MS. X versus REGISTRAR GENERAL, HIGH COURT OF MADHYA PRADESH AND ANOTHER
[2022] 15 S.C.R. 57, Supreme Court of India, 2022
Outcome: Case Partly allowed (Granted)
Segment: Ratio
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MS. X
v.
REGISTRAR GENERAL, HIGH COURT OF MADHYA
PRADESH AND ANOTHER
(Writ Petition (Civil) No. 1137 of 2018)
FEBRUARY 10, 2022
[L. NAGESWARA RAO AND B. R. GAVAI, JJ.]
Judicial Services – Madhya Pradesh Higher Judicial Services
(recruitment and Conditions of Service) Rules, 2017 – Transfer
Policy of Madhya Pradesh High Court – Clause 9, 9(a) – Additional
District & Sessions Judge – Re-instatement in Service – Whether
the resignation of petitioner was voluntary – As per the Petitioner
(Additional District and Session Judge), she was sexually harassed
by Justice ‘A’ and thereafter she was transferred to other district –
She made a representation praying for an extension so that her
daughter completes her academic session – Her representation was
rejected – Consequent to which she resigned – Judges Inquiry
Commission (JIC) cleared Justice ‘A’ of all charges – However, JIC
found that the transfer of the petitioner was irregular and the
petitioner should be re-instated in the service – Her representation
to the Chief Justice of High Court for her reinstatement was rejected
by the Full Court twice despite the request made by Supreme Court
– Held: The transfer of the petitioner was effected mid-term though
she could have very well been transferred in general transfers, to
be effected in March-April – Neither the procedure as prescribed
under Clause 9 of the Transfer Policy of obtaining the comments
from the District Judge and the
Portfolio Judge were complied with,
nor the Transfer Committee considered the provisions of Clause
9(a) of the Transfer Policy – The rejection of the second
representation depicts total non application of mind by the then RG
as well as the then Judge of the Transfer Committee of the High
Court – Respondent failed to take into consideration the factors,
which were required to be considered, while deciding the
representation – There is no hesitation in holding that the petitioner
has established that her transfer order was in contravention of the
Transfer Policy and that the rejection of her two representations, in
addition of being contrary to the Transfer Policy, were also arbitrary
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– As such, the petitioner had discharged her burden and the onus is
shifted on the respondent to show that the petitioner’s transfer order
was fair and reasonable in the facts and circumstances of the case
– Respondent has failed to discharge its burden – In the peculiar
facts and circumstances of the case, the petitioner’s resignation,
could not be construed to be voluntary – Therefore, resignation of
petitioner is quashed and respondent is directed to re-instate the
petitioner.
Constitution of India – Art. 12 – High Court as a State –
While exercising its functions on the administrative side, the MP
High Court would also be a State within the meaning of Article 12
of the Constitution of India
Partly allowing the writ petition, the Court
HELD: 1.1 It could thus be seen that this Court has held
that mere reasonable or legitimate expectation of a citizen may
not by itself be a distinct enforceable right. It is further held that
the failure to consider and give due weight to it may render the
decision arbitrary. It has been held that the requirement of due
consideration of a legitimate expectation forms part of the
principle of nonarbitrariness, which is a necessary concomitant
of the rule of law. Every legitimate expectation is a relevant factor
requiring due consideration in a fair decision- making process.
Whether the expectation of the claimant is reasonable or
legitimate in the context is a question of fact in each
case.
Whenever the question arises, it is to be determined not
according to the claimant’s perception but in larger public interest
wherein other more important considerations may outweigh, what
would otherwise have been the legitimate expectation of the
claimant. It has been held that a bona fide decision of the public
authority reached in this manner would satisfy the requirement
of non-arbitrariness and withstand judicial scrutiny. It has been
held that the principle of fairness has an important place in the
law of judicial review and that unfairness in the purported exercise
of power can be such that it is abuse or excess of power. The
court should interfere where discretionary power is not exercised
reasonably and in good faith. [Para 40][80-B-E]
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1.2 It could thus be seen that though the Transfer Policy
may not be enforceable in law, but when the Transfer Policy has
been framed by the MP High Court for administration of the
District Judiciary, every Judicial Officer will have a legitimate
expectation that such a Policy should be given due weightage,
when the cases of Judicial Officers for transfer are being
considered. [Para 41][80-E-F]
2. It could thus be seen that the transfer of the petitioner
was effected midterm though she could have very well been
transferred in general transfers, to be effected in March April,
2014. Even in the agenda of the midterm transfers, which were
to be effected on various grounds, petitioner’s name was not
included. It was only after the then D & SJ, Gwalior addressed a
complaint to the then RG, seeking her transfer out of Gwalior,
the matter was placed immediately before the Transfer Committee
within days and the Transfer Committee approved the transfer of
the petitioner. Immediately after the receipt of the transfer order,
the petitioner made a representation on 9th July 2014, specifically
pointing out therein that her daughter was studying in Class 12th
and also undergoing FIITJEE coaching. The said representation
was rejected within two days. The petitioner had a legitimate
expectation of her representation being considered specifically
in view of Clause 9(a) of the Transfer Policy. The Transfer Policy
provides that on such representation being made, the RG shall
obtain the comments of the District Judge within a week and on
receiving his comments after necessary verifications, it was
required that the matter should be placed before the concerned
Portfolio Judge within a week, who was required to return the
file within a period of one week thereafter, with his comments/
opinion. Undisputedly, neither the procedure as prescribed under
Clause 9 of the Transfer Policy of obtaining the comments from
the District Judge and the Portfolio Judge were complied with,
nor the Transfer Committee considered the provisions of Clause
9(a) of the Transfer Policy. [Para 46 & 47][82-D-H; 83-A]
2.1 The petitioner had a legitimate expectation in view of
Clause 10 of the Transfer Policy to have her case considered for
posting at any of the 4 places in the event her request for retention
at the then present posting was not considered and as such, she
MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA
PRADESH AND ANOTHER
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made the second representation. The rejection of the second
representation depicts total non-application of mind by the then
RG as well as the then Judge of the Transfer Committee of the
MP High Court. The proposal of the then RG was made in a casual
manner and accepted by the then Judge on the Transfer
Committee in a mechanical manner. The transfer is sought to be
justified in view of Clause 22 of the Transfer Policy. One of the
grounds on which the transfer could be made in midterm, is that
the performance of such Judicial Officer is found to be below the
norms prescribed. The same is admittedly not available in the
present case. The petitioner’s performance in the assessment
made by the then D & SJ, Gwalior on 15th January 2014 for the
assessment year 2013, has been found to be ‘very good’. That
leaves us with the second ground available under Clause 22 of
the Transfer Policy, that a transfer can be made if the grounds
exist for initiating an inquiry against such a Judicial Officer. The
same is also not the case here. [Para 50 & 51][84-B-E]
2.2 It could thus be seen that this Court has held that there
is a presumption of validity of the State action and the burden is
on the person who alleges violation of Article 14 of the
Constitution of India to prove the assertion. It has been further
held that where no plausible reason or principle is indicated nor
is it discernible and the impugned State action appears to be
arbitrary, the initial burden to prove the arbitrariness is
discharged, thereby shifting onus on the State to justify its action
as fair and reasonable. If the State is unable to produce material
to justify its action as fair and reasonable, the burden on the person
alleging arbitrariness must be held to be discharged. The limited
scope of judicial review is only to satisfy that the State action is
not vitiated by the vice of arbitrariness and no more. It is equally
settled that it is not for the courts to recast the policy or to
substitute it with another which is considered to be more
appropriate. It has been held that the attack on the ground of
arbitrariness is successfully repelled by showing that the act which
was done, was fair and reasonable in the facts and circumstances
of the case. [Para 55][86-C-E]
3. The Court has no hesitation in holding that the petitioner
has established that her transfer order was in contravention of
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the Transfer Policy and that the rejection of her two
representations, in addition of being contrary to the Transfer
Policy, were also arbitrary. As such, the petitioner has discharged
her burden and the onus is shifted on the respondent No.1 to
show that the petitioner’s transfer order was fair and reasonable
in the facts and circumstances of the case. The respondent No.1
has utterly failed to discharge its burden. On the contrary, the
admissions made before the JIC by the then Judge on the
Transfer Committee clearly show that the transfer was made solely
on the basis of the complaint made by the then D & SJ, Gwalior
without verifying the veracity thereof. Not only this, but it is
evident that the then Judge had not looked into the annexures
attached with the representation, which included the fee receipts
etc. of the petitioner’s daughter. [Para 56][86-F-H; 87-A]
3.1 The petitioner was a Judicial Officer and a mother too.
The Judicial Officer in her must have been battling with the
mother in her. On one hand, was her career as a Judicial Officer;
on the other hand, was the possibility of her daughter’s educational
prospects and career coming into jeopardy, if she shifted to the
place of posting at Sidhi. A possibility of her mind engrossed with
a feeling, that she was subjected to injustice by the very Institution
of Judiciary, cannot be ruled away. What was she asking for? A
retention at Gwalior for a period of 8 months till her daughter
completes her
Class 12th. In the alternative, posting at any of the
4 cities, which were admittedly in Category ‘B’, where her
daughter could have better education facilities, and where the
vacancies existed. [Para 79][94-B-C]
3.2  Denial of her legitimate expectation could have led to
desperation, exasperation and frustration. The frustration of the
petitioner is evident from the language used by her in her
resignation letter. She stated that as she had been transferred to
Sidhi in the midacademic session of her daughter’s Class 12th, it
had mostly affected the crucial stage of career of her daughter.
She stated that therefore, she was left with no other option but to
resign from her post. It appears that in a gruesome battle between
a mother and a Judicial Officer, the Judicial Officer lost the battle
to the mother. [Para 80][94-D-E]
MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA
PRADESH AND ANOTHER
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4. The breakneck speed at which the events have taken
place in the present matter, gives rise to a suspicion, that there
is something more than which meets the eye. It will not be out of
place to mention that in some High Courts, a practice is followed,
that whenever a Judicial Officer having good track record tenders
his/her resignation, an attempt is made by the Senior Judges of
the High Court to counsel and persuade him/her to withdraw the
resignation. Valuable time and money is spent on training of a
Judicial Officer. Losing a good Judicial Officer without counselling
him/her and without giving him/her an opportunity to introspect
and re-think, will not be in the interest of either the Judicial Officer
or the Judiciary. This Court finds that it will be in the interest of
judiciary that such a practice is followed by all the High Courts.
[Para 85 & 86][99-B, G-H; 100-A]
Dr. Prabha Atri v. State of U.P. and Others, (2003) 1
SCC 701 : [2002] 5 Suppl. SCR 27; Somesh Tiwari v.
Union of India and Others (2009) 2 SCC 592 : [2008]
17 SCR 711 - relied on.
Additional District and Sessions Judge ‘X’. v. Registrar
General, High Court of Madhya Pradesh and Others
(2015) 4 SCC 91 : [2014] 13 SCR 300; Syed T.A.
