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

Citation: [2022] 15 S.C.R. 57; 2022 INSC 171

Court: Supreme Court of India

Bench: L. NAGESWARA RAO , BHUSHAN RAMKRISHNA GAVAI

Judgment date: 2022-02-10

Case summary

2022 INSC 171. Supreme Court of India judgment dated 2022-02-10. MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA PRADESH AND ANOTHER. Read the judgment and...

Judgment text

[2022] 15 S. C. R. 57 57 MS. X A v. REGISTRAR GENERAL, HIGH COURT OF MADHYA PRADESH AND ANOTHER (Writ Petition (Civil) No. 1137 of 2018) B FEBRUARY 10, 2022 [L. NAGESWARA RAO AND B. R. GAVAI, JJ.

] Judicial Services – Madhya Pradesh Higher Judicial Services (recruitment and Conditions of Service) Rules, 2017 – Transfer C Policy of Madhya Pradesh High Court – Clause 9, 9(a) – Additional District & Sessions Judge – Re-instatement in Service – Whether the resignation of petitioner was voluntary – As per the Petitioner (Additional District and Session Judge), she was sexually harassed by Justice ‘A’ and thereafter she was transferred to other district – She made a representation praying for an extension so that her D daughter completes her academic session – Her representation was rejected – Consequent to which she resigned – Judges Inquiry Commission (JIC) cleared Justice ‘A’ of all charges – However, JIC found that the transfer of the petitioner was irregular and the petitioner should be re-instated in the service – Her representation E to the Chief Justice of High Court for her reinstatement was rejected by the Full Court twice despite the request made by Supreme Court – Held: The transfer of the petitioner was effected mid-term though she could have very well been transferred in general transfers, to be effected in March-April – Neither the procedure as prescribed under Clause 9 of the Transfer Policy of obtaining the comments F from the District Judge and the Portfolio Judge were complied with, nor the Transfer Committee considered the provisions of Clause 9(a) of the Transfer Policy – The rejection of the second representation depicts total non application of mind by the then RG as well as the then Judge of the Transfer Committee of the High G Court – Respondent failed to take into consideration the factors, which were required to be considered, while deciding the representation – There is no hesitation in holding that the petitioner has established that her transfer order was in contravention of the Transfer Policy and that the rejection of her two representations, in addition of being contrary to the Transfer Policy, were also arbitrary H 57 58 SUPREME COURT REPORTS [2022] 15 S.

C. R. A – As such, the petitioner had discharged her burden and the onus is shifted on the respondent to show that the petitioner’s transfer order was fair and reasonable in the facts and circumstances of the case – Respondent has failed to discharge its burden – In the peculiar facts and circumstances of the case, the petitioner’s resignation, could not be construed to be voluntary – Therefore, resignation of B petitioner is quashed and respondent is directed to re-instate the petitioner. Constitution of India – Art. 12 – High Court as a State – While exercising its functions on the administrative side, the MP High Court would also be a State within the meaning of Article 12 C of the Constitution of India Partly allowing the writ petition, the Court HELD: 1. 1 It could thus be seen that this Court has held that mere reasonable or legitimate expectation of a citizen may not by itself be a distinct enforceable right.

It is further held that D 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 E requiring due consideration in a fair decision- making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant’s perception but in larger public interest wherein other more important considerations may outweigh, what F would otherwise have been the legitimate expectation of the claimant. It has been held that a bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny.

It has been held that the principle of fairness has an important place in the G law of judicial review and that unfairness in the purported exercise of power can be such that it is abuse or excess of power. The court should interfere where discretionary power is not exercised reasonably and in good faith. [Para 40][80-B-E] H MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA 59 PRADESH AND ANOTHER 1. 2 It could thus be seen that though the Transfer Policy A 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 B considered. [Para 41][80-E-F] 2. It could thus be seen that the transfer of the petitioner was effected midterm though she could have very well been transferred in general transfers, to be effected in March April, 2014.

Even in the agenda of the midterm transfers, which were C to be effected on various grounds, petitioner’s name was not included. It was only after the then D & SJ, Gwalior addressed a complaint to the then RG, seeking her transfer out of Gwalior, the matter was placed immediately before the Transfer Committee within days and the Transfer Committee approved the transfer of the petitioner. Immediately after the receipt of the transfer order, D th the petitioner made a representation on 9 July 2014, specifically th pointing out therein that her daughter was studying in Class 12 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 E 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 F file within a period of one week thereafter, with his comments/ opinion. Undisputedly, neither the procedure as prescribed under Clause 9 of the Transfer Policy of obtaining the comments from the District Judge and the Portfolio Judge were complied with, nor the Transfer Committee considered the provisions of Clause G 9(a) of the Transfer Policy. [Para 46 & 47][82-D-H; 83-A] 2.

