JUDGMENT - B.H. MARLAPALLE, J.:---Heard learned Additional Advocate General for the petitioners and Mr. S.B. Talekar learned Counsel for the respondent. Rule. The learned Counsel for respondent waives service. Rule taken up for final hearing forthwith. 2. The respondent approached the Maharashtra Administrative Tribunal Bench at Aurangabad (the Tribunal for short) in Original Application No. 819/2000, challenging the order dated 19-10-2000, issued by the State of Maharashtra through the Revenue and Forests Department, recalling him from the foreign service and posting him in Nagpur Division. The substantive prayer made before the Tribunal by the respondent reads thus : "(A) To quash and set aside the impugned orders dated 19th October, 2000 issued by the Under Secretary to Government, Law and Judiciary Department (Exh. "E") dated 19-10-2000 issued by the Desk Officer to Government Revenue and Forest Department (Exh. "F"); and dated 19-10-2000 issued by the Charity Commissioner, MS, Mumbai (Exh. "G") recalling the applicant from foreign service and transferring him to Nagpur." Pursuant to the order issued by the Department of Revenue Forests, the Additional Secretary to the Department of Law and Judiciary issued a communication on the same day addressed to the Charity Commissioner, Maharashtra State, recalling the officer and accordingly, the Charity Commissioner passed an order on 19-10-2000, relieving him from the post of "Officer on Special Duty" and charge of the said post was directed to be handed over to the Sub-Divisional Officer at Shrirampur, Dist. Ahmednagar. 3. The challenge to the order of recall, as made before the Tribunal and as propounded before us by Shri S.B. Talekar, learned Counsel for the respondent, is on the following grounds : (A) The tenure of the respondent officer, as per the order passed by the Charity Commissioner dated 14-6-1998, was for a period of five years from the date he took over the charge and as per the Scheme, governing the Shri Saibaba Sansthan, Shirdi, the said tenure cannot be reduced by the Government, as the Scheme is a decree which has been confirmed by this High Court. (B) The provisions of the Scheme override the provisions of the Maharashtra Civil Services (Joining Time, Foreign Service and Payment during Suspension, Dismissal and Removal) Rules, 1981 (M.C.S. Rules, 1981) for short). (B) The provisions of the Scheme override the provisions of the Maharashtra Civil Services (Joining Time, Foreign Service and Payment during Suspension, Dismissal and Removal) Rules, 1981 (M.C.S. Rules, 1981) for short). (C) The impugned order was issued under political pressure and to the detriment of the interest of the Sansthan as well as the respondent officer inasmuch as the impugned order is punitive in nature and casts a stigma on the career of the respondent officer. (D) The transfer order was issued on extraneous grounds and grounds which did not exist, especially when the Additional Divisional Commissioner, Nasik had conducted an enquiry and found the complaints to be baseless and without any substance. 4. When the Original Application came up for the first time before the Tribunal for hearing, there was no reply filed by the State Government and ad interim order dated 23-10-2000 came to be passed granting stay to the impugned order. The Tribunal mainly considered the provisions of Clause 8 of the Scheme, governing the Sansthan management, and held that unless that procedure was followed, the officer could not be removed from the post he was holding under the Sansthan. In para 7 of the said order, the Tribunal observed: "In substance, while passing the impugned order, the respondent authorities have not brought on record the material and record as required for removal of the Executive Officer as laid down in Clause 8 of the said Scheme." The Government, thereafter, filed its reply before the Tribunal and prayed for vacating the interim stay granted on 23-10-2000. The learned Vice Chairman of the tribunal heard both the sides and confirmed the earlier ad interim order by his order dated 7-11-2000, by giving the following reason : "Prima facie, it appears that the impugned order issued by the Charity Commissioner dated 19-10-2000 (Exh. "G") relieving the applicant of his charge, merely because he received a communication of the Government, shows non-application of mind to me. The Government ought to have studied the provisions of Scheme under which the applicant was working. The MCSR which provides for sending a person on deputation on foreign service appears not applicable to the case at hand. The Scheme to the extent it provides terms and conditions contrary to the MCSR, prima facie supercedes the terms and conditions in the MCSR. The MCSR which provides for sending a person on deputation on foreign service appears not applicable to the case at hand. The Scheme to the extent it provides terms and conditions contrary to the MCSR, prima facie supercedes the terms and conditions in the MCSR. Under MCSR deputation can be for a maximum period of 4 years but under the Scheme, it is always for five years." 5. The respondent officer was holding the post of Deputy Collector (Employment Guarantee Scheme) at Nagpur and by an order dated 23-10-1997 passed by State Government through Revenue and Forests Department, he was sent on deputation to the foreign service viz. Shri Saibaba Sansthan, Shirdi, on the Ex-cadre post of Officer on Special Duty for a period of two years from the date he would assume the charge. It was also stated in the said order that the Principal Secretary, Law and Judiciary Department, would issue necessary orders for the said appointment and on receiving such an order, the respondent officer was called upon to joint the said post under the Sansthan. On 25-5-1998, the Additional Secretary in the Department of Law Judiciary, issued a communication addressed to the Charity Commissioner, Maharashtra State, informing him that the State Government had approved the appointment as Executive Officer of the Sansthan and requested him to issue necessary orders. The Charity Commissioner issued the appointment order on 3-6-1998 for a period of five years from the date of assuming the charge. The Officer, accordingly, reported for duty and signed an agreement with the Sansthan. 