# MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA PRADESH AND ANOTHER

- **Citation:** [2022] 15 S.C.R. 57
- **Court:** Supreme Court of India
- **Decided:** 2022-02-10
- **Bench:** L. Nageswara Rao, B. R. Gavai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ms-x-v-registrar-general-high-court-of-madhya-pradesh-and-another-35624
- **Pages:** 47

## Headnote

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 judi

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 [2022] 15 S.C.R. 57
57
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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[2022] 15 S.C.R.
- 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
PRADESH AND ANOTHER [B. R. GAVAI, J.]
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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 midterm 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
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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 reinstatement 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.
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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.