Naqshbandi and Others v. State of Jammu & Kashmir
and Others (2003) 9 SCC 592 : [2003] 1 Suppl. SCR
114; Registrar General, High Court of Patna v. Pandey
Gajendra Prasad and Others (2012) 6 SCC 357 : [2012]
5 SCR 994;
Rajendra Singh Verma (Dead) Through
LRs and Others v. Lieutenant Governor (NCT of Delhi)
and Others (2011) 10 SCC 1 : [2011] 12 SCR 496;
Food Corporation of India v. M/s Kamdhenu Cattle Feed
Industries (1993) 1 SCC 71 : [1992] 2 Suppl. SCR 322;
Kumari Shrilekha Vidyarthi and Others v. State of U.P.
and Others (1991) 1 SCC 212 : [1990] 1 Suppl. SCR
625; Kalabharati Advertising v. Hemant Vimalnath
Narichania and Others (2010) 9 SCC 437 : [2010] 10
SCR 971; Union of India and Others v. Dhanwanti Devi
and Others (1996) 6 SCC 44 : [1996] 5 Suppl. SCR
32; The Regional Manager and Another v. Pawan
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Kumar Dubey (1976) 3 SCC 334 : [1976] 3 SCR 540 -
referred to.
Western Excavating (E.C.C) Ltd. v. Sharp 1978 I.C.R.
22; Lewis v. Motorworld Garage, 1985 WL 311068;
Goss v. Exxon 747 F 2nd 885; Pennsylvania State Police
v. Nancy Drew Suders 542 US 129- referred to.
Case Law Reference
[2014] 13 SCR 300
referred to
Para 6
[2003] 1 Suppl. SCR 114
referred to
Para 27
[2012] 5 SCR 994
referred to
Para 27
[2011] 12 SCR 496
referred to
Para 27
[1992] 2 Suppl. SCR 322
referred to
Para 39
[1990] 1 Suppl. SCR 625
referred to
Para 54
[2010] 10 SCR 971
referred to
Para 57
[2008] 17 SCR 711
relied on
Para 60
[2002] 5 Suppl. SCR 27
relied on
Para 83
[1996] 5 Suppl. SCR 32
referred to
Para 93
[1976] 3 SCR 540
referred to
Para 94
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)
No.1137 of 2018.
(Under Article 32 of The Constitution Of India)
Ms. Indira Jaising, Anand Grover, Sr. Advs., Ms. Astha Sharma,
Ms. Mithu Jain, Ms. Mantika Haryani, Sanjeev Kaushik, Advs. for the
Petitioner.
Tushar Mehta, SG, Bharat Singh, AAG, Ravindra Shrivastava, Sr.
Adv., Arjun Garg, Rajat Nair, Ms. Garima Tiwari, Aakash Nandolia, Ms.
Sagun Srivastava, Ms. Mrinal Elker Mazumdar, Manish Yadav, Ms.
Pratibha Yadav, Advs. for the Respondents.
MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA
PRADESH AND ANOTHER
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The Judgment of the Court was delivered by
B. R. GAVAI, J.
1. The petitioner has approached this Court in the instant writ
petition filed under Article 32 of the Constitution of India seeking the
following reliefs:
a.
“Issue an appropriate writ, order or direction in the nature
of mandamus to quash and set aside the order dated
11.01.2018 of Chief Justice of the High Court communicated
on 25.1.18 of Madhya Pradesh passed after the Full Court
Meeting, rejecting the application for reinstatement as
violative of Articles 14, 15, 16, 21 r/w. 233, 235 & 311 of
the Constitution of India and Natural Justice;
b.
Issue an appropriate writ, order or direction in the nature of
mandamus declaring that the Petitioner’s resignation from
the post of Additional District Judge VIII, Gwalior dated
15.07.2014 amounts to constructive dismissal due to the
employer’s conduct which applies in the Statutory context
where the term “Dismissal/dismissed” is used;
c.
Issue an appropriate writ, order or direction in the nature of
mandamus directing the reinstatement of the Petitioner as
an Additional District and Sessions Judge from the date of
her resignation i.e. 15.07.2014, with continuity in service at
S.No 134 of the list of District Judges(Selection Grade) of
the Gradation List according to Clause 4 of the Madhya
Pradesh Higher Judicial Services (Recruitment and
Conditions of Service) Rules, 2017, back wages according
to Clause 3(b) of the
Madhya Pradesh Higher Judicial
Services (Recruitment and Conditions of Service) Rules,
2017 and all service benefits and all consequential reliefs;”
2. The bare minimum facts, necessary for adjudication of the
present petition are as under:
The petitioner was selected in the competitive examination of
Madhya Pradesh Higher Judicial Services at District Entry Level (direct
recruitment from Bar) conducted in the year 2011, and stood 2nd in the
said examination. On her selection, the petitioner was posted as a 2nd to
1st Additional District and Sessions Judge (hereinafter referred to as the
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“AD & SJ”) at Gwalior on 1st August 2011. On 1st October 2012, the
petitioner was posted as VIIIth AD & SJ, Gwalior. In the 1st Annual
Confidential Report (hereinafter referred to as the “ACR”) of the
petitioner, assessed in January, 2013 by the then District and Sessions
Judge (hereinafter referred to as the “D & SJ”) and approved by the
then Portfolio/Administrative Judge (hereinafter referred to as “Justice
‘A’”) of the High Court of Madhya Pradesh at Gwalior Bench (hereinafter
referred to as the “MP High Court”), she was given ‘C/good’ grading.
The petitioner was assigned various additional responsibilities in the year
2013. In her 2nd ACR, assessed in the month of January, 2014 by the
then D & SJ and endorsed by Justice ‘A’, the petitioner was graded ‘B/
very good’.
3. It is the case of the petitioner that thereafter, she was sexually
harassed by Justice ‘A’. It is further her case that due to the said sexual
harassment and at the instance of Justice ‘A’, the then D & SJ addressed
a complaint dated 3rd July 2014 against her to the MP High Court. It is
further her case that on 7th July 2014, the Transfer Committee of the
MP High Court comprising of two Judges of the MP High Court, approved
the transfer of the petitioner from Gwalior to Sidhi. The said transfer
order was conveyed to the petitioner on 8th July 2014. On 9th July 2014,
the petitioner sent her first representation to the then Registrar General
(hereinafter referred to as the “RG”) of the MP
High Court, praying for
an extension of 8 months in Gwalior so that her daughter (studying in
Class 12th) completes her academic session. The same came to be
rejected on 11th July 2014. The petitioner, who was unaware about the
rejection of her first representation, sent her second representation on
11th July 2014, seeking alternative posting to 4 cities namely Sehore,
Raisen, Dewas or Ujjain so that her daughter could continue with her
education, which also came to be rejected on 14th July 2014.
4. The petitioner tendered her resignation on 15th July 2014, which
was accepted by the Government of Madhya Pradesh, Law and
Legislative Affairs Department on 17th July 2014. The petitioner was
informed about the acceptance of her resignation on 18th July 2014.
5. The petitioner thereafter on 1st August 2014 sent a
representation to Hon’ble the President of India, the Chief Justice of
India, with a copy to Chief Justice of MP High Court, with the following
prayer:
MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA
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(i)
Appropriate action be taken, after fact-finding;
(ii)
Re-consider circumstances under which petitioner was
coerced & exerted duress upon, until the only option she
had was to resign;
(iii)
Institute an appropriate mechanism for redressal of
grievances like the above, of sub-ordinate services judicial
officers.
6. Between 1st August 2014 and 18th December 2014, certain
events took place with regard to the Inquiry into the alleged conduct of
Justice ‘A’, which culminated in the judgment passed by this Court in the
case of Additional District and Sessions Judge ‘X’. v. Registrar
General, High Court of Madhya Pradesh and Others1. The said
events are duly recorded in the said judgment and therefore, it is not
necessary to refer to them in detail.
7. In pursuance to the aforesaid judgment of this Court, the Chief
Justice of India sought a preliminary inquiry report from the then Chief
Justice of the Karnataka High Court and on receipt thereof, constituted
an In-House Committee headed by the then Chief Justice of Allahabad
High Court. The said In-House Committee submitted its report on 2nd
July 2015. In the meantime, a Notice of Motion for the removal of Justice
‘A’ was moved by 58 Members of Parliament in the Rajya Sabha. The
said Motion was admitted by the Chairman, Rajya Sabha, the then Hon’ble
Vice-President of India on 25th March 2015. Accordingly, a Judges
Inquiry Committee (hereinafter referred to as the “JIC”)
came to be
constituted under Section 3 of the Judges (Inquiry) Act, 1968 (hereinafter
referred to as the “said Act”) comprising of a sitting Judge of this Court,
the then Chief Justice of the Karnataka High Court and a Senior Advocate
of this Court. Subsequently, in place of the Judge of this Court, who was
the Presiding Officer of JIC, another Judge of this Court was made part
of the JIC as the Presiding Officer. The JIC submitted its report on 15th
December 2017, which was tabled before the Rajya Sabha, and the
Rajya Sabha cleared Justice ‘A’ of all charges.
8. However, the JIC found that the transfer of the petitioner was
irregular and it was further found that in the circumstances prevailing
then, the transfer of the petitioner to Sidhi had become unbearable for
her to continue in service, resulting in her resignation. The JIC, therefore,
1 (2015) 4 SCC 91
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expressed its opinion that in the interest of justice, the petitioner should
be re-instated in service, in case she intends to re-join the service. The
JIC clarified that it was not within the purview of the Reference made
to them.
9. Pursuant to the recommendation of the JIC, the petitioner
addressed a representation to the then Chief Justice of MP High Court
on 21st December 2017 for her re-instatement in service. On 25th January
2018, the MP High Court through its RG communicated the rejection of
the petitioner’s representation by a Full Court in its meeting held on 11th
January 2018. The petitioner thereafter filed the present petition for the
reliefs which have already been reproduced hereinabove.
10. During the pendency of this petition, this Court passed an
order on 13th February 2019, requesting the MP High Court for
reconsideration of the issue of re-instatement of the petitioner in service.
The Full Court of the MP High Court rejected the said representation in
its meeting held on 15th February 2019. The Bench of this Court, which
had passed the order dated 13th February 2019, vide order dated 21st
February 2019, expressed that the said Bench should not deal with the
matter on merits and directed the matter to be placed before another
Bench. It appears that thereafter again suggestions were made by this
Court to the parties to amicably settle the matter. It appears that at one
point of time, this Court also suggested that the respondent No.1
should
re-consider the issue of petitioner’s re-instatement in service and that
after re-instatement, she could be sent on deputation outside the State or
she could be adjusted in some other State. It is the case of the petitioner
that though the said suggestion was acceptable to her, the MP High
Court re-iterated its stand. In this background, the matter has come up
before us.
11. At the outset, it is to be noted that, counsel for the petitioner
clarified that the petitioner is not pressing the present matter on the
ground of sexual harassment by Justice ‘A’, but is limiting her submissions
with regard to the transfer order being illegal and mala fide, and the
consequent resignation amounting to constructive dismissal. We have
therefore refrained ourselves from making any reference to the allegations
of sexual harassment made in the petition. We have also refrained
ourselves from mentioning the name of Justice ‘A’ or any of the Judges
of the MP High Court, who on the administrative side, had some role to
play in the matter, so also the Members of the District Judiciary, who
were directly or indirectly involved in the present case.
MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA
PRADESH AND ANOTHER [B. R. GAVAI, J.]
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12. We have heard Ms. Indira Jaising, the learned Senior Counsel
appearing on behalf of the petitioner and Mr. Tushar Mehta, the learned
Solicitor General of India appearing on behalf of the respondents.
13. Smt. Indira Jaising submitted that the MP High Court was
bound by the Transfer Guidelines/Policy of the High Court of Madhya
Pradesh incorporated on 12th January 2012 (hereinafter referred to as
the “Transfer Policy”). She submitted that as per the Transfer Policy,
the annual transfers normally take place by 15th of March every year
and the Judicial Officers transferred are given time to join up to 1st of
April so as to coincide with the academic session in schools. It is submitted
that as per the Transfer Policy, the normal tenure of a Judicial Officer at
a particular posting is of 3 years, and a period of 6 months or more is to
be treated as a full year. Accordingly, the petitioner could have been
transferred in March 2014 as she had already completed more than 2
years and 6 months till then. It is submitted that however, the petitioner
was transferred mid-term on 7th July 2014. It is submitted that the mid-
term transfer as provided under Clause 22 of the Transfer Policy can be
made on the limited grounds mentioned therein. Smt. Jaising submitted
that none of the grounds as mentioned in Clause 22 of the Transfer
Policy were available in the case of the petitioner.
