1. Learned counsel appearing for the petitioner seeks leave to delete Respondent Nos. 2 to 4. Leave to delete Respondent Nos. 2 to 4 is granted. Amendment be carried out forthwith.
2. Learned Government Pleader Mr. S.V. Kurundkar waives service of notice for Respondent No.1/State. Learned advocate Mr. S.S. Thombre waives service of notice for Respondent No. 2.
3. Rule. Rule made returnable forthwith and heard finally, by consent.
4. By way of present Writ Petition, the petitioner impugns the judgement and order dated 14th October, 2011, passed by the learned Maharashtra Administrative Tribunal in Original Application No. 456/2011 filed by the present petitioner.
5. The petition arises out of certain glaring facts which are capsulized in nutshell as under. The Respondent No. 2, namely, Vishwanath Babunath Nath, was working as Executive Engineer, Majalgaon Canal Division No. 10, Parbhani. Undisputedly, Respondent No. 2 had not completed his three years' tenure on the said post at Parbhani.
However, it appears that Respondent No. 2 was in the zone of consideration for promotion to the post of Superintending Engineer. As per the relevant Rules, for being promoted as Superintending Engineer, an employee is required to have worked on a non- executive post. Respondent No. 2 accordingly addressed a communication dated 21st February, 2011 to the Respondent No. 1, thereby requesting to post him to a non-executive post since he was likely to be promoted as a Superintending Engineer. In that communication, he had also given choice of his posting at Central Design Organization, Nashik. Vide order dated 31st May, 2011, Respondent No. 2 was transferred from Parbhani as Executive Engineer-cum- Under Secretary, Water Supply Department, Mantralaya, Mumbai. However, the said posting was on the post that was to be fallen vacant at the end of June, 2011 on superannuation of Shri D.A. Jadhav. The petitioner, who was working as Executive Engineer, at Jaikwadi, Paithan, vide the same order, was transferred a Executive Engineer, Majalgaon Canal Division No. 10, Gangakhed, Parbhani, which was a post likely to become vacant on account of transfer of Respondent No. 2. Accordingly, the petitioner had attempted to join his place of posting. However, it appears that since Respondent No. 2 was not present to give charge, the petitioner made a representation to the Deputy Superintending Engineer. The Deputy Superintending Engineer, vide communication dated 8th June, 2011, addressed to the Chief Engineer and Chief Administrator, C.A.D.A., Aurangabad, informed him that Respondent No. 2 had left the office without his leave being sanctioned from 6th June, 2011 to 8th June, 2011. The said letter states that Respondent No. 2 without getting his leave sanctioned has unilaterally taken the leave and left the office and that he is absent in the office of the Executive Engineer. It is further stated that it is necessary that the Executive Engineer should be present in the office. As such, it was recommended that the petitioner should be permitted to take the unilateral charge. In the meantime, Respondent No. 2 had approached the learned Maharashtra Administrative Tribunal by way of filing Original Application No. 356/2011. The learned Maharashtra Administrative Tribunal, vide order dated 6th June, 2011, on the (5) wp8177-11 very first date and even without issuing notice to the present petitioner, who was impleaded as Respondent No. 5 in the said Original Application, passed the following order.
"The applicant shall remain in-charge of his present posting of Executive Engineer, Majalgaon Canal, Division No. 10, Parbhani till 22.6.2011 (Noon) and shall handover the charge of the said post on 22.6.2011 either before-noon or afternoon to respondent No. 5 or any other officer and shall avail joining time from 22.6.2011 afternoon till 30.6.2011 and shall join on the post of Under Secretary, Water Resources, Mantralaya, Mumbai on 1st July, 2011. Accordingly, the Original Application stands disposed off with no order as to cost."
6. It can thus clearly be seen that the learned Tribunal, vide the said order dated 6th June, 2011, permitted Respondent No. 2 to continue as Executive Engineer, Majalgaon Canal Division No. 10 at Parbhani till 22nd June, 2011 and thereafter, permitted him to join at Mumbai on the post of Under Secretary, Water Resources, Mantralaya by availing joining time from 22nd June, 2011 till 30th June, 2011.
