X vs Registrar General on 10 February, 2022


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Supreme Court of India

X vs Registrar General on 10 February, 2022

Author: B.R. Gavai

Bench: L. Nageswara Rao, B.R. Gavai

                                                 REPORTABLE

             IN THE SUPREME COURT OF INDIA
               CIVIL ORIGINAL JURISDICTION


            WRIT PETITION (CIVIL) NO. 1137 OF 2018

MS. X                                        ...PETITIONER(S)

                            VERSUS

REGISTRAR GENERAL, HIGH COURT OF
MADHYA PRADESH AND ANOTHER     ...RESPONDENT(S)



                        JUDGMENT

B.R. GAVAI, J.

1. The petitioner has approached this Court in the instant

writ petition filed under Article 32 of the Constitution of India

seeking the following reliefs:

a. “Issue an appropriate writ, order or direction in the

nature of mandamus to quash and set aside the order

dated 11.01.2018 of Chief Justice of the High Court

communicated on 25.1.18 of Madhya Pradesh passed

after the Full Court Meeting, rejecting the application

1
for reinstatement as violative of Articles 14, 15, 16, 21

r/w. 233, 235 & 311 of the Constitution of India and

Natural Justice;

b. Issue an appropriate writ, order or direction in the

nature of mandamus declaring that the Petitioner’s

resignation from the post of Additional District Judge

VIII, Gwalior dated 15.07.2014 amounts to constructive

dismissal due to the employer’s conduct which applies

in the Statutory context where the term

“Dismissal/dismissed” is used;

c. Issue an appropriate writ, order or direction in the

nature of mandamus directing the reinstatement of the

Petitioner as an Additional District and Sessions Judge

from the date of her resignation i.e. 15.07.2014, with

continuity in service at S.No 134 of the list of District

Judges(Selection Grade) of the Gradation List according

to Clause 4 of the Madhya Pradesh Higher Judicial

Services (Recruitment and Conditions of Service) Rules,

2017, back wages according to Clause 3(b) of the

2
Madhya Pradesh Higher Judicial Services (Recruitment

and Conditions of Service) Rules, 2017 and all service

benefits and all consequential reliefs;”

2. The bare minimum facts, necessary for adjudication of

the present petition are as under:

The petitioner was selected in the competitive

examination of Madhya Pradesh Higher Judicial Services at

District Entry Level (direct recruitment from Bar) conducted

in the year 2011, and stood 2 nd in the said examination. On

her selection, the petitioner was posted as a 2 nd to 1st

Additional District and Sessions Judge (hereinafter referred

to as the “AD & SJ”) at Gwalior on 1 st August 2011. On 1 st

October 2012, the petitioner was posted as VIII th AD & SJ,

Gwalior. In the 1st Annual Confidential Report (hereinafter

referred to as the “ACR”) of the petitioner, assessed in

January, 2013 by the then District and Sessions Judge

(hereinafter referred to as the “D & SJ”) and approved by the

then Portfolio/Administrative Judge (hereinafter referred to

as “Justice ‘A’”) of the High Court of Madhya Pradesh at

3
Gwalior Bench (hereinafter referred to as the “MP High

Court”), she was given ‘C/good’ grading. The petitioner was

assigned various additional responsibilities in the year 2013.

In her 2nd ACR, assessed in the month of January, 2014 by

the then D & SJ and endorsed by Justice ‘A’, the petitioner

was graded ‘B/very good’.

3. It is the case of the petitioner that thereafter, she was

sexually harassed by Justice ‘A’. It is further her case that

due to the said sexual harassment and at the instance of

Justice ‘A’, the then D & SJ addressed a complaint dated 3 rd

July 2014 against her to the MP High Court. It is further her

case that on 7th July 2014, the Transfer Committee of the MP

High Court comprising of two Judges of the MP High Court,

approved the transfer of the petitioner from Gwalior to Sidhi.

The said transfer order was conveyed to the petitioner on 8 th

July 2014. On 9th July 2014, the petitioner sent her first

representation to the then Registrar General (hereinafter

referred to as the “RG”) of the MP High Court, praying for an

extension of 8 months in Gwalior so that her daughter

(studying in Class 12th) completes her academic session. The

4
same came to be rejected on 11 th July 2014. The petitioner,

who was unaware about the rejection of her first

representation, sent her second representation on 11 th July

2014, seeking alternative posting to 4 cities namely Sehore,

Raisen, Dewas or Ujjain so that her daughter could continue

with her education, which also came to be rejected on 14 th

July 2014.

4. The petitioner tendered her resignation on 15 th July

2014, which was accepted by the Government of Madhya

Pradesh, Law and Legislative Affairs Department on 17 th July

2014. The petitioner was informed about the acceptance of

her resignation on 18th July 2014.

5. The petitioner thereafter on 1 st August 2014 sent a

representation to Hon’ble the President of India, the Chief

Justice of India, with a copy to Chief Justice of MP High

Court, with the following prayer:

(i) Appropriate action be taken, after fact­finding;

5

(ii) Re­consider circumstances under which petitioner

was coerced & exerted duress upon, until the only

option she had was to resign;

(iii) Institute an appropriate mechanism for redressal of

grievances like the above, of sub­ordinate services

judicial officers.

6. Between 1st August 2014 and 18th December 2014,

certain events took place with regard to the Inquiry into the

alleged conduct of Justice ‘A’, which culminated in the

judgment passed by this Court in the case of Additional

District and Sessions Judge ‘X’. v. Registrar General,

High Court of Madhya Pradesh and Others 1. The said

events are duly recorded in the said judgment and therefore,

it is not necessary to refer to them in detail.

7. In pursuance to the aforesaid judgment of this Court,

the Chief Justice of India sought a preliminary inquiry report

from the then Chief Justice of the Karnataka High Court and

on receipt thereof, constituted an In­House Committee

1 (2015) 4 SCC 91

6
headed by the then Chief Justice of Allahabad High Court.

The said In­House Committee submitted its report on 2 nd

July 2015. In the meantime, a Notice of Motion for the

removal of Justice ‘A’ was moved by 58 Members of

Parliament in the Rajya Sabha. The said Motion was

admitted by the Chairman, Rajya Sabha, the then Hon’ble

Vice­President of India on 25th March 2015. Accordingly, a

Judges Inquiry Committee (hereinafter referred to as the

“JIC”) came to be constituted under Section 3 of the Judges

(Inquiry) Act, 1968 (hereinafter referred to as the “said Act”)

comprising of a sitting Judge of this Court, the then Chief

Justice of the Karnataka High Court and a Senior Advocate

of this Court. Subsequently, in place of the Judge of this

Court, who was the Presiding Officer of JIC, another Judge of

this Court was made part of the JIC as the Presiding Officer.

The JIC submitted its report on 15th December 2017, which

was tabled before the Rajya Sabha, and the Rajya Sabha

cleared Justice ‘A’ of all charges.

8. However, the JIC found that the transfer of the

petitioner was irregular and it was further found that in the

7
circumstances prevailing then, the transfer of the petitioner

to Sidhi had become unbearable for her to continue in

service, resulting in her resignation. The JIC, therefore,

expressed its opinion that in the interest of justice, the

petitioner should be re­instated in service, in case she

intends to re­join the service. The JIC clarified that it was

not within the purview of the Reference made to them.

9. Pursuant to the recommendation of the JIC, the

petitioner addressed a representation to the then Chief

Justice of MP High Court on 21 st December 2017 for her re­

instatement in service. On 25th January 2018, the MP High

Court through its RG communicated the rejection of the

petitioner’s representation by a Full Court in its meeting held

on 11th January 2018. The petitioner thereafter filed the

present petition for the reliefs which have already been

reproduced hereinabove.

10. During the pendency of this petition, this Court passed

an order on 13th February 2019, requesting the MP High

Court for reconsideration of the issue of re­instatement of the

8
petitioner in service. The Full Court of the MP High Court

rejected the said representation in its meeting held on 15 th

February 2019. The Bench of this Court, which had passed

the order dated 13th February 2019, vide order dated 21 st

February 2019, expressed that the said Bench should not

deal with the matter on merits and directed the matter to be

placed before another Bench. It appears that thereafter again

suggestions were made by this Court to the parties to

amicably settle the matter. It appears that at one point of

time, this Court also suggested that the respondent No.1

should re­consider the issue of petitioner’s re­instatement in

service and that after re­instatement, she could be sent on

deputation outside the State or she could be adjusted in

some other State. It is the case of the petitioner that though

the said suggestion was acceptable to her, the MP High Court

re­iterated its stand. In this background, the matter has

come up before us.

11. At the outset, it is to be noted that, counsel for the

petitioner clarified that the petitioner is not pressing the

present matter on the ground of sexual harassment by

9
Justice ‘A’, but is limiting her submissions with regard to the

transfer order being illegal and mala fide, and the

consequent resignation amounting to constructive dismissal.

We have therefore refrained ourselves from making any

reference to the allegations of sexual harassment made in the

petition. We have also refrained ourselves from mentioning

the name of Justice ‘A’ or any of the Judges of the MP High

Court, who on the administrative side, had some role to play

in the matter, so also the Members of the District Judiciary,

who were directly or indirectly involved in the present case.

12. We have heard Ms. Indira Jaising, the learned Senior

Counsel appearing on behalf of the petitioner and Mr. Tushar

Mehta, the learned Solicitor General of India appearing on

behalf of the respondents.

