The court emphasized the importance of compliance with the provisions of the Transfer Act, particularly the requirement of approval by the Chief Minister under Section 27(2) and the conditions for transfer under Section 18(4).

JUDGMENT

1. The petitioner, in the present writ petition, has given a challenge to the impugned order of transfer dated 20.01.2021, as was passed by respondent no. 1, whereby her services of the petitioner, which she was discharging, as an In-charge Medical Officer, E.S.I. Dispensary, Jaspur, District Udham Singh Nagar, have been sought to be transferred from the said place of posting to Kotdwar, District Pauri Garhwal. The impugned order of transfer, as had been passed by the Secretary, Labour Department, to the State of Uttarakhand, had been passed by making a reference to the provisions contained under Section 27, as well as Section 18(4) of the Transfer Act. Both the provisions are extracted hereunder:

"27. Removal of difficulties in the application of the Act. - (1) After the promulgation of this Act, this Act shall have over-riding effect on Acts/Annual Transfer Policies of other departments:

Provided that if any change in any provision of this Act, is required by any department due to any specific circumstances of the department or any deviation in necessary or relaxation is indispensable, the proposal of such changes/deviations/relaxations shall be submitted with reasons before the committee constituted under the Chairmanship of Chief Secretary and consisting the following members-

(a) Additional Chief Secretary/ Principal Secretary Forest and Infrastructure Development Commissioner;

(b) Additional Chief Secretary/ Principal Secretary Agricultural Production Commissioner; and

(c) Principal Secretary, Personnel as its member and necessary changes/deviations/ relaxations shall be allowed after the approval of the Chief Minister on recommendations made by this committee.

2. This committee shall submit its recommendations for the approval of Chief Minister regarding the difficulties arising in application of this Act or such unforeseen matters which are not included in this Act, thereafter the State Government may make rules as required."

"18. Procedure of Posting on Appointment/Promotion and other Transfer. - In addition to annual/general transfer, the procedure of posting in appointment/promotion and other transfers shall be in following conditions, as follows-

(1).......

(2).......

(3).......

(4) On enquiry, on the grounds of serious complaints of misconduct, misbehaviour with senior officers and lack of interest in work, etc. after necessary enquiry and confirmation, transfer of such employee may be made on administrative grounds:

Provided that the transfer on administrative grounds shall not be made casually or on the basis of complaints of routine nature and in the orders of such transfer it shall be necessary to mention Administrative Grounds."

2. When yesterday, the matter was taken up, the learned Senior Counsel for the petitioner has argued the writ petition under the pretext that, the impugned order of transfer, where it makes a reference to Section 27, it does not make a reference to the compliance of sub-section (2) of Section 27, which contemplates a ratification/approval of the decision, which had been taken by the Committee, which is provided under sub-section (1) of Section 27 of the Act. To which, the learned Additional Chief Standing Counsel, was granted time to complete his instructions and make his statement about the compliance of sub-section 2 of Section 27 of the Act.

3. If the provisions contained under Section 27(2) of the Act itself is taken into consideration, it provides that, where the Committee, thus, constituted under sub-section (1) of Section 27 takes a decision, it has had to be compulsorily approved by the Chief Minister, under sub-section (2) of Section 27.

4. The argument of the petitioner, is that the reference to Section 27 and the decision taken by the Committee, thus, provided under sub-section (1) of Section 27 itself, was not validly constituted and even the decision making process itself is bad in the eyes of law. There are two reasons for not accepting this argument of the learned Senior Couns