7. Since the said order dated 6th June, 2011 was passed without hearing the petitioner, the petitioner filed Review Petition No. 9/2011. The same was allowed by the learned Tribunal, vide order dated 14th June, 2011 and the Original Application No. 356/2011 was restored. However, on the very next date i.e. 15th June, 2011, after considering the rival submissions, the learned Tribunal passed an order stating therein that Respondent No. 2 would continue in his posting as Executive Engineer, Majalgaon Canal Division No.10, Parbhani till 20th June, 2011 and issued notices. The learned Tribunal, vide order dated 20th June, 2011, maintained his earlier order directing Respondent No. 2 to join as Under Secretary in Mantralaya, Mumbai on 1st July, 2011. The perusal of the said order would reveal that in pursuance to the order passed by the learned Tribunal, the petitioner was to get charge from Respondent No. 2 of the posting as Executive Engineer, Majalgaon Canal, Division No. 10, Parbhani on 22nd June, 2011 itself which was in fact given by Respondent No. 2 to the petitioner on the said date. However, surprisingly, Respondent No. 1 passed an order on 8th July, 2011, which was impugned before the learned Tribunal. The said order states that in the public interest and on account of administrative convenience, the earlier transfer order of Respondent No. 2 shall stand cancelled. It further states that insofar as the revised posting of the petitioner is concerned, the separate orders would be issued.
8. Being aggrieved thereby, the petitioner approached the learned Maharashtra Administrative Tribunal by filing Original Application No. 456/2011. The learned Maharashtra Administrative Tribunal, by a reasoned order dated 12th July, 2011, granted interim relief in favour of the present petitioner. Paragraph No. 4 of the said order would be relevant which reads thus :
"4. By the disputed order the applicant is not reposted on the previous post, nor he is posted on any other post. With the above situation, it is necessary to protect the interest of the applicant till issuance of posting order for the applicant at the Government level, as the contention of the applicant is that he has not handed over the charge of the post at Parbhani, as yet to respondent No. 5. Accordingly, respondent Nos. 1 to 3 are directed not to direct the applicant to handover the charge of his present posting at Parbhani to respondent No. 5 by implementing the communication/ order dated 12th July, 2011 issued by respondent No. 2."
9. In the interregnum, vide order dated 10th August, 2011, the petitioner was again re-posted as Executive Engineer at Jaikwadi, Paithan till 31st March, 2012. The learned Tribunal, by the impugned order dated 14th October, 2011, which runs into 37 pages, has rejected the Original Application. Being aggrieved thereby, the present petition.
10. Mr. N.B. Suryawanshi, learned counsel appearing on behalf of the petitioner, submits that the earlier transfer order of Respondent No. 2 to a non-executive post was at his own request. He, however, submits that by exercise of political pressure, the second order has been passed. He further submits that the said order is totally in breach of the provisions of Section 4 of the Maharashtra Government Servants Regulation of Transfer and Prevention of Delay in Discharging the Official Duties Act, 2005 (hereinafter called as "the Maharashtra Transfer Act"). He further submits that not only that, though the learned Tribunal though has referred to the judgements of this Court delivered in Writ Petition No. 5198/2011 and Writ Petition No. 5835/2011, has failed to apply the law as laid down by this Court.
