MS. X versus REGISTRAR GENERAL, HIGH COURT OF MADHYA PRADESH AND ANOTHER on 10 February 2022

[2022] 15 S.C.R. 57

MS. X

v.

REGISTRAR GENERAL, HIGH COURT OF MADHYAPRADESH 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 – TransferPolicy of Madhya Pradesh High Court – Clause 9, 9(a) – AdditionalDistrict & Sessions Judge – Re-instatement in Service – Whetherthe resignation of petitioner was voluntary – As per the Petitioner(Additional District and Session Judge), she was sexually harassedby Justice ‘A’ and thereafter she was transferred to other district –She made a representation praying for an extension so that herdaughter completes her academic session – Her representation wasrejected – Consequent to which she resigned – Judges InquiryCommission (JIC) cleared Justice ‘A’ of all charges – However, JICfound that the transfer of the petitioner was irregular and thepetitioner should be re-instated in the service – Her representationto the Chief Justice of High Court for her reinstatement was rejectedby the Full Court twice despite the request made by Supreme Court– Held: The transfer of the petitioner was effected mid-term thoughshe could have very well been transferred in general transfers, tobe effected in March-April – Neither the procedure as prescribedunder Clause 9 of the Transfer Policy of obtaining the commentsfrom the District Judge and the Portfolio Judge were complied with,nor the Transfer Committee considered the provisions of Clause9(a) of the Transfer Policy – The rejection of the secondrepresentation depicts total non application of mind by the then RGas well as the then Judge of the Transfer Committee of the HighCourt – Respondent failed to take into consideration the factors,which were required to be considered, while deciding therepresentation – There is no hesitation in holding that the petitionerhas established that her transfer order was in contravention of theTransfer Policy and that the rejection of her two representations, inaddition of being contrary to the Transfer Policy, were also arbitrary

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A– As such, the petitioner had discharged her burden and the onus isshifted on the respondent to show that the petitioner’s transfer orderwas fair and reasonable in the facts and circumstances of the case– Respondent has failed to discharge its burden – In the peculiarfacts and circumstances of the case, the petitioner’s resignation,could not be construed to be voluntary – Therefore, resignation ofBpetitioner is quashed and respondent is directed to re-instate thepetitioner.

Constitution of India – Art. 12 – High Court as a State –While exercising its functions on the administrative side, the MPHigh Court would also be a State within the meaning of Article 12Cof the Constitution of India Partly allowing the writ petition, the Court

Conclusion

HELD: 1.1 It could thus be seen that this Court has heldthat mere reasonable or legitimate expectation of a citizen mayDnot by itself be a distinct enforceable right. It is further held thatthe failure to consider and give due weight to it may render thedecision arbitrary. It has been held that the requirement of dueconsideration of a legitimate expectation forms part of theprinciple of nonarbitrariness, which is a necessary concomitantof the rule of law. Every legitimate expectation is a relevant factorErequiring due consideration in a fair decision- making process.Whether the expectation of the claimant is reasonable orlegitimate in the context is a question of fact in each case.Whenever the question arises, it is to be determined notaccording to the claimant’s perception but in larger public interestFwherein other more important considerations may outweigh, whatwould otherwise have been the legitimate expectation of theclaimant. It has been held that a bona fide decision of the publicauthority reached in this manner would satisfy the requirementof non-arbitrariness and withstand judicial scrutiny. It has beenheld that the principle of fairness has an important place in theGlaw of judicial review and that unfairness in the purported exerciseof power can be such that it is abuse or excess of power. Thecourt should interfere where discretionary power is not exercisedreasonably and in good faith. [Para 40][80-B-E]

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1.2 It could thus be seen that though the Transfer Policymay not be enforceable in law, but when the Transfer Policy hasbeen framed by the MP High Court for administration of theDistrict Judiciary, every Judicial Officer will have a legitimateexpectation that such a Policy should be given due weightage,when the cases of Judicial Officers for transfer are beingconsidered. [Para 41][80-E-F]

2. It could thus be seen that the transfer of the petitionerwas effected midterm though she could have very well beentransferred in general transfers, to be effected in March April,2014. Even in the agenda of the midterm transfers, which wereto be effected on various grounds, petitioner’s name was notincluded. It was only after the then D & SJ, Gwalior addressed acomplaint to the then RG, seeking her transfer out of Gwalior,the matter was placed immediately before the Transfer Committeewithin days and the Transfer Committee approved the transfer ofthe petitioner. Immediately after the receipt of the transfer order,the petitioner made a representation on 9[th] July 2014, specificallypointing out therein that her daughter was studying in Class 12[th]and also undergoing FIITJEE coaching. The said representationwas rejected within two days. The petitioner had a legitimateexpectation of her representation being considered specificallyin view of Clause 9(a) of the Transfer Policy. The Transfer Policyprovides that on such representation being made, the RG shallobtain the comments of the District Judge within a week and onreceiving his comments after necessary verifications, it wasrequired that the matter should be placed before the concernedPortfolio Judge within a week, who was required to return thefile within a period of one week thereafter, with his comments/opinion. Undisputedly, neither the procedure as prescribed underClause 9 of the Transfer Policy of obtaining the comments fromthe District Judge and the Portfolio Judge were complied with,nor the Transfer Committee considered the provisions of Clause9(a) of the Transfer Policy. [Para 46 & 47][82-D-H; 83-A]

2.1 The petitioner had a legitimate expectation in view ofClause 10 of the Transfer Policy to have her case considered forposting at any of the 4 places in the event her request for retentionat the then present posting was not considered and as such, she AB

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Amade the second representation. The rejection of the secondrepresentation depicts total non-application of mind by the thenRG as well as the then Judge of the Transfer Committee of theMP High Court. The proposal of the then RG was made in a casualmanner and accepted by the then Judge on the TransferCommittee in a mechanical manner. The transfer is sought to beBjustified in view of Clause 22 of the Transfer Policy. One of thegrounds on which the transfer could be made in midterm, is thatthe performance of such Judicial Officer is found to be below thenorms prescribed. The same is admittedly not available in thepresent case. The petitioner’s performance in the assessmentCmade by the then D & SJ, Gwalior on 15[th] January 2014 for theassessment year 2013, has been found to be ‘very good’. Thatleaves us with the second ground available under Clause 22 ofthe Transfer Policy, that a transfer can be made if the groundsexist for initiating an inquiry against such a Judicial Officer. Thesame is also not the case here. [Para 50 & 51][84-B-E]D

2.2 It could thus be seen that this Court has held that thereis a presumption of validity of the State action and the burden ison the person who alleges violation of Article 14 of theConstitution of India to prove the assertion. It has been furtherheld that where no plausible reason or principle is indicated norEis it discernible and the impugned State action appears to bearbitrary, the initial burden to prove the arbitrariness isdischarged, thereby shifting onus on the State to justify its actionas fair and reasonable. If the State is unable to produce materialto justify its action as fair and reasonable, the burden on the personFalleging arbitrariness must be held to be discharged. The limitedscope of judicial review is only to satisfy that the State action isnot vitiated by the vice of arbitrariness and no more. It is equallysettled that it is not for the courts to recast the policy or tosubstitute it with another which is considered to be more appropriate. It has been held that the attack on the ground ofGarbitrariness is successfully repelled by showing that the act whichwas done, was fair and reasonable in the facts and circumstancesof the case. [Para 55][86-C-E]

3. The Court has no hesitation in holding that the petitionerhas established that her transfer order was in contravention ofH

the Transfer Policy and that the rejection of her tworepresentations, in addition of being contrary to the TransferPolicy, were also arbitrary. As such, the petitioner has dischargedher burden and the onus is shifted on the respondent No.1 toshow that the petitioner’s transfer order was fair and reasonablein the facts and circumstances of the case. The respondent No.1has utterly failed to discharge its burden. On the contrary, theadmissions made before the JIC by the then Judge on theTransfer Committee clearly show that the transfer was made solelyon the basis of the complaint made by the then D & SJ, Gwaliorwithout verifying the veracity thereof. Not only this, but it isevident that the then Judge had not looked into the annexuresattached with the representation, which included the fee receiptsetc. 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 themother in her. On one hand, was her career as a Judicial Officer;on the other hand, was the possibility of her daughter’s educationalprospects and career coming into jeopardy, if she shifted to theplace of posting at Sidhi. A possibility of her mind engrossed witha feeling, that she was subjected to injustice by the very Institutionof Judiciary, cannot be ruled away. What was she asking for? Aretention at Gwalior for a period of 8 months till her daughtercompletes her Class 12[th]. In the alternative, posting at any of the4 cities, which were admittedly in Category ‘B’, where herdaughter could have better education facilities, and where thevacancies existed. [Para 79][94-B-C]

3.2 Denial of her legitimate expectation could have led todesperation, exasperation and frustration. The frustration of thepetitioner is evident from the language used by her in herresignation letter. She stated that as she had been transferred toSidhi in the midacademic session of her daughter’s Class 12[th], ithad mostly affected the crucial stage of career of her daughter.She stated that therefore, she was left with no other option but toresign from her post. It appears that in a gruesome battle betweena mother and a Judicial Officer, the Judicial Officer lost the battleto the mother. [Para 80][94-D-E]

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A4. The breakneck speed at which the events have takenplace in the present matter, gives rise to a suspicion, that thereis something more than which meets the eye. It will not be out ofplace to mention that in some High Courts, a practice is followed,that whenever a Judicial Officer having good track record tendershis/her resignation, an attempt is made by the Senior Judges ofBthe High Court to counsel and persuade him/her to withdraw theresignation. Valuable time and money is spent on training of aJudicial Officer. Losing a good Judicial Officer without counsellinghim/her and without giving him/her an opportunity to introspectand re-think, will not be in the interest of either the Judicial OfficerCor the Judiciary. This Court finds that it will be in the interest ofjudiciary 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) 1SCC 701 : [2002] 5 Suppl. SCR 27; Somesh Tiwari v.DUnion of India and Others (2009) 2 SCC 592 : [2008]17 SCR 711 - relied on.

Additional District and Sessions Judge ‘X’. v. RegistrarGeneral, 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 & Kashmirand Others (2003) 9 SCC 592 : [2003] 1 Suppl. SCR114; Registrar General, High Court of Patna v. PandeyGajendra Prasad and Others (2012) 6 SCC 357 : [2012]5 SCR 994; Rajendra Singh Verma (Dead) ThroughLRs 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 FeedIndustries (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. SCR625; Kalabharati Advertising v. Hemant VimalnathNarichania and Others (2010) 9 SCC 437 : [2010] 10SCR 971; Union of India and Others v. Dhanwanti Deviand Others (1996) 6 SCC 44 : [1996] 5 Suppl. SCR32; The Regional Manager and Another v. Pawan E

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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 2[nd] 885; Pennsylvania State Policev. Nancy Drew Suders 542 US 129- referred to.

