MS. X vs REGISTRAR GENERAL, HIGH COURT OF MADHYA PRADESH

MS. X vs REGISTRAR GENERAL, HIGH COURT OF  MADHYA PRADESH - Supreme Court Case 2022

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION 

WRIT PETITION (CIVIL) NO. 1137 OF 2018

MS. X          ...PETITIONER(S)

VERSUS

REGISTRAR GENERAL, HIGH COURT OF 

MADHYA PRADESH AND ANOTHER      ...RESPONDENT(S)

J U D G M E N T

B.R. GAVAI, J.

1. The petitioner has approached this Court in the instant

writ petition filed under Article 32 of the Constitution of India

seeking the following reliefs:

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

nature of mandamus to quash and set aside the order

dated 11.01.2018 of Chief Justice of the High Court

communicated on 25.1.18 of Madhya Pradesh passed

after the Full Court Meeting, rejecting the application

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

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

Natural Justice; 

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

nature   of   mandamus   declaring   that   the   Petitioner's

resignation from the post of Additional District Judge

VIII, Gwalior dated 15.07.2014 amounts to constructive

dismissal due to the employer's conduct which applies

in   the   Statutory   context   where   the   term

"Dismissal/dismissed" is used; 

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

nature of mandamus directing the reinstatement of the

Petitioner as an Additional District and Sessions Judge

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

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

Judges(Selection Grade) of the Gradation List according

to   Clause   4   of   the   Madhya   Pradesh   Higher   Judicial

Services (Recruitment and Conditions of Service) Rules,

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

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Madhya Pradesh Higher Judicial Services (Recruitment

and Conditions of Service) Rules, 2017 and all service

benefits and all consequential reliefs;”

2. The bare minimum facts, necessary for adjudication of

the present petition are as under:

The   petitioner   was   selected   in   the   competitive

examination of Madhya Pradesh Higher Judicial Services at

District Entry Level (direct recruitment from Bar) conducted

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

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

Additional District and Sessions Judge (hereinafter referred

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

October 2012, the petitioner was posted as VIIIth  AD & SJ,

Gwalior.   In the 1st  Annual Confidential Report (hereinafter

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

January,   2013   by   the   then   District   and   Sessions   Judge

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

then Portfolio/Administrative Judge (hereinafter referred to

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

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Gwalior   Bench   (hereinafter   referred   to   as   the   “MP   High

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

assigned various additional responsibilities in the year 2013.

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

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

was graded ‘B/very good’.  

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

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

due to the said sexual harassment and at the instance of

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

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

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

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

approved the transfer of the petitioner from Gwalior to Sidhi.

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

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

representation   to   the   then   Registrar   General   (hereinafter

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

extension   of   8   months   in   Gwalior   so   that   her   daughter

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

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

who   was   unaware   about   the   rejection   of   her   first

representation, sent her second representation on 11th July

2014, seeking alternative posting to 4 cities namely Sehore,

Raisen, Dewas or Ujjain so that her daughter could continue

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

July 2014.

4. The   petitioner   tendered   her   resignation   on   15th  July

2014, which was accepted by the Government of Madhya

Pradesh, Law and Legislative Affairs Department on 17th July

2014.  The petitioner was informed about the acceptance of

her resignation on 18th July 2014.

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

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

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

Court, with the following prayer:

(i) Appropriate action be taken, after fact­finding;

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(ii) Re­consider   circumstances   under   which   petitioner

was coerced & exerted duress upon, until the only

option she had was to resign;

(iii) Institute an appropriate mechanism for redressal of

grievances like the above, of sub­ordinate services

judicial officers.

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

certain events took place with regard to the Inquiry into the

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

judgment passed by this Court in the case of  Additional

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

High   Court   of  Madhya  Pradesh  and  Others1

.   The said

events are duly recorded in the said judgment and therefore,

it is not necessary to refer to them in detail.

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

the Chief Justice of India sought a preliminary inquiry report

from the then Chief Justice of the Karnataka High Court and

on   receipt   thereof,   constituted   an   In­House   Committee

1 (2015) 4 SCC 91

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headed by the then Chief Justice of Allahabad High Court.

The said In­House Committee submitted its report on 2nd

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

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

Parliament   in   the   Rajya   Sabha.     The   said   Motion   was

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

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

Judges   Inquiry   Committee   (hereinafter   referred   to   as   the

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

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

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

Justice of the Karnataka High Court and a Senior Advocate

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

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

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

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

was tabled before the Rajya Sabha, and the Rajya Sabha

cleared Justice ‘A’ of all charges.

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

petitioner was irregular and it was further found that in the

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circumstances prevailing then, the transfer of the petitioner

to   Sidhi   had   become   unbearable   for   her   to   continue   in

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

expressed   its   opinion   that   in   the   interest   of   justice,   the

petitioner   should   be   re­instated   in   service,   in   case   she

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

not within the purview of the Reference made to them.

9. Pursuant   to   the   recommendation   of   the   JIC,   the

petitioner   addressed   a   representation   to   the   then   Chief

Justice of MP High Court on 21st December 2017 for her reinstatement in service.  On 25th January 2018, the MP High

Court   through   its   RG   communicated   the   rejection   of   the

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

on 11th  January 2018.   The petitioner thereafter filed the

present   petition   for   the   reliefs   which   have   already   been

reproduced hereinabove.

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

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

Court for reconsideration of the issue of re­instatement of the

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

rejected the said representation in its meeting held on 15th

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

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

February 2019, expressed that the said Bench should not

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

placed before another Bench. It appears that thereafter again

suggestions   were   made   by   this   Court   to   the   parties   to

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

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

should re­consider the issue of petitioner’s re­instatement in

service and that after re­instatement, she could be sent on

deputation outside the State or she could be adjusted in

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

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

re­iterated its stand.   In this background, the matter has

come up before us.

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

petitioner   clarified   that   the   petitioner   is   not   pressing   the

present   matter   on   the   ground   of   sexual   harassment   by

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

transfer   order   being   illegal   and  mala   fide,  and   the

consequent resignation amounting to constructive dismissal.

We   have   therefore   refrained   ourselves   from   making   any

reference to the allegations of sexual harassment made in the

petition.  We have also refrained ourselves from mentioning

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

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

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

who were directly or indirectly involved in the present case.

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

Counsel appearing on behalf of the petitioner and Mr. Tushar

Mehta, the learned Solicitor General of India appearing on

behalf of the respondents.

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

was bound by the Transfer Guidelines/Policy of the High

Court of Madhya Pradesh incorporated on 12th January 2012

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

submitted   that   as   per   the   Transfer   Policy,   the   annual

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

the Judicial Officers transferred are given time to join up to

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

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

normal tenure of a Judicial Officer at a particular posting is

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

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

transferred in March 2014 as she had already completed

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

that however, the petitioner was transferred mid­term on 7th

July 2014. It is submitted that the mid­term transfer as

provided under Clause 22 of the Transfer Policy can be made

on   the   limited   grounds   mentioned   therein.     Smt.   Jaising

submitted that none of the grounds as mentioned in Clause

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

petitioner.