13. Smt. Indira Jaising submitted that the MP High Court

was bound by the Transfer Guidelines/Policy of the High

Court of Madhya Pradesh incorporated on 12 th January 2012

(hereinafter referred to as the “Transfer Policy”). She

submitted that as per the Transfer Policy, the annual

10
transfers normally take place by 15th of March every year and

the Judicial Officers transferred are given time to join up to

1st of April so as to coincide with the academic session in

schools. It is submitted that as per the Transfer Policy, the

normal tenure of a Judicial Officer at a particular posting is

of 3 years, and a period of 6 months or more is to be treated

as a full year. Accordingly, the petitioner could have been

transferred in March 2014 as she had already completed

more than 2 years and 6 months till then. It is submitted

that however, the petitioner was transferred mid­term on 7 th

July 2014. It is submitted that the mid­term transfer as

provided under Clause 22 of the Transfer Policy can be made

on the limited grounds mentioned therein. Smt. Jaising

submitted that none of the grounds as mentioned in Clause

22 of the Transfer Policy were available in the case of the

petitioner.

14. Smt. Jaising further submitted that as per the Transfer

Policy if a daughter of a Judicial Officer is studying at the

place of his/her current posting and is in the final year of the

Board Examination or University Examination and the

11
Educational Institution where the daughter is studying, does

not have hostel facility for girls, the said Judicial Officer is

permitted to stay over the prescribed period. She further

submitted that the transfer of the petitioner was also

violative of Clause 16 of the Transfer Policy inasmuch as a

Judicial Officer is required to first go from Category ‘A’ city to

‘B’ city, from ‘B’ to ‘C’, from ‘C’ to ‘D’ and from ‘D’ to ‘A’.

However, the petitioner was directly transferred from

Category ‘A’ city to ‘C’ city. The learned Senior Counsel

submitted that the JIC, in its report, had clearly found the

petitioner’s transfer to be contrary to the Transfer Policy.

15. Smt. Jaising further submitted that from the record, it

is clear that the petitioner’s transfer was not made on

administrative grounds, but on the grounds of the complaint

made by the then D & SJ, Gwalior. It is submitted that the

JIC had also found that the transfer of the petitioner was

made on the basis of the complaint made by the then D &

SJ, Gwalior. It is submitted that the JIC had further found

from the evidence of the then Judge, MP High Court, who

was a Member of the Transfer Committee that, the transfer

12
was made solely on the basis of the complaint made by the

then D & SJ, Gwalior.

16. Smt. Jaising further submitted that from the evidence

of the then Judge on the Transfer Committee recorded by the

JIC, it was clear that the representations of the petitioner

were also not considered by the Transfer Committee in the

right earnest.

17. Smt. Jaising submitted that the petitioner’s resignation

was an outcome of the circumstances, in which she had no

other option but to tender her resignation and as such, was

not a resignation in law but a forced resignation, which

amounts to constructive discharge. She relies on the

following judgments of the Court of Appeal of United

Kingdom in support of this proposition:

Western Excavating (E.C.C) Ltd. v. Sharp2;

Lewis v. Motorworld Garage3

2 1978 I.C.R. 22
3 1985 WL 311068

13
She further relied on the following judgments of the US

Court of Appeals, Third Circuit to assert the point of hostile

work environment and institutional failure:

Goss v. Exxon4;

Pennsylvania State Police v. Nancy Drew Suders5

18. Smt. Jaising submitted that Article 11 of Convention on

the Elimination of All Forms of Discrimination Against

Women (CEDAW) to which India is a signatory, provides that

a woman should be able to work and discharge family duties

at the same time. She submitted that the petitioner’s

transfer was at such a place, where she could not have been

able to simultaneously discharge her duties as a Judicial

Officer and her duties towards the family. As such, the said

transfer order was in violation of Article 11 of CEDAW.

19. Smt. Jaising further submitted that the Full Court of

the MP High Court has failed to give justice to the petitioner

inasmuch as her grievance was not considered. She

submitted that immediately after the petitioner had tendered

4 747 F 2nd 885
5 542 US 129

14
her resignation, she had made a representation within a

fortnight i.e. on 1st August 2014 to Hon’ble the President of

India as well as the Chief Justice of India, with a copy to the

Chief Justice of the MP High Court for reconsidering the

entire issue. She further submitted that, as suggested by

this Court, the petitioner is foregoing her claims towards

back wages and is only interested in serving the august

institution of Judiciary. She therefore prayed that the

petition be allowed and the petitioner be re­instated in

service with continuity.

20. Per contra, Shri Tushar Mehta, the learned Solicitor

General appearing on behalf of the respondents submitted

that the allegations made by the petitioner with regard to

sexual harassment are found to be not established by the

JIC. He submitted that the said findings were recorded as

back as on 15th December 2017, which were not challenged,

and in any case, cannot be questioned or assailed in

ancillary proceedings like the present one.

15

21. Shri Mehta further submitted that though, the findings

of the JIC with regard to transfer of the petitioner being

irregular, are beyond the scope of its “Terms of Reference”, at

best, the transfer could be construed to be irregular. He

submitted that assuming that the transfer order of the

petitioner was irregular and even mala fide, the same having

not been challenged at the relevant point of time, the validity

thereof cannot be challenged in the present proceedings. He

submitted that the concept of “coercion resulting into

resignation” is a concept, which is developed in the western

countries with regard to labour jurisprudence, and that in

any case, such reliefs can be granted only when such a fact

is duly established by leading evidence.

22. The learned Solicitor General submitted that the only

contention of the petitioner with regard to coercion is that

she had to resign on account of mid­term transfer order. He

submitted that a transfer is an incidence of service. He

submitted that a mid­term transfer cannot be said to be

“coercion” so as to force a person to resign from the service.

16
He submitted that for establishing a case of coercion, it will

be necessary for a person to establish, by leading cogent

evidence, that not only unbearable pressure was built but

such a pressure was intended not just to trouble an

employee or to victimize an employee but to ensure that the

employee quits the job. He submitted that neither such

circumstances are pleaded nor asserted by the petitioner. In

any case, he submitted that in the proceedings under Article

32 of the Constitution of India, it will not be possible to arrive

at such a finding.

23. Shri Mehta submitted that in any case, such a plea

would not be available to a Judicial Officer, who is

discharging the sovereign function of dispensing justice. He

submitted that the Judicial Officers are trained to be

independent, fearless, non­impulsive and to act in

accordance with law and as such, the concept which applies

to a workman cannot be applied to a Judicial Officer. He

further submitted that the allegations made by the petitioner

with regard to sexual harassment were made only after she

resigned from the service.

17

24. Shri Mehta submitted that any decision in the present

proceedings will have far­reaching effects in the future. He

submitted that if a mere circumstance of mid­term transfer

coupled with inconvenient family circumstances is

considered by this Court to be “coercion” to resign from

service, it will open the floodgates of litigations. It is

submitted that if such a view is taken by this Court, all

similarly situated Judicial Officers would come up with such

a plea, inasmuch as every Judicial Officer is bound to have

some or the other inconvenient family problems. He

submitted that if such a view is taken, it will have far­

reaching effects on the administration of the District

Judiciary.

25. Shri Mehta submitted that the Full Court of the MP

High Court has taken a unanimous decision on more than

one occasion to reject the petitioner’s representation

regarding re­instatement in service. He submitted that the

observations made by the JIC with regard to the re­

instatement of the petitioner were beyond the scope of its

18
“Terms of Reference” and as such, the Full Court of the MP

High Court has rightly rejected the representation of the

petitioner. He submitted that if a unanimous decision taken

by the Full Court of the MP High Court is interfered with by

this Court, it will not only stigmatize the individuals manning

the institution but the entire institution.

26. Shri Mehta submitted that the submissions, which he is

making are not on the instructions of the MP High Court, but

are being made by him as an Officer of the Court. He

submitted that what is sought to be urged by the petitioner is

that the whole of the MP High Court as an Institution

connived together and ensured to create such circumstances,

that she had no other option but to tender her resignation.

He submitted that if the petitioner’s contention is accepted, it

will have catastrophic effects.

27. Shri Mehta submitted that the scope of judicial review

by this Court of a decision of the Full Court of a High Court,

is very limited. He submitted that this Court cannot sit in an

appeal over the decision of the Full Court of a High Court.

19
An interference would be permitted only in the rarest of rare

cases. He relies on the following judgments of this Court in

support of this proposition:

Syed T.A. Naqshbandi and Others v. State of Jammu &
Kashmir and Others6
;

Registrar General, High Court of Patna v. Pandey
Gajendra Prasad and Others7
;

Rajendra Singh Verma (Dead) Through LRs and Others v.
Lieutenant Governor (NCT of Delhi) and Others8

28. He therefore prays for dismissal of the petition.

29. Before we consider the rival submissions, we clarify that

we are not examining the correctness or otherwise of the

decisions of the Full Court of the MP High Court dated 11 th

January 2018 and 15th February 2019. We are conscious of

the fact that the scope of judicial review of a decision of the

Full Court of a High Court is extremely narrow and we

cannot sit in an appeal over the decision of the Full Court of

6 (2003) 9 SCC 592
7 (2012) 6 SCC 357
8 (2011) 10 SCC 1

20
a High Court. There could be various factors and reasons

which could have weighed with the Full Court of the MP High

Court while rejecting the representation made by the

petitioner in its resolutions dated 11 th January 2018 and 15th

February 2019. We have full respect for the authority of the

Full Court of the MP High Court to arrive at such a decision.

30. We therefore clarify that we are restricting the scope of

enquiry in the present matter only to examine the following

issues, on the basis of the factual scenario as has come on

record in the present matter:

(i) As to whether the order transferring the petitioner

from Gwalior to Sidhi dated 8th July 2014 is legal;

(ii) As to whether the orders of the MP High Court dated

11th July 2014 and 14th July 2014, rejecting the

petitioner’s representations dated 9th July 2014 and

11th July 2014 respectively, were legal; and

(iii) As to whether the resignation of the petitioner dated

15th July 2014 can be considered to be voluntary or

the one which has been forced due to circumstances.