Case Law Reference

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 thePetitioner.

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.

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AThe Judgment of the Court was delivered by

B. R. GAVAI, J.

1. The petitioner has approached this Court in the instant writpetition filed under Article 32 of the Constitution of India seeking thefollowing reliefs:B

a.“Issue an appropriate writ, order or direction in the natureof mandamus to quash and set aside the order dated11.01.2018 of Chief Justice of the High Court communicatedon 25.1.18 of Madhya Pradesh passed after the Full CourtMeeting, rejecting the application for reinstatement asCviolative of Articles 14, 15, 16, 21 r/w. 233, 235 & 311 ofthe Constitution of India and Natural Justice; b.Issue an appropriate writ, order or direction in the nature ofmandamus declaring that the Petitioner’s resignation fromthe post of Additional District Judge VIII, Gwalior datedD15.07.2014 amounts to constructive dismissal due to theemployer’s conduct which applies in the Statutory contextwhere the term “Dismissal/dismissed” is used;

c.Issue an appropriate writ, order or direction in the nature ofmandamus directing the reinstatement of the Petitioner asEan Additional District and Sessions Judge from the date ofher resignation i.e. 15.07.2014, with continuity in service atS.No 134 of the list of District Judges(Selection Grade) ofthe Gradation List according to Clause 4 of the MadhyaPradesh Higher Judicial Services (Recruitment andFConditions of Service) Rules, 2017, back wages accordingto Clause 3(b) of the Madhya Pradesh Higher JudicialServices (Recruitment and Conditions of Service) Rules,2017 and all service benefits and all consequential reliefs;”

2. The bare minimum facts, necessary for adjudication of thepresent petition are as under:G

The petitioner was selected in the competitive examination ofMadhya Pradesh Higher Judicial Services at District Entry Level (directrecruitment from Bar) conducted in the year 2011, and stood 2[nd] in thesaid examination. On her selection, the petitioner was posted as a 2[nd] to1[st] Additional District and Sessions Judge (hereinafter referred to as theH

“AD & SJ”) at Gwalior on 1[st] August 2011. On 1[st] October 2012, thepetitioner was posted as VIII[th] AD & SJ, Gwalior. In the 1[st] AnnualConfidential Report (hereinafter referred to as the “ACR”) of thepetitioner, assessed in January, 2013 by the then District and SessionsJudge (hereinafter referred to as the “D & SJ”) and approved by thethen Portfolio/Administrative Judge (hereinafter referred to as “Justice‘A’”) of the High Court of Madhya Pradesh at Gwalior Bench (hereinafterreferred to as the “MP High Court”), she was given ‘C/good’ grading.The petitioner was assigned various additional responsibilities in the year2013. In her 2[nd] ACR, assessed in the month of January, 2014 by thethen 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 sexuallyharassed by Justice ‘A’. It is further her case that due to the said sexualharassment and at the instance of Justice ‘A’, the then D & SJ addresseda complaint dated 3[rd] July 2014 against her to the MP High Court. It isfurther her case that on 7[th] July 2014, the Transfer Committee of theMP High Court comprising of two Judges of the MP High Court, approvedthe transfer of the petitioner from Gwalior to Sidhi. The said transferorder was conveyed to the petitioner on 8[th] July 2014. On 9[th] 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 foran extension of 8 months in Gwalior so that her daughter (studying inClass 12[th]) completes her academic session. The same came to berejected on 11[th] July 2014. The petitioner, who was unaware about therejection of her first representation, sent her second representation on11[th] July 2014, seeking alternative posting to 4 cities namely Sehore,Raisen, Dewas or Ujjain so that her daughter could continue with hereducation, which also came to be rejected on 14[th] July 2014.

4. The petitioner tendered her resignation on 15[th] July 2014, whichwas accepted by the Government of Madhya Pradesh, Law andLegislative Affairs Department on 17[th] July 2014. The petitioner wasinformed about the acceptance of her resignation on 18[th] July 2014.

5. The petitioner thereafter on 1[st] August 2014 sent arepresentation to Hon’ble the President of India, the Chief Justice ofIndia, with a copy to Chief Justice of MP High Court, with the followingprayer:

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A(i)Appropriate action be taken, after fact-finding;

(ii) Re-consider circumstances under which petitioner wascoerced & exerted duress upon, until the only option shehad was to resign;

(iii) Institute an appropriate mechanism for redressal ofBgrievances like the above, of sub-ordinate services judicialofficers.

6. Between 1[st] August 2014 and 18[th] December 2014, certainevents took place with regard to the Inquiry into the alleged conduct ofJustice ‘A’, which culminated in the judgment passed by this Court in theCcase of Additional District and Sessions Judge ‘X’. v. RegistrarGeneral, High Court of Madhya Pradesh and Others[1]. The saidevents are duly recorded in the said judgment and therefore, it is notnecessary to refer to them in detail.

7. In pursuance to the aforesaid judgment of this Court, the ChiefDJustice of India sought a preliminary inquiry report from the then ChiefJustice of the Karnataka High Court and on receipt thereof, constitutedan In-House Committee headed by the then Chief Justice of AllahabadHigh Court. The said In-House Committee submitted its report on 2[nd]July 2015. In the meantime, a Notice of Motion for the removal of JusticeE‘A’ was moved by 58 Members of Parliament in the Rajya Sabha. Thesaid Motion was admitted by the Chairman, Rajya Sabha, the then Hon’bleVice-President of India on 25[th] March 2015. Accordingly, a JudgesInquiry Committee (hereinafter referred to as the “JIC”) came to beconstituted under Section 3 of the Judges (Inquiry) Act, 1968 (hereinafterreferred to as the “said Act”) comprising of a sitting Judge of this Court,Fthe then Chief Justice of the Karnataka High Court and a Senior Advocateof this Court. Subsequently, in place of the Judge of this Court, who wasthe Presiding Officer of JIC, another Judge of this Court was made partof the JIC as the Presiding Officer. The JIC submitted its report on 15[th]December 2017, which was tabled before the Rajya Sabha, and theGRajya Sabha cleared Justice ‘A’ of all charges.

8. However, the JIC found that the transfer of the petitioner wasirregular and it was further found that in the circumstances prevailingthen, the transfer of the petitioner to Sidhi had become unbearable forher to continue in service, resulting in her resignation. The JIC, therefore, H1 (2015) 4 SCC 91

expressed its opinion that in the interest of justice, the petitioner shouldbe re-instated in service, in case she intends to re-join the service. TheJIC clarified that it was not within the purview of the Reference madeto them.

9. Pursuant to the recommendation of the JIC, the petitioneraddressed a representation to the then Chief Justice of MP High Courton 21[st] December 2017 for her re-instatement in service. On 25[th] January2018, the MP High Court through its RG communicated the rejection ofthe petitioner’s representation by a Full Court in its meeting held on 11[th]January 2018. The petitioner thereafter filed the present petition for thereliefs which have already been reproduced hereinabove.

10. During the pendency of this petition, this Court passed anorder on 13[th] February 2019, requesting the MP High Court forreconsideration of the issue of re-instatement of the petitioner in service.The Full Court of the MP High Court rejected the said representation inits meeting held on 15[th] February 2019. The Bench of this Court, whichhad passed the order dated 13[th] February 2019, vide order dated 21[st]February 2019, expressed that the said Bench should not deal with thematter on merits and directed the matter to be placed before anotherBench. It appears that thereafter again suggestions were made by thisCourt to the parties to amicably settle the matter. It appears that at onepoint of time, this Court also suggested that the respondent No.1 shouldre-consider the issue of petitioner’s re-instatement in service and thatafter re-instatement, she could be sent on deputation outside the State orshe could be adjusted in some other State. It is the case of the petitionerthat though the said suggestion was acceptable to her, the MP HighCourt re-iterated its stand. In this background, the matter has come upbefore us.

11. At the outset, it is to be noted that, counsel for the petitionerclarified that the petitioner is not pressing the present matter on theground of sexual harassment by Justice ‘A’, but is limiting her submissionswith regard to the transfer order being illegal and mala fide, and theconsequent resignation amounting to constructive dismissal. We havetherefore refrained ourselves from making any reference to the allegationsof sexual harassment made in the petition. We have also refrainedourselves from mentioning the name of Justice ‘A’ or any of the Judgesof the MP High Court, who on the administrative side, had some role toplay in the matter, so also the Members of the District Judiciary, whowere directly or indirectly involved in the present case.

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68SUPREME COURT REPORTS

A12. We have heard Ms. Indira Jaising, the learned Senior Counselappearing on behalf of the petitioner and Mr. Tushar Mehta, the learnedSolicitor General of India appearing on behalf of the respondents.

13. Smt. Indira Jaising submitted that the MP High Court wasbound by the Transfer Guidelines/Policy of the High Court of MadhyaBPradesh incorporated on 12[th] January 2012 (hereinafter referred to asthe “Transfer Policy”). She submitted that as per the Transfer Policy,the annual transfers normally take place by 15[th] of March every yearand the Judicial Officers transferred are given time to join up to 1[st] ofApril so as to coincide with the academic session in schools. It is submittedthat as per the Transfer Policy, the normal tenure of a Judicial Officer atCa particular posting is of 3 years, and a period of 6 months or more is tobe treated as a full year. Accordingly, the petitioner could have beentransferred in March 2014 as she had already completed more than 2years and 6 months till then. It is submitted that however, the petitionerwas transferred mid-term on 7[th] July 2014. It is submitted that the mid-Dterm transfer as provided under Clause 22 of the Transfer Policy can bemade on the limited grounds mentioned therein. Smt. Jaising submittedthat none of the grounds as mentioned in Clause 22 of the TransferPolicy were available in the case of the petitioner.

14. Smt. Jaising further submitted that as per the Transfer PolicyEif a daughter of a Judicial Officer is studying at the place of his/hercurrent posting and is in the final year of the Board Examination orUniversity Examination and the Educational Institution where thedaughter is studying, does not have hostel facility for girls, the said JudicialOfficer is permitted to stay over the prescribed period. She furthersubmitted that the transfer of the petitioner was also violative of ClauseF16 of the Transfer Policy inasmuch as a Judicial Officer is required tofirst 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 transferredfrom Category ‘A’ city to ‘C’ city. The learned Senior Counsel submittedthat the JIC, in its report, had clearly found the petitioner’s transfer to beGcontrary to the Transfer Policy.

