1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR LETTERS PATENT APPEAL NO. 497/2010 IN WRIT PETITION NO. 348/2010 (D) (Santoshkumar Baliramsingh Gaherwar VERSUS The Addl. Commissioner, Nagpur & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri P.B. Patil, counsel for the appellant. Shri P.D. Kothari, A.G.P. for the respondent no.1. Shri A.Y. Kapgate, counsel for the R-2 & 4. CORAM : SMT. VASANTI A. NAIK AND PRASANNA B. VARALE, JJ. DATE : JUNE 29 , 2011 . Heard. The appellant was working as a middle school teacher in Zilla Parishad School and on 09.01.1985, the appellant was granted a higher pay-scale or the graduate pay- scale on the condition that the appellant should secure the B.Ed. Qualification within a period of five years. It was made clear to the appellant that in case, the appellant does not secure the B.Ed. Qualification within five years from 09.01.1985, the appellant would not be entitled to higher or graduate pay-scale. It is not in dispute that the appellant did not secure the B.Ed. Degree within a period of five years from 09.01.1985. Later on, the respondent no.2 realised the mistake of paying higher pay-scale to the appellant even after completion of five years from 09.01.1985 though the appellant had not secured the B.Ed. Degree, within a period 2 of five years. Having realised the mistake, the respondent no.2 deducted the excess payment made to the appellant from his retiral benefits. The appellant had challenged the order of the respondent no.2 before the Commissioner, the respondent no.1. The Commissioner dismissed the appeal filed by the appellant. The order of the Commissioner was upheld by the learned Single Judge. We find nothing wrong with the order of the respondent no.1-Commissioner in dismissing the appeal filed by the appellant as the appellant was well aware that the appellant had to secure the B.Ed. Qualification within a period of five years from 09.01.1985. Since the B.Ed. Qualification was not secured within a period of five years from 09.01.1985, the appellant was not entitled to graduate pay-scale or higher pay-scale and the appellant was aware about this position. However, the appellant has accepted the higher pay-scale, which was paid to the appellant even after a lapse of five years from 09.01.1985 without informing the respondent no.2 that a higher pay-scale was being paid to the appellant. An undertaking was also given by the appellant at the time of payment of the benefits of the 5th Pay Commission to the appellant that in case, it was found that some excess payment was made to the appellant, the appellant would refund the same. The respondent no.1 was justified in dismissing the appeal filed by the appellant as the appellant had clear knowledge of the fact that the appellant was receiving a higher amount after 09.01.1990 though the appellant was not entitled to receive the same having not passed the B.Ed. Examination within a period of five years from 09.01.1985. 3 We see nothing wrong with the order passed by the respondent no.1 in dismissing the appeal filed by the appellant. Even otherwise, the excess amount paid to the appellant is already recovered by the respondent no.2. The submission made on behalf of the appellant that the amount, which is recovered from the appellant in lumpsum should now be returned to the appellant and then the respondent no.2 should deduct the amount in installments is preposterous and is, therefore, liable to be rejected. Hence, the letters patent appeal is dismissed with no order as to costs. JUDGE JUDGE APTE