JUDGMENT ASHIM KUMAR BANERJEE 1. PETITIONER challenged the following decision of the State. Sri Goutam Das and Sri Somenath De joined as Moharrir on the same date. Sri Goutam Das, being the senior amongst the two, got the opportunity of promotion to LDC and hence, to be counted along with the LDCs. Sri Somenath De comes within the purview of redesignation and scope of promotion on 01.07.1989. The orders effecting promotions of Moharrirs to LDCs can not be reviewed, being a fait-accomply Facts would depict that Goutam and Somenath being the petitioner and the private respondent were working as Moharrir in the Department of Land and Land Revenue working under the Additional District Magistrate, Bankura. 2. TheY joined their service in 1978. Goutam joined on January 10, 1978 and was confirmed on January 10, 1981. Goutam was promoted as Lower Division Clerk on March 8, 1989 and confirmed in the said post with effect from November 2, 1992. He got subsequent promotion as Upper Division clerk with effect from November 8, 1998. Somenath joined with Goutam on the same date however Goutam was shown as senior to Somenath as per the original Gradation List. Goutam got the promotion earlier to Somenath in the post of Lower Division Clerk. At the time of initial entry in service, both Somenath and Goutam were placed in the scale of Rs.180-350/-. As per seniority, list Goutam was placed as no.4 whereas Somenath was placed just after him. Both were confirmed on the same date with effect from January 1, 1981. As per Government of West Bengal Service (Reservation of Pay and Allowance) Rules, 1970) Moharrirs under the Registration Directorate of the Judicial Department and Moharrirs in Land and Land Revenue Department as well as their counter part earlier working under the Board of Revenue were all placed in the pay scale of Rs.180-350 with effect from April 1, 1970. The Judicial Department vide Memo dated May 8, 1978 placed the Moharrirs working under them in the pay scale of Rs.230-425/- with retrospective effect from April 1, 1970 subject to the condition that they would not be entitled to any arrear. As a result, other Moharrirs working in Land and Land Reforms Department or any other Department working under the scale of Rs.180- 350/- were deprived of the higher scale which their counter part got in Judicial Department. As a result, other Moharrirs working in Land and Land Reforms Department or any other Department working under the scale of Rs.180- 350/- were deprived of the higher scale which their counter part got in Judicial Department. This became a subject matter of challenge before this Court through writ petitions. Ultimately, they succeeded and as per ROPA 1970 they were given the identical scale of Rs.230-425/- which eventually is the pay scale for the Lower Division Clerk in other Department. The High Court granted the relief that attained finality at the Apex Court level. The State, thus, extended the benefit to all Moharrirs working in other Department through Memorandum dated January 18, 1982 with retrospective effect from April 1970 without any arrear adjustment vide Memo dated February 23, 1989. Goutam got the promotion in the post of Lower Division Clerk on temporary basis at a scale of Rs.300-685/- along with all other pay and allowance admissible for the same. it was made clear that such appointment was purely temporary and terminable with one months notice from either side. Goutam got the promotion on his own volition as we find from the said order appearing at page 43-44 of the affidavit-in-opposition. The offer was given to the concerned employees being Goutam and one Sagar Chandra Khanna to opt whether they would be agreeable to accept such promotion on the conditions stipulated in the said order. Goutam accepted such placement and thus became a Lower Division Clerk with effect from the said date. Subsequently, the post of Moharrir was abolished with effect from July 1, 1989. As on that date, all Moharrirs including Somenath became Lower Division clerk by virtue of one time placement. Somenath thus got the post of Lower Division Clerk without undergoing any promotional process unlike Goutam. The State maintained two separate seniority lists in the post of Lower Division Clerk being a group who are direct recruit as Lower Division clerk and the other group who are redesignated as Lower Division clerk after abolition of the post of Moharrir where they were originally working. The first one was called as LDC whereas the second one was called as RLDC (Redesignated Lower Division Clerk). The State maintained two separate seniority lists for LDC and RLDC. The first one was called as LDC whereas the second one was called as RLDC (Redesignated Lower Division Clerk). The State maintained two separate seniority lists for LDC and RLDC. Later one was considered as a dying cadre and in the next promotional post, they were considered with the ratio of 1:1 being one from each list. 3. The subject issue came up for consideration in the case of State of West Bengal VS- Subal Chandra Das and Ors. reported in 1996 Volume-VII Supreme Court Cases page-191. In the said case Subal chandra was a Moharrir working in Collectorate in Nadia. He was re-designated as Lower Division clerk. The dispute arose with regard to the pay fixation. The Apex Court observed that once the Moharrir was redesignated as LDC and fused into the category of LDCs all became a class and Subal would be entitled to get the same scale of pay and other service benefit. Since the High Court in a writ petition directed the State to maintain 1:1 ratio between the two groups such ratio should be maintained till exhausted. The Apex Court rather upheld the High Court decision maintaining 1:1 ratio. 