1 The petitioner had a legitimate expectation in view of Clause 10 of the Transfer Policy to have her case considered for posting at any of the 4 places in the event her request for retention at the then present posting was not considered and as such, she H 60 SUPREME COURT REPORTS [2022] 15 S. C. R. A made the second representation. The rejection of the second representation depicts total non-application of mind by the then RG as well as the then Judge of the Transfer Committee of the MP High Court. The proposal of the then RG was made in a casual manner and accepted by the then Judge on the Transfer Committee in a mechanical manner. The transfer is sought to be B 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 th C made by the then D & SJ, Gwalior on 15 January 2014 for the assessment year 2013, has been found to be ‘very good’. That leaves us with the second ground available under Clause 22 of the Transfer Policy, that a transfer can be made if the grounds exist for initiating an inquiry against such a Judicial Officer. The same is also not the case here. [Para 50 & 51][84-B-E] D 2. 2 It could thus be seen that this Court has held that there is a presumption of validity of the State action and the burden is on the person who alleges violation of Article 14 of the Constitution of India to prove the assertion. It has been further held that where no plausible reason or principle is indicated nor E 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 F 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 G arbitrariness is successfully repelled by showing that the act which was done, was fair and reasonable in the facts and circumstances of the case. [Para 55][86-C-E] 3. The Court has no hesitation in holding that the petitioner has established that her transfer order was in contravention of H MS. X v.

REGISTRAR GENERAL, HIGH COURT OF MADHYA 61 PRADESH AND ANOTHER the Transfer Policy and that the rejection of her two A representations, in addition of being contrary to the Transfer Policy, were also arbitrary. As such, the petitioner has discharged her burden and the onus is shifted on the respondent No. 1 to show that the petitioner’s transfer order was fair and reasonable in the facts and circumstances of the case. The respondent No. 1 B 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 C attached with the representation, which included the fee receipts etc. of the petitioner’s daughter. [Para 56][86-F-H; 87-A] 3.

1 The petitioner was a Judicial Officer and a mother too. The Judicial Officer in her must have been battling with the mother in her. On one hand, was her career as a Judicial Officer; D on the other hand, was the possibility of her daughter’s educational prospects and career coming into jeopardy, if she shifted to the place of posting at Sidhi. A possibility of her mind engrossed with a feeling, that she was subjected to injustice by the very Institution of Judiciary, cannot be ruled away. What was she asking for? A E retention at Gwalior for a period of 8 months till her daughter th completes her Class 12 . In the alternative, posting at any of the 4 cities, which were admittedly in Category ‘B’, where her daughter could have better education facilities, and where the vacancies existed. [Para 79][94-B-C] F 3. 2 Denial of her legitimate expectation could have led to desperation, exasperation and frustration.

The frustration of the petitioner is evident from the language used by her in her resignation letter. She stated that as she had been transferred to th Sidhi in the midacademic session of her daughter’s Class 12 , it had mostly affected the crucial stage of career of her daughter. G She stated that therefore, she was left with no other option but to resign from her post. It appears that in a gruesome battle between a mother and a Judicial Officer, the Judicial Officer lost the battle to the mother. [Para 80][94-D-E] H 62 SUPREME COURT REPORTS [2022] 15 S. C. R. A 4. The breakneck speed at which the events have taken place in the present matter, gives rise to a suspicion, that there is something more than which meets the eye.

It will not be out of place to mention that in some High Courts, a practice is followed, that whenever a Judicial Officer having good track record tenders his/her resignation, an attempt is made by the Senior Judges of B the High Court to counsel and persuade him/her to withdraw the resignation. Valuable time and money is spent on training of a Judicial Officer. Losing a good Judicial Officer without counselling him/her and without giving him/her an opportunity to introspect and re-think, will not be in the interest of either the Judicial Officer C or the Judiciary. This Court finds that it will be in the interest of judiciary that such a practice is followed by all the High Courts. [Para 85 & 86][99-B, G-H; 100-A] Dr. Prabha Atri v. State of U. P. and Others, (2003) 1 SCC 701 : [2002] 5 Suppl. SCR 27; Somesh Tiwari v. D Union of India and Others (2009) 2 SCC 592 : [2008] 17 SCR 711 - relied on. Additional District and Sessions Judge ‘X’. v.

