JUDGMENT : Pramath Patnaik, J. W.P. (S) No. 5548 of 2012 In the instant writ application, the petitioner has inter alia, prayed for quashing office order dated 28.06.2012 by which the first ACP granted to the petitioner has been withdrawn and further for confirming the first ACP granted to the petitioner and also to grant second ACP due to the petitioner with all consequential benefits. 2. The facts, as delineated in the writ application, in a nutshell is that the petitioner, who was initially appointed as a clerk in District Mining Office, Bokaro on 04.01.1971, was granted first time bound promotion w.e.f 28.07.1989 in the pay-scale of Rs. 5000-8000/-. It has been averred that though the petitioner could not clear the departmental accounts examination but continued to render his services to the satisfaction of all concerned. But, to the utter surprise to the petitioner, vide memo dated 06.08.2010 an explanation was sought from the petitioner as to why the first ACP granted to him be not recalled and alleged excess payment be not recovered from him, to which, petitioner replied vide letter dated 21.08.2010. However, on and from August, 2010, the petitioner was getting salary in the pay-scale of Rs. 4000-6000/-awaiting the result of decision of the department pursuant to departmental letter dated 06.08.2010. In the meantime, the petitioner retired on 31.10.2011 on attaining the age of superannuation. It has been averred that after his retirement, the petitioner on several occasions requested the respondents for confirmation of first ACP as well grant to second ACP. But to the utter surprise and dismay of the petitioner, he was served with office order dated 28.06.2012, by which, the first ACP granted to the petitioner vide office order dated 31.03.2005 was cancelled and alleged excess amount paid to the him has been ordered to be recovered from him on the ground that he has not passed the departmental examination. Being aggrieved, the petitioner preferred the present writ application, in which, this Court vide order dated 09.10.2012 granted interim relief to the effect that no recovery from the petitioner pursuant to order dated 28.06.2012 shall be made. 3. Learned counsel for the petitioner submitted that even the pension and gratuity of the petitioner was withheld awaiting decision of the department pursuant to office order dated 28.06.2012, for which, the petitioner has preferred a separate writ application, being W.P. (S) No. 7668 of 2013. 4. 3. Learned counsel for the petitioner submitted that even the pension and gratuity of the petitioner was withheld awaiting decision of the department pursuant to office order dated 28.06.2012, for which, the petitioner has preferred a separate writ application, being W.P. (S) No. 7668 of 2013. 4. Learned counsel for the petitioner submitted that there is no bar in granting first and second ACP to such employees who have not passed the departmental examination and in similar cases, the respondents-authorities have granted ACP to other employees, who have not cleared the departmental examination. Moreover, in view of the circular of the Personnel & Administrative Department, Govt of Jharkhand being letter dated 09.11.1983, employees, who have attained 50 years are not required to pass the departmental examination and the present petitioner has attained the age of 50 years on 10.10.2001, as such he is not required to pass the departmental examination. It has been submitted that in view of the specific circular of the Govt., exempting from passing the departmental examination by such employees, who have attained 50 years, the benefit of first ACP ought not to have been withdrawn. Learned counsel for the petitioner further submitted that since the petitioner has completed more than 24 years of regular service, he is also entitled to second ACP with all consequential benefits. It has further been submitted that in absence of any misrepresentation or fraud on the part of the petitioner, the alleged excess payment made to him cannot be recovered and that too without initiating any departmental proceeding. 5. In support of his submission, learned counsel for the petitioner referred to a judgment rendered in the case of Baijnath Ram Vs. The State of Jharkhand & Ors., passed in W.P. (S) No. 4410 of 2010, wherein this Court in view of the decision rendered in the case of State of Punjab Vs. Rafiq Masih & Ors., [2015 (1) JLJR (SC) 323] has quashed the impugned order of recovery. 6. Per contra, counter affidavit has been filed by the respondents controverting the averments made in the writ application. It has been submitted that after rendering due length of service, though the petitioner was granted provisional first ACP w.e.f 09.08.1999 vide letter dated 31.03.2005 but the petitioner could not pass the accounts examination conducted by the Board of Revenue during his service period. It has been submitted that after rendering due length of service, though the petitioner was granted provisional first ACP w.e.f 09.08.1999 vide letter dated 31.03.2005 but the petitioner could not pass the accounts examination conducted by the Board of Revenue during his service period. It has been submitted that during the process of confirmation of ACP, the petitioner was asked to submit explanation vide letter dated 06.08.2010 as to why the first ACP granted to him be not recalled and excess amount paid to him be not recovered, to which, the petitioner replied vide letter dated 21.08.2010 before Assistant Mining Officer, Dhanbad, which was forwarded to Director (Mines), Jharkhand. In the meantime, the petitioner superannuated on 31.10.2011. Under the circumstances, the provisional first ACP granted to the petitioner was cancelled vide office order dated 28.06.2012. 