JUDGMENT SHRIHARI P. DAVARE, J. ( 1 ) PERUSED. Heard learned counsel for the parties. ( 2 ) THE present petition is directed against the judgment and order dated 31 -8-2006, in Appeal No. DB/appeal-Cell/7/2006, rendered by learned Additional commissioner, Aurangabad and order dated 1-6-2005, passed by the Chief executive Officer, Zilla Parishad, Jalna, under Articles 14, 16 and 226 of the constitution of India. ( 3 ) IT is the case of the petitioner that, he was appointed as a Junior assistant on the establishment of Zilla Parishad, Jalna on 3-3-1982 and due to the passage of time and by virtue of seniority and merit, came to be promoted as senior. Assistant, vide order dated 1-8-1996. ( 4 ) IT is the contention of the petitioner that, for the first time, the State of maharashtra framed rules under the provisions of Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, called as Post Recruitment Examination Rules (hereinafter referred to as the said Rules for short), copy of which is produced at exhibit A (page 20 of paper book) and made the same applicable w. e. f. 20-1-1986 to all the Zilla Parishad employees. Under the said Rules, the Government has made compulsory to pass post recruitment examination and those Zilla parishad servants who would not pass the said examination, would suffer the consequences as contemplated in the said Rule, under clause (4), such as (a) he would not be confirmed in service on the post held by him, (b) No future increment shall be released, and (c) annual grade will be released from the date of passing of the examination and he would be provided the benefit of continuity including annual grade increments earlier withheld except the benefit of arrears of that period. ( 5 ) SUBSEQUENTLY, the State Government suitably amended the said Rules of 1986 in May, 1989 and revised the said Rules which were called as Post recruitment Examination (Revised) Rules, 1999, copy of which is produced at exhibit 'b' Colly (page 26 ). Under clause (6), the benefit of exemption was granted to pass the post recruitment examination on completion of age of 45 years. Under clause (6), the benefit of exemption was granted to pass the post recruitment examination on completion of age of 45 years. Under Rule (3) of the Revised Rules of 1999, a specific provision was made that a Zilla Parishad servant, who has not passed the said post recruitment examination within three chances in four years, such employee would lose his seniority and his junior in case passes the said examination, his name would be above in the seniority even though the said employee was senior but not passed the compulsory examination. In substance, if a Zilla Parishad servant who has not passed the said post recruitment examination within three chances in four years, said employee would lose seniority and his junior in case passed the said examination, in seniority his name would be above the employee, though senior, but not passed the compulsory examination. ( 6 ) THE petitioner submits that, the respondent No. 2 prepared and published the provisional seniority list as on 1-1-2000, 1-1-2001, 1-1-2002 and 1-1-2003 through letter dated 6-11-2003 of Senior Assistant Cadre and called objections, if any, within 15 days from the date of publication thereof. Since the petitioner has passed the post-recruitment examination in 1990 itself, but the persons namely R. S. Sakunde, R. P. Mulate, U. S. Bhalerao, Shaikh Abdulla Shaikh Hasan and S. B. Pungale i. e. respondent Nos. 3 to 7 though were senior in the cadre of Senior assistant, had not passed post recruitment examination prior to petitioner, but still their names in the seniority of Senior Assistant Cadre were not disturbed, the petitioner raised objection in that respect. In fact the Divisional Commissioner, aurangabad had given directions to all Zilla Parishads to effectively comply with the post examination Rules, but despite that, the legitimate claim of the petitioner, even though he had passed the post-recruitment examination, was not considered. ( 7 ) THE petitioner also contends that, a clarification was sought by divisional Commissioner, Amravati on certain points with Rural Development department, to resolve the problems created about giving proper fitment in seniority and subsequent promotion to those who have passed recruitment examination. In response, the Government issued clarification letter dated 30-4-2004 (copy thereof is produced at Exhibit 'd' Colly - page 36) and gave the clarification on every point. The petitioner further submits that, the respondent no. In response, the Government issued clarification letter dated 30-4-2004 (copy thereof is produced at Exhibit 'd' Colly - page 36) and gave the clarification on every point. The petitioner further submits that, the respondent no. 2, by letter dated 22-9-2005 sent to Government, sought more clarification about compliance of post-recruitment examination Rules of 1999. Accordingly rural Development Department issued letter dated 10-5-2006 (copy thereof is produced at Exhibit E- page 59) and gave clarification on each and every point and thereby the Government upheld the directions given earlier, such as a person who has not passed post recruitment examination in three chances within four years, he would lose his seniority and similarly the person though junior, who passed post recruitment examination to his senior in the cadre, he would be given fitment in seniority above to senior who has not passed post recruitment examination. ( 8 ) ON the aforesaid background, when the respondent No. 2 failed to issue promotion order to the petitioner on the basis or passing post recruitment examination in 1990 and giving