15. Smt. Jaising further submitted that from the record, it is clearthat 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 petitionerHwas made on the basis of the complaint made by the then D & SJ, Gwalior. It is submitted that the JIC had further found from the evidenceof the then Judge, MP High Court, who was a Member of the TransferCommittee that, the transfer was made solely on the basis of thecomplaint made by the then D & SJ, Gwalior.

16. Smt. Jaising further submitted that from the evidence of thethen Judge on the Transfer Committee recorded by the JIC, it was clearthat the representations of the petitioner were also not considered by theTransfer Committee in the right earnest.

17. Smt. Jaising submitted that the petitioner’s resignation was anoutcome of the circumstances, in which she had no other option but totender her resignation and as such, was not a resignation in law but aforced resignation, which amounts to constructive discharge. She relieson the following judgments of the Court of Appeal of United Kingdom insupport of this proposition:

Western Excavating (E.C.C) Ltd. v. Sharp[2]; Lewis v. Motorworld Garage[3]

She further relied on the following judgments of the US Court ofAppeals, Third Circuit to assert the point of hostile work environmentand institutional failure:

Goss v. Exxon[4];

Pennsylvania State Police v. Nancy Drew Suders[5]

18. Smt. Jaising submitted that Article 11 of Convention on theElimination of All Forms of Discrimination Against Women (CEDAW)to which India is a signatory, provides that a woman should be able towork and discharge family duties at the same time. She submitted thatthe petitioner’s transfer was at such a place, where she could not havebeen able to simultaneously discharge her duties as a Judicial Officerand her duties towards the family. As such, the said transfer order wasin violation of Article 11 of CEDAW.

19. Smt. Jaising further submitted that the Full Court of the MPHigh Court has failed to give justice to the petitioner inasmuch as hergrievance was not considered. She submitted that immediately after the 2 1978 I.C.R. 22

3 1985 WL 3110684 747 F 2nd8855 542 US 129

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Apetitioner had tendered her resignation, she had made a representationwithin a fortnight i.e. on 1[st] August 2014 to Hon’ble the President ofIndia as well as the Chief Justice of India, with a copy to the ChiefJustice of the MP High Court for reconsidering the entire issue. Shefurther submitted that, as suggested by this Court, the petitioner isforegoing her claims towards back wages and is only interested in servingBthe august institution of Judiciary. She therefore prayed that the petitionbe allowed and the petitioner be re-instated in service with continuity.

20. Per contra, Shri Tushar Mehta, the learned Solicitor Generalappearing on behalf of the respondents submitted that the allegationsmade by the petitioner with regard to sexual harassment are found to beCnot established by the JIC. He submitted that the said findings wererecorded as back as on 15[th] December 2017, which were not challenged,and in any case, cannot be questioned or assailed in ancillary proceedingslike the present one.

21. Shri Mehta further submitted that though, the findings of theDJIC with regard to transfer of the petitioner being irregular, are beyondthe scope of its “Terms of Reference”, at best, the transfer could beconstrued to be irregular. He submitted that assuming that the transferorder of the petitioner was irregular and even mala fide, the same havingnot been challenged at the relevant point of time, the validity thereofEcannot be challenged in the present proceedings. He submitted that theconcept of “coercion resulting into resignation” is a concept, which isdeveloped in the western countries with regard to labour jurisprudence,and that in any case, such reliefs can be granted only when such a factis duly established by leading evidence.F22. The learned Solicitor General submitted that the only contentionof the petitioner with regard to coercion is that she had to resign onaccount of mid-term transfer order. He submitted that a transfer is anincidence of service. He submitted that a mid-term transfer cannot besaid 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 necessaryGfor a person to establish, by leading cogent evidence, that not onlyunbearable pressure was built but such a pressure was intended not justto trouble an employee or to victimize an employee but to ensure that theemployee quits the job. He submitted that neither such circumstancesare pleaded nor asserted by the petitioner. In any case, he submitted that H

in the proceedings under Article 32 of the Constitution of India, it will notbe possible to arrive at such a finding.

23. Shri Mehta submitted that in any case, such a plea would notbe available to a Judicial Officer, who is discharging the sovereign functionof dispensing justice. He submitted that the Judicial Officers are trainedto be independent, fearless, non-impulsive and to act in accordance withlaw and as such, the concept which applies to a workman cannot beapplied to a Judicial Officer. He further submitted that the allegationsmade by the petitioner with regard to sexual harassment were madeonly after she resigned from the service.

24. Shri Mehta submitted that any decision in the presentproceedings will have far-reaching effects in the future. He submittedthat if a mere circumstance of mid-term transfer coupled withinconvenient 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 similarlysituated Judicial Officers would come up with such a plea, inasmuch asevery Judicial Officer is bound to have some or the other inconvenientfamily problems. He submitted that if such a view is taken, it will havefar-reaching effects on the administration of the District Judiciary.

25. Shri Mehta submitted that the Full Court of the MP High Courthas taken a unanimous decision on more than one occasion to reject thepetitioner’s representation regarding re-instatement in service. Hesubmitted that the observations made by the JIC with regard to the re-instatement of the petitioner were beyond the scope of its “Terms ofReference” and as such, the Full Court of the MP High Court has rightlyrejected the representation of the petitioner. He submitted that if aunanimous decision taken by the Full Court of the MP High Court isinterfered with by this Court, it will not only stigmatize the individualsmanning the institution but the entire institution.

26. Shri Mehta submitted that the submissions, which he is makingare not on the instructions of the MP High Court, but are being made byhim as an Officer of the Court. He submitted that what is sought to beurged by the petitioner is that the whole of the MP High Court as anInstitution connived together and ensured to create such circumstances,that she had no other option but to tender her resignation. He submittedthat if the petitioner’s contention is accepted, it will have catastrophiceffects.

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A27. Shri Mehta submitted that the scope of judicial review by thisCourt of a decision of the Full Court of a High Court, is very limited. Hesubmitted that this Court cannot sit in an appeal over the decision of theFull Court of a High Court. An interference would be permitted only inthe rarest of rare cases. He relies on the following judgments of thisCourt in support of this proposition:BSyed T.A. Naqshbandi and Others v. State of Jammu &Kashmir and Others[6]; Registrar General, High Court of Patna v. Pandey GajendraPrasad and Others[7]; CRajendra Singh Verma (Dead) Through LRs and Others v.Lieutenant Governor (NCT of Delhi) and Others[8]

28. He therefore prays for dismissal of the petition.

29. Before we consider the rival submissions, we clarify that weDare not examining the correctness or otherwise of the decisions of theFull Court of the MP High Court dated 11[th] January 2018 and 15[th]February 2019. We are conscious of the fact that the scope of judicialreview of a decision of the Full Court of a High Court is extremelynarrow and we cannot sit in an appeal over the decision of the Full Courtof a High Court. There could be various factors and reasons whichEcould have weighed with the Full Court of the MP High Court whilerejecting the representation made by the petitioner in its resolutions dated11[th] January 2018 and 15[th] February 2019. We have full respect for theauthority of the Full Court of the MP High Court to arrive at such adecision.F30. We therefore clarify that we are restricting the scope of enquiryin the present matter only to examine the following issues, on the basisof the factual scenario as has come on record in the present matter:

(i) As to whether the order transferring the petitioner fromGwalior to Sidhi dated 8[th] July 2014 is legal; G

(ii) As to whether the orders of the MP High Court dated 11[th]July 2014 and 14[th] July 2014, rejecting the petitioner’s 6 (2003) 9 SCC 592

7 (2012) 6 SCC 3578 (2011) 10 SCC 1H

representations dated 9[th] July 2014 and 11[th] July 2014respectively, were legal; and

(iii) As to whether the resignation of the petitioner dated 15[th]July 2014 can be considered to be voluntary or the onewhich has been forced due to circumstances.

31. Though, the issue directly involved in the present petition isonly the issue No. (iii), we find that it will be necessary to consider issueNos. (i) and (ii) inasmuch as our findings on the said issues will have adirect bearing on the finding on issue No. (iii).

32. We further clarify that we are examining the present matterpurely 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 tothe lis is the MP High Court on the administrative side, and the other onea Judicial Officer. We are of the considered view that the legal principles,which would govern the dispute between an employer who is a Stateand 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 theother one is a Judicial Officer.

33. Though, arguments have been advanced before us with regardto constructive discharge and the reliance is placed on the judgments ofCourts in United Kingdom and United States, we do not find it necessaryto go into that issue. We are of the considered view that the law asenunciated by this Court with regard to scope of judicial review of aState action, would squarely cover the issue.

34. With this note, we proceed to examine the facts in the presentmatter.

35. No doubt that the JIC, in its Report dated 15[th] December2017, has come to a clear finding that the transfer of the petitioner wasin contravention of the Transfer Policy laid down by the MP High Courtand as such, was irregular. The JIC has also come to a finding that therepresentations made by the petitioner were not appropriately consideredby 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 roleto play in the rejection of her representations. The JIC has also come toa finding that the basis of the petitioner’s transfer was the complaintdated 3[rd] July 2014, made by the then D & SJ, Gwalior. The JIC furtherfound that though, it was the stand of the MP High Court that the transfer A

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Aof the petitioner was on administrative grounds in view of the provisionsof Clause 22 of the Transfer Policy, the same was not established. TheJIC has further come to a finding that the circumstances becameunbearable for the petitioner, resulting in her resignation from service.