21

31. Though, the issue directly involved in the present

petition is only the issue No. (iii), we find that it will be

necessary to consider issue Nos. (i) and (ii) inasmuch as our

findings on the said issues will have a direct bearing on the

finding on issue No. (iii).

32. We further clarify that we are examining the present

matter purely considering it as a lis between an employee

and an employer, without in any way being influenced by the

fact that one of the parties to the lis is the MP High Court on

the administrative side, and the other one a Judicial Officer.

We are of the considered view that the legal principles, which

would govern the dispute between an employer who is a

State and an employee, will have to be equally applied in the

present case, irrespective of the fact that one of the parties is

a High Court and the other one is a Judicial Officer.

33. Though, arguments have been advanced before us with

regard to constructive discharge and the reliance is placed on

the judgments of Courts in United Kingdom and United

States, we do not find it necessary to go into that issue. We

22
are of the considered view that the law as enunciated by this

Court with regard to scope of judicial review of a State action,

would squarely cover the issue.

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

present matter.

35. No doubt that the JIC, in its Report dated 15 th

December 2017, has come to a clear finding that the transfer

of the petitioner was in contravention of the Transfer Policy

laid down by the MP High Court and as such, was irregular.

The JIC has also come to a finding that the representations

made by the petitioner were not appropriately considered by

the MP High Court. The JIC further came to a finding that

Justice ‘A’ had interfered with the transfer of the petitioner

and also had a role to play in the rejection of her

representations. The JIC has also come to a finding that the

basis of the petitioner’s transfer was the complaint dated 3 rd

July 2014, made by the then D & SJ, Gwalior. The JIC

further found that though, it was the stand of the MP High

Court that the transfer of the petitioner was on

23
administrative grounds in view of the provisions of Clause 22

of the Transfer Policy, the same was not established. The JIC

has further come to a finding that the circumstances became

unbearable for the petitioner, resulting in her resignation

from service.

36. However, it is sought to be urged vehemently on behalf

of the respondents that the aforesaid findings of the JIC were

beyond the scope of “Terms of Reference” made to it. Per

contra, it is strenuously argued by Smt. Jaising that the

aforesaid observations are very much within the scope of the

“Terms of Reference” made to the JIC. Without going into

that controversy, we find it apposite to re­examine the issue,

independent of the findings of the JIC.

37. It is not in dispute that the Transfer Policy has been

incorporated by the MP High Court on 12 th January 2012.

The Preamble of the said Transfer Policy states that an

attempt will be made to effect the transfer and posting of

Judicial Officers in the State of Madhya Pradesh in

accordance with the said Guidelines and Policy, and that the

24
same is not enforceable in law. However, it states that

notwithstanding anything contained in the said Policy, the

interest of the Judicial System and Establishment in the

State are paramount consideration for transfers and

postings. The salient features of the said Transfer Policy are

as under:

(i) In accordance with Clause 3 of the Transfer Policy,

the places available for posting are divided into 4

Categories mentioned as ‘A’, ‘B’, ‘C’ and ‘D’, which

are mentioned in Annexure­A;

(ii) In accordance with Clause 4 of the Transfer Policy,

the annual transfer of Judicial Officers shall be

effected normally by the 15 th of March every year

and that the Judicial Officers shall be given time

for joining up to the first day of April of the

relevant year so as to coincide with the academic

session;

25

(iii) In accordance with Clause 5 of the Transfer Policy,

the normal approximate tenure of posting at a

place shall be three years;

(iv) In accordance with Clause 7 of the Transfer Policy,

for computing the tenure of posting of an Officer

posted at a particular place, the period of 6

months or above shall be rounded off and treated

as full year;

(v) Clause 9 of the Transfer Policy carves out the

exceptions in cases where an extension of tenure

can be granted. Sub­clause (a) of Clause 9

specifies a ground, that such an extension would

be available if a daughter (not son) of the Judicial

Officer is studying at the place of his current

posting, and is in the Final Year of a Board

Examination or University Examination, and the

educational Institution where such daughter is

studying, does not have hostel facility for girls. It

further provides that the said criteria are for the

26
Officers seeking over­stay in Category ‘A’ places. It

further clarifies that insofar as Category ‘B’, ‘C’ or

‘D’ places are concerned, the said facility would be

available irrespective of the ward being a son or a

daughter and further provides that the availability

of hostel facility will not be essential. It further

provides that the request on the said ground can

be considered only if the facts with regard to

education of the daughter and non­availability of

hostel facility in the Institution are certified by the

District Judge concerned, after proper verification,

and further that the District Judge as well as the

Portfolio Judge have no objection to the over­stay

of the Officer. Sub­clause (b) of Clause 9 deals

with the cases where over­stay is sought on the

ground of illness of a Judicial Officer, his spouse

or children or aged parents. Sub­clause (c) of

Clause 9 is a residuary clause, which enables such

exceptions on substantial reasons, which in the

27
opinion of the District Judge, the Portfolio Judge

or the Chief Justice, are justified;

Clause 9 of the Transfer Policy further

provides that if any Judicial Officer submits such

a representation covered by sub­clause (a), (b) or

(c), to his District Judge for being forwarded to the

Registrar General, it will be obligatory for the

District Judge to send the representation along

with his comments within one week of its receipt

after the necessary verifications. The Registry

thereafter is required to place the matter before

the concerned Portfolio Judge within a week of the

last date of the receipt of the representation, and

the Portfolio Judge is required to return the file

with his comments/opinion within a week

thereafter;

(vi) Clause 10 of the Transfer Policy provides that all

such Judicial Officers who are seeking their

extension, shall also simultaneously forward

28
minimum three and maximum five options

regarding the place of the permissible category or

lower category, where they would like to be posted

in case the representation is not allowed;

(vii) Clause 13 of the Transfer Policy provides that

extension of a posting after the tenure period

would be granted only in exceptional

circumstances. The said Clause 13 further

provides that the decision regarding extension will

be taken by the Chief Justice, or on his behalf, by

a Committee of two Judges nominated by the Chief

Justice, within three weeks of the last date of

receipt of representations mentioned above;

(viii) Clause 14 of the Transfer Policy provides that the

Judicial Officer, who is on deputation or holding

an ex­cadre post, would be required to come back

to the parent department after completing a

maximum period of three years on such posting.

It further provides that no extension on deputation

29
shall be granted after a period of three years.

However, the power of Chief Justice to grant

extension of one year in exceptional circumstances

is reserved;

(ix) In accordance with Clause 16 of the Transfer

Policy, a transfer takes place normally from

Category ‘A’ to ‘B’, from ‘B’ to ‘C’, from ‘C’ to ‘D’

and from ‘D’ to ‘A’ or lower Category places;

(x) In accordance with Clause 17 of the Transfer

Policy, the Registrar General shall, by 15 th of

February each year, prepare a list of Officers, who

will be completing their tenure/posting. It further

provides that the Judicial Officers whose request

for over­stay has been allowed will be excluded

from that list and the Officers whose request for

pre­mature transfer has been allowed, will be

added to that list. The said Clause also requires to

prepare a chart mentioning therein the details as

required under the said Clause. The purpose

30
appears to be, to ensure an equitable distribution

of judicial work for Officers all over the State;

(xi) Clause 18 of the Transfer Policy provides that an

attempt should be made to post the husband and

wife at the same place, if both are working as

Judicial Officers in the State of Madhya Pradesh.

It further provides that, if that is not possible, an

attempt should be made to post them at nearby

places;

(xii) Clause 19 of the Transfer Policy provides that

whenever a close relative of a Judicial Officer is

suffering from a serious ailment, he shall be

granted preference by posting in a place where or

near which proper treatment facilities for these

ailments are available;

(xiii) Clause 20 of the Transfer Policy provides that

Judicial Officers, who are suffering from any

physical disability, which is certified to be more

than 40% by the appropriate Medical Board, would

31
be granted preference in the matter of their

posting to such place where they are not required

to travel frequently;

(xiv) Clause 21 of the Transfer Policy requires that

Judicial Officers, who have undergone posting for

a period of two years or more in outlying Courts or

in ‘D’ Category places, will be given preference in

the transfer of their posting at District

Headquarters only;

(xv) Clause 22 of the Transfer Policy provides that a

Judicial Officer may be transferred even before

completion of the prescribed tenure or in mid­term

in case his performance is found to be below the

norms prescribed or if grounds exist for initiating

inquiry against him. It further provides that he

may also be transferred before completing the

prescribed tenure in public interest or in the

interest of administration if so decided by the High

Court;

32
(xvi) In accordance with Clause 23 of the Transfer

Policy, a Judicial Officer, who has a year or less to

retire as on first day of April, is entitled to posting

of his choice at a place, where or near which, he

proposes to settle after his retirement;

(xvii) Clause 24 of the Transfer Policy which could be

construed as a residuary clause reserves the

power of the Chief Justice to issue general or

particular directions which are not specifically

covered by the Policy. It further provides that in

case of any doubt with regard to Policy or its

implementation, the clarification issued by the

Chief Justice will be treated as part of the Policy;

(xviii) Clause 25 of the Transfer Policy provides that no

representation against transfers ordered by the

High Court will normally be entertained except on

a serious ground, which did not exist on the date

of the issuance of the order of transfer;

33
(xix) Clause 26 of the Transfer Policy which is a non­

obstante clause provides that notwithstanding

anything contained therein, the Chief Justice or on

his behalf, a Committee of two senior Judges

nominated by the Chief Justice, will have

overriding powers to pass any order regarding the

transfer or posting of any Judicial Officer at any

time;

(xx) Clause 28 of the Transfer Policy enables the Chief

Justice to delegate his powers to any other

Judge/Officer or Committee of Judges/Officers for

implementation of the Policy/Guidelines.

