IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2791 of 1997 LALLAN PRASAD, S/O LATE BISHWANATH PRASAD R/O VILLAGE AMRAPOKHAR, P.S. SURAJPURA, DISTRICT ROHTAS PRESENTLY POSTED AS ROLLER DRIVER UNDER THE EXECUTIVE ENGINEER, RURAL ENGINEERING DEPARTMENT, DEHRI SUB- DIVISION,DISTRICT ROHTAS. .............PETITIONER. Versus 1.THE STATE OF BIHAR THROUGH ITS SECRETARY CUM COMMISSIONER, PUBLIC WORKS DEPARTMENT, NIRMAN BHAWAN, PATNA. 2.ENGINEENR IN CHIEF, RURAL ENGINEERING ORGANISATION DEPARTMENT, OFFICE SITUATED AT NEW SECRETARIAT, PATNA, BIHAR. 3.SUPERINTENDING ENGINEER, RURAL ENGINEERING CIRCLE AT & PO SASARAM, ROHTAS. 4.EXECUTIVE ENGINEER, RURAL ENGINEERING ORGANISATION DIVISION OFFICE AT SASARAM, ROHTAS. 5.SUB DIVISIONAL OFFICER, RURAL ENGINEERING SUB DIVISION AT DEHRI ON SONE, P.S. DALMIA NAGAR, ROHTAS. ..............RESPONDENTS. ----------- 03/ 12.05.2011 No one appears for the petitioner. Counsel for the State is present. In this writ application, the petitioner's prayer:- 'That this application is being filed for issuance of writ of certi-orari or any other appropriate writ or direction for quashing of the order as contained in Gyapank No. 800 dated 11.12.1996 issued from the office of Respondents No. 4 as contained in Annexure-3 by which pay scale given to the petitioner on the recommendation of the 5th Pay anomolies recommendation committee on the corresponding scale of Rs. 975-1540 is sought to be curtailed and the excess amount received by the petitioner as a result of the grant of that scale vide letter dated 25th January 1987 have been directed to be received from the pay of the petitioner.' remain unanswered by the respondents till date as there is no counter affidavit filed by them addressing to the issues raised by the petitioner in the matter of his being reduced to 2 lower pay scale and also subjected to recovery of excess amount paid to him. From the reading of the impugned order dated 11.12.1996, it would appear that the Executive Engineer had revised the pay scale and the net emoluments of the petitioner w.e.f. 01.04.1981, by relying on certain circulars of the State Government/instruction of the Accountant General. From the order itself, as also apart from the averments made in this writ application, it appears that such action was taken by the respondents without giving any prior notice to the petitioner and opportunity of being heard. As a matter of fact, this writ application was admitted on 13.08.1997 and this Court had stayed the order passed by the Executive Engineer dated 11.12.1996, to the extent of recovery of the excess amount. Mr. Anish Akhtar, learned counsel for the State would like to explain certain facets by way of pointing out the anomaly in pay fixation of the petitioner by giving him the pay scale of Rs.975/- to Rs. 1340/- in place of his entitlement of pay scale of Rs. 950/- to Rs. 1500/- but then as there is nothing on record by way of counter affidavit and the recovery from the petitioner till date has remained stayed, this Court would find it expedient in the interest of justice to direct the respondents to issue a show cause notice to the petitioner if they can still justify their action for 3 making recovery from the petitioner on the basis of a definite proof with regard to misrepresentation done by the petitioner for grant of higher pay scale and consequential amount under such pay scale. In other words, the petitioner will not be subjected to any recovery if there was no fraud or misrepresentation on his part in getting his salary. This however, will not mean that the respondents will not be entitled to fix the pay scale of the petitioner from the prospective date and to that extent the impugned order fixing the pay scale of the petitioner and the net emoluments is not being disturbed by this Court and only the portion regarding recovery of excess amount has been found to be bad inasmuch as, the Respondents have not been able to justify such recovery sought to be made from the petitioner. With the aforementioned observations, this application is disposed of. Ranjan (Mihir Kumar Jha, J)