Registrar General, High Court of Madhya Pradesh and Others (2015) 4 SCC 91 : [2014] 13 SCR 300; Syed T. A. E Naqshbandi and Others v. State of Jammu & Kashmir and Others (2003) 9 SCC 592 : [2003] 1 Suppl. SCR 114; Registrar General, High Court of Patna v. Pandey Gajendra Prasad and Others (2012) 6 SCC 357 : [2012] 5 SCR 994; Rajendra Singh Verma (Dead) Through LRs and Others v. Lieutenant Governor (NCT of Delhi) F and Others (2011) 10 SCC 1 : [2011] 12 SCR 496; Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries (1993) 1 SCC 71 : [1992] 2 Suppl. SCR 322; Kumari Shrilekha Vidyarthi and Others v. State of U. P. and Others (1991) 1 SCC 212 : [1990] 1 Suppl. SCR G 625; Kalabharati Advertising v. Hemant Vimalnath Narichania and Others (2010) 9 SCC 437 : [2010] 10 SCR 971; Union of India and Others v. Dhanwanti Devi and Others (1996) 6 SCC 44 : [1996] 5 Suppl. SCR 32; The Regional Manager and Another v. Pawan H MS. X v.

REGISTRAR GENERAL, HIGH COURT OF MADHYA 63 PRADESH AND ANOTHER Kumar Dubey (1976) 3 SCC 334 : [1976] 3 SCR 540 - A referred to. Western Excavating (E. C. C) Ltd. v. Sharp 1978 I. C. R. 22; Lewis v. Motorworld Garage, 1985 WL 311068; nd Goss v. Exxon 747 F 2 885; Pennsylvania State Police v. Nancy Drew Suders 542 US 129- referred to. B Case Law Reference [2014] 13 SCR 300 referred to Para 6 [2003] 1 Suppl. SCR 114 referred to Para 27 C [2012] 5 SCR 994 referred to Para 27 [2011] 12 SCR 496 referred to Para 27 [1992] 2 Suppl. SCR 322 referred to Para 39 [1990] 1 Suppl. SCR 625 referred to Para 54 D [2010] 10 SCR 971 referred to Para 57 [2008] 17 SCR 711 relied on Para 60 [2002] 5 Suppl. SCR 27 relied on Para 83 E [1996] 5 Suppl. SCR 32 referred to Para 93 [1976] 3 SCR 540 referred to Para 94 CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 1137 of 2018. F (Under Article 32 of The Constitution Of India) Ms. Indira Jaising, Anand Grover, Sr. Advs. , Ms. Astha Sharma, Ms.

Mithu Jain, Ms. Mantika Haryani, Sanjeev Kaushik, Advs. for the Petitioner. G Tushar Mehta, SG, Bharat Singh, AAG, Ravindra Shrivastava, Sr. Adv. , Arjun Garg, Rajat Nair, Ms. Garima Tiwari, Aakash Nandolia, Ms. Sagun Srivastava, Ms. Mrinal Elker Mazumdar, Manish Yadav, Ms. Pratibha Yadav, Advs. for the Respondents. H 64 SUPREME COURT REPORTS [2022] 15 S. C. R. A The Judgment of the Court was delivered by B. R. GAVAI, J. 1. The petitioner has approached this Court in the instant writ petition filed under Article 32 of the Constitution of India seeking the following reliefs: B a. “Issue an appropriate writ, order or direction in the nature of mandamus to quash and set aside the order dated 11. 01. 2018 of Chief Justice of the High Court communicated on 25. 1. 18 of Madhya Pradesh passed after the Full Court Meeting, rejecting the application for reinstatement as C 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 D 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 E 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 F to Clause 3(b) of the Madhya Pradesh Higher Judicial Services (Recruitment and Conditions of Service) Rules, 2017 and all service benefits and all consequential reliefs;” 2.