38. It could thus be seen that the Transfer Policy

incorporated by the MP High Court has provided in detail,

the procedure that is required to be followed with regard to

effecting the transfer of the Judicial Officers, their tenure at a

particular posting, the circumstances in which the case

should be considered for permitting the Judicial Officers to

34
stay beyond the prescribed period and the manner in which

the representation is to be considered etc.

39. No doubt that the said Transfer Policy is only a set of

Guidelines for internal administration of the District

Judiciary issued by the MP High Court. However, while

exercising its functions on the administrative side, the MP

High Court would also be a State within the meaning of

Article 12 of the Constitution of India. We may gainfully refer

to the following observations made by this Court in the case

of Food Corporation of India v. M/s Kamdhenu Cattle

Feed Industries9:

“8. The mere reasonable or legitimate expectation of
a citizen, in such a situation, may not by itself be a
distinct enforceable right, but failure to consider
and give due weight to it may render the decision
arbitrary, and this is how the requirement of due
consideration of a legitimate expectation forms part
of the principle of non­arbitrariness, a necessary
concomitant of the rule of law. Every legitimate
expectation is a relevant factor requiring due
consideration in a fair decision­making 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
9 (1993) 1 SCC 71

35
claimant’s perception but in larger public interest
wherein other more important considerations may
outweigh what would otherwise have been the
legitimate expectation of the claimant. A bona fide
decision of the public authority reached in this
manner would satisfy the requirement of non­
arbitrariness and withstand judicial scrutiny. The
doctrine of legitimate expectation gets assimilated in
the rule of law and operates in our legal system in
this manner and to this extent.

9. In Council of Civil Service Unions v. Minister for
the Civil Service [1985 AC 374 : (1984) 3 All ER 935
(HL)] the House of Lords indicated the extent to
which the legitimate expectation interfaces with
exercise of discretionary power. The impugned
action was upheld as reasonable, made on due
consideration of all relevant factors including the
legitimate expectation of the applicant, wherein the
considerations of national security were found to
outweigh that which otherwise would have been the
reasonable expectation of the applicant. Lord
Scarman pointed out that “the controlling factor in
determining whether the exercise of prerogative
power is subject to judicial review is not its source
but its subject­matter”. Again in Preston, in re [1985
AC 835 : (1985) 2 All ER 327] it was stated by Lord
Scarman that “the principle of fairness has an
important place in the law of judicial review” and
“unfairness in the purported exercise of a power can
be such that it is an abuse or excess of power”.
These decisions of the House of Lords give a similar
indication of the significance of the doctrine of
legitimate expectation. Shri A.K. Sen referred
to Shanti Vijay and Co. v. Princess Fatima
Fouzia
[(1979) 4 SCC 602 : (1980) 1 SCR 459] which

36
holds that court should interfere where
discretionary power is not exercised reasonably and
in good faith.”

40. It could thus be seen that this Court has held that mere

reasonable or legitimate expectation of a citizen may not by

itself be a distinct enforceable right. It is further held that the

failure to consider and give due weight to it may render the

decision arbitrary. It has been held that the requirement of

due consideration of a legitimate expectation forms part of

the principle of non­arbitrariness, which is a necessary

concomitant of the rule of law. Every legitimate expectation is

a relevant factor requiring due consideration in a fair

decision­making 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

37
claimant. It has been held that a bona fide decision of the

public authority reached in this manner would satisfy the

requirement of non­arbitrariness and withstand judicial

scrutiny. It has been held that the principle of fairness has

an important place in the law of judicial review and that

unfairness in the purported exercise of power can be such

that it is abuse or excess of power. The court should interfere

where discretionary power is not exercised reasonably and in

good faith.

41. It could thus be seen that though the Transfer Policy

may not be enforceable in law, but when the Transfer Policy

has been framed by the MP High Court for administration of

the District Judiciary, every Judicial Officer will have a

legitimate expectation that such a Policy should be given due

weightage, when the cases of Judicial Officers for transfer are

being considered.

42. In this background, we will examine the undisputed

facts. Undisputedly, in the chart which was prepared by the

38
then RG for ensuring the general transfers, which were to be

effected in the month of March 2014, the petitioner’s name

did not figure.

43. It is further clear that in the agenda prepared for

consideration of mid­term transfers to be effected in the

month of July 2014, again the petitioner’s name did not

appear. It can further be seen from the depositions of the

then Judge of the MP High Court, who was a Member of the

Transfer Committee and that of the then RG of the MP High

Court before the JIC, that the basis for the transfer of the

petitioner was the complaint dated 3rd July 2014, addressed

by the then D & SJ, Gwalior. It is to be noted that within

days, the decision regarding transferring the petitioner to

Sidhi, which is about 507 kms. away from Gwalior, was

taken by the Transfer Committee on 7 th July 2014, and was

approved by the Competent Authority on the very same day.

The said transfer order was conveyed to the petitioner on the

next day that is on 8th July 2014.

39

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 the said representation, the petitioner had

categorically stated that her elder daughter was a brilliant

child, studying in Class 12th and was preparing for her Board

and Competitive Exams at FIITJEE Coaching Centre,

Gwalior. She further stated that her husband, due to

compelling circumstances and for looking after his aged

parents, had to stay in Delhi and practically, she had to play

the role of both a father and a mother for her daughters and

had to draw a balance between her profession and dependent

children. She further made a request to the Competent

Authority to allow her to stay in Gwalior till her daughter

completes her Class 12th examination. The said

representation was rejected within two days i.e. on 11 th July

2014. The then RG made an endorsement to the following

effect:

“Hon’ble the transfer Committee in its meeting
held on 7.7.2014 has recommended transfer of Smt.
Madan from Gwalior to Sidhi on administrative

40
ground, after considering the request of D&S Judge,
Gwalior with regard to her conduct and behavior. It
is gathered that adequate educational facilities
including CBSE School are available at Sidhi.

Therefore, the matter is submitted for kind
consideration and order.”

The then Judge of the Transfer Committee of the MP

High Court made the following endorsement on the same

day:

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

45. After rejection of her first representation, the petitioner

made another representation to the respondent No.1 on 11 th

July 2014, through the then D & SJ, Gwalior. In the said

representation, she had requested for her transfer either to

Sehore, Raisen, Dewas or Ujjain so that her daughter could

continue with her education. The then RG, on 14 th July

2014, placed the said representation of the petitioner before

the Transfer Committee with the following endorsement:

41
“Kind attention is invited to another representation
(dated 11th July, 2014) submitted by Ms. ‘X’, 8 th
A.D.J., Gwalior regarding her transfer from Gwalior
to Sidhi, almost on identical grounds pertaining to
education of her daughters.

The Committee has already considered the
representation dated 9th July, 2014 of Ms. ‘X’ and
has been pleased to reject the same.

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

The then Judge of the Transfer Committee of the MP

High Court made the following endorsement on the same

day:

“In view of the order already passed on the
representation no further reconsideration is to be
made.”

46. It could thus be seen that the transfer of the petitioner

was effected mid­term though she could have very well been

transferred in general transfers, to be effected in March­April,

2014. Even in the agenda of the mid­term transfers, which

were to be effected on various grounds, petitioner’s name was

not included. It was only after the then D & SJ, Gwalior

42
addressed a complaint to the then RG, seeking her transfer

out of Gwalior, the matter was placed immediately before the

Transfer Committee within days and the Transfer Committee

approved the transfer of the petitioner. Immediately after the

receipt of the transfer order, the petitioner made a

representation on 9th July 2014, specifically pointing out

therein that her daughter was studying in Class 12 th and also

undergoing FIITJEE coaching. The said representation was

rejected within two days. The petitioner had a legitimate

expectation of her representation being considered

specifically in view of Clause 9(a) of the Transfer Policy. The

Transfer Policy provides that on such representation being

made, the RG shall obtain the comments of the District

Judge within a week and on receiving his comments after

necessary verifications, it was required that the matter

should be placed before the concerned Portfolio Judge within

a week, who was required to return the file within a period of

one week thereafter, with his comments/opinion.

43

47. Undisputedly, neither the procedure as prescribed

under Clause 9 of the Transfer Policy of obtaining the

comments from the District Judge and the Portfolio Judge

were complied with, nor the Transfer Committee considered

the provisions of Clause 9(a) of the Transfer Policy.

48. When sub­clause (a) of Clause 9 of the Transfer Policy

provided, that the case of a Judicial Officer for an extension

should be considered if such Judicial Officer’s daughter (not

son) was to appear for the final year of Board Examination or

University Examination, and when such educational

Institution where such daughter is studying, does not have

hostel facility for girls, the petitioner had a legitimate

expectation that the MP High Court would consider her

request in accordance therewith. Not only that, such a

concession of extension would have been available only if the

District Judge certified that there is no hostel facility

available in such educational Institution. It also further

required the comments to be obtained by the RG from the

District Judge and the Portfolio Judge of the MP High Court.

44
From the perusal of the Transfer Policy, it is clear that total 3

weeks’ period is provided between the date of the receipt of

the representation and the decision thereon. However, in the

present case, within two days from the submission of the

representation, the Transfer Committee rejected the same

without considering sub­clause (a) of Clause 9 of the Transfer

Policy. It is a different matter that inviting comments from

the District Judge would have been just a formality,

inasmuch as the transfer was effected on his complaint itself.

49. The matter does not end here. On rejection of her first

representation, the petitioner addressed her second

representation, requesting that she be posted at any of the

four cities mentioned in the said representation so that her

daughter could continue with her education. However, the

then RG made an endorsement that the said representation

is on similar ground as mentioned in the earlier

representation dated 9th July 2014, which has already been

rejected. The Transfer Committee endorsed that in view of

the order already passed in the earlier representation dated

45
9th July 2014, no further reconsideration is to be made. Both

the representations of the petitioner are made with different

requests. Whereas the first representation requests for her

retention at Gwalior for a period of 8 months so that her

daughter could continue with her education at Gwalior; in

the second representation, she had requested to be posted at

either of the 4 places, where her daughter could continue

with her education. However, the second representation was

rejected on the ground that the earlier representation made

on similar ground also stands rejected.

