( 1 ) RULE. Mr. Doctor waives service of notice of rule for respondents. With the consent of the learned Counsel appearing for both the sides the matter is finally heard today.

( 2 ) THE Short facts of the case appear to be that the petitioner who was working as Telecom Office Assistant, opted for transfer at Bharuch due to his personal family circumstances, and as per the request of the petitioner on 13. 02. 1995, he was transferred from Surat to Bharuch. As per the petitioner on 22. 11. 1995, because of reconstitution of the cadre, his name was included in the select list, but on the basis of the seniority in the year 1996, his name was also included in the list of selected candidates for the post of Telecom Office Assistance on the basis of seniority-cum-fitness. Thereafter, there was change in the policy and ultimately vide order dated 28. 9. 1999, the petitioner came to be promoted on the basis of seniority-cum-fitness with effect from 1. 1. 2000. Thereafter, the petitioner was absorbed in BSNL respondent No. 1 herein. However, since he was getting salary less than the juniors were getting, he made representation in the year 2002, but as nothing was done, the reminder was sent by the petitioner. As per the petitioner, when he pursued the representation, he was served with the show-cause notice, as to why the promotion should not be withdrawn/cancelled. The petitioner again made representation. Ultimately vide order dated 23. 08. 2006, promotion given to the petitioner pursuant to the order dated 28. 09. 1999, came to be cancelled, and it is under these circumstances the present petition before this Court.

( 3 ) UPON hearing Mr. Anand Sharma learned Counsel for the petitioner and Mr. Doctor for the respondent authority, it appears that 10 percent promotion was required to be given on the inter se seniority of the availability of the post subject to fitness. The relevant rule in the present case is rule 38 (1) (2) (3) which reads as under. Rule 38 transfers of officials when desired for their own convenience should not be discouraged if they can be made without injury to the right of others. However, as a general rule, an official should not be transferred from one unit to another either within the same Circle, or to another Circle unless he is permanent. As it is not possible to accommodate an official borne on one gradation list without injury to the other members in that gradation list, such transfers should not ordinarily be allowed except by way of mutual exchange. Transfers by way of mutual exchange, if in themselves inherent unobjectionable, should be allowed, but in order to safeguard the rights of men borne in the gradation list of both the offices, the official brought in should take the place in the new gradation list that would have been assigned to him had he been originally recruited in that unit or the place vacated by the official with whom he exchanges appointment, which ever is the lower.

Note:-Transfer of officials who are not permanent in the grade, may in deserving cases, be permitted with the personal approval of th Head of the Circle. 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 is issued, including also all persons who have been approved for appointment to that grade as on that date. If the old and the new unit form 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. "

( 4 ) THE aforesaid rule 38 (2) provides that when the official is transferred at his own request, he will rank junior in the gradation of all officials of that unit on the date on which the transfer order is issued, including all persons who have been approved for appointment to that grade as on that date. Theref

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