4. IN this backdrop let us consider the present controversy. As observed earlier, Goutam got the promotion in the post of LDC with effect from February 23, 1999 whereas Somenath was re-designated as LDC with effect from July 1, 1989 by virtue of the Memo dated January 19, 1989 appearing at page 57 of the petition. Somenath was however placed above Goutam in a combined Gradation List in the post of Upper Division Clerk. According to Goutam, he was admittedly senior to Somenath in the Gradation List of Moharrirs as per merit. He was erroneously shown as direct recruit in LDC. He was also a RLDC as on July 1, 1989 as he did not have any confirmed promotion in the post of LDC on that date. Despite service, Somenath did not appear either before the Tribunal or before us. Per contra, the learned Advocate General appearing on behalf of the State, contended that Rule 5 of the Seniority Rules determined the seniority. Goutam got the promotion as LDC with effect from February 23, 1989 when admittedly Somenath was working as Moharrir. Goutam was subsequently confirmed in the post of LDC in 1992. Per contra, the learned Advocate General appearing on behalf of the State, contended that Rule 5 of the Seniority Rules determined the seniority. Goutam got the promotion as LDC with effect from February 23, 1989 when admittedly Somenath was working as Moharrir. Goutam was subsequently confirmed in the post of LDC in 1992. Hence, he could not be considered as a Moharrir on July 1, 1989 when Somenath was admittedly a Moharrir and was re-designated as LDC being RLDC. Hence, Goutam and Somenath were differently placed on July 1, 1989 and could not be treated at par. Goutam got the promotion in the post of Upper Division clerk on November 8, 1998. Goutam was accordingly placed in the Gradation List, so was Somenath. He contended that the Memo dated November 8, 1998 appearing at page 63 showing Goutam as a qualified Moharrir on July 1, 1989 was erroneous and Goutam was not entitled to take the benefit out of it. According to the learned Advocate General, a mistaken benefit could not give any right and the State was entitled to correct its own mistake as and when surfaced. To support his contention that Goutams promotion on temporary basis once confirmed would relate back to the date of his initial promotion, the learned Advocate General relied on the decision in the case of State of Baleshwar Dass and Ors VS- Uttar Pradesh and Ors. reported in 1980 Volume-IV Supreme Court Cases Page- 226. In paragraph 33 of the said decision the Apex Court observed :- Government will ascertain from this angle whether the capacity in which posts have been held was substantive or temporary. If it is not, the further point to notice is as to whether the appointments are regular and not in violation of any rule, whether the Public Service Commissions approval has been obtained and whether probation, medical fitness etc., are complete. Once these formalities are complete, the incumbents can be taken as holding posts in substantive capacities and the entire officiating service can be considered for seniority. For other purposes they may remain temporary. 5. Once these formalities are complete, the incumbents can be taken as holding posts in substantive capacities and the entire officiating service can be considered for seniority. For other purposes they may remain temporary. 5. IF a public servant serves for a decade with distinction in a port known to be not a casual vacancy but a regular post, experimentally or otherwise kept as temporary under the time-honoured classification, can it be that his long officiation turns to ashes like a Dead Sea fruit because of a lavel and his counterpart equal in all functional respects but with ten years less of service steals a march over him because his recruitment is to a permanent vacancy? We cannot anathematize officiation unless there are reasonable differentiations and limitations. 6. The learned Advocate General lastly contended that Goutam did not raise any contemporaneous objection prior to filing of the Tribunal application being O.A. No.266 of 2010. Such belated application would create an impediment on his way to challenge the Gradation List. He further contended that even if the decision in the case of Subal Chandra Das (Supra) covered his grievance he was not entitled to such benefit because of his inordinate delay in approaching the Tribunal. On the issue of mistaken benefit he relied on the following decisions :- i) 1997 Volume-IV Supreme Court Cases Page-177 (Chandigarh Administration and Ors VS- Naurang Singh and Ors.) ii) 2004 Volume-II Calcutta High Court Notes Page-606 (India Oil Corporation Ltd. and Ors. VS- Jharna Sarkar and Ors.) iii) 2008 Volume-II Supreme Court Cases Page-229 (Union of India VS- S.R. Dhingra and Ors.) iv) 2011 Volume-VII Supreme Court Cases Page-639 (State of Madhya Pradesh VS- Narmada Bachao Andolan and Anr.) He cited the decision in the case of Rajbir Singh, HFS-II VS. State of Haryana and Anr. reported in 1996 Volume-II Supreme Court Cases Page-19 to support his contention that relief, if granted today, in favour of Goutam would create the situation complex as others would be affected by such order who were not parties to the proceeding. 7. HE lastly contended that pay could not be the sole factor to decide a post being equal to the other. In this regard he referred to the decision in the case of Sub. Inspector Rooplal and anr. VS- Lt. Governor through Chief Secretary Delhi and Ors. reported in 2000 Volume-I Supreme Court Cases page-644. 8. 7. HE lastly contended that pay could not be the sole factor to decide a post being equal to the other. In this regard he referred to the decision in the case of Sub. Inspector Rooplal and anr. VS- Lt. Governor through Chief Secretary Delhi and Ors. reported in 2000 Volume-I Supreme Court Cases page-644. 