IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18394 of 2008 LAXMI KANT PRASAD YADAV @ LAXM Versus W I T H CWJC No.18258 of 2008 BHUPENDRA KUMAR Versus THE STATE OF BIHAR & ORS ----------- 3/ 4/2/2009. Heard learned counsel for the petitioners and learned counsel for the State. These two writ applications are integrally connected and have, therefore, been heard together and are being disposed by this common order. Despite sufficient opportunity no counter affidavit has been filed on behalf of the respondents in either of the writ applications. In view of the nature of the order to be passed, this Court does not consider it necessary to await the same any further. The petitioners in both the writ applications together submitted a common application on 29.1.2007 for mutual transfer, signed by both of them. While the petitioner in C.W.J.C. No.18394/08 sought his transfer from the Buxar Collectorate to the Muzaffarpur Collectorate, the petitioner in C.W.J.C. No.18258/08 sought his transfer from Muzaffarpur Collectorate to the Buxar Collectorate. Both of them are stated to be working on the post of clerks. It is their case that this application for 2 transfer on mutual request came to be allowed by order dated 30.6.2008 when the petitioner in the former was transferred to the Muzaffarpur Collectorate and the latter to the Buxar Collectorate. On 21.10.2008, the order of transfer of the petitioner in C.W.J.C. No.18258/08 to Buxar came to be cancelled in pursuance of certain Government order dated 1.10.2008. Thereafter, the petitioner in C.W.J.C. No.18394/08 was allowed to join his transferred place at Muzaffarpur which he did on 31.10.2008 when his order of transfer also came to be cancelled on 19.11.2008 in pursuance of a Government order dated 1.10.2008 also referring to the cancellation of transfer of the petitioner in C.W.J.C. No.18258/08 on 21.10.2008. Learned counsel for the petitioner in C.W.J.C. No.18394/08 submits that the order of transfer dated 30.6.2008 having taken effect in consequence of joining on 31.10.2008 at the transferred place, the order of transfer became redundant and a spent force. Thereafter there remained no orders of transfer in existence for cancellation. He relies on two Bench decisions of this Court reported in 2000(3) P.L.J.R. 139 (Mahmood Azam Siddique (in 12287), Dr. Ramchandra Safi (in 11477) vs. The State of Bihar & 3 Ors.) and 2000(2) P.L.J.R. 332 ( Smt. Jyotsna Kumari vs. State of Bihar and others). It is submitted on behalf of the petitioner in C.W.J.C. No.18258/08 that order of his transfer cannot be seen in isolation. It was in pursuance of the mutual request that the petitioner in C.W.J.C. No.18394/08 was allowed to join at Muzaffarpur. The respondents cannot be permitted to act arbitrarily while granting the benefit to one of the applicants and refusing similar treatment to the other applicant in an application based on mutuality. The petitioner in C.W.J.C. No.18258/08 is also liable to be sent to Buxar from Muzaffarpur. Learned counsel for the State submitted that the petitioner in C.W.J.C. No.18258/08 never joined at Buxar and, therefore, the order of transfer has remained alive and was therefore rightly cancelled on 21.10.2008 before he could join at Buxar. Issues of transfer and postings are primarily for the employer and not for the Court to decide. But once the employer accepts an application based on mutuality and acts in pursuance thereof, there can be no justification for partial compliance by extending benefit to one and denying similar treatment to the other. This Court finds substance in the submission on behalf of the petitioner in C.W.J.C. No.18394/08 4 that his order of cancellation dated 19.11.2008 is with regard to an order of transfer no more in existence and therefore of no consequence. He is, therefore, entitled to continue at his transferred place at Muzaffarpur. If that be so, and the origin be in mutuality, the petitioner in C.W.J.C. No.18258/08 is obviously entitled to join at Buxar. The issue that he had not joined at Buxar in pursuance of the order dated 30.6.2008 when the order of cancellation dated 21.10.2008 has been issued, is not of any relevance in the nature of the present controversy on its facts. The petitioners are accordingly held entitled to their places of posting in terms of the order dated 30.6.2008. The writ applications are allowed. This shall, however, be without prejudice to the rights of the respondents to deal with the petitioners on the issue of transfer and posting afresh in accordance with law. KC ( Navin Sinha, J.)