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

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

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

Board   Examination   or   University   Examination   and   the

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Educational Institution where the daughter is studying, does

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

permitted to stay over the prescribed period.   She further

submitted   that   the   transfer   of   the   petitioner   was   also

violative of Clause 16 of the Transfer Policy inasmuch as a

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

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

However,   the   petitioner   was   directly   transferred   from

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

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

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

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

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

administrative grounds, but on the grounds of the complaint

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

JIC had also found that the transfer of the petitioner was

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

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

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

was a Member of the Transfer Committee that, the transfer

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

then D & SJ, Gwalior.

16. Smt. Jaising further submitted that from the evidence

of the then Judge on the Transfer Committee recorded by the

JIC, it was clear that the representations of the petitioner

were also not considered by the Transfer Committee in the

right earnest.

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

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

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

not   a   resignation   in   law   but   a   forced   resignation,   which

amounts   to   constructive   discharge.   She   relies   on   the

following   judgments   of   the   Court   of   Appeal   of   United

Kingdom in support of this proposition:

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

;

Lewis v. Motorworld Garage3

2 1978 I.C.R. 22

3 1985 WL 311068

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She further relied on the following judgments of the US

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

work environment and institutional failure:

Goss v. Exxon4

;

Pennsylvania State Police v. Nancy Drew Suders5

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

the   Elimination   of   All   Forms   of   Discrimination   Against

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

a woman should be able to work and discharge family duties

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

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

able to simultaneously discharge her duties as a Judicial

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

transfer order was in violation of Article 11 of CEDAW.

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

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

inasmuch   as   her   grievance   was   not   considered.     She

submitted that immediately after the petitioner had tendered

4 747 F 2nd 885

5 542 US 129

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her   resignation,   she   had   made   a   representation   within   a

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

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

Chief Justice of the MP High Court for reconsidering the

entire issue.   She further submitted that, as suggested by

this Court, the petitioner is foregoing her claims towards

back   wages   and   is   only   interested   in   serving   the   august

institution   of   Judiciary.     She   therefore   prayed   that   the

petition   be   allowed   and   the   petitioner   be   re­instated   in

service with continuity.

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

General appearing on behalf of the respondents submitted

that the allegations made by the petitioner with regard to

sexual harassment are found to be not established by the

JIC.  He submitted that the said findings were recorded as

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

and   in   any   case,   cannot   be   questioned   or   assailed   in

ancillary proceedings like the present one.  

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21. Shri Mehta further submitted that though, the findings

of the JIC with regard to transfer of the petitioner being

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

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

submitted   that   assuming   that   the   transfer   order   of   the

petitioner was irregular and even mala fide, the same having

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

thereof cannot be challenged in the present proceedings.  He

submitted   that   the   concept   of   “coercion   resulting   into

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

countries with regard to labour jurisprudence, and that in

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

is duly established by leading evidence.

22. The learned Solicitor General submitted that the only

contention of the petitioner with regard to coercion is that

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

submitted   that   a   transfer   is   an   incidence   of   service.   He

submitted that a mid­term transfer cannot be said to be

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

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

be necessary for a person to establish, by leading cogent

evidence, that not only unbearable pressure was built but

such   a   pressure   was   intended   not   just   to   trouble   an

employee or to victimize an employee but to ensure that the

employee quits the job.   He submitted that neither such

circumstances are pleaded nor asserted by the petitioner. In

any case, he submitted that in the proceedings under Article

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

at such a finding.  

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

would   not   be   available   to   a   Judicial   Officer,   who   is

discharging the sovereign function of dispensing justice.  He

submitted   that   the   Judicial   Officers   are   trained   to   be

independent,   fearless,   non­impulsive   and   to   act   in

accordance with law and as such, the concept which applies

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

further submitted that the allegations made by the petitioner

with regard to sexual harassment were made only after she

resigned from the service.

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24. Shri Mehta submitted that any decision in the present

proceedings will have far­reaching effects in the future. He

submitted that if a mere circumstance of mid­term transfer

coupled   with   inconvenient   family   circumstances   is

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

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

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

similarly situated Judicial Officers would come up with such

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

some   or   the   other   inconvenient   family   problems.   He

submitted   that   if   such   a   view   is   taken,   it   will   have   farreaching   effects   on   the   administration   of   the   District

Judiciary.

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

High Court has taken a unanimous decision on more than

one   occasion   to   reject   the   petitioner’s   representation

regarding re­instatement in service.   He submitted that the

observations   made   by   the   JIC   with   regard   to   the   reinstatement of the petitioner were beyond the scope of its

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

High   Court   has   rightly   rejected   the   representation   of   the

petitioner.  He submitted that if a unanimous decision taken

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

this Court, it will not only stigmatize the individuals manning

the institution but the entire institution. 

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

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

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

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

that   the   whole   of   the   MP   High   Court   as   an   Institution

connived together and ensured to create such circumstances,

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

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

will have catastrophic effects. 

27. Shri Mehta submitted that the scope of judicial review

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

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

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

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An interference would be permitted only in the rarest of rare

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

support of this proposition:

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

Kashmir and Others6

;

Registrar   General,   High   Court   of   Patna   v.   Pandey

Gajendra Prasad and Others7

;

Rajendra Singh Verma (Dead) Through LRs and Others v.

Lieutenant Governor (NCT of Delhi) and Others8

28. He therefore prays for dismissal of the petition.

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

we are not examining the correctness or otherwise of the

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

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

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

Full   Court   of   a   High   Court   is   extremely   narrow   and   we

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

6 (2003) 9 SCC 592

7 (2012) 6 SCC 357

8 (2011) 10 SCC 1

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a High Court. There could be various factors and reasons

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

Court   while   rejecting   the   representation   made   by   the

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

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

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

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

enquiry in the present matter only to examine the following

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

record in the present matter:

(i) As to whether the order transferring the petitioner

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

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

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

petitioner’s representations dated 9th July 2014 and

11th July 2014 respectively, were legal; and

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

15th July 2014 can be considered to be voluntary or

the one which has been forced due to circumstances.

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31. Though,   the   issue   directly   involved   in   the   present

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

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

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

finding on issue No. (iii). 

32. We further clarify that we are examining the present

matter purely considering it as a lis between an employee

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

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

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

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

would govern  the dispute  between  an  employer who is a

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

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

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

33. Though, arguments have been advanced before us with

regard to constructive discharge and the reliance is placed on

the   judgments   of   Courts   in   United   Kingdom   and   United

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

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

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

would squarely cover the issue.

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

present matter.

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

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

of the petitioner was in contravention of the Transfer Policy

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

The JIC has also come to a finding that the representations

made by the petitioner were not appropriately considered by

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

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

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

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

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

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

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

Court   that   the   transfer   of   the   petitioner   was   on

23

administrative grounds in view of the provisions of Clause 22

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

has further come to a finding that the circumstances became

unbearable for the petitioner, resulting in her resignation

from service.

