JUDGMENT F. I. REBELLO, J. :- Rule. Heard forthwith. 2. Petitioner joined the services of respondent No. 3 as a Junior Accounts Officer by nomination (direct recruitment) w.e.f. 16-5-1997. The petitioner thereafter was promoted to the post of Assistant Accounts Officer by order of 23-10-2003. The order clearly sets out that the petitioner had to pass a departmental examination within two years. Admittedly, the petitioner did not pass the departmental examination within two years from the date of his promotion. The petitioner consequently was reverted to the original post by order of 10-1-2008 with retrospective effect. The petitioner, however, has been again promoted to the said post. 3. By this petition what the petitioner prays is that he should be given his promotion from his initial date of promotion i.e. w.e.f. 23-10-2003 as he has passed the departmental examination within four attempts. The reliefs sought in the petition are to quash the order dated 10-1-2008 by a writ of certiorari and also by issuing a writ of mandamus direct the respondents not to change the seniority of the petitioner and to keep the seniority intact in the cadre of Assistant Accounts Officer from the date of his initial promotion i.e. w.e.f. 23-10-2003. 4. Learned Counsel also points out that by the order dated 10-1-2008, apart from reversion, the salary for the period between his initial date of promotion and subsequent regular promotion, i.e. up to 11-11-2005, is sought to be recovered. 5. According to the petitioner, at the time of consideration for appointment to the post of Junior Accounts Officer, he was holding a degree of M. Com. and as per the Maharashtra Zilla Parishad District Services (Recruitment) Rules, 1967, appointment to the post of Junior Accounts Officer is to be made either by direct recruitment or by promotion. The petitioner was appointed by the process of direct recruitment. The Recruitment Rules further provide that Junior Accounts Officers, if they satisfactorily complete service of three years, are eligible for promotion to the post of Assistant Accounts Officer, Grade-I under the Zilla Parishad District Services Class-III (Accounts) Rules. The petitioner was appointed by the process of direct recruitment. The Recruitment Rules further provide that Junior Accounts Officers, if they satisfactorily complete service of three years, are eligible for promotion to the post of Assistant Accounts Officer, Grade-I under the Zilla Parishad District Services Class-III (Accounts) Rules. According to the petitioner, as he has completed three years of service as Junior Accounts Officer, he was promoted to the post of Assistant Accounts Officer by order dated 23-10'2003 on a condition that he shall have to pass the departmental examination, namely Maharashtra Zilla Parishad Finance and Accounts Services Class-3 Examination (hereinafter referred to as the Departmental Examination) within a period of two years from the date of the said promotion. It is the further contention Of the petitioner that since then he has been working and discharging his duties as Assistant Accounts Officer. 6. The petitioner thereafter appeared for the Departmental Examination (part-I) held by the Maharashtra Public Service Commission (hereinafter to be referred to as M.P.S.C.) in October, 2004 and successfully passed the same and the result 'thereof was declared by the M.P.S.C. on 20th April, 2005. The petitioner thereafter appeared for Part-II of the Departmental Examination held in the month of November, 2005 and successfully passed the said examination, the result of which came to be declared on 3rd June, 2006. It may be noted that the petitioner has given details as regards the various attempts he has made for passing the examination. The first attempt was 18th May, 2004 to 21st May, 2004; the second attempt was 18-10-2004 to 21-102004; the third attempt was 26-4-2005 to 29-4-2005 and the fourth attempt was 8-11-2005 to 11-11-2005. In these four attempts the petitioner has passed the said examination. 7. The submission of-the petitioner is that the departmental examination ordinarily used to be held in the month of October and if the said examination would have been held in October, 2005, the petitioner could have passed the said examination. However, the examination was held in November, 2005 and as such it was not the fault of the petitioner in not passing the examination within two years as per the recruitment rules and in terms of the promotion order dated 2310-2003. However, the examination was held in November, 2005 and as such it was not the fault of the petitioner in not passing the examination within two years as per the recruitment rules and in terms of the promotion order dated 2310-2003. According to the petitioner, as he had passed the examination within four attempts, he was under bona fide impression that there will be no change in his seniority in the cadre of Assistant Accounts Officers. The petitioner sets out that he was given to understand that respondent No.3 had taken steps to change the seniority list in the cadre of Assistant Accounts Officers on the ground that some of the officers, including the petitioner, did not pass the departmental examination within a period of two years as stipulated in their orders of promotion. Petitioner was reverted but again promoted as he had passed the departmental examination. 8. Apprehending reversion and or change in their seniority, two other Assistant Accounts Officers, namely D. D. Rathod and V. K. Barbind represented that they were eligible to continue on the said promotional post and consequently to keep their seniority intact in the said cadre as they had crossed the age of 45 years. The petitioner himself has pointed out that these two persons were exempted from passing the departmental examination on account of their completion of 45 years of age, which is in terms of the Rules. Petitioner has made various representations in the matter of his seniority as also his reversion. The respondent No.3 has not acted upon the representations. 