6. The Charity Commissioner addressed a letter on 30-9-1999 to the Chief Secretary, Government of Maharashtra, in response to the order issued by the State Government on 27-9-1999 by which, the respondent officer was recalled from the foreign service and was posted as Deputy Collector-cum-Competent Authority Urban Agglomeration, Sangli. The Charity Commissioner urged before the State Government that as per the scheme, governing the management of the Sansthan, the tenure of the officer appointed by him was for five years and the respondent officer was assigned with certain responsibilities and cutting short the tenure would amount to breach of the conditions of the scheme. The Charity Commissioner urged before the State Government that as per the scheme, governing the management of the Sansthan, the tenure of the officer appointed by him was for five years and the respondent officer was assigned with certain responsibilities and cutting short the tenure would amount to breach of the conditions of the scheme. In his opinion, no such order of transfer could be made unless there was concurrence from the Chief Election Officer of the State of Maharashtra as Model Code of Conduct was in force and the election process was not over. The Charity Commissioner, therefore, requested the Chief Secretary, to look into these aspects. This request of the Charity Commissioner was replied to by a letter dated 12-10-1999 by the Principal Secretary to the Government, Revenue and Forests Department, reiterating the Government's stand that the respondent officer was on deputation to the foreign service for a period of two years and under Rule 40 of the MCS Rules, 1981, the Government had the powers to recall him at any time before the expiry of the period of deputation if his services were required by the Government in the interest of public service. It was further stated that the respondent officer was deputed on foreign service by an order dated 23-10-1997 on the standard terms and conditions and the condition that he should be retained for five years was inconsistent with the deputation rules as well as right of the Government to recall him at any time before the expiry of the period of deputation. 7. It is well recognised in the service jurisprudence that an order of transfer is liable to be interfered with by a Competent Court if it is shown to have been passed without authority in law and/or it suffers from malice/victimization. At the same time, the transfer order may also be interfered with if it carries stigma on the officer's career. In our opinion, all these issues have not been considered by the Tribunal in the impugned orders before us. On the other hand, the Tribunal has proceeded solely on the basis of Clause 8 of the Scheme, governing the management of the Sansthan, and recorded a prima facie finding that unless the procedure therein was complied with, the respondent officer could not be removed. On the other hand, the Tribunal has proceeded solely on the basis of Clause 8 of the Scheme, governing the management of the Sansthan, and recorded a prima facie finding that unless the procedure therein was complied with, the respondent officer could not be removed. We have gone through the relevant provisions of the scheme with the help of the learned Counsel for the respondent officer and we find overselves unable to agree with the prima facie view recorded by the Tribunal. Clause 8 of the Scheme, pertains to the removal of the officer on account of punishment. The Government in its reply before the Tribunal made it clear that the officer was not recalled under any political pressure or by way of political ploy or punishment. It was specifically stated in para 19 of the said reply: "19. As regards para No. 7(16) of the application the deponent say and submit that the applicant is not transferred but repatriated because of the complaints filed against him in Shirdi Police Station in F.I.R. No. 36/2000 under sections 143, 149, 354, 323 and 506 by Shri Brijmohan Suri, a Saibaba devotee from Amrutsar, Punjab. A complaint of molestation of his relative Miss Kiran is also filed in Shirdi Police Station. Furthermore, in Shirdi Police Station more complaints (F.I.R. No. 103/1999) are filed against the applicant under sections 306 and 34. Keeping in view all these complaints and to keep the holy atmosphere of Shirdi intact, the applicant is repatriated from deputation and not due to political pressure." 8. Rule 40(4) of the MCS Rules 1981 states that transfer of a Government Servant to a foreign service should be made on the standard terms and conditions, as in Appendix II and no departure from the prescribed terms and conditions shall be permissible. The standard terms and conditions of transfer of a Government Servant to a foreign service have been set out in Appendix II to the said Rules and Clause I of the said conditions states that the Government/Competent Authority reserves the right to recall him at any time before expiry of period of deputation if his services are required by the Government in the interest of public service. Clause 8 of the Scheme, which has been relied upon by the Tribunal, in support of the impugned order, reads thus : "(1) On the recommendation of the Board supported by not less than two third of the number of members present and voting the Charity Commissioner may remove any member of the Board including the Chairman and the Executive Officer, if he is guilty of misconduct in the discharge of his