The existing rules violated fundamental rights by allowing junior persons to be promoted over seniors, and the State Government was directed to make necessary amendments to the rules.

B.R.GAVAI, J.

1. Petitioners, by way of present petition, challenge the judgment and order dated 06.01.1997, passed by learned Additional Commissioner, Aurangabad Division, Aurangabad, thereby dismissing appeals filed by present petitioners; and the orders of promotion issued in favour of Respondent No.5 to 14 to the post of Extension Officer (Education) in District Technical Services Class III Grade II.

2. Petitioners were initially appointed as Assistant teachers under the administration of Zilla Parishad. All the petitioners are possessing graduation degree along with degree in education. As such, petitioners are in the category of trained graduate teachers. On the basis of their seniority in the said cadre, petitioners were promoted as `Kendra Pramukh’ in the Central Schools. Subsequent to the promotion of petitioners to the post of Kendra Pramukhs, Respondents No.5 to 14 came to be promoted as Extension Officers (Education) in District Technical Services Class III Grade II. Aggrieved by the said promotion, petitioners preferred appeals before the Divisional Commissioner. Same are rejected. Hence present petition.

3. Shri Deshpande, learned Counsel for petitioners, submits that though petitioners are senior in the cadre of Assistant teachers to Respondents No.5 to 14, said respondents have been put in higher cadre and they would also be writing confidential reports of the petitioners. He, therefore, submits that it was incumbent upon Respondent Zilla Parishad to have considered the claim of the petitioners for promotion to the post of Extension Officer. According to the learned Counsel, having not done so, promotion granted in favour of respondents no.5 to 14 is liable to be set aside.

4. Shri Talekar, learned Counsel appearing on behalf of the employees who have been promoted, on the contrary, submitted that vide Government Resolution dated 14.11.1994, a separate cadre of Kendra Pramukhs has been created and that petitioners, having opted for said cadre, are now estopped from claiming promotion to the post of Extension Officer, which is exclusively available to the Assistant teachers. It is submitted by Shri Talekar that petitioners cannot blow hot and cold at the same time. It is submitted that if petitioners were interested in the post of Extension Officer (Education), they could have denied promotion to the post of Kendra Pramukh. He submitted that having accepted the post of Kendra Pramukh, petitioners are now estopped from making grievance regarding their non consideration for promotion to the post of Extension Officer (Education).

5. Shri Bankar Patil, learned Counsel appearing for Zilla Parishad, submits that in view of the clarification dated 31.01.1996, issued by the State Government, which clarified that persons holding the post of Kendra Pramukh were not eligible to be promoted as Extension Officers, the Zilla Parishad had rightly promoted Respondents No.5 to 14.

6. Learned Assistant Government Pleader also submits that in view of the Government Resolution of 1994, contention of petitioners is without basis.

7. To appreciate rival submissions, it will be necessary to refer to some statutory provisions.

Section 248 of Zilla Parishads and Panchayat Samitis Act, 1961 (hereinafter referred to as `the said Act’) enables the State Government to make Rules regulating recruitment, etc. Said Section reads thus:

248 Recruitment and conditions of service of persons serving the Zilla Parishad – Subject to the provisions of this Chapter, the State Government may make rules regulating (a) the recruitment (including reservation for Scheduled Castes and Scheduled Tribes and Backward Classes), functions and terms and conditions of service (including payment of dearness allowance and all conduct and disciplinary matters) of persons appointed to the District Technical Service (Class III), District Service (Class III) and District Service (Class IV), and

(b) the payment to be made by the Zilla Parishad towards pens