36. However, it is sought to be urged vehemently on behalf of theBrespondents that the aforesaid findings of the JIC were beyond the scopeof “Terms of Reference” made to it. Per contra, it is strenuously arguedby Smt. Jaising that the aforesaid observations are very much within thescope of the “Terms of Reference” made to the JIC. Without going intothat controversy, we find it apposite to re-examine the issue, independentof the findings of the JIC.C

37. It is not in dispute that the Transfer Policy has been incorporatedby the MP High Court on 12[th] January 2012. The Preamble of the saidTransfer Policy states that an attempt will be made to effect the transferand posting of Judicial Officers in the State of Madhya Pradesh inaccordance with the said Guidelines and Policy, and that the same is notDenforceable in law. However, it states that notwithstanding anythingcontained in the said Policy, the interest of the Judicial System andEstablishment in the State are paramount consideration for transfersand postings. The salient features of the said Transfer Policy are asunder:E(i)In accordance with Clause 3 of the Transfer Policy, theplaces available for posting are divided into 4 Categoriesmentioned as ‘A’, ‘B’, ‘C’ and ‘D’, which are mentioned inAnnexure-A;

(ii) In accordance with Clause 4 of the Transfer Policy, theFannual transfer of Judicial Officers shall be effectednormally by the 15[th] of March every year and that the JudicialOfficers shall be given time for joining up to the first day ofApril of the relevant year so as to coincide with the academicsession; G(iii)In accordance with Clause 5 of the Transfer Policy, thenormal approximate tenure of posting at a place shall bethree years;

(iv) In accordance with Clause 7 of the Transfer Policy, forcomputing the tenure of posting of an Officer posted at aH

particular place, the period of 6 months or above shall berounded off and treated as full year;

(v) Clause 9 of the Transfer Policy carves out the exceptionsin cases where an extension of tenure can be granted. Sub-clause (a) of Clause 9 specifies a ground, that such anextension would be available if a daughter (not son) of theJudicial Officer is studying at the place of his current posting,and is in the Final Year of a Board Examination or UniversityExamination, and the educational Institution where suchdaughter is studying, does not have hostel facility for girls.It further provides that the said criteria are for the Officersseeking over-stay in Category ‘A’ places. It further clarifiesthat insofar as Category ‘B’, ‘C’ or ‘D’ places areconcerned, the said facility would be available irrespectiveof the ward being a son or a daughter and further providesthat the availability of hostel facility will not be essential. Itfurther provides that the request on the said ground can beconsidered only if the facts with regard to education of thedaughter and non-availability of hostel facility in theInstitution are certified by the District Judge concerned,after proper verification, and further that the District Judgeas well as the Portfolio Judge have no objection to the over-stay of the Officer. Sub-clause (b) of Clause 9 deals withthe cases where over-stay is sought on the ground of illnessof a Judicial Officer, his spouse or children or aged parents.Sub-clause (c) of Clause 9 is a residuary clause, whichenables such exceptions on substantial reasons, which inthe opinion of the District Judge, the Portfolio Judge or theChief Justice, are justified;

Clause 9 of the Transfer Policy further provides that if anyJudicial Officer submits such a representation covered bysub-clause (a), (b) or (c), to his District Judge for beingforwarded to the Registrar General, it will be obligatory forthe District Judge to send the representation along with hiscomments within one week of its receipt after the necessaryverifications. The Registry thereafter is required to placethe matter before the concerned Portfolio Judge within aweek of the last date of the receipt of the representation, A

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and the Portfolio Judge is required to return the file with hiscomments/opinion within a week thereafter; A

(vi) Clause 10 of the Transfer Policy provides that all suchJudicial Officers who are seeking their extension, shall alsosimultaneously forward minimum three and maximum fiveBoptions regarding the place of the permissible category orlower category, where they would like to be posted in casethe representation is not allowed;

(vii) Clause 13 of the Transfer Policy provides that extension ofa posting after the tenure period would be granted only inCexceptional circumstances. The said Clause 13 furtherprovides that the decision regarding extension will be takenby the Chief Justice, or on his behalf, by a Committee oftwo Judges nominated by the Chief Justice, within threeweeks of the last date of receipt of representationsmentioned above; D

(viii) Clause 14 of the Transfer Policy provides that the JudicialOfficer, who is on deputation or holding an ex-cadre post,would be required to come back to the parent departmentafter completing a maximum period of three years on suchposting. It further provides that no extension on deputationEshall be granted after a period of three years. However,the power of Chief Justice to grant extension of one year inexceptional circumstances is reserved;

(ix) In accordance with Clause 16 of the Transfer Policy, atransfer takes place normally from Category ‘A’ to ‘B’,Ffrom ‘B’ to ‘C’, from ‘C’ to ‘D’ and from ‘D’ to ‘A’ orlower Category places;

(x) In accordance with Clause 17 of the Transfer Policy, theRegistrar General shall, by 15[th] of February each year,prepare a list of Officers, who will be completing theirGtenure/posting. It further provides that the Judicial Officerswhose request for over-stay has been allowed will beexcluded from that list and the Officers whose request forpre-mature transfer has been allowed, will be added to thatlist. The said Clause also requires to prepare a chartmentioning therein the details as required under the saidH

Clause. The purpose appears to be, to ensure an equitabledistribution of judicial work for Officers all over the State; A

(xi) Clause 18 of the Transfer Policy provides that an attemptshould be made to post the husband and wife at the sameplace, if both are working as Judicial Officers in the Stateof Madhya Pradesh. It further provides that, if that is notBpossible, an attempt should be made to post them at nearbyplaces;

(xii) Clause 19 of the Transfer Policy provides that whenever aclose relative of a Judicial Officer is suffering from a seriousailment, he shall be granted preference by posting in a placewhere or near which proper treatment facilities for theseailments are available; C

(xiii) Clause 20 of the Transfer Policy provides that JudicialOfficers, who are suffering from any physical disability,which is certified to be more than 40% by the appropriateMedical Board, would be granted preference in the matterof their posting to such place where they are not requiredto travel frequently; D

(xiv) Clause 21 of the Transfer Policy requires that JudicialOfficers, who have undergone posting for a period of twoyears or more in outlying Courts or in ‘D’ Category places,will be given preference in the transfer of their posting atDistrict Headquarters only; E

(xv) Clause 22 of the Transfer Policy provides that a JudicialOfficer may be transferred even before completion of theprescribed tenure or in mid-term in case his performance isfound to be below the norms prescribed or if grounds existfor initiating inquiry against him. It further provides that hemay also be transferred before completing the prescribedtenure in public interest or in the interest of administrationif so decided by the High Court; F

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(xvi) In accordance with Clause 23 of the Transfer Policy, aJudicial Officer, who has a year or less to retire as on firstday of April, is entitled to posting of his choice at a place,where or near which, he proposes to settle after hisretirement; H

A(xvii) Clause 24 of the Transfer Policy which could be construedas a residuary clause reserves the power of the Chief Justiceto issue general or particular directions which are notspecifically covered by the Policy. It further provides thatin case of any doubt with regard to Policy or itsimplementation, the clarification issued by the Chief JusticeBwill be treated as part of the Policy;

(xviii) Clause 25 of the Transfer Policy provides that norepresentation against transfers ordered by the High Courtwill normally be entertained except on a serious ground,which did not exist on the date of the issuance of the orderCof transfer;

(xix) Clause 26 of the Transfer Policy which is a non-obstanteclause provides that notwithstanding anything containedtherein, the Chief Justice or on his behalf, a Committee oftwo senior Judges nominated by the Chief Justice, will haveDoverriding powers to pass any order regarding the transferor posting of any Judicial Officer at any time;

(xx) Clause 28 of the Transfer Policy enables the Chief Justiceto delegate his powers to any other Judge/Officer orCommittee of Judges/Officers for implementation of theEPolicy/Guidelines.

38. It could thus be seen that the Transfer Policy incorporated bythe MP High Court has provided in detail, the procedure that is requiredto be followed with regard to effecting the transfer of the Judicial Officers,their tenure at a particular posting, the circumstances in which the caseFshould be considered for permitting the Judicial Officers to stay beyondthe prescribed period and the manner in which the representation is tobe considered etc.

39. No doubt that the said Transfer Policy is only a set of Guidelinesfor internal administration of the District Judiciary issued by the MPGHigh Court. However, while exercising its functions on the administrativeside, the MP High Court would also be a State within the meaning ofArticle 12 of the Constitution of India. We may gainfully refer to thefollowing observations made by this Court in the case of FoodCorporation of India v. M/s Kamdhenu Cattle Feed Industries[9]:

H9 (1993) 1 SCC 71

“8. The mere reasonable or legitimate expectation of a citizen, insuch a situation, may not by itself be a distinct enforceable right,but failure to consider and give due weight to it may render thedecision arbitrary, and this is how the requirement of dueconsideration of a legitimate expectation forms part of the principleof non-arbitrariness, a necessary concomitant of the rule of law.Every legitimate expectation is a relevant factor requiring dueconsideration in a fair decision-making process. Whether theexpectation of the claimant is reasonable or legitimate in the contextis a question of fact in each case. Whenever the question arises,it is to be determined not according to the claimant’s perceptionbut in larger public interest wherein other more importantconsiderations may outweigh what would otherwise have beenthe legitimate expectation of the claimant. A bona fide decision ofthe public authority reached in this manner would satisfy therequirement of non-arbitrariness and withstand judicial scrutiny.The doctrine of legitimate expectation gets assimilated in the ruleof law and operates in our legal system in this manner and to thisextent.

9. In Council of Civil Service Unions v. Minister for the CivilService [1985 AC 374 : (1984) 3 All ER 935 (HL)] the House ofLords indicated the extent to which the legitimate expectationinterfaces with exercise of discretionary power. The impugnedaction was upheld as reasonable, made on due consideration ofall relevant factors including the legitimate expectation of theapplicant, wherein the considerations of national security werefound to outweigh that which otherwise would have been thereasonable expectation of the applicant. Lord Scarman pointedout that “the controlling factor in determining whether the exerciseof prerogative power is subject to judicial review is not its sourcebut its subject-matter”. Again in Preston, in re [1985 AC 835 :(1985) 2 All ER 327] it was stated by Lord Scarman that “theprinciple of fairness has an important place in the law of judicialreview” and “unfairness in the purported exercise of a power canbe such that it is an abuse or excess of power”. These decisionsof the House of Lords give a similar indication of the significanceof the doctrine of legitimate expectation. Shri A.K. Sen referredto Shanti Vijay and Co. v. Princess Fatima Fouzia [(1979) 4SCC 602 : (1980) 1 SCR 459] which holds that court should ABC

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40. It could thus be seen that this Court has held that merereasonable or legitimate expectation of a citizen may not by itself be adistinct enforceable right. It is further held that the failure to considerBand give due weight to it may render the decision arbitrary. It has beenheld that the requirement of due consideration of a legitimate expectationforms part of the principle of non-arbitrariness, which is a necessaryconcomitant of the rule of law. Every legitimate expectation is a relevantfactor requiring due consideration in a fair decision-making process.Whether the expectation of the claimant is reasonable or legitimate inCthe context is a question of fact in each case. Whenever the questionarises, it is to be determined not according to the claimant’s perceptionbut in larger public interest wherein other more important considerationsmay outweigh, what would otherwise have been the legitimate expectationof the claimant. It has been held that a bona fide decision of the publicDauthority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. It has been held that theprinciple of fairness has an important place in the law of judicial reviewand that unfairness in the purported exercise of power can be such thatit is abuse or excess of power. The court should interfere wherediscretionary power is not exercised reasonably and in good faith.E

41. It could thus be seen that though the Transfer Policy may notbe enforceable in law, but when the Transfer Policy has been framed bythe MP High Court for administration of the District Judiciary, everyJudicial Officer will have a legitimate expectation that such a Policyshould be given due weightage, when the cases of Judicial Officers forFtransfer 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 ensuringthe general transfers, which were to be effected in the month of March2014, the petitioner’s name did not figure.G

43. It is further clear that in the agenda prepared for considerationof mid-term transfers to be effected in the month of July 2014, again thepetitioner’s name did not appear. It can further be seen from thedepositions of the then Judge of the MP High Court, who was a Memberof the Transfer Committee and that of the then RG of the MP High H

Court before the JIC, that the basis for the transfer of the petitioner wasthe complaint dated 3[rd] July 2014, addressed by the then D & SJ, Gwalior.It is to be noted that within days, the decision regarding transferring thepetitioner to Sidhi, which is about 507 kms. away from Gwalior, wastaken by the Transfer Committee on 7[th] July 2014, and was approved bythe Competent Authority on the very same day. The said transfer orderwas conveyed to the petitioner on the next day that is on 8[th] July 2014.

