ORDER : 1. Heard, learned counsel for the appellants-State and writ petitioner/sole respondent herein. 2. State is aggrieved by the impugned judgment dated 13.09.2017 rendered in W.P.(S) No.2000 of 2014 (reported in 2018 (3) JLJR 434 ) by the learned Single Judge whereby two orders vide letter no. 1380 dated 20.10.2011 and letter no.601 dated 21.03.2014 issued by the State were quashed. 3. By the order dated 20.10.2011 (Annexure-5), A.C.P./M.A.C.P. granted to the writ-petitioner earlier was cancelled and the amount paid in excess was directed to be recovered since he had not passed the Departmental Accounts Exam, a pre-requisite for grant of A.C.P./M.A.C.P. The matter was remitted to the respondent-authorities in W.P.(S) No.8 of 2012 preferred by the writ-petitioner seeking challenge to the order dated 20.10.2011. The respondent, after consideration of reply of the petitioner, affirmed their stand taken earlier in the order dated 20.10.2011, vide order dated 21.03.2014 (Annexure-4). In order to appreciate the issue at hand, the relevant material facts undisputed by the parties is briefly narrated hereunder: On 06.12.1972 the petitioner was appointed on the post of Accounts Clerk in Water Resources Development Department on a pay scale of Rs.105-145/-which was revised to Rs.220-315/-on 13.02.1973. By a decision of the Government, the two scales applicable to the post of Accounts Clerk were merged with effect from 01.05.1980 into the pay scale of Rs.260-408/-. The petitioner got first Time Bound Promotion on 06.12.1982 in terms of the Department Circular dated 18.02.1981. As per the decision of the Water Resources Development Department of Government of Jharkhand contained in Memo No.1256 dated 09.05.2003 (Annexure-7), such employees who had got promotion without passing the departmental exam prior to 01.09.1983 would be exempted from passing the departmental exam as an eligibility criteria for consideration for higher promotion. The State of Jharkhand had adopted the stand on this issue of the erstwhile State of Bihar. Petitioner got the benefit of 2nd A.C.P. with effect from 09.08.1999 vide Letter No.2287 dated 30.10.2006 (Annexure-8) on completion of 24 years of service. That was recalled by the order dated 20.10.2011 bearing letter No.1380 (Annexure-5) without any show cause notice. It was impugned in W.P.(S) No.8 of 2012. After quashing the said order, the matter was remitted to the respondents to take a fresh decision after show-cause notice to the petitioner. On fresh consideration, the department has affirmed their earlier stands vide letter no.601 dated 21.03.2014 (Annexure-4). It was impugned in W.P.(S) No.8 of 2012. After quashing the said order, the matter was remitted to the respondents to take a fresh decision after show-cause notice to the petitioner. On fresh consideration, the department has affirmed their earlier stands vide letter no.601 dated 21.03.2014 (Annexure-4). Another significant fact though not placed before the Writ Court has been sought to be brought on record through I.A. No.2399 of 2018 by the appellants-State. It seeks to bring on record letter no.827 dated 09.05.2014 (Annexure-2 to the I.A. No.2399 of 2018) by which the first Time Bound Promotion granted to the petitioner on 06.12.1982 has been cancelled. This has also been issued without any show-cause notice and after passing of the order dated 24.03.2014 impugned in the writ petition. The writ-petitioner has superannuated on 31.05.2014. Learned Single Judge after consideration of the submission of the parties and the pleadings on record has dealt it in the following manner:- “6. Be that as it may, having gone through the rival submission of the parties, this Court is of the considered view that case of the petitioner needs consideration. Admittedly, petitioner was granted ACP and MACP as his case is exempted in view of series of Circulars issued by the Finance Department, Government of Bihar as also successor State of Jharkahnd such as Circular dated 21.11.2000, 29.11.2001, 13.02.1995 and the clarification made in the latest Resolution dated 28.04.2014 issued by the Finance Department (Para-9 thereof). It is thus crystal clear that those who have been granted even first promotion after 01.09.1983 are required to pass departmental accounts examination while those who have been granted first promotion for first time before 01.09.1983, are exempted from doing so in the matter relating to subsequent promotion as also for financial upgradation provided other conditions are satisfied. As in the instant case, petitioner had received promotion, though not a regular one, prior to 01.09.1983, he is not required to pass accounts examination rather he is exempted from doing so in the matter relating to their subsequent promotion as also for financial upgradation provided he fulfilled other conditions. 7. As in the instant case, petitioner had received promotion, though not a regular one, prior to 01.09.1983, he is not required to pass accounts examination rather he is exempted from doing so in the matter relating to their subsequent promotion as also for financial upgradation provided he fulfilled other conditions. 