JUDGMENT S.P. Kukday, J.
1. Rule. Rule made returnable forthwith. With the consent of respective Advocates, the matter is taken up for hearing. Respective Advocates waive service.
2. The petitioner has impugned the order dated 27-9-2005 passed by Maharashtra Administrative Tribunal in Original Application No. 794/2005 rejecting challenge to the order of petitioner's transfer from Nardana to Dhule.
3. Briefly stated the relevant facts are that the petitioner was transferred from Nasik to Nardana as Deputy Engineer, at his own request, and is serving at Nardana since 30-6-2003. The petitioner was not due for transfer and, therefore, he was not disturbed in the general transfers of May, 2005. However, for accommodating the respondent No. 6 who brought political influence to bear on respondents 2 and 3, the petitioner was transferred to Dhule as Assistant Superintending Engineer, PW Circle, Dhule, in the midst of the term, by an order dated 16-8-2005. In fact, in view of the Circulars dated 27-11-1997; 7-2-1998 and 16-2-2005, the petitioner had not completed his normal tenure of three years at Nardana and, therefore, should not have been transferred. The Officers of the rank of Deputy Engineer can be transferred by respondent No. 2. However by making reference to the general transfers of May, 2005, respondent No. 3 issued two separate orders - one for posting respondent No. 6 at Nardana and other for transferring petitioner as Assistant Superintending Engineer, Dhule PW Circle, Dhule. In fact, respondent No. 3 does not have an authority to issue orders of transfer of the persons from the cadre of Deputy Engineer. Respondent No. 6 was first transferred from Chalisgaon to Amalner by order dated 8-7-2005. This order was modified by order dated 22-7-2005 posting respondent No. 6 at Dhule and finally by order dated 16-8-2005 respondent No. 6 was posted at Nardana, shifting the petitioner to PW Circle, Dhule. These orders are passed on account of the political influence of MLA Shri D. V. Patil. Thus, the transfer of the petitioner is made for the sole purpose of accommodating the respondent No. 6. Therefore, being aggrieved by this order of transfer, the petitioner approached the Maharashtra Administrative Tribunal (for short "the Tribunal") by filing Original Application No. 794/2005.
4. The Tribunal found that the order of transfer is properly issued on the instructions of the respondent No. 2. Tt was further found that the petitioner has failed to establish existence of mala fides. Therefore, the Tribunal dismissed the Original Application No. 794/2005 vide order dated 27-9-2005. Being aggrieved by the order of dismissal, the petitioner has approached this Court.
5. Learned counsel for the petitioner has reiterated the points urged before the Tribunal. According to Learned Counsel, the order of transfer dated 16-8-2005 is issued by the respondent No. 3 without any authority. The order of transfer ought to have been issued by the respondent No. 2. Letter dated 12-8-2005 referred to by respondent No. 3 is in the office order cannot be treated as an order of transfer. Therefore, the order issued by the respondent No. 2 is not legal and valid.
6. The second plank of argument of Learned Counsel for the petitioner is that though the petitioner has not completed his normal tenure of three years at Nardana, he has been transferred in the midst of the term, only with a view to accommodate the respondent No. 6. The respondent No. 6 has brought to bear political pressure on respondent Nos. 2 and 3 from MLA and Ex-Chairman of the Legislative Council. Therefore, the order of transfer suffers from vice of mala fides and has to be struck down.
7. Learned counsel for the petitioner contends that the respondent No. 2 is the Appointing Authority of the Officers from the cadre of Deputy Engineer, drawing salary in the pay scale of Rs. 8000 to 12,000. According to Learned Counsel, the impugned order of transfer dated 16-8-2005 is issued by the respondent No. 3 who is the Regional Head and is, therefore, illegal. Before this Court as well as before the Tribunal, it is submitted on behalf of respondents 1 to 5 that the order of transfer is issued by the respondent No. 2. The order is communicated to the respondent No. 3 by letter dated 12-8-2005. On the basis of this communication, the respondent No. 3 who is the Regional Head, has issued office order of posting of the incumbents. During the course of hearing the original record was called. On the basis of the contents of the record, learned AGP Shri Tambe, has submitted that the procedure for transfer was followed. The proposal for transfer was placed before the Chief Minister and was approved by him. After this approval, the order was communicated to respondent No, 3 by letter dated 12-8-2005. Therefore, the order passed by respondent No. 3 in respect of posting of Officers within his region does not suffer from any illegality. It can be seen from the record that the procedure for effecting transfer was followed. The proposal for transfer was approved by the Chief Minister. Therefore, communication of the order by letter dated 12-8-2005 can, at the most, be treated as an irregularity and not an illegality. It is well-settled principle of law that if a thing is required to be done in a particular manner, it has to be done in that manner and that manner alone. In this behalf reference can be made to the ruling of the Apex Court in the matter of Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd. . Considering provisions of sections 20 and 21 of the Gujarat Town Planning and Urban Development Act, 1976, in para No. 40 of the report, it is observed by the Apex Court that :
The statutory interdict of use and enjoyment of the property must be strictly construed. It is well-settled that when statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of the statute. They must act within the four-corners thereof.
