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Persuade Judicial Officers Having Good Track Record To Withdraw Resignation : Supreme Court To HCs

LIVELAW NEWS NETWORK
10 Feb 2022 12:41 PM GMT
Persuade Judicial Officers Having Good Track Record To Withdraw Resignation : Supreme Court To HCs
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The Supreme Court endorsed the practice followed by some High Courts of persuading a Judicial Officer having good track record to withdraw the resignation tendered by him/her."Losing a good Judicial Officer without counselling him/her and without giving him/her an opportunity to introspect and re­think, will not be in the interest of either the Judicial Officer or the Judiciary", the...

The Supreme Court endorsed the practice followed by some High Courts of persuading a Judicial Officer having good track record to withdraw the resignation tendered by him/her.

"Losing a good Judicial Officer without counselling him/her and without giving him/her an opportunity to introspect and re­think, will not be in the interest of either the Judicial Officer or the Judiciary", the bench comprising Justices L. Nageswara Rao and BR Gavai said.

The court observed thus while directing the Madhya Pradesh High Court to reinstate a resigned woman Additional District Judge, who had raised sexual harassment allegations against a then sitting judge of the Madhya Pradesh High Court. 

In this case, the writ petitioner alleged that hostile transfer orders were passed as she did not act as per the demands of the supervising High Court judge. She complained that was faced with transfer from a Category 'A' city to Category 'C' city and also a Naxal affected area, in violation of the extant transfer policy of the High Court. Since the transfer would have prevented her from being with her daughter who was then appearing for the board exams, she was faced with no option but to resign. Later, she approached the Supreme Court asserting her right to be reinstated.

While examining this case, the court noted that :

(1) The transfer order was issued on 8th July 2014. (2) The petitioner made a representation on the very next day i.e. 9th July 2014, and the same was rejected within two days i.e. 11th July 2014. (3) On 11th July 2014, the petitioner made another representation. However, that also did not find favour with respondent No. 1(High Court) and was rejected on 14th July 2014, on the ground that the earlier representation on identical grounds was already rejected. (12th July 2014 was a second Saturday, 13th July 2014 was a Sunday ) (4) On the very next working day i.e. 14th July 2014, her second representation was rejected. (5) On 15th July 2014, the petitioner tendered her resignation. (6) On the next day i.e. 16th July 2014, the MP High Court with the recommendation for acceptance of the same, forwarded it to respondent No.2. (7) On the very next day i.e. 17th July 2014, respondent No. 2 accepted the same. 

Taking note of this timeline and the fact that her assessment for the year 2013, during which, she would be deemed to be confirmed, was 'very good'. the bench observed thus:

86. It will not be out of place to mention that in some High Courts, a practice is followed, that whenever a Judicial Officer having good track record tenders his/her resignation, an attempt is made by the Senior Judges of the High Court to counsel and persuade him/her to withdraw the resignation. Valuable time and money is spent on training of a Judicial Officer. Losing a good Judicial Officer without counselling him/her and without giving him/her an opportunity to introspect and re­think, will not be in the interest of either the Judicial Officer or the Judiciary. We find that it will be in the interest of judiciary that such a practice is followed by all the High Courts.The court therefore held that, in peculiar facts and circumstances of the case, the petitioner's resignation dated 15th July 2014, could not be construed to be voluntary.

"Though, it may not be possible to observe that the petitioner was forced to resign, however, the circumstances enumerated hereinabove, would clearly reveal that they were such, that out of frustration, the petitioner was left with no other alternative", the court observed.

Case name: Ms. X vs Registrar General, High Court of Madhya Pradesh

Citation: 2022 LiveLaw (SC) 150

Case no.|date: WP(C)1137 OF 2018 | 10 Feb 2022

Coram : Justices L. Nageswara Rao and BR Gavai

Counsel: Sr. Adv Indira Jaising for petitioner, SG Tushar Mehta for respondents

Caselaw

Factual Summary - The writ petitioner alleged that hostile transfer orders were passed as she did not act as per the demands of the supervising High Court judge. She complained that was faced with transfer from a Category 'A' city to Category 'C' city and also a Naxal affected area, in violation of the extant transfer policy of the High Court. Since the transfer would have prevented her from being with her daughter who was then appearing for the board exams, she was faced with no option but to resign. Later, she approached the Supreme Court asserting her right to be reinstated. The Supreme Court Held: Though, it may not be possible to observe that the petitioner was forced to resign, however, the circumstances would clearly reveal that they were such, that out of frustration, the petitioner was left with no other alternative.The petitioner's resignation from the post of Additional District & Sessions Judge, Gwalior dated 15th July 2014, cannot be construed to be voluntary and as such, the order dated 17th July 2014, passed by the respondent No. 2, thereby accepting the resignation of the petitioner, is quashed and set aside; and the respondents are directed to re­instate the petitioner forthwith as an Additional District & Sessions Judge. Though the petitioner would not be entitled to back wages, she would be entitled for continuity in service with all consequential benefits with effect from 15th July 2014.