14. Smt. Jaising further submitted that as per
the Transfer Policy
if a daughter of a Judicial Officer is studying at the place of his/her
current posting and is in the final year of the Board Examination or
University Examination and the Educational Institution where the
daughter is studying, does not have hostel facility for girls, the said Judicial
Officer is permitted to stay over the prescribed period. She further
submitted that the transfer of the petitioner was also violative of Clause
16 of the Transfer Policy inasmuch as a Judicial Officer is required to
first go from Category ‘A’ city to ‘B’ city, from ‘B’ to ‘C’, from ‘C’ to
‘D’ and from ‘D’ to ‘A’. However, the petitioner was directly transferred
from Category ‘A’ city to ‘C’ city. The learned Senior Counsel submitted
that the JIC, in its report, had clearly found the petitioner’s transfer to be
contrary to the Transfer Policy.
15. Smt. Jaising further submitted that from the record, it is clear
that the petitioner’s transfer was not made on administrative grounds,
but on the grounds of the complaint made by the then D & SJ, Gwalior.
It is submitted that the JIC had also found that the transfer of the petitioner
was made on the basis of the complaint made by the then D & SJ,
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Gwalior. It is submitted that the JIC had further found from the evidence
of the then Judge, MP High Court, who was a Member of the Transfer
Committee that, the transfer was made solely on the basis of the
complaint made by the then D & SJ, Gwalior.
16. Smt. Jaising further submitted that from the evidence of the
then Judge on the Transfer Committee recorded by the JIC, it was clear
that the representations of the petitioner were also not considered by the
Transfer Committee in the right earnest.
17. Smt. Jaising submitted that the petitioner’s resignation was an
outcome of the circumstances, in which she had no other option but to
tender her resignation and as such, was not a resignation in law but a
forced resignation, which amounts to constructive discharge. She relies
on the following judgments of the Court of Appeal of United Kingdom in
support of this proposition:
Western Excavating (E.C.C) Ltd. v. Sharp2;
Lewis v. Motorworld Garage3
She further relied on the following judgments of the US Court of
Appeals, Third Circuit to assert the point of hostile work environment
and institutional failure:
Goss v. Exxon4;
Pennsylvania State Police v. Nancy Drew Suders5
18. Smt. Jaising submitted that Article 11 of Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW)
to which India is a signatory, provides that a woman should be able to
work and discharge family duties at the same time. She submitted that
the petitioner’s transfer was
at such a place, where she could not have
been able to simultaneously discharge her duties as a Judicial Officer
and her duties towards the family. As such, the said transfer order was
in violation of Article 11 of CEDAW.
19. Smt. Jaising further submitted that the Full Court of the MP
High Court has failed to give justice to the petitioner inasmuch as her
grievance was not considered. She submitted that immediately after the
2 1978 I.C.R. 22
3 1985 WL 311068
4 747 F 2nd885
5 542 US 129
MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA
PRADESH AND ANOTHER [B. R. GAVAI, J.]
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petitioner had tendered her resignation, she had made a representation
within a fortnight i.e. on 1st August 2014 to Hon’ble the President of
India as well as the Chief Justice of India, with a copy to the Chief
Justice of the MP High Court for reconsidering the entire issue. She
further submitted that, as suggested by this Court, the petitioner is
foregoing her claims towards back wages and is only interested in serving
the august institution of Judiciary. She therefore prayed that the petition
be allowed and the petitioner be re-instated in service with continuity.
20. Per contra, Shri Tushar Mehta, the learned Solicitor General
appearing on behalf of the respondents submitted that the allegations
made by the petitioner with regard to sexual harassment are found to be
not established by the JIC. He submitted that the said findings were
recorded as back as on 15th December 2017, which were not challenged,
and in any case, cannot be questioned or assailed in ancillary proceedings
like the present one.
21. Shri Mehta further submitted that though, the findings of the
JIC with regard to transfer of the petitioner being irregular, are beyond
the scope of its “Terms of Reference”, at best, the transfer could be
construed to be irregular. He submitted that assuming that the transfer
order of the petitioner was irregular and even mala fide, the same having
not been challenged at the relevant point of time, the validity
thereof
cannot be challenged in the present proceedings. He submitted that the
concept of “coercion resulting into resignation” is a concept, which is
developed in the western countries with regard to labour jurisprudence,
and that in any case, such reliefs can be granted only when such a fact
is duly established by leading evidence.
22. The learned Solicitor General submitted that the only contention
of the petitioner with regard to coercion is that she had to resign on
account of mid-term transfer order. He submitted that a transfer is an
incidence of service. He submitted that a mid-term transfer cannot be
said to be “coercion” so as to force a person to resign from the service.
He submitted that for establishing a case of coercion, it will be necessary
for a person to establish, by leading cogent evidence, that not only
unbearable pressure was built but such a pressure was intended not just
to trouble an employee or to victimize an employee but to ensure that the
employee quits the job. He submitted that neither such circumstances
are pleaded nor asserted by the petitioner. In any case, he submitted that
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in the proceedings under Article 32 of the Constitution of India, it will not
be possible to arrive at such a finding.
23. Shri Mehta submitted that in any case, such a plea would not
be available to a Judicial Officer, who is discharging the sovereign function
of dispensing justice. He submitted that the Judicial Officers are trained
to be independent, fearless, non-impulsive and to act in accordance with
law and as such, the concept which applies to a workman cannot be
applied to a Judicial Officer. He further submitted that the allegations
made by the petitioner with regard to sexual harassment were made
only after she resigned from the service.
24. Shri Mehta submitted that any decision in the present
proceedings will have far-reaching effects in the future. He submitted
that if a mere circumstance of mid-term transfer coupled with
inconvenient family circumstances is considered by this Court to be
“coercion” to resign from service, it will open the floodgates of litigations.
It is submitted that if such a view is taken by this Court, all similarly
situated Judicial Officers would come up with such a plea, inasmuch as
every Judicial Officer is bound to have some or the other inconvenient
family problems. He submitted that if such a view is taken, it will have
far-reaching effects on the administration of the District Judiciary.
25. Shri Mehta submitted that the Full Court of the MP High Court
has taken a unanimous decision on more than one occasion to
reject the
petitioner’s representation regarding re-instatement in service. He
submitted that the observations made by the JIC with regard to the re-
instatement of the petitioner were beyond the scope of its “Terms of
Reference” and as such, the Full Court of the MP High Court has rightly
rejected the representation of the petitioner. He submitted that if a
unanimous decision taken by the Full Court of the MP High Court is
interfered with by this Court, it will not only stigmatize the individuals
manning the institution but the entire institution.
26. Shri Mehta submitted that the submissions, which he is making
are not on the instructions of the MP High Court, but are being made by
him as an Officer of the Court. He submitted that what is sought to be
urged by the petitioner is that the whole of the MP High Court as an
Institution connived together and ensured to create such circumstances,
that she had no other option but to tender her resignation. He submitted
that if the petitioner’s contention is accepted, it will have catastrophic
effects.
MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA
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27. Shri Mehta submitted that the scope of judicial review by this
Court of a decision of the Full Court of a High Court, is very limited. He
submitted that this Court cannot sit in an appeal over the decision of the
Full Court of a High Court. An interference would be permitted only in
the rarest of rare cases. He relies on the following judgments of this
Court in support of this proposition:
Syed T.A. Naqshbandi and Others v. State of Jammu &
Kashmir and Others6;
Registrar General, High Court of Patna v. Pandey Gajendra
Prasad and Others7;
Rajendra Singh Verma (Dead) Through LRs and Others v.
Lieutenant Governor (NCT of Delhi) and Others8
28. He therefore prays for dismissal of the petition.
29. Before we consider the rival submissions, we clarify that we
are not examining the correctness or otherwise of the decisions of the
Full Court of the MP High Court dated 11th January 2018 and 15th
February 2019. We are conscious of the fact that the scope of judicial
review of a decision of the Full Court of a High Court is extremely
narrow and we cannot sit in an appeal over the decision of the Full Court
of a High Court. There could be various factors and reasons which
could have weighed with the Full Court of the MP High Court while
rejecting the representation made by the petitioner in its resolutions dated
11th January 2018 and 15th February 2019. We have full respect for the
authority of the Full Court of the MP High
Court to arrive at such a
decision.
30. We therefore clarify that we are restricting the scope of enquiry
in the present matter only to examine the following issues, on the basis
of the factual scenario as has come on record in the present matter:
(i)
As to whether the order transferring the petitioner from
Gwalior to Sidhi dated 8th July 2014 is legal;
(ii)
As to whether the orders of the MP High Court dated 11th
July 2014 and 14th July 2014, rejecting the petitioner’s
6 (2003) 9 SCC 592
7 (2012) 6 SCC 357
8 (2011) 10 SCC 1
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representations dated 9th July 2014 and 11th July 2014
respectively, were legal; and
(iii)
As to whether the resignation of the petitioner dated 15th
July 2014 can be considered to be voluntary or the one
which has been forced due to circumstances.
31. Though, the issue directly involved in the present petition is
only the issue No. (iii), we find that it will be necessary to consider issue
Nos. (i) and (ii) inasmuch as our findings on the said issues will have a
direct bearing on the finding on issue No. (iii).
32. We further clarify that we are examining the present matter
purely considering it as a lis between an employee and an employer,
without in any way being influenced by the fact that one of the parties to
the lis is the MP High Court on the administrative side, and the other one
a Judicial Officer. We are of the considered view that the legal principles,
which would govern the dispute between an employer who is a State
and an employee, will have to be equally applied in the present case,
irrespective of the fact that one of the parties is a High Court and the
other one is a Judicial Officer.
33. Though, arguments have been advanced before us with regard
to constructive discharge and the reliance is placed on the judgments of
Courts in United Kingdom and United States, we do not find it necessary
to go into that issue. We are of the considered view that the law as
enunciated by this Court with regard to scope of judicial review of a
State action,
would squarely cover the issue.
34. With this note, we proceed to examine the facts in the present
matter.
35. No doubt that the JIC, in its Report dated 15th December
2017, has come to a clear finding that the transfer of the petitioner was
in contravention of the Transfer Policy laid down by the MP High Court
and as such, was irregular. The JIC has also come to a finding that the
representations made by the petitioner were not appropriately considered
by the MP High Court. The JIC further came to a finding that Justice
‘A’ had interfered with the transfer of the petitioner and also had a role
to play in the rejection of her representations. The JIC has also come to
a finding that the basis of the petitioner’s transfer was the complaint
dated 3rd July 2014, made by the then D & SJ, Gwalior. The JIC further
found that though, it was the stand of the MP High Court that the transfer
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of the petitioner was on administrative grounds in view of the provisions
of Clause 22 of the Transfer Policy, the same was not established. The
JIC has further come to a finding that the circumstances became
unbearable for the petitioner, resulting in her resignation from service.
36. However, it is sought to be urged vehemently on behalf of the
respondents that the aforesaid findings of the JIC were beyond the scope
of “Terms of Reference” made to it. Per contra, it is strenuously argued
by Smt. Jaising that the aforesaid observations are very much within the
scope of the “Terms of Reference” made to the JIC. Without going into
that controversy, we find it apposite to re-examine the issue, independent
of the findings of the JIC.