11. Mr. S.S. Thombre, learned counsel appearing on behalf of Respondent No.2, on the contrary, submits that the learned Tribunal has given sound, cogent and valid reasons in support of the impugned order, which does not warrant any interference by this Court. He submits that though there are some letters on record of the Members of Legislative Assembly, that is not the reason on basis of which the impugned order has been passed. He submits that the impugned transfer order has been issued by taking into consideration the representation made by the agriculturists themselves and in the public interest of continuance of Respondent No. 2 at Parbhani, whose presence is essential for completing the earlier work of canal. Mr. Thombre submits that the learned Tribunal has found that there were several reasons available with the Government for issuing the transfer order and, therefore, no interference is warranted. The learned counsel further submits that the learned Tribunal has also referred to the provisions of Section 4 of the Maharashtra Transfer Act and the judgements of this Court and has correctly applied the law laid down therein. The learned counsel further submits that insofar as the power of judicial review of this Court under Article 226 of the Constitution in transfer matters is concerned, this Court has a limited scope and unless the transfer is found to have been made malafide or de-hors the provisions of the Rules, it is not permissible for this Court to sit in an appeal over the administrative decision of the Executive. Mr. Thombre placed reliance on the judgement of the Apex Court in the case of "State of U.P. and others v. Ashok Kumar Saxena and another, etc." reported in AIR 1998 S.C. 925. The learned counsel further submits that assuming without admitting that the transfer is made on the recommendations of the Members of Legislative Assembly, that cannot be a ground for interfering with the transfer order. Reliance in this respect is placed by the learned counsel on the judgement of the Apex Court in the case of "Mohd. Masood Ahmad vs. State of U.P. and others" 2007 (8) S.C.C. 150.
12. Mr. S.V. Kurundkar, learned Government Pleader supports the impugned transfer order so also the order passed by the learned Maharashtra Administrative Tribunal and submits that necessary statutory compliance has already been made by the Respondent No.1 and the impugned order needs no interference.
13. This Court had an occasion to consider the provisions of Section 4 of the Maharashtra Transfer Act in Writ Petition No. 5198/2011, decided on 7th September, 2011 and Writ Petition No. 5835/2011, decided on 15th September, 2011.
14. It is also relevant to refer to Section 4 of the Maharashtra Transfer Act, which reads thus : "4. Tenure of Transfer.
[1] No Government servant shall ordinarily be transferred unless he has completed his tenure of posting as provided in section 3. [2] The competent authority shall prepare every year in the month of January, a list of Government servants due for transfer, in the month of April and May in the year.
[3] Transfer list prepared by the respective competent authority under sub- section (2) for Group A Officers specified in entries (a) and (b) of the table under section 6 shall be finalised by the Chief Minister or the concerned Minister, as the case may be, in consultation with the Chief Secretary or concerned Secretary of the Department, as the case may be; Provided that, any dispute in the matter of such transfers shall be decided by the Chief Minister in consultation with the Chief Secretary.
[4] The transfers of Government servants shall ordinarily be made only once in a year in the month of April or May; Provided that, transfer may be made any time in the year in the circumstances as specified below, namely :-
(i) to the newly created post or to the posts which become vacant due to retirement, promotion, resignation, reversion, reinstatement, consequential vacancy on account of transfer or on return from leave;
(ii) Where the competent authority is satisfied that the transfer is essential due to exceptional circumstances or special reasons, after recording the same in writing and with the prior approval of the next higher authority.
[5] Notwithstanding anything contained in section 3 or this section, the competent authority may, in special cases, after recording reasons in writing and with the prior approval of the immediately superior Transferring Authority mentioned in the table of section 6, transfer a Government Servant before completion of his tenure of post."
15. In the said case i.e. Writ Petition No. 5835/2011, decided by us on 15th September, 2011, the learned counsel for Respondent No. 3 therein, had raised a contention that the Proviso governs the main provision. The said contention was rejected. After considering the principle of harmonious construction which is also popularly known as `Heydon's Rule of Interpretation', this Court observed thus : "12] There is another angle. It is to be seen that prior to enactment of the said Act, there was no enactment for regulation of transfers of Government servants and the said Act has been enacted with a purpose to regulate the transfers of the Government servants. The Constitution Bench of the Apex Court in the case of Bengal Immunity Co. V/s State of Bihar (AIR 1955 SC 661) has applied the Heydon's rule of interpretation and observed thus:
"It is a sound rule of construction of a statute firmly established in England as far back as 1584 when Heydon's case ((1584 3 Co.Rep. 7a, p. 7b) was decided that for the sure and true interpretation of all Statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:
1st - What was the common law before the making of the Act.
2nd - What was the mischief and defect for which the common law did not provide.
3rd - What remedy the Parliament hath
resolved and appointed to cure the disease of the commonwealth, and 4th - The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico."