Practice and Procedure - In some High Courts, a practice is followed, that whenever a Judicial Officer having good track record tenders his/her resignation, an attempt is made by the Senior Judges of the High Court to counsel and persuade him/her to withdraw the resignation. Valuable time and money is spent on training of a Judicial Officer. Losing a good Judicial Officer without counselling him/her and without giving him/her an opportunity to introspect and re­think, will not be in the interest of either the Judicial Officer or the Judiciary - It will be in the interest of judiciary that such a practice is followed by all the High Courts. (Para 86)

Constitution of India, 1950- Article 32 and 226 - Judicial Review- The scope of judicial review of a decision of the Full Court of a High Court is extremely narrow and we cannot sit in an appeal over the decision of the Full Court of a High Court. (Para 29)

Constitution of India, 1950- Article 12- While exercising its functions on the administrative side, the High Court would also be a State within the meaning of Article 12 of the Constitution of India. (Para 39)

Doctrine of legitimate expectation - Mere reasonable or legitimate expectation of a citizen may not by itself be a distinct enforceable right - The failure to consider and give due weight to it may render the decision arbitrary - The requirement of due consideration of a legitimate expectation forms part of the principle of non­-arbitrariness, which is a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh, what would otherwise have been the legitimate expectation of the claimant - A bona fide decision of the public authority reached in this manner would satisfy the requirement of non­-arbitrariness and withstand judicial scrutiny. (Para 40)

Constitution of India, 1950- Article 32 and 226 - Judicial Review- The principle of fairness has an important place in the law of judicial review and that unfairness in the purported exercise of power can be such that it is abuse or excess of power. The court should interfere where discretionary power is not exercised reasonably and in good faith. (Para 40)

Transfer Guidelines/Policy of the High Court of Madhya Pradesh - Transfer Policy may not be enforceable in law, but when the Transfer Policy has been framed by the MP High Court for administration of the District Judiciary, every Judicial Officer will have a legitimate expectation that such a Policy should be given due weightage, when the cases of Judicial Officers for transfer are being considered. (Para 41)

Constitution of India, 1950 - Article 14 - There is a presumption of validity of the State action and the burden is on the person who alleges violation of Article 14 of the Constitution of India to prove the assertion - Where no plausible reason or principle is indicated nor is it discernible and the impugned State action appears to be arbitrary, the initial burden to prove the arbitrariness is discharged, thereby shifting onus on the State to justify its action as fair and reasonable. If the State is unable to produce material to justify its action as fair and reasonable, the burden on the person alleging arbitrariness must be held to be discharged. (Para 55)

Constitution of India, 1950 - Article 32, 226 and 14 - Judicial Review - Arbitrariness - The limited scope of judicial review is only to satisfy that the State action is not vitiated by the vice of arbitrariness and no more - It is not for the courts to recast the policy or to substitute it with another which is considered to be more appropriate - The attack on the ground of arbitrariness is successfully repelled by showing that the act which was done, was fair and reasonable in the facts and circumstances of the case. (Para 55)

Words and Phrases- "Legal malice" or "malice in law" - State is under the obligation to act fairly without ill will or malice — in fact or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. Where malice is attributed to the State, it can never be a case of malice or spite on the part of the State. It would mean exercise of statutory power for "purposes foreign to those for which it is in law intended". It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others. (Para 58)

Service Law - Transfer - Normally an order of transfer, which is an incident of service should not be interfered with, unless it is found that the same is mala fide - Mala fide is of two kinds — one 'malice in fact' and the second 'malice in law'. When an order is not based on any factor germane for passing an order of transfer and based on an irrelevant ground, such an order would not be sustainable in law. (61)

Constitution of India, 1950 - Article 14 - Non- consideration of the relevant material and consideration of the extraneous material would come into the realm of irrationality. An action which is arbitrary, irrational and unreasonable would be hit by Article 14 of the Constitution of India. (Para 66)

Law of Precedents - A decision is an authority only for what it actually decides. Every judgment must be read as applicable to the particular facts, proved or assumed to be proved. The generality of the expressions found there, is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. (Para 93)

Law of Precedents - The ratio decidendi is a rule deducible from the application of law to the facts and circumstances of a case and not some conclusion based upon facts which may appear to be similar. - One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts. (Para 94)

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