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

of the respondents that the aforesaid findings of the JIC were

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

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

aforesaid observations are very much within the scope of the

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

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

independent of the findings of the JIC.

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

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

The   Preamble   of   the   said   Transfer   Policy   states   that   an

attempt will be made to effect the transfer and posting of

Judicial   Officers   in   the   State   of   Madhya   Pradesh   in

accordance with the said Guidelines and Policy, and that the

24

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

notwithstanding anything contained in the said Policy, the

interest  of  the Judicial System and Establishment in the

State   are   paramount   consideration   for   transfers   and

postings.  The salient features of the said Transfer Policy are

as under:

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

the places available for posting are divided into 4

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

are mentioned in Annexure­A;

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

the annual transfer of Judicial Officers shall be

effected normally by the 15th of March every year

and that the Judicial Officers shall be given time

for   joining   up   to   the   first   day   of   April   of   the

relevant year so as to coincide with the academic

session; 

25

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

the   normal   approximate   tenure   of   posting   at   a

place shall be three years;

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

for computing the tenure of posting of an Officer

posted   at   a   particular   place,   the   period   of   6

months or above shall be rounded off and treated

as full year;

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

exceptions in cases where an extension of tenure

can   be   granted.   Sub­clause   (a)   of   Clause   9

specifies a ground, that such an extension would

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

Officer   is   studying   at   the   place   of   his   current

posting,   and   is   in   the   Final   Year   of   a   Board

Examination or University Examination, and the

educational   Institution   where   such   daughter   is

studying, does not have hostel facility for girls. It

further provides that the said criteria are for the

26

Officers seeking over­stay in Category ‘A’ places.  It

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

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

available irrespective of the ward being a son or a

daughter and further provides that the availability

of hostel facility will not be essential.   It further

provides that the request on the said ground can

be   considered   only   if   the   facts   with   regard   to

education of the daughter and non­availability of

hostel facility in the Institution are certified by the

District Judge concerned, after proper verification,

and further that the District Judge as well as the

Portfolio Judge have no objection to the over­stay

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

with the cases where over­stay is sought on the

ground of illness of a Judicial Officer, his spouse

or   children   or   aged   parents.     Sub­clause   (c)   of

Clause 9 is a residuary clause, which enables such

exceptions on substantial reasons, which in the

27

opinion of the District Judge, the Portfolio Judge

or the Chief Justice, are justified;

Clause   9   of   the   Transfer   Policy   further

provides that if any Judicial Officer submits such

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

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

Registrar   General,   it   will   be   obligatory   for   the

District   Judge  to  send   the  representation   along

with his comments within one week of its receipt

after   the   necessary   verifications.     The   Registry

thereafter is required to place the matter before

the concerned Portfolio Judge within a week of the

last date of the receipt of the representation, and

the Portfolio Judge is required to return the file

with   his   comments/opinion   within   a   week

thereafter;

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

such   Judicial   Officers   who   are   seeking   their

extension,   shall   also   simultaneously   forward

28

minimum   three   and   maximum   five   options

regarding the place of the permissible category or

lower category, where they would like to be posted

in case the representation is not allowed;

(vii) Clause   13   of   the   Transfer   Policy   provides   that

extension   of   a   posting   after   the   tenure   period

would   be   granted   only   in   exceptional

circumstances.     The   said   Clause   13   further

provides that the decision regarding extension will

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

a Committee of two Judges nominated by the Chief

Justice,   within   three   weeks   of   the   last   date   of

receipt of representations mentioned above;

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

Judicial Officer, who is on deputation or holding

an ex­cadre post, would be required to come back

to   the   parent   department   after   completing   a

maximum period of three years on such posting.

It further provides that no extension on deputation

29

shall   be   granted   after   a   period   of   three   years.

However,   the   power   of   Chief   Justice   to   grant

extension of one year in exceptional circumstances

is reserved;

(ix) In   accordance   with   Clause   16   of   the   Transfer

Policy,   a   transfer   takes   place   normally   from

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

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

(x) In   accordance   with   Clause   17   of   the   Transfer

Policy,   the   Registrar   General   shall,   by   15th  of

February each year, prepare a list of Officers, who

will be completing their tenure/posting.  It further

provides that the Judicial Officers whose request

for over­stay has been allowed will be excluded

from that list and the Officers whose request for

pre­mature   transfer   has   been   allowed,   will   be

added to that list.  The said Clause also requires to

prepare a chart mentioning therein the details as

required   under   the   said   Clause.     The   purpose

30

appears to be, to ensure an equitable distribution

of judicial work for Officers all over the State;

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

attempt should be made to post the husband and

wife at   the  same  place, if  both   are  working  as

Judicial Officers in the State of Madhya Pradesh.

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

attempt should be made to post them at nearby

places;

(xii) Clause   19   of   the   Transfer   Policy   provides   that

whenever a close relative of a Judicial Officer is

suffering   from   a   serious   ailment,   he   shall   be

granted preference by posting in a place where or

near   which   proper   treatment   facilities   for   these

ailments are available;

(xiii) Clause   20   of   the   Transfer   Policy   provides   that

Judicial   Officers,   who   are   suffering   from   any

physical disability, which is certified to be more

than 40% by the appropriate Medical Board, would

31

be   granted   preference   in   the   matter   of   their

posting to such place where they are not required

to travel frequently;

(xiv) Clause   21   of   the   Transfer   Policy   requires   that

Judicial Officers, who have undergone posting for

a period of two years or more in outlying Courts or

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

the   transfer   of   their   posting   at   District

Headquarters only;

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

Judicial   Officer   may   be   transferred   even   before

completion of the prescribed tenure or in mid­term

in case his performance is found to be below the

norms prescribed or if grounds exist for initiating

inquiry against him.   It further provides that he

may   also   be   transferred   before   completing   the

prescribed   tenure   in   public   interest   or   in   the

interest of administration if so decided by the High

Court;

32

(xvi) In   accordance   with   Clause   23   of   the   Transfer

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

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

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

proposes to settle after his retirement;

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

construed   as   a   residuary   clause   reserves   the

power   of   the   Chief   Justice   to   issue   general   or

particular   directions   which   are   not   specifically

covered by the Policy. It further provides that in

case   of   any   doubt   with   regard   to   Policy   or   its

implementation,   the   clarification   issued   by   the

Chief Justice will be treated as part of the Policy;

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

representation   against   transfers   ordered   by   the

High Court will normally be entertained except on

a serious ground, which did not exist on the date

of the issuance of the order of transfer;

33

(xix) Clause 26 of the Transfer Policy which is a nonobstante   clause   provides   that   notwithstanding

anything contained therein, the Chief Justice or on

his   behalf,   a   Committee   of   two   senior   Judges

nominated   by   the   Chief   Justice,   will   have

overriding powers to pass any order regarding the

transfer or posting of any Judicial Officer at any

time;

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

Justice   to   delegate   his   powers   to   any   other

Judge/Officer or Committee of Judges/Officers for

implementation of the Policy/Guidelines.

