgaonkar, learned counsel for the petitioners argued that petitioner no. 2 smt. khisty was necessary party before the school tribunal and respondent no. 2 could not have been allowed. as against this, shri khapre, learned counsel for respondent no. 2 argued that the cause of action in favour of respondent no. 2 accrued on the date of his reversion and the school tribunal was deciding 'us' between him and the management as on that date, the subsequent events cannot be utilised by the management, to defeat his claim. he argued that petitioner no. 2 may vindicate her grievance independently against petitioner no. 1. in this connection, shri mohgaonkar, learned counsel pointed out that after reversion of respondent no. 2 on 26-6- 1992, one shri waghmare was brought on transfer from nagpur to bhandara, to work in his place. after superannuation of shri waghmare, through proper paper advertisement and selection process, petitioner no. 2 came to be selected as head mistress. she is appointed on 27-3-2002 and the education officer has also granted approval in her favour. the perusal of said approval shows that the approval is from 1-4-2002 and on probation. the approval is granted during the period of probation on temporary basis. her appointment order dated 27-3-2002 does not make any reference to the appeal filed by respondent no. 2 before the school tribunal. she, in fact, filed intervention application before the school tribunal on 25-2-2003 and that intervention application has been rejected by the school tribunal by its order dated 19/ 20-8-2003. this order of rejection of intervention application has not been challenged by petitioner no. 2 before this court. as against this, respondent no. 2 has pointed out that appointment of petitioner no. 2 was illegal and writ petition no. 143 of 2003 filed in this respect is reported to be pending. it is the contention of respondent no. 2 that she filed intervention belatedly and only with a view to delay the disposal of appeal by the school tribunal. in fact, school tribunal had closed the matter for judgment on 7-3-2003. it is further seen that petitioner no. 2 filed an application for dismissal of appeal as infructuous on behalf of respondent management as well as on her behalf. the said application is dated 26-9-2003 and various objections like the fact of appeal of shri jacob allowed by the school tribunal, the fact of shri jacob has received, his regular complete salary till april 1993, that he is receiving his final pension as head master, that respondent no. 2 was appointed temporarily on probation for one year, the fact that respondent no. 2 did not turn up for duty after 26-6-1992, the fact that during the pendency of appeal and after reversion of respondent no. 2 shri waghmare was appointed as head master and on attaining superannuation, he retired as regular head master with effect from 30-3-2002 and the fact that petition no. 2 is working as regular head mistress from april 2002 are all pleaded in this application, seeking dismissal of appeal as infructuous. it is also stated that respondent no. 2 joined his duties on 1-7-1996 as assistant teacher under head mastership of shri waghmare and therefore, he is estopped from prosecuting the appeal. this application for dismissal of appeal was opposed by respondent no. 2 by recording his say on 29-9-2003. the fate of this application is not known as the petitioner alleges that no orders have been passed by school tribunal on it. all this is pointed out to only show that in the absence of petitioner no. 2 before the school tribunal, her case was placed before the school tribunal for consideration and even in this petition, she has not pointed out as to what prejudice has been caused to her as she was not impleaded as party directly. the learned counsel for the petitioners have relied upon the judgment of the hon'ble apex court in the case of s. c. and weaker section welfare association (regd.) v. state of karnataka, reported in : [1991]1scr974 . in this judgment, he has placed reliance upon placitum (c) and particularly para 15. para 15 of this judgment reiterates the settled law that it is one of the fundamental rules of our constitutional set-up of this country that every citizen is protected against exercise of arbitrary authority by the state or its officers. if there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power and the rule of natural justice operates in areas and covered by any law validly made. there can be no two options about the requirements of principles of natural justice. however, as already stated above, no prejudice appears to have been caused to petitioner no. 2 because she was not directly impleaded as party respondent before school tribunal. it is further apparent that her grievances have been put forth by petitioner no. 2 positively before the school tribunal.21. shri khapre, learned counsel for respondent no. 2 has contended that his rights in the matter crystallised on 26-6-1992 when respondent no. 2 came to be reverted from the