It can thus be seen that while interpreting the aforesaid provision of the said Act, this Court would also have to apply Heydon's rule or the mischief rule. It will have to be seen as to what was the position before making the enactment of the Act. What was the mischief and defect for which the law did not provide earlier and what remedy the legislature has found to cure the disease and the true reason of the remedy. After applying this, the Courts will have to make such interpretation, which shall suppress the mischief and advance the remedy. This legal principle has been consistently followed by the Apex Court and various High Courts while interpreting the statutes. It can be seen that prior to the aforesaid enactment coming into force, there was no enactment to regulate the transfers of the Government servants and the Government servants were transferred at the sweet will of the authorities concerned. In order to do away with the arbitrary powers of the authorities, an enactment to regulate such transfers was found necessary. With that purpose, to suppress the mischief of an unguided, un- channalized power to transfer the Government servants, the said Act was enacted. The remedy provided was to regulate the transfers in accordance with the said enactment.
13] It can clearly be seen that the said enactment, particularly Sub-section (1) of Section 4 specifically protects a Government servant from being transferred prior to completion of his ordinary tenure. Sub-section (4) of Section 4 requires such transfers to be done once in a year i.e. in the month of April or May. The proviso thereto, though permits the transfers to be made any time in the year for the eventualities mentioned therein, however, we are of the considered view that the proviso to Sub-section (4) cannot be read in such a manner, which makes the provision of Sub-section (1) of Section 4 redundant or nugatory. Clause (i) of the proviso to Sub-section (4), which permits transfer to be made at any time in a year on the ground of eventualities mentioned therein, will have to be read in a manner that the transfer on the grounds mentioned in clause (i) of proviso to Sub-section (4) would be permissible at any time of the year and not necessarily in April or May when a Government servant has completed his tenure of posting. If it is not read in that manner, the very purpose of the protection, which is granted in Sub-section (1) of Section 4 would become redundant and nugatory. A person, who has not completed even three months in a particular posting, could be transferred to some post, which has become vacant on account of transfer of another Government servant, who was working on the post. As such, the clause (i) of proviso to Sub- section (4) will have to be read in harmony with Sub-section (1) of Section 4 of the said Act. It will have to be interpreted that a Government servant will not be ordinarily transferred prior to completion of his tenure, and the transfers will have to be made only in the month of April or May. However, if transfer is necessitated on account of any of eventualities stated in clause (i) to proviso of Sub-section (4), it can be made at any time of the year and not necessarily in April or May, however, only on completion of tenure of the Government servant. No doubt, that clause (ii) of proviso to Sub-section (4) would permit transfer to be made at any time of the year and not necessarily in April or May, where the competent authority is satisfied that the transfer is essential due to exceptional circumstances or special reasons. However, when this is being done, the reasons and the circumstances will have to be recorded in writing and the same cannot be done without prior approval of the next higher authority. Undisputedly, Sub-section (5) of Section 4 carves out an exception to the general protection granted in Sub-section (1) of Section 4. No doubt, by taking recourse to Sub-section (5), a Government servant can be transferred even prior to completion of his tenure and even at any time of the year and not necessarily in the month of April or May, in special cases. However, while doing so, the competent authority will be required to record the reasons in writing and would also be required to obtain prior approval of the immediately superior Transferring Authority as mentioned in the table of Section 6. As already discussed, the provision of Sub-section (5) of Section 4 carves out an exception to the protection granted in favour of an employee in Sub- section (1) of the said section. It is to be noted that for that reason, the legislature has made an inbuilt safeguard in Sub-section (5) by requiring the reasons to be recorded for making transfer as a special case and obtaining approval of the (19) wp8177-11 immediately superior Transferring Authority. It is, thus, clear that the legislative intent is clear that ordinarily an employee should not be transferred prior to completion of his tenure. However, this would be permissible in special cases when the competent authority records the reasons for the same and obtains prior approval of the immediately superior Transferring Authority. "