7. As a cumulative effect of the aforesaid observations, rules, guidelines and judicial pronouncements, I am of the considered view that impugned order no.1380, Dated 20.10.2011, whereby ACP/MACP granted to him long back has been canceled and order has been passed for recovery of excess amount on the ground that he has not passed Departmental Accounts Examination and the letter no.601, dated 21.03.2014, issued by the respondent no.3 are not tenable in the eyes of law and resultantly, the same are quashed. The respondents are directed to grant ACP and MACP respectively. Respondents are further directed to pay differences of salary, other admissible allowances as applicable under revised scale and retirement benefits including gratuity, leave encashment and pension with statutory interest over the dues amount. It is made clear if any amount has already been recovered, the same shall be refunded to the petitioner within a period of six weeks from the date of receipt/production of a copy of this order.” 4. State being aggrieved is in appeal. 5. Before the learned Single Judge and this Court, learned counsel for the appellant-State has taken a plea that writ-petitioner was not entitled to first Time Bound Promotion on 06.12.1982 due to benefit of merger of pay scale extended to the petitioner on 01.05.1980 in the scale of Rs.260-408/-. 6. Learned counsel for the State has referred to sub para 7 of Para 11 of the Circular dated 30.12.1981 containing the policy decision on Time Bound Promotion. He submits that Time Bound Promotion was provided to avoid stagnation in service in case the employee has not availed of any regular promotion. It further clarifies that except when an employee has remained in original scale of pay or corresponding revised pay scale for 10 years of service without any regular promotion, the employee concerned would not be eligible to avail Time Bound Promotion in case he has got the benefit of a higher scale of pay for whatever reason. It further clarifies that except when an employee has remained in original scale of pay or corresponding revised pay scale for 10 years of service without any regular promotion, the employee concerned would not be eligible to avail Time Bound Promotion in case he has got the benefit of a higher scale of pay for whatever reason. It is further urged on the part of the State that considering the import of this circular, A.C.P. granted to the petitioner after completion of 24 years of service, but without passing departmental exam were cancelled vide order dated 20.10.2011. However, since no notice to show-cause was issued, the order was quashed by this Court in W.P.(S) No.8 of 2012. After show-cause notice to the petitioner and on consideration of the reply, the department has affirmed its stand on the same grounds. Since excess payment was made on account of grant of A.C.P., the same was required to be recovered. As such, the order impugned in the writ petition did not suffer from any error of fact or law. Learned Single Judge committed an error in law and set aside the orders of cancellation of A.C.P. benefits. Learned counsel for the State has further submitted that the letter no.827 dated 09.05.2014 (Annexure-2 to the I.A. No.2399 of 2018) cancelling the first Time Bound Promotion is also justified on the same grounds though he does not dispute that no show-cause notice was issued upon the petitioner before its cancellation. 7. On the part of the petitioner it has been urged that merger of pay scale did not amount to promotion and it was made applicable to all such employees on account of a policy decision of the State. Learned counsel for the writ-petitioner/private respondent further submits that Time Bound Promotion granted to the petitioner on 06.12.1982 on completion of 10 years of service prior to 01.09.1983 exempted the writ-petitioner from passing the departmental exam to avail of A.C.P. benefits since no regular promotion was granted ever to the petitioner. After grant of A.C.P. benefits, cancellation thereof on the ground of non-passing of departmental exam is not proper in the eyes of law. After grant of A.C.P. benefits, cancellation thereof on the ground of non-passing of departmental exam is not proper in the eyes of law. The Department is also not justified in cancelling the first Time Bound Promotion by order dated 09.05.2014 brought on record through I.A. No.2399 of 2018 in this appeal since no show-cause notice has been issued to him and the same has been issued after about 31 and 1/2 years of the grant of first Time Bound Promotion. The State doesn't allege or establish any fraud or misrepresentation on the part of the writ petitioner, whereas writ-petitioner would suffer untold hardship due to such cancellation of first Time Bound Promotion and the A.C.P. benefits at the verge of his retirement. Learned counsel for the writ-petitioner has relied upon the judgments of the Apex Court in the case of Kusheswar Nath Pandey Vs. State of Bihar & Others reported in (2013) 12 SCC 580 and also on the case of State of Punjab and Ors. Vs. Rafiq Masih (White Washer) and Ors., reported in (2015) 4 SCC 334 [: 2015 (1) JLJR (SC) 323] Para-18 thereof. Writ-petitioner is indisputably a Class-III employee. Recovery from such employees who are due to retire within one year has been held to be impermissible in law by the Apex Court. Writ petitioner was granted benefits of A.C.P. for a period in excess of five years. As such, considered on any counts the challenge made by the State to the impugned judgment is without merit. The instant appeal is fit to be dismissed. 