50. The petitioner had a legitimate expectation in view of

Clause 10 of the Transfer Policy to have her case considered

for posting at any of the 4 places in the event her request for

retention at the then present posting was not considered and

as such, she made the second representation. We are at

pains to say that the rejection of the second representation

depicts total non­application of mind by the then RG as well

as the then Judge of the Transfer Committee of the MP High

Court. The proposal of the then RG was made in a casual

46
manner and accepted by the then Judge on the Transfer

Committee in a mechanical manner.

51. The transfer is sought to be justified in view of Clause

22 of the Transfer Policy. One of the grounds on which the

transfer could be made in mid­term, is that the performance

of such Judicial Officer is found to be below the norms

prescribed. The same is admittedly not available in the

present case. The petitioner’s performance in the assessment

made by the then D & SJ, Gwalior on 15 th January 2014 for

the assessment year 2013, has been found to be ‘very good’.

That leaves us with the second ground available under

Clause 22 of the Transfer Policy, that a transfer can be made

if the grounds exist for initiating an inquiry against such a

Judicial Officer. The same is also not the case here.

52. It is sought to be urged that the transfer of the

petitioner was made in the public interest or in the interest of

the administration inasmuch as there was a requirement of

an Additional Judge at Sidhi. The then Judge on the

47
Transfer Committee has specifically admitted in his

deposition before the JIC that at the relevant point of time,

the pendency at the 4 places which were mentioned by the

petitioner in her second representation, was much higher

than at Sidhi. He has further admitted that though the posts

were vacant at the said 4 places, there was no vacancy at

Sidhi. As per the Transfer Policy, a Judicial Officer is

required to be transferred from Category ‘A’ city to Category

‘B’ city, from ‘B’ to ‘C’, from ‘C’ to ‘D’ and from ‘D’ to ‘A’.

However, in the case of the petitioner, the petitioner was

directly transferred from Gwalior, which is Category ‘A’ city to

Sidhi, which is Category ‘C’ city. The 4 cities which have been

mentioned by the petitioner in her second representation are

‘B’ Category cities. Coupled with the admission that the

transfer of the petitioner was effected on the basis of the

complaint made by the then D & SJ, Gwalior, it is difficult to

accept the contention on behalf of the MP High Court that

the transfer of the petitioner was made in the public interest

or in the interest of the administration.

48

53. The learned Solicitor General argued that vide the

impugned transfer order dated 8th July 2014, as many as 26

Judicial Officers were transferred and not just the petitioner.

The perusal of the said transfer order would reveal that in

many cases, the Judicial Officers who were either on

deputation or ex­cadre posts, have been brought in main

stream. It is also found that many of the Judicial Officers

covered by the said transfer order were posted at the same

place inasmuch as from the posting on deputation, they have

been brought in the main stream. In any case, it is not

pointed out as to whether the said Judicial Officers were also

facing the same difficulty, as was being faced by the

petitioner. It is also not brought on record as to whether

those Judicial Officers had made any representation and

their representations were rejected in an identical manner.

54. At this juncture, we may refer to the following

observations made by this Court in the case of Kumari

49
Shrilekha Vidyarthi and Others v. State of U.P. and

Others10:

“33. No doubt, it is true, as indicated by us earlier,
that there is a presumption of validity of the State
action and the burden is on the person who alleges
violation of Article 14 to prove the assertion.

However, where no plausible reason or principle is
indicated nor is it discernible and the impugned
State action, therefore, appears to be ex facie
arbitrary, the initial burden to prove the
arbitrariness is discharged shifting onus on the
State to justify its action as fair and reasonable. If
the State is unable to produce material to justify its
action as fair and reasonable, the burden on the
person alleging arbitrariness must be held to be
discharged. The scope of judicial review is limited as
indicated in Dwarkadas Marfatia case [(1989) 3
SCC 293] to oversee the State action for the purpose
of satisfying that it is not vitiated by the vice of
arbitrariness and no more. The wisdom of the policy
or the lack of it or the desirability of a better
alternative is not within the permissible scope of
judicial review in such cases. It is not for the courts
to recast the policy or to substitute it with another
which is considered to be more appropriate, once
the attack on the ground of arbitrariness is
successfully repelled by showing that the act which
was done, was fair and reasonable in the facts and
circumstances of the case. As indicated by Diplock,
L.J., in Council of Civil Service Unions v. Minister for
the Civil Service [(1984) 3 All ER 935] the power of
judicial review is limited to the grounds of illegality,
irrationality and procedural impropriety. In the case

10 (1991) 1 SCC 212

50
of arbitrariness, the defect of irrationality is
obvious.”

55. It could thus be seen that this Court has held that there

is a presumption of validity of the State action and the

burden is on the person who alleges violation of Article 14 of

the Constitution of India to prove the assertion. It has been

further held that where no plausible reason or principle is

indicated nor is it discernible and the impugned State action

appears to be arbitrary, the initial burden to prove the

arbitrariness is discharged, thereby shifting onus on the

State to justify its action as fair and reasonable. If the State

is unable to produce material to justify its action as fair and

reasonable, the burden on the person alleging arbitrariness

must be held to be discharged. The limited scope of judicial

review is only to satisfy that the State action is not vitiated by

the vice of arbitrariness and no more. It is equally settled

that it is not for the courts to recast the policy or to

substitute it with another which is considered to be more

appropriate. It has been held that the attack on the ground

of arbitrariness is successfully repelled by showing that the

51
act which was done, was fair and reasonable in the facts and

circumstances of the case.

56. We have no hesitation in holding that the petitioner has

established that her transfer order was in contravention of

the Transfer Policy and that the rejection of her two

representations, in addition of being contrary to the Transfer

Policy, were also arbitrary. As such, the petitioner has

discharged her burden and the onus is shifted on the

respondent No.1 to show that the petitioner’s transfer order

was fair and reasonable in the facts and circumstances of the

case. We find that the respondent No.1 has utterly failed to

discharge its burden. On the contrary, the admissions made

before the JIC by the then Judge on the Transfer Committee

clearly show that the transfer was made solely on the basis of

the complaint made by the then D & SJ, Gwalior without

verifying the veracity thereof. Not only this, but it is evident

that the then Judge had not looked into the annexures

attached with the representation, which included the fee

receipts etc. of the petitioner’s daughter.

52

57. We may gainfully refer to the following observations

made by this Court in the case of Kalabharati Advertising

v. Hemant Vimalnath Narichania and Others11:

“25. The State is under obligation to act fairly
without ill will or malice — in fact or in law. “Legal
malice” or “malice in law” means something done
without lawful excuse. It is an act done wrongfully
and wilfully without reasonable or probable cause,
and not necessarily an act done from ill feeling and
spite. It is a deliberate act in disregard to the rights
of others. Where malice is attributed to the State, it
can never be a case of personal ill will or spite on
the part of the State. It is an act which is taken with
an oblique or indirect object. It means exercise of
statutory power for “purposes foreign to those for
which it is in law intended”. It means conscious
violation of the law to the prejudice of another, a
depraved inclination on the part of the authority to
disregard the rights of others, which intent is
manifested by its injurious acts. (Vide ADM,
Jabalpur v. Shivakant Shukla
[(1976) 2 SCC 521 :
AIR 1976 SC 1207] , S.R. Venkataraman v. Union of
India
[(1979) 2 SCC 491 : 1979 SCC (L&S) 216 : AIR
1979 SC 49] , State of A.P. v. Goverdhanlal
Pitti
[(2003) 4 SCC 739 : AIR 2003 SC 1941] , BPL
Ltd. v. S.P. Gururaja [(2003) 8 SCC 567] and W.B.

SEB v. Dilip Kumar Ray [(2007) 14 SCC 568 : (2009)
1 SCC (L&S) 860] .)

26. Passing an order for an unauthorised purpose
constitutes malice in law. (Vide Punjab SEB
Ltd. v. Zora Singh [(2005) 6 SCC 776] and Union of
11 (2010) 9 SCC 437

53
India v. V. Ramakrishnan [(2005) 8 SCC 394 : 2005
SCC (L&S) 1150].)”

58. It is trite that the State is under the obligation to act

fairly without ill will or malice — in fact or in law. “Legal

malice” or “malice in law” means something done without

lawful excuse. It is an act done wrongfully and wilfully

without reasonable or probable cause, and not necessarily an

act done from ill feeling and spite. Where malice is attributed

to the State, it can never be a case of malice or spite on the

part of the State. It would mean exercise of statutory power

for “purposes foreign to those for which it is in law intended”.

It means conscious violation of the law to the prejudice of

another, a depraved inclination on the part of the authority

to disregard the rights of others.

59. No doubt that it is strenuously argued on behalf of the

petitioner that the transfer order is mala fide and issued at

the instance of Justice ‘A’, we do not find it necessary to go

into that aspect of the matter.

54

60. It will also be relevant to refer to the following

observations made by this Court in the case of Somesh

Tiwari v. Union of India and Others12:

“16. Indisputably an order of transfer is an
administrative order. There cannot be any doubt
whatsoever that transfer, which is ordinarily an
incident of service should not be interfered with,
save in cases where inter alia mala fide on the part
of the authority is proved. Mala fide is of two kinds
—one malice in fact and the second malice in law.
The order in question would attract the principle of
malice in law as it was not based on any factor
germane for passing an order of transfer and based
on an irrelevant ground i.e. on the allegations made
against the appellant in the anonymous complaint.
It is one thing to say that the employer is entitled to
pass an order of transfer in administrative
exigencies but it is another thing to say that the
order of transfer is passed by way of or in lieu of
punishment. When an order of transfer is passed in
lieu of punishment, the same is liable to be set
aside being wholly illegal.”

