MIHIR KUMAR JHA, J.:–Heard learned counsel for the parties. 2. For the reasons mentioned in I.A. No. 2173 of 2015, the prayer made therein is allowed for additional relief prayed in paragraph no.3 of the application. 3. This court has also heard learned counsel for the parties on merit both with regard to the prayer made in the original writ application as also in the amendment petition, I.A. No. 2173 of 2015. 4. When this writ application was filed on 4.7.2012, the prayer of the petitioner had read as follows:— “1(i) To issue a writ in the nature of certiorari setting aside the order dated 19.03.2012 contained in letter No. 09/HQ-067-048/2009 145 issued from the office of Respondent No.3, Under Secretary (Management) directing the Respondent No.8, the Executive Engineer, Irrigation Division, Murliganj, Madhepura to initiate Departmental Proceeding because of accomplishment in theft of boulder 231.064 M3 with a further direction to recover an amount of Rs. 4,31,512/-, the value of stolen Nepali boulder. (ii) To issue a writ in the nature of Mandamus commanding and directing the Respondents to get investigated the theft of boulder episode from 12.8 K.M. to 15 K.M. of Eastern afflux bandh during the entire service period of Shri Ram Narayan Jha, the then Junior Engineer i.e. from year 2003 to 2008 by flying squad of Department of Irrigation, who has given false information to Chief District Officer, Sunsari (Nepal), who has no authority in the matter as the embankments are under Government of India under Nepali territory by virtue of agreement of Government of Nepal with Government of India. (iii) To issue a writ in the nature of Mandamus commanding and directing the Respondents to keep in abeyance order dated 19.03.2012 (Annexure-1) till the investigation report of flying squad headed by an officer not below the rank of Superintending Engineer comes fastening the responsibility on responsible one.” 5. Let it be noted that this writ application was initially heard and dismissed on 6.8.2012 by learned single Judge but that order was subsequently set aside by the Division Bench by order dated 9.3.2015 remitting the matter back to this Court. Thus, when the slate is absolutely clean, this Court must proceed with the events which had taken place either before filing of the writ application or during pendency of this writ application. 6. Thus, when the slate is absolutely clean, this Court must proceed with the events which had taken place either before filing of the writ application or during pendency of this writ application. 6. As noted above, the petitioner was subjected to both departmental proceeding on a criminal charge as also recovery of certain amount for the loss caused by him to the State Government. In the departmental proceeding, the petitioner was ultimately exonerated by the order of the concerned authority vide his order dated 13.8.2014, which reads as follows:— fcgkj ljdkj ty lalk/ku foHkkx vk0la0&22@fu0fl0¼ohj0½&07&07@2011@ 88@iVuk fnukad 13@8@14 vkns'k Jh bUnz ukjk;.k feJ] duh; vfHk;Urk] iwohZ rVca/k ize.My] ohjiqj lEizfr duh; vfHk;Urk flapkbZ ize.My] eqjyhxat ds fo:) o"kZ 2009 esa iwohZ okgksFkku cka/k ds fd0eh0 13-6 ls 14-50 fd0eh0 ds chp 231-064 /ku eh0 cksYMj pkjh esa lafyIrrk mtkxj gksus ds i'pkr vkns'kkuqlkj mM+unLRkk vapy ls tkap djk;h x;hA mM+unLrk ls izkIr tkap izfrosnu ds leh{kksijkUr izFke n`"V;k izekf.kr vkjksiksa ds fy, Jh feJ] duh; vfHk;Urk] iwohZ rVca/k ize.My] ohjiqj ds fo:) foHkkxh; ladYi la0&170 fnukad 11-12-12 }kjk fcgkj ljdkjh lsod ¼oxhZdj.k] fu;a=.k ,oa vihy½ fu;ekoyh ds fu;e 17 ds rgr foHkkxh; dk;Zokgh pyk;h x;hA Jh fot; dqekj] lg rduhdh lykgdkj] cjkt vapy] ohjiqj dks lapkyu inkf/kkdjh ,oa Jh lst; dqekj] lgk;d vfHk;Urk] 'kh"kZ dk;Z ize.My] ohjiqj dks izLrqrhdj.k inkf/kdkjh cuk;k x;kA lapkyu inkf/kdkjh ls izkIr tkap izfrosnu dh foHkkxh; Lrj ij xgu leh{kk dh x;h ftlesa jh feJ] duh; vfHk;Urk ij yxk;s x;s vkjksi ds mij nks"k izekf.kr ugha ik;k x;kA vr% lapkyu inkf/kdjh ds tkap izfrosnu ls lger gksrs gq, Jh bUnz ukjk;.k feJ] duh; vfHk;Urk dks vkjksi eqDr fd;k tkrk gSA mDr fu.kZ; dh lwpuk Jh bUnz ukjk;.k feJ] duh; vfHk;Urk dks lalwfpr fd;k tkrk gSA g0@& ¼jke iqdkj jatu½ vfHk;Urk izeq[k ¼e/;½A Kkikad& @iVuk] fnukad& izfrfyfi& egkys[kkdkj] fcgkj] iVuk@voj lfpo ¼os0nk0fu0dks0½ foHkkx] fcgkj iVuk dks lwpuk vko';d dkjZokbZ gsrq izsf"krA g0@& vfHk;Urk izeq[k ¼e/;½A** 7. The aforesaid order, therefore, had brought curtains to the departmental proceeding against the petitioner on a charge framed against him by the departmental resolution dated 11.12.2012, which had not been substantiated much less proved in any manner. In that