9. The Draft seniority of Assistant Accounts Officers, as on 1-1-2007 under Zilla Parishad, Parbhani, came to be prepared by the Chief Accounts and Finance Officer of Zilla Parishad and after calling necessary objections and carrying out necessary corrections, a final seniority list in the said cadre came to be published on 5-2-2007. In spite of the seniority list, the respondent No.3, by order dated 10-1-2008, reverted the petitioner from the post of Assistant Accounts Officer to the post of Junior Accounts Officers with retrospective effect, i.e. w.e.f. 23-10-2005 on the ground that the petitioner had not passed the examination within two years as per the condition so stipulated in the order of promotion. The said order also shows that the petitioner has been promoted from the post of Junior Accounts Officer to the post of Assistant Accounts Officer w.e.f. 11-11-2005. The said order also shows that the petitioner has been promoted from the post of Junior Accounts Officer to the post of Assistant Accounts Officer w.e.f. 11-11-2005. The respondent No.3 further directed that recovery be made, of the excess salary and allowances paid to the petitioner on the promotional post, for the period 23-10-2005 to 11-11-2005. The petitioner has relied on a communication dated 30th April, 1990 as also 12-2-1993 to contend that the seniority for the post of Assistant Accounts Officer should be protected. 10. A reply has been filed by the respondent No.3 by Dadasaheb Subrao Chavan, Senior Accounts Officer, Zilla Parishad, Parbhani. It is pointed out that as per the promotion order, the petitioner had to pass M.F.A.S. examination within a period of two years, i.e. upto 23-10-2005. The petitioner did not pass the said examination though the M.P.S.C. had conducted the said examination thrice. Placing reliance on the Government Resolution dated 30-4-1990, Column No.2 thereof, it is mentioned that seniority has to be considered and list prepared of the candidates, who have passed the examination after the prescribed period. It is also pointed out that Government Resolution dated 22-2-1993 Column B, is regarding passing of M.F.A.S. examination to the Junior Accounts Officer, but the petitioner is Assistant Accounts Officer and, therefore, the same is not applicable to the petitioner. The promotion of Shri D. D. Rathod and V. K. Barbind has been explained. As they had crossed the age of 45 years, they were exempted from passing the examination. As per the Government Resolution dated 29-8-2006, final seniority list of Assistant Accounts Officer was published on 21-1-2004 and at that time, those who were working on the post of Assistant Accounts Officer, are covered in Column No. 8 of the said list. Details of those, who either passed the examination, failed or have been given relaxation, are given. The petitioner's name appeared at Serial No. 460, but he is not exempted from giving the examination. It is, therefore, submitted that the respondents have acted in terms of the Rules and the Government Resolutions, referred to above, and accordingly the petition should be dismissed. 11. In our opinion, there are three distinct issues which are to be decided in this case. Firstly, whether the respondents were right in reverting the petitioner on the ground that the petitioner did not pass the examination within two years. 11. In our opinion, there are three distinct issues which are to be decided in this case. Firstly, whether the respondents were right in reverting the petitioner on the ground that the petitioner did not pass the examination within two years. Secondly, whether the services rendered by the petitioner, for the period when he was firstly promoted and till passing of the examination, should have been considered for the purposes of computing the seniority; and thirdly, having worked in the post, whether the respondents are right in recovering the amount of difference of pay between post of Junior Accounts Officer and Assistant Accounts Officer. 12. Insofar as first issue is concerned, recruitment to the post of Assistant Accounts Officer/Divisional Accountant has to be made in terms of Rule 5, Appendix XI of the Recruitment Rules of 1967. The relevant recruitment rule reads as under : "Appointment shall be made by promotion of Deputy Accountants who have worked in District Service (Class III) (Accounts), Grade II for a continuous period of not less than two years and have passed the Maharashtra Finance and Accounts Service, Class III, Examination or any other equivalent examination: Provided that if there be no person who had passed the said examination, promotion may be made from amongst those who have passed the Deputy Accountant's or an equivalent examination on the condition that he shall pass the said examination within two years from the date of his promotion or from the date he is held eligible for appearing in the said examination whichever is later, failing which he shall be liable to be reverted to the lower post." It thus clear in the event qualified candidates are not available, promotion can be made from the post of Junior Accounts Officer/Deputy Accountant, provided such candidates pass the examination within two years from the date of his promotion. In the present case, we are not concerned w1th the later part of the proviso. There is no provision in the Rules, empowering relaxation or waiver of passing the examination within two years. In other words, therefore, the expression "shall" has to be read as mandatory. The promotion order itself was conditional that the promotion was subject to the petitioner's passing the examination within two years. The petitioner failed to pass the examination and as such the petitioner was not eligible to continue to hold the post. In other words, therefore, the expression "shall" has to be read as mandatory. The promotion order itself was conditional that the promotion was subject to the petitioner's passing the examination within two years. The petitioner failed to pass the examination and as such the petitioner was not eligible to continue to hold the post. The contention that the respondents did not act on the same immediately, is of no consequence as there must be a right, which the petitioner had, to continue in the post. The respondents, therefore, were right in reverting the petitioner to his substantive post of Junior Accounts Officer. In our opinion, therefore, the action on the part of the respondent No. 3 cannot be faulted for reverting the petitioner as he failed to pass the examination within the prescribed period. The promotion was conditional to the petitioner passing the examination in terms of the Rules. The petitioner passed the departmental examination in November of 2005. The respondents themselves promoted the petitioner w.e.f. 11-11-2005. Admittedly, this is a fresh promotion based on the Recruitment Rules. The petitioner was reverted to the post of Junior Accounts Officer w.e.f. 23-10-2005. He has again been promoted to the post of Assistant Accounts Officer on 11-112005. 