8. While giving reply Mr. Tapabrata Chakraborty, learned counsel appearing for Goutam relied on the decision of this Bench in the case of Kazi Samsul Alam and Ors. VS- The State of West Bengal and Ors. (WPST 167 of 2011) and contended that the said decision would squarely cover the present case. On the issue of delay Mr. Chakraborty contended that Goutam was not at all aggrieved until the clarification appearing at page 74 was issued by the State on October 1, 2009 as quoted (Supra). Hence, his petition before the Tribunal was not belated. He further contended that he was happy with his gradation done earlier. He felt aggrieved because of the combined gradation list published in October 2009 even if relief was granted to Goutam it would not affect anyone except Somenath who was made party and did not choose to appear despite service. He lastly contended that he was given promotion on temporary basis considering ten per cent quota from the post of Moharrir. However, there was no pay hike as by virtue of revised pay scale being introduced Goutam did not get any pay hike despite being promoted to the post of LDC. We have considered the rival contentions. We considered almost a similar controversy in the case of Kazi Samsul (Supra). We denied the benefit principally on the ground of delay. While doing so, we considered the Apex Court decision in the case of Subal Chandra Das (Supra). On a combined reading of the entire pleadings we find that the grievance of Goutam was misplaced. He rather misunderstood his promotion in the post of LDC. If we closely look to the order of promotion dated February 23, 1989 we would find that he was promoted to the post of Lower Division clerk in a scale of Rs.300-685/- on temporary basis. The moment he became the Lower Division Clerk, although a temporary one, and confirmed in the said post subsequently with effect from March 8, 1992, he would be considered as a Lower Division clerk with effect from February 23, 1989. The moment he became the Lower Division Clerk, although a temporary one, and confirmed in the said post subsequently with effect from March 8, 1992, he would be considered as a Lower Division clerk with effect from February 23, 1989. His date of joining in the cadre would be considered as February 23, 1989 while placing him in the gradation list. On July 1, 1989 he was admittedly a Lower Division Clerk whereas Somenath was a Moharrir. Somenath got the benefit of the decision of the State to merge the post of Moharrir with the Lower Division Clerk. Hence, he became at par with Goutam by joining the same cadre and remained junior to Goutam in the post of Lower Division Clerk. The High Court directed the State to maintain two separate gradation lists in the post of Lower Division clerk being LDC and RLDC and such decision got approval of the Apex Court in the case of Subal chandra Das (Supra). Hence, Goutam and Somenath became separated and placed in different gradation list in the post of Lower Division Clerk. In fact, their designati0ns were also different, although enjoying the same pay scale, being LDC and RLDC irrespectively. 9. The High Court also asked the State to consider the next promotion by maintaining ratio of 1:1. Such decision was also approved by the Apex Court in the case of Subal chandra Das (Supra). Somenath got the benefit of promotion in the post of Upper Division clerk before Goutam. On July 1, 1989 Somenath was promoted to the post of Upper Division Clerk from the quota of RLDC, so was Goutam. However, Goutams promotion was erroneous as he was not entitled to be promoted as such as he did not perform required service in the fidder post as on that date. The State corrected their mistake subsequently during pendency of this proceeding. 13. However in 2009 gradation list Somenath was shown much senior to Goutam by virtue to his promotion in the post of Upper Division clerk much before him that became the centre of controversy. It is true that Goutam never felt aggrieved so long the State did not place Somenath before him. On that score we do not find any issue of delay and the contention of the State on that score is rejected. It is true that Goutam never felt aggrieved so long the State did not place Somenath before him. On that score we do not find any issue of delay and the contention of the State on that score is rejected. We however find that the State committed a mistake by treating Goutam as a Moharrir as on July 1, 1989 although on that day he was admittedly Lower Division Clerk and confirmed in the said post with effect from March 8, 1992. If we look to the order of the Tribunal we would find that both of them joined the service in 1978, however they were placed in different gradation list in view of the decision of the State in terms of the direction of the High Court as discussed above. Their subsequent promotion was considered from two different seniority lists. Hence, their position differed. It is true, had Goutam not got promotion on February 23, 1989 he would have still been considered senior to Somenath. Such eventuality is however beyond our consideration as it would otherwise create the situation more complex. Page 63 of the petition was issued by the State due to mistake. If Goutam got any financial benefit out of such mistake the State would not be entitled to recover the same from him. However the State is well within their right to correct its own mistake as and when surfaced and the petitioner was not entitled to claim any benefit out of such mistaken act. 10. The Tribunal rightly dismissed the application that does not deserve any interference. Application fails and is hereby dismissed. There would be no order as to costs. Urgent Photostat copy will be given to the parties, if applied for.