8. It was, therefore, obligatory on the part of the respondent No. 2 to issue proper transfer orders. However, having regard to the fact that the required procedure was followed and only the mode of communication of the transfer order was not proper, at the most, the communication of the order of transfer suffers from vice of irregularity and not an illegality. Respondent No. 3 being the Regional Head was competent to pass an office order in respect of posting of the Officers within the region, on the basis of the communication from respondent No. 2. Having regard to these facts, it is not necessary to interfere with the finding of the Tribunal that the impugned order of transfer is not illegal. However, we deem it necessary to emphasise that the practice followed in this case has to be deprecated.
9. The second plank of the argument of Learned Counsel for the petitioner is that the order of transfer is mala fide. To establish mala fides, it was averred by the petitioner in the Original Application that MLA Shri Patil, was taking keen interest in this matter and on account of political influence brought to bear on respondents 2 and 3, the petitioner was transferred though he had not completed his normal tenure at Nardana. The petitioner could not substantiate these averments. However, in the Rejoinder, for the first time, a reference was made to the letter of Ex-Chairman of Legislative Council regarding transfer of respondent No. 6 to Amalner. The Tribunal found that there was no material on record to substantiate the allegation that MLA Shri Patil influenced the respondent Nos. 2 and 3 for effecting transfer of the petitioner. It is further found by the Tribunal that the letter purportedly written by Ex-Chairman of the Legislative Council filed on record with the rejoinder cannot be taken into consideration as the source from where the letter is obtained had not been disclosed. Learned counsel for respondent No. 6 has canvassed this reasoning before us. We cannot approve such an approach. A document cannot be discarded merely because the source is not disclosed. What is required to be considered is whether the document is relevant and admissible. If it is admissible in evidence, the document can be considered if it is properly proved according to the Rules of Evidence. In this behalf, a reference can be made to the ruling of the Apex Court in the matter of Pushpadevi M. Jatia v. M. L. Wadhavan . In this case, the Apex Court endorsed the already established principle that relevant evidence can be taken into consideration irrespective of the method by which it was obtained.
10. To ascertain the disputed facts, relevant record was requisitioned. It was found that the letter though not exactly same as the copy of the letter placed on record by the petitioner was in the file. The letter of Ex-Chairman is regarding posting of respondent No. 6 at Amalner. Though an objection was raised to the admissibility of the said letter, the Tribunal did consider the impact of this letter and found that the material on record does not justify allegations of mala fides regarding the order of transfer. It was submitted before the Tribunal as well as before this Court that there were some complaints against the petitioner. Therefore, in the exigency of administration, decision was taken to transfer the petitioner to Dhule and respondent No. 6 was posted in his place. For establishing mala fides, Learned Counsel for the petitioner has also referred to the Circulars issued by the Government from time to time, claiming that the transfer being a mid-term transfer effected before completing tenure of three years, must be regarded as mala fide. Reference is made to Clause (2) of the Circular dated 27th November, 1997. This clause lays down that the normal tenure of Government employee at a place is of three years. It is, however, clarified that ordinarily the employee should not be disturbed unless he completes one year at the place of his posting. Learned counsel for respondent No. 6 has rightly pointed out that so far as the petitioner is concerned, he has completed two years and three months at this place. It is further submitted that as the petitioner's tenure was for a period of more than one year, no inference regarding mala fides can be drawn on the basis of the order of transfer. It can be seen that Circular dated 27-11-1997 does not prohibit transfer for a period of three years. Admittedly, the petitioner had completed one year at Nardana. Therefore, on the basis of this Circular, no inference regarding mala fides can be drawn, as tried to be contended by the Learned Counsel for petitioner. After considering all these aspects, the Tribunal has come to the conclusion that the petitioner has failed to establish mala fides. In this view of the matter, the Tribunal has dismissed the Original Application. It is pertinent to bear in mind that unless a clear case of mala fides is established, judicial review is normally not permissible. For this purpose reference can be made to the ruling of the Apex Court in the matter of State of U.P. and Ors. v. Goburdhan Ltd. It is observed in Para No. 8 as follows:
The transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or condition of service. Unless the order of transfer is shown to be an outcome of mala fide in exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made." In Para No. 9 of the Report, it observed that:
A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess niceties of the administrative needs and the requirement of the situation concerned.
11. Considering the material placed on record and the principles of law governing the subject, no fault can be found with the findings recorded by the Tribunal. Therefore, we do not deem it necessary to interfere with the impugned order passed by the Tribunal. The petition is, thus, dismissed. Rule is discharged. However, in the facts and circumstances of this case, parties shall bear their own costs.