ORDER S.R. Singh, J. - The petitioner was appointed as Assistant Engineer vide order dated 4-7 1960 issued by the Chief Engineer, Local Self Government, Engineering Department, U.P Lucknow. He was promoted to the post o Executive Engineer with effect from 16-12 1986. It appears the selection committee too', up the matter of eligible candidates for promotion to the post of Superintendent Engineer in the year 1977 and after considering the matter in accordance wit relevant service rules, which provide criterion of merit for promotion to the post of Superintending Engineer, certain officer were promoted to the post of Superintending Engineer vide order dated 6-8-1977. It Further appears that the petitioner. though otherwise eligible for promotion, could not be promote along with other officers who were promote vide order dated 6-8-1977 on account of adverse entry against him pertaining to the year 1974-75 against which his representation was admittedly pending before the appropriate authority. It is not disputed before that the petitioner's representation was subsequently allowed vide order dated 10- 1978 (Annexure:3) to the writ petition) ai adverse entry was expunged and so( thereafter the petitioner was promoted to t post of Superintending Engineer vide order, dated 10-4-1979. The only controversy which requires consideration by this court is whether the petitioner, on the facts and circumstances of the case, should have been given retrospective promotion from the date his juniors were promoted vide order dated 6-8- 1977? 2. 1 have heard Sri S. C. Budhwar and Sri Ashok Bhushan, learned counsel appearing for the petitioner and Sri K. B. Mathur, learned counsel appearing for the respondents. 3. Learned counsel for the petitioner contended before me that it was only because of the adverse entry pertaining to the year 1974-75 that the petitioner could not he promoted and the said entry having been expunged. the petitioner is entitled to be given promotion with effect from the date his juniors were promoted by order dated 6-8-1977. Sri K.B. Mathur, appearing for the respondents on the other hand urged before me that the criterian for promotion being merits, the petitioner could not find place in order of merit and therefore, he could not be promoted when his juniors were promoted vide order dated 6-8-1977. He has placed reliance upon the averments made in paragraphs 14 and 17 of the counter affidavit. He has placed reliance upon the averments made in paragraphs 14 and 17 of the counter affidavit. In paragraph 14 of the counter affidavit, it is averred that the petitioner was given promotion as Superintending Engineer on the basis of the selection held in the year 1979. In the earlier selection he was rejected, hence he is only entitled for seniority as Superintending Engineer with effect from the date of his promotion in accordance with Regn. 23(6) of the U.P. Jal Nigam Service of Engineers Public Health Branch) Regulation 1978. In paragraph 17 of the counter affidavit the implication of Regn. 23(6) of the Regulations has been explained. 4. In order to appreciate the controversy. I deem it necessary to reproduce the relevant regulation upon which reliance has been placed by Sri K.B. Mathur. Accordingly. I quote the relevant regulation as below : "23(6)-The inter se seniority of persons promoted to the post of Executive Engineer, Superintending Engineer or Additional Chief Engineer shall be the same as it was in the substantive post held by them at the time of promotion. Provided that persons who were -not promoted on account of unsuitability shall not. on promotion in any subsequent selection, reckon the seniority and their seniority in the post to which they are subsequently promoted hall be fixed below those who are promoted earlier."` 5. In proviso to Regn. 23(6) of the Regulations contemplate that persons who were not promoted on account of unsuitability shall not, on promotion in any subsequent selection reckon the seniority and their seniority in the post to which they are subsequently promoted shall be fixed below t hose who are promoted earlier. The proviso to my mind does not contemplate the situation where it person is not promoted on account of adverse entry which is subsequently expunged. If it person is not promoted on account of unsuitability and unsuitability is allowed to remain and he is promoted subsequently on account of the consideration of merit subsequent to the said adverse entry, then of course the proviso aforesaid may be attracted and such person may not be entitled to reckon his seniority with effect from the date his juniors were promoted earlier. In the instant case, on the facts and circumstances of the case. In the instant case, on the facts and circumstances of the case. I am of the opinion that the petitioner could not he promoted in 1977 only on account of adverse entry against him pertaining to the year 1974-75 which admittedly has been expunged subsequently and soon after the expunction of the adverse entry, the petitioner was admittedly given promotion. Any further interpretation of the proviso to Regn.23 (6) may render it as violative of Article 14 of the Constitution in that it would tantamount to denial of treatment to equally circumstanced officers. The adverse entry of 1974-75 having been expunged shall he deemed as non est for all purposes and it would he no deemed even on the date when earlier Selection Committee took up the matter for promotion in 1977. Accordingly. I am of the considered view that the proviso to Regn. 23(6) of the Regulation is not attracted on the facts and circumstances of the case. 6. In U.P. State Electricity Board v. Kharak Singh, 1990 (Supp) SCC 4, a similar situation was under consideration before the Supreme Court. In that case Sri Kharak Singh was appointed as Junior Engineer Ordinary Grade, on which post he was confirmed on April 4, 1977. The Chief Engineer promoted 69 Junior Engineers, of them 27 persons were junior to Kharak Singh. This promotion was made with effect from 1-4-1976 in the selection grade. But Kharak Singh was not promoted due to adverse entries recorded in his service book. It appears that on 7th September, 1977 some more junior Engineers were further promoted by the Chief Engineer in selection grade and the case of Kharak Singh was differed. On 14-2-1978, 37 engineers including engineers junior to Kharak Singh were promoted to the post of Assistant Engineers, but Kharak Singh was not considered for promotion. He made an application before the U.P. Public Service Tribunal assailing the refusal to consider his case for promotion to the post of Junior Engineer in the selection grade as well as further promotion to the post of Assistant Engineer, contending, inter alia, that all the adverse reports for the period May 23, l972 to July 23, 1973 in the year of 1972-73 and from July 24, 1973 to November 30, 1973. against which he filed representations, were expunged by an order dated May 5, 1979 passed by the Chief Engineer. against which he filed representations, were expunged by an order dated May 5, 1979 passed by the Chief Engineer. It appears that the claim petition was allowed by the Tribunal and Kharak Singh was directed to be promoted with effect from the date his juniors were promoted. The matter went up to the Supreme Court and the Supreme Court was pleased to hold as below: "All the adverse remarks, on the basis of which the case of respondent No. I herein for promotion in the selection grade and further promotion to the post of Assistant Engineer was left over, have been expunged sometime in the year 1979 i.e. May -5, 1979 by the Chief Engineer. The said respondent 1. therefore, is entitled to be considered from the date when his case was first considered by the Selection Committee. As such the Tribunal has rightly come to the findings as regards the promotion to be given to respondent 1 in 1977 when his juniors were considered for promotion to the selection grade w. e. f. April 1. 1976 and secondly when his juniors were further promoted some time in February 14, 1978 to the post of Assistant Engineer." 7. The facts of the present case are more or less similar to the facts of the case of Kharak Singh, (1990 (Supp) SCC 4) (Supra) It is true that the Supreme Court was no concerned with rule similar to Regn. 23(6) o the Regulations, but as explained above proviso to Regn. 23(6) of the Regulations to my mind would not be attracted and the petitioner would be entitled to reckon hi seniority with effect from the date his junior were promoted by order dated 6-8-197 Annexure-l to the writ petition). 8. No other points have been raised/urge, before me by the learned counsel for the parties. 9. In view of the above discussion the writ petition succeeds and is allowed accordingly. The respondents are directed to reckon the petitioner's seniority i accordance with Regn. 21(3) of the Regulations and treat him to have bee promoted with effect from the date when h. juniors were promoted by order dated 6 1977 and to give him all consequent benefits. 10. Parties shall bear their own costs.