ORDER The petitioner initially moved the present writ petition against the order of de. confirmation dared August 22, 1980 and obtained this Rule along with limited order of injunction to keep one post vacant until disposal of the representation in the presence of the learned Standing Counsel, who appealed on behalf of the respondents and subsequently by an Order dated August 10, 1981, T.K. Basu, J. after accepting the suggestions of the learned Standing Counsel had directed the Chief Secretary to the Government or West Bengal, to dispose of the representation of the writ petitioner dated August 30, 1980 by September 15, 1981, when no one appeared, on behalf of the writ petitioner. 2. It win be convenient at this stage to refer to the petitioner's grievances. In the writ petition and the prayers made in the w1it petition, which are set out hereinbelow: "(a) A writ of or in the nature of Mandanmus or any other suitable direction be issued commanding the respondents and. each of them to But and proceed according to law and to rescind cancel and revoke tile impugned order being order No. HPT/4D.282.73/I/A 7919 dated August 22, 1980 issued by and/or under the signature' of the Director of Health Services, Government of West Bengal, being Annexure 'E' to the petition and to forbid from giving any effect and/or further effect thereto and/from acting and/or further acting and/or proceeding and/or continuing to act on the basis and/or in pursuance and/or in furtherance thereof in any manner whatsoever; (b) A writ of or in the nature of Mandamus and/or any other suitable direction do issue' commanding the respondents and each of them to act and proceed according to law and to pass necessary orders promoting the petitioner to the post of Held Clerk and/or Head Assistant and/or to promote the Petitioner to the Selection Grade corresponding to the basic grade of Rs.330-550/. (c) A Writ of or in the nature of Cerriorari and/or any other suitable direction d" issue commanding the respondents to tranamit the records relating to the impugned order being Order No. HPT/4D.282.71/I/A 7919 dated August 22, 1980 being Annexure 'b' to the petition issued by and/or under the signature of the Director of Health Services, West Bengal and all acts and deeds in connection with the promotion of the petitioner and to certify the same so that conscionable justice may be done by quashing and/or setting aside the same. 3. Thus it will appear from the aforesaid prayers that the writ petitioner had not only moved against the impugned order of de-confirmation, but also against non-fixation of his position in the Gradation List as well as against not granting petitioner promotion to higher post and for other reliefs. 4. The Rule came up for final hearing before me on June 5 1985, when the learned Advocate for the writ petitioner prayed for leave to file a Supplementary Affidavit for incorporating the order of the Chief Secretary dated September 18, 1981 and to place subsequent events on record and also for consequential reliefs and such leave was granted to the petitioner on the said date 5. Thereafter the matter was heard on June 17, July 11, July 26, July 30 and July 31, 1985 in the presence of the learned Advocates for both the parties and the judgment was reserved. 6. The case of the writ petitioner in short is as follows: The petitioner was appointed as a Lower Division Clerk on February 1, 1956 in the Directorate of Health Services, Government of West Bengal., Thereafter he was confirmed in the said post of Lower Division Clerk with effect from January 1, 1963. On December 22, 1959 the petitioner was appointed as Upper Division Clerk in the office of the State Family Planning Officer under the Directorate of Health Services, Government of West Bengal. On and from April 1, 1965, the petitioner was appointed to officiate as Head Clerk, under the same Directorate at the same scale of pay. On December 22, 1959 the petitioner was appointed as Upper Division Clerk in the office of the State Family Planning Officer under the Directorate of Health Services, Government of West Bengal. On and from April 1, 1965, the petitioner was appointed to officiate as Head Clerk, under the same Directorate at the same scale of pay. On and from October 23, 1967, the petitioner had been working as the Accountant, Slate Family Welfare Bureau, under the Directorate of Health Services, Government of West Bengal By an order dated May 15, 1975, the petitioner was promoted to act as Head Assistant, State Family Welfare Bureau, in the scale of pay of Rs. 435-615/-. The petitioner subsequently was also directed to continue as Accountant, State Family Planning Bureau, Directorate of Health Services in addition to his own duties. 7. At the time of' moving of the writ petition, the writ petitioner was discharging duties as Office Superintendent of the State Family Planning Bureau, in addition to his own duties and he was still working as Head Assistant of the State Family Planning Bureau with effect from May 15, 1975. 8. It is the further case of the writ petitioner that the respondents wrongfully, illegally and in gross violation of the statutory rules were not allowing the writ petitioner to draw salary of the Head Assistant in the scale i. e Rs. 435 615/-. 9. It is the further Case of the writ petitioner that the post of Officer Superintendent in the State Family Planning Bureau not having been filled up, the writ petitioner was discharging duties of Office Superintendent of the said Bureau, being the senior most according to the official gradation list published by the Directorate of Health Service, Government of West Bengal and as such, the petitioner was entitled to be promoted to the post of Office Superintendent. 