The bare minimum facts, necessary for adjudication of the present petition are as under: G The petitioner was selected in the competitive examination of Madhya Pradesh Higher Judicial Services at District Entry Level (direct nd recruitment from Bar) conducted in the year 2011, and stood 2 in the nd said examination. On her selection, the petitioner was posted as a 2 to st 1 Additional District and Sessions Judge (hereinafter referred to as the H MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA 65 PRADESH AND ANOTHER [B. R. GAVAI, J. ] st st “AD & SJ”) at Gwalior on 1 August 2011. On 1 October 2012, the A th st petitioner was posted as VIII AD & SJ, Gwalior.

In the 1 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 B ‘A’”) of the High Court of Madhya Pradesh at Gwalior Bench (hereinafter referred to as the “MP High Court”), she was given ‘C/good’ grading. The petitioner was assigned various additional responsibilities in the year nd 2013. In her 2 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’. C 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 rd a complaint dated 3 July 2014 against her to the MP High Court.

It is th further her case that on 7 July 2014, the Transfer Committee of the D 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 th th order was conveyed to the petitioner on 8 July 2014. On 9 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 E an extension of 8 months in Gwalior so that her daughter (studying in th Class 12 ) completes her academic session. The same came to be th rejected on 11 July 2014. The petitioner, who was unaware about the rejection of her first representation, sent her second representation on th 11 July 2014, seeking alternative posting to 4 cities namely Sehore, Raisen, Dewas or Ujjain so that her daughter could continue with her F th education, which also came to be rejected on 14 July 2014. th 4.

The petitioner tendered her resignation on 15 July 2014, which was accepted by the Government of Madhya Pradesh, Law and th Legislative Affairs Department on 17 July 2014. The petitioner was th informed about the acceptance of her resignation on 18 July 2014. G st 5. The petitioner thereafter on 1 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: H 66 SUPREME COURT REPORTS [2022] 15 S. C. R. A (i) Appropriate action be taken, after fact-finding; (ii) Re-consider circumstances under which petitioner was coerced & exerted duress upon, until the only option she had was to resign; (iii) Institute an appropriate mechanism for redressal of B grievances like the above, of sub-ordinate services judicial officers. st th 6.

Between 1 August 2014 and 18 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 C case of Additional District and Sessions Judge ‘X’. v. Registrar 1 General, High Court of Madhya Pradesh and Others . 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 D Justice of India sought a preliminary inquiry report from the then Chief Justice of the Karnataka High Court and on receipt thereof, constituted an In-House Committee headed by the then Chief Justice of Allahabad nd High Court. The said In-House Committee submitted its report on 2 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 E said Motion was admitted by the Chairman, Rajya Sabha, the then Hon’ble th Vice-President of India on 25 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, F 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 th of the JIC as the Presiding Officer. The JIC submitted its report on 15 December 2017, which was tabled before the Rajya Sabha, and the Rajya Sabha cleared Justice ‘A’ of all charges. G 8.

However, the JIC found that the transfer of the petitioner was irregular and it was further found that in the circumstances prevailing then, the transfer of the petitioner to Sidhi had become unbearable for her to continue in service, resulting in her resignation. The JIC, therefore, 1 H (2015) 4 SCC 91 MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA 67 PRADESH AND ANOTHER [B. R. GAVAI, J. ] expressed its opinion that in the interest of justice, the petitioner should A be re-instated in service, in case she intends to re-join the service. The JIC clarified that it was not within the purview of the Reference made to them. 9. Pursuant to the recommendation of the JIC, the petitioner addressed a representation to the then Chief Justice of MP High Court B st th on 21 December 2017 for her re-instatement in service. On 25 January 2018, the MP High Court through its RG communicated the rejection of th the petitioner’s representation by a Full Court in its meeting held on 11 January 2018.

The petitioner thereafter filed the present petition for the reliefs which have already been reproduced hereinabove. C 10. During the pendency of this petition, this Court passed an th order on 13 February 2019, requesting the MP High Court for reconsideration of the issue of re-instatement of the petitioner in service. The Full Court of the MP High Court rejected the said representation in th its meeting held on 15 February 2019. The Bench of this Court, which th st had passed the order dated 13 February 2019, vide order dated 21 D 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 E re-consider the issue of petitioner’s re-instatement in service and that after re-instatement, she could be sent on deputation outside the State or she could be adjusted in some other State. It is the case of the petitioner that though the said suggestion was acceptable to her, the MP High Court re-iterated its stand. In this background, the matter has come up before us. F 11. At the outset, it is to be noted that, counsel for the petitioner clarified that the petitioner is not pressing the present matter on the ground of sexual harassment by Justice ‘A’, but is limiting her submissions with regard to the transfer order being illegal and mala fide, and the consequent resignation amounting to constructive dismissal. We have G 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. H 68 SUPREME COURT REPORTS [2022] 15 S. C. R. A 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 th B Pradesh incorporated on 12 January 2012 (hereinafter referred to as the “Transfer Policy”).