44. The petitioner, on coming to know about her transfer order,made a representation on the very next day i.e., on 9[th] July 2014. In thesaid representation, the petitioner had categorically stated that her elderdaughter was a brilliant child, studying in Class 12[th] and was preparingfor her Board and Competitive Exams at FIITJEE Coaching Centre,Gwalior. She further stated that her husband, due to compellingcircumstances and for looking after his aged parents, had to stay inDelhi and practically, she had to play the role of both a father and amother for her daughters and had to draw a balance between herprofession and dependent children. She further made a request to theCompetent Authority to allow her to stay in Gwalior till her daughtercompletes her Class 12[th] examination. The said representation wasrejected within two days i.e. on 11[th] July 2014. The then RG made anendorsement to the following effect:

“Hon’ble the transfer Committee in its meeting held on7.7.2014 has recommended transfer of Smt. Madan from Gwaliorto Sidhi on administrative ground, after considering the request ofD&S Judge, Gwalior with regard to her conduct and behavior. Itis gathered that adequate educational facilities including CBSESchool are available at Sidhi.

Therefore, the matter is submitted for kind considerationand order.”

The then Judge of the Transfer Committee of the MP High Courtmade the following endorsement on the same day:

“The representation may be rejected as it does not call for anyconsideration.”

45. After rejection of her first representation, the petitioner madeanother representation to the respondent No.1 on 11[th] July 2014, throughthe then D & SJ, Gwalior. In the said representation, she had requestedfor her transfer either to Sehore, Raisen, Dewas or Ujjain so that her AB

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Adaughter could continue with her education. The then RG, on 14[th] July2014, placed the said representation of the petitioner before the TransferCommittee with the following endorsement:

“Kind attention is invited to another representation (dated 11[th]July, 2014) submitted by Ms. ‘X’, 8[th] A.D.J., Gwalior regardingBher transfer from Gwalior to Sidhi, almost on identical groundspertaining to education of her daughters.

The Committee has already considered the representation dated9[th] July, 2014 of Ms. ‘X’ and has been pleased to reject the same.

The matter is submitted again for kind consideration and orders inCview of the repeat representation dated 11[th] July, 2014.”

The then Judge of the Transfer Committee of the MP High Courtmade the following endorsement on the same day:

“In view of the order already passed on the representation nofurther reconsideration is to be made.”D

46. It could thus be seen that the transfer of the petitioner waseffected mid-term though she could have very well been transferred ingeneral transfers, to be effected in March-April, 2014. Even in the agendaof 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,EGwalior addressed a complaint to the then RG, seeking her transfer outof Gwalior, the matter was placed immediately before the TransferCommittee within days and the Transfer Committee approved the transferof the petitioner. Immediately after the receipt of the transfer order, thepetitioner made a representation on 9[th] July 2014, specifically pointingFout therein that her daughter was studying in Class 12[th] and alsoundergoing FIITJEE coaching. The said representation was rejectedwithin two days. The petitioner had a legitimate expectation of herrepresentation being considered specifically in view of Clause 9(a) ofthe Transfer Policy. The Transfer Policy provides that on suchrepresentation being made, the RG shall obtain the comments of theGDistrict Judge within a week and on receiving his comments afternecessary verifications, it was required that the matter should be placedbefore the concerned Portfolio Judge within a week, who was requiredto return the file within a period of one week thereafter, with hiscomments/opinion.H

47. Undisputedly, neither the procedure as prescribed under Clause9 of the Transfer Policy of obtaining the comments from the DistrictJudge and the Portfolio Judge were complied with, nor the TransferCommittee considered the provisions of Clause 9(a) of the TransferPolicy.

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 consideredif such Judicial Officer’s daughter (not son) was to appear for the finalyear of Board Examination or University Examination, and when sucheducational Institution where such daughter is studying, does not havehostel facility for girls, the petitioner had a legitimate expectation thatthe MP High Court would consider her request in accordance therewith.Not only that, such a concession of extension would have been availableonly if the District Judge certified that there is no hostel facility availablein such educational Institution. It also further required the comments tobe obtained by the RG from the District Judge and the Portfolio Judge ofthe MP High Court. From the perusal of the Transfer Policy, it is clearthat total 3 weeks’ period is provided between the date of the receipt ofthe representation and the decision thereon. However, in the presentcase, within two days from the submission of the representation, theTransfer Committee rejected the same without considering sub-clause(a) of Clause 9 of the Transfer Policy. It is a different matter that invitingcomments 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 firstrepresentation, the petitioner addressed her second representation,requesting that she be posted at any of the four cities mentioned in thesaid representation so that her daughter could continue with her education.However, the then RG made an endorsement that the said representationis on similar ground as mentioned in the earlier representation dated 9[th]July 2014, which has already been rejected. The Transfer Committeeendorsed that in view of the order already passed in the earlierrepresentation dated 9[th] July 2014, no further reconsideration is to bemade. Both the representations of the petitioner are made with differentrequests. Whereas the first representation requests for her retention atGwalior for a period of 8 months so that her daughter could continuewith her education at Gwalior; in the second representation, she hadrequested to be posted at either of the 4 places, where her daughter A

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50. The petitioner had a legitimate expectation in view of Clause10 of the Transfer Policy to have her case considered for posting at anyBof the 4 places in the event her request for retention at the then presentposting was not considered and as such, she made the secondrepresentation. We are at pains to say that the rejection of the secondrepresentation depicts total non-application of mind by the then RG aswell 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 acceptedCby the then Judge on the Transfer Committee in a mechanical manner.

51. The transfer is sought to be justified in view of Clause 22 ofthe Transfer Policy. One of the grounds on which the transfer could bemade in mid-term, is that the performance of such Judicial Officer isfound to be below the norms prescribed. The same is admittedly notDavailable in the present case. The petitioner’s performance in theassessment made by the then D & SJ, Gwalior on 15[th] January 2014 forthe assessment year 2013, has been found to be ‘very good’. That leavesus with the second ground available under Clause 22 of the TransferPolicy, that a transfer can be made if the grounds exist for initiating anEinquiry against such a Judicial Officer. The same is also not the casehere.

52. It is sought to be urged that the transfer of the petitioner wasmade in the public interest or in the interest of the administration inasmuchas there was a requirement of an Additional Judge at Sidhi. The thenFJudge on the Transfer Committee has specifically admitted in hisdeposition before the JIC that at the relevant point of time, the pendencyat the 4 places which were mentioned by the petitioner in her secondrepresentation, was much higher than at Sidhi. He has further admittedthat though the posts were vacant at the said 4 places, there was novacancy at Sidhi. As per the Transfer Policy, a Judicial Officer is requiredGto 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 thepetitioner, the petitioner was directly transferred from Gwalior, which isCategory ‘A’ city to Sidhi, which is Category ‘C’ city. The 4 cities whichhave been mentioned by the petitioner in her second representation areH‘B’ Category cities. Coupled with the admission that the transfer of the petitioner was effected on the basis of the complaint made by the thenD & SJ, Gwalior, it is difficult to accept the contention on behalf of theMP High Court that the transfer of the petitioner was made in the publicinterest or in the interest of the administration.

53. The learned Solicitor General argued that vide the impugnedtransfer order dated 8[th] July 2014, as many as 26 Judicial Officers weretransferred and not just the petitioner. The perusal of the said transferorder would reveal that in many cases, the Judicial Officers who wereeither 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 saidtransfer order were posted at the same place inasmuch as from theposting on deputation, they have been brought in the main stream. In anycase, it is not pointed out as to whether the said Judicial Officers werealso facing the same difficulty, as was being faced by the petitioner. It isalso not brought on record as to whether those Judicial Officers hadmade any representation and their representations were rejected in anidentical manner.

54. At this juncture, we may refer to the following observationsmade by this Court in the case of Kumari Shrilekha Vidyarthi andOthers v. State of U.P. and Others[10]:

“33. No doubt, it is true, as indicated by us earlier, that there is apresumption of validity of the State action and the burden is onthe person who alleges violation of Article 14 to prove the assertion.However, where no plausible reason or principle is indicated noris it discernible and the impugned State action, therefore, appearsto be ex facie arbitrary, the initial burden to prove the arbitrarinessis discharged shifting onus on the State to justify its action as fairand reasonable. If the State is unable to produce material to justifyits action as fair and reasonable, the burden on the person allegingarbitrariness must be held to be discharged. The scope of judicialreview is limited as indicated in Dwarkadas Marfatiacase [(1989) 3 SCC 293] to oversee the State action for thepurpose of satisfying that it is not vitiated by the vice ofarbitrariness and no more. The wisdom of the policy or the lackof it or the desirability of a better alternative is not within thepermissible scope of judicial review in such cases. It is not for thecourts to recast the policy or to substitute it with another which is A

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55. It could thus be seen that this Court has held that there is apresumption of validity of the State action and the burden is on the personCwho alleges violation of Article 14 of the Constitution of India to provethe assertion. It has been further held that where no plausible reason orprinciple is indicated nor is it discernible and the impugned State actionappears to be arbitrary, the initial burden to prove the arbitrariness isdischarged, thereby shifting onus on the State to justify its action as fair

Dand reasonable. If the State is unable to produce material to justify itsaction as fair and reasonable, the burden on the person allegingarbitrariness must be held to be discharged. The limited scope of judicialreview is only to satisfy that the State action is not vitiated by the vice ofarbitrariness and no more. It is equally settled that it is not for the courtsto recast the policy or to substitute it with another which is considered toEbe more appropriate. It has been held that the attack on the ground ofarbitrariness is successfully repelled by showing that the act which wasdone, was fair and reasonable in the facts and circumstances of thecase.