37. It is not in dispute that the Transfer Policy has been incorporated
by the MP High Court on 12th January 2012. The Preamble of the said
Transfer Policy states that an attempt will be made to effect the transfer
and posting of Judicial Officers in the State of Madhya Pradesh in
accordance with the said Guidelines and Policy, and that the same is not
enforceable in law. However, it states that notwithstanding anything
contained in the said Policy, the interest of the Judicial System and
Establishment in the State are paramount consideration for transfers
and postings. The salient features of the said Transfer Policy are as
under:
(i)
In accordance with Clause 3 of the Transfer Policy, the
places available for posting are divided into 4 Categories
mentioned as ‘A’, ‘B’, ‘C’ and ‘D’, which are mentioned in
Annexure-A;
(ii)
In accordance with Clause 4 of the Transfer Policy, the
annual transfer of Judicial Officers shall be effected
normally by the 15th of March every year and that the Judicial
Officers shall be given time for joining up to the first day of
April of the relevant year so as to coincide with the academic
session;
(iii)
In accordance with Clause 5 of the Transfer Policy, the
normal approximate tenure of posting at a place shall be
three years;
(iv)
In accordance with Clause 7 of the Transfer Policy, for
computing the tenure of posting of an Officer posted at a
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particular place, the period of 6 months or above shall be
rounded off and treated as full year;
(v)
Clause 9 of the Transfer Policy carves out the exceptions
in cases where an extension of tenure can be granted. Sub-
clause (a) of Clause 9 specifies a ground, that such an
extension would be available if a daughter (not son) of the
Judicial Officer is studying at the place of his current posting,
and is in the Final Year of a Board Examination or University
Examination, and the educational Institution where such
daughter is studying, does not have hostel facility for girls.
It further provides that the said criteria are for the Officers
seeking over-stay in Category ‘A’ places. It further clarifies
that insofar as Category ‘B’, ‘C’ or ‘D’ places are
concerned, the said facility would be available irrespective
of the ward being a son or a daughter and further provides
that the availability of hostel facility will not be essential. It
further provides that the request on the said ground can be
considered only if the facts with regard to education of the
daughter and non-availability of hostel facility in the
Institution are certified by the District Judge concerned,
after proper verification, and further that the District Judge
as well as the Portfolio Judge have no objection to the over-
stay of the Officer. Sub-clause (b) of Clause 9 deals with
the cases where over-stay is sought on the ground of illness
of a Judicial Officer, his spouse or children or
aged parents.
Sub-clause (c) of Clause 9 is a residuary clause, which
enables such exceptions on substantial reasons, which in
the opinion of the District Judge, the Portfolio Judge or the
Chief Justice, are justified;
Clause 9 of the Transfer Policy further provides that if any
Judicial Officer submits such a representation covered by
sub-clause (a), (b) or (c), to his District Judge for being
forwarded to the Registrar General, it will be obligatory for
the District Judge to send the representation along with his
comments within one week of its receipt after the necessary
verifications. The Registry thereafter is required to place
the matter before the concerned Portfolio Judge within a
week of the last date of the receipt of the representation,
MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA
PRADESH AND ANOTHER [B. R. GAVAI, J.]
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and the Portfolio Judge is required to return the file with his
comments/opinion within a week thereafter;
(vi)
Clause 10 of the Transfer Policy provides that all such
Judicial Officers who are seeking their extension, shall also
simultaneously forward minimum three and maximum five
options regarding the place of the permissible category or
lower category, where they would like to be posted in case
the representation is not allowed;
(vii)
Clause 13 of the Transfer Policy provides that extension of
a posting after the tenure period would be granted only in
exceptional circumstances. The said Clause 13 further
provides that the decision regarding extension will be taken
by the Chief Justice, or on his behalf, by a Committee of
two Judges nominated by the Chief Justice, within three
weeks of the last date of receipt of representations
mentioned above;
(viii) Clause 14 of the Transfer Policy provides that the Judicial
Officer, who is on deputation or holding an ex-cadre post,
would be required to come back to the parent department
after completing a maximum period of three years on such
posting. It further provides that no extension on deputation
shall be granted after a period of three years. However,
the power of Chief Justice to grant extension of one year in
exceptional circumstances is reserved;
(ix)
In accordance with Clause 16 of the Transfer Policy, a
transfer takes place normally from Category ‘A’ to ‘B’,
from
‘B’ to ‘C’, from ‘C’ to ‘D’ and from ‘D’ to ‘A’ or
lower Category places;
(x)
In accordance with Clause 17 of the Transfer Policy, the
Registrar General shall, by 15th of February each year,
prepare a list of Officers, who will be completing their
tenure/posting. It further provides that the Judicial Officers
whose request for over-stay has been allowed will be
excluded from that list and the Officers whose request for
pre-mature transfer has been allowed, will be added to that
list. The said Clause also requires to prepare a chart
mentioning therein the details as required under the said
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Clause. The purpose appears to be, to ensure an equitable
distribution of judicial work for Officers all over the State;
(xi)
Clause 18 of the Transfer Policy provides that an attempt
should be made to post the husband and wife at the same
place, if both are working as Judicial Officers in the State
of Madhya Pradesh. It further provides that, if that is not
possible, an attempt should be made to post them at nearby
places;
(xii)
Clause 19 of the Transfer Policy provides that whenever a
close relative of a Judicial Officer is suffering from a serious
ailment, he shall be granted preference by posting in a place
where or near which proper treatment facilities for these
ailments are available;
(xiii) Clause 20 of the Transfer Policy provides that Judicial
Officers, who are suffering from any physical disability,
which is certified to be more than 40% by the appropriate
Medical Board, would be granted preference in the matter
of their posting to such place where they are not required
to travel frequently;
(xiv) Clause 21 of the Transfer Policy requires that Judicial
Officers, who have undergone posting for a period of two
years or more in outlying Courts or in ‘D’ Category places,
will be given preference in the transfer of their posting at
District Headquarters only;
(xv)
Clause 22 of the Transfer Policy provides that a Judicial
Officer may be transferred even before completion of the
prescribed tenure or in mid-term in case his performance is
found to be
below the norms prescribed or if grounds exist
for initiating inquiry against him. It further provides that he
may also be transferred before completing the prescribed
tenure in public interest or in the interest of administration
if so decided by the High Court;
(xvi) In accordance with Clause 23 of the Transfer Policy, a
Judicial Officer, who has a year or less to retire as on first
day of April, is entitled to posting of his choice at a place,
where or near which, he proposes to settle after his
retirement;
MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA
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(xvii) Clause 24 of the Transfer Policy which could be construed
as a residuary clause reserves the power of the Chief Justice
to issue general or particular directions which are not
specifically covered by the Policy. It further provides that
in case of any doubt with regard to Policy or its
implementation, the clarification issued by the Chief Justice
will be treated as part of the Policy;
(xviii) Clause 25 of the Transfer Policy provides that no
representation against transfers ordered by the High Court
will normally be entertained except on a serious ground,
which did not exist on the date of the issuance of the order
of transfer;
(xix) Clause 26 of the Transfer Policy which is a non-obstante
clause provides that notwithstanding anything contained
therein, the Chief Justice or on his behalf, a Committee of
two senior Judges nominated by the Chief Justice, will have
overriding powers to pass any order regarding the transfer
or posting of any Judicial Officer at any time;
(xx)
Clause 28 of the Transfer Policy enables the Chief Justice
to delegate his powers to any other Judge/Officer or
Committee of Judges/Officers for implementation of the
Policy/Guidelines.
38. It could thus be seen that the Transfer Policy incorporated by
the MP High Court has provided in detail, the procedure that is required
to be followed with regard to effecting the transfer of the Judicial Officers,
their tenure at a particular posting, the
circumstances in which the case
should be considered for permitting the Judicial Officers to stay beyond
the prescribed period and the manner in which the representation is to
be considered etc.
39. No doubt that the said Transfer Policy is only a set of Guidelines
for internal administration of the District Judiciary issued by the MP
High Court. However, while exercising its functions on the administrative
side, the MP High Court would also be a State within the meaning of
Article 12 of the Constitution of India. We may gainfully refer to the
following observations made by this Court in the case of Food
Corporation of India v. M/s Kamdhenu Cattle Feed Industries9:
9 (1993) 1 SCC 71
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“8. The mere reasonable or legitimate expectation of a citizen, in
such a situation, may not by itself be a distinct enforceable right,
but failure to consider and give due weight to it may render the
decision arbitrary, and this is how the requirement of due
consideration of a legitimate expectation forms part of the principle
of non-arbitrariness, a necessary concomitant of the rule of law.
Every legitimate expectation is a relevant factor requiring due
consideration in a fair decision-making process. Whether the
expectation of the claimant is reasonable or legitimate in the context
is a question of fact in each case. Whenever the question arises,
it is to be determined not according to the claimant’s perception
but in larger public interest wherein other more important
considerations may outweigh what would otherwise have been
the legitimate expectation of the claimant. A bona fide decision of
the public authority reached in this manner would satisfy the
requirement of non-arbitrariness and withstand judicial scrutiny.
The doctrine of legitimate expectation gets assimilated in the rule
of law and operates in our legal system in this manner and to this
extent.
9. In Council of Civil Service Unions v. Minister for the Civil
Service [1985 AC 374 : (1984) 3 All ER 935 (HL)] the House of
Lords indicated the extent to which the legitimate expectation
interfaces with exercise of discretionary power. The impugned
action was upheld as reasonable, made on due
consideration of
all relevant factors including the legitimate expectation of the
applicant, wherein the considerations of national security were
found to outweigh that which otherwise would have been the
reasonable expectation of the applicant. Lord Scarman pointed
out that “the controlling factor in determining whether the exercise
of prerogative power is subject to judicial review is not its source
but its subject-matter”. Again in Preston, in re [1985 AC 835 :
(1985) 2 All ER 327] it was stated by Lord Scarman that “the
principle of fairness has an important place in the law of judicial
review” and “unfairness in the purported exercise of a power can
be such that it is an abuse or excess of power”. These decisions
of the House of Lords give a similar indication of the significance
of the doctrine of legitimate expectation. Shri A.K. Sen referred
to Shanti Vijay and Co. v. Princess Fatima Fouzia [(1979) 4
SCC 602 : (1980) 1 SCR 459] which holds that court should
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interfere where discretionary power is not exercised reasonably
and in good faith.”
40. It could thus be seen that this Court has held that mere
reasonable or legitimate expectation of a citizen may not by itself be a
distinct enforceable right. It is further held that the failure to consider
and give due weight to it may render the decision arbitrary. It has been
held that the requirement of due consideration of a legitimate expectation
forms part of the principle of non-arbitrariness, which is a necessary
concomitant of the rule of law. Every legitimate expectation is a relevant
factor requiring due consideration in a fair decision-making process.
Whether the expectation of the claimant is reasonable or legitimate in
the context is a question of fact in each case. Whenever the question
arises, it is to be determined not according to the claimant’s perception
but in larger public interest wherein other more important considerations
may outweigh, what would otherwise have been the legitimate expectation
of the claimant. It has been held that a bona fide decision of the public
authority reached in this manner would satisfy the requirement of non-
arbitrariness and withstand judicial scrutiny. It has been held that the
principle of fairness has an important place in the law of judicial review
and that unfairness in the purported exercise of power can be such that
it is abuse or excess of power. The court should
interfere where
discretionary power is not exercised reasonably and in good faith.
