JUDGMENT :

Heard learned counsel for the parties through V.C.

2. The instant writ application has been preferred by the petitioner praying therein for quashing and setting aside the order as contained in Memo No.2677 dated 18.05.2010 whereby the respondent No.3 has cancelled the Assured Career Progression (ACP) benefits already given to this petitioner. The petitioner has also assailed the order as contained in Memo No. 3034(s)WE dated 3.6.2010 whereby the ACP benefits already given to this petitioner were directed to be recovered.

3. Learned counsel for the petitioner draws attention of this Court towards the impugned order dated 18.05.2010 (Annexure-6) and submits that a completely non-speaking order has been passed by the concerned respondent and simply in two lines it has been held that since the petitioner has not passed any departmental examination as such he is not entitled for ACP benefits.

Learned counsel further draws attention of this Court towards Annexure-3 which is the letter of Personnel and Administrative Reforms Department dated 15.05.1992 which indicates that if a person crossed 50 years of age and there is no examination in past five years then he would be exempted from the examination and as such the petitioner is duly entitled for ACP benefit.

Learned counsel further draws attention towards the order dated 03.06.2010 (Annexure-7) and submits that this has been issued for recovery of amount which was paid to this petitioner as second ACP and which was subsequently cancelled pursuant to Annexure-6. Learned counsel contended that this order has been issued without issuing any show-cause notice and further in getting the benefit of ACP there was no fraud committed by this petitioner as such the amount should not be recovered from the petitioner.

Learned counsel lastly submits that any recovery after retirement is hit by the provisions of Bihar Pension Rules and even otherwise, this impugned order dated 03.06.2010 has not been issued after following the principle of natural justice as such the same shall be quashed and set aside.

4. Mr. Tarun Mahto, learned counsel for the respondent-State tries to defend the impugned order and submits that since the petitioner has not passed the departmental examination as such he was not entitled for ACP benefits. He further relied upon the notification wherein it has been stated that the employees will be exempted from the departmental examination if they have crossed 50 years of age provided there is no examination in the preceding five years. He further submits that the petitioner never tried to pass the departmental examination even once during his active service period; though the departmental examination was regularly conducted.

However, Mr. Mahto could not bring on record any document to show that before the order for recovery any show-cause notice has been issued to the petitioner. He is also not in a position to produce any document to show that the petitioner was involved fraudulently in getting the ACP benefits.

5. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits and the documents annexed therein, it appears that the petitioner retired on 30.06.2004 from the post of Assistant Engineer. After his superannuation, 2nd financial benefit under the ACP scheme was provisionally granted to him vide office order contained in Memo No.2043 (S) dated 24.05.2006. The above 2nd financial benefit under ACP Scheme was granted to him in the pay scale of Rs.10000-15200, which was the pay scale of the Executive Engineer that is the next higher promotional post of the Assistant Engineer. As per rule 3(vii) of the resolution No.5207 dated 14.08.2002 of the Finance Department; for financial up gradation under the ACP Scheme, the eligibility for such financial up gradation is the same as necessary for the regular promotion.

In course of review of the petitioner’s case, it was found that petitioner has not passed the departmental e