56. We have no hesitation in holding that the petitioner hasFestablished that her transfer order was in contravention of the TransferPolicy and that the rejection of her two representations, in addition ofbeing contrary to the Transfer Policy, were also arbitrary. As such, thepetitioner has discharged her burden and the onus is shifted on therespondent No.1 to show that the petitioner’s transfer order was fairGand reasonable in the facts and circumstances of the case. We find thatthe respondent No.1 has utterly failed to discharge its burden. On thecontrary, the admissions made before the JIC by the then Judge on theTransfer Committee clearly show that the transfer was made solely onthe basis of the complaint made by the then D & SJ, Gwalior withoutverifying the veracity thereof. Not only this, but it is evident that the thenH

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 bythis Court in the case of Kalabharati Advertising v. Hemant VimalnathNarichania and Others[11]:

“25. The State is under obligation to act fairly without ill will ormalice — in fact or in law. “Legal malice” or “malice in law”means something done without lawful excuse. It is an act donewrongfully and wilfully without reasonable or probable cause, andnot necessarily an act done from ill feeling and spite. It is adeliberate act in disregard to the rights of others. Where malice isattributed to the State, it can never be a case of personal ill will orspite on the part of the State. It is an act which is taken with anoblique or indirect object. It means exercise of statutory powerfor “purposes foreign to those for which it is in law intended”. Itmeans conscious violation of the law to the prejudice of another, adepraved inclination on the part of the authority to disregard therights 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 ofIndia [(1979) 2 SCC 491 : 1979 SCC (L&S) 216 : AIR 1979 SC49] , State of A.P. v. Goverdhanlal Pitti [(2003) 4 SCC 739 :AIR 2003 SC 1941] , BPL Ltd. v. S.P. Gururaja [(2003) 8 SCC567] 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 constitutesmalice in law. (Vide Punjab SEB Ltd. v. Zora Singh [(2005) 6SCC 776] and Union of India v. V. Ramakrishnan [(2005) 8 SCC394 : 2005 SCC (L&S) 1150].)”

58. It is trite that the State is under the obligation to act fairlywithout ill will or malice — in fact or in law. “Legal malice” or “malice inlaw” means something done without lawful excuse. It is an act donewrongfully and wilfully without reasonable or probable cause, and notnecessarily an act done from ill feeling and spite. Where malice isattributed to the State, it can never be a case of malice or spite on thepart of the State. It would mean exercise of statutory power for “purposes A

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59. No doubt that it is strenuously argued on behalf of the petitionerthat the transfer order is mala fide and issued at the instance of JusticeB‘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 observationsmade by this Court in the case of Somesh Tiwari v. Union of Indiaand Others[12]:

“16. Indisputably an order of transfer is an administrative order.CThere cannot be any doubt whatsoever that transfer, which isordinarily an incident of service should not be interfered with,save in cases where inter alia mala fide on the part of the authorityis proved. Mala fide is of two kinds—one malice in fact and thesecond malice in law. The order in question would attract theDprinciple of malice in law as it was not based on any factor germanefor passing an order of transfer and based on an irrelevant groundi.e. on the allegations made against the appellant in the anonymouscomplaint. It is one thing to say that the employer is entitled topass an order of transfer in administrative exigencies but it isanother thing to say that the order of transfer is passed by way ofEor in lieu of punishment. When an order of transfer is passed inlieu of punishment, the same is liable to be set aside being whollyillegal.”

61. This Court has held that normally an order of transfer, whichis an incident of service should not be interfered with, unless it is foundFthat the same is mala fide. It has been held that mala fide is of twokinds — one ‘malice in fact’ and the second ‘malice in law’. When anorder is not based on any factor germane for passing an order of transferand based on an irrelevant ground, such an order would not be sustainablein law.G62. At the cost of repetition, we may say that though it is the caseof the respondent No.1 that the transfer order of the petitioner dated 8[th]July 2014, was on the ground of administrative exigencies, the materialplaced on record and particularly, the depositions of the then Judge onthe Transfer Committee and the then RG, would clearly show that it wasH12 (2009) 2 SCC 592

on the basis of the complaint made by the then D & SJ, Gwalior. It is adifferent aspect that the JIC had come to a specific finding of fact, thatthe evidence on record clearly shows that Justice ‘A’ had a role to playin the transfer of the petitioner and the rejection of her tworepresentations. We are therefore of the considered view that the transferorder dated 8[th] July 2014, would squarely be covered by ‘malice in law’inasmuch as it was passed without taking into consideration the Guidelinesprovided in the Transfer Policy but on the basis of unverified allegationsmade in the complaint made by the then D & SJ, Gwalior.

63. That leaves us with the next issue as to whether the orders ofthe Transfer Committee dated 11[th] July 2014 and 14[th] July 2014, rejectingthe petitioner’s representations dated 9[th] July 2014 and 11[th] 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 Courtfor retaining her at the same posting, and for posting at alternate placesof her choice in view of Clause 10 of the Transfer Policy. When theTransfer Policy provides for making a representation, the petitioner hada legitimate expectation that the said representation would be consideredin accordance with it. Consideration of representation is not a formality.We are not saying for a moment that prior to rejection of the petitioner’srepresentations, she should have been heard or that the reasons ought tohave been communicated for such rejection. However, the least that isexpected is that the representation is considered in the right earnest.When the Transfer Policy provides for a ground on which therepresentation is to be made, then the least that is expected is that thematter should be considered in reference to the provisions made in theTransfer Policy. In her first representation, the petitioner had specificallycontended that she should be retained at Gwalior on the ground of herdaughter’s education. There was a legitimate expectation that therespondent No.1 ought to have considered as to whether her case fits inClause 9(a) of the Transfer Policy. The petitioner was entitled forconsideration of her case on the ground that her daughter was to appearin the final year of Board Examination. The petitioner had specificallystated that her daughter was also undergoing FIITJEE coaching. Shehad further clearly stated that after her daughter completes the academicyear, she was willing to abide by the transfer order. However, in thenoting of the then RG, it was mentioned that “it is gathered that adequate AB

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Aeducational facilities including CBSE School are available at Sidhi”. It isfurther stated that the Transfer Committee, in its meeting held on 7[th]July 2014, had recommended the transfer of the petitioner onadministrative grounds after considering the request of the then D & SJ,Gwalior with regard to conduct and behaviour of the petitioner. On thesaid proposal, the then Judge on the Transfer Committee had directedBthe representation of the petitioner to be rejected. As such, it could beseen that the respondent No. 1 had not at all taken into consideration asto whether the petitioner’s case was required to be considered underClause 9(a) of the Transfer Policy or not.

65. Insofar as the second representation dated 11[th] July 2014 isCconcerned, the petitioner had specifically stated that since her daughterwas preparing for Board and Competitive Exams and also taking FIITJEEcoaching, 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 petitionerDhad sought retention at Gwalior, in the second representation, she hadrequested for posting at any of the 4 places as aforesaid. However, thethen RG made an endorsement on the file on 14[th] July 2014 to the effectthat “the said representation was made almost on identical grounds aswere made in the first representation, which was already rejected on11[th] July 2014”. The then Judge on the Transfer Committee made anEendorsement that “in view of the order dated 11[th] July 2014 alreadypassed in the earlier representation, no further reconsideration is to bemade”. It can thus be seen that though the second representation of thepetitioner dated 11[th] July 2014 is with a request to post her at any of the4 alternate places, the noting that “the representation on identical groundsFhad already been rejected”, is factually incorrect. Whereas the firstrepresentation of the petitioner was for retention at Gwalior, the secondone was for a posting at alternate place, where her daughter couldcontinue with her education. In view of Clause 10 of the Transfer Policy,the petitioner had a legitimate expectation of being considered for analternate posting, in case her prayer for retention was not to beGconsidered.

66. It could thus be seen that the respondent No.1 has failed totake into consideration the factors, which were required to be considered,while deciding the representation of the petitioner and had taken intoconsideration the factors which were not relevant. The then Judge onH

the Transfer Committee, in his deposition before the JIC, had clearlyadmitted that he had not gone into the annexures, which were attachedwith the representation of the petitioner. Non-consideration of the relevantmaterial and consideration of the extraneous material would come intothe realm of irrationality. An action which is arbitrary, irrational andunreasonable would be hit by Article 14 of the Constitution of India. We,therefore, find that the rejection of the representations of the petitionerdated 9[th] July 2014 and 11[th] July 2014, would also not stand the scrutinyof law.

67. That leaves us with the next issue as to whether the petitioner’sresignation dated 15[th] July 2014, could be considered as a voluntarilyone.

68. The resignation of the petitioner reads thus:

“It is most respectfully submitted that I am unable to continuemy services as Additional District and Sessions Judge.

As I have been transferred to Sidhi, in the mid academicsession of my daughters studying in Class III and Class XII, itaffected mostly the crucial stage of career of my class XIIdaughter. Therefore I am left with no option but to resign frommy post.

I hereby resign from the post of Additional District andSessions Judge and I am ready to submit my salary as per rulesand clear all my dues, if any.

I humbly request your kind self to please accept myresignation and relieve me with immediate affect and oblige.”

69. It is sought to be urged on behalf of the respondent No.1, thatthe 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 impulsivedecision to resign only on account of mid-term transfer. He submittedthat, to hold that a mid-term transfer would amount to coercion resultinginto resignation, would be catastrophic. He further submitted that such aplea would not be available to a Judicial Officer, who is discharging thesovereign function of dispensing justice and who is trained to beindependent, fearless, non-impulsive and to act in accordance with law.

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A71. No doubt, that a Judicial Officer while discharging his/herduties, is expected to be independent, fearless, impassionate and non-impulsive. But a Judicial Officer is also a human being. A Judicial Officeris also a parent. He/she could be a father or a mother. The questionwould be, whether a Judicial Officer, while taking a decision in his/herpersonal matter as a human being, in his/her capacity of a father orBmother, would be required to be guided by the same yardsticks.

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72. For considering as to whether the resignation in the presentmatter could be construed as voluntary or not, the resignation cannot beconsidered in isolation, but all the attendant circumstances will have tobe taken into consideration.C

73. Let us consider the facts from the perspective of the petitioner.

74. Insofar as the career of the petitioner is concerned, till 8[th] July2014, there were no issues. She was posted at Gwalior as AD & SJ on1[st] August 2011. On 15[th] January 2013, she was assessed for the periodDfrom 3[rd] May 2012 to 31[st] December 2012 by the then D & SJ, Gwalior,who assessed her grading as ‘good’, which was approved by the thenPortfolio/Administrative Judge of the MP High Court. BetweenDecember 2013 and June 2014, the petitioner was entrusted with variousadditional responsibilities. On 15[th] January 2014, she was assessed forthe period from 8[th] April 2013 to 31[st] December 2013 by the then D &ESJ, Gwalior, who assessed her grading as ‘very good’. The same wasalso endorsed by the then Portfolio/Administrative Judge of the MP HighCourt. It is to be noted that the then D & SJ, Gwalior, who had assessedthe petitioner’s performance for the assessment year 2012 was a differentone than the one who had assessed her performance for the assessmentFyear 2013.

