Judicial Services – Madhya Pradesh Higher Judicial Services (recruitment and Conditions of Service) Rules, 2017 – Transfer 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 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 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 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 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 – 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 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 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 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 decision- making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant’s perception but in larger public interest wherein other more important considerations may outweigh, what would otherwise have been the legitimate expectation of the claimant. 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 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]
1.2 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. [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 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, 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. 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. [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 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 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 15th 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]
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 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 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 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. 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. [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; 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 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. [Para 79][94-B-C]
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 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. [Para 80][94-D-E]
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 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 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. 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. 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) 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 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
Kumar Dubey (1976) 3 SCC 334 : [1976] 3 SCR 540 referred to.
Western Excavating (E.C.C) Ltd. v. Sharp 1978 I.C.R. 22; Lewis v. Motorworld Garage, 1985 WL 311068; Goss v. Exxon 747 F 2nd 885; Pennsylvania State Police v. Nancy Drew Suders 542 US 129- referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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