IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.422 of 2011 Suresh Kumar Das, son of late Bansi Das, resident of Village – Mahamda, P S – Naya Ramnagar, District – Munger. Versus 1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna. 2. The Secretary, Home (Special) Department, Bihar, Patna. 3. The Commissioner-cum-Secretary, Road Construction Department, Bihar, Patna. 4. The Officer on Special Duty, Home (Special) Department, Bihar, Patna. 5. The Deputy Secretary, Home (Special) Department, Bihar, Patna. 6. The Deputy Secretary (Management Cell), Road Construction Department, Bihar, Patna. 7. The Chairman, State Advisory Committee, Sinchai Bhawan, Bihar, Patna. 8. The Secretary, Road Construction Department, State of Jharkhand, Ranchi. 9. The Union of India through the Secretary, Personnel, Public Grievances and Pension (Personnel and Training Department), govt. of India, New Delhi. 10. Kishori Prasad Deb, Assistant Engineer, Road Construction Department, Jharkhand. ----------- For the petitioner: M/s Binod Kumar Kanth, Sr. Advocate and P N Pathak. For the Union of India : Ms. Kalpna. For the State of Jharkhand : Mr. Satyavrat Verma. For respondent no.10: Ms. Arpana Kumari. _____ 04. 25.7.2011 The issue raised by the petitioner now lies in a very narrow compass. This is so in view of a Division Bench decision rendered in the similar circumstances in the case of Indrajeet Kumar Arya vs. The State of Bihar and others, which is LPA No.881 of 2010, decided on 9th September, 2010. This order has been brought on record as Annexure-9 to the writ application. This Division Bench decision has relevance for the issue raised by the petitioner in the writ because of the similarity of fact and legal question which has been answered by the Division Bench. 2 Petitioner happens to be a member of the Engineering Services and is an Assistant Engineer in the Road Construction Department. Some time in October, 2007 he decided to opt for the State of Jharkhand. This was based on a so-called mutual transfer option agreed between him and one Kishori Prasad Deb (Respondent No.10). Since the respondents took their own sweet time to decide the issue, petitioner got an opportunity to re-think and he chose to withdraw the option against the said proposal for change of cadre. This withdrawal of consent was known to the respondent State of Bihar as there is something to show from record that the Home (Special) Department, Government of Bihar, did take cognizance of matter on 15th December, 2009. This letter annexed as Annexure-5 expressed its view that in view of subsequent development the matter should be dropped and not acted upon. But as usual, since one wing of the department does not take into consideration the decisions of another limb, application of the petitioner was processed, independent of such an opinion and notification in this regard came to be issued allotting him Jharkhand cadre, which is notification dated 6.9.2010 contained in Annexure-10. Petitioner obviously was aggrieved by such a decision and he approached the High Court in the background of the Division Bench decision, saying that once the consent was withdrawn, petitioner could not be compelled to now change 3 his cadre. Learned single Judge in his order dated 2.11.2010 as per Annexure-11 gave liberty to the petitioner to move the respondent concerned. That matter was looked into but claim of the petitioner was rejected. It is the contention of the learned senior counsel representing the petitioner that there cannot be two yardsticks in the similar issue of this kind. If in the case of Indrajeet Kumar Arya the declaration made by the Division Bench was accepted to be the correct law and a notification allowing that petitioner came to be issued, there is no reason why same analogy in the similar facts and circumstances would not apply to the present petitioner. The stand of the State of Bihar is that once the petitioner gave his option and the authorities went ahead with such an option, there is no way he can resile from his position and what the respondents have done is in accordance with the wishes of the petitioner expressed earlier by his communication. Petitioner does not dispute the factual position but he contends that what he had done earlier has lost its meaning by virtue of his subsequent withdrawal due to long gap in the decision-making by the respondents. Since withdrawing of consent in no manner is barred either under the policy or Re- Organization Act as such, then there is no way the State can pin the petitioner down to the initial wish for a change of cadre. This aspect has been dealt with in detail by the Division Bench 4 and the Division Bench did come to a conclusion that the authorities were not correct in refusing to take into consideration the withdrawal of consent for mutual transfer in the changed circumstances. Case of the petitioner therefore stands on similar footing as that of Indrajeet Kumar Arya. In absence of any law being shown contrary to what has been decided by the Division Bench, a case for indulgence has been made out by the petitioner. In this view of the matter, the notification contained in Annexure-10 as well as 13 allocating the petitioner to Jharkhand cadre to that extent stands quashed. Respondents are directed to act accordingly. So far as the claim of respondent No.10 is concerned, as he has crossed over and joined the State of Bihar, his case will be considered independent of what has been decided in the present writ application because two issues may have a common origin but they do not remain the same in any manner in view of the facts and circumstances noted above. Writ is allowed. rkp ( Ajay Kumar Tripathi, J.)