1. Heard learned Counsel for the parties.
2. This appeal is directed against the order dated 9th November, 2001 passed by the learned Single Judge allowing review application filed by the Respondents-State and recalling earlier order dated 28-7-1999 passed in
C.W.J.C. No. 8069 of 1997 by which the order passed by the Accountant-General deducting excess salary paid to the appellant from his post retrial benefits had been quashed.
3. The facts necessary for disposal of the present appeal are that the appellant was working as Borer in the Bihar Government and he was drawing salary in the pay scale of Rs. 825-1200. He, along with other employees, claimed scale of Rs. 975-1,540 which was not given by the State Government. The appellant and others filed C.W.J.C. No. 6631 of 1991 in this Court for a direction to the State Government to grant them pay scale of Rs. 975-1,540. The said writ application was dismissed on 14-11-1995 on the ground that higher scale was given to Tube-well Borers who carried high responsibilities and that scale was not permissible in the case of the appellant and others. Thereafter, the appellant superannuated from service on 28-2-1994.
4. After the superannuation of the appellant, it appears that a letter was issued by the State Government on 15-1-1998 granting him scale of Rs. 975-1,540, as a result of which he was granted benefit of the said enhancement of salary by making payment of differential of salary. The office of the Accountant-General raised objection and thereafter, the order dated 10-8-1998 was issued directing recovery of arrears in pursuance of which the consequential order dated 25-9-1998 was passed by the State Government. Both the orders were challenged by the appellant in C.W.J.C. No. 8069 of 1997 which was allowed by this Court vide order dated 28-7-1999 mainly on two grounds; firstly, that once the pay scale of the appellant was fixed, the authorities were not justified to review the same and secondly, the appellant had already superannuated from service and as such the amount of salary already paid to him should not have been recovered from his retirement benefits without giving opportunity of hearing to the appellant.
5. Thereafter, the State preferred review application which has been allowed by the learned Single Judge and a direction has been issued to initiate proceeding under Rule 43(a) or Rule 139 of the Bihar Pension Rules on the ground of suppression of fact before this Court.
6. Learned Counsel for the appellant submitted that the higher scale was granted by the State Government and the appellant received the salary on that scale under the impression that the higher scale was granted by the State Government on reconsideration of the matter. There was neither any suppression of fact nor any fraud was committed by the appellant. He further submitted that the observation made by the learned Single Judge in the review application that different set of Counsel appeared is also not correct. Same set of Counsel had appeared on both the occasions.
7. Learned Counsel appearing for the State, on the other hand, supported the impugned order passed by the learned Single Judge.
8. The admitted fact as emerged from the record is that the claim of the appellant for grant of higher scale was rejected by this Court and after superannuation of the appellant, new scale was given to him by the authorities of the State Government. There was no material to come to the conclusion that it was the appellant who prayed for grant of that scale which was given to him. The said.higher scale was granted by the authorities of the State Government and when the Accountant-General objected to the same, the State Government directed to recover the amount from the retrial benefits of the appellant. The said decision of the State Government cannot be faulted on any ground. The said order cannot be assailed on the ground of denial of opportunity of hearing for the simple reason that even in a case above the opportunity of hearing is given, but the result would be the same. The non-observance of formality does not vitiate the order. Even if the opportunity of hearing should have been given in the case, the situation would not have changed for the reason that the claim of higher scale was rejected by this Court earlier and as such, there was no question of granting him the said scale by the State Government.
9. While allowing the review application, learned Single Judge issued direction for initiation of proceeding under Rule 43(a) or Rule 139 of the Bihar Pension Rules on the ground that the appellant obtained the order in the writ application by suppressing the fact.
10. As we have already come to the conclusion that no such material is on the record to come to the conclusion that there was suppression of fact on the part of the appellant, no case for issuance of any direction is made out to initiate proceeding against the appellant under the aforesaid two provisions of the Bihar Pension Rules.
11. In the result, this appeal is disposed of with the aforesaid modification in the order.