8. Three issues primarily arise for consideration in the instant appeal:- (i) Whether petitioner was exempted from passing departmental exam on having availed of Time Bound Promotion prior to 01.09.1983 in the light of the Department Circular Dated 09.05.2003 (Annexure-7 to the Memo of Appeal)? (ii) Whether it is legally permissible for the State to cancel the A.C.P. benefits granted to the petitioner on the ground that he had not passed the departmental examination which is one of the eligibility conditions as per the A.C.P. Circular dated 14.08.2002? (iii) Whether the respondents are justified in seeking recovery of the amount paid in excess due to grant of A.C.P. upon its cancellation about two months prior to his date of superannuation? (iii) Whether the respondents are justified in seeking recovery of the amount paid in excess due to grant of A.C.P. upon its cancellation about two months prior to his date of superannuation? An incidental issue arises at the stage of this appeal in view of the letter no.827 dated 09.05.2014 (Annexure-2 to the I.A. No.2399 of 2018), whereby the first Time Bound Promotion granted to the petitioner on 06.12.1982 has been cancelled by the State. Whether such cancellation though not specifically challenged by the writ-petitioner is permissible in the eyes of law without show-cause notice, on the verge of his retirement and after almost 31 and 1/2 years of its grant? 9. We have considered the submission of the learned counsel for the appellant and the writ-petitioner/private respondent and the relevant material facts of the case germane to the issue at hand. In the conspectus of the facts noted above, we feel that the issues framed herein-above are covered by the principles laid down by the Apex Court in the case of Kusheswar Nath Pandey (supra) and also in the case of Rafiq Masih (supra). 10. Petitioner was granted the benefit of the first Time Bound Promotion on 06.12.1982 since he had not availed of any regular promotion within a period of 10 years of his service, in terms of the Circular dated 18.02.1981. The State of Jharkhand, as per the decision contained in letter no.1256 dated 09.05.2003, exempted such employees from passing departmental exam who had availed of promotion prior to 01.09.1983. In that light petitioner was granted the benefit of 2nd A.C.P. with effect from 09.08.1999 vide letter no.2287 dated 30.10.2006 (Annexure-8) since he had not got any regular promotion even after 1982. The benefits of A.C.P. were extended to the petitioner with effect from 09.08.1999 till it was cancelled on 20.10.2011 (Annexure-5) though without any notice to show-cause notice. After the matter was remitted to the Department vide order dated 17.01.2014 passed in W.P.(S) No.8 of 2012, the department has affirmed its earlier stand by the order dated 21.03.2014 (Annexure-4) impugned in the writ petition along with the earlier Letter No.1380 dated 20.10.2011, on the same ground that petitioner had not passed the departmental accounts exam. After the matter was remitted to the Department vide order dated 17.01.2014 passed in W.P.(S) No.8 of 2012, the department has affirmed its earlier stand by the order dated 21.03.2014 (Annexure-4) impugned in the writ petition along with the earlier Letter No.1380 dated 20.10.2011, on the same ground that petitioner had not passed the departmental accounts exam. After 31 and 1/2 years the Time Bound Promotion to the granted to the petitioner on 06.12.1982 has been cancelled by another letter no.827 dated 09.05.2014 without any show-cause notice and in the last month of his retirement for the first time brought on record in this Appeal by the Appellant. In the case of Kusheswar Nath Pandey (supra) the issue in question was whether the cancellation of Time Bound Promotion granted by the State of Bihar with effect from 01.09.1991 by order dated 30.11.1998 after 11 years in 2009 was proper. The appellant therein was Correspondence Clerk in the State of Bihar, who had joined on 05.05.1979 and had been promoted on 29.08.1981 as a Correspondence Clerk. The Finance Department had granted him Time Bound Promotion with effect from 01.09.1991 on 30.11.1998 which was found to be irregular by the State due to non-passing of the promotional exam prior thereto. The cancellation of the Time Bound Promotion was set aside by the learned Single Judge in a writ petition. However, the learned Division Bench found that the promotion was not approved by the competent authority and passing of the accounts exam was a condition precedent. Therefore, the decision of the Government of cancellation of promotion was held to be proper. 