'Judicial Officer Battling With Mother In Her': Supreme Court While Reinstating District Judge Who Resigned Out Of Desperation

Sohini Chowdhury

10 Feb 2022 4:05 PM GMT

  • Judicial Officer Battling With Mother In Her: Supreme Court While Reinstating District Judge Who Resigned Out Of Desperation

    The Supreme Court, on Thursday, reinstated a woman Additional District and Sessions Judge ("AD&SJ"), who was constrained to resign, after she raised allegations of sexual harassment against a then sitting Judge of the Madhya Pradesh High Court. The Court's indulgence was, inter alia, sought in directing the reinstatement of the petitioner as AD&SJ from the date...

    The Supreme Court, on Thursday, reinstated a woman Additional District and Sessions Judge ("AD&SJ"), who was constrained to resign, after she raised allegations of sexual harassment against a then sitting Judge of the Madhya Pradesh High Court.

    The Court's indulgence was, inter alia, sought in directing the reinstatement of the petitioner as AD&SJ from the date of resignation, i.e., 15.07.2014 with continuity in service, back wages and consequential reliefs. Acknowledging the petitioner's resignation was not voluntary, the Bench comprising Justices L. Nageswara Rao and B.R. Gavai quashed the order passed by the Government of Madhya Pradesh, Law and Legislative Affairs Department, accepting the resignation of the petitioner and directed her reinstatement with continuity in service and all consequential benefits w.e.f. 15.07.2014, but without any back wages.

    While making submissions, Senior Advocate, Ms. Indira Jaising appearing on behalf of the petitioner had beseeched the Apex Court to consider the dilemma of the petitioner, who was compelled to choose between her duties as a judicial officer and her duties as a mother. She contended that pushing a woman to make such a choice is in derogation of the principles laid down in Article 11 of Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). It was her case that the transfer order was a vindictive response to the petitioner protesting against the sexual harassment by a then sitting High Court judge, who was her supervisor.

    The petitioner's daughter was studying in Class 12 and was preparing for her Board and other Competitive examinations, at the time when the transfer order was issued to her. The petitioner's husband had to stay in Delhi in order to look after his aged parents. Acknowledging her circumstances, the Court noted that she was playing the role of both a father and a mother for her daughters and had to draw a balance between her profession and dependent children. When the transfer order was passed, she had submitted a representation asking the Transfer Committee to consider her difficulty of moving to another city, especially Category 'C' city where she would not be able to provide her daughter with quality education. The Court observed that her ardent request was rejected in a cryptic and arbitrary manner, without due consideration.

    The Court observed :

    "The petitioner was a Judicial Officer and a mother too. The Judicial Officer in her must have been battling with the mother in her. On one hand, was her career as a Judicial Officer; on the other hand, was the possibility of her daughter's educational prospects and career coming into jeopardy, if she shifted to the place of posting at Sidhi. A possibility of her mind engrossed with a feeling, that she was subjected to injustice by the very Institution of Judiciary, cannot be ruled away."

    "80. …It appears that in a gruesome battle between a mother and a Judicial Officer, the Judicial Officer lost the battle to the mother."

    81. Reaction of a person to a particular situation would depend from person to person. No two individuals can be expected to respond identically to a same situation. It is quite possible that some other person in the petitioner's place, would have chosen to pursue one's own career without bothering about the daughter's education and prospects of good career."

    Acknowledging the unfavourable circumstances of the petitioner, the Court noted that her resignation was a result of the frustration that emanated from her thought that the very institution she had vouched to serve treated her in an unjust manner.

    "…The resignation letter in the present case, as has already been discussed hereinabove, appears to be on account of exasperation and frustration actuated by a thought, that injustice was being meted out to her by the very Institution of Judiciary."

    The petitioner was transferred from Gwalior, a Category 'A' city to Sidhi, a Category 'C' city. Immediately, she had sent a representation seeking eight months' extension in the transfer, till the time her daughter, then studying in Class 12 completes her academic year, which was rejected. A second representation was made seeking transfer to a Category 'B' city so that her daughter could continue with her education, which was also rejected. Therefore, the petitioner was constrained to resign.

    Analysis by the Supreme Court

    Though non-enforceable, Transfer Policy was required to be followed as it created legitimate expectation

    The Court noted the Transfer Policy, which was laid down by the Madhya Pradesh High Court on 12.01.2012 was a set of guidelines for internal administration for the subordinate judiciary. And the same though not enforceable in law creates a legitimate expectation that such policy would be given due weightage when decisions of transfer are taken.

    Transfer was rushed

    It was observed that the petitioner's transfer was rushed as the decision to transfer her mid-term was taken abruptly on the complaint of the District and Session Judge, even though in the agenda for mid-term transfers the petitioner's name was not included.

    Non-application of mind in rejecting representation

    The petitioner had a legitimate expectation that her representation would be considered in terms of Clause 9(a) of the policy, which required a request for extensions to be considered if the judicial officer's daughter was to appear for the final year Board Examination and no hostel facility was available in her school. The procedural requirement under Clause 9 to obtain comments of the District Judge and Portfolio Judge were also not met. The Court noted that the second representation of the petitioner was rejected without application of mind.

    Not a case of deficiency in performing duty

    The only reason for her transfer mid-term, as per Clause 22 of the Transfer Policy, could have been deficiency in her service, which is not true for the petitioner as according to the assessment for the year 2013, her work was adjudged as 'very good'.

    Transfer not in public interest or in the interest of administration

    Pendency of cases at Sidhi, a Category 'C' city could not have been the reason for transfer. From material on record it is evident that at the relevant point in time there was more pendency in Category 'B' cities, where the petitioner, as alternative, sought transfer in her second representation.

    The other judicial officers transferred mid-term were not similarly situated

    The 26 other officers who were transferred mid-term were those who were either on deputation or ex-cadre posts and have been brought into the mainstream.

    Transfer order and rejection of representation were arbitrary

    The Court held that the petitioner had established that the transfer order was in contravention of the extant policy and the rejection of the representations was arbitrary. The burden when shifted to the respondents to show the order was reasonable, it was not discharged by them. The Court noted that in exercise of administrative functions the High Court was State under Article 12 and it is trite that State is obligated to act fairly without malice either in fact or in law. As the Court observed the transfer order was passed based on irrelevant factors which were not germane for passing the order, it was held to be 'malice in law'. The arbitrary, irrational and unreasonable rejection of representation was also found to be unsustainable in law.

    Denial of her legitimate expectation led to exasperation

    The petitioner was compelled to choose between her duties as a judicial officer and that of a mother and she chose the latter. The Court observed that her frustration was evident from the language of the resignation letter. It found that her resignation was not voluntary.

    The rushed acceptance of resignation is suspicious

    On 03.07.2014, the District and Sessions Judge, Gwalior filed a complaint against the petitioner with the Registrar General of the MP High Court. On 07.07.2014, the Transfer Committee decided to transfer the petitioner and the order was immediately issued on 08.07.2014. She submitted her first representation on 09.07.2014, which was rejected on 11.07.2014. On the same day, i.e. 11.07.2014, she made her second representation, which was rejected on the next working day, 14.07.2014. On 15.07.2014, the petitioner tendered her resignation. On the very next day, 16.07.2014, the MP High Court forwarded it to the Government and on 17.07.2014, the Government accepted the resignation.

    [Case Title: X v. Registrar General And Anr. W.P. (C) No. 1137 of 2018]

    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

    Head Notes
    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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