She submitted that as per the Transfer Policy, th the annual transfers normally take place by 15 of March every year st and the Judicial Officers transferred are given time to join up to 1 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 C 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 th was transferred mid-term on 7 July 2014. It is submitted that the mid- D term 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 E current posting and is in the final year of the Board Examination or University Examination and the Educational Institution where the daughter is studying, does not have hostel facility for girls, the said Judicial Officer is permitted to stay over the prescribed period. She further submitted that the transfer of the petitioner was also violative of Clause F 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. G 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, H MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA 69 PRADESH AND ANOTHER [B. R. GAVAI, J. ] Gwalior. It is submitted that the JIC had further found from the evidence A of the then Judge, MP High Court, who was a Member of the Transfer Committee that, the transfer was made solely on the basis of the complaint made by the then D & SJ, Gwalior. 16. Smt. Jaising further submitted that from the evidence of the then Judge on the Transfer Committee recorded by the JIC, it was clear B 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 C 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: 2 Western Excavating (E. C. C) Ltd. v. Sharp ; 3 D Lewis v. Motorworld Garage 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: 4 Goss v. Exxon ; E 5 Pennsylvania State Police v. Nancy Drew Suders 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 F 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 G High Court has failed to give justice to the petitioner inasmuch as her grievance was not considered. She submitted that immediately after the 2 1978 I. C. R. 22 3 1985 WL 311068 4 nd 747 F 2 885 5 542 US 129 H 70 SUPREME COURT REPORTS [2022] 15 S. C. R. A petitioner had tendered her resignation, she had made a representation st within a fortnight i. e. on 1 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 B the august institution of Judiciary. She therefore prayed that the petition be allowed and the petitioner be re-instated in service with continuity. 20. Per contra, Shri Tushar Mehta, the learned Solicitor General appearing on behalf of the respondents submitted that the allegations made by the petitioner with regard to sexual harassment are found to be C not established by the JIC. He submitted that the said findings were th recorded as back as on 15 December 2017, which were not challenged, and in any case, cannot be questioned or assailed in ancillary proceedings like the present one. 21. Shri Mehta further submitted that though, the findings of the D 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 E 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 F of the petitioner with regard to coercion is that she had to resign on account of mid-term transfer order. He submitted that a transfer is an incidence of service. He submitted that a mid-term transfer cannot be said to be “coercion” so as to force a person to resign from the service.

He submitted that for establishing a case of coercion, it will be necessary G 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 H MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA 71 PRADESH AND ANOTHER [B. R. GAVAI, J. ] in the proceedings under Article 32 of the Constitution of India, it will not A be possible to arrive at such a finding. 23. Shri Mehta submitted that in any case, such a plea would not be available to a Judicial Officer, who is discharging the sovereign function of dispensing justice.

He submitted that the Judicial Officers are trained to be independent, fearless, non-impulsive and to act in accordance with B law and as such, the concept which applies to a workman cannot be applied to a Judicial Officer. He further submitted that the allegations made by the petitioner with regard to sexual harassment were made only after she resigned from the service. 24. Shri Mehta submitted that any decision in the present C proceedings will have far-reaching effects in the future. He submitted that if a mere circumstance of mid-term transfer coupled with inconvenient family circumstances is considered by this Court to be “coercion” to resign from service, it will open the floodgates of litigations. It is submitted that if such a view is taken by this Court, all similarly D 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 E has taken a unanimous decision on more than one occasion to reject the petitioner’s representation regarding re-instatement in service. He submitted that the observations made by the JIC with regard to the re-instatement of the petitioner were beyond the scope of its “Terms of Reference” and as such, the Full Court of the MP High Court has rightly rejected the representation of the petitioner. He submitted that if a F 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 G 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. H 72 SUPREME COURT REPORTS [2022] 15 S. C. R. A 27. Shri Mehta submitted that the scope of judicial review by this Court of a decision of the Full Court of a High Court, is very limited. He submitted that this Court cannot sit in an appeal over the decision of the Full Court of a High Court. An interference would be permitted only in the rarest of rare cases. He relies on the following judgments of this Court in support of this proposition: B Syed T. A. Naqshbandi and Others v. State of Jammu & 6 Kashmir and Others ; Registrar General, High Court of Patna v. Pandey Gajendra 7 Prasad and Others ; C Rajendra Singh Verma (Dead) Through LRs and Others v.