41. It could thus be seen that though the Transfer Policy may not
be enforceable in law, but when the Transfer Policy has been framed by
the MP High Court for administration of the District Judiciary, every
Judicial Officer will have a legitimate expectation that such a Policy
should be given due weightage, when the cases of Judicial Officers for
transfer are being considered.
42. In this background, we will examine the undisputed facts.
Undisputedly, in the chart which was prepared by the then RG for ensuring
the general transfers, which were to be effected in the month of March
2014, the petitioner’s name did not figure.
43. It is further clear that in the agenda prepared for consideration
of mid-term transfers to be effected in the month of July 2014, again the
petitioner’s name did not appear. It can further be seen from the
depositions of the then Judge of the MP High Court, who was a Member
of the Transfer Committee and that of the then RG of the MP High
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Court before the JIC, that the basis for the transfer of the petitioner was
the complaint dated 3rd July 2014, addressed by the then D & SJ, Gwalior.
It is to be noted that within days, the decision regarding transferring the
petitioner to Sidhi, which is about 507 kms. away from Gwalior, was
taken by the Transfer Committee on 7th July 2014, and was approved by
the Competent Authority on the very same day. The said transfer order
was conveyed to the petitioner on the next day that is on 8th July 2014.
44. The petitioner, on coming to know about her transfer order,
made a representation on the very next day i.e., on 9th July 2014. In the
said representation, the petitioner had categorically stated that her elder
daughter was a brilliant child, studying in Class 12th and was preparing
for her Board and Competitive Exams at FIITJEE Coaching Centre,
Gwalior. She further stated that her husband, due to compelling
circumstances and for looking after his aged parents, had to stay in
Delhi and practically, she had to play the role of both a father and a
mother for her daughters and had to draw a balance between her
profession and dependent children. She further made a request to the
Competent Authority to allow her to stay in Gwalior till her daughter
completes her Class 12th examination. The said representation was
rejected within two days i.e. on 11th July 2014. The then RG made an
endorsement to the following effect:
“Hon’ble the transfer Committee in its
meeting held on
7.7.2014 has recommended transfer of Smt. Madan from Gwalior
to Sidhi on administrative ground, after considering the request of
D&S Judge, Gwalior with regard to her conduct and behavior. It
is gathered that adequate educational facilities including CBSE
School are available at Sidhi.
Therefore, the matter is submitted for kind consideration
and order.”
The then Judge of the Transfer Committee of the MP High Court
made the following endorsement on the same day:
“The representation may be rejected as it does not call for any
consideration.”
45. After rejection of her first representation, the petitioner made
another representation to the respondent No.1 on 11th July 2014, through
the then D & SJ, Gwalior. In the said representation, she had requested
for her transfer either to Sehore, Raisen, Dewas or Ujjain so that her
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daughter could continue with her education. The then RG, on 14th July
2014, placed the said representation of the petitioner before the Transfer
Committee with the following endorsement:
“Kind attention is invited to another representation (dated 11th
July, 2014) submitted by Ms. ‘X’, 8th A.D.J., Gwalior regarding
her transfer from Gwalior to Sidhi, almost on identical grounds
pertaining to education of her daughters.
The Committee has already considered the representation dated
9th July, 2014 of Ms. ‘X’ and has been pleased to reject the same.
The matter is submitted again for kind consideration and orders in
view of the repeat representation dated 11th July, 2014.”
The then Judge of the Transfer Committee of the MP High Court
made the following endorsement on the same day:
“In view of the order already passed on the representation no
further reconsideration is to be made.”
46. It could thus be seen that the transfer of the petitioner was
effected mid-term though she could have very well been transferred in
general transfers, to be effected in March-April, 2014. Even in the agenda
of the mid-term transfers, which were to be effected on various grounds,
petitioner’s name was not included. It was only after the then D & SJ,
Gwalior addressed a complaint to the then RG, seeking her transfer out
of Gwalior, the matter was placed immediately before the Transfer
Committee within days and the Transfer Committee approved the
transfer
of the petitioner. Immediately after the receipt of the transfer order, the
petitioner made a representation on 9th July 2014, specifically pointing
out therein that her daughter was studying in Class 12th and also
undergoing FIITJEE coaching. The said representation was rejected
within two days. The petitioner had a legitimate expectation of her
representation being considered specifically in view of Clause 9(a) of
the Transfer Policy. The Transfer Policy provides that on such
representation being made, the RG shall obtain the comments of the
District Judge within a week and on receiving his comments after
necessary verifications, it was required that the matter should be placed
before the concerned Portfolio Judge within a week, who was required
to return the file within a period of one week thereafter, with his
comments/opinion.
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47. Undisputedly, neither the procedure as prescribed under Clause
9 of the Transfer Policy of obtaining the comments from the District
Judge and the Portfolio Judge were complied with, nor the Transfer
Committee considered the provisions of Clause 9(a) of the Transfer
Policy.
48. When sub-clause (a) of Clause 9 of the Transfer Policy provided,
that the case of a Judicial Officer for an extension should be considered
if such Judicial Officer’s daughter (not son) was to appear for the final
year of Board Examination or University Examination, and when such
educational Institution where such daughter is studying, does not have
hostel facility for girls, the petitioner had a legitimate expectation that
the MP High Court would consider her request in accordance therewith.
Not only that, such a concession of extension would have been available
only if the District Judge certified that there is no hostel facility available
in such educational Institution. It also further required the comments to
be obtained by the RG from the District Judge and the Portfolio Judge of
the MP High Court. From the perusal of the Transfer Policy, it is clear
that total 3 weeks’ period is provided between the date of the receipt of
the representation and the decision thereon. However, in the present
case, within two days from the submission of the representation, the
Transfer Committee rejected the same without considering sub-clause
(a) of Clause 9 of the Transfer Policy. It is a
different matter that inviting
comments from the District Judge would have been just a formality,
inasmuch as the transfer was effected on his complaint itself.
49. The matter does not end here. On rejection of her first
representation, the petitioner addressed her second representation,
requesting that she be posted at any of the four cities mentioned in the
said representation so that her daughter could continue with her education.
However, the then RG made an endorsement that the said representation
is on similar ground as mentioned in the earlier representation dated 9th
July 2014, which has already been rejected. The Transfer Committee
endorsed that in view of the order already passed in the earlier
representation dated 9th July 2014, no further reconsideration is to be
made. Both the representations of the petitioner are made with different
requests. Whereas the first representation requests for her retention at
Gwalior for a period of 8 months so that her daughter could continue
with her education at Gwalior; in the second representation, she had
requested to be posted at either of the 4 places, where her daughter
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could continue with her education. However, the second representation
was rejected on the ground that the earlier representation made on similar
ground also stands rejected.
50. The petitioner had a legitimate expectation in view of Clause
10 of the Transfer Policy to have her case considered for posting at any
of the 4 places in the event her request for retention at the then present
posting was not considered and as such, she made the second
representation. We are at pains to say that the rejection of the second
representation depicts total non-application of mind by the then RG as
well as the then Judge of the Transfer Committee of the MP High Court.
The proposal of the then RG was made in a casual manner and accepted
by the then Judge on the Transfer Committee in a mechanical manner.
51. The transfer is sought to be justified in view of Clause 22 of
the Transfer Policy. One of the grounds on which the transfer could be
made in mid-term, is that the performance of such Judicial Officer is
found to be below the norms prescribed. The same is admittedly not
available in the present case. The petitioner’s performance in the
assessment made by the then D & SJ, Gwalior on 15th January 2014 for
the assessment year 2013, has been found to be ‘very good’. That leaves
us with the second ground available under Clause 22 of the Transfer
Policy, that a transfer can be made if the grounds exist for initiating an
inquiry against
such a Judicial Officer. The same is also not the case
here.
52. It is sought to be urged that the transfer of the petitioner was
made in the public interest or in the interest of the administration inasmuch
as there was a requirement of an Additional Judge at Sidhi. The then
Judge on the Transfer Committee has specifically admitted in his
deposition before the JIC that at the relevant point of time, the pendency
at the 4 places which were mentioned by the petitioner in her second
representation, was much higher than at Sidhi. He has further admitted
that though the posts were vacant at the said 4 places, there was no
vacancy at Sidhi. As per the Transfer Policy, a Judicial Officer is required
to be transferred from Category ‘A’ city to Category ‘B’ city, from ‘B’
to ‘C’, from ‘C’ to ‘D’ and from ‘D’ to ‘A’. However, in the case of the
petitioner, the petitioner was directly transferred from Gwalior, which is
Category ‘A’ city to Sidhi, which is Category ‘C’ city. The 4 cities which
have been mentioned by the petitioner in her second representation are
‘B’ Category cities. Coupled with the admission that the transfer of the
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petitioner was effected on the basis of the complaint made by the then
D & SJ, Gwalior, it is difficult to accept the contention on behalf of the
MP High Court that the transfer of the petitioner was made in the public
interest or in the interest of the administration.
53. The learned Solicitor General argued that vide the impugned
transfer order dated 8th July 2014, as many as 26 Judicial Officers were
transferred and not just the petitioner. The perusal of the said transfer
order would reveal that in many cases, the Judicial Officers who were
either on deputation or ex-cadre posts, have been brought in main stream.
It is also found that many of the Judicial Officers covered by the said
transfer order were posted at the same place inasmuch as from the
posting on deputation, they have been brought in the main stream. In any
case, it is not pointed out as to whether the said Judicial Officers were
also facing the same difficulty, as was being faced by the petitioner. It is
also not brought on record as to whether those Judicial Officers had
made any representation and their representations were rejected in an
identical manner.
54. At this juncture, we may refer to the following observations
made by this Court in the case of Kumari Shrilekha Vidyarthi and
Others v. State of U.P. and Others10:
“33. No doubt, it is true, as indicated by us earlier, that there is a
presumption of validity of the State action and the burden is on
the person who alleges violation
of Article 14 to prove the assertion.
However, where no plausible reason or principle is indicated nor
is it discernible and the impugned State action, therefore, appears
to be ex facie arbitrary, the initial burden to prove the arbitrariness
is discharged shifting onus on the State to justify its action as fair
and reasonable. If the State is unable to produce material to justify
its action as fair and reasonable, the burden on the person alleging
arbitrariness must be held to be discharged. The scope of judicial
review is limited as indicated in Dwarkadas Marfatia
case [(1989) 3 SCC 293] to oversee the State action for the
purpose of satisfying that it is not vitiated by the vice of
arbitrariness and no more. The wisdom of the policy or the lack
of it or the desirability of a better alternative is not within the
permissible scope of judicial review in such cases. It is not for the
courts to recast the policy or to substitute it with another which is
10 (1991) 1 SCC 212
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considered to be more appropriate, once the attack on the ground
of arbitrariness is successfully repelled by showing that the act
which was done, was fair and reasonable in the facts and
circumstances of the case. As indicated by Diplock, L.J.,
in Council of Civil Service Unions v. Minister for the Civil
Service [(1984) 3 All ER 935] the power of judicial review is
limited to the grounds of illegality, irrationality and procedural
impropriety. In the case of arbitrariness, the defect of irrationality
is obvious.”