10. In the meantime all on a sudden by a purported order being No HPT/4D-28273/1/A 7919 dated August 22, 1980, the Director of Health Services, Government of West Bengal, the order of confirmation made by earlier Directorate Order dated April 5, 1975 had been purported to be cancelled, which has been challenged in the instant writ petition Hence, this writ petition. 11. 11. Although the respondents appeared at the time of issuance of the Rule and thereafter from time to time, no affidavit in opposition has been filed on behalf of the respondents controverting the aforesaid allegations and/or assertions of the writ petitioner. 12. Even after the filing of the supplementary affidavit, which has been filed pursuant to the leave granted by this Court on June 5, 1985, although on several occasions the matter was adjourned, no affidavit-in-opposition was filed dealing with the allegations either in the main writ petition or in the supplementary affidavit. 13. In the supplementary affidavit the petitioner has assailed the order of the Chief Secretary to the Government of West Bengal dated September 18, 1981. which has been passed pursuant to the earlier direction passed by this Court by order dated August 10, 1981. stated as aforesaid. 14. By the said order dated September 18, 1981, the then Chief Secretary to the Government of West Bengal in disposing of the representation 'of' the writ petitioner dated August 30, 1980 gave a personal hearing to the writ petitioner and arrived at following conclusions: (a) Upgradation of the four regional offices, including the Family Planning Bureau. West Bengal, took place on February 1, 1974 and it was decided that the inter se seniority of different categories of staff of the Directorate and the upgraded regional offices should be fixed as follows :. (1) Permanent staff of the original Directorate, thereafter; (2) Permanent staff of the upgraded regional offices, thereafter; (3) Temporary staff of the original Directorate, thereafter (4) Temporary staff of the upgraded regional office (b) As in the office of the State Family Planning Officer (where the petitioner was working) has been merged with the Directorate on February 1, 1974, the petitioner was a temporary Upper Division Clerk of the regional office and as such, the position of the petitioner was in the Gradation List should have been below all the temporary Upper Division Assistants, who originally belonged to the said Directorate. (c) Before publication of the Gradation List of the combined staff of the Directorate, the Directorate of Health Services, by issuance of Order No 1461 dated April 5, 1975, confirming the petitioner in the post of Head Clerk in the office of the District Medical Officer, Howruh (where he had remained posted earlier) with effect from January 1, 1973. (c) Before publication of the Gradation List of the combined staff of the Directorate, the Directorate of Health Services, by issuance of Order No 1461 dated April 5, 1975, confirming the petitioner in the post of Head Clerk in the office of the District Medical Officer, Howruh (where he had remained posted earlier) with effect from January 1, 1973. his position in the Gradation List Came to be fixed at Serial No, 47 (i e above all the U. D Assistants who originally belonged to the Directorate and were officiating in U. D. Posts) thus allowing him a benefit, which was not due to him (d) It was further observed by the then Chief Secretary that if the Order dated April 5, 1975 confirming the petitioner in the post of Head Clerk (UDC) of the District Medical Officer, Howrah had not been issued his place in the Gradation List of the Directorate would have been fixed at Serial 91. Thus a benefit which was not lawfully admissible was given to the petitioner superseding 43 employees senior to him and accordingly. the impugned order dated 22nd August, 1980, had to be passed for correction of such error. (e) Although the then Chief Secretary had admitted that the papers connected with the issue of the confirmation order of the petitioner were not traceable and it was not known under what circumstances such an order conferring undue benefit on the petitioner was made. 15 Mr. Shiblal Bose appearing with Mr. S K. Garai, for the writ petitioner, submitted that the order of the Chief Secretary dated September 18, 1961 had been passed on a most erroneous appreciation of fact and law. 16. 15 Mr. Shiblal Bose appearing with Mr. S K. Garai, for the writ petitioner, submitted that the order of the Chief Secretary dated September 18, 1961 had been passed on a most erroneous appreciation of fact and law. 16. He added that the said authority did not consider the observations of the Supreme Court in the case of S.B.Patwardhan v State of Maharashtra reported in AIR 1977 SC 2051 , where the Supreme Court in dealing With the dispute of fixation of seniority between the direct recruits Deputy Engineers at the Engineering Services of the Government of Maharashtra and Gujarat and the promotees came to the conclusion that the inter se seniority should be fixed between the promotees and the direct recruits not from the date of confirmation, but from confirm a particular promotees even though a substantive vacancy was available in which he could have been confirmed could not make the direct recruits to the position as the valuable right of seniority was dependant upon mere accident of confirmation. 