11. In appeal, the Apex Court at paras 9 and 10 held as under:- “9. In our view, the facts of the present case are clearly covered under the two judgments referred to and relied upon by Mr. Rai. The appellant was not at all in any way at fault. It was a time bound promotion which was given to him and some eleven years thereafter, the Authorities of the Bihar Government woke up and according to them the time bound promotion was wrongly given and that the relevant rules are being relied upon and that too after the appellant had passed the required examination. 10. In our view, this approach was totally unjustified. Learned Single Judge was right in the order that he has passed. 10. In our view, this approach was totally unjustified. Learned Single Judge was right in the order that he has passed. There was no reason for the Division Bench to interfere. The appeal is therefore allowed. The judgment of the Division Bench is set-aside. The writ petition filed by the appellant will stand decreed as granted by the Learned Single Judge. The parties will bear their own costs.” 12. In the present case the appellants-State do not allege that there was any fraud or mis-representation on the part of the employee in obtaining the Time Bound Promotion or the A.C.P. benefits. The employee had been granted A.C.P. benefits guided by the Circular dated 03.05.2003 of the State of Jharkhand whereunder employees who had got promotion prior to 01.09.1983 without passing departmental exam were exempted from passing the same in matters of promotion. Surprisingly the First Time Bound Promotion granted to the writ-petitioner has been cancelled after 31 and 1/2 years in the last month of his service vide letter no.827 dated 09.05.2014 which has been sought to be brought on record by the State through I.A. No.2399 of 2018 for the first time in this appeal. The case of the writ-petitioner therefore, is covered by the decision rendered in the case of Kusheswar Nath Pandey (supra). Moreover, the State has acted on its own circular dated 03.05.2003 and granted him the benefit of 2nd A.C.P. without passing the departmental exam since he had got the First Time Bound Promotion prior to the cut off date i.e. 01.09.1983, as such, cancellation of 2nd A.C.P. benefits was impermissible in law. Learned Single Judge has rightly held so. Since such cancellation was made within one year of the retirement of the writ-petitioner and the amount of A.C.P. benefits was paid for a period in excess of five years, the decision to recover such excess payment from the writ-petitioner was also impermissible in law, in view of the decision rendered by the Apex Court in the case of Rafiq Masih (supra). Para 18 of the report containing the summary of the discussion and the illustrations wherein recovery by the employers would be impermissible in law from Class-III and Class-IV employees, is profitably quoted hereunder:- “18. Para 18 of the report containing the summary of the discussion and the illustrations wherein recovery by the employers would be impermissible in law from Class-III and Class-IV employees, is profitably quoted hereunder:- “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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from 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. (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.” 13. On both counts, the decision of the State is unsustainable in law. Cancellation of the First Time Bound Promotion by letter no.827 dated 09.05.2014 in the last month of the retirement of the petitioner after 31 and 1/ 2 years of its grant would also suffer from the same vice, as held in the case of Kusheswar Nath Pandey (supra). Considered in totality, we are of the view that State has not been able to make out any ground whatsoever to unsettle the findings rendered by the learned Single Judge. 14. Before parting we are tempted to say that the approach of the State in pursuing such appeal in the face of settled positions in law as laid down by the judgments of the Apex Court, quoted herein-above, entails uncalled for burden of litigation not only upon the writ petitioner but unnecessary consumption of the Court's time. 14. Before parting we are tempted to say that the approach of the State in pursuing such appeal in the face of settled positions in law as laid down by the judgments of the Apex Court, quoted herein-above, entails uncalled for burden of litigation not only upon the writ petitioner but unnecessary consumption of the Court's time. It is also not in tune with the State litigation policy. Having said so, we however, refrain from imposing any exemplary cost on the State so that the authorities of the State may introspect and adopt a correct approach in such matters in future. 15. The instant appeal is accordingly dismissed.