Sarita Choudhary vs High Court of Madhya Pradesh & Another

Held: ACRs which were adverse in nature were either not communicated in time and even after an explanation was received, no effort to expunge the adverse remarks made in the said ACRs on the basis of a consideration of the explanation, they were simply rejected – Reference to the consistent “poor performance” not in accordance with the record, the record speaks otherwise – Inherent contradictions in the ACRs – ‘Other material’ - complaints were either concluded or pending against them – If the complaints formed the foundation for these officers to be terminated, an opportunity had to be given before termination having regard to Art. 311 read with relevant Conduct Rules – Termination of the two judicial officers is punitive, arbitrary and thus, illegal – Terminations were by way of punishment as the surrounding circumstances show that the terminations were, inter alia, founded on the allegations of the complaints of misconduct and “inefficiency” and were stigmatic in nature – Even though many of the complaints against these officers may have been closed or resulted in advisories/warnings, they could not have been the basis for the impugned terminations – Resolutions of the Administrative Committee followed by the Resolution of the Full Court, orders of the High Court and the Government Orders insofar as the two officers, illegal and contrary to the established principles of law and, liable to be set-aside – Thus, the termination orders vis-a-vis the petitioners set aside including the Resolution and the order/letter of the High Court, order of the State Government and all consequential adverse orders, if any – Petitioners reinstated in their service with all consequential benefits – Constitution of India – Art. 311 – Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules, 1994 – r.11(c). [Paras 16, 16.1, 18]

Service law – Probation – Services of a probationer – When, non-stigmatic termination:

Held: Services of a probationer could result either in a confirmation in the post or ended by way of termination simpliciter – However, if a probationer is terminated from service owing to a misconduct as a punishment, the termination would cause a stigma on him – If a probationer is unsuitable for a job and has been terminated then such a case is non-stigmatic as it is a termination simpliciter – Thus, the performance of a probationer has to be considered in order to ascertain whether it has been satisfactory or unsatisfactory – If the performance of a probationer has been unsatisfactory, he is liable to be terminated by the employer without conducting any inquiry – No right of hearing is reserved with the probationer and hence, there would be no violation of principles of natural justice in such a case – Test is, whether, in a given case the termination is simpliciter or by way of punishment – Even though a probationer has no right to hold a post, it would not imply that the mandate of Arts.14 and 16 of the Constitution could be violated inasmuch as there cannot be any arbitrary or discriminatory discharge or an absence of application of mind in the matter of assessment of performance and consideration of relevant materials – Thus, in deciding whether, in a given case, a termination was by way of punishment or not, the courts to look into the substance of the matter and not the form – Constitution of India – Arts 14, 16. [Paras 12, 12.3]

Gender justice – Women in Indian judiciary – Role in promoting gender equality – Prevention of discrimination during pregnancy and maternity – Consequences of miscarriage – Elucidation:

Held: There has been entry of women into the legal profession, the retention of women and growth of their numbers in the profession, and the advancement of women to senior echelons of the profession – Greater representation of women in the judiciary, would improve the overall quality of judicial decision making – Advancing women’s greater participation in the judiciary also plays a role in promoting gender equality – Freedom from discrimination or equal protection of the laws during pregnancy and maternity of a woman are precious rights for women workforce – If pregnancy results in the birth of a child, it brings not only joy to the parents of the child but also sense of fulfilment to the young mother – On the other hand, a pregnancy miscarriage has deep physical, mental and psychological aftereffects on a woman – Though there is varying amount of physical aftereffects, the psychological and social effects may be more severe and long lasting – Miscarriage affects a person’s identity, leading to disappointments and challenges to motherhood identity and role, stigma and isolation, amongst other aspects – It is not enough to find comfort solely in the growing number of female judicial officers if a sensitive work environment and guidance cannot be secured for them – High Court erred in acting agnostic to, inter alia, claims of insubordination of petitioner-S and acute medical and emotional conditions battled by petitioner-A – Despite still reeling from the effects of a severe case of Covid-19 and a miscarriage, the ACR for 2021 of petitioner-A was downgraded by the Portfolio Judge from ‘B-Very Good’ to ‘C-Good’ only considering ‘pendency and disposal’ – While gender is not a rescue for poor performance but it is a critical consideration which must weigh for holistic decision-making at certain times and stages of a woman judicial officer. [Paras 17-17.4, 17.7]