8 Lieutenant Governor (NCT of Delhi) and Others 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 D th th Full Court of the MP High Court dated 11 January 2018 and 15 February 2019. We are conscious of the fact that the scope of judicial review of a decision of the Full Court of a High Court is extremely narrow and we cannot sit in an appeal over the decision of the Full Court of a High Court. There could be various factors and reasons which E could have weighed with the Full Court of the MP High Court while rejecting the representation made by the petitioner in its resolutions dated th th 11 January 2018 and 15 February 2019. We have full respect for the authority of the Full Court of the MP High Court to arrive at such a decision. F 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 th Gwalior to Sidhi dated 8 July 2014 is legal; G th (ii) As to whether the orders of the MP High Court dated 11 th July 2014 and 14 July 2014, rejecting the petitioner’s 6 (2003) 9 SCC 592 7 (2012) 6 SCC 357 8 (2011) 10 SCC 1 H MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA 73 PRADESH AND ANOTHER [B. R. GAVAI, J. ] th th representations dated 9 July 2014 and 11 July 2014 A respectively, were legal; and th (iii) As to whether the resignation of the petitioner dated 15 July 2014 can be considered to be voluntary or the one which has been forced due to circumstances. B 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 C 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, D 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 E to go into that issue.

We are of the considered view that the law as enunciated by this Court with regard to scope of judicial review of a State action, would squarely cover the issue. 34. With this note, we proceed to examine the facts in the present matter. F th 35. No doubt that the JIC, in its Report dated 15 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 G 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 rd dated 3 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 H 74 SUPREME COURT REPORTS [2022] 15 S. C. R. A of the petitioner was on administrative grounds in view of the provisions of Clause 22 of the Transfer Policy, the same was not established. The JIC has further come to a finding that the circumstances became unbearable for the petitioner, resulting in her resignation from service. 36. However, it is sought to be urged vehemently on behalf of the B 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 re-examine the issue, independent of the findings of the JIC. C 37. It is not in dispute that the Transfer Policy has been incorporated th by the MP High Court on 12 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 same is not D 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: E (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 Annexure-A; (ii) In accordance with Clause 4 of the Transfer Policy, the F annual transfer of Judicial Officers shall be effected th normally by the 15 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; G (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 H MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA 75 PRADESH AND ANOTHER [B. R. GAVAI, J.

] particular place, the period of 6 months or above shall be A 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. Sub-clause (a) of Clause 9 specifies a ground, that such an extension would be available if a daughter (not son) of the B 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 Officers C seeking over-stay 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 D considered only if the facts with regard to education of the daughter and non-availability 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 over- E stay of the Officer. Sub-clause (b) of Clause 9 deals with the cases where over-stay is sought on the ground of illness of a Judicial Officer, his spouse or children or aged parents.

Sub-clause (c) of Clause 9 is a residuary clause, which enables such exceptions on substantial reasons, which in the opinion of the District Judge, the Portfolio Judge or the F Chief Justice, are justified; Clause 9 of the Transfer Policy further provides that if any Judicial Officer submits such a representation covered by sub-clause (a), (b) or (c), to his District Judge for being forwarded to the Registrar General, it will be obligatory for G 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, H 76 SUPREME COURT REPORTS [2022] 15 S. C. R.

A 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 minimum three and maximum five B 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 C 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; D (viii) Clause 14 of the Transfer Policy provides that the Judicial Officer, who is on deputation or holding an ex-cadre 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 E 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’, F 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 th Registrar General shall, by 15 of February each year, prepare a list of Officers, who will be completing their G tenure/posting. It further provides that the Judicial Officers whose request for over-stay has been allowed will be excluded from that list and the Officers whose request for pre-mature 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 H MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA 77 PRADESH AND ANOTHER [B. R. GAVAI, J. ] Clause.