post of head master to the post of assistant teacher. he contends that he has challenged this reversion. the subsequent acts of management in bringing shri waghmare on transfer from nagpur to bhandara to occupy his post or selection of petitioner no. 2 after retirement of waghmare as head mistress on such post, are not relevant insofar as these subsequent events have got no bearing upon adjudication of the legality of order of his reversion. he contends that the subsequent acts of management undertaken with full knowledge of appeal is pending and order of status quo is operating in the said appeal, are all subject to the decision of appeal. he argues that these acts of management cannot override the powers of appellant forum and cannot defeat the decision of the school tribunal in his favour. for this proposition, he has relied upon the judgment of this court in the case of baburao vishvanath mathpati v. state of maharashtra, through the secretary to urban development department, reported in 1996 (1) m.l.j. 366. the relevant observations in this respect are contained at page 400 of the judgment in para 93. the said observations are * reproduced below:'it is pointed out to us by the learned counsel for the respondent no. 4 and the learned government pleader that the petitioner has not claimed any relief against the respondent no. 4, who is at present working as president of the municipal council, parbhani. it is pointed out by the learned counsel for the petitioner that after the impugned order the petitioner filed the above writ petition on 12-8-1994 while the respondent no. 4 came to be elected as president of the municipal council on 2-11-1994. mr. talekar, learned counsel for the petitioner, submits that it is not necessary to amend the petition by seeking a prayer for the removal of the respondent no. 4 as president of the municipal council when the principle of us pendis applies. moreover, he points out that this court has already passed an order on 1-11-1994 when the application for interim relief of stay to the meeting to elect new president was to be held on 2nd november, 1994 at 12 noon this court has passed an order in extenso and refused to grant interim relief. however, it is observed that the election of the president of the municipal council which is to take place on 2-11 -1994 shall by subject to the result of the present writ petition. similarly, mr. talekar has placed reliance on the ruling reported in 1995 aihc 3644, parvinder singh v. state of punjab. on identical issue it is observed in para 11:'in view of the above we are satisfied that the impugned order dated 19th april, 1994 (annexure b-5) by which the petitioner was removed form the office of the presidentship as well as membership of the committee cannot be sustained. it is quashed. the petitioner is restored to his original position. mr. bagchi has pointed out that during the pendency of the petition a fresh election had taken place. in our view, the election is governed by the principle of us pendens. in any case fresh election had taken place on account of the impugned order. once the impugned order is quashed election cannot survive. as a necessary consequence status quo ante as existed prior to april 19, 1994 has to be restored.'the present writ petition filed by the petitioner rests more on strong ground and we have already come to the conclusion that in view of the reasons stated above, the impugned order cannot be sustained and deserves to be quashed. similarly even though the petitioner has not made any prayer against the respondent no. 4-may be for his removal from the office of the president-and that he should be restored to his original office as president of the municipal council, parbhani, in view of the observations made above together with this court's interim order passed on 1 -11 -1994 the petitioner will have to be restored to his original office of the president of the parbhani municipal council as existed before passing the impugned order.'22. the perusal of para above shows that the issue relating to post of president of municipal council was very much pending before the high court and during the pendency of that petition, respondent no. 4 was elected as president. the petitioner did not make any amendment to seek prayer for removal of respondent no. 4 as a president of the municipal council. the division bench found that the principle of lis pendis applies and respondent no. 4 did not get any right to the post of president so as to defeat the order of the court. it is apparent that upon the appeal of respondent no. 2 being allowed by the school tribunal, respondent no. 2 is restored to his original position and the subsequent selection of petitioner no. 2 to the post of head mistress is, therefore, of no consequence. petitioner no. 1 management cannot be permitted to defeat the process of law by taking advantage of its own subsequent acts.23. another ruling in this respect which is pointed out by intervenor is in the case of parvinder singh bajaj v. state of