7. Mr. Mohan Kumar Dueby, J.C to learned A.G submitted that the first ACP granted to the petitioner was provisional subject to final confirmation, which was cancelled during the process of confirmation since the conditions required to get ACP as laid down by the Department of Finance was not fulfilled by the petitioner. 8. After hearing learned counsel for the parties at length and on perusal of the documents available on record, I am of the considered view that the petitioner has been able to make out a case for interference for the following facts, reasons and judicial pronouncements: (I) After rendering due length of service, the petitioner was granted first ACP by the respondents-authorities, which was withdrawn vide letter dated 28.06.2012, on the ground that the petitioner has not passed the departmental examination. Admittedly, the order of withdrawal of benefit of first ACP and recovery has been passed after the retirement of the petitioner. In this regard, it would be apposite to refer to a decision rendered in the case of Smt. Normi Topno Vs. State of Jharkhand & Ors., as reported in 2008 (1) JCR 381 (Jhr) (FB) : [ 2007 (4) JLJR 466 ], wherein Rule 43 B of the Bihar Pension Rules has been illuminatively discussed and the points have been crystallized in para 47 of the decisions, which is reproduced hereinbelow:- “47. In view of the above discussions, we arrive at the following conclusion. In view of the above discussions, we arrive at the following conclusion. To sum up:- “After retirement there is no relationship of employer and employee and as such no recovery can be made from the retiral benefits without following procedure of law as provided under Rule 43(b) of the Bihar Pension Rules. Hence, without fulfilling the conditions under Rule 43(b) and without cancelling the order of promotion after enquiry by the competent authority, pension and other retiral benefits cannot be recovered that too without giving opportunity to the retired employee and without giving any finding with reference to the mis-representation or misconduct on the part of the concerned employee or any other employee merely on the recommendation of audit objection.” Admittedly, in the case at hand, order of recovery has been made without affording any opportunity to the retired employee and without giving any finding with reference to mis-representation or misconduct on the part of the concerned employee. (ii) Furthermore, the Hon’ble Apex Court in case of State of Punjab and Others Vs. Rafiq Masih (White Washer) and Ors., reported in (2015) 4 SCC 334 : [2015 (1) JLJR (SC) 323] has been pleased to enumerate the instances relating to recovery of excess payment without fault of the recipient. In para 18 of the said judgment the Hon’ble Apex Court has been pleased to observe:- “18.It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover.” In this context, recently, the Hon'ble Apex Court in the case of High Court of Punjab & Haryana Vs. Jagdev Singh, in Civil Appeal No. 3500 of 2006 dated 29.07.2016 has held that the principles enunciated in proposition (ii) at paragraph 18 of Rafiq Masih Case (Supra) cannot apply to all cases and held that the officer from whom recovery has been made is bound by the undertaking while opting for the revised pay-scale. But, in the case at hand, State has not come with a case that any such undertaking was given by the petitioner and petitioner is bound by such undertaking. Hence, in the circumstances, the case laws as cited in the case of Jagdev Singh (Supra) shall not apply in the case at hand. 9. As a cumulative effect of the facts, reasons and judicial pronouncements and in view of the discussions made in the foregoing paragraphs, the impugned order dated 28.06.2012 whereby first ACP granted to the petitioner has been withdrawn and order of recovery has been passed on alleged payment, is hereby quashed and set aside. 10. To this extent, the writ petition stands allowed. W.P. (S) No. 7668 of 2013 11. In this writ application, the petitioner has inter alia prayed for direction upon the respondents to pay the retirement benefits due to petitioner like pension, gratuity, earned leave etc and further to fix the pension of the petitioner forthwith and pay the same. 12. In view of the order passed in W.P. (S) No. 5548 of 2012, whereby the impugned letter dated 28.06.2012 has been quashed, the respondents are directed to pay all the retiral benefits, as due and admissible to the petitioner, within a period of twelve weeks from today. 13. With the aforesaid direction, the writ petition stands allowed.