The purpose appears to be, to ensure an equitable A 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 B 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 C 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 D Medical Board, would 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 E 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 F prescribed tenure or in mid-term 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; G (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; H 78 SUPREME COURT REPORTS [2022] 15 S. C. R. A (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 B 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 C of transfer; (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 D 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 E 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 F should be considered for permitting the Judicial Officers to 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 G 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 9 Corporation of India v. M/s Kamdhenu Cattle Feed Industries : 9 H (1993) 1 SCC 71 MS. X v.

REGISTRAR GENERAL, HIGH COURT OF MADHYA 79 PRADESH AND ANOTHER [B. R. GAVAI, J. ] “8. The mere reasonable or legitimate expectation of a citizen, in A 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 non-arbitrariness, a necessary concomitant of the rule of law. B Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant’s perception but in larger public interest wherein other more important C 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 D 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 E 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 F out that “the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject-matter”. 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 G 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 holds that court should H 80 SUPREME COURT REPORTS [2022] 15 S. C. R. A 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 B 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 non-arbitrariness, which is a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in C the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant’s perception but in larger public interest wherein other more important considerations may outweigh, what would otherwise have been the legitimate expectation of the claimant.

It has been held that a bona fide decision of the public D authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. It has been held that the principle of fairness has an important place in the law of judicial review and that unfairness in the purported exercise of power can be such that it is abuse or excess of power. The court should interfere where discretionary power is not exercised reasonably and in good faith. E 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 F transfer are being considered. 42. In this background, we will examine the undisputed facts.

Undisputedly, in the chart which was prepared by the then RG for ensuring the general transfers, which were to be effected in the month of March 2014, the petitioner’s name did not figure. G 43. It is further clear that in the agenda prepared for consideration of mid-term 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 H MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA 81 PRADESH AND ANOTHER [B. R. GAVAI, J. ] Court before the JIC, that the basis for the transfer of the petitioner was A rd the complaint dated 3 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 th taken by the Transfer Committee on 7 July 2014, and was approved by the Competent Authority on the very same day. The said transfer order B th was conveyed to the petitioner on the next day that is on 8 July 2014. 44. The petitioner, on coming to know about her transfer order, th made a representation on the very next day i. e. , on 9 July 2014. In the said representation, the petitioner had categorically stated that her elder th daughter was a brilliant child, studying in Class 12 and was preparing C 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 D Competent Authority to allow her to stay in Gwalior till her daughter th completes her Class 12 examination. The said representation was th rejected within two days i. e. on 11 July 2014. The then RG made an endorsement to the following effect: “Hon’ble the transfer Committee in its meeting held on E 7. 7. 2014 has recommended transfer of Smt. Madan from Gwalior to Sidhi on administrative 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. F 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 G consideration. ” 45.

After rejection of her first representation, the petitioner made th another representation to the respondent No. 1 on 11 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 H 82 SUPREME COURT REPORTS [2022] 15 S. C. R. th A daughter could continue with her education. The then RG, on 14 July 2014, placed the said representation of the petitioner before the Transfer Committee with the following endorsement: th “Kind attention is invited to another representation (dated 11 th July, 2014) submitted by Ms. ‘X’, 8 A. D. J. , Gwalior regarding B her transfer from Gwalior to Sidhi, almost on identical grounds pertaining to education of her daughters. The Committee has already considered the representation dated th 9 July, 2014 of Ms. ‘X’ and has been pleased to reject the same.

The matter is submitted again for kind consideration and orders in C th view of the repeat representation dated 11 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. ” D 46. It could thus be seen that the transfer of the petitioner was effected mid-term though she could have very well been transferred in general transfers, to be effected in March-April, 2014. Even in the agenda of the mid-term transfers, which were to be effected on various grounds, petitioner’s name was not included. It was only after the then D & SJ, E Gwalior addressed a complaint to the then RG, seeking her transfer out of Gwalior, the matter was placed immediately before the Transfer Committee within days and the Transfer Committee approved the transfer of the petitioner.

Immediately after the receipt of the transfer order, the th petitioner made a representation on 9 July 2014, specifically pointing th F out therein that her daughter was studying in Class 12 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 G 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. H MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA 83 PRADESH AND ANOTHER [B. R. GAVAI, J. ] 47.

Undisputedly, neither the procedure as prescribed under Clause A 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 sub-clause (a) of Clause 9 of the Transfer Policy provided, B 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 C 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. From the perusal of the Transfer Policy, it is clear D 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 sub-clause (a) of Clause 9 of the Transfer Policy. It is a different matter that inviting E 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 F said representation so that her daughter could continue with her education.