38. It   could   thus   be   seen   that   the   Transfer   Policy

incorporated by the MP High Court has provided in detail,

the procedure that is required to be followed with regard to

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

particular   posting,   the   circumstances   in   which   the   case

should be considered for permitting the Judicial Officers to

34

stay beyond the prescribed period and the manner in which

the representation is to be considered etc.

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

Guidelines   for   internal   administration   of   the   District

Judiciary   issued   by   the   MP   High   Court.   However,   while

exercising its functions on the administrative side, the MP

High Court would also be a State within the meaning of

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

to the following observations made by this Court in the case

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

Feed Industries9

:

“8. The mere reasonable or legitimate expectation of

a citizen, in such a situation, may not by itself be a

distinct   enforceable   right,   but   failure   to   consider

and give due weight to it may render the decision

arbitrary, and this is how the requirement of due

consideration of a legitimate expectation forms part

of the principle of non­arbitrariness, a necessary

concomitant   of   the   rule   of   law.   Every   legitimate

expectation   is   a   relevant   factor   requiring   due

consideration   in   a   fair   decision­making   process.

Whether   the   expectation   of   the   claimant   is

reasonable or legitimate in the context is a question

of fact in each case. Whenever the question arises,

it   is   to   be   determined   not   according   to   the

9 (1993) 1 SCC 71

35

claimant's perception but in larger public interest

wherein other more important considerations may

outweigh   what   would   otherwise   have   been   the

legitimate expectation of the claimant. A bona fide

decision   of   the   public   authority   reached   in   this

manner   would   satisfy   the   requirement   of   nonarbitrariness and withstand judicial scrutiny. The

doctrine of legitimate expectation gets assimilated in

the rule of law and operates in our legal system in

this manner and to this extent.

9. In Council   of   Civil   Service   Unions v. Minister   for

the Civil Service [1985 AC 374 : (1984) 3 All ER 935

(HL)]  the  House  of  Lords  indicated the  extent  to

which   the   legitimate   expectation   interfaces   with

exercise   of   discretionary   power.   The   impugned

action   was   upheld   as   reasonable,   made   on   due

consideration of all relevant factors including the

legitimate expectation of the applicant, wherein the

considerations of national security were found to

outweigh that which otherwise would have been the

reasonable   expectation   of   the   applicant.   Lord

Scarman pointed out that “the controlling factor in

determining   whether   the   exercise   of   prerogative

power is subject to judicial review is not its source

but its subject­matter”. Again in Preston, in re [1985

AC 835 : (1985) 2 All ER 327] it was stated by Lord

Scarman   that   “the   principle   of   fairness   has   an

important place in the law of judicial review” and

“unfairness in the purported exercise of a power can

be such that it is an abuse or excess of power”.

These decisions of the House of Lords give a similar

indication   of   the   significance   of   the   doctrine   of

legitimate   expectation.   Shri   A.K.   Sen   referred

to Shanti   Vijay   and   Co. v. Princess   Fatima

Fouzia [(1979) 4 SCC 602 : (1980) 1 SCR 459] which

36

holds   that   court   should   interfere   where

discretionary power is not exercised reasonably and

in good faith.”

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

reasonable or legitimate expectation of a citizen may not by

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

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

decision arbitrary.  It has been held that the requirement of

due consideration of a legitimate expectation forms part of

the   principle   of   non­arbitrariness,   which   is   a   necessary

concomitant of the rule of law. Every legitimate expectation is

a   relevant   factor   requiring   due   consideration   in   a   fair

decision­making   process.   Whether   the   expectation   of   the

claimant   is   reasonable   or   legitimate   in   the   context   is   a

question of fact in each case. Whenever the question arises,

it   is   to   be   determined   not   according   to   the   claimant's

perception but in larger public interest wherein other more

important   considerations   may   outweigh,   what   would

otherwise   have   been   the   legitimate   expectation   of   the

37

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

public authority reached in this manner would satisfy the

requirement   of   non­arbitrariness   and   withstand   judicial

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

an important place in the law of judicial review and that

unfairness in the purported exercise of power can be such

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

where discretionary power is not exercised reasonably and in

good faith.

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

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

has been framed by the MP High Court for administration of

the   District   Judiciary,   every   Judicial   Officer   will   have   a

legitimate expectation that such a Policy should be given due

weightage, when the cases of Judicial Officers for transfer are

being considered.

42. In this background, we will examine the undisputed

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

38

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

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

did not figure.

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

consideration   of   mid­term   transfers   to   be   effected   in   the

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

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

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

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

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

petitioner was the complaint dated 3rd July 2014, addressed

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

days, the decision regarding transferring the  petitioner to

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

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

approved by the Competent Authority on the very same day.

The said transfer order was conveyed to the petitioner on the

next day that is on 8th July 2014.

39

44. The petitioner, on coming to know about her transfer

order, made a representation on the very next day i.e., on 9th

July  2014.  In   the  said   representation,   the   petitioner   had

categorically stated that her elder daughter was a brilliant

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

and   Competitive   Exams   at   FIITJEE   Coaching   Centre,

Gwalior.     She   further   stated   that   her   husband,   due   to

compelling   circumstances   and   for   looking   after   his   aged

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

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

had to draw a balance between her profession and dependent

children.     She   further   made   a   request   to   the   Competent

Authority to allow her to stay in Gwalior till her daughter

completes   her   Class   12th  examination.   The   said

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

2014. The then RG made an endorsement to the following

effect: 

“Hon’ble the transfer Committee in its meeting

held on 7.7.2014 has recommended transfer of Smt.

Madan   from   Gwalior   to   Sidhi   on   administrative

40

ground, after considering the request of D&S Judge,

Gwalior with regard to her conduct and behavior.  It

is   gathered   that   adequate   educational   facilities

including CBSE School are available at Sidhi.

Therefore,   the   matter   is   submitted   for   kind

consideration and order.”

The then Judge of the Transfer Committee of the MP

High Court made the following endorsement on the same

day: 

“The representation may be rejected as it does not

call for any consideration.”

45. After rejection of her first representation, the petitioner

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

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

representation, she had requested for her transfer either to

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

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

2014, placed the said representation of the petitioner before

the Transfer Committee with the following endorsement: 

41

“Kind attention is invited to another representation

(dated 11th  July, 2014) submitted by Ms. ‘X’, 8th

A.D.J., Gwalior regarding her transfer from Gwalior

to Sidhi, almost on identical grounds pertaining to

education of her daughters.

The   Committee   has   already   considered   the

representation dated 9th  July, 2014 of Ms. ‘X’ and

has been pleased to reject the same.

The   matter   is   submitted   again   for   kind

consideration   and   orders   in   view   of   the   repeat

representation dated 11th July, 2014.”

The then Judge of the Transfer Committee of the MP

High Court made the following endorsement on the same

day:

“In   view   of   the   order   already   passed   on   the

representation no further reconsideration is to be

made.”

