1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 22 OF 2005 Mr. Anil V. Kamat, Son of late Vasant Kamat, major, married, service, resident of H.No.417, Comba, Margao Goa. … Petitioner V e r s u s 1. The Director of Education Government of Goa, 18th June Road, Panaji Goa. 2. State of Goa Through its Chief Secretary Secretariat, Panaji Goa. 3. Late Shri Vinayak Gopal Shenvi Vidyalay, through its Manager, Rawandfond, Navelim Salcete Goa. … Respondents Shri S. D. Lotlikar, Senior Advocate with Mr. H. Kankonkar, Advocate for the petitioner. Shri G. Shirodkar, Government Advocate for Respondent nos. 1 and 2. CORAM : S. A. BOBDE & F. M. REIS, JJ. DATE : 16 th JUNE, 2011 . ORAL JUDGMENT ( Per S. A. BOBDE, J) Heard Shri S. D. Lotlikar, learned Senior Counsel 2 for the petitioner and Shri G. Shirodkar, learned Government Advocate for respondent nos. 1 and 2. The petitioner has prayed for a Writ of Mandamus directing respondent no.1 to withdraw the order dated 19/11/2004, by which the Government has directed that the excess amount paid to the petitioner on account of he being selected for the Selection Grade shall be recovered on re-fixation of his pay. 2. The petitioner and one Shri P. V. Joseph were serving in the same school. In accordance with a notification which provided that the number of Selection Grade posts in each category will be 15% from September, 1971 and 20% with effect from 1.4.1981, the said Shri P. V. Joseph was granted Selection Grade on completion of 8 years of his service w.e.f. June, 1979. This was approved by the Director of Education since Shri P. V. Joseph was the senior most teacher in the school. Shri P. V. Joseph thereafter went on extra ordinary leave from 1.9.1981 to 31.8.1986. Shri P. V. Joseph was absent during the period from 1.9.1981 to 15.1.1985, it was amounted to a break in service. It was held by the authority that he was the senior most teacher in the category but was not entitled to the selection grade after his return. This was challenged by Shri P. V. Joseph in Writ 3 Petition before this Court where the present petitioner Shri Anil Kamat impleaded himself as respondent no.4. The Court held that the Government has no power to withdraw the selection grade granted to Shri P. V. Joseph and that he is entitled to the said grade irrespective of subsequent events. 3. In the meanwhile, the petitioner claimed selection grade scale. This was granted to him upon his furnishing an undertaking that he would refund the excess amount. The selection grade was w.e.f. 5.9.1981 to 31.12.1991 as per Rules. The petitioner now challenges the withdrawal of the selection grade scale and consequent recovery. 4. We have heard Shri S. D. Lotlikar, learned Counsel for the petitioner, who submitted that the Selection Grade scale granted to the petitioner was absolute and could not have been withdrawn. There is no merit in the submission on behalf of the petitioner since it is not disputed that for one period only one teacher is entitled to the Selection Grade scale. Since the teacher, who is entitled for Selection Grade scale is to be Shri P. V. Joseph, as held by this Court and to which decision the petitioner was a party, it is beyond doubt that the petitioner is not entitled to the Selection Grade scale 4 for the same period. There is thus no illegality on this count in the impugned order. It is not disputed the period for which the petitioner claim Selection Grade is the same for which Shri P. V. Joseph has been granted Selection Grade. 5. It was also urged by Shri S. D. Lotlikar, learned Counsel for the petitioner that it was wrongly observed by the authority that the petitioner was not appointed as a Head Master in service and as such was not duly approved. There is no merit in this contention either as there is no appointment order appointing the petitioner on the post of Head Master. This Court while dismissing the Writ Petition No. 225 of 2001 has observed that there is nothing to show that the petitioner was appointed as a Head Master of St. Alloysius High School, Cuncolim. Therefore, the petitioner could not have enjoyed the benefits of the pay scale of the Head Master. In these circumstances, the alleged deemed approval of his services claimed by the petitioner has no merit. Since there was no appointment order, the petitioner's claim for such approval cannot be believed. 6. It was lastly urged by Shri S. D. Lotlikar, learned Counsel for the petitioner that since the petitioner is not guilty 5 of misrepresentation or fraud before he was granted Selection Grade, the recovery against him for extra payment in such Selection Grade is not justified. It is not possible to accept the contention in view of the clear and unequivocal undertaking given by the petitioner that he will refund the excess amount at any time if called upon to do so. 7. In the result, there is no merit in the petition. The same is, therefore, dismissed. Rule is discharged. No order as to costs. S. A. BOBDE , J F. M. REIS, J at*