55. It could thus be seen that this Court has held that there is a
presumption of validity of the State action and the burden is on the person
who alleges violation of Article 14 of the Constitution of India to prove
the assertion. It has been further held that where no plausible reason or
principle is indicated nor is it discernible and the impugned State action
appears to be arbitrary, the initial burden to prove the arbitrariness is
discharged, thereby shifting onus on the State to justify its action as fair
and reasonable. If the State is unable to produce material to justify its
action as fair and reasonable, the burden on the person alleging
arbitrariness must be held to be discharged. The limited scope of judicial
review is only to satisfy that the State action is not vitiated by the vice of
arbitrariness and no more. It is equally settled that it is not for the courts
to recast the policy or to
substitute it with another which is considered to
be more appropriate. It has been held that the attack on the ground of
arbitrariness is successfully repelled by showing that the act which was
done, was fair and reasonable in the facts and circumstances of the
case.
56. We have no hesitation in holding that the petitioner has
established that her transfer order was in contravention of the Transfer
Policy and that the rejection of her two representations, in addition of
being contrary to the Transfer Policy, were also arbitrary. As such, the
petitioner has discharged her burden and the onus is shifted on the
respondent No.1 to show that the petitioner’s transfer order was fair
and reasonable in the facts and circumstances of the case. We find that
the respondent No.1 has utterly failed to discharge its burden. On the
contrary, the admissions made before the JIC by the then Judge on the
Transfer Committee clearly show that the transfer was made solely on
the basis of the complaint made by the then D & SJ, Gwalior without
verifying the veracity thereof. Not only this, but it is evident that the then
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Judge had not looked into the annexures attached with the representation,
which included the fee receipts etc. of the petitioner’s daughter.
57. We may gainfully refer to the following observations made by
this Court in the case of Kalabharati Advertising v. Hemant Vimalnath
Narichania and Others11:
“25. The State is under obligation to act fairly without ill will or
malice — in fact or in law. “Legal malice” or “malice in law”
means something done without lawful excuse. It is an act done
wrongfully and wilfully without reasonable or probable cause, and
not necessarily an act done from ill feeling and spite. It is a
deliberate act in disregard to the rights of others. Where malice is
attributed to the State, it can never be a case of personal ill will or
spite on the part of the State. It is an act which is taken with an
oblique or indirect object. It means exercise of statutory power
for “purposes foreign to those for which it is in law intended”. It
means conscious violation of the law to the prejudice of another, a
depraved inclination on the part of the authority to disregard the
rights of others, which intent is manifested by its injurious acts.
(Vide ADM, Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521
: AIR 1976 SC 1207] , S.R. Venkataraman v. Union of
India [(1979) 2 SCC 491 : 1979 SCC (L&S) 216 : AIR 1979 SC
49] , State of A.P. v. Goverdhanlal Pitti [(2003) 4 SCC 739 :
AIR 2003 SC 1941] , BPL Ltd. v. S.P. Gururaja [(2003) 8 SCC
567] and W.B. SEB v.
Dilip Kumar Ray [(2007) 14 SCC 568 :
(2009) 1 SCC (L&S) 860] .)
26. Passing an order for an unauthorised purpose constitutes
malice in law. (Vide Punjab SEB Ltd. v. Zora Singh [(2005) 6
SCC 776] and Union of India v. V. Ramakrishnan [(2005) 8 SCC
394 : 2005 SCC (L&S) 1150].)”
58. It is trite that the State is under the obligation to act fairly
without ill will or malice — in fact or in law. “Legal malice” or “malice in
law” means something done without lawful excuse. It is an act done
wrongfully and wilfully without reasonable or probable cause, and not
necessarily an act done from ill feeling and spite. Where malice is
attributed to the State, it can never be a case of malice or spite on the
part of the State. It would mean exercise of statutory power for “purposes
11 (2010) 9 SCC 437
MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA
PRADESH AND ANOTHER [B. R. GAVAI, J.]
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foreign to those for which it is in law intended”. It means conscious
violation of the law to the prejudice of another, a depraved inclination on
the part of the authority to disregard the rights of others.
59. No doubt that it is strenuously argued on behalf of the petitioner
that the transfer order is mala fide and issued at the instance of Justice
‘A’, we do not find it necessary to go into that aspect of the matter.
60. It will also be relevant to refer to the following observations
made by this Court in the case of Somesh Tiwari v. Union of India
and Others12:
“16. Indisputably an order of transfer is an administrative order.
There cannot be any doubt whatsoever that transfer, which is
ordinarily an incident of service should not be interfered with,
save in cases where inter alia mala fide on the part of the authority
is proved. Mala fide is of two kinds—one malice in fact and the
second malice in law. The order in question would attract the
principle of malice in law as it was not based on any factor germane
for passing an order of transfer and based on an irrelevant ground
i.e. on the allegations made against the appellant in the anonymous
complaint. It is one thing to say that the employer is entitled to
pass an order of transfer in administrative exigencies but it is
another thing to say that the order of transfer is passed by way of
or in lieu of punishment. When an order of transfer is passed in
lieu of
punishment, the same is liable to be set aside being wholly
illegal.”
61. This Court has held that normally an order of transfer, which
is an incident of service should not be interfered with, unless it is found
that the same is mala fide. It has been held that mala fide is of two
kinds — one ‘malice in fact’ and the second ‘malice in law’. When an
order is not based on any factor germane for passing an order of transfer
and based on an irrelevant ground, such an order would not be sustainable
in law.
62. At the cost of repetition, we may say that though it is the case
of the respondent No.1 that the transfer order of the petitioner dated 8th
July 2014, was on the ground of administrative exigencies, the material
placed on record and particularly, the depositions of the then Judge on
the Transfer Committee and the then RG, would clearly show that it was
12 (2009) 2 SCC 592
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on the basis of the complaint made by the then D & SJ, Gwalior. It is a
different aspect that the JIC had come to a specific finding of fact, that
the evidence on record clearly shows that Justice ‘A’ had a role to play
in the transfer of the petitioner and the rejection of her two
representations. We are therefore of the considered view that the transfer
order dated 8th July 2014, would squarely be covered by ‘malice in law’
inasmuch as it was passed without taking into consideration the Guidelines
provided in the Transfer Policy but on the basis of unverified allegations
made in the complaint made by the then D & SJ, Gwalior.
63. That leaves us with the next issue as to whether the orders of
the Transfer Committee dated 11th July 2014 and 14th July 2014, rejecting
the petitioner’s representations dated 9th July 2014 and 11th July 2014,
were valid in law or not.
64. It could be seen that as per Clause 9 of the Transfer Policy,
the petitioner is entitled to make a representation to the MP High Court
for retaining her at the same posting, and for posting at alternate places
of her choice in view of Clause 10 of the Transfer Policy. When the
Transfer Policy provides for making a representation, the petitioner had
a legitimate expectation that the said representation would be considered
in accordance with it. Consideration of representation is not a formality.
We are not saying for a moment that prior to rejection of the petitioner’s
representations, she
should have been heard or that the reasons ought to
have been communicated for such rejection. However, the least that is
expected is that the representation is considered in the right earnest.
When the Transfer Policy provides for a ground on which the
representation is to be made, then the least that is expected is that the
matter should be considered in reference to the provisions made in the
Transfer Policy. In her first representation, the petitioner had specifically
contended that she should be retained at Gwalior on the ground of her
daughter’s education. There was a legitimate expectation that the
respondent No.1 ought to have considered as to whether her case fits in
Clause 9(a) of the Transfer Policy. The petitioner was entitled for
consideration of her case on the ground that her daughter was to appear
in the final year of Board Examination. The petitioner had specifically
stated that her daughter was also undergoing FIITJEE coaching. She
had further clearly stated that after her daughter completes the academic
year, she was willing to abide by the transfer order. However, in the
noting of the then RG, it was mentioned that “it is gathered that adequate
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educational facilities including CBSE School are available at Sidhi”. It is
further stated that the Transfer Committee, in its meeting held on 7th
July 2014, had recommended the transfer of the petitioner on
administrative grounds after considering the request of the then D & SJ,
Gwalior with regard to conduct and behaviour of the petitioner. On the
said proposal, the then Judge on the Transfer Committee had directed
the representation of the petitioner to be rejected. As such, it could be
seen that the respondent No. 1 had not at all taken into consideration as
to whether the petitioner’s case was required to be considered under
Clause 9(a) of the Transfer Policy or not.
65. Insofar as the second representation dated 11th July 2014 is
concerned, the petitioner had specifically stated that since her daughter
was preparing for Board and Competitive Exams and also taking FIITJEE
coaching, she may be transferred to such places as Sehore, Raisen,
Dewas or Ujjain, where her daughter could continue with her education.
It could thus be seen that, whereas in the first representation, the petitioner
had sought retention at Gwalior, in the second representation, she had
requested for posting at any of the 4 places as aforesaid. However, the
then RG made an endorsement on the file on 14th July 2014 to the effect
that “the said representation was made almost on identical grounds as
were made in the first representation, which was
already rejected on
11th July 2014”. The then Judge on the Transfer Committee made an
endorsement that “in view of the order dated 11th July 2014 already
passed in the earlier representation, no further reconsideration is to be
made”. It can thus be seen that though the second representation of the
petitioner dated 11th July 2014 is with a request to post her at any of the
4 alternate places, the noting that “the representation on identical grounds
had already been rejected”, is factually incorrect. Whereas the first
representation of the petitioner was for retention at Gwalior, the second
one was for a posting at alternate place, where her daughter could
continue with her education. In view of Clause 10 of the Transfer Policy,
the petitioner had a legitimate expectation of being considered for an
alternate posting, in case her prayer for retention was not to be
considered.
66. It could thus be seen that the respondent No.1 has failed to
take into consideration the factors, which were required to be considered,
while deciding the representation of the petitioner and had taken into
consideration the factors which were not relevant. The then Judge on
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the Transfer Committee, in his deposition before the JIC, had clearly
admitted that he had not gone into the annexures, which were attached
with the representation of the petitioner. Non-consideration of the relevant
material and consideration of the extraneous material would come into
the realm of irrationality. An action which is arbitrary, irrational and
unreasonable would be hit by Article 14 of the Constitution of India. We,
therefore, find that the rejection of the representations of the petitioner
dated 9th July 2014 and 11th July 2014, would also not stand the scrutiny
of law.
67. That leaves us with the next issue as to whether the petitioner’s
resignation dated 15th July 2014, could be considered as a voluntarily
one.
68. The resignation of the petitioner reads thus:
“It is most respectfully submitted that I am unable to continue
my services as Additional District and Sessions Judge.
As I have been transferred to Sidhi, in the mid academic
session of my daughters studying in Class III and Class XII, it
affected mostly the crucial stage of career of my class XII
daughter. Therefore I am left with no option but to resign from
my post.
I hereby resign from the post of Additional District and
Sessions Judge and I am ready to submit my salary as per rules
and clear all my dues, if any.
I humbly request your kind self to please accept my
resignation and relieve me with immediate affect and oblige.”
69. It is sought to be urged on behalf of the
respondent No.1, that
the said resignation is voluntary, acted upon by the authority and thus,
there was severance of relationship between the employer and employee.
70. The learned Solicitor General submitted that it was an impulsive
decision to resign only on account of mid-term transfer. He submitted
that, to hold that a mid-term transfer would amount to coercion resulting
into resignation, would be catastrophic. He further submitted that such a
plea would not be available to a Judicial Officer, who is discharging the
sovereign function of dispensing justice and who is trained to be
independent, fearless, non-impulsive and to act in accordance with law.
MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA
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71. No doubt, that a Judicial Officer while discharging his/her
duties, is expected to be independent, fearless, impassionate and non-
impulsive. But a Judicial Officer is also a human being. A Judicial Officer
is also a parent. He/she could be a father or a mother. The question
would be, whether a Judicial Officer, while taking a decision in his/her
personal matter as a human being, in his/her capacity of a father or
mother, would be required to be guided by the same yardsticks.