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

was effected mid­term though she could have very well been

transferred in general transfers, to be effected in March­April,

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

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

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

42

addressed a complaint to the then RG, seeking her transfer

out of Gwalior, the matter was placed immediately before the

Transfer Committee within days and the Transfer Committee

approved the transfer of the petitioner.  Immediately after the

receipt   of   the   transfer   order,   the   petitioner   made   a

representation   on   9th  July   2014,   specifically   pointing   out

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

undergoing FIITJEE coaching. The said representation was

rejected   within   two   days.   The   petitioner   had   a   legitimate

expectation   of   her   representation   being   considered

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

Transfer Policy provides that on such representation being

made,   the   RG   shall   obtain   the   comments   of   the   District

Judge within a week and on receiving his comments after

necessary   verifications,   it   was   required   that   the   matter

should be placed before the concerned Portfolio Judge within

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

one week thereafter, with his comments/opinion.

43

47. Undisputedly,   neither   the   procedure   as   prescribed

under   Clause   9   of   the   Transfer   Policy   of   obtaining   the

comments from the District Judge and the Portfolio Judge

were complied with, nor the Transfer Committee considered

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

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

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

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

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

University   Examination,   and   when   such   educational

Institution where such daughter is studying, does not have

hostel   facility   for   girls,   the   petitioner   had   a   legitimate

expectation   that   the   MP   High   Court   would   consider   her

request   in   accordance   therewith.     Not   only   that,   such   a

concession of extension would have been available only if the

District   Judge   certified   that   there   is   no   hostel   facility

available   in   such   educational   Institution.     It   also   further

required the comments to be obtained by the RG from the

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

44

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

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

the representation and the decision thereon.  However, in the

present case, within two days from the submission of the

representation,   the   Transfer   Committee   rejected   the   same

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

Policy. It is a different matter that inviting comments from

the   District   Judge   would   have   been   just   a   formality,

inasmuch as the transfer was effected on his complaint itself.

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

representation,   the   petitioner   addressed   her   second

representation, requesting that she be posted at any of the

four cities mentioned in the said representation so that her

daughter could continue with her education.   However, the

then RG made an endorsement that the said representation

is   on   similar   ground   as   mentioned   in   the   earlier

representation dated 9th July 2014, which has already been

rejected.   The Transfer Committee endorsed that in view of

the order already passed in the earlier representation dated

45

9

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

the representations of the petitioner are made with different

requests.  Whereas the first representation requests for her

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

daughter could continue with her education at Gwalior; in

the second representation, she had requested to be posted at

either of the 4 places, where her daughter could continue

with her education.  However, the second representation was

rejected on the ground that the earlier representation made

on similar ground also stands rejected.  

50. The petitioner had a legitimate expectation in view of

Clause 10 of the Transfer Policy to have her case considered

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

retention at the then present posting was not considered and

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

pains to say that the rejection of the second representation

depicts total non­application of mind by the then RG as well

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

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

46

manner and accepted by the then Judge on the Transfer

Committee in a mechanical manner.

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

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

transfer could be made in mid­term, is that the performance

of   such   Judicial   Officer   is   found   to   be   below   the   norms

prescribed.     The   same   is   admittedly   not   available   in   the

present case. The petitioner’s performance in the assessment

made by the then D & SJ, Gwalior on 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.

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

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

the administration inasmuch as there was a requirement of

an   Additional   Judge   at   Sidhi.     The   then   Judge   on   the

47

Transfer   Committee   has   specifically   admitted   in   his

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

the pendency at the 4 places which were mentioned by the

petitioner in her second representation, was much higher

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

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

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

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

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

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

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

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

mentioned by the petitioner in her second representation are

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

transfer of the petitioner was effected on the basis of the

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

accept the contention on behalf of the MP High Court that

the transfer of the petitioner was made in the public interest

or in the interest of the administration.

48

53. The   learned   Solicitor   General   argued   that   vide   the

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

Judicial Officers were transferred and not just the petitioner.

The perusal of the said transfer order would reveal that in

many   cases,   the   Judicial   Officers   who   were   either   on

deputation or ex­cadre posts, have been brought in main

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

covered by the said transfer order were posted at the same

place inasmuch as from the posting on deputation, they have

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

pointed out as to whether the said Judicial Officers were also

facing   the   same   difficulty,   as   was   being   faced   by   the

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

those   Judicial   Officers   had   made   any   representation   and

their representations were rejected in an identical manner.  

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

observations   made   by   this   Court   in   the   case   of  Kumari

49

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

Others10:

“33. No doubt, it is true, as indicated by us earlier,

that there is a presumption of validity of the State

action and the burden is on the person who alleges

violation   of   Article   14   to   prove   the   assertion.

However, where no plausible reason or principle is

indicated nor is it discernible and the impugned

State   action,   therefore,   appears   to   be   ex   facie

arbitrary,   the   initial   burden   to   prove   the

arbitrariness   is   discharged   shifting   onus   on   the

State to justify its action as fair and reasonable. If

the State is unable to produce material to justify its

action as fair and reasonable, the burden on the

person   alleging  arbitrariness  must  be  held   to   be

discharged. The scope of judicial review is limited as

indicated   in Dwarkadas   Marfatia   case [(1989)   3

SCC 293] to oversee the State action for the purpose

of satisfying that it is not vitiated by the vice of

arbitrariness and no more. The wisdom of the policy

or   the   lack   of   it   or   the   desirability   of   a   better

alternative is not within the permissible scope of

judicial review in such cases. It is not for the courts

to recast the policy or to substitute it with another

which is considered to be more appropriate, once

the   attack   on   the   ground   of   arbitrariness   is

successfully repelled by showing that the act which

was done, was fair and reasonable in the facts and

circumstances of the case. As indicated by Diplock,

L.J., in Council of Civil Service Unions v. Minister for

the Civil Service [(1984) 3 All ER 935] the power of

judicial review is limited to the grounds of illegality,

irrationality and procedural impropriety. In the case

10 (1991) 1 SCC 212

50

of   arbitrariness,   the   defect   of   irrationality   is

obvious.”

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

is   a   presumption   of   validity   of   the   State   action   and   the

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

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

further held that where no plausible reason or principle is

indicated nor is it discernible and the impugned State action

appears   to   be   arbitrary,   the   initial   burden   to   prove   the

arbitrariness   is   discharged,   thereby   shifting   onus   on   the

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

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

reasonable, the burden on the person alleging arbitrariness

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

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

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

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

substitute it with another which is considered to be more

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

of arbitrariness is successfully repelled by showing that the

51

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

circumstances of the case.

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

established that her transfer order was in contravention of

the   Transfer   Policy   and   that   the   rejection   of   her   two

representations, in addition of being contrary to the Transfer

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

discharged   her   burden   and   the   onus   is   shifted   on   the

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

was fair and reasonable in the facts and circumstances of the

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

discharge its burden.  On the contrary, the admissions made

before the JIC by the then Judge on the Transfer Committee

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

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

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

that   the   then   Judge   had   not   looked   into   the   annexures

attached   with   the   representation,   which   included   the   fee

receipts etc. of the petitioner’s daughter.  