duties including being found guilty of breach of trust, negligence, misapplication or misappropriation of funds or for having caused loss, damages wastage of the property of the said trust or of any disgraceful conduct in public life or for acting in any manner detrimental to the interest of the said trust or devotees visiting Shirdi or has become incapable of performing his duties as a member : Provided that no member shall be removed from office unless he has been given an opportunity to furnish his explanation. Provided further that such removal shall be without prejudice to any other action civil and/or Criminal as such person may be subject to under the law then in force. (2) At the time of removing the member Charity Commissioner may determine any loss caused by such member to the said trust and may direct the Executive Officer to recover the same from the defaulting member. (3) On receipt of such recommendation it shall be lawful for the Charity Commissioner to suspend such member and in case of the Chairman or Executive Officer direct some interim arrangement to be made. (4) On suspension or removal of a member, the Charity Commissioner may direct him to hand over immediately possession of any books of accounts and any property of the trust held by him and the member shall comply with such direction. (5) An action under this clause can be suo motu started by the Charity Commissioner on receipt of a report under section 41-B of the Bombay Public Trusts Act, 1950 in respect of an enquiry instituted by the Charity Commissioner on receipt of any complaint." 9. We may also refer to the terms and conditions, governing the appointment of the Executive Officer, as are set out in the scheme (Pg. 16 of the scheme). We may also refer to the terms and conditions, governing the appointment of the Executive Officer, as are set out in the scheme (Pg. 16 of the scheme). "(1) The Charity Commissioner shall appoint an Executive Officer for the Sansthan who unless resigns or removed as hereinbefore provided shall hold office for a period of five years. The outgoing Ex-Officer shall be eligible for being considered for reappointment, if willing. (2) The Executive Officer shall be selected by the Charity Commissioner in consultation with the State Government from amongst persons in active service not below the rank of Deputy Collector or an officer who is in the opinion of the State Government is of equivalent rank or an officer in the Charity Organization who is not below the rank of Deputy Charity Commissioner or a person who has retired from such service and who is desirous to serve the Sansthan. (3) The Executive Officer if from active service shall be entitled to his grade pay normal increments and promotions due to him in his own right if he would not have been sent on deputation here. He shall also be entitled to a deputation pay of 25% of basic grade pay or Rs. 300/- as a special pay whichever is more and other allowances as may be admissible to him under Bombay Civil Services Rules. If the Executive Officer is a person who has retired from Government service his pay and allowances shall be fixed by the Charity Commissioner. (4) The pay and allowances of the Executive Officer shall be drawn by him from the Sansthan Funds. The Sansthan shall also pay the pension contribution of such Executive Officer if he is in active Government Service. (5) The Executive Officer shall be entitled to leave and other facilities of T.A. etc. as in case of Government Servant of the grade to which he belongs and all sums payable in this behalf shall be drawn by him from the Sansthan Funds. (6)(a) Executive Officer may resign by sending his resignation to the Charity Commissioner and on Charity Commissioner accepting the same, it shall be effect. as in case of Government Servant of the grade to which he belongs and all sums payable in this behalf shall be drawn by him from the Sansthan Funds. (6)(a) Executive Officer may resign by sending his resignation to the Charity Commissioner and on Charity Commissioner accepting the same, it shall be effect. (b) Executive Officer may be removed by Charity Commissioner on receipt of recommendation by Board of Management, for reasons mentioned in Clause 8(1) Charity Commissioner may give opportunity to Executive Officer of being heard before passing any order." The above quoted terms clearly go to show that a Government Officer on deputation under the Sansthan continues to be a Government Officer and shall be entitled for all the service benefits like annual increments, promotion, etc. as if he is in Government Service directly. Clause (II) of these terms states that the Executive Officer shall be selected by the Charity Commissioner in consultation with the State Government from amongst the persons in active service not below the rank of Deputy Collector or an officer who in the opinion of the State Government is of equivalent rank or an officer in the Charity Organization who is not below the rank of Deputy Charity Commissioner or a person who has retired from such service and who is desirous to serve the Sansthan. There is nothing in these conditions imposing a ban on the Government's right to recall the officer on deputation at any time by invoking its powers under Rule 40 of the MCS Rules, 1981. Recalling from a Ex-cadre post does not amount to a punishment by any stretch of imagination and we are, therefore, satisfied that the provisions of Clause 8 of the Scheme are not applicable in the instant case. On this ground alone, the orders passed by the Tribunal require to be quashed and set aside. The officer appointed shall hold office for five years does not imply that the Government cannot invoke its powers of repatriation earlier than five years. 