District Panchayat Sevak Sangh and Another vs The State of Bihar and Others

Chandramauli Kr. Prasad, J.—Petitioner No. 1 claims to a registered Employees Union land this writ application has been filed on its behalf by Rama Nand Sah, its office Secretary who is posted as Panchayat Sewak in Motihari Block. Petitioner No. 2 is the panchayat Sewak posted at Sugauli Block of East Champaran and their prayer in this writ application is to quash the order dated 27th of July, 2002 (Annexure-1) whereby large number of Panchayat Sewaks have been transferred from one place to another.

Transfer has been mainly assailed on the ground that the employees have been transferred without paying any ad vance as also their arrears of salary for the period, May to August, 2002.

While assailing the order of transfer Mr. Surendra Kumar Singh, learned Counsel for the Petitioners submits that the impugned order of transfer, without paying any advance as also arrears of salary is illegal and in this connection has drawn my attention to a Division Bench judgment of this Court dated 9.9.92 passed in C.W.J.C. No. 8824 of 1992 (Bihar State Forum for Public Interest Activities v. State of Bihar and Ors.), relevant portion of which is as follows:

However, this order of transfer shall not be given effect to until and unless the salary and allowances, including advances to be paid to them according to Rules on their transfer is paid to them. When such payment is made, they shall join their transferred post according to Rules.

He has also drawn my attention to a judgment of a learned single Judge of this Court dated 20.8.2002 passed in C.W.J.C. No. 6546 of 2002 (Dr. Satya Narayan Singh v. State of Bihar and Ors.). In the said case it has been observed as follows:

Considering the facts and circumstances of the case, in my opinion, the Petitioner cannot be asked to move to the transferred post unless his arrears of salary almost for eleven months is paid to him. In this view of the matter the order impugned as contained in Annexure 14 so far the Petitioner is concerned, shall not be given effect to till arrears of salary as claimed by the Petitioner is paid.

Learned Counsel for the Petitioners submits that the ratio of the judgment in the aforesaid case is binding on me and hence I have no option but to set aside the order of transfer or direct for keeping the order of transfer in abeyance, till the transferred employees are paid their arrears of salary and advance T.A.

I do not have the slightest hesitation in accepting the broad submission of Sri Singh that I am bound by the ratio of a judgment rendered by the Division Bench or, for that matter, in case I am unable to follow the judgment of the learned single Judge, I have to refer the matter to a larger Bench but I can be pinned down by this proposition only when find that the ratio of the judgment of the Division Bench in the Bihar State Forum for Public Interest Activities (supra) and of the learned single Judge Dr. Satya Narayan Singh (supra) is that the order of transfer shall be invalid in case the employee transferred has not been paid his arrear of salary or the advance travelling allowance. In the cases, referred to above, orders of transfer of the employee have been directed to be kept in abeyance till the payment of salary and the advance.

It is well settled that everything said by the Division Bench is not binding on a single Judge but the ratio decidendi of the decision which is to be gathered from the statement of the principle of law applicable to the legal problem as disclosed by the facts of the case decided by the Division Bench. The only thing in a Judge''s decision binding as precedent is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. Even where the facts of on an earlier case appear to be identical the case before the Court, the Judge is not bound to come to the same conclusion as drawn in the earlier case. Direction on facts and circumstances of a particular case can never be regarded as a binding precedent.

I fail to understand how the order of transfer can be held to be invalid for an act of non-payment of the advance T.A. which is a subsequent act or, for that matter, non-payment of the arrears of salary. Non-payment of these dues may give the aggrieved party, a cause of action for praying for relief of payment of their dues but the same shall not invalidate the order of transfer. It is well settled that this Court interferes with the order of transfer only when it is shown that it suffers from the vice of mala fide or is in breach of any mandatory rule Long line of decision on this question has not propounded a theory that the order of transfer shall be invalid on the ground of non-payment of salary or the advance travelling allowances. In that view of the matter, I am of the opinion that the directions given by the Division Bench in the case of Bihar State Forum for Public Interest Activities (supra) and the single Judge decision of this Court in Dr. Satya Narayan Singh''s Case (supra) were upon the facts and circumstances of a particular case which can never be regarded as a binding precedent. Hence I am not inclined to hold the order of transfer to be invalid on the ground urged by Sri Singh.

However, I may hasten to add that in case the Petitioners are aggrieved by non-payment of salary or, for that matter, any other monetary benefit, they shall have liberty to take recourse to any other remedy available in law but on that count they cannot be permitted not to obey the order of transfer.

Application stands dismissed in limine.