proper fitment in seniority, the petitioner preferred appeal under Rules 13 and 14 of the Maharashtra Zilla Parishad District services (Discipline and Appeal) Rules, 1964 before the learned Commissioner, aurangabad and requested to issue directions in accordance with above referred letters dated 30-4-2004 and 22-9-2005 (produced at Exhibits D and E respectively ). However, the learned Additional Commissioner rejected the appeal on 31-8-2006. According to the petitioner, the learned Additional Commissioner wrongly interpreted the Post Recruitment Examination (Revised) Rules and held that the flow of benefits shall be given from the date of amendment i. e. 24-5-1999 and prior to this amendment, if any Zilla Parishad employee, though passed the post recruitment examination as per the Post Recruitment Examination Rules, the benefit would be provided from 24-5-1999 though such person affected and denied promotion earlier. ( 9 ) IN fact it is the case of the petitioner that he has passed the Post recruitment Examination in 1990 and, therefore, his right to promotion and fitment in seniority shall take place from the date of passing of the said examination i. e. from 15-10-1990. However, the learned Commissioner has not looked into the spirit behind making the said examination compulsory to Zilla parishad employees. However, the learned Commissioner has not looked into the spirit behind making the said examination compulsory to Zilla parishad employees. Accordingly, the learned Additional Commissioner denied the claim of the petitioner, contending that the order passed by the Chief executive Officer on 1-6-2005 was just and proper and copy of the said order dated 31-8-2006 passed by the learned Additional Commissioner is annexed at exhibit F (Page 60), which is impugned in the present Writ Petition. ( 10 ) THE learned counsel for the petitioner canvassed that while deciding the appeal by the learned Additional Commissioner and passing the impugned order dated 31-8-2006, he ignored the Post Recruitment Examination Rules, 1986 and benefits provided thereunder as well as he did not act upon the letters dated 30-5-2004 and 10-5-2006 and hence, the learned counsel submitted that the impugned order deserves to be quashed and set aside. ( 11 ) THE respondent No. 2 opposed the present petition and filed affidavit-in-reply which is sworn in by Shri Hemchandra Jadhav, Deputy E. O. (General), zilla Parishad, Jalna, and thereby denied the averments and contentions made by the petitioner in the present petition unless admitted therein specifically. The learned counsel for the respondent No. 2 submitted that there are no such directions of Government to maintain separate seniority list of the candidates who have passed the post recruitment examination. He further submitted that, as per the seniority, existing recruitment rules and as per the recommendation of the departmental promotion committee, the promotion is being effected on the post of Office Superintendent. The learned counsel for respondent No. 2 also canvassed that, the Post Recruitment Examination Rules came into existence in 1986 and were revised in the year 1999 and were called as Maharashtra Zilla parishad District Services. Post Recruitment Examination (Revised) Rules, 1999, which came into effect from 24-5-1999, but the said amended rules have not been given retrospective effect. ( 12 ) THE learned counsel for respondent No. 2 further argued that although as per clause No. 4 of the said Revised Rules, the candidate who has not passed the said examination within the given period, then he would suffer the consequences, but the benefit of exemption is being granted to such employees who have completed 45 years of age, from passing the said post recruitment examination or other examination as determined by the Government. He further pointed out that, by way of Rule 3 of the Revised Rules, 1999, the sub-rule (3) of rule 5 of the Post Recruitment Examination Rules came to be amended and as per amended Rules, it is specifically mentioned that the Zilla Parishad servant, who has not passed the said post recruitment examination within three chances in four years, he would lose his seniority and his junior in case passed the said examination, in seniority, his name would be above the employee, though senior, but not passed the compulsory examination. Hence, the learned counsel further submitted that although the petitioner has passed the post recruitment examination within time, but as per Rule 3 of the Post Recruitment Examination (Revised) Rules, 1999 and as per the sub-rule (3) of Rule 5 of the Post recruitment Examination Rules, which is amended and came into force from 24-5-1999, no any change can be made in the seniority list maintained by the respondent No. 2 prior to 24-5-1999 and, therefore, it is submitted that, order passed by the respondent No. 2 on 1-6-2005 is legal and proper and there is no illegality therein and requires no interference therein. ( 13 ) AS regards the seniority of respondent Nos. 3 to 7 is concerned, it is submitted that, those persons have been exempted from passing the post recruitment examination as they have completed their age of 45 years respectively. Hence, since the Government Resolution dated 24-5-1999 has not given any retrospective effect, the seniority list dated 1-1-2000, 1-1-2001 and 1-1-2003 came to be finalised and as per the seniority list, the promotions are being effected. ( 14 ) AS regards the letter dated 30-4-2004, the learned counsel for respondent No. 2 submitted that the said letter is addressed to Divisional commissioner, Aurangabad and not to respondent No. 2 and, therefore, there is no question to act upon the