A government servant cannot be transferred as a penalty based on a complaint. The transfer order must be issued by the Administrative Head on application of mind and uninfluenced by the recommendations made by elected representatives.

JUDGMENT

Dharam Chand Chaudhary, J. - The petitioner is working as Lecturer (English) and presently posted as such in Government Senior Secondary School, Gharoh, District Kangra, H.P. She has now been ordered to be transferred to Government Senior Secondary School, Daulatpur-Chowk, District Una H.P., vide impugned order Annexure P-1.

2. The complaint is that the transfer of the petitioner has been ordered on the basis of a D.O. note issued by Smt. Sarveen Chaudhary, Minister, Government of Himachal Pradesh. It is keeping in view such averments, following orders came to be passed in this writ petition on 27.11.2019:-

" Notice. Mr. Himanshu Mishra, learned Additional Advocate General, appears and waives service of notice on behalf of respondents No.1 and 2/State. Issue dasti notice to respondent No.3, returnable on 16.12.2019, on filing Process Fee within two days.

In view of the averments in the writ petition that the petitioner has been transferred from GSSS, Garoh, District Kangra to GSSS, Daulatpur Chowk, District Una, on the basis of D.O. note, learned Additional Advocate General to produce the entire record leading to the transfer of the petitioner vide impugned order of transfer Annexure P-1, on the next date.

List on 16.12.2019. Since the petitioner stands relieved from the present place of posting, pursuant to the transfer order (Annexure P-1), therefore, in the interim, the respondents shall not compel her to join duties at transferred station and rather allow her to avail leave of the kind due."

3. Consequently, learned Additional Advocate General has produced the record. The averments in the writ petition that the petitioner has been transferred on D.O. note find support from the records as it is the office of the Chief Minister who has recommended her transfer from the present place of posting by way of such note. However, according to learned Additional Advocate General, the parents of the children have made complaints to the Pradhan, Gram Panchayat, Gharoh and the Principal, Government Senior Secondary School, Gharoh, against the petitioner that she is inefficient and also not intelligent and it is for this reason the result of the students, to whom she taught English, is poor every year. She therefore, was sought to be transferred from Government Senior Secondary, Gharoh.

4. We fail to understand as to how the petitioner allegedly inefficient and incompetent teacher will improve her functioning on her transfer to other school. We also fail to understand that what will happen to the students studying in that school where she is being transferred, if she is inefficient and incompetent teacher.

5. As a matter of fact, in the event of there being any complaint, the petitioner should have been dealt with and proceedings initiated against her in accordance with law and if proved to be inefficient and incompetent teacher, appropriate penalty imposed upon her. Transfer on the basis of complaint is not penalty and in the case in hand, if the petitioner is not efficient in her functioning, the career of the students studying in the school where she has been transferred is likely to be effected adversely. Therefore, as per the ratio of the judgment of this Court in Raj Kumar versus State of Himachal Pradesh and Others,2014 LatestHLJ Supp 243 (HP) , a Government Servant cannot be transferred by way of penalty from one place to another on the basis of complaint. The present, on the basis of the record produced, is rather a case where the transfer of the petitioner has been ordered on the basis of D.O. Note, issued by the office of Hon''ble Chief Minister.

6. True it is that this Court in Sanjay Kumar vs. State of Himachal Pradesh and others, (2013) 3 ShimLC 1373 and also Amir Chand vs. State of Himachal Pradesh,2013 2 HimLR 648 and in its recent judgment rendered in CWP No.2490 of 2019, titled Dalip Singh versus State of H.P. and Others has held that the Chief Minister and Ministers/elected representatives may recommend the tr