IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1083 of 2009 1. BHARAT SANCHAR NIGAM LIMITED, through the Chief General Manager, Bihar Telecom Circle, BSNL, Maghdoot Bhawan, G.P.O. Campus, Patna-1. 2. The Chief General Manager, Telecom Circle, BSNL, Meghdoot Bhawan, G.P.O. Campus, Patna-1. 3. The Principal General Manager, Patna Telecom District, Patna Telephone, R.Block, Patna-1. ……………….Respondents/ Appellants. Versus 1. RABINDRA PRASAD SINGH, son of late Jagdish Prasad, resident of village Khaira, P.O. Murgiachak, P.S. Harnaut, District- Nalanda. ………………..Petitioner- Respondent. 2. The Union of India through Ministry, Telecom, Sanchar Bhawan, New Delhi. 3. The Director General, Telecom, Communication, Sanchar Bhawan, New Delhi. ……………………….Respondent- Respondent. ----------- 16 08.03.2011 The present L.P.A. arises out of an order dated 11.12.2006 passed in C.W.J.C. No.6150 of 2005. The petitioner Rabindra Prasad Singh, who is respondent herein has filed the writ application against the action of the respondents, appellants herein in directing the respondents to forfeit the previous experience rendered by the petitioner, respondent herein in Gujrat Telecom Circle as Phone Inspector. The main grievance of the petitioner, respondent herein is that his case was not considered for promotion to the post of Junior Telecom Officer from the post of Phone Inspector on the ground that he has been transferred to Bharat Sanchar Nigam Limited, Bihar Telecom Circle on his own request and therefore he has to forgo his previous service rendered in Gujrat Telecom Circle. However, the learned Single Judge has not agreed with the said contention of the respondents, appellants herein and disposed of the writ application with a direction to the appellant’s 2 department to take into account the service rendered by the writ petitioner, respondent herein, as Phone Inspector in Gujrat Telecom Circle for the purpose of his promotion and thereafter consider his case for promotion in accordance with law and three months time from the date of receipt/ production of a copy of the order was also granted for such consideration. Being aggrieved by such direction the present L.P.A. has been filed. Learned Standing Counsel appearing on behalf of the appellants has contended before us that in view of the fact that the writ petitioner, respondent herein has been transferred on his own request from Gujrat Telecom Circle to Bihar Telecom Circle he has to forgo his previous service in the matter of consideration of his promotion. Learned counsel for the appellants has relied upon the rules as contained in Chapter-II, Transfers and Posting, General Rules. He has further contended that as per sub Rule 4 of Rule 38 of the said Rules, the employee has to forgo the special privilege to which an official may be entitled by virtue of his position in the gradation list of the unit from which he is transferred will, ordinarily, be forfeited on his transfer to a new gradation list. Relying upon the said rule learned counsel has vehemently contended that the writ petitioner, respondent herein, is not entitled for any promotion without forgoing the previous service rendered in Gujrat Telecom Circle. We are also had the occasion to go through and peruse Sub. Rule 4 of Rule 38 of the Transfers and Postings, General 3 Rules which is extracted hereinbelow:- “A permanent official transferred from one unit to another will retain his lien in the old unit until he can be accommodated in the new unit according to his position in the new unit. He will not, however, have any claim to go back to his old unit even though he holds his lien there. A declaration to the effect that he accepts the seniority on transfer in accordance with this rule, and that, he will not have any claim to go back to the old unit, should be obtained before any official is transferred under this rule. Any special privilege to which an official may be entitled by virtue of his position in the gradation list of the unit from which he is transferred will, ordinarily, be forfeited on his transfer to a new gradation list.” However, it is very pertinent to mentioned here that the special privilege has not been defined in any rules and in absence of any rules being placed before us by the learned Standing counsel, we are of the opinion that such contention of forgoing the previous service cannot be sustained. We are of the opinion that special privilege cannot be co-related to the service condition for promotion to an employee as it is not a case where the writ petitioner, respondent herein, has been transferred from the different department to Bihar Telecom Circle. Admittedly, fact remains that the writ petitioner, respondent herein, belongs to the department of Bharat Sanchar Nigam Limited and he worked at Gujrat Telecom Circle and he has been transferred to Bihar Telecom Circle. At the cost of repetition we are of the view that in absence of any rule indicating forfeiture of previous service rendered by an employee when he has been transferred from one unit to another, such experience has to be taken into account for 4 the purpose of promotion to an employee. In that view of the matter, we are of the opinion that the learned Single Judge was perfectly right in holding that the respondents, appellants herein, has to take into account the previous experience of the writ petitioner, respondent herein, for the purpose of considering his eligibility for the said promotion. The only restriction placed as per Sub. Rule 2 of Rule 38 of Transfers and Postings, General Rules which is extracted hereinbelow:- “When an official is transferred at his own request but without arranging for mutual exchange, he will rank junior in the gradation list of the new unit to all officials of that unit on the date on which the transfer order issued including also all persons who have been approved for appointment to that grade as on that date.” it cannot be said that the previous service rendered by the writ petitioner, respondent herein will not be taken into account for the purpose of promotion to an employee. From a perusal of Sub. Rule 3 of Rule 38 of the said Rule it appears that if the old and the new unit from parts of a wider unit for the purpose of promotion to a higher cadre, the transferee (whether by mutual exchange or otherwise) will retain his original seniority in the gradation list of the wider unit. In view of the fact that Bharat Sanchar Nigam Limited is the wider unit and the writ petitioner, respondent herein worked in the old unit, i.e. in Gujrat Telecom Circle and has been transferred to Bihar Telecom Circle, he will maintain the original 5 seniority in the gradation list as per Sub. Rule 3 of Rule 38 of the Rules cited above. We are of the opinion that the contention raised by the learned counsel for the appellants fails and this L.P.A. stands dismissed. However, there shall be no order as to costs. Time is extended for a period of another three months for implementing the order of the learned Single Judge. Abhay Kumar ( T. Meena Kumari, J.) (Shyam Kishore Sharma, J.)