61. This Court has held that normally an order of transfer,

which is an incident of service should not be interfered with,

unless it is found that the same is mala fide. It has been

held that mala fide is of two kinds — one ‘malice in fact’ and

the second ‘malice in law’. When an order is not based on

any factor germane for passing an order of transfer and

12 (2009) 2 SCC 592

55
based on an irrelevant ground, such an order would not be

sustainable in law.

62. At the cost of repetition, we may say that though it is

the case of the respondent No.1 that the transfer order of the

petitioner dated 8th July 2014, was on the ground of

administrative exigencies, the material placed on record and

particularly, the depositions of the then Judge on the

Transfer Committee and the then RG, would clearly show

that it was on the basis of the complaint made by the then D

& SJ, Gwalior. It is a different aspect that the JIC had come

to a specific finding of fact, that the evidence on record

clearly shows that Justice ‘A’ had a role to play in the

transfer of the petitioner and the rejection of her two

representations. We are therefore of the considered view that

the transfer order dated 8th July 2014, would squarely be

covered by ‘malice in law’ inasmuch as it was passed without

taking into consideration the Guidelines provided in the

Transfer Policy but on the basis of unverified allegations

made in the complaint made by the then D & SJ, Gwalior.

56

63. That leaves us with the next issue as to whether the

orders of the Transfer Committee dated 11 th July 2014 and

14th July 2014, rejecting the petitioner’s representations

dated 9th July 2014 and 11th July 2014, were valid in law or

not.

64. It could be seen that as per Clause 9 of the Transfer

Policy, the petitioner is entitled to make a representation to

the MP High Court for retaining her at the same posting, and

for posting at alternate places of her choice in view of Clause

10 of the Transfer Policy. When the Transfer Policy provides

for making a representation, the petitioner had a legitimate

expectation that the said representation would be considered

in accordance with it. Consideration of representation is not

a formality. We are not saying for a moment that prior to

rejection of the petitioner’s representations, she should have

been heard or that the reasons ought to have been

communicated for such rejection. However, the least that is

expected is that the representation is considered in the right

earnest. When the Transfer Policy provides for a ground on

which the representation is to be made, then the least that is

57
expected is that the matter should be considered in reference

to the provisions made in the Transfer Policy. In her first

representation, the petitioner had specifically contended that

she should be retained at Gwalior on the ground of her

daughter’s education. There was a legitimate expectation

that the respondent No.1 ought to have considered as to

whether her case fits in Clause 9(a) of the Transfer Policy.

The petitioner was entitled for consideration of her case on

the ground that her daughter was to appear in the final year

of Board Examination. The petitioner had specifically stated

that her daughter was also undergoing FIITJEE coaching.

She had further clearly stated that after her daughter

completes the academic year, she was willing to abide by the

transfer order. However, in the noting of the then RG, it was

mentioned that “it is gathered that adequate educational

facilities including CBSE School are available at Sidhi”. It is

further stated that the Transfer Committee, in its meeting

held on 7th July 2014, had recommended the transfer of the

petitioner on administrative grounds after considering the

request of the then D & SJ, Gwalior with regard to conduct

58
and behaviour of the petitioner. On the said proposal, the

then Judge on the Transfer Committee had directed the

representation of the petitioner to be rejected. As such, it

could be seen that the respondent No. 1 had not at all taken

into consideration as to whether the petitioner’s case was

required to be considered under Clause 9(a) of the Transfer

Policy or not.

65. Insofar as the second representation dated 11 th July

2014 is concerned, the petitioner had specifically stated that

since her daughter was preparing for Board and Competitive

Exams and also taking FIITJEE coaching, she may be

transferred to such places as Sehore, Raisen, Dewas or

Ujjain, where her daughter could continue with her

education. It could thus be seen that, whereas in the first

representation, the petitioner had sought retention at

Gwalior, in the second representation, she had requested for

posting at any of the 4 places as aforesaid. However, the

then RG made an endorsement on the file on 14 th July 2014

to the effect that “the said representation was made almost

on identical grounds as were made in the first

59
representation, which was already rejected on 11 th July

2014”. The then Judge on the Transfer Committee made an

endorsement that “in view of the order dated 11 th July 2014

already passed in the earlier representation, no further

reconsideration is to be made”. It can thus be seen that

though the second representation of the petitioner dated 11 th

July 2014 is with a request to post her at any of the 4

alternate places, the noting that “the representation on

identical grounds had already been rejected”, is factually

incorrect. Whereas the first representation of the petitioner

was for retention at Gwalior, the second one was for a

posting at alternate place, where her daughter could

continue with her education. In view of Clause 10 of the

Transfer Policy, the petitioner had a legitimate expectation of

being considered for an alternate posting, in case her prayer

for retention was not to be considered.

66. It could thus be seen that the respondent No.1 has

failed to take into consideration the factors, which were

required to be considered, while deciding the representation

of the petitioner and had taken into consideration the factors

60
which were not relevant. The then Judge on the Transfer

Committee, in his deposition before the JIC, had clearly

admitted that he had not gone into the annexures, which

were attached with the representation of the petitioner. Non­

consideration of the relevant material and consideration of

the extraneous material would come into the realm of

irrationality. An action which is arbitrary, irrational and

unreasonable would be hit by Article 14 of the Constitution

of India. We, therefore, find that the rejection of the

representations of the petitioner dated 9th July 2014 and 11th

July 2014, would also not stand the scrutiny of law.

67. That leaves us with the next issue as to whether the

petitioner’s resignation dated 15th July 2014, could be

considered as a voluntarily one.

68. The resignation of the petitioner reads thus:

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

As I have been transferred to Sidhi, in the mid
academic session of my daughters studying in Class
III and Class XII, it affected mostly the crucial stage
of career of my class XII daughter. Therefore I am
left with no option but to resign from my post.

61

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

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

69. It is sought to be urged on behalf of the respondent

No.1, that the said resignation is voluntary, acted upon by

the authority and thus, there was severance of relationship

between the employer and employee.

70. The learned Solicitor General submitted that it was an

impulsive decision to resign only on account of mid­term

transfer. He submitted that, to hold that a mid­term transfer

would amount to coercion resulting into resignation, would

be catastrophic. He further submitted that such a plea would

not be available to a Judicial Officer, who is discharging the

sovereign function of dispensing justice and who is trained to

be independent, fearless, non­impulsive and to act in

accordance with law.

62

71. No doubt, that a Judicial Officer while discharging

his/her duties, is expected to be independent, fearless,

impassionate and non­impulsive. But a Judicial Officer is

also a human being. A Judicial Officer is also a parent.

He/she could be a father or a mother. The question would

be, whether a Judicial Officer, while taking a decision in

his/her personal matter as a human being, in his/her

capacity of a father or mother, would be required to be

guided by the same yardsticks.

72. For considering as to whether the resignation in the

present matter could be construed as voluntary or not, the

resignation cannot be considered in isolation, but all the

attendant circumstances will have to be taken into

consideration.

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

petitioner.

74. Insofar as the career of the petitioner is concerned, till

8th July 2014, there were no issues. She was posted at

Gwalior as AD & SJ on 1st August 2011. On 15th January

2013, she was assessed for the period from 3 rd May 2012 to

63
31st December 2012 by the then D & SJ, Gwalior, who

assessed her grading as ‘good’, which was approved by the

then Portfolio/Administrative Judge of the MP High Court.

Between December 2013 and June 2014, the petitioner was

entrusted with various additional responsibilities. On 15 th

January 2014, she was assessed for the period from 8 th April

2013 to 31st December 2013 by the then D & SJ, Gwalior ,

who assessed her grading as ‘very good’. The same was also

endorsed by the then Portfolio/Administrative Judge of the

MP High Court. It is to be noted that the then D & SJ,

Gwalior, who had assessed the petitioner’s performance for

the assessment year 2012 was a different one than the one

who had assessed her performance for the assessment year

2013.

75. On the personal front, both the petitioner’s daughters

were taking education at Gwalior. One of them was in Class

3rd and the other one was studying in Class 12th and was also

undergoing FIITJEE coaching. Since her husband was

required to be in Delhi on account of professional and

personal commitments and also that he had to look after his

64
aged parents, the petitioner had to draw a balance between

her duties as a Judicial Officer and as a mother.

76. Till 8th July 2014, everything was smooth but on the

said date, came the transfer order transferring her to Sidhi,

which was at a far away distance of 507 Kms. from Gwalior.

Taking shelter under Clause 9(a) of the Transfer Policy, the

petitioner made a representation to the MP High Court on the

very next day, requesting the respondent No. 1 that she be

retained at Gwalior, at least till her daughter completes her

Class 12th education, but the same was rejected within a

short period of two days. She made her second

representation on 11th July 2014, requesting the respondent

No.1 to give her alternate posting at any of the 4 cities

mentioned therein, where her daughter could continue with

her education. All the 4 cities were Category ‘B’ cities. In

normal circumstances, a Judicial Officer, who is in Category

‘A’ city, is required to be transferred to Category ‘B’ city.

However, to her utter shock, the same was also rejected

within three days.

65

77. One cannot imagine the trauma which the petitioner

must have faced during this short period of time. She was

also not aware that she was being transferred on the ground

of the complaint made by the then D & SJ, Gwalior, who

himself appears to have joined at Gwalior sometime in 2014,

after the then D & SJ, Gwalior, who had assessed the

petitioner for the year 2013, was transferred. She had come

to know about the complaint at a much later point of time. In

her first representation dated 9th July 2014, the petitioner

elaborated in detail, her precarious situation inasmuch as

she was required to be both a mother and father to her

children and draw a balance between her professional duties

and duties towards her daughters. She stated that on receipt

of her transfer order, her elder daughter had become meek

with fear and anxiety, as she faced an emotional trauma and

a bleak prospect. The petitioner stated that at the cost of her

career, she could not disturb the right of her daughter to

decent education and curb her prospects for an inspirational

life. The petitioner only appealed that in order to avoid the

emotional trauma and to support her daughter to complete

66
her Class 12th, she should be continued at Gwalior for a

short period. She also assured that after her daughter

completes Class 12th, she would move on to whichever

posting allocated to her. However, the same was rejected

within two days i.e. on 11 th July 2014, without following the

procedure prescribed under the Transfer Policy.