16. In the present case, it is to be noted that the first order of transfer of Respondent No. 2 was at his own request. Since he desired to be considered for promotion as Superintending Engineer and since for being eligible for the said promotion, it was necessary to have worked on a non-executive post, he himself had requested the State Government for transferring him to Central Design Organization, Nashik. It can thus be seen that the first order transferring Respondent No. 2 at Mumbai was on the basis of the representation made by Respondent No. 2 on 21st February, 2011. Though vide the said order, Respondent No. 2 was not given a choice of posting at Nashik, he was posted on a non-executive post at Nashik. Vide the said order, the petitioner who had completed his tenure at Paithan, was transferred at Parbhani in place of Respondent No. 2. It can clearly be seen that even learned Tribunal, vide its first order, had directed the petitioner to be continued on the post of Executive Engineer, Majalgaon Canal Division No. 10, at Parbhani only because the post on which Respondent No. 2 was to join at Mumbai was to become vacant only at the end of June, 2011. As such, the learned Tribunal protected Respondent No. 2 at the said posting for a limited period. It is to be noted that the Respondent/State had contested the Original Application filed by Respondent No. 2 before the learned Tribunal. Perusal of paragraph No. 6 of the Affidavit-in-Reply filed on behalf of the Respondent/State in the said Original Application No. 356/2011 would reveal that the State had taken a specific stand that the first transfer order dated 31st May, 2011 was issued at the instance of Respondent No. 2 who had sought transfer to a non- executive post from the executive post. The rest of the allegations made by Respondent No. 2 regarding the present petitioner taking exparte charge and the superior officers assisting him in that matter, were denied by the Respondent/State in the said Affidavit- in-Reply.
17. By honouring the order of the learned Tribunal, Respondent No. 2 has peacefully handed over the charge of the posting at Parbhani to the petitioner on 22nd June, 2011. Thereafter, the petitioner has been working on that post at Parbhani. The petitioner has also been continued on that post on the basis of the order passed by the learned Tribunal on 12th July, 2011. As already held by us in the aforesaid matters (Writ Petition No. 5198/2011 and Writ Petition No. 5835/2011) that the Government servant cannot normally be transferred prior to completion of his ordinary tenure. It has been further held that such transfers are required to be made only once in a year i.e. in the month of April or May. It is further held that if such a transfer is required to be made in another part of year except in April or May, it has to be done only on account of the eventuality as stipulated in sub-section (4) of section 4 of the Maharashtra Transfer Act. We have further held that the clause (i) to proviso of sub- section (4), which provides for transfer at any time of the year on the ground of eventualities mentioned therein, will have to be read in a manner that the transfer on the grounds mentioned in clause (i) of proviso to sub-section (4) would be permissible at any time of the year and not necessarily in April or May when a Government servant has completed his tenure of posting. If it is not read in that manner, the very purpose of the protection, which is granted in sub-section (1) of Section 4 would become redundant and nugatory. We have further held that when this is being done, the reasons and the circumstances will have to be recorded in writing and the same cannot be done without prior approval of the higher Authority. It has been further held that by taking recourse to sub-section (5), a Government servant can be transferred even prior to completion of his tenure and even at any time of the year and not necessarily in the month of April or May, in special cases. However, while doing so, the competent Authority will be required to record the reasons in writing and would also be required to obtain prior approval of the immediately superior Transferring Authority.
18. Undisputedly, the impugned transfer order dated 8th July, 2011 thereby posting the Respondent No. 2 on a post which was already occupied by the petitioner, is neither a newly created post nor a post which has become vacant due to retirement, promotion, resignation, reversion, reinstatement, consequential vacancy on account of transfer or on return from leave. In that view of the matter, the transfer could have been made only if the concerned Authority had pointed out the exceptional circumstances or special reasons and the same having been recorded in writing. Undisputedly, in the present case, Transferring Authority is the Secretary and the Hon'ble Chief Minister is the Sanctioning Authority. The learned Tribunal has reproduced the contents of the file which are signed by the Executive Engineer, which can be seen at page No. 8 of the impugned order. It is reproduced as follows :
Though the learned Tribunal has devoted lot of time and ink in passing the lengthy order, we fail to notice reproduction of any reasons recorded on a file by the Transferring Authority as to what were the special and exceptional circumstances which warranted the transfer of Respondent No. 2 at Parbhani within a short span of two months." Undisputedly, the petitioner had not completed his tenure after he joined his post at Parbhani. In view of what has been laid down by us, if the petitioner was to be transferred from his post at Parbhani prior to completion of his tenure of three years, it could have been done only for exceptional and special reasons which are required to be recorded in writing.