17. Similar observation was made in the case reported in AIR 1981 SC 41 (Baleswar Das v. Stare of Uttar Pradesh) in particular when the Supreme Court deprecated delayed confirmation. 18. Mr. Bose further assailed the said order relying on another decision reported in see 1981(2) 673 Bhim Singh v. State of Haryana when quoting the observations of Krishna Iyer J of the Supreme Court, he added that confirmation having been granted with effect from 1973 by an order of 1975 could not be withdrawn, in the manner it was withdrawn, on the basis of discovery of apparent mistake by respondents as undoubtedly a right has been conferred by reason of grant of such confirmation and petitioners prolonged officiation in the post of Upper Division Clerk had Entitled him to get such confirmation and the Slate cannot "back-track". 19. He further submitted that the respondents have not come out with any case either against the petitioner, which can he said to have disentitled the petitioner to be confirmed, stating that the petitioner was unfit for confirmation. 20. 19. He further submitted that the respondents have not come out with any case either against the petitioner, which can he said to have disentitled the petitioner to be confirmed, stating that the petitioner was unfit for confirmation. 20. Referring to the point as to whether the respondents could take advantage of their own wrong, if any committed, he placed reliance on another judgment of the Supreme Court reported in AIR 1977 SC 112 (Nayagarh Co-operative Central Bank v. Narayan) in particular, where the Supreme Court was not inclined to interfere, where the incumbent was allowed to work for more than 13 years and no action was taken in the meantime and the order passed by the Deputy Registrar, directing removal of the incumbent was not made with the approval of the Registrar of Co-operative Societies who having acquiesced in the appointment and having allowed the incumbent to work for 13 years, Supreme Court observed that it was not open to the respondents to set aside the appointment of the incumbent, on that score. 21. Mr. Arun Prakas Chatterjee, learned Standing Counsel appearing with Mrs IIa Chatterjee and Mrs. Santi Das submitted that since the petitioner had acquired no right out of confirmation, which was passed on the' basis of Mistake by earlier order dated April 5, 1975, by which the petitioner was confirmed with retrospective effect from January 1, 1973 Was not entitled to any relief whatsoever in the instant writ petition as the respondents have every right to correct such mistake immediately the same being discovered and/or detected. 22. In this connection, he refers to the judgment of Allahabad High Court reported in AIR 1968 Allahabad 276 (K.B. Sharma v. Transport Commissioner) in particular, on paragraphs 4 and 6, wherein, it has been held that by reasons of grant of confirmation one does not acquire any special status by virtue of that confirmation. 22. In this connection, he refers to the judgment of Allahabad High Court reported in AIR 1968 Allahabad 276 (K.B. Sharma v. Transport Commissioner) in particular, on paragraphs 4 and 6, wherein, it has been held that by reasons of grant of confirmation one does not acquire any special status by virtue of that confirmation. He also referred to another decision of the Supreme Court reported in Air 1964 SC 521 (State of Punjab v. Jagdip Singh) where the Supreme Court in paragraph 8, in considering the validity of cancellation of the order of disconfirmation held that since the issuance of the Notification does not operate as a punishment, therefore, the same does not attract the previsions of Article 311(2) of the Constitution of India, as the confirmed Tehsidar could not be validity confirmed as Tehsildar by the Financial Commissioner of Pepsu. Therefore, even though upon their allocation to the State of Punjab on the from November 1, 1956, they were shown, as confirmed Tehsildar as they could not in law hold that status Legally, their status was only that of officiating Tehisidar, Notification in question in fact recognized as their status and cannot be said to have the effect of redacting them in rank by reason of merely correcting an earlier error. 23. Mr Chatterjee also referred to another decision reported in AIR 1970 Punjab 241 (F.B) on the point of correction of mistake where similar view has been taken by the Punjab and Haryana High Court in the matter of assessment of inter se seniority and revision of the position in the seniority list, which according to the said judgment not amounted to de-confirmation. 24. Referring to the aforesaid decisions, Mr. Chatterjee submitted further that the petitioner could not be confirmed against a post in the regional office', as admittedly he was an employee of the Directorate. 25. 24. Referring to the aforesaid decisions, Mr. Chatterjee submitted further that the petitioner could not be confirmed against a post in the regional office', as admittedly he was an employee of the Directorate. 