R.R. Prasad, J. - (1.) THE Petitioner having been appointed as Clerk on 20.1.1965 at Leprosy Subsidiary Centre, Chakulia, East Singhbhum was promoted to the post of Non -Medical Assistant at the same centre, vide order as contained in letter No. 2568 (4) dated 12.12.1971. There he was again promoted to the post of Medical Social Worker with effect from 15.2.1980. In due course, the Petitioner was granted A.C.P in the pay scale of Rs. 5500 -9000/ -with effect from 9.8.1999, monetary benefit of which was given to the Petitioner from 26.3.2004. Thereafter the Petitioner was transferred to the office of District Leprosy Officer, Seraikella on 4.1.2005 and got retired from there on 31.1.2007. Thereupon provisional pension was fixed in the pay scale of Rs. 5500 -9000/ -. That apart, the amount towards leave encashment was paid taking the pay scale of Rs. 5500 -9000/ -. The amount payable towards group insurance and G.P.F were also paid but when the amount payable towards gratuity was not paid, the Petitioner made a representation before the Deputy Commissioner, Seraikella and also before the Civil Surgeon, Seraikella putting his grievances of non -payment of the amount of gratuity, annual increment, D.A, medical allowances etc. Upon it, it was communicated by the District Leprosy Officer that the order granting A.C.P to him has been cancelled by the State Leprosy Officer, Respondent No. 2, vide his letter No. 274/SLO/07 dated 5.9.2007 as contained in Annexure 10 which order when was communicated to the Petitioner, the Petitioner came to know that the order granting A.C.P to the Petitioner has been cancelled for the reason that the Petitioner had earlier been given two regular promotions and thereby he was not entitled to have the benefit of A.C.P. Consequently, it was ordered that the amount drawn in excess be deducted and the amount of gratuity be paid in the scale in which he was drawing salary before being granted A.C.P. That order has been sought to be quashed in this writ application. Besides this, it has also been prayed that the Respondents be directed to fix pension on the pay scale of Rs. 5500 -9000/ -.
(2.) A counter affidavit has been filed wherein statement has been made that since the Petitioner had already been given two regular promotions, he was not entitled to have the benefit of A.C.P and therefore, when it was detected that he has wrongly been given A.C.P, the order granting A.C.P to the Petitioner was cancelled and that while granting A.C.P to the Petitioner, specific stipulation was there in the order that when it would be detected that A.C.P has wrongly been given, that order would be withdrawn. Learned Counsel appearing for the Petitioner submits that the Petitioner was granted A.C.P by the competent authority, when he found the Petitioner to be entitled to it and that it has never been the case of the Respondents that on misrepresentation being made by the Petitioner or upon fraud being played, the Petitioner was granted A.C.P and, therefore, the authority had No. jurisdiction at all to cancel the order relating to grant of A.C.P to the Petitioner and consequently, the Respondent also does not have any authority to recover the amount said to have been drawn in excess from the pensionary benefit of the Petitioner without taking recourse of the provision as contained in Rule 43(b) of the Bihar Pension Rules.
(3.) . Learned Counsel submits that the aforesaid proposition has not only been laid down by the Hon'ble Supreme Court but also by this Court in several decisions decided by the Full Bench. In this regard learned Counsel has referred to decisions rendered in a case of D.V.Kapoor v. Union of India ( : AIR 1990 SC 1923), Saheb Ram v. State of Haryana : [(1995) 1 SCC 18], Bihar State Electricity Board v. Bijay Bahadur, [(2000) 1 SCC 99], Dr. Dudh Nath Pandey v. State of Jharkhand and Anr., 2007 (4) J.C.R 1 (Jhr) (FB), State of Jharkhand and Ors. v. Padmolochan Kalindi and Anr., 2007 (4) J.L.J.R 451, Laxman Prasad Gupta v. State of Jharkhand, 2007 (4) J.L.J.R 459 (FB), Smt. Normi Topno v. State of Jharkhand, 2007 (4) J.L.J.R 467, Munari Devi v. Bihar State Electricity Board, 2008 (1) J.L.J.R 484 (FB), Most. Sumitra Devi v. State of Jharkhand, 2008 (1) J.L.J.R 486 (FB).;