view of the matter, the subsequent order dated 5.1.2015 passed by the same authority reviewing/recalling the order of exoneration and that too without giving any notice and/or opportunity of hearing to the petitioner must be held to be bad. In that view of the matter, the subsequent order dated 5.1.2015 passed by the same authority reviewing/recalling the order of exoneration and that too without giving any notice and/or opportunity of hearing to the petitioner must be held to be bad. The order dated 5.1.2015 in fact of the Engineer-in-Chief reads as follows:— ^^fcgkj ljdkj ty lalk/ku foHkkx vk0la0&22@fu0fl0¼ohj0½&07&07@2011@01@ iVuk fnukad @8@14 vkns'k Jh bUnzukjk;.k feJ] duh; vfHk;Urk] iwohZ rVca/k ize.My] ohjiqj lEizfr duh; vfHk;urk flapkbZ ize.My] eqjyhxat ds fo:) o"kZ 2009 esa iwohZ okgksLFkku cka/k ds fd0eh0 ls 13-60 ls 14-50 fd0eh0 ds cph 231-064 /ku eh0 dh cksYMj pksjh es lafyIrrk mtkxj gksus ds i'pkr vkns'kkuqlkj mM+unLrk vapy esa tkap djk;h x;hA mM+unLrk ls izkIr tkap izfrosnu ds leh{kksijkUr izFke n`"V;k izekf.kr vkjksiksa ds fy, Jh feJ] duh; vfHk;Urk] iwohZ rVca/k ize.My] ohjiqj ds fo:) foHkkxh; ladYi la0&170 fnukad 11-12-12 }kjk fcgkj fcgkj ljdkjh lsod ¼oxhZdj.k] fu;a=.k ,oa vihy½ fu;ekoyh 2005 ds fu;e 17 ds rgr foHkkxh; dk;Zokgh pyk;h x;hA Jh fot; dqekj≶&rduhdh lykgdkj] cjkt vapy] ohjiqj dks lapkyu inkf/kdkjh ,oa Jh lat; dqekj lgk;d vfHk;Urk 'kh"kZ dk;Z ize.My] ohjiqj dks izLrqrhdj.k inkf/kdkjh cuk;k x;k lapkyu inkf/kdkjh ls izkIr tkap izfrosnu dh foHkkxh; Lrj ij leh{kk dh x;h] ftlesa Jh feJ] duh; vfHk;Urk ij yxk;s x;s vkjksi ds mij nks"k izekf.kr ugha ik;k x;kA mDr fuxZr vkns'k ds vkyksd esa Jh feJ] duh; vfHk;Urk }kjk muds fo:) ntZ ohjgj Fkkuk dkaM la0&207@12 fnukad 4-10-12 dks okil ysus rFkk dVkSrh dh x;h jkf'k dks okil djus ls lacaf/kr vH;kosnu izLrqr fd;k x;kA miyC/k vfHkys[kksa ls fofnr gksrk gS fd Jh feJ ds fo:) ohjiqj Fkkuk dkaM la0 207@12 fnukad 4.10.12 ekuuh; mPp U;k;y;] iVuk }kjk lh0MCyw0ts0lh0 la0 11462@12 esa ikfjr U;k; fu.kZ; ds vkyksd esa ntZ fd;k x;k gSA vr,o ekeys ds iqujh{k.k ds Øe esa ;g rF; izdk'k esa vk;k fd ekuuh; mPp U;k;ky; ds vkns'k ds vkyksd esa ntZ ohjiqj Fkkuk dkaM la0&207@12 Hkk0n0fo0 dh /kkjk 379 ds rgr ntZ gS tks la{ksi vijk/k ds vUrxZr vkrk gSA ,slh fLFkfr esa ekeys dh xaHkhjrk dks ns[krs gq, Jh feJ ds fo:) xfBr vkjksiksa ds vkyksd esa lapkfyr dh x;h foHkkxh; dk;Zokgh esa vkSj xgu tkap dh vko';drk eglwl dh x;h gS blds n`f"Vxr fcgkj ljdkjh lsod ¼oxhZdj.k] fu;a=.k ,oa vihy½ fu;ekoyh 2005 ds fu;e 28¼d½¼[k½ ds vkyksd esa foHkkxh; vkns'k la0&88 lg ifBr Kkikad 1105 fnukad 13-8-11 dks fujLr fd;k tkrk gSA mDr fu.kZ; dh lqpuk Jh bUnz ukjk;.k feJ] duh; vfHk;Urk dks lalwfpr fd;k tkrk gSA g0@& 02@01@15 ¼jke iqdkj jatu½ vfHk;Urk ize[k ¼e/;½ Kkikad 12 @iVuk] fnukad 05-1-15** (underlining for emphasis) 8. From reading of the order, it becomes very clear that the Departmental Secretary reviewing his earlier order dated 13.8.2014 in the light of the order of this Court directed for enquiry against the petitioner for offence under Section 379 of the Indian Penal Code vide Virpur P.S. Case No. 207 of 2012. That however can never be a ground for reopening of the concluded enquiry. As a matter of fact, the Engineer-in-Chief, being the disciplinary authority, has also been vested with no power of review in Rule 28 of the Bihar Government Service (Classification, Control and Appeal) Rules and, therefore, the said order dated 5.1.2015 is wholly without jurisdiction. Such an order can be also vitiated on the ground that the vested right of the petitioner of being exonerated has been sought to be adversely changed even without giving him any notice and/or opportunity of hearing. 9. In this regard, this Court is conscious of the provisions made in Rule 28 of the Bihar Government Servants (Classification, Control and Appeal) Rules which reads as follows:— “28. 9. In this regard, this Court is conscious of the provisions made in Rule 28 of the Bihar Government Servants (Classification, Control and Appeal) Rules which reads as follows:— “28. Revision.