52

57. We   may   gainfully   refer   to   the   following   observations

made by this Court in the case of Kalabharati Advertising

v. Hemant Vimalnath Narichania and Others11:

“25. The   State   is   under   obligation   to   act   fairly

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

malice” or “malice in law” means something done

without lawful excuse. It is an act done wrongfully

and wilfully without reasonable or probable cause,

and not necessarily an act done from ill feeling and

spite. It is a deliberate act in disregard to the rights

of others. Where malice is attributed to the State, it

can never be a case of personal ill will or spite on

the part of the State. It is an act which is taken with

an oblique or indirect object. It means exercise of

statutory power for “purposes foreign to those for

which it is in law intended”. It means conscious

violation of the law to the prejudice of another, a

depraved inclination on the part of the authority to

disregard   the   rights   of   others,   which   intent   is

manifested   by   its   injurious   acts.   (Vide ADM,

Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521 :

AIR 1976 SC 1207] , S.R. Venkataraman v. Union of

India [(1979) 2 SCC 491 : 1979 SCC (L&S) 216 : AIR

1979   SC   49]   , State   of   A.P. v. Goverdhanlal

Pitti [(2003) 4 SCC 739 : AIR 2003 SC 1941] , BPL

Ltd. v. S.P. Gururaja [(2003) 8 SCC 567] and W.B.

SEB v. Dilip Kumar Ray [(2007) 14 SCC 568 : (2009)

1 SCC (L&S) 860] .)

26. Passing an order for an unauthorised purpose

constitutes   malice   in   law.   (Vide Punjab   SEB

Ltd. v. Zora Singh [(2005) 6 SCC 776] and Union of

11 (2010) 9 SCC 437

53

India v. V. Ramakrishnan [(2005) 8 SCC 394 : 2005

SCC (L&S) 1150].)”

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

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

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

lawful   excuse.   It   is   an   act   done   wrongfully   and   wilfully

without reasonable or probable cause, and not necessarily an

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

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

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

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

It means conscious violation of the law to the prejudice of

another, a depraved inclination on the part of the authority

to disregard the rights of others.

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

petitioner that the transfer order is mala fide and issued at

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

into that aspect of the matter.  

54

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

observations  made  by  this   Court   in   the  case  of  Somesh

Tiwari v. Union of India and Others12:

“16. Indisputably   an   order   of   transfer   is   an

administrative   order.  There  cannot   be   any  doubt

whatsoever   that   transfer,   which   is   ordinarily   an

incident of service should not be interfered with,

save in cases where inter alia mala fide on the part

of the authority is proved. Mala fide is of two kinds

—one malice in fact and the second malice in law.

The order in question would attract the principle of

malice in law as it was not based on any factor

germane for passing an order of transfer and based

on an irrelevant ground i.e. on the allegations made

against the appellant in the anonymous complaint.

It is one thing to say that the employer is entitled to

pass   an   order   of   transfer   in   administrative

exigencies but it is another thing to say that the

order of transfer is passed by way of or in lieu of

punishment. When an order of transfer is passed in

lieu of punishment, the same is liable to be set

aside being wholly illegal.”

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

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

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

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

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

any   factor   germane   for   passing   an   order   of   transfer   and

12 (2009) 2 SCC 592

55

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

sustainable in law.  

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

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

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

administrative exigencies, the material placed on record and

particularly,   the   depositions   of   the   then   Judge   on   the

Transfer Committee and the then RG, would clearly show

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

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

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

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

transfer   of   the   petitioner   and   the   rejection   of   her   two

representations.  We are therefore of the considered view that

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

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

taking   into   consideration   the   Guidelines   provided   in   the

Transfer   Policy   but   on   the   basis   of   unverified   allegations

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

56

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

orders of the Transfer Committee dated 11th July 2014 and

14th  July   2014,   rejecting   the   petitioner’s   representations

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

not.

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

Policy, the petitioner is entitled to make a representation to

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

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

10 of the Transfer Policy.  When the Transfer Policy provides

for making a representation, the petitioner had a legitimate

expectation that the said representation would be considered

in accordance with it. Consideration of representation is not

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

rejection of the petitioner’s representations, she should have

been   heard   or   that   the   reasons   ought   to   have   been

communicated for such rejection. However, the least that is

expected is that the representation is considered in the right

earnest.  When the Transfer Policy provides for a ground on

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

57

expected is that the matter should be considered in reference

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

representation, the petitioner had specifically contended that

she   should   be   retained  at   Gwalior   on  the   ground  of   her

daughter’s education.   There was a legitimate expectation

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

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

The petitioner was entitled for consideration of her case on

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

of Board Examination.  The petitioner had specifically stated

that her daughter was also undergoing FIITJEE coaching.

She   had   further   clearly   stated   that   after   her   daughter

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

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

mentioned   that   “it   is   gathered   that   adequate   educational

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

further stated that the Transfer Committee, in its meeting

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

petitioner on  administrative grounds after considering the

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

58

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

then   Judge   on   the   Transfer   Committee   had   directed   the

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

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

into consideration as to whether the petitioner’s case was

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

Policy or not.  

65. Insofar as the second representation dated 11th  July

2014 is concerned, the petitioner had specifically stated that

since her daughter was preparing for Board and Competitive

Exams   and   also   taking   FIITJEE   coaching,   she   may   be

transferred   to   such   places   as   Sehore,   Raisen,   Dewas   or

Ujjain,   where   her   daughter   could   continue   with   her

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

representation,   the   petitioner   had   sought   retention   at

Gwalior, in the second representation, she had requested for

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

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

to the effect that “the said representation was made almost

on   identical   grounds   as   were   made   in   the   first

59

representation,   which   was   already   rejected   on   11th  July

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

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

already   passed   in   the   earlier   representation,   no   further

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

though the second representation of the petitioner dated 11th

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

alternate   places,   the   noting   that   “the   representation   on

identical   grounds   had   already   been   rejected”,   is   factually

incorrect. Whereas the first representation of the petitioner

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

posting   at   alternate   place,   where   her   daughter   could

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

Transfer Policy, the petitioner had a legitimate expectation of

being considered for an alternate posting, in case her prayer

for retention was not to be considered.

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

failed   to   take   into   consideration   the   factors,   which   were

required to be considered, while deciding the representation

of the petitioner and had taken into consideration the factors

60

which were not relevant.   The then Judge on the Transfer

Committee,   in   his   deposition   before   the   JIC,   had   clearly

admitted that he had not gone into the annexures, which

were attached with the representation of the petitioner.  Nonconsideration of the relevant material and consideration of

the   extraneous   material   would   come   into   the   realm   of

irrationality.   An   action   which   is   arbitrary,   irrational   and

unreasonable would be hit by Article 14 of the Constitution

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

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

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

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

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

considered as a voluntarily one.  

68. The resignation of the petitioner reads thus:  

“It is most respectfully submitted that I am

unable   to   continue   my   services   as   Additional

District and Sessions Judge.

As I have been transferred to Sidhi, in the mid

academic session of my daughters studying in Class

III and Class XII, it affected mostly the crucial stage

of career of my class XII daughter.  Therefore I am

left with no option but to resign from my post.