punjab, reported in 1995 a.i.h.c. 3644. paras 10 and 11 of this ruling are relevant. in para 11, the division bench of punjab & haryana high court has in an identical situation, in relation to president of committee, has invoked the principle of us pendis and has held that once the impugned order operating against the petitioner has gone, subsequent election cannot survive. this ruling is followed by this court in case of baburao v. state (supra).24. in this view of the matter, i find that petitioner no. 2 was not a necessary party to the proceedings before the school tribunal and it was not necessary for respondent no. 2 'appellant' before the school tribunal to run after each subsequent person appointee as head master by petitioner no. 1 management. the order of school tribunal cannot be faulted on this ground.25. shri mohgaonkar, learned counsel appearing for the petitioners has also contended that the order dated 23-6-1992, actually bringing about the reversion of respondent no. 2 was not challenged by him and the amendment prayed by respondent no. 2 for that purpose has not been allowed by the school tribunal. he contends that in absence thereof, the school tribunal could not have quashed and set aside the said order dated 23-6-1992. as pointed out above, shri khapre, learned counsel has replied to this argument by pointing out the prayer clause (a) of his appeal memo in which he has sought relief of quashing and setting aside of the purported order/certificate dated 26-6-1992 and any other resolution passed by the petitioners directing that the appellant has been reverted back to the post of assistant teacher with effect from 26-6-1992. according to him, his prayer is wide enough. a perusal of said prayer shows that the prayer is really wide enough and includes any other order and therefore, challenge to the order of reversion dated 23-6-1992 is very much covered in it. it is here pointed out that the petitioners have filed their reply before the school tribunal while opposing the prayer for grant of interim relief and also to the allegations in the appeal memo on 31-5-1993. in the said reply, the petitioners have taken the defence in para 6 that respondent no. 2 has merely challenged the certificate and there is no cause of action for respondent no. 2 to approach the school tribunal. it is further pointed out that on 27-4-1993, respondent no. 2 appears to have preferred an application for amendment of appeal which is annexed by the petitioners as annexure 6 along with appeal memo. in the said application, respondent no. 2 has pointed out that at the time when he filed the appeal, he had not received the order of revision. he has pointed out that the said order dated 23-6-1992 is served upon him on 10-7-1992. he, therefore, wanted to amend the appeal memo by adding grounds g to k in his appeal memo and also a prayer for addition of parties was made in it. though, the petitioners have annexed document at annexure-7, as their reply to this application for amendment, this reply appears to have been prepared sometime in march, 2002 and the perusal of order sheet shows that this reply at annexure 7 is filed on 22-3-2002. there is one reply filed on 9-3-1995 as per order sheet of school tribunal but that reply is not annexed with the petition. but in the reply at annexure 7, filed on 22-3-2002, the petitioners state that the subject matter of challenge before the school tribunal is revision from the post of head master. it is further mentioned in it that the same is again sought to be challenged by amendment and the same is nothing but repetition of contention. in said reply, the petitioners state that the amendment in unnecessary and merely duplication of work. in this background, the grievance is being made by the petitioners before this court that the order dated 23-6-1992 is not challenged cannot be entertained. however, the perusal of order sheets reveal unsatisfactory state of affairs. though, order sheet reveals that the amendment sought for is allowed on 30-8-2002 but as per order sheet of 24- 9-2002, the position appears to be otherwise. it appears that the matter was adjoined upto 23-10-2001 for judgment. even on 23-10-2001, the matter is adjoined to 5-12-2001 for judgment. on 5-12-2001, the matter appears to have been adjourned for final argument. on 22-3-2002, the respondent have filed reply to the application for amendment for addition of names. on 12-4- 2002, the respondents appear to have filed adjourned application and the matter was adjourned to 21-6-2002 for say of appellant (respondent no. 2) on respondents application, perhaps on application for adjournment. on 21-6- 2002, it is recorded that presiding officer, school tribunal, nagpur is holding additional charge and case was adjourned for respondents say on application for adding party to 30-8-2002. the in-charge presiding officer seems to have placed his signature on this order on 16-2-2004. on 30-8-2002, the matter was adjourned to 7-10-2002 for the same. however, on that date, it