—(1) Notwithstanding anything contained in these rules,- (i) the Government, or (ii) the head of a department directly under the Government, in the case of a Government servant serving in a department or office, under the control of such head of a department, or (iii) the appellate authority, or (iv) any other authority specified in this behalf by the Government by a general or special order, and within such time as may be prescribed in such general or special order, may at any time within six months of the date of the order proposed to be revised, either on his or its own motioin or otherwise call for the records of any inquiry and revise any order made under these Rules or under the Rules repealed by the Rule 32 (from which an appeal is allowed but from which no appeal has been preferred or from which no appeal is allowed), after consultation with the Commission where such consultation is necessary, and may- (a) confirm, modify or set aside the order, or (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed, or (c) remit the case to the authority, making the order or to any other authority, directing such authority, to make such further inquiry as he may consider proper in the circumstances of the case, or (d) pass such others as it may deem fit: Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government Servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (vi) to (x) of Rule 14 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, no such penalty shall be imposed without an inquiry in the manner laid down un Rule 17 and after giving a reasonable opportunity to the Government Servant concerned of showing cause against the penalty proposed on the evidence adduced during the inquiry and except after consultation with the Commission where such consultation is necessary. Provided further that no power of revision shall be exercised by the head of department, unless- (i) the authority which made the order in appeal, or (ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him. (2) No proceeding for revision shall be commenced until after (i) the expiry of the period of limitation for an appeal, or (ii) the disposal of the appeal, where any such appeal has been preferred. (3) An application for revision shall be dealt with in the same manner as if it were an appeal under these Rules.” 10. From bare reading of the rules, two things are clear, firstly, that power of revision or review is vested in the government or the head of the department and secondly, such power has to be exercised after giving a show-cause notice and/or opportunity of making a representation. In the present case, the Engineer-in-Chief, being not the Head of the Department but only the disciplinary authority and no notice also was given to the petitioner for review of the earlier order, the same is also in teeth of the provision made under Rule 28 and cannot be sustained. 11. Thus, for the reasons indicated above, this Court will quash the order dated 5.1.2015 as contained in Annexure-19 to the amendment petition. 12. Coming now back to the other relief that action should be taken against other persons having criminal charges were found to be substantiated, this Court would refuse to pass order under Article 226 of the Constitution of India specially when such persons also have not been made party to this writ application. In any event, the criminal proceeding, being pending against such persons, the law will take its own course. 13. Reverting back to the order of recovery passed on 19.3.2012, this Court would find that the said order was passed at a stage when the disciplinary proceeding against the petitioner was sought to be initiated for the same misconduct in relation to he being also involved in the theft of the bolder. Now when the charges in the disciplinary proceeding has not been proved and in the criminal case lodged against the petitioner the police has already submitted the final form, it will be now necessary for the State Government to re-consider its decision as with regard to recovery of an amount of Rs. Now when the charges in the disciplinary proceeding has not been proved and in the criminal case lodged against the petitioner the police has already submitted the final form, it will be now necessary for the State Government to re-consider its decision as with regard to recovery of an amount of Rs. 4,31,512/- out of which a sum of Rs. 3.5 lac approximately is said to have been already recovered from the petitioner. 14. Thus, this Court would direct the Departmental Secretary to examine the issue as with regard to recovery of the amount and if it is found that such recovery has to be made despite the petitioner being exonerated in the departmental proceeding as also the criminal case being decided in his favour, he will record reasons for the same and communicate the same to the petitioner. 15. The rest of the relief sought in this writ application being not admissible much less within the ambit of Article 226 of the Constitution of India including one of promotion is not being adjudicated till the government takes a decision with regard to recovery. 16. With the aforementioned observation and direction, this application is disposed of.