The main legal point established in the judgment is that an employee's seniority in a government employment cadre can be determined based on the acknowledgment of transfer from one post to another, as evidenced by the granting of pay protection.

Barin Ghosh and Navaniti Pd.Singh JJ.

1. On 14th November,1969, the appellant was appointed on the post of Assistant Professor in the Industries Department, Govt, of Bihar. This post carried a pay scale of Rs. 325-985. While the appellant was working as such, the Industries Department, Govt, of Bihar, published an advertisement inviting applications for filling up the posts of District Industries Officer. This post then carried a pay scale of Rs. 325-985. The appellant responded to the said application. His application was forwarded through proper channel. Thereupon, having been selected for the said post, he was appointed on the post of District Industries Officer on 21st June, 1974 and joined the said post on 12th July, 1974. After the appellant joined the said post, he was accorded pay protection. The nomenclature of the post of District Industries Officer has been changed to Manager, District Industries Centre.

2. The appellant is contending that his seniority in the post of Manager, District Industries Centre be counted from 14th November, 1969, since when he started discharging Ihe duties of Assistant Professor. This claim having been rejected by the Government and, upon filing of the writ petition, by the Writ Court, on the ground that the appointment of the petitioner as District Industries Officer was a fresh appointment, to which there appears no dispute, the present appeal has been preferred.

3. In a cadre there may be one post or there may be more than one post of similar status. At the same time in a cadre there may be one post having little higher status and there may be another having little lower status. A person working in a post having lower status may be asked to discharge the duties attached to a post having higher status, but vice versa is not permissible. An employee working in a post may, however, be transferred to discharge the duties attached to a post, though in the same cadre, but having lesser status.

4. The moment an employee is transferred from one post to another, he carries with him whatever he has earned in his earlier post to the transferred post, including the status of his earlier post. That is protected by pay protection.

5. A transfer can be effected only at the wisdom of the employer or by mutual exchange, if rules permit, but not at the desire of the employee. The appellant, while working as Assistant Professor, wanted to serve as District Industries Officer, He, however, could not compel the employer to post him as a District Industries Officer.

6. Upon getting an opportunity to serve as District Industries Officer, he applied. He was then selected and appointed as such. Because this was a fresh appointment, and not a transfer, whatever the appellant earned by serving as an Assistant Professor, he did not carry with him to the newly appointed post. But by granting pay protection to the appellant, the employer, in fact, acknowledged that the appellant is being merely transferred from the post of Assistant Professor to the post of District Industries Officer. By reason of such pay protection, he carried with him whatever he had earned by working as Assistant Professor. However in the matter of acknowledging his seniority, it was contended by the employer erroneously that since he was freshly appointment, his seniority shall be counted from the date of his fresh appointment. This is double standard.

7. Prior to 1974 there was no statutory rule pertaining to the services in the Industries Department, Govt, of Bihar. While framing the rules in 1974, the post of Assistant Professor and that of Manager, District Industries Centre were treated as equal posts in the same cadre and accordingly the anomalies in the pay scales were removed. Therefore, for all practical purposes the State has acknowledged that the petitioner was shifted from the post of Assistant Professor, carrying the same status as that of the post of District Industries Officer, to the post of District Industries Officer