appears that later on at nagpur, the present respondent no. 2 and his advocate appeared before the in-charge school tribunal and filed application for grant of permission to bring the legal representatives on record. the case was then adjourned to 5-9-2002 at chandrapur for hearing on amendment application and application for adding party. it is expressly recorded that the date is changed from 7-10-2002 to 5-9-2002. the in-charge presiding officer has signed these two order sheets on 16-2-2004. it does not seem that these change dates are communicated to the petitioners at any point of time. on 5- 9-2002, the respondents in appeal are absent and the matter is adjourned for hearing on above applications to 7-10-2002. again on 24-9-2002, the order sheet shows that the appellant has appeared and filed an application for grant of hamdast. it is mentioned that the application was infact presented, before the in-charge presiding officer, nagpur on 23-9-2002 and orders are passed on 23-9-2002 and it was allowed. thereafter, in small letters, perhaps due to space constraint, it is mentioned that the appellant has carried out the amendment in memo of appeal on 24-9-2002 as per orders on application for amendment dated 23-8-2002, in bracket it is also mentioned that (order passed on 30-8-2002. the xerox copies of hand written order sheets are produced on record but it appears that there is some mistake or mischief in these order sheets. the matter is thereafter shown to have been adjourned to 7-10-2002. the learned counsel for the petitioners contend that this insertion about application for amendment being allowed, has been done later on and the order sheet has been tampered with.26. as i have already expressed above, the order sheets do not carry any exhibit numbers to show which particular application of document was filed on that date before the school tribunal. in absence thereof, it would be very difficult to make any positive comment in this respect. however, as already pointed out above, in view of the stands of the management, the management was well aware that their action of reversion is in challenge before the school tribunal and hence, this point needs no further scrutiny.27. the main point involved in this petition is whether the order of school tribunal holding that reversion of petition (respondent no. 2 in this petition) from the post of head master to the post of assistant teacher is valid or not as already pointed out above, the actual order of reversion was not served upon respondent no. 2 till 10-7-1992. he was only given the certificate dated 26-6-1992 which incorporated the fact of his reversion as assistant teacher. he challenged this certificate as, according to him and also to the management, reversion has been brought about by this certificate dated 26-6-1992. it is here pointed out that the order dated 23-6-1992 is not produced on record of this petition by any of the parties. it is further pointed out that though the petitioners mentioned that decision to reverse respondent no. 2 to his post as assistant teacher was taken on 15-6-1992, the copy of any such decision is also not produced on record. the management has not pointed out as to why it could not serve the reversion order dated 23-6-1992 upon respondent no. 2. it is not the case of the petitioners that respondent no. 2 avoided service of that document. on the contrary, if we go through the various pleadings on record, it appears that respondent no. 2 had not handed over charge at any point of time and in his amendment application, he expressly accepts this. the respondents (petitioners herein) in their reply before the school tribunal mention that on 11-9-1992, the secretary of the petitioners wrote to present respondent no. 2 and clarified that on 26-6-2002, shri waghmare has joined the duties. it is further mentioned respondent no. 2 had vanished with some documents and it is, therefore, clear that respondent no. 2 did not hand over the charge of head master to shri waghmare or to the management at any point of time. the management has nowhere pointed out that it demanded any such charge from respondent no. 2 and he has refused to hand over the charge. it is, therefore, apparent that reversion of respondent no. 2 has been brought about only by the certificate dated 26-6-1992 by the management.28. the procedure for appointment of head is prescribed by section 5 of the maharashtra employees of private schools (conditions of service) regulation act, 1977. the said section mandates management to fill in every permanent vacancy in private school by the appointment of a person who is duly qualified to fill such vacancy, on probation for a period of two years. sub-section (4-a) however, provides that the provisions of sub-sections (2), (3) and (4) of section 5 shall not apply to a person appointed to fill a permanent vacancy by promotion or by absorption as provided under the proviso to sub-section (1). it is, therefore, clear that if respondent no. 2 is appointed by promotion as head