10. We may also observe that the Government before the Tribunal consistently took a stand that the impugned order was not by way of transfer but it was an order of repatriation/recalling. The officer appointed shall hold office for five years does not imply that the Government cannot invoke its powers of repatriation earlier than five years. 10. We may also observe that the Government before the Tribunal consistently took a stand that the impugned order was not by way of transfer but it was an order of repatriation/recalling. It would be necessary for the Tribunal to decide this preliminary issue as to whether the challenge raised by the respondent officer is tenable when the Government has absolute right to recall the officer under Rule 40 of the MCS Rules, 1981. The Tribunal appears to have proceeded on the basis that the impugned order was a transfer order. We do not desire it appropriate to make any observations on this issue at this stage and we leave it to the Tribunal to deal with the same. 11. Even if it is accepted that the respondent officer has been doing an excellent work under the Sansthan and he has been commended for his work in the investigation/enquiry carried out by the Additional Divisional Commissioner, he has no vested right to continue in the foreign service for a maximum period of 4 or 5 years as the case may be. The reasons given by the Government for his recall on the face of it appear to be in the interest of the service and career of the officer himself. If such complaints, even if frivolous, are filed with the Police Station against a Government Officer working at a holy place, it is desirable, in public interest, that the officer is shifted and posted at some other place. This action of the Government protects the interest of the State as well as the officer and the institution where he was deputed. 12. We may also observe that the terms of the scheme cannot override the powers of the Government as an employer and the Rules which have been framed by the Government and approved under Article 309 of the Constitution of India cannot be made obsolete by the terms of the scheme, even if it has been framed by way of decree passed by the Civil Court and the said decree has been confirmed by this Court and therefore, the contentions of Mr. S.B. Talekar, learned Counsel for the respondent officer that the conditions of the scheme must override the provisions of Rule 40 of the MCS Rules, 1981 are unsustainable. The other issues raised by Shri S.B. Talekar, learned Counsel for the respondent officer, can be gone into by the Tribunal in the pending original application and we deem it appropriate not to deal with them while considering the challenge against the interlocutory orders. The learned Counsel also submitted that the State Government was a party to the scheme framed as per the order of City Civil Court and therefore, the terms of the scheme are binding on the Government. Even if such a contention is accepted, that does not mean that the Government has given up its powers of recalling the officer on foreign service. 13. In the result, we allow the petition and quash and set aside the impugned orders dated 23-10-2000 and 7-11-2000 passed by the Tribunal in Original Application No. 819/2000. We direct the Tribunal to dispose of the pending Original Application No. 819/2000 as expeditiously as possible on its own merits and without being influenced by the observations made by us in this judgment. 14. Before we part with the case, we wish to make some observations for the Government to follow in future. 15. Shri Saibaba Sanstha at Shirdi is a fast growing institution and it has undertaken multifarious activities for the upliftment of the society around as well as for the benefits of the devotees. Though it is managed by a Board of Directors, the Executive Officer has a key role to play in the implementation of the decisions taken by the trustees. Such an officer is required to enforce the decisions/resolutions efficiently and maintain the time schedule for execution. His integrity and efficiency is of paramount importance for the interest of the Sansthan, the devotees and the society around. It would be, therefore, necessary for the State Government that while deputing a Government Officer, a minimum tenure for such a foreign service is prescribed and maintained, unless of course the powers under Rule 40 of MCS Rules, 1981 are invoked or the management of the trust persuades the Government to recall such an officer earlier. In the instant case, the officer was given a tenure of two years which we feel is not adequate. In the instant case, the officer was given a tenure of two years which we feel is not adequate. Though the terms and conditions set out under Rule 40 of the MCS Rules, 1981 stipulate a maximum tenure of four years of foreign service, we suggest that a minimum tenure for an officer to be deputed to the Sansthan should be three years so that there is a stability to the administration of the trust and unless such a tenure is assured, response from the officer concerned as well as the management of the trust may not be self motivated and it would result into an uncertainty in the governance of such a fast growing institution. The State Government may, therefore, consider our recommendations in future and take appropriate steps to ensure that a competent and upright officer is deputed to the Sansthan in the vacant post at the earliest possible. 16. At this stage, Shri S.B. Talekar, learned Counsel for the respondent officer, made an oral application for certificate for appeal to the Supreme Court under Article 134-A of the Constitution of India and stay of our judgment for a period of two weeks. We are satisfied that in the facts and circumstances of the instant case, no substantial questions of law of general importance are involved and therefore, we reject the application for certificate for leave appeal. We also hold that the prayer for stay of our order is devoid of merits and same is also rejected. Writ petition allowed. -----