61

I   hereby   resign   from   the   post   of   Additional

District   and   Sessions   Judge   and   I   am   ready   to

submit   my  salary  as  per   rules   and  clear  all   my

dues, if any.

I   humbly   request   your   kind   self   to   please

accept   my   resignation   and   relieve   me   with

immediate affect and oblige.”

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

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

the authority and thus, there was severance of relationship

between the employer and employee.

70. The learned Solicitor General submitted that it was an

impulsive decision to resign only on account of mid­term

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

would amount to coercion resulting into resignation, would

be catastrophic. He further submitted that such a plea would

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

sovereign function of dispensing justice and who is trained to

be   independent,   fearless,   non­impulsive   and   to   act   in

accordance with law.  

62

71. No   doubt,   that   a   Judicial   Officer   while   discharging

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

impassionate and non­impulsive. But a Judicial Officer is

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

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

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

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

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

guided by the same yardsticks.

72. For considering as to whether the resignation in the

present matter could be construed as voluntary or not, the

resignation  cannot  be considered in  isolation, but  all the

attendant   circumstances   will   have   to   be   taken   into

consideration.  

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

petitioner.

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

8

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

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

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

63

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

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

then Portfolio/Administrative Judge of the MP High Court.

Between December 2013 and June 2014, the petitioner was

entrusted with various additional responsibilities.   On 15th

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

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

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

endorsed by the then Portfolio/Administrative Judge of the

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

Gwalior, who had assessed the petitioner’s performance for

the assessment year 2012 was a different one than the one

who had assessed her performance for the assessment year

2013.

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

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

3

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

undergoing   FIITJEE   coaching.     Since   her   husband   was

required   to   be   in   Delhi   on   account   of   professional   and

personal commitments and also that he had to look after his

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aged parents, the petitioner had to draw a balance between

her duties as a Judicial Officer and as a mother.

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

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

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

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

petitioner made a representation to the MP High Court on the

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

retained at Gwalior, at least till her daughter completes her

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

short   period   of   two   days.   She   made   her   second

representation on 11th July 2014, requesting the respondent

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

mentioned therein, where her daughter could continue with

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

normal circumstances, a Judicial Officer, who is in Category

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

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

within three days.

65

77. One cannot imagine the trauma which the petitioner

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

also not aware that she was being transferred on the ground

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

himself appears to have joined at Gwalior sometime in 2014,

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

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

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

her first representation dated 9th  July 2014, the petitioner

elaborated in detail, her precarious situation inasmuch as

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

children and draw a balance between her professional duties

and duties towards her daughters. She stated that on receipt

of her transfer order, her elder daughter had become meek

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

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

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

decent education and curb her prospects for an inspirational

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

emotional trauma and to support her daughter to complete

66

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

short   period.     She   also   assured   that   after   her   daughter

completes   Class   12th,   she   would   move   on   to   whichever

posting allocated to her.   However, the same was rejected

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

procedure prescribed under the Transfer Policy.

78. The petitioner made another representation on the very

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

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

reiterated   the   traumatic   situation   through   which   her

daughter was undergoing.  She reiterated that at the cost of

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

decent education.  However, the same was again rejected on

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

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

The Judicial Officer in her must have been battling with the

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

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

daughter’s   educational   prospects   and   career   coming   into

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

67

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

subjected to injustice by the very Institution of Judiciary,

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

at   Gwalior   for   a   period   of   8   months   till   her   daughter

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

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

daughter could have better education facilities, and where

the vacancies existed. 

80. Denial of her legitimate expectation could have led to

desperation, exasperation and frustration.  The frustration of

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

resignation   letter.     She   stated   that   as   she   had   been

transferred   to   Sidhi   in   the   mid­academic   session   of   her

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

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

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

appears that in a gruesome battle between a mother and a

Judicial Officer, the Judicial Officer lost the battle to the

mother.

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81. Reaction of a person to a particular situation would

depend from person to person.   No two individuals can be

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

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

would   have   chosen   to   pursue   one’s   own   career   without

bothering about the daughter’s education and prospects of

good career.

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

MP   High   Court   forwarded   her   resignation   with   the

recommendation   to   accept   the   same   and   thereafter,

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

accepted the same.  

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

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

and Others13:

“7. The  only  question   that   mainly   requires  to   be

considered is as to whether the letter dated 9­1­

1999 could be construed to mean or amounted to a

letter of resignation or merely an expression of her

intention to resign, if her claims in respect of the

13 (2003) 1 SCC 701

69

alleged lapse are not viewed favourably. Rule 9 of

the Hospital Service Rules provided for resignation

or abandonment of service by an employee. It is

stated   therein   that   a   permanent   employee   is

required to give three months' notice of resignation

in   writing   to   the   appointing   authority   or   three

months' salary in lieu of notice and that he/she

may be required to serve the period for such notice.

In   case   of   non­compliance   with   the   above,   the

employee  concerned  is  not  only  liable  to  pay  an

amount   equal   to   three   months'   salary   but   such

amount shall be realizable from the dues, if any, of

the employee lying with the hospital. In Words and

Phrases (Permanent Edn.) Vol. 37, at p. 476, it is

found stated that:

“To constitute a ‘resignation’, it must be

unconditional   and   with   an   intent   to

operate   as   such.   There   must   be   an

intention to relinquish a portion of the

term of office accompanied by an act of

relinquishment. It is to give back, to give

up in a formal manner, an office.”

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

“Statements by club's President and corresponding

Secretary   that   they   would   resign,   if   constant

bickering   among   members   did   not   cease,

constituted merely threatened offers, not tenders, of

their resignations.” It is also stated therein that “A

‘resignation’ of a public office to be effective must be

made with an intention of relinquishing the office

accompanied by an act of relinquishment.” In the

ordinary   dictionary   sense,   the   word   “resignation”

was   considered   to   mean   the   spontaneous

relinquishment of one's own right, as conveyed by

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the   maxim: Resignatio   est   juris   proprii   spontanea

refutatio (Black's   Law   Dictionary,   6th   Edn.).

In Corpus   Juris   Secundum,   Vol.   77,  p.   311,   it   is

found stated:

“It has been said that ‘resignation’ is a

term   of   legal   art,   having   legal

connotations which describe certain legal

results.   It   is   characteristically,   the

voluntary surrender of a position by the

one resigning, made freely and not under

duress and the word is defined generally

as meaning the act of resigning or giving

up, as a claim, possession or position.”

8. In P.K.   Ramachandra   Iyer v. Union   of

India [(1984) 2 SCC 141 : 1984 SCC (L&S) 214] this

Court had an occasion to consider the nature and

character of a letter written by one of the petitioners

in that case who after stating in the letter that he

has been all along patiently waiting for the redressal

of his grievance, yet justice has not been done to

him and

“as such, after showing so much patience

in the matter, I am sorry to decide that I

should   resign   from   the   membership   of

the   Faculty   in   protest   against   such   a

treatment and against the discrimination

and   victimization   shown   to   me   by   the

Head of the Division in the allotment of

students of 1968 and 1969 batches and

departmental candidates”. (SCC p. 172,

para 34)

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In that context, this Court observed that the callous

and heartless attitude of the Academic Council in

seizing an opportunity to get rid of him by treating

the said letter to be a letter of resignation when

really   he   was   all   along   making   representations

seeking justice to him and out of exasperation the

said person wrote that letter stating that the only

honourable course left open to him was to resign

rather than suffer (SCC p. 173, para 34).

