( 1 ) HEARD learned Advocate Ms. Kruti M. Shah for petitioner and Mr. L. B. Dabhi, learned AGP for respondents. In this petition, rule was already issued earlier but today, the matter was listed in admission board. Therefore, it is taken up for final hearing with the consent of the learned Advocates for both the sides.

( 2 ) THROUGH this petition, petitioner has challenged order No. 133 of 2005 dated 21st June, 2005 wherein scale of petitioner which was enjoyed by petitioner as per order dated 1st June, 2002 has been reduced and date of increment has been changed, pay has been reduced by the respondents without giving any opportunity whatsoever to the petitioner. Thus, by order No. 133 of 2005 dated 21. 6. 2005, respondents have cancelled order dated 1st June, 2002 as mentioned in item no. 3 of the order dated 21. 6. 05 without affording any opportunity to the petitioner and, therefore, present petition is filed by the petitioner.

( 3 ) AFFIDAVIT in reply filed by the respondents is on record of this petition. Respondents have come out with a plea that the mistake committed earlier by the respondents in making pay fixation of petitioner wrongly has been rectified by the concerned authority and, therefore, there is no need to afford any opportunity of hearing to the petitioner.

( 4 ) I have considered the submimssions made by the learned Advocates for the parties. According to my opinion, considering the plea of the respondents raised in their reply, it is clear that no opportunity whatsoever was given by the respondents to the petitioner before passing order dated 21. 6. 2005 and cancelling order dated 1. 6. 2002 on the basis of which the petitioner was enjoying benefits flowing from the said order. Therefore, as per my opinion, order dated 21st June, 2005 is having adverse effect on the pay packet, prestige and status of the petitioner and, therefore, before passing said order cancelling earlier order dated 1st June, 2002, petitioner ought to have been heard by the respondents. Even if it is a case of rectification of the mistake committed earlier by the concerned authority, then also, it is the legal obligation on the part of the respondents to call upon the petitioner to show cause as to why such rectification should not be made by cancelling earlier order dated 1st June, 2002 because the petitioner was enjoying the benefits flowing from the said order dated 1st June, 2002 which was set aside by order dated 21st June, 2005. Therefore, according to my opinion, order dated 21st June, 2005 is violative of the principles of natural justice.

( 5 ) THE Respondent has also directed concerned Authority to recover the amount from the salary of petitioner which was paid due to mistake by Respondent while issuing order dated 1. 6. 2002. If department has committed error or mistake, then while rectifying the same, recovery of excess amount is also not permissible as it was not obtained by petitioner making incorrect statement or misrepresentation or fraud. Therefore, recovery order is also bad and contrary to settled law laid down by the apex Court and High Courts. Said order dated 21. 6. 2005 passed after a period of three years that itself is, therefore, bad.

( 6 ) THE matter at issue has recently been examined by this Court in Special Civil Application NO. 21345 of 2006 on 12. 12. 2006. After considering the decision of the Division Bench of this Court as well as the Hon ble apex court, it was observed by this Court in said decision as under:

"7. I have considered the submissions made by both the learned advocates appearing on behalf of the respective parties and I have considered impugned orders 18. 04. 2006 and 18/22. 08. 2006. The petitioner is retired on 30. 11. 2006, and, this order has been passed by the respondent without giving opportunity to the petitioner. This order has changed the fixation which resulted in recovery having adverse consequences to the legal right of the petitioner, even though, principles of natural justi

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