R. Banumathi, C.J

The present appeal is filed against the order dated 24.06.2013 passed in W.P.S No. 1676 of 2010 whereby the writ application filed by the respondent was allowed in part to the extent of cancellation of the order granting 2nd ACP to the respondent and further directed the appellants to calculate the arrears of service terminal benefits as well as the retiral dues in terms of his first promotion and order of 2nd ACP from the date of the order within 2 months.

2. The facts of the case in brief is that the Respondent was appointed as Excise Constable in the pay scale of 105-2-195-3-204 on 19.11.1974 and he was given temporary promotion vide Office Order No. 3598 dated 17.06.1983(61/V) issued by the Secretary to the Commissioner of Excise to the post of Excise Clerk and he gave joining on 21.06.1983 in the pay scale 580-10-620-15-770 E.B. 15-860/-. The respondent got first ACP (Assured Career Progression) with effect from 09.08.1999 in the pay scale of Rs. 4500-7000 and also got Second ACP with effect from 21.06.2007 in the pay scale of Rs.5000-8000 provisionally (vide office order no.862 dated 28.6.2008) with a condition that within one year the confirmation order of the Department of Finance, Jharkhand would be obtained on such grants of financial up gradation given to the respondent. In the meantime, the respondent retired on 31.01.2009.

3. In the light of the advice of the Finance Department in paragraph 3(v) of the resolution no.5207/F dated 14.8.2002, the Department of Excise and Prohibition issued an order vide Memo No. 473 dt. 17-03-2010 and the previous order relating to financial up gradation of the respondent was cancelled. Thereafter, the respondent filed writ being W.P.S No. 1676 of 2010 for quashing the memo no. 473 dated 17.03.2010 and the same was allowed on 24.06.2013 to the extent that the respondent is entitled to the benefits 2nd ACP by holding that the policy decision of granting ACP does not show that if a person is given promotion with certain scale he shall not be entitled for the benefits of 2nd ACP on completion of 24 years of service. Aggrieved by the order of the learned Single Judge the appellant has filed the present appeal.

4. Learned Additional Advocate General appearing for the appellants submitted that there are two errors in extending ACPs to the respondent and by virtue of the order dated 17.3.2010, the same was rightly cancelled by the Finance Department. It was submitted that by getting one regular promotion on the post of Excise Clerk in the scale of pay of Rs.4500-7000/-with effect from 9.8.1999, which is equivalent to 2nd ACP scale of pay in the post of Excise Constable, the petitioner-respondent is not entitled to get the benefit of either 1st ACP or 2nd ACP and the learned Single Judge did not properly appreciate the Scheme of granting ACPs to Government servant (vide clause 3(v)).

5. Learned counsel appearing for the respondents submitted that as against the 25% of departmental quota, the respondent was promoted from the post of Excise Constable to the post of Excise Clerk and therefore, his entry in the cadre of Excise Clerk cannot be termed as promotion, rather it has to be construed to be an appointment afresh and therefore, the respondent is entitled to 2nd ACP. Learned counsel further contended that one Gopal Pandit, who was appointed as Excise Constable along with the respondent and is similarly situated like the respondent, has been granted 2nd ACP in the post of Excise Clerk and while so, the appellant authorities cannot adopt a discriminatory attitude against the respondent. Learned counsel further contended that the benefits of 1st ACP and 2nd ACP granted to the respondent have been cancelled by the impugned order without giving any notice or affording any opportunity of representation and therefore, the learned Single Judge rightly quashed the impugned order to the extent of cancellation of the order granting 2nd ACP.

6. The respondent was appointed as