master, the provisions of sub-section (2), requiring his appointment for a period of two years shall not apply. in this connection, the perusal of rule 3 of the maharashtra employee of private schools (conditions of service) rules, 1981, show that the management of a school can fill up the post of head by appointing the seniormost teacher of the teaching staff who fulfils the conditions laid down in sub-rule (1) and who has a satisfactory record of service. if a suitable teacher possessing qualifications laid down by sub-rule (3) is not available to fill in the post of head, the management shall, with the prior permission of the deputy director, advertise the post and select and appoint a person possessive requisite qualifications and experience.29. in this case, the petitioner management has nowhere stated that it has permitted respondent no. 2 to the post of head master. on the contrary, it is admitted position that respondent no. 2 was appointed after the advertisement and interview. the copy of the said advertisement appears to have been produced before the school tribunal and he has been interviewed on 1-5- 1991, as mentioned in appeal memo by respondent no. 2. the secretary of petitioner no. 1 has issued the appointment order on 24-6-1991 to respondent no. 2 and in it is expressly mentioned that it is with reference to his application dated 16-4-1991 and that he has been appointed as head master on probation for a period of one year. in this background, it is apparent that respondent no. 2 has been selected and appointed as head master and he has not been promoted as head master. if the impugned judgment of the school tribunal is considered in this background, it would be seen that in para 1 of its judgment, the school tribunal has mentioned about advertisement and interview and in para 2, it has mentioned that respondent no. 2 was never promoted but was appointed by selection process. however, later on, it has found that there could not have been any stipulation of probation in his appointment order. for that purpose, the school tribunal has relied upon the judgment of this court in the case of dinkar mahadeorao nandanwar v. presiding officer, school tribunal, nagpur, reported in 1992 (supp.1) bom.c.r. 34 : 1993 m.l.j. 928. in this judgment, the division bench has considered the position in this respect. as already stated above, here respondent no. 2 was not promoted as head master and therefore, this ruling has no application in the facts and circumstances of the present case.30. thus, having held that respondent no. 2 was not promoted but a direct recruit, the question arises whether he was temporary employee. the provisions of rule 10 of m.e.p.s. rules, 1981, in this respect are relevant. the said rule is reproduced below for perusal.'10. categories of employees. - (1) employees shall be permanent or non permanent, non-permanent employees may be either temporary or on probation.(2) a temporary employee is one who is appointed to a temporary vacancy for a fixed period.'thus, the temporary employee is the employee who is appointed against a temporary vacancy for fixed period. in this connection, therefore, it becomes essential to find out whether respondent no. 2 was appointed as a temporary employee. this aspect is considered by the school tribunal in its judgment and the school tribunal has found out that there is nothing on record to conclude that respondent no. 2 (appellant before it) was appointed as temporary employee. no material is produced even before this court to show that this finding of school tribunal is perverse. the school tribunal has considered appointment order issued to respondent no. 2 on 24-6-1991. the perusal of the said appointment order does not reveal that respondent no. 2 was appointed against a temporary vacancy or as a temporary employee.31. the entire story narrated by the petitioners either before the school tribunal or reproduced here, does not find reflection in this appointment order. there is absolutely no document produced on record to show that respondent no. 2 was appointed by removal of shri jacob and the said vacancy was filled in temporarily. any decision/resolution of management either before appointment of respondent no. 2 or on 15-6-1992 when decision to revert respondent no. 2 was taken, could have been produced as primary evidence of temporary nature of appointment in this respect. but the petitioners suppressed and withheld it. it is note worthy that when shri waghmare was brought on transfer as head master after removal of respondent no. 2, it does not appear that shri waghmare was brought as head master subject to the decision of court proceedings in the matter of shri jacob. further, when smt. khisty, present petitioner no. 2 was appointed on 27-3-2002, litigation filed by present respondent no. 2 was very much pending before the school tribunal. even in her appointment order, it is not mentioned that she is appointed against any temporary vacancy or as temporary employee. in view of this position emerging