We fail to see reproduction of any such exceptional and special reasons by the learned Tribunal in its impugned order. The only reference in the order of learned Maharashtra Administrative Tribunal is to the noting of the Hon'ble Chief Minister, which reads thus :
We refrain to make any harsh observations regarding this noting inasmuch as it has been a case of the State Government itself which has been heavily pressed into service in the earlier Original Application filed by Respondent No. 2 that the transfer of Respondent No. 2 was at his request in order to become eligible for getting promotion as Superintending Engineer. When Respondent No. 2 had himself sought the transfer to a non-executive post, which request was acceded to by the Government, we are unable to understand the logic behind the second order re-posting him to Majalgaon Canal Division No. 10 at Parbhani only on the ground that it was necessary in public interest and on account of administrative convenience. We find that the impugned order transferring the Respondent No. 2 to repost him at Parbhani and subsequent order dated 10th July, 2011 again reposting the petitioner at Paithan are not sustainable in law.
19. Insofar as the judgement of the Apex Court in the case of "State of U.P. and others v. Ashok Kumar Saxena and another" (supra), relied on by the learned counsel for Respondent No. 2 is concerned, the same is not at all applicable to the facts of the present case. Firstly, the said judgement arises out of contempt proceedings and abuse of process of law by the High Court. In the said case, the Respondent No. 1 therein, who was working as Assistant Engineer from Northern Division, Ganga Canal, Roorki, was transferred at IIIrd Sub-Division, Dhampur, Irrigation Department, Moradabad. By the same order, the second Respondent who was working as Assistant Engineer at Dhampur, was transferred and attached to Irrigation Department, Moradabad. The second Respondent had filed Writ Petition in the High Court challenging the order of transfer. The said petition filed by Respondent No.2 was dismissed by the High Court on 16th October, 1995. Subsequently, on 18th October, 1995, the President's Rule was imposed in the State. On account of imposition of the President's Rule, the Chief Secretary reviewed various important orders passed by the previous Government between 1st October, 1995 and 18th October, 1995. Accordingly, an order was passed on 31st October, 1995, staying the earlier order of transfer dated 7th October, 1995. As such the first Respondent reported back at Northern Division, Ganga Canal, Roorki. Subsequently, the Respondent No. 1 was posted at Eastern Ganga Canal Construction Circle, Haridwar. The same was challenged by the first Respondent before the High Court by filing Writ Petition No. 4078 of 1996. The High Court, vide order dated 1st February, 1996, directed the petitioner therein to be continued at Dhampur. The Respondent No. 2 thereafter filed an application for recalling the earlier orders passed by the High Court. The High Court granted liberty to pass any appropriate order relating to the posting of the second respondent therein. When the matter had come up before the High Court, the High Court passed the following order :
"If the appellant `evades his presence in Court on that date, he shall be brought into police custody with the assistance of Superintendent of Police of the area where he has been serving'."
In this background, the Apex Court found that when the High Court had itself dismissed the petition on 16th October, 2011 filed by the second Respondent, refusing to interfere with the order of transfer, the High Court did not and could not have put any fetters on the power of the Government to pass any subsequent order of transfer or re-call the order of transfer already made. It has been held that the High Court had no occasion to restrict such powers of the Government which were in fact recognized and acknowledged by the Court in the very same order of dismissal. In this view of the matter, the Apex Court observed that the High Court could not have taken over the administration of the State. It further appears that the Apex Court took cognizance of the drastic steps taken by the High Court without there being any necessity to do so. It has been further observed that there is no presumption that a responsible officer of the Government would disobey an order of the Court requiring his presence in the Court.