78. The petitioner made another representation on the very

same day i.e. 11th July 2014, requesting for an alternate

posting either to Sehore, Raisen, Dewas or Ujjain. She

reiterated the traumatic situation through which her

daughter was undergoing. She reiterated that at the cost of

her career, she could not disturb the right of her daughter to

decent education. However, the same was again rejected on

14th July 2014, within a period of four days.

79. The petitioner was a Judicial Officer and a mother too.

The Judicial Officer in her must have been battling with the

mother in her. On one hand, was her career as a Judicial

Officer; on the other hand, was the possibility of her

daughter’s educational prospects and career coming into

jeopardy, if she shifted to the place of posting at Sidhi. A

67
possibility of her mind engrossed with a feeling, that she was

subjected to injustice by the very Institution of Judiciary,

cannot be ruled away. What was she asking for? A retention

at Gwalior for a period of 8 months till her daughter

completes her Class 12th. In the alternative, posting at any of

the 4 cities, which were admittedly in Category ‘B’, where her

daughter could have better education facilities, and where

the vacancies existed.

80. Denial of her legitimate expectation could have led to

desperation, exasperation and frustration. The frustration of

the petitioner is evident from the language used by her in her

resignation letter. She stated that as she had been

transferred to Sidhi in the mid­academic session of her

daughter’s Class 12th, it had mostly affected the crucial stage

of career of her daughter. She stated that therefore, she was

left with no other option but to resign from her post. It

appears that in a gruesome battle between a mother and a

Judicial Officer, the Judicial Officer lost the battle to the

mother.

68

81. Reaction of a person to a particular situation would

depend from person to person. No two individuals can be

expected to respond identically to a same situation. It is quite

possible that some other person in the petitioner’s place,

would have chosen to pursue one’s own career without

bothering about the daughter’s education and prospects of

good career.

82. On the very next day of submission of resignation, the

MP High Court forwarded her resignation with the

recommendation to accept the same and thereafter,

immediately on the very next day, the respondent No. 2

accepted the same.

83. It will be apposite to refer to the following observations

of this Court in the case of Dr. Prabha Atri v. State of U.P.

and Others13:

“7. The only question that mainly requires to be
considered is as to whether the letter dated 9­1­
1999 could be construed to mean or amounted to a
letter of resignation or merely an expression of her
intention to resign, if her claims in respect of the

13 (2003) 1 SCC 701

69
alleged lapse are not viewed favourably. Rule 9 of
the Hospital Service Rules provided for resignation
or abandonment of service by an employee. It is
stated therein that a permanent employee is
required to give three months’ notice of resignation
in writing to the appointing authority or three
months’ salary in lieu of notice and that he/she
may be required to serve the period for such notice.

In case of non­compliance with the above, the
employee concerned is not only liable to pay an
amount equal to three months’ salary but such
amount shall be realizable from the dues, if any, of
the employee lying with the hospital. In Words and
Phrases (Permanent Edn.) Vol. 37, at p. 476, it is
found stated that:

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

At p. 474 of the very same book, it is found stated:

“Statements by club’s President and corresponding
Secretary that they would resign, if constant
bickering among members did not cease,
constituted merely threatened offers, not tenders, of
their resignations.” It is also stated therein that “A
‘resignation’ of a public office to be effective must be
made with an intention of relinquishing the office
accompanied by an act of relinquishment.” In the
ordinary dictionary sense, the word “resignation”
was considered to mean the spontaneous
relinquishment of one’s own right, as conveyed by

70
the maxim: Resignatio est juris proprii spontanea
refutatio (Black’s Law Dictionary, 6th Edn.).
In Corpus Juris Secundum, Vol. 77, p. 311, it is
found stated:

“It has been said that ‘resignation’ is a
term of legal art, having legal
connotations which describe certain legal
results. It is characteristically, the
voluntary surrender of a position by the
one resigning, made freely and not under
duress and the word is defined generally
as meaning the act of resigning or giving
up, as a claim, possession or position.”

8. In P.K. Ramachandra Iyer v. Union of
India
[(1984) 2 SCC 141 : 1984 SCC (L&S) 214] this
Court had an occasion to consider the nature and
character of a letter written by one of the petitioners
in that case who after stating in the letter that he
has been all along patiently waiting for the redressal
of his grievance, yet justice has not been done to
him and

“as such, after showing so much patience
in the matter, I am sorry to decide that I
should resign from the membership of
the Faculty in protest against such a
treatment and against the discrimination
and victimization shown to me by the
Head of the Division in the allotment of
students of 1968 and 1969 batches and
departmental candidates”. (SCC p. 172,
para 34)

71
In that context, this Court observed that the callous
and heartless attitude of the Academic Council in
seizing an opportunity to get rid of him by treating
the said letter to be a letter of resignation when
really he was all along making representations
seeking justice to him and out of exasperation the
said person wrote that letter stating that the only
honourable course left open to him was to resign
rather than suffer (SCC p. 173, para 34).

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

“16. As pointed out by this Court,
‘resignation’ means the spontaneous
relinquishment of one’s own right and in
relation to an office, it connotes the act of
giving up or relinquishing the office. It
has been held that in the general juristic
sense, in order to constitute a complete
and operative resignation there must be
the intention to give up or relinquish the
office and the concomitant act of its
relinquishment. It has also been observed
that the act of relinquishment may take
different forms or assume a unilateral or
bilateral character, depending on the
nature of the office and the conditions
governing it. (See: Union of India v. Gopal
Chandra Misra
[(1978) 2 SCC 301 : 1978
SCC (L&S) 303] .) If the act of
relinquishment is of unilateral character,
it comes into effect when such act
indicating the intention to relinquish the
office is communicated to the competent

72
authority. The authority to whom the act
of relinquishment is communicated is not
required to take any action and the
relinquishment takes effect from the date
of such communication where the
resignation is intended to operate in
praesenti. A resignation may also be
prospective to be operative from a future
date and in that event it would take effect
from the date indicated therein and not
from the date of communication. In cases
where the act of relinquishment is of a
bilateral character, the communication of
the intention to relinquish, by itself,
would not be sufficient to result in
relinquishment of the office and some
action is required to be taken on such
communication of the intention to
relinquish, e.g., acceptance of the said
request to relinquish the office, and in
such a case the relinquishment does not
become effective or operative till such
action is taken. As to whether the act of
relinquishment of an office is unilateral
or bilateral in character would depend
upon the nature of the office and the
conditions governing it.”

9. In traversing the contention on behalf of the
appellant that the letter in question dated 9­1­1999
could not be construed as a letter of resignation, on
behalf of the respondent hospital authorities it is
strenuously contended that such a letter coming
from the appellant in the teeth of suspension order
and proposed domestic enquiry expressing a desire
to tender resignation and that too with immediate
effect, cannot but be a resignation outright and

73
simpliciter to avoid facing disciplinary proceedings
and that, therefore, the competent authority acted
well within its rights in treating it to be a
resignation and accepting the same forthwith and
as a consequence thereof, directing further not to
proceed with the domestic enquiry already ordered.
Finally, it has been submitted that if this Court is
pleased to interfere in the matter the right of the
hospital authorities to pursue the disciplinary
action already initiated from the stage at which it
stood on the date of acceptance of the resignation
should not be jeopardized and liberty may be
granted in this regard.

10. We have carefully considered the submissions
of the learned counsel appearing on either side, in
the light of the materials and principles, noticed
supra. This is not a case where it is required to
consider as to whether the relinquishment
envisaged under the rules and conditions of service
is unilateral or bilateral in character but whether
the letter dated 9­1­1999 could be treated or held to
be a letter of resignation or relinquishment of the
office, so as to sever her services once and for all.
The letter cannot be construed, in our view, to
convey any spontaneous intention to give up or
relinquish her office accompanied by any act of
relinquishment. To constitute a “resignation”, it
must be unconditional and with an intention to
operate as such. At best, as observed by this Court
in the decision in P.K. Ramachandra Iyer [(1984) 2
SCC 141 : 1984 SCC (L&S) 214] it may amount to a
threatened offer more on account of exasperation, to
resign on account of a feeling of frustration born out
of an idea that she was being harassed
unnecessarily but not, at any rate, amounting to a

74
resignation, actual and simple. The appellant had
put in about two decades of service in the hospital,
that she was placed under suspension and exposed
to disciplinary proceedings and proposed domestic
enquiry and she had certain benefits flowing to her
benefit, if she resigns but yet the letter dated 9­1­
1999 does not seek for any of those things to be
settled or the disciplinary proceedings being
scrapped as a sequel to her so­called resignation.
The words “with immediate effect” in the said letter
could not be given undue importance dehors the
context, tenor of language used and the purport as
well as the remaining portion of the letter indicating
the circumstances in which it was written. That the
management of the hospital took up such action
forthwith, as a result of acceptance of the
resignation is not of much significance in
ascertaining the true or real intention of the letter
written by the appellant on 9­1­1999. Consequently,
it appears to be reasonable to view that as in the
case reported in P.K. Ramachandra Iyer [(1984) 2
SCC 141 : 1984 SCC (L&S) 214] the respondents
have seized an opportunity to get rid of the
appellant the moment they got the letter dated 9­1­
1999, without due or proper consideration of the
matter in a right perspective or understanding of
the contents thereof. The High Court also seems to
have completely lost sight of these vital aspects in
rejecting the writ petition.”