from record, i find that the school tribunal was justified in concluding that respondent no. 2 was not a temporary employee.32. in such situation, it cannot be disputed that respondent no. 2 could not have been reverted to the lower post. a direct recruit cannot be reverted to a lower post. this position in law is well settled and reference in this respect can be made to the judgment of the apex court in the case of state of u.p. v. jaya quddusi, reported in : air1994sc2254 . para 5 of this judgment is important and it reads as under :'the aforesaid facts make it clear that the petitioners had by their own ac tions, viz. the sanction of leave on 14-2-1983 and its regularisation by the order of 1-11-1989, have treated the respondent as being in continuous service and ad hoc probation officer w,e.f. 2-6-1980. hence she is entitled to the benefit of the rules. she was in service on 22-3- 1984 and on that day, she had completed more than three years' service in the post held by her. the attempt of the state government to revert her by the order of 27-3-1984 w.e.f. an earlier, date, viz. 29-2- 1984 was obviously mala fide and made with the express purpose of depriving her of the benefit of the rules. this is apart from the fact that the reversion order was bad in law since being a direct appointee to the post of probation officer, she could not have been reverted to any post much less to the post of assistant superintendent, district shelter workshop which post she had never held. we are, therefore, of the view that she is entitled to be regularised as probation officer under the rules. her seniority in that post will be fixed by the government according to law. the special leave petition is dismissed accordingly.'33. another direct ruling on the point is in the case of hussain susansaheb v. state of maharashtra, reported in : (1987)iillj506sc . para 2 of this ruling is important in present facts and it reads as under :'before the high court it was conceded by the learned government pleader that the appellant was appointed to the post of a.d.e.i. as a 'direct recruit' and that he was not a departmental promotee who had been promoted from the post of primary teacher to the post of a.d.e.i. this is abundantly clear from the following passage extracted from the judgment of the high court:'before us the learned government pleader conceded that the appoint ment of the plaintiff as a.d.e.i. appears to be a direct appointment and not a matter of departmental promotion. he may be ineligible in terms of requisite departmental service as a teacher, but he had the educational qualifications required for the post and he had directly applied for the post, though the application had to come through proper channel in view of the fact that the plaintiff was in service.'in view of this concession, the high court should have straightway dismissed the appeal. a direct recruit to a post, it cannot be gainsaid, cannot be reverted to a lower post. it is only a promotee who can be reverted from the promotion post to the lower post from which he was promoted. these propositions are so elementary that the same are incapable of being disputed and have not been disputed. the high court presume able realised that the matter was inarguable and there was no escape from the conclusion reached by the trial court. the high court was however carried away by an irrelevant argument which had no bearing on the issue before the court. what was argued before the high court was that in any case his appointment was a temporary one and it could have been terminated as per the conditions of service applicable to him. assuming that this appointment was a temporary one and it could have been so terminated, the fact remains that in point of fact no such power had been invoked and the services of the appellant had not been terminated at all. if his service had been so terminated under the relevant rule, the question could possibly have arisen so to whether or not such termination could have been lawfully made. no such termination having taken place, the existence of the rule was altogether irrelevant. the state had passed an order which clear was unsustainable in view of the fact that the appellant was a direct recruit and there was no question of reverting him to any lower post. the high court should not have allowed itself to be misled by the misleading argument regarding the service condition under which the services of the appellant could possibly have been, but were not in fact, terminated. the view taken by the high court is thoroughly unsustainable. the appeal must, therefore, be allowed. the judgment and decree passed by the high court must accordingly be set aside and the judgment and decree passed by the trial court must be restored. the parties will bear their costs throughout.'34. it is thus clear that learned school tribunal is right in concluding that respondent no. 2 could not have been reverted to the post of assistant teacher and the findings arrived at by the school tribunal in this