13. Considering the subsequent promotion the petitioner is entitled to protection of his past service in the post. The petitioner relies upon the communication dated 30th April, 1990. This is a communication dealing with certain issues raised by the Union in the matter of guidelines for the purposes of granting promotion to the post of Divisional Accountant (Assistant Accounts Officer). Point No. 1 is in respect of non-a vailability of the candidates, who have passed the departmental examination. Deputy Accountants who had completed 45 years of age and those who had been exempted by the Divisional Commissioner, were to be promoted according to their seniority. This is in terms of the recruitment rules. Point No.2 pertains to preparation of consolidated inter se seniority list when there are candidates who have passed the examination and those who have completed 45 years of age. This does not deal with the issue in the case like the petitioner where he has been reverted to his original post having not passed the examination. Point No.2 pertains to preparation of consolidated inter se seniority list when there are candidates who have passed the examination and those who have completed 45 years of age. This does not deal with the issue in the case like the petitioner where he has been reverted to his original post having not passed the examination. Insofar as the communication of 12-2-1993 is concerned, it pertains to clarification to the preparation of the consolidated inter se seniority of the employees who have passed the examination and the employees on the post of Junior Accounts Officer, who have completed 45 years of age. This again does not deal with the issue, with which we are concerned. The communication of 12-2-1993 is again in the matter of consolidated inter se seniority list. It again deals with those who have passed the examination and those who have crossed the age of 45 years. As seen earlier, this is regarding interim seniority list and not final seniority list. The law in the matter of inter se seniority is clear. In the event promotion is conditional and subject to a candidate fulfilling certain condition, and if such candidate does not fulfil the condition as prescribed, it cannot be said that the appointment/promotion given to such candidate was regular and that he is entitled, on account of subsequent events, to have this period counted. It is only service which is regular which can be counted for the purpose of seniority. Considering the rule of promotion, it is only in the event candidates, who have passed departmental examination are not available; as also candidates who have completed 45 years of their age and who are exempted from passing the examination are not available, the other candidates are considered for promotion. However, the Rule which we have quoted earlier sets out that such promotee must pass the examination within two years. If they do not pass the examination, they have no right to hold the post as promotion was conditional. Such period of service, therefore, cannot be counted as otherwise, it would amount to depriving those candidates, who have passed the examination, of their right to seniority visa-vis those, who do not pass the examination within the stipulated period of two years. 14. The submission of the petitioner that in terms of the communication dated 12-2-1993, a candidate has altogether four attempts to pass the examination is misplaced. 14. The submission of the petitioner that in terms of the communication dated 12-2-1993, a candidate has altogether four attempts to pass the examination is misplaced. This is only for the purpose of giving an opportunity to a candidate to appear for the examination and pass the examination within four attempts or additional attempts if permitted. This cannot be construed as extending the period, provided in the Rules for passing the examination and protecting to the promotees. These are purely administrative instructions and cannot override the Rules. In our opinion, therefore, the petitioner is entitled to have his seniority in the post of Assistant Accounts Officer only on regular promotion being made on the passing the examination. If the petitioner had passed examination within two years then the service from the first day of promotion could have been counted for the purpose of seniority. As the petitioner did not pass the examination within two years, that service cannot be counted for the purpose of counting his seniority in the promotion post. 15. The next issue which arises is in respect of recovery of the salary for the period for which the petitioner had no right to hold on to the post without passing the examination. In our opinion, once the petitioner was allowed to hold the post and made to work in the post, the respondents are estopped from recovering the salary for the said period. The petitioner, having worked and rendered the services, was liable to be paid the salary for the said period. We make it clear that we are not deciding the issue as to fixation of the petitioner's salary on he being regularly promoted to the post of Assistant Accounts Officer because that would be an independent issue. The respondents are, therefore, directed not to make recovery from the salary of the petitioner for the period for which he was not eligible to hold the post of Assistant Accounts Officer but still was allowed to work during that period on the said post. 16. Lastly, the petitioner submits that he should be given date of seniority not from the date of gazette notification on his regular promotion, but from the date of passing of the examination. In our opinion, it is open to the petitioner to make a representation to the respondent No.3 and the respondent No.3 to consider the; same according to law. 17. In our opinion, it is open to the petitioner to make a representation to the respondent No.3 and the respondent No.3 to consider the; same according to law. 17. For the aforesaid reasons, Rule is made partly absolute insofar as recovery of salary from the petitioner, as earlier set out and making a representation by the petitioner in the matter of seniority, as aforesaid. In the circumstances, there will be no order as to costs. Order accordingly.