84. The facts in the above case are somewhat similar to the

present case. The present case is also not a case where it is

required to consider as to whether the relinquishment

75
envisaged under the Rules and Conditions of Service, is

unilateral or bilateral in character. In the present case also,

the words “with immediate effect” in the resignation letter

could not be given undue importance, dehors the context,

tenor of language used therein, indicating the circumstances

in which it was written. The resignation letter in the present

case, as has already been discussed hereinabove, appears to

be on account of exasperation and frustration actuated by a

thought, that injustice was being meted out to her by the

very Institution of Judiciary.

85. We further find that the breakneck speed at which the

events have taken place in the present matter, gives rise to a

suspicion, that there is something more than which meets

the eye. On 3rd July 2014, the then D & SJ, Gwalior, who

appears to have joined the service a short while ago,

addressed a complaint to the then RG. The said D & SJ,

Gwalior, in his deposition before the JIC, has clearly

admitted that the instances mentioned in the complaint,

were not within his personal knowledge, but were on the

basis of the complaints made to him by other Judicial

76
Officers. He further admitted that the complaints were with

regard to the period, which was before his joining as D & SJ,

Gwalior. He further admitted that there were no written

complaints by the Judicial Officers and that he had

proceeded to write the complaint on the basis of their oral

complaints. Within days of the said complaint being made,

on 7th July 2014, the Transfer Committee decided to transfer

the petitioner from Gwalior to Sidhi. The transfer order was

issued on 8th July 2014. The petitioner made a

representation on the very next day i.e. 9 th July 2014, and

the same was rejected within two days i.e. 11 th July 2014.

On 11th July 2014, the petitioner made another

representation. However, that also did not find favour with

respondent No. 1 and was rejected on 14 th July 2014, on the

ground that the earlier representation on identical grounds

was already rejected. It is to be noted that 12 th July 2014

was a second Saturday, 13th July 2014 was a Sunday and on

the very next working day i.e. 14 th July 2014, her second

representation was rejected. On 15th July 2014, the petitioner

tendered her resignation. On the next day i.e. 16 th July

77
2014, the MP High Court with the recommendation for

acceptance of the same, forwarded it to respondent No.2. On

the very next day i.e. 17th July 2014, respondent No. 2

accepted the same.

86. It will not be out of place to mention that in some High

Courts, a practice is followed, that whenever a Judicial

Officer having good track record tenders his/her resignation,

an attempt is made by the Senior Judges of the High Court to

counsel and persuade him/her to withdraw the resignation.

Valuable time and money is spent on training of a Judicial

Officer. Losing a good Judicial Officer without counselling

him/her and without giving him/her an opportunity to

introspect and 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.

87. We are therefore of the considered view that in the

peculiar facts and circumstances of the case, the petitioner’s

resignation dated 15th July 2014, could not be construed to

be voluntary. In any case, immediately in a fortnight, on 1 st

78
August 2014, the petitioner had made a representation to

Hon’ble the President of India as well as the Chief Justice of

India, with a copy to the Chief Justice of the MP High Court

for reconsideration of the circumstances under which, she

was left with no option but to resign. Though, it may not be

possible to observe that the petitioner was forced to resign,

however, the circumstances enumerated hereinabove, would

clearly reveal that they were such, that out of frustration, the

petitioner was left with no other alternative.

88. It is contended on behalf of the MP High Court that the

petitioner, who was on probation, had voluntarily tendered

her resignation, which was accepted and as such, led to an

irrevocable severance of relationship of the employer and

employee. In this regard, it is to be noted that the petitioner

was initially appointed on probation for a period of two years

on 1st August 2011. Her probation was completed on 1 st

August 2013. Admittedly, there has been no order extending

the period of probation of the petitioner from 1 st August 2013

onwards. On the contrary, she was assigned with various

additional duties in the year 2013. Not only this, but her

79
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

after­thought.

89. Insofar as the contention with regard to delay is

concerned, we find no merit in the said contention also.

Immediately after the petitioner resigned on 15th July 2014,

she made a representation to Hon’ble the President of India

as well as the Chief Justice of India, with a copy to the Chief

Justice of the MP High Court, requesting to reconsider the

circumstances in which she was left with no option but to

resign. The petitioner thereafter had also pursued a writ

petition before this Court. Thereafter, she had participated

in the proceedings before the JIC and after the JIC expressed

its opinion, that it would be in the interest of justice that she

should be re­instated in service, she made a representation

to the MP High Court, for re­instatement in service. After the

said representation was rejected, she has immediately

approached this Court in the present matter. We therefore

80
find that the petitioner cannot be denied the reliefs on the so­

called grounds of delay and laches.

90. That leaves us with the last submission of the learned

Solicitor General, that if we hold the resignation in the

present case to be actuated by coercion, it will have far­

reaching implications and will open floodgates to the

similarly situated Judicial Officers. Another submission

made is that, if a decision of the Full Court of the MP High

Court is interfered with, it will stigmatize the entire

Institution and have catastrophic effects.

91. We find the said submissions to be totally uncalled for.

At the outset, we have clarified that we are only examining

the correctness and otherwise of the order of transfer, the

rejection of the representations and the question as to

whether the resignation in the facts of the present case,

could be construed to be voluntary or not. We have not at all

gone into the question, regarding the correctness or

otherwise of the decisions of the Full Court of the MP High

Court with regard to the rejection of the petitioner’s

representation. As already discussed hereinabove, there

81
might be reasons and factors which might have weighed with

the Full Court of the MP High Court for taking such a

decision. At the cost of repetition, we reiterate that we have

full respect for the authority of the Full Court to arrive at

such a decision. As such, there is no question of stigmatizing

the Full Court of the MP High Court. It is a different matter,

that if the suggestions made by this Court on more than one

occasion would have been accepted, the exercise of

examining the factual scenario, could have been avoided. In

any case, we have restricted our inquiry only to the facts,

which we found necessary to decide the present case. We

have refrained ourselves from going into the details of the

findings of the JIC, so as to protect the dignity of all

concerned. We have refrained ourselves from mentioning a

single name in our judgment.

92. In that view of the matter, the contention of the learned

Solicitor General with regard to stigmatizing the MP High

Court is without substance.

93. Insofar as the contention, that if this Court holds the

resignation in the present case to be coercive, it will have far­

82
reaching effects on the administration of judiciary is

concerned, the same is also without substance. It will be

apposite to refer to the following observations made by this

Court in the case of Union of India and Others v.

Dhanwanti Devi and Others14:

“9. …….. It is not everything said by a Judge while
giving judgment that constitutes a precedent. The
only thing in a Judge’s decision binding a party is
the principle upon which the case is decided and for
this reason it is important to analyse a decision and
isolate from it the ratio decidendi. According to the
well­settled theory of precedents, every decision
contains three basic postulates—(i) findings of
material facts, direct and inferential. An inferential
finding of facts is the inference which the Judge
draws from the direct, or perceptible facts; (ii)
statements of the principles of law applicable to the
legal problems disclosed by the facts; and (iii)
judgment based on the combined effect of the
above. A decision is only an authority for what it
actually decides. What is of the essence in a
decision is its ratio and not every observation found
therein nor what logically follows from the various
observations made in the judgment. Every judgment
must be read as applicable to the particular facts
proved, or assumed to be proved, since the
generality of the expressions which may be found
there is not intended to be exposition of the whole
law, but governed and qualified by the particular
facts of the case in which such expressions are to
be found……”

14 (1996) 6 SCC 44

83
It could thus be seen that this Court has held that a

decision is an authority only for what it actually decides.

Every judgment must be read as applicable to the particular

facts, proved or assumed to be proved. The generality of the

expressions found there, is not intended to be exposition of

the whole law, but governed and qualified by the particular

facts of the case in which such expressions are to be found.

94. This Court in the case of The Regional Manager and

Another v. Pawan Kumar 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 correctly understood. It is
the rule deducible from the application of law to the
facts and circumstances of a case which constitutes
its ratio decidendi and not some conclusion based
upon facts which may appear to be similar. One
additional or different fact can make a world of
difference between conclusions in two cases even
when the same principles are applied in each case
to similar facts.”

The ratio decidendi is a rule deducible from the

application of law to the facts and circumstances of a case

and not some conclusion based upon facts which may appear

15 (1976) 3 SCC 334

84
to be similar. It has been held that 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.

95. As has already been discussed hereinabove, we may

reiterate that we have decided the present matter only on the

basis of the peculiar facts and circumstances, as are found in

the present matter. We do hope, that in future, similar facts

would never arise for consideration, at least in a lis between

a High Court and a Judicial Officer. However, we may remind

ourselves of the dictum that law is supreme and no one is

above law. It would be apt to reproduce the words of Thomas

Fuller, which have been quoted by Lord Denning, “Be ye

never so high, the law is above you”.

96. Before we part with the judgment, we find it our duty to

place on record our appreciation for the valuable assistance

rendered by Smt. Indira Jaising, learned Senior Counsel and

Shri Tushar Mehta, learned Solicitor General of India.

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

following terms:

85

(i) We hold and declare that the petitioner’s resignation

from the post of Additional District & Sessions Judge,

Gwalior dated 15th July 2014, cannot be construed to

be voluntary and as such, the order dated 17 th July

2014, passed by the respondent No. 2, thereby

accepting the resignation of the petitioner, is quashed

and set aside; and

(ii) The respondents are directed to 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.

98. No order as to cost. Pending application(s), if any, shall

stand disposed of in the above terms.

……….……………………..J.

[L. NAGESWARA RAO]

..…….……………………..J.

[B.R. GAVAI]

NEW DELHI;

FEBRUARY 10, 2022.

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