Aparesh Kumar Singh, J. - (1.) Heard counsel for the parties. Petitioner served as a Accounts Clerk under Building Construction Department and superannuated on 31.12.2012. The 2nd ACP provisionally granted by Office Order bearing Memo No. 1220 dated 13.3.2004 by the Superintending Engineer in the scale of Rs. 5,500 -9,000/ - with effect from 9.8.1999 has been revoked by the impugned order dated 30.5.2011 bearing Memo No. 768 (Annexure -1 to the supplementary affidavit) issued by the same officer (Respondent No. 3), as per the Finance Department Instructions. The impugned order also refers to the instruction of Finance Department to undertake recovery of any amount paid in excess in such manner from the concerned employee.
(2.) Petitioner contends that he had made several representations for exemption from passing the departmental exam. and had also cleared three departmental exams., as evident from Annexure -9 dated 18.6.2009. There is no reason why respondents would not have granted him exemption like other persons such as named at Annexure -3 dated 8.6.2006 and 29.1.2009. All of them were working in the office of the same Respondent No. 3. It is submitted that after his retirement, such recovery is also not permissible in law in view of the judgment of the Hon'ble Supreme Court and re -fixation of his pay should not have been allowed after he has been allowed to avail such scale over a period of eleven years from its grant by Annexure -1 order dated 13.3.2004. Counsel for the petitioner has relied upon a judgment rendered by the learned Single Judge in the case of Jhupru Degri v/s. State of Jharkhand & Ors. reported in [ : 2003 (3) JCR 600 (Jhr.) : [2003 (4) JLJR 209] in support thereof. Learned counsel also relied upon a judgment rendered in the case of Saryug Prasad v/s. The State of Jharkhand & Others in WPS No. 5579/2010 dated 6.1.2011 (Annexure -10) in support thereof.
(3.) Counsel for the respondent State, by referring to the counter affidavit, submits that the petitioner's claim for exemption from passing the departmental exam. upon attaining 50 years of age, was rejected by order dated 26.12.2011 (Annexure -5) and also by the review order dated 30.7.2012 (Annexure -7) by the Commissioner, South Chhotanagpur Division, Ranchi. It is submitted that passing of the departmental exam, is a mandatory requirement in terms of ACP Scheme dated 14.8.2002. Reference has also been made to the Bihar Board Miscellaneous Rules, 1958 which prescribes such passing of departmental exam. Statements made by the petitioner at para -19 are also categorically denied by para -21 by stating that he had not finally cleared the final departmental exam., as would also be evident from Annexure -9 enclosed by him. It is submitted that the impugned order does not intend to undertake any recovery from the petitioner.;