20. The Apex Court has taken a serious view of the observations of the High Court regarding taking the appellant therein in police custody with the assistance of the Superintendent of Police. The Apex Court further found that such drastic observations of the High Court were not at all necessary.
21. It is to be noted that in the said case, the Apex Court was not considering the provisions of the Transfer Act. In the present case before us, we are dealing with the provisions of the Maharashtra Transfer Act, as have been construed by us in our earlier judgements.
22. Insofar as the second judgement of the Apex Court, relied on by the learned counsel for Respondent No. 2 herein is concerned, no doubt that the learned counsel for Respondent No. 2 is right in relying on the observations of the Apex Court that merely because the transfer is being made at the instance of the public representative, the same shall not be vitiated. However, in the present case, we are not interfering with the transfer order on the ground that it is being done at the behest of public representative, but we are interferring on the ground that the same is being done without following the relevant provisions of the Maharashtra Transfer Act. For the sake of repetition, we reiterate that such a transfer, either of Respondent No. 2 or the petitioner, which is a subject matter of the present petition, could be done only in an exceptional circumstances and for special reasons and that too by recording the reasons in writing. We find that no such reasons or circumstances of whatsoever nature are recorded in the impugned order of transfer and also in the impugned order passed by the learned Maharashtra Administrative Tribunal. Therefore, the only course that is available to us is to find out the reason from the impugned transfer order dated 8th July, 2011. The only reasoning given is "in the public interest" and "administrative convenience". When the Maharashtra Transfer Act stipulates recording of reasons, first it has to be recorded in the original file. If any transfer which takes away the right guaranteed to an employee of not being transferred prior to completion of his tenure is allowed, only by stating that it is "in the public interest" or on the ground of "administrative exigency", then it would frustrate the very purpose of the Act and makes the provisions of such Act redundant. In our considered view, it is necessary to record atleast some reason as to how "a special case" is made out. No doubt that we do not expect an authority to write an elaborate judgment to make out "a special case". However, at the same time, in order to enable the Court to exercise the powers of judicial review, atleast it is necessary for an authority to write in brief as to how "a special case" is made out, so that the powers of judicial review, which has been held to be a basic structure of the Constitution, can be properly exercised by teh High Court/Supreme Court. In that view of the matter, we find that the petition deserves to be allowed.
23. At this juncture, we are at pains to make certain observations. No doubt that the learned Maharashtra Administrative Tribunal has reproduced all the aforesaid judgements and orders; however, we find that the learned Tribunal has not taken even some pains to point out as to how the law laid down in our judgements and orders, which specifically discuss and construe the provisions of Sections 4 and 5 of the Maharashtra Transfer Act, would not be applicable to the facts of the present case. No doubt that the learned Tribunal, which Office is held by the superior Judicial Authorities / Administrative Officers, is to be given the due respect by this Court and which we normally give. However, the Constitution Bench of the Apex Court in the case of "L. Chandra Kumar v. Union of India and others" reported in AIR 1997 S.C. 1125, has in unequivocal terms held that the Administrative Tribunals are the Tribunals subordinate to this Court and amenable to judicial review by this Court either under Article 226 or Article 227 of the Constitution of India. The learned Tribunal, in the present case, therefore, was bound by the law as laid down by this Court. No doubt that if the law as laid down by us is not applicable to the facts of the particular case, the minimum courtesy that was expected of the learned Tribunal was to atleast discuss as to how it did not find the law laid down by us is not applicable to the facts of the said case. In the circumstances therefore, we direct the Registry of this Court to forward a copy of this judgement to the learned Member of the Maharashtra Administrative Tribunal, Mumbai, Bench at Aurangabad, who has passed the impugned order.
24. In the result, the Writ Petition is allowed in terms of prayer clauses (B) and (C). Needless to state that since the Respondent No. 2 is due for promotion as Superintending Engineer, even according to him and for being eligible for the said promotional post, he is required to be posted on a non-executive post, the Respondent No. 1 in order to enable the Respondent No. 2 to become eligible for the promotion as Superintending Engineer, would post Respondent No. 2 on any suitable non-executive post within a period of four weeks from today.