75. On the personal front, both the petitioner’s daughters weretaking education at Gwalior. One of them was in Class 3[rd] and the otherone was studying in Class 12[th] and was also undergoing FIITJEEcoaching. Since her husband was required to be in Delhi on account ofGprofessional and personal commitments and also that he had to lookafter his aged parents, the petitioner had to draw a balance between herduties as a Judicial Officer and as a mother.

76. Till 8[th] July 2014, everything was smooth but on the said date,came the transfer order transferring her to Sidhi, which was at a faraway distance of 507 Kms. from Gwalior. Taking shelter under ClauseH

9(a) of the Transfer Policy, the petitioner made a representation to theMP High Court on the very next day, requesting the respondent No. 1that she be retained at Gwalior, at least till her daughter completes herClass 12[th] education, but the same was rejected within a short period oftwo days. She made her second representation on 11[th] July 2014,requesting the respondent No.1 to give her alternate posting at any ofthe 4 cities mentioned therein, where her daughter could continue withher education. All the 4 cities were Category ‘B’ cities. In normalcircumstances, a Judicial Officer, who is in Category ‘A’ city, is requiredto be transferred to Category ‘B’ city. However, to her utter shock, thesame was also rejected within three days.

77. One cannot imagine the trauma which the petitioner musthave faced during this short period of time. She was also not aware thatshe was being transferred on the ground of the complaint made by thethen D & SJ, Gwalior, who himself appears to have joined at Gwaliorsometime in 2014, after the then D & SJ, Gwalior, who had assessed thepetitioner for the year 2013, was transferred. She had come to knowabout the complaint at a much later point of time. In her first representationdated 9[th] July 2014, the petitioner elaborated in detail, her precarioussituation inasmuch as she was required to be both a mother and father toher children and draw a balance between her professional duties andduties towards her daughters. She stated that on receipt of her transferorder, her elder daughter had become meek with fear and anxiety, asshe faced an emotional trauma and a bleak prospect. The petitionerstated that at the cost of her career, she could not disturb the right of herdaughter to decent education and curb her prospects for an inspirationallife. The petitioner only appealed that in order to avoid the emotionaltrauma and to support her daughter to complete her Class 12[th], she shouldbe continued at Gwalior for a short period. She also assured that afterher daughter completes Class 12[th], she would move on to whicheverposting allocated to her. However, the same was rejected within twodays i.e. on 11[th] July 2014, without following the procedure prescribedunder the Transfer Policy.

78. The petitioner made another representation on the very sameday i.e. 11[th] July 2014, requesting for an alternate posting either to Sehore,Raisen, Dewas or Ujjain. She reiterated the traumatic situation throughwhich her daughter was undergoing. She reiterated that at the cost ofher career, she could not disturb the right of her daughter to decent AB

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Aeducation. However, the same was again rejected on 14[th] July 2014,within a period of four days.

79. The petitioner was a Judicial Officer and a mother too. TheJudicial 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,Bwas the possibility of her daughter’s educational prospects and careercoming into jeopardy, if she shifted to the place of posting at Sidhi. Apossibility of her mind engrossed with a feeling, that she was subjectedto 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 monthstill her daughter completes her Class 12[th]. In the alternative, posting atCany of the 4 cities, which were admittedly in Category ‘B’, where herdaughter could have better education facilities, and where the vacanciesexisted.

80. Denial of her legitimate expectation could have led todesperation, exasperation and frustration. The frustration of the petitionerDis evident from the language used by her in her resignation letter. Shestated that as she had been transferred to Sidhi in the mid-academicsession of her daughter’s Class 12[th], it had mostly affected the crucialstage of career of her daughter. She stated that therefore, she was leftwith no other option but to resign from her post. It appears that in aEgruesome battle between a mother and a Judicial Officer, the JudicialOfficer lost the battle to the mother.

81. Reaction of a person to a particular situation would dependfrom person to person. No two individuals can be expected to respondidentically to a same situation. It is quite possible that some other personFin the petitioner’s place, would have chosen to pursue one’s own careerwithout bothering about the daughter’s education and prospects of goodcareer.

82. On the very next day of submission of resignation, the MPHigh Court forwarded her resignation with the recommendation to acceptGthe same and thereafter, immediately on the very next day, the respondentNo. 2 accepted the same.

83. It will be apposite to refer to the following observations of thisCourt in the case of Dr. Prabha Atri v. State of U.P. and Others[13]:

13 (2003) 1 SCC 701H

“7. The only question that mainly requires to be considered is asto whether the letter dated 9-1-1999 could be construed to meanor amounted to a letter of resignation or merely an expression ofher intention to resign, if her claims in respect of the alleged lapseare not viewed favourably. Rule 9 of the Hospital Service Rulesprovided for resignation or abandonment of service by anemployee. It is stated therein that a permanent employee isrequired to give three months’ notice of resignation in writing tothe appointing authority or three months’ salary in lieu of noticeand that he/she may be required to serve the period for suchnotice. In case of non-compliance with the above, the employeeconcerned is not only liable to pay an amount equal to three months’salary but such amount shall be realizable from the dues, if any, ofthe employee lying with the hospital. In Words andPhrases (Permanent Edn.) Vol. 37, at p. 476, it is found statedthat:

“To constitute a ‘resignation’, it must be unconditional and withan intent to operate as such. There must be an intention torelinquish a portion of the term of office accompanied by anact of relinquishment. It is to give back, to give up in a formalmanner, an office.”

At p. 474 of the very same book, it is found stated: “Statementsby club’s President and corresponding Secretary that they wouldresign, if constant bickering among members did not cease,constituted merely threatened offers, not tenders, of theirresignations.” It is also stated therein that “A ‘resignation’ of apublic office to be effective must be made with an intention ofrelinquishing the office accompanied by an act of relinquishment.”In the ordinary dictionary sense, the word “resignation” wasconsidered to mean the spontaneous relinquishment of one’s ownright, as conveyed by the maxim: Resignatio est juris propriispontanea 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, havinglegal connotations which describe certain legal results. It ischaracteristically, the voluntary surrender of a position by theone resigning, made freely and not under duress and the wordis defined generally as meaning the act of resigning or givingup, as a claim, possession or position.”

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8. In P.K. Ramachandra Iyer v. Union of India [(1984) 2 SCC141 : 1984 SCC (L&S) 214] this Court had an occasion to considerthe nature and character of a letter written by one of the petitionersin that case who after stating in the letter that he has been allalong patiently waiting for the redressal of his grievance, yet justicehas not been done to him and “as such, after showing so much patience in the matter, I amsorry to decide that I should resign from the membership ofthe Faculty in protest against such a treatment and against thediscrimination and victimization shown to me by the Head ofthe Division in the allotment of students of 1968 and 1969batches and departmental candidates”. (SCC p. 172, para 34)

In that context, this Court observed that the callous and heartlessattitude of the Academic Council in seizing an opportunity to getrid of him by treating the said letter to be a letter of resignationwhen really he was all along making representations seeking justiceto him and out of exasperation the said person wrote that letterstating that the only honourable course left open to him was toresign rather than suffer (SCC p. 173, para 34).

In Moti Ram v. Param Dev [(1993) 2 SCC 725] this Courtobserved as hereunder: (SCC pp. 735-36, para 16)

“16. As pointed out by this Court, ‘resignation’ means thespontaneous relinquishment of one’s own right and in relationto an office, it connotes the act of giving up or relinquishing theoffice. It has been held that in the general juristic sense, inorder to constitute a complete and operative resignation theremust be the intention to give up or relinquish the office and theconcomitant act of its relinquishment. It has also been observedthat the act of relinquishment may take different forms orassume a unilateral or bilateral character, depending on thenature of the office and the conditions governing it. (See: Unionof India v. Gopal Chandra Misra [(1978) 2 SCC 301 : 1978SCC (L&S) 303] .) If the act of relinquishment is of unilateralcharacter, it comes into effect when such act indicating theintention to relinquish the office is communicated to thecompetent authority. The authority to whom the act ofrelinquishment is communicated is not required to take anyaction and the relinquishment takes effect from the date of such communication where the resignation is intended to operatein praesenti. A resignation may also be prospective to beoperative from a future date and in that event it would takeeffect from the date indicated therein and not from the date ofcommunication. In cases where the act of relinquishment is ofa bilateral character, the communication of the intention torelinquish, by itself, would not be sufficient to result inrelinquishment of the office and some action is required to betaken 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 effectiveor operative till such action is taken. As to whether the act ofrelinquishment of an office is unilateral or bilateral in characterwould depend upon the nature of the office and the conditionsgoverning it.”

9. In traversing the contention on behalf of the appellant that theletter in question dated 9-1-1999 could not be construed as a letterof resignation, on behalf of the respondent hospital authorities it isstrenuously contended that such a letter coming from the appellantin the teeth of suspension order and proposed domestic enquiryexpressing a desire to tender resignation and that too withimmediate effect, cannot but be a resignation outright and simpliciterto avoid facing disciplinary proceedings and that, therefore, thecompetent authority acted well within its rights in treating it to bea resignation and accepting the same forthwith and as aconsequence thereof, directing further not to proceed with thedomestic enquiry already ordered. Finally, it has been submittedthat if this Court is pleased to interfere in the matter the right ofthe hospital authorities to pursue the disciplinary action alreadyinitiated from the stage at which it stood on the date of acceptanceof the resignation should not be jeopardized and liberty may begranted in this regard.