25. He furd1er referred to an order passed by Suhas Chandra Sen J in C R. No 5930(W) of 1984, where the learned Judge passed the following order: "In that view of the matter there will be an order directing the respondents to cancel, withdraw and rescind the seniority list of 1980 (Annexure 'D' of the petition) including all promotions and New Intermediate Selection Grade given to the employees of the Regional Offices which were upgraded to the status of Directorate and whose seniority was not filed in accordance with the decision of the Government. The case is finally disposed of. There will be no order as to costs." Sd/. S. C Sen J. 26. According to Mr. Chatterjee, as appeal having been preferred and being pending before the Division Bench against the said order by the administration, the entire position in the Gradation List has become topsy turvey, and/or put in an unsettled position. 27. Before concluding his arguments, Mr. Chatterjee submitted in any event, this Court will not take up the task of conferring promotion to the petitioner as the same is essentially a matter to be taken up by the respondents in the event Court arrives at the conclusion that injustice has boon done to the petitioner Slid in that event, the entire matter might be sent back to the respondents for consideration as to whether any promotion could be granted to the petitioner, in view of his length of service. 28. In reply, Mr. Bose distinguishing the authorities cited by Mr. Chatterjee submitted that the scope of the original writ petition being, inter alia, non-consideration of petitioner's candidature and promotion to the higher post of Head Assistant and this writ petition was not moved only against that order of de-confirmation, the aforesaid decisions cited by Mr. Chatterjee were not applicable in the facts of the present case. 29. Chatterjee submitted that the scope of the original writ petition being, inter alia, non-consideration of petitioner's candidature and promotion to the higher post of Head Assistant and this writ petition was not moved only against that order of de-confirmation, the aforesaid decisions cited by Mr. Chatterjee were not applicable in the facts of the present case. 29. He added that the petitioner's case was entitled to be considered by the respondents, in accordance with the principles enunciated in Patwardhan's Case (supra) as also Baleshwar Das's case (supra) and this Court may not for the second time send this matter back to the respond tints without specifying the guideline as the respondents are bent upon to cause injustice by perpetuating further error, as the same would be evident from the fact that the file of the petitioner relating to grant of confirmation could not be traceable by the Chief Secretary. 30. Mr. Sibial Bose submitted that the directions passed by S. C Sen J. on 24th January, 1985, in C R. 5930(W) of I984 related to the challenge of the Gradation List of Lower Division Assistants and the same has no manner of application in the fixation of the inter se seniority of the Upper Division Clerks and as such, the said direction could not stand in the way of fixation of seniority and/or grant of promotion of the petitioner and as such the same should be left out of consideration of this court having no bearing on the facts of the present case. 31. The case reported in AIR 1977 SC 112 (supra) applies in full force in the facts of the present case and the respondents having allowed the petitioner to continue in the post of confirmed Upper Division Clerk for more than 5 years should not be allowed to pass the order of de-confirmation in the garb of correction of mistake, as has been done in the instant case. 32. In my opinion, there is much force in the submissions of Mr. 32. In my opinion, there is much force in the submissions of Mr. Bose, as admittedly the petitioner's case was not considered by the Chief Secretary from a proper angle and the said decision of the Chief Secretary suffers from error apparent from the face of the records and should be struck down I am further of the opinion that a gross injustice has been done to the petitioner by passing the order of de-confirmation dated August 22,1980, on the pretext of 'correction of mistake', as petitioner had been allowed to continue in the said post for more than 5 years as confirmed Upper Division Clerk and Head Assistant and acting as Office Superintendent, in addition to his own duties should not have, been reverted in the manner it has been done. Accordingly, I direct as follows : - (i) The order of de-confirmation date August 22, 1980 is set aside (ii) The respondents will grant promotion to the petitioner to the higher post, including the post of Head Assistant, Office Superintendent, in accordance with the principles laid down in the S.B.Patwardhan’s (supra) taking the continuous seniority of the petitioner in the post of Upper Division Clerk to be the relevant factor, in granting promotion and fixing inter se seniority. (iii) The respondents will not discriminate the petitioner, in case of further promotion in future in any manner whatsoever along with other employees, in particular, Sir Amitabha Chowdhury (Serial No.91), Sri Kartick Chandra Majumdar (Serial No. 49) and Sri Gunendra Nath Roy (Serial No. 50), whose positions are below the petitioner in the draft Gradation List, as annexed to the Supplementary Affidavit. (iv) Such consideration to the case of the petitioner’s confirmation and/or promotion should be made by the respondents within a period of three months from the date of communication of this order including giving appear benefits to the petitioner in the same manner as granted in the cases of the said Amitabha Chowdhury, Kartick Chandra Majumdar and Gunendra Nath Roy. The Rule is made absolute to the extent indicated above. In the circumstances of the case, there will be no order as to costs. Rule made absolute with directions.