72. For considering as to whether the resignation in the present
matter could be construed as voluntary or not, the resignation cannot be
considered in isolation, but all the attendant circumstances will have to
be taken into consideration.
73. Let us consider the facts from the perspective of the petitioner.
74. Insofar as the career of the petitioner is concerned, till 8th July
2014, there were no issues. She was posted at Gwalior as AD & SJ on
1st August 2011. On 15th January 2013, she was assessed for the period
from 3rd May 2012 to 31st December 2012 by the then D & SJ, Gwalior,
who assessed her grading as ‘good’, which was approved by the then
Portfolio/Administrative Judge of the MP High Court. Between
December 2013 and June 2014, the petitioner was entrusted with various
additional responsibilities. On 15th January 2014, she was assessed for
the period from 8th April 2013 to 31st December 2013 by the then D &
SJ, Gwalior, who assessed
her grading as ‘very good’. The same was
also endorsed by the then Portfolio/Administrative Judge of the MP High
Court. It is to be noted that the then D & SJ, Gwalior, who had assessed
the petitioner’s performance for the assessment year 2012 was a different
one than the one who had assessed her performance for the assessment
year 2013.
75. On the personal front, both the petitioner’s daughters were
taking education at Gwalior. One of them was in Class 3rd and the other
one was studying in Class 12th and was also undergoing FIITJEE
coaching. Since her husband was required to be in Delhi on account of
professional and personal commitments and also that he had to look
after his aged parents, the petitioner had to draw a balance between her
duties as a Judicial Officer and as a mother.
76. Till 8th July 2014, everything was smooth but on the said date,
came the transfer order transferring her to Sidhi, which was at a far
away distance of 507 Kms. from Gwalior. Taking shelter under Clause
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9(a) of the Transfer Policy, the petitioner made a representation to the
MP High Court on the very next day, requesting the respondent No. 1
that she be retained at Gwalior, at least till her daughter completes her
Class 12th education, but the same was rejected within a short period of
two days. She made her second representation on 11th July 2014,
requesting the respondent No.1 to give her alternate posting at any of
the 4 cities mentioned therein, where her daughter could continue with
her education. All the 4 cities were Category ‘B’ cities. In normal
circumstances, a Judicial Officer, who is in Category ‘A’ city, is required
to be transferred to Category ‘B’ city. However, to her utter shock, the
same was also rejected within three days.
77. One cannot imagine the trauma which the petitioner must
have faced during this short period of time. She was also not aware that
she was being transferred on the ground of the complaint made by the
then D & SJ, Gwalior, who himself appears to have joined at Gwalior
sometime in 2014, after the then D & SJ, Gwalior, who had assessed the
petitioner for the year 2013, was transferred. She had come to know
about the complaint at a much later point of time. In her first representation
dated 9th July 2014, the petitioner elaborated in detail, her precarious
situation inasmuch as she was required to be both a mother and father to
her children and draw a balance between her professional duties and
duties towards her
daughters. She stated that on receipt of her transfer
order, her elder daughter had become meek with fear and anxiety, as
she faced an emotional trauma and a bleak prospect. The petitioner
stated that at the cost of her career, she could not disturb the right of her
daughter to decent education and curb her prospects for an inspirational
life. The petitioner only appealed that in order to avoid the emotional
trauma and to support her daughter to complete her Class 12th, she should
be continued at Gwalior for a short period. She also assured that after
her daughter completes Class 12th, she would move on to whichever
posting allocated to her. However, the same was rejected within two
days i.e. on 11th July 2014, without following the procedure prescribed
under the Transfer Policy.
78. The petitioner made another representation on the very same
day i.e. 11th July 2014, requesting for an alternate posting either to Sehore,
Raisen, Dewas or Ujjain. She reiterated the traumatic situation through
which her daughter was undergoing. She reiterated that at the cost of
her career, she could not disturb the right of her daughter to decent
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education. However, the same was again rejected on 14th July 2014,
within a period of four days.
79. The petitioner was a Judicial Officer and a mother too. The
Judicial Officer in her must have been battling with the mother in her.
On one hand, was her career as a Judicial Officer; on the other hand,
was the possibility of her daughter’s educational prospects and career
coming into jeopardy, if she shifted to the place of posting at Sidhi. A
possibility of her mind engrossed with a feeling, that she was subjected
to injustice by the very Institution of Judiciary, cannot be ruled away.
What was she asking for? A retention at Gwalior for a period of 8 months
till her daughter completes her Class 12th. In the alternative, posting at
any of the 4 cities, which were admittedly in Category ‘B’, where her
daughter could have better education facilities, and where the vacancies
existed.
80. Denial of her legitimate expectation could have led to
desperation, exasperation and frustration. The frustration of the petitioner
is evident from the language used by her in her resignation letter. She
stated that as she had been transferred to Sidhi in the mid-academic
session of her daughter’s Class 12th, it had mostly affected the crucial
stage of career of her daughter. She stated that therefore, she was left
with no other option but to resign from her post. It appears that in a
gruesome battle between a mother and a Judicial
Officer, the Judicial
Officer lost the battle to the mother.
81. Reaction of a person to a particular situation would depend
from person to person. No two individuals can be expected to respond
identically to a same situation. It is quite possible that some other person
in the petitioner’s place, would have chosen to pursue one’s own career
without bothering about the daughter’s education and prospects of good
career.
82. On the very next day of submission of resignation, the MP
High Court forwarded her resignation with the recommendation to accept
the same and thereafter, immediately on the very next day, the respondent
No. 2 accepted the same.
83. It will be apposite to refer to the following observations of this
Court in the case of Dr. Prabha Atri v. State of U.P. and Others13:
13 (2003) 1 SCC 701
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“7. The only question that mainly requires to be considered is as
to whether the letter dated 9-1-1999 could be construed to mean
or amounted to a letter of resignation or merely an expression of
her intention to resign, if her claims in respect of the alleged lapse
are not viewed favourably. Rule 9 of the Hospital Service Rules
provided for resignation or abandonment of service by an
employee. It is stated therein that a permanent employee is
required to give three months’ notice of resignation in writing to
the appointing authority or three months’ salary in lieu of notice
and that he/she may be required to serve the period for such
notice. In case of non-compliance with the above, the employee
concerned is not only liable to pay an amount equal to three months’
salary but such amount shall be realizable from the dues, if any, of
the employee lying with the hospital. In Words and
Phrases (Permanent Edn.) Vol. 37, at p. 476, it is found stated
that:
“To constitute a ‘resignation’, it must be unconditional and with
an intent to operate as such. There must be an intention to
relinquish a portion of the term of office accompanied by an
act of relinquishment. It is to give back, to give up in a formal
manner, an office.”
At p. 474 of the very same book, it is found stated: “Statements
by club’s President and corresponding Secretary that they would
resign, if constant bickering among members did not cease,
constituted merely threatened offers, not tenders, of
their
resignations.” It is also stated therein that “A ‘resignation’ of a
public office to be effective must be made with an intention of
relinquishing the office accompanied by an act of relinquishment.”
In the ordinary dictionary sense, the word “resignation” was
considered to mean the spontaneous relinquishment of one’s own
right, as conveyed by the maxim: Resignatio est juris proprii
spontanea refutatio (Black’s Law Dictionary, 6th Edn.).
In Corpus Juris Secundum, Vol. 77, p. 311, it is found stated:
“It has been said that ‘resignation’ is a term of legal art, having
legal connotations which describe certain legal results. It is
characteristically, the voluntary surrender of a position by the
one resigning, made freely and not under duress and the word
is defined generally as meaning the act of resigning or giving
up, as a claim, possession or position.”
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8. In P.K. Ramachandra Iyer v. Union of India [(1984) 2 SCC
141 : 1984 SCC (L&S) 214] this Court had an occasion to consider
the nature and character of a letter written by one of the petitioners
in that case who after stating in the letter that he has been all
along patiently waiting for the redressal of his grievance, yet justice
has not been done to him and
“as such, after showing so much patience in the matter, I am
sorry to decide that I should resign from the membership of
the Faculty in protest against such a treatment and against the
discrimination and victimization shown to me by the Head of
the Division in the allotment of students of 1968 and 1969
batches and departmental candidates”. (SCC p. 172, para 34)
In that context, this Court observed that the callous and heartless
attitude of the Academic Council in seizing an opportunity to get
rid of him by treating the said letter to be a letter of resignation
when really he was all along making representations seeking justice
to him and out of exasperation the said person wrote that letter
stating that the only honourable course left open to him was to
resign rather than suffer (SCC p. 173, para 34).
In Moti Ram v. Param Dev [(1993) 2 SCC 725] this Court
observed as hereunder: (SCC pp. 735-36, para 16)
“16. As pointed out by this Court, ‘resignation’ means the
spontaneous relinquishment of one’s own right and in relation
to an office, it connotes the act of
giving up or relinquishing the
office. It has been held that in the general juristic sense, in
order to constitute a complete and operative resignation there
must be the intention to give up or relinquish the office and the
concomitant act of its relinquishment. It has also been observed
that the act of relinquishment may take different forms or
assume a unilateral or bilateral character, depending on the
nature of the office and the conditions governing it. (See: Union
of India v. Gopal Chandra Misra [(1978) 2 SCC 301 : 1978
SCC (L&S) 303] .) If the act of relinquishment is of unilateral
character, it comes into effect when such act indicating the
intention to relinquish the office is communicated to the
competent authority. The authority to whom the act of
relinquishment is communicated is not required to take any
action and the relinquishment takes effect from the date of
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such communication where the resignation is intended to operate
in praesenti. A resignation may also be prospective to be
operative from a future date and in that event it would take
effect from the date indicated therein and not from the date of
communication. In cases where the act of relinquishment is of
a bilateral character, the communication of the intention to
relinquish, by itself, would not be sufficient to result in
relinquishment of the office and some action is required to be
taken on such communication of the intention to relinquish,
e.g., acceptance of the said request to relinquish the office,
and in such a case the relinquishment does not become effective
or operative till such action is taken. As to whether the act of
relinquishment of an office is unilateral or bilateral in character
would depend upon the nature of the office and the conditions
governing it.”
9. In traversing the contention on behalf of the appellant that the
letter in question dated 9-1-1999 could not be construed as a letter
of resignation, on behalf of the respondent hospital authorities it is
strenuously contended that such a letter coming from the appellant
in the teeth of suspension order and proposed domestic enquiry
expressing a desire to tender resignation and that too with
immediate effect, cannot but be a resignation outright and simpliciter
to avoid facing disciplinary proceedings and that, therefore, the
competent authority acted well within its rights in
treating it to be
a resignation and accepting the same forthwith and as a
consequence thereof, directing further not to proceed with the
domestic enquiry already ordered. Finally, it has been submitted
that if this Court is pleased to interfere in the matter the right of
the hospital authorities to pursue the disciplinary action already
initiated from the stage at which it stood on the date of acceptance
of the resignation should not be jeopardized and liberty may be
granted in this regard.
10. We have carefully considered the submissions of the learned
counsel appearing on either side, in the light of the materials and
principles, noticed supra. This is not a case where it is required to
consider as to whether the relinquishment envisaged under the
rules and conditions of service is unilateral or bilateral in character
but whether the letter dated 9-1-1999 could be treated or held to
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be a letter of resignation or relinquishment of the office, so as to
sever her services once and for all. The letter cannot be construed,
in our view, to convey any spontaneous intention to give up or
relinquish her office accompanied by any act of relinquishment.
