JUDGMENT

Mr. Harsimran Singh Sethi, J. (Oral)

The present petition has been filed challenging order dated 11.10.2017 (Annexure P-5) by which, though the petitioner has been granted promotion retrospectively from the date, persons junior to the petitioner were promoted but the arrears of salary have been denied on the ground that the petitioner had not actually discharged the duties on the said promoted post.

2. Learned Senior counsel appearing on behalf of the petitioner argues that in the present case, the petitioner who was working as a Patwari was entitled for promotion to the post of Kanungo as he had already attained the eligibility for promotion to the post of Kanungo by passing the departmental examination on 25.05.2012. One Akhtar Hussain, who also passed the departmental examination along with the petitioner and was junior to the petitioner, was promoted as a Kanungo on 09.10.2012 but the petitioner was not given promotion on the ground that ACRs of the petitioner were not received by the department.

3. Aggrieved of the said action of the respondents, the petitioner filed CWP No.15466 of 2017 which was disposed of by this Court on 19.07.2017 directing the respondents to consider the claim of the petitioner for promotion to the post of Kanungo with effect from the date, his junior namely Akhtar Hussain has been promoted.

4. In compliance of the direction given by this Court, the claim of the petitioner was considered and ultimately, it was found that there was nothing against the petitioner to withhold his promotion and the petitioner was also promoted vide order dated 11.10.2017 (Annexure P-5), with effect from the date, Akhtar Hussain was promoted but with the rider that the petitioner will not been given any benefit of arrears of pay and the said promotion will be notional till the passing of the order. The order dated 11.10.2017 (Annexure P-5) is under challenge to the effect that the petitioner is also entitled for the arrears of salary from retrospective effect from the date of promotion.

5. Upon notice of motion, the respondents have conceded the fact that when person junior to the petitioner was promoted, there was no impediment in considering the claim of the petitioner but as his ACRs were not received, he was not promoted. He submits that once the petitioner has already been promoted now with retrospective effect from the date his junior was promoted along with all the benefits, the petitioner cannot claim the arrears of salary on the ground that he had not discharged the duties of the higher post as for the said period, he was actually working on feeder post-Patwari. Hence, the restriction imposed in the impugned order Annexure P-5 of only granting notional promotion with retrospective effect to the post of Kanungo is perfectly valid.

6. I have heard learned counsel for the parties and have gone through the record with their able assistance.

7. From all the facts stated hereinbefore, it transpires that when the person junior to the petitioner was promoted to the post of Kanungo in the year 2012, there was no impediment qua the promotion of the petitioner but the same was not given to the petitioner on the ground that the ACRs of the petitioner have not been received by the authority concerned. Non-receiving of the record by the Authority concerned cannot be attributed to the petitioner. Rather, once the petitioner was senior to Akhtar Hussain, it was incumbent upon the respondents to first decide the eligibility of the petitioner to get promotion before even considering the claim of a person junior to him by collecting all the material required for promotion. Once, now the respondents while passi