Judgment :- 1. This petition by a teacher is directed against judgment, dismissing his appeal challenging termination of his services, filed by him before the School Tribunal at Nagpur. 2. The facts, which are relevant for deciding this petition are as under: On 22nd July, 1985 an advertisement for the post of High School teachers was issued by respondent No.2 institution for its school of which respondent No.3 is Headmaster. The advertisement mentioned that the authorities would give preference to candidates belonging to Scheduled Caste and Nomadic Tribe. Qualification prescribed for High School teacher was B.A., B. Ed. The petitioner was M.A., B. Ed. He applied in pursuance to the advertisement, was selected and appointed on 05.08.1987. On 04.04.1994 he applied for correction of his seniority. On 02.06.1994 the Education Officer sought seniority list from respondents No.2 and 3. On 15.09.1994 the petitioner was first placed under suspension and on the same day his services were terminated informing him that the petitioner had indicated his caste as “GondGowari” under the Scheduled Tribe category while seeking employment and had not submitted the primary school leaving certificate, high school leaving certificate for verification of his caste. He was also informed that his school leaving certificates were obtained by the management which revealed that the petitioner belongs to “Gowari” caste which did not come under the Scheduled Tribe category and hence, his initial appointment was itself void-ab-initio. 3. Aggrieved by this order the petitioner preferred an appeal before the School Tribunal, contending that he was a tribal and was selected and appointed on merit. He claimed that since there was a vacancy in the post of Headmaster and he was eligible for being appointed, he had approached the management for the same. The management was enraged and asked him to submit his caste certificate on 23.07.1992, which was submitted on 24.07.1992. He claimed to have replied the correspondence in this behalf. According to him, he was sacked without an enquiry only because he had questioned the seniority list. By an amendment to his memo of appeal he claimed that he had been appointed and continued as a candidate in open category and therefore, his caste certificate has no bearing. 4. The respondent management submitted that the petitioner had sought employment as belonging to Scheduled Tribe. He had also filed appeal on that basis. By an amendment to his memo of appeal he claimed that he had been appointed and continued as a candidate in open category and therefore, his caste certificate has no bearing. 4. The respondent management submitted that the petitioner had sought employment as belonging to Scheduled Tribe. He had also filed appeal on that basis. His subsequent claim to have been appointed in the open category showed that he had sought employment against the post meant for Scheduled Tribe when he did not belong to Scheduled Tribe. Therefore, the petitioner was not entitled to be continued and had no right to the post. Therefore, according to the respondent, there was no violation of any Rule. 5. After considering the rival contentions and the material tendered before him, the learned Presiding Officer of the School Tribunal, by his impugned order, dismissed the appeal. This is why the petitioner is before this Court. 6. I have heard Advocate Shri Parsodkar, learned counsel for the petitioner and Advocate Shri H.A. Deshpande for respondents No.2 & 3. 7. The learned counsel for the petitioner submitted that the petitioner, in fact, been selected and appointed in open category and therefore, question as to whether he has belonged to Scheduled Tribe was thoroughly irrelevant. In any case, the petitioner had submitted before the respondents a caste certificate issued by the Executive Magistrate, Bhandara showing that the petitioner belongs to GondGowari, which is recognized as Scheduled Tribe. He submitted that this certificate had not been invalidated by any authority and therefore, it was not open to the respondent management to conclude that the petitioner did not belong to Scheduled Tribe in oder to terminate his services. In any case, according to the learned counsel for the petitioner, GondGowari is recognized as Special Backward Classes and in view of the resolution dated 15.06.1995 protecting payments made up to 15th June, 1995, the petitioner’s appointment was valid. 8. His learned adversary submitted that it was an afterthought of the petitioner that he was appointed in open category. The petitioner had categorically stated in paragraph 8 of his memorandum of appeal before the School Tribunal that he belongs to Scheduled Tribe and no proper opportunity was given to him to prove this. 8. His learned adversary submitted that it was an afterthought of the petitioner that he was appointed in open category. The petitioner had categorically stated in paragraph 8 of his memorandum of appeal before the School Tribunal that he belongs to Scheduled Tribe and no proper opportunity was given to him to prove this. He also pointed out that in letter dated 4th April, 1994 to the Education Officer the petitioner had himself stated that he was working in respondent No.2’s school from 06.08.1985 on the post of trained secondary teacher under scheduled tribe category. The learned counsel for respondent No.2, therefore, wondered as to how the petitioner can take a somersault and claim that he was holding the post under open category. It is clear from letter dated 30th April, 1994 that the petitioner had repeatedly stated that he was a teacher working under the scheduled tribe category, therefore, it would not be open for him to say that he had been appointed under the open category or that he was holding the post meant for open category. 