said letter. However, as regards the another letter dated 10-5-2006, it is submitted that the respondent No. 2 is acting upon the said letter. ( 15 ) IN the circumstances, the learned counsel submits that the learned additional Commissioner has rightly rejected the appeal preferred by the petitioner and there is no illegality in the impugned order dated 31-8-2006 and submitted that no interference therein is warranted under the writ jurisdiction. ( 15 ) IN the circumstances, the learned counsel submits that the learned additional Commissioner has rightly rejected the appeal preferred by the petitioner and there is no illegality in the impugned order dated 31-8-2006 and submitted that no interference therein is warranted under the writ jurisdiction. ( 16 ) WE have perused the present petition and its annexures as well as perused the Post Recruitment Examination Rules of 1986 and also perused the amended and revised rules of 1999 and the clarification issued by the Under secretary to Government of Maharashtra by letter dated 30-4-2004 as well as perused the another clarification issued by the Desk Officer, Government of maharashtra by way of letter dated 10-5-2006 and also perused the impugned order passed by learned Additional Commissioner, Aurangabad Division, aurangabad on 31-8-2006 (Exhibit F) as well as considered the submissions advanced by learned respective counsel for the parties anxiously. ( 17 ) AT the outset, it is to be borne in mind that the Post Recruitment examination Rules, which were made applicable on 20-1-1986 to all Zilla parishad employees, the Government has made compulsory to pass post recruitment examination by the Zilla Parishad employees, and employees who would not pass the said examination, would suffer the consequences as contemplated under the said rules. Subsequently, the said rules came to be amended in May, 1999 and the said revised rules came into effect from 24-5-1999 and thereby it was prescribed that Zilla Parishad servants has to pass the said examination in three chances and that too within four years and clause 4 of the said Rules prescribes that the Zilla Parishad servants, who would not pass the said examination which is made compulsory, would suffer the consequences, such as, (a) he would not be confirmed in the service on the post; (b) no future increment would be released and (c) annual grade increment would be released from the date of passing the examination and would be provided the benefit of continuity including annual grade increment either withheld except the benefit of arrears of that period. According to clause 6, the benefit of exemption of the said examination was granted to the Zilla Parishad servants, who complete 45 years of age. According to clause 6, the benefit of exemption of the said examination was granted to the Zilla Parishad servants, who complete 45 years of age. Moreover, under Revised Rules of 1999, under Rule 3, a specific provision has been made contending that if a Zilla Parishad servant has not passed the said post recruitment examination within four years, such employee would lose his seniority and his junior, in case passed the said examination, in seniority his name would be above the employee though senior but not passed the compulsory examination. ( 18 ) ON this background, the contention of petitioner bears substance, since he has passed the post recruitment examination in 1990, but the respondent No. 2 has failed to give proper fitment to petitioner ranking above the person i. e. respondent Nos. 3 to 7, who have not passed the post recruitment examination in the cadre of Senior Assistant and his name was pushed down, denying the benefit of post recruitment examination passed by him and denying the benefit flowing through the said amended Rules of 1999. Admittedly, the respondent Nos. 3 to 7 have not passed the said post recruitment examination and they attained the age of 45 years and their names in the seniority in the cadre of Senior Assistant were kept above the petitioner although the petitioner has passed the post-recruitment examination. ( 19 ) PERTINENTLY, the petitioner has passed the post-recruitment examination in 1990 itself and considering the explanation given by the Under Secretary, government of Maharashtra, by letter dated 30-4-2004 (Exhibit D) and more particularly clause No. 3 thereof, and also considering the clarification given by the Desk Officer vide letter dated 10-5-2006 (Exhibit E), the petitioner is required to be given the seniority over and above the respondent Nos. 3 to 7. ( 20 ) HAVING the comprehensive view of the matter and also after considering the impugned order dated 31-8-2006, passed by the learned additional Commissioner (Exhibit F) and considering the rival contentions/submissions advanced by learned counsel for petitioner and we have no hesitation to come to conclusion that the order dated 1-6-2005 passed by the respondent No. 2 and the impugned order dated 31-8-2006, passed by learned additional Commissioner at Exhibit F has been passed erroneously and same deserve to be quashed and set aside in the present petition. ( 21 ) IN the result, we are of the view that this is a fit case to exercise the extraordinary jurisdiction under Article 226 of the Constitution of India and, therefore, we allow the present petition in terms of prayer clause (B) thereof and the impugned judgment and order dated 31/8/2006 passed by learned Additional commissioner, Aurangabad in Appeal No. DB/cell/appeal/7/2006 and the order dated 1/6/2005, passed by the Chief Executive Officer, Zilla Parishad, jalna are quashed and set aside. Rule made absolute in above terms. No order as to costs. Petition allowed.