IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1055 of 2010 1. HIMANSHU KUMAR DUBEY S/O LATE SUBH NARAYAN DUBEY R/O VILL.- MISHRA KI MATHIA, P.S.- BAIRIA, DISTT.- BALIA (U.P.) AT PRESENT ACCOUNTS CLERK, SARAN CANAL DIVISION, CHAPRA 2. ARUN KUMAR PANDEY S/O LATE RUKUMARTH PANDEY R/O VILL.- GARHIPUR, P.S.- PATORY, DISTT.- SAMASTIPUR AT PRESENT ACCOUNTS CLERK, SARAN, CANAL DIVISION, CHAPRA 3. SUNIL KUMAR S/O LATE MAHABIR SINGH R/O VILL.- KATRA BARADARI, P.S.- BHAGWAN BAZAR, DISTT.- SARAN AT PRESENT ACCOUNTS CLERK, SARAN CANAL DIVISION, CHAPRA 4. VED PRAKASH S/O LATE PARMATMANAND ASTHANA R/O VILL.- JAGDISHPUR, P.S.- SADAR KOTWALI, DISTT.- BALIA (U.P.) AT PRESENT CORRESPONDENCE CLERK, SARAN CANAL DIVISION, CHAPRA 5. RAJESH PRASAD SRIVASTAVA S/O LATE UMESH CHANDRA VERMA R/O VILLAGE AND P.S.- MAKER, DISTT.- SARAN AT PRESENT CORRESPONDENCE CLERK, SARAN CANAL CIRCLE, CHAPRA 6. SHEO PRASAD SAH S/O LATE SRIKRISHNA SAH R/O VILL.- HARPUR, P.S.- PIYAR, DISTT.- MUZAFFARPUR AT PRESENT TRACER, SARAN CANAL DIVISION, CHAPRA Versus 1. THE STATE OF BIHAR THROUGH PRINCIPAL SECRETARY WATER RESOURCES DEPARTMENT, BIHAR, PATNA 2. THE UNDER SECRETARY WATER RESOURCES DEPARTMENT, BIHAR, PATNA 3. THE CHIEF ENGINEER WATER RESOURCES DEPARTMENT, SIWAN 4. THE SUPERINTENDING ENGINEER SARAN CANAL DIVISION, GANDAK PROJECT, CHAPRA 5. EXECUTIVE ENGINEER SARAN CANAL DIVISION, GANDAK PROJECT, CHAPRA For the Petitioners : Mr. Tara Nath Jha, Advocate. For the State : Mr. Ravi Verma, Advocate. ----------- 2/ 25/01/2010 Learned counsel is permitted to correct typographical error in paragraph 3 of the writ application. Heard learned counsel for the petitioners and learned counsel for the State. The petitioners are stated to be Central Executive Committee Members of a recognized trade union of the Water Resources Department. Their contention is that under a tripartite agreement/settlement dated 29.11.1994 it was resolved that persons like them should not be transferred without consent during the period that they hold the 2 aforesaid post. The binding effect of this settlement finds reflection in the order of the Supreme Court in Civil Appeal No. 5031 of 1998. More recently, this settlement of 29.11.1994 has been reiterated on 1.7.2009, 20.7.2009 and on 17.9.2009 more particularly in context of the transfer of the petitioners from the district of Saran. In light thereof, their relieving orders were initially stayed on 5.9.2009 awaiting departmental clarification when now they have been directed to be relieved by different orders passed in December, 2009. Counsel for the State submits that the writ petition no where states how long the petitioners have remained at Saran. Moreover, it appears from another order dated 28.8.2009 that another meeting was held between the department and the office bearers of the trade unions on 16.8.2009 in which it was resolved that the office bearers shall be entitled to such benefit only once in their service tenure for a period of two years. The trade union to which the petitioners belong were also participants in the meeting in pursuance of which the decision dated 28.8.2009 came to be taken modifying the settlement dated 29.11.1994 to that extent. The petitioners, therefore, have no absolute right to demand continuance at Saran. 3 The controversy reflects a policy decision with regard to transfer of office bearers of a recognized union dated 29.11.1994. The force of this finds echo in the order of the Supreme Court noticed above. The respondents also appear to be believing in the force of this decision by their reiteration on 1.7.2009, 20.7.2009 and 17.9.2009 which gets further fortified by their own interim order dated 5.9.2009 that steps for relieving shall only be taken after clarifications are received. The contention on behalf of the State that on 28.8.2009 the original settlement dated 29.11.1994 got watered down cannot be rejected outright ex parte at this stage. Transfer and postings are incidence of service. Unless there be violation of any statutory rules or serious allegations of impropriety etc., the Courts do not normally interfere with orders of transfer. However, if the respondents have issued certain instructions and/or arrived at settlements, in a State governed by the rule of law, it shall continue to bind the respondents unless the decision or settlement be revoked, modified or annulled. It may also be deviated from if there be sufficient or cogent reasons for the same. In the background of the controversy noticed above, if the order of transfer dated 28.6.2009 or the 4 subsequent order of relieving in December, 2009, albeit even briefly made a reference to the issue that the petitioners were covered under the policy decision of 1994 or as modified in August, 2009, perhaps unwanted litigation would have been saved. It has repeatedly been held by the Courts that reasons are heart and soul of an order and enable proper adjudication in judicial review. The respondents themselves appear to be vacillating in their stand with regard to the petitioners. The respondents are, therefore, directed to pass a reasoned and speaking order, whether the petitioners are covered by the settlement dated 29.11.1994 and whether the orders dated 1.7.2009, 20.7.2009 and 17.9.2009 reiterate the same. If they do not, the respondents shall adequately be required to also deal with the circumstances under which the interim order dated 5.9.2009 came to be passed. The respondents shall equally be at liberty to deal with by a reasoned discussion as to whether the petitioners were covered by the alleged modification made in the earlier settlement by the subsequent meeting dated 28.8.2009 in which the petitioners are alleged to have participated also. Let such fresh reasoned and speaking order 5 be passed within a maximum period of one month from the date of receipt and/or production of a copy of this order before Respondent no. 2. Till such time, the order of transfer dated 28.6.2009 and the subsequent orders of relieving passed in December, 2009 shall remain in abeyance and shall finally merge with the fresh order that will be passed by Respondent no. 2 The application is allowed with directions. AKS/ ( Navin Sinha, J.)