9. The learned counsel for the petitioner submitted that the advertisement dated 22nd July, 1985 did not specifically mention ‘reservation of posts’. It only referred to ‘preference’. There can be no doubt that preference in appointment is not same thing as reservation of a post for a candidate belonging to a particular caste. However, it may be a matter of form and not of substance. As far as the management is concerned, the management may be desirous of being flexible, in view of the fact that number of posts was also not specified. Therefore, merely because of the post was not shown as reserved it would not follow that the petitioner was holding open post. 10. The learned counsel for respondent No.2 submitted that Headmaster had sent a proposal on 22.08.1985 to the Education Officer for grant of approval. In this letter the name of the petitioner was shown against the vacancy of scheduled tribe. Therefore, according to the learned counsel for the respondent management, the management all along considered the petitioner to have been appointed against the scheduled tribe vacancy as the petitioner also claimed. Therefore, unless the petitioner shows that he belongs to scheduled tribe he would not be able to sustain his claim to the post. 11. Therefore, according to the learned counsel for the respondent management, the management all along considered the petitioner to have been appointed against the scheduled tribe vacancy as the petitioner also claimed. Therefore, unless the petitioner shows that he belongs to scheduled tribe he would not be able to sustain his claim to the post. 11. The learned counsel for the petitioner submitted that the certificate filed by the petitioner has not been invalidated and it would not be open for the management itself to invalidate the caste certificate and sack the employee. For this purpose he placed reliance on a unreported judgment of this Court in Hiralal Hedaoo Vs. Scheduled Tribe Caste Certificate Scrutiny Committee & others (Writ Petition No.6097/2004). In that case the management had terminated the services of a Laboratory Attendant on the ground of non-submission of caste validity certificate from the Caste Scrutiny Committee. The Court held that since the matter was before the Caste Scrutiny Committee the order of petitioner’s termination was quashed and set aside and the Caste Scrutiny Committed was directed to verify the caste claim of the petitioner. As rightly pointed out by the learned counsel for the respondent management, this judgment would be of no help since in the present case the petitioner himself is not sure of the shaky premises on which his claim, as belonging to scheduled tribe, stands. He pointed out that the management had obtained school leaving certificates of the petitioner which were produced before the School Tribunal and which show that the petitioner belonged to Gowari caste and there was no reference to GondGowari in his certificates. He submitted that when the School Tribunal decided the appeal on 12.01.1996 there was no question of making a reference to the Caste Scrutiny Committee since till 1998 there was no such Committee. 12. The learned counsel for the respondent management submitted that in Shriram Vs.S.M.Vidya Prasarak, reported at 2006(2) Mh.L.J. 131 against the backdrop of similar facts where the teacher was appointed against a post meant for Nomadic Tribes, the Court held that the teacher had no right to the post at any time and had not been deprived of any right by order of his termination. The learned counsel submitted that similar course would have to be followed in the present case. 13. The learned counsel for the petitioner submitted that in Baburao Amrutrao Kharekar Vs. The learned counsel submitted that similar course would have to be followed in the present case. 13. The learned counsel for the petitioner submitted that in Baburao Amrutrao Kharekar Vs. State of Maharashtra, reported at 1997(2) Bom. C.R. 447, a Division Bench of this Court had held that, when the appointment letter did not show that the employee of a private school was appointed against a reserved post, his termination was bad. This judgment would not be applicable because in that case approval obtained from the Education Officer showed that the employee had been appointed against the open category post. 14. Relying on a judgment of the Supreme Court in Bank of India Vs. Avinash D. Mandivikar, reported at (2005)7 SCC 690 and Addl. General ManagerHuman Resource, Bharat Heavy Electricals Ltd. Vs. Suresh Rakrishna Burde, reported at (2007)5 SCC 336 the learned counsel for the respondent submitted that a person securing appointment on the basis of the false caste claim was not entitled to continue in the post and termination of his service was proper. The learned counsel for the petitioner, on the other hand, submitted that in view of the judgment in Punjab National Bank Vs. Vilas S/o. Govindrao Bokade, reported at 2007(8) Scale 108 the petitioner was entitled to benefit of Government Resolution dated 15.06.1995, since he was appointed prior to that date. In order to claim benefit of Government Resolution dated 15.06.1995 it would have been necessary for the petitioner to come with clean as to the caste to which he belongs. In any case, once the petitioner accepts that he does not belong to scheduled tribe, since the post was meant for a candidate belonging to scheduled tribe the petitioner was not entitled to continue in such a post. In view of this, the judgment in Punjab National Bank Vs. Vilas does not help the petitioner. 15. To sum up, vacillation of the petitioner as to the caste to which he belongs and his inability to prove that he belongs to scheduled tribe would disentitled him to continue in a post meant for a candidate belonging to Scheduled Tribe. The judgment of the School Tribunal, therefore, cannot be faulted. 16. In the result, the petition is dismissed.