To constitute a “resignation”, it must be unconditional and with an
intention to operate as such. At best, as observed by this Court in
the decision in P.K. Ramachandra Iyer [(1984) 2 SCC 141 : 1984
SCC (L&S) 214] it may amount to a threatened offer more on
account of exasperation, to resign on account of a feeling of
frustration born out of an idea that she was being harassed
unnecessarily but not, at any rate, amounting to a resignation, actual
and simple. The appellant had put in about two decades of service
in the hospital, that she was placed under suspension and exposed
to disciplinary proceedings and proposed domestic enquiry and
she had certain benefits flowing to her benefit, if she resigns but
yet the letter dated 9-1-1999 does not seek for any of those things
to be settled or the disciplinary proceedings being scrapped as a
sequel to her so-called resignation. The words “with immediate
effect” in the said letter could not be given undue importance
dehors the context, tenor of language used and the purport as
well as the remaining portion of the letter indicating the
circumstances in which it was written. That the management of
the hospital took up
such action forthwith, as a result of acceptance
of the resignation is not of much significance in ascertaining the
true or real intention of the letter written by the appellant on 9-1-
1999. Consequently, it appears to be reasonable to view that as in
the case reported in P.K. Ramachandra Iyer [(1984) 2 SCC 141
: 1984 SCC (L&S) 214] the respondents have seized an
opportunity to get rid of the appellant the moment they got the
letter dated 9-1-1999, without due or proper consideration of the
matter in a right perspective or understanding of the contents
thereof. The High Court also seems to have completely lost sight
of these vital aspects in rejecting the writ petition.”
84. The facts in the above case are somewhat similar to the present
case. The present case is also not a case where it is required to consider
as to whether the relinquishment envisaged under the Rules and
Conditions of Service, is unilateral or bilateral in character. In the present
case also, the words “with immediate effect” in the resignation letter
could not be given undue importance, dehors the context, tenor of
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language used therein, indicating the circumstances in which it was
written. The resignation letter in the present case, as has already been
discussed hereinabove, appears to be on account of exasperationand
frustrationactuated by a thought, that injustice was being meted out to
her by the very Institution of Judiciary.
85. We further find that the breakneck speed at which the events
have taken place in the present matter, gives rise to a suspicion, that
there is something more than which meets the eye. On 3rd July 2014, the
then D & SJ, Gwalior, who appears to have joined the service a short
while ago, addressed a complaint to the then RG. The said D & SJ,
Gwalior, in his deposition before the JIC, has clearly admitted that the
instances mentioned in the complaint, were not within his personal
knowledge, but were on the basis of the complaints made to him by
other Judicial Officers. He further admitted that the complaints were
with regard to the period, which was before his joining as D & SJ, Gwalior.
He further admitted that there were no written complaints by the Judicial
Officers and that he had proceeded to write the complaint on the basis
of their oral complaints. Within days of the said complaint being made,
on 7th July 2014, the Transfer Committee decided to transfer the petitioner
from Gwalior to Sidhi. The transfer order was issued on 8th July 2014.
The petitioner made a representation on the very next day i.e. 9th July
2014, and the same was
rejected within two days i.e. 11th July 2014. On
11th July 2014, the petitioner made another representation. However,
that also did not find favour with respondent No. 1 and was rejected on
14th July 2014, on the ground that the earlier representation on identical
grounds was already rejected. It is to be noted that 12th July 2014 was a
second Saturday, 13th July 2014 was a Sunday and on the very next
working day i.e. 14th July 2014, her second representation was rejected.
On 15th July 2014, the petitioner tendered her resignation. On the next
day i.e. 16th July 2014, the MP High Court with the recommendation for
acceptance of the same, forwarded it to respondent No.2. On the very
next day i.e. 17th July 2014, respondent No. 2 accepted the same.
86. It will not be out of place to mention that in some High Courts,
a practice is followed, that whenever a Judicial Officer having good
track record tenders his/her resignation, an attempt is made by the Senior
Judges of the High Court to counsel and persuade him/her to withdraw
the resignation. Valuable time and money is spent on training of a Judicial
Officer. Losing a good Judicial Officer without counselling him/her and
without giving him/her an opportunity to introspect and re-think, will not
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be in the interest of either the Judicial Officer or the Judiciary. We find
that it will be in the interest of judiciary that such a practice is followed
by all the High Courts.
87. We are therefore of the considered view that in the peculiar
facts and circumstances of the case, the petitioner’s resignation dated
15th July 2014, could not be construed to be voluntary. In any case,
immediately in a fortnight, on 1st August 2014, the petitioner had made a
representation to Hon’ble the President of India as well as the Chief
Justice of India, with a copy to the Chief Justice of the MP High Court
for reconsideration of the circumstances under which, she was left with
no option but to resign. Though, it may not be possible to observe that
the petitioner was forced to resign, however, the circumstances
enumerated hereinabove, would clearly reveal that they were such, that
out of frustration, the petitioner was left with no other alternative.
88. It is contended on behalf of the MP High Court that the
petitioner, who was on probation, had voluntarily tendered her resignation,
which was accepted and as such, led to an irrevocable severance of
relationship of the employer and employee. In this regard, it is to be
noted that the petitioner was initially appointed on probation for a period
of two years on 1st August 2011. Her probation was completed on 1st
August 2013. Admittedly, there has been no order extending the period
of
probation of the petitioner from 1st August 2013 onwards. On the
contrary, she was assigned with various additional duties in the year
2013. Not only this, but her assessment for the assessment year 2013,
during which, she would be deemed to be confirmed, was ‘very good’.
We therefore find that the said contention is nothing but an after-thought.
89. Insofar as the contention with regard to delay is concerned,
we find no merit in the said contention also. Immediately after the
petitioner resigned on 15th July 2014, she made a representation to
Hon’ble the President of India as well as the Chief Justice of India, with
a copy to the Chief Justice of the MP High Court, requesting to reconsider
the circumstances in which she was left with no option but to resign.
The petitioner thereafter had also pursued a writ petition before this
Court. Thereafter, she had participated in the proceedings before the
JIC and after the JIC expressed its opinion, that it would be in the interest
of justice that she should be re-instated in service, she made a
representation to the MP High Court, for re-instatement in service. After
the said representation was rejected, she has immediately approached
this Court in the present matter. We therefore find that the petitioner
cannot be denied the reliefs on the so-called grounds of delay and laches.
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90. That leaves us with the last submission of the learned Solicitor
General, that if we hold the resignation in the present case to be actuated
by coercion, it will have far-reaching implications and will open floodgates
to the similarly situated Judicial Officers. Another submission made is
that, if a decision of the Full Court of the MP High Court is interfered
with, it will stigmatize the entire Institution and have catastrophic effects.
91. We find the said submissions to be totally uncalled for. At the
outset, we have clarified that we are only examining the correctness
and otherwise of the order of transfer, the rejection of the representations
and the question as to whether the resignation in the facts of the present
case, could be construed to be voluntary or not. We have not at all gone
into the question, regarding the correctness or otherwise of the decisions
of the Full Court of the MP High Court with regard to the rejection of
the petitioner’s representation. As already discussed hereinabove, there
might be reasons and factors which might have weighed with the Full
Court of the MP High Court for taking such a decision. At the cost of
repetition, we reiterate that we have full respect for the authority of the
Full Court to arrive at such a decision. As such, there is no question of
stigmatizing the Full Court of the MP High Court. It is a different matter,
that if the suggestions made by this Court on more than one occasion
would have been
accepted, the exercise of examining the factual scenario,
could have been avoided. In any case, we have restricted our inquiry
only to the facts, which we found necessary to decide the present case.
We have refrained ourselves from going into the details of the findings
of the JIC, so as to protect the dignity of all concerned. We have refrained
ourselves from mentioning a single name in our judgment.
92. In that view of the matter, the contention of the learned Solicitor
General with regard to stigmatizing the MP High Court is without
substance.
93. Insofar as the contention, that if this Court holds the resignation
in the present case to be coercive, it will have far-reaching effects on
the administration of judiciary is concerned, the same is also without
substance. It will be apposite to refer to the following observations made
by this Court in the case of Union of India and Others v. Dhanwanti
Devi and Others14:
“9. …….. It is not everything said by a Judge while giving judgment
that constitutes a precedent. The only thing in a Judge’s decision
binding a party is the principle upon which the case is decided and
14 (1996) 6 SCC 44
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for this reason it is important to analyse a decision and isolate
from it the ratio decidendi. According to the well-settled theory
of precedents, every decision contains three basic postulates—
(i) findings of material facts, direct and inferential. An inferential
finding of facts is the inference which the Judge draws from the
direct, or perceptible facts; (ii) statements of the principles of law
applicable to the legal problems disclosed by the facts; and (iii)
judgment based on the combined effect of the above. A decision
is only an authority for what it actually decides. What is of the
essence in a decision is its ratio and not every observation found
therein nor what logically follows from the various observations
made in the judgment. Every judgment must be read as applicable
to the particular facts proved, or assumed to be proved, since the
generality of the expressions which may be found there is not
intended to be exposition of the whole law, but governed and
qualified by the particular facts of the case in which such
expressions are to be found……”
It could thus be seen that this Court has held that a decision is an
authority only for what it actually decides. Every judgment must be read
as applicable to the particular facts, proved or assumed to be proved.
The generality of the expressions found there, is not intended to be
exposition of the whole law, but governed and qualified by the particular
facts of
the case in which such expressions are to be found.
94. This Court in the case of The Regional Manager and Another
v. Pawan Kumar Dubey15 has succinctly observed thus:
“7. …..Even where there appears to be some conflict, it would,
we think, vanish when the ratio decidendi of each case is correctly
understood. It is the rule deducible from the application of law to
the facts and circumstances of a case which constitutes its ratio
decidendi and not some conclusion based upon facts which may
appear to be similar. One additional or different fact can make a
world of difference between conclusions in two cases even when
the same principles are applied in each case to similar facts.”
The ratio decidendi is a rule deducible from the application of
law to the facts and circumstances of a case and not some conclusion
based upon facts which may appear to be similar. It has been held that
one additional or different fact can make a world of difference between
15 (1976) 3 SCC 334
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conclusions in two cases even when the same principles are applied in
each case to similar facts.
95. As has already been discussed hereinabove, we may reiterate
that we have decided the present matter only on the basis of the peculiar
facts and circumstances, as are found in the present matter. We do
hope, that in future, similar facts would never arise for consideration, at
least in a lis between a High Court and a Judicial Officer. However, we
may remind ourselves of the dictum that law is supreme and no one is
above law. It would be apt to reproduce the words of Thomas Fuller,
which have been quoted by Lord Denning, “Be ye never so high, the
law is above you”.
96. Before we part with the judgment, we find it our duty to place
on record our appreciation for the valuable assistance rendered by Smt.
Indira Jaising, learned Senior Counsel and Shri Tushar Mehta, learned
Solicitor General of India.
97. In the result, the writ petition is partly allowed in the following
terms:
(i)
We hold and declare that the petitioner’s resignation from
the post of Additional District & Sessions Judge, Gwalior
dated 15th July 2014, cannot be construed to be voluntary
and as such, the order dated 17th July 2014, passed by the
respondent No. 2, thereby accepting the resignation of the
petitioner, is quashed and set aside; and
(ii)
The respondents are directed to re-instate the petitioner
forthwith as an Additional District & Sessions Judge.
Though the petitioner would not be
entitled to back wages,
she would be entitled for continuity in service with all
consequential benefits with effect from 15th July 2014.
98. No order as to cost. Pending application(s), if any, shall stand
disposed of in the above terms.
Ankit Gyan
Writ petition partly allowed.
(Assisted by : Rahul Rathi, LCRA)
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