respect and the relief given by it to present respondent no. 2 cannot be faulted with.35. the learned counsel for the petitioners has relied upon the judgment of the apex court in the case of union of lndia v. p.s. bhat, reported in a.i.r. 1981 s.c. 957. in that case, the hon'ble apex court has considered the position in which the employee was reverted to the post of announcer during the period of his probation. it is in that view of the matter, the hon'ble apex court has concluded that such reversion was not casting any stigma and not by way of punishment. the arguments advanced by the counsel were that the said reversion was punitive and in violation of article 311(2) of the constitution of india. the issue involved in present matter, whether a direct recruit can be reverted to a lower post was not involved in it.' the other ruling on which shri mohgaonkar, learned counsel for the petitioners has placed reliance is in the case of (akbar peerbhoy college v. mrs. pramila n. kutty, reported in : 1998(1)bomcr1 : . he had contended that in view of the said ruling, as the appointment of respondent no. 2 was temporary, the interference in the matter by the school tribunal is unwarranted. according to him, there was nothing wrong in the order of reversion. paras 8, 9 and 10 of this ruling distinguish it from present case. the employee in the said case was not holding the requisite qualification and further she was appointed by relaxing the qualification temporarily and her order appointment itself reads as under :'her appointment is purely on temporary basis for one year i.e. for the period from 26-6-1989 to 20-4-1990. after the expiry of above period, her services shall stand terminated without any notice.'the question which has been considered there by the court is as to whether the notice under rule 28(1) of the maharashtra employees of private schools (conditions of service) rules, 1981, was required to be given to the respondent employee or not? the said ruling, therefore, has no application here.36. the next ruling on which the reliance is placed is in the case of punjab state electricity board and anr. v. baldev singh, reported in : (1999)illj196sc . there, the employee was appointed on promotion and he was reverted to his substantive post. the question involved was whether any opportunity of hearing was required to be given to such employee. the facts are totally distinct and this ruling has no application in the facts of present case.37. the last ruling on which reliance is placed by the petitioners is in the case of hindustan education society and anr. v. sk. kaleem sk. gulam nabi and ors., reported in : (1997)illj1071sc , in this ruling, the hon'ble apex court was considering the case of an employee who was appointed on purely temporary basis for a period of 11 months in a clear vacancy. again, the perusal of para 3 of this ruling will reveal that the appointment order itself contained the stipulation that after expiry of said period of 11 months, the services of the employee shall stand terminated automatically without any notice. it is this view of the matter that in para 5, the hon'ble apex court has found that the order of appointment of respondent was of purely temporary nature for the limited period and approval was also for a temporary appointment. again, in this case, the hon'ble apex court has not considered the issue of an employee on probation who is directly recruited. this ruling, therefore, also has no application here.38. in view of this decision, i find that the learned school tribunal was justified in granting the relief to present respondent no. 2.39. the learned counsel for the petitioners has also argued that being a minority institution, it was free to revert respondent no. 2 as assistant teacher. however, such an argument cannot be accepted because in law, respondent no. 2 cannot be reverted. the perusal of the judgment of the apex court in the case of t.m.a. pai foundation v. state of karnataka, reported in : air2003sc355 , clearly reveals that the right of minority to establish and administer the school is not absolute. the provisions of law (m.e.p.s. act and rules) are required to be-followed even by the petitioners. the learned counsel for the intervenor has pointed out that one ruling which is in the case of bengali education society v. presiding officer, reported in 1992 (supp) bom.c.r. 794 : 1991 m.l.j. 864. this ruling also takes the same view.40. merely because respondent no. 2 joined services later on as assistant teacher during pendency of his appeal before the school tribunal, he cannot be estopped from getting the fruits of his success before the school tribunal. the order of status quo was operating and the school tribunal had also issued direction to pay his salary regularly. in this situation, i do not find anything wrong with the relief granted by school tribunal to respondent no. 2.41. in the result, there is no merit in this writ petition. the petition fails and accordingly dismissed with costs. rule is discharged.