However, the then RG made an endorsement that the said representation th is on similar ground as mentioned in the earlier representation dated 9 July 2014, which has already been rejected. The Transfer Committee endorsed that in view of the order already passed in the earlier th representation dated 9 July 2014, no further reconsideration is to be G 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 H 84 SUPREME COURT REPORTS [2022] 15 S. C. R. A 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 B 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 non-application of mind by the then RG as well as the then Judge of the Transfer Committee of the MP High Court. The proposal of the then RG was made in a casual manner and accepted C 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 mid-term, is that the performance of such Judicial Officer is found to be below the norms prescribed. The same is admittedly not D available in the present case.

The petitioner’s performance in the th assessment made by the then D & SJ, Gwalior on 15 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 E 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 Transfer Committee has specifically admitted in his F 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 G 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 H MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA 85 PRADESH AND ANOTHER [B. R. GAVAI, J. ] petitioner was effected on the basis of the complaint made by the then A 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. 53.

The learned Solicitor General argued that vide the impugned th transfer order dated 8 July 2014, as many as 26 Judicial Officers were B 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 ex-cadre 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 C 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. D 54.

At this juncture, we may refer to the following observations made by this Court in the case of Kumari Shrilekha Vidyarthi and 10 Others v. State of U. P. and Others : “33. No doubt, it is true, as indicated by us earlier, that there is a E 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 F 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 G 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 10 (1991) 1 SCC 212 H 86 SUPREME COURT REPORTS [2022] 15 S. C. R. A 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 B limited to the grounds of illegality, irrationality and procedural impropriety.

In the case 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 C 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 D 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 E be more appropriate. It has been held that the attack on the ground of arbitrariness is successfully repelled by showing that the act which was done, was fair and reasonable in the facts and circumstances of the case. 56. We have no hesitation in holding that the petitioner has F 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 G 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 H MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA 87 PRADESH AND ANOTHER [B. R. GAVAI, J. ] Judge had not looked into the annexures attached with the representation, A which included the fee receipts etc. of the petitioner’s daughter. 57. We may gainfully refer to the following observations made by this Court in the case of Kalabharati Advertising v. Hemant Vimalnath 11 Narichania and Others : B “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 C 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 D 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 : E 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 F SCC 776] and Union of 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 G 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 11 (2010) 9 SCC 437 H 88 SUPREME COURT REPORTS [2022] 15 S. C. R. A 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 B ‘A’, we do not find it necessary to go into that aspect of the matter. 60. It will also be relevant to refer to the following observations made by this Court in the case of Somesh Tiwari v. Union of India 12 and Others : “16. Indisputably an order of transfer is an administrative order. C 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 D 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 E 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 F 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 based on an irrelevant ground, such an order would not be sustainable in law. G 62. At the cost of repetition, we may say that though it is the case th of the respondent No. 1 that the transfer order of the petitioner dated 8 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 12 H (2009) 2 SCC 592 MS. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA 89 PRADESH AND ANOTHER [B. R. GAVAI, J. ] on the basis of the complaint made by the then D & SJ, Gwalior. It is a 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 th order dated 8 July 2014, would squarely be covered by ‘malice in law’ B 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. 63. That leaves us with the next issue as to whether the orders of th th the Transfer Committee dated 11 July 2014 and 14 July 2014, rejecting th th C the petitioner’s representations dated 9 July 2014 and 11 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 D 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 E 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 expected is that the matter should be considered in reference to the provisions made in the F 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 G 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 H 90 SUPREME COURT REPORTS [2022] 15 S. C. R. A educational facilities including CBSE School are available at Sidhi”. It is th further stated that the Transfer Committee, in its meeting held on 7 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 and behaviour of the petitioner.

On the said proposal, the then Judge on the Transfer Committee had directed B 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. th 65. Insofar as the second representation dated 11 July 2014 is C 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 D had sought retention at Gwalior, in the second representation, she had requested for posting at any of the 4 places as aforesaid.

However, the th then RG made an endorsement on the file on 14 July 2014 to the effect that “the said representation was made almost on identical grounds as were made in the first representation, which was already rejected on th 11 July 2014”. The

Source: Supreme Court of India. Dataset: Dattam Labs. CC BY 4.0. Text extracted automatically; compare with the source PDF for layout and accuracy.