10. We have carefully considered the submissions of the learnedcounsel appearing on either side, in the light of the materials andprinciples, noticed supra. This is not a case where it is required toconsider as to whether the relinquishment envisaged under therules and conditions of service is unilateral or bilateral in characterbut whether the letter dated 9-1-1999 could be treated or held to AB

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Abe a letter of resignation or relinquishment of the office, so as tosever her services once and for all. The letter cannot be construed,in our view, to convey any spontaneous intention to give up orrelinquish her office accompanied by any act of relinquishment.To constitute a “resignation”, it must be unconditional and with anintention to operate as such. At best, as observed by this Court inBthe decision in P.K. Ramachandra Iyer [(1984) 2 SCC 141 : 1984SCC (L&S) 214] it may amount to a threatened offer more onaccount of exasperation, to resign on account of a feeling offrustration born out of an idea that she was being harassedunnecessarily but not, at any rate, amounting to a resignation, actualCand simple. The appellant had put in about two decades of servicein the hospital, that she was placed under suspension and exposedto disciplinary proceedings and proposed domestic enquiry andshe had certain benefits flowing to her benefit, if she resigns butyet the letter dated 9-1-1999 does not seek for any of those thingsto be settled or the disciplinary proceedings being scrapped as aDsequel to her so-called resignation. The words “with immediateeffect” in the said letter could not be given undue importancedehors the context, tenor of language used and the purport aswell as the remaining portion of the letter indicating thecircumstances in which it was written. That the management ofEthe hospital took up such action forthwith, as a result of acceptanceof the resignation is not of much significance in ascertaining thetrue or real intention of the letter written by the appellant on 9-1-1999. Consequently, it appears to be reasonable to view that as inthe case reported in P.K. Ramachandra Iyer [(1984) 2 SCC 141: 1984 SCC (L&S) 214] the respondents have seized anFopportunity to get rid of the appellant the moment they got theletter dated 9-1-1999, without due or proper consideration of thematter in a right perspective or understanding of the contentsthereof. The High Court also seems to have completely lost sightof these vital aspects in rejecting the writ petition.”

G84. The facts in the above case are somewhat similar to the presentcase. The present case is also not a case where it is required to consideras to whether the relinquishment envisaged under the Rules andConditions of Service, is unilateral or bilateral in character. In the presentcase also, the words “with immediate effect” in the resignation letterHcould not be given undue importance, dehors the context, tenor of language used therein, indicating the circumstances in which it waswritten. The resignation letter in the present case, as has already beendiscussed hereinabove, appears to be on account of exasperationandfrustrationactuated by a thought, that injustice was being meted out toher by the very Institution of Judiciary.

85. We further find that the breakneck speed at which the eventshave taken place in the present matter, gives rise to a suspicion, thatthere is something more than which meets the eye. On 3[rd] July 2014, thethen D & SJ, Gwalior, who appears to have joined the service a shortwhile ago, addressed a complaint to the then RG. The said D & SJ,Gwalior, in his deposition before the JIC, has clearly admitted that theinstances mentioned in the complaint, were not within his personalknowledge, but were on the basis of the complaints made to him byother Judicial Officers. He further admitted that the complaints werewith regard to the period, which was before his joining as D & SJ, Gwalior.He further admitted that there were no written complaints by the JudicialOfficers and that he had proceeded to write the complaint on the basisof their oral complaints. Within days of the said complaint being made,on 7[th] July 2014, the Transfer Committee decided to transfer the petitionerfrom Gwalior to Sidhi. The transfer order was issued on 8[th] July 2014.The petitioner made a representation on the very next day i.e. 9[th] July2014, and the same was rejected within two days i.e. 11[th] July 2014. On11[th] July 2014, the petitioner made another representation. However,that also did not find favour with respondent No. 1 and was rejected on14[th] July 2014, on the ground that the earlier representation on identicalgrounds was already rejected. It is to be noted that 12[th] July 2014 was asecond Saturday, 13[th] July 2014 was a Sunday and on the very nextworking day i.e. 14[th] July 2014, her second representation was rejected.On 15[th] July 2014, the petitioner tendered her resignation. On the nextday i.e. 16[th] July 2014, the MP High Court with the recommendation foracceptance of the same, forwarded it to respondent No.2. On the verynext day i.e. 17[th] 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 goodtrack record tenders his/her resignation, an attempt is made by the SeniorJudges of the High Court to counsel and persuade him/her to withdrawthe resignation. Valuable time and money is spent on training of a JudicialOfficer. Losing a good Judicial Officer without counselling him/her andwithout giving him/her an opportunity to introspect and re-think, will not A

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87. We are therefore of the considered view that in the peculiarfacts and circumstances of the case, the petitioner’s resignation dated15[th] July 2014, could not be construed to be voluntary. In any case,Bimmediately in a fortnight, on 1[st] August 2014, the petitioner had made arepresentation to Hon’ble the President of India as well as the ChiefJustice of India, with a copy to the Chief Justice of the MP High Courtfor reconsideration of the circumstances under which, she was left withno option but to resign. Though, it may not be possible to observe thatCthe petitioner was forced to resign, however, the circumstancesenumerated hereinabove, would clearly reveal that they were such, thatout of frustration, the petitioner was left with no other alternative.

88. It is contended on behalf of the MP High Court that thepetitioner, who was on probation, had voluntarily tendered her resignation,which was accepted and as such, led to an irrevocable severance ofDrelationship of the employer and employee. In this regard, it is to benoted that the petitioner was initially appointed on probation for a periodof two years on 1[st] August 2011. Her probation was completed on 1[st]August 2013. Admittedly, there has been no order extending the periodof probation of the petitioner from 1[st] August 2013 onwards. On theEcontrary, she was assigned with various additional duties in the year2013. 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 theFpetitioner resigned on 15[th] July 2014, she made a representation toHon’ble the President of India as well as the Chief Justice of India, witha copy to the Chief Justice of the MP High Court, requesting to reconsiderthe circumstances in which she was left with no option but to resign.The petitioner thereafter had also pursued a writ petition before thisCourt. Thereafter, she had participated in the proceedings before theGJIC and after the JIC expressed its opinion, that it would be in the interestof justice that she should be re-instated in service, she made arepresentation to the MP High Court, for re-instatement in service. Afterthe said representation was rejected, she has immediately approachedthis Court in the present matter. We therefore find that the petitionerHcannot be denied the reliefs on the so-called grounds of delay and laches.

90. That leaves us with the last submission of the learned SolicitorGeneral, that if we hold the resignation in the present case to be actuatedby coercion, it will have far-reaching implications and will open floodgatesto the similarly situated Judicial Officers. Another submission made isthat, if a decision of the Full Court of the MP High Court is interferedwith, it will stigmatize the entire Institution and have catastrophic effects.

91. We find the said submissions to be totally uncalled for. At theoutset, we have clarified that we are only examining the correctnessand otherwise of the order of transfer, the rejection of the representationsand the question as to whether the resignation in the facts of the presentcase, could be construed to be voluntary or not. We have not at all goneinto the question, regarding the correctness or otherwise of the decisionsof the Full Court of the MP High Court with regard to the rejection ofthe petitioner’s representation. As already discussed hereinabove, theremight be reasons and factors which might have weighed with the FullCourt of the MP High Court for taking such a decision. At the cost ofrepetition, we reiterate that we have full respect for the authority of theFull Court to arrive at such a decision. As such, there is no question ofstigmatizing 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 occasionwould have been accepted, the exercise of examining the factual scenario,could have been avoided. In any case, we have restricted our inquiryonly to the facts, which we found necessary to decide the present case.We have refrained ourselves from going into the details of the findingsof the JIC, so as to protect the dignity of all concerned. We have refrainedourselves from mentioning a single name in our judgment.

92. In that view of the matter, the contention of the learned SolicitorGeneral with regard to stigmatizing the MP High Court is withoutsubstance.

93. Insofar as the contention, that if this Court holds the resignationin the present case to be coercive, it will have far-reaching effects onthe administration of judiciary is concerned, the same is also withoutsubstance. It will be apposite to refer to the following observations madeby this Court in the case of Union of India and Others v. DhanwantiDevi and Others[14]:

“9. …….. It is not everything said by a Judge while giving judgmentthat constitutes a precedent. The only thing in a Judge’s decisionbinding a party is the principle upon which the case is decided and A

B

C

D

E

F

G

Afor this reason it is important to analyse a decision and isolatefrom it the ratio decidendi. According to the well-settled theoryof precedents, every decision contains three basic postulates—(i) findings of material facts, direct and inferential. An inferentialfinding of facts is the inference which the Judge draws from thedirect, or perceptible facts; (ii) statements of the principles of lawBapplicable to the legal problems disclosed by the facts; and (iii)judgment based on the combined effect of the above. A decisionis only an authority for what it actually decides. What is of theessence in a decision is its ratio and not every observation foundtherein nor what logically follows from the various observationsCmade in the judgment. Every judgment must be read as applicableto the particular facts proved, or assumed to be proved, since thegenerality of the expressions which may be found there is notintended to be exposition of the whole law, but governed andqualified by the particular facts of the case in which suchexpressions are to be found……”D

It could thus be seen that this Court has held that a decision is anauthority only for what it actually decides. Every judgment must be readas applicable to the particular facts, proved or assumed to be proved.The generality of the expressions found there, is not intended to beexposition of the whole law, but governed and qualified by the particularEfacts of the case in which such expressions are to be found.94. This Court in the case of The Regional Manager and Anotherv. Pawan Kumar Dubey[15] 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 correctlyFunderstood. It is the rule deducible from the application of law tothe facts and circumstances of a case which constitutes its ratiodecidendi and not some conclusion based upon facts which mayappear to be similar. One additional or different fact can make aworld of difference between conclusions in two cases even whenthe same principles are applied in each case to similar facts.”GThe ratio decidendi is a rule deducible from the application oflaw to the facts and circumstances of a case and not some conclusionbased upon facts which may appear to be similar. It has been held thatone additional or different fact can make a world of difference between H15 (1976) 3 SCC 334

conclusions in two cases even when the same principles are applied ineach case to similar facts.

A

95. As has already been discussed hereinabove, we may reiteratethat we have decided the present matter only on the basis of the peculiarfacts and circumstances, as are found in the present matter. We dohope, that in future, similar facts would never arise for consideration, atleast in a lis between a High Court and a Judicial Officer. However, wemay remind ourselves of the dictum that law is supreme and no one isabove law. It would be apt to reproduce the words of Thomas Fuller,which have been quoted by Lord Denning, “Be ye never so high, thelaw is above you”.

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C

96. Before we part with the judgment, we find it our duty to placeon record our appreciation for the valuable assistance rendered by Smt.Indira Jaising, learned Senior Counsel and Shri Tushar Mehta, learnedSolicitor General of India.

97. In the result, the writ petition is partly allowed in the following D

terms:

(i) We hold and declare that the petitioner’s resignation fromthe post of Additional District & Sessions Judge, Gwaliordated 15[th] July 2014, cannot be construed to be voluntaryand as such, the order dated 17[th] July 2014, passed by therespondent No. 2, thereby accepting the resignation of theEpetitioner, is quashed and set aside; and

(ii) The respondents are directed to re-instate the petitionerforthwith 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 allFconsequential benefits with effect from 15[th] July 2014.

98. No order as to cost. Pending application(s), if any, shall standdisposed of in the above terms.

Ankit Gyan

(Assisted by : Rahul Rathi, LCRA)

Writ petition partly allowed.

G

H