In Moti Ram v. Param Dev [(1993) 2 SCC 725] this

Court   observed   as   hereunder:   (SCC   pp.   735­36,

para 16)

“16.   As   pointed   out   by   this   Court,

‘resignation’   means   the   spontaneous

relinquishment of one's own right and in

relation to an office, it connotes the act of

giving up or relinquishing the office. It

has been held that in the general juristic

sense, in order to constitute a complete

and operative resignation there must be

the intention to give up or relinquish the

office   and   the   concomitant   act   of   its

relinquishment. It has also been observed

that the act of relinquishment may take

different forms or assume a unilateral or

bilateral   character,   depending   on   the

nature of  the  office and  the conditions

governing it. (See: Union of India v. Gopal

Chandra Misra [(1978) 2 SCC 301 : 1978

SCC   (L&S)   303]   .)   If   the   act   of

relinquishment is of unilateral character,

it   comes   into   effect   when   such   act

indicating the intention to relinquish the

office is communicated to the competent

72

authority. The authority to whom the act

of relinquishment is communicated is not

required   to   take   any   action   and   the

relinquishment takes effect from the date

of   such   communication   where   the

resignation   is   intended   to   operate   in

praesenti.   A   resignation   may   also   be

prospective to be operative from a future

date and in that event it would take effect

from the date indicated therein and not

from the date of communication. In cases

where the act of relinquishment is of a

bilateral character, the communication of

the   intention   to   relinquish,   by   itself,

would   not   be   sufficient   to   result   in

relinquishment   of   the   office   and   some

action is required to be taken on such

communication   of   the   intention   to

relinquish,   e.g.,   acceptance   of   the   said

request to relinquish the office, and in

such a case the relinquishment does not

become   effective   or   operative   till   such

action is taken. As to whether the act of

relinquishment of an office is unilateral

or   bilateral   in   character   would   depend

upon   the   nature   of   the   office   and   the

conditions governing it.”

9. In   traversing   the   contention   on   behalf   of   the

appellant that the letter in question dated 9­1­1999

could not be construed as a letter of resignation, on

behalf of the respondent hospital authorities it is

strenuously contended that  such a letter coming

from the appellant in the teeth of suspension order

and proposed domestic enquiry expressing a desire

to tender resignation and that too with immediate

effect,   cannot   but   be   a   resignation   outright   and

73

simpliciter to avoid facing disciplinary proceedings

and that, therefore, the competent authority acted

well   within   its   rights   in   treating   it   to   be   a

resignation and accepting the same forthwith and

as a consequence thereof, directing further not to

proceed with the domestic enquiry already ordered.

Finally, it has been submitted that if this Court is

pleased to interfere in the matter the right of the

hospital   authorities   to   pursue   the   disciplinary

action already initiated from the stage at which it

stood on the date of acceptance of the resignation

should   not   be   jeopardized   and   liberty   may   be

granted in this regard.

10. We have carefully considered the submissions

of the learned counsel appearing on either side, in

the light of the materials and principles, noticed

supra. This is not a case where it is required to

consider   as   to   whether   the   relinquishment

envisaged under the rules and conditions of service

is unilateral or bilateral in character but whether

the letter dated 9­1­1999 could be treated or held to

be a letter of resignation or relinquishment of the

office, so as to sever her services once and for all.

The   letter   cannot   be   construed,   in   our   view,   to

convey   any   spontaneous   intention   to   give   up   or

relinquish   her   office   accompanied   by   any   act   of

relinquishment.   To   constitute   a   “resignation”,   it

must   be   unconditional   and   with   an   intention   to

operate as such. At best, as observed by this Court

in the decision in P.K. Ramachandra Iyer [(1984) 2

SCC 141 : 1984 SCC (L&S) 214] it may amount to a

threatened offer more on account of exasperation, to

resign on account of a feeling of frustration born out

of   an   idea   that   she   was   being   harassed

unnecessarily but not, at any rate, amounting to a

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resignation, actual and simple. The appellant had

put in about two decades of service in the hospital,

that she was placed under suspension and exposed

to disciplinary proceedings and proposed domestic

enquiry and she had certain benefits flowing to her

benefit, if she resigns but yet the letter dated 9­1­

1999 does not seek for any of those things to be

settled   or   the   disciplinary   proceedings   being

scrapped as a sequel to her so­called resignation.

The words “with immediate effect” in the said letter

could not be given undue importance dehors the

context, tenor of language used and the purport as

well as the remaining portion of the letter indicating

the circumstances in which it was written. That the

management of the hospital took up such action

forthwith,   as   a   result   of   acceptance   of   the

resignation   is   not   of   much   significance   in

ascertaining the true or real intention of the letter

written by the appellant on 9­1­1999. Consequently,

it appears to be reasonable to view that as in the

case   reported   in P.K.   Ramachandra   Iyer [(1984)   2

SCC 141 : 1984 SCC (L&S) 214] the respondents

have   seized   an   opportunity   to   get   rid   of   the

appellant the moment they got the letter dated 9­1­

1999, without due or proper consideration of the

matter in a right perspective or understanding of

the contents thereof. The High Court also seems to

have completely lost sight of these vital aspects in

rejecting the writ petition.”

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

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

required   to   consider   as   to   whether   the   relinquishment

75

envisaged   under   the   Rules   and   Conditions   of   Service,   is

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

the words “with immediate effect” in the resignation letter

could not be given undue importance, dehors the context,

tenor of language used therein, indicating the circumstances

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

case, as has already been discussed hereinabove, appears to

be on account of exasperation and frustration actuated by a

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

very Institution of Judiciary. 

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

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

suspicion, that there is something more than which meets

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

appears   to   have   joined   the   service   a   short   while   ago,

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

Gwalior,   in   his   deposition   before   the   JIC,   has   clearly

admitted   that   the   instances   mentioned   in   the   complaint,

were not within his personal knowledge, but were on the

basis   of   the   complaints   made   to   him   by   other   Judicial

76

Officers. He further admitted that the complaints were with

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

Gwalior.   He further admitted that there were no written

complaints   by   the   Judicial   Officers   and   that   he   had

proceeded to write the complaint on the basis of their oral

complaints.  Within days of the said complaint being made,

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

the petitioner from Gwalior to Sidhi.  The transfer order was

issued   on   8th  July   2014.   The   petitioner   made   a

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

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

On   11th  July   2014,   the   petitioner   made   another

representation.  However, that also did not find favour with

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

ground that the earlier representation on identical grounds

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

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

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

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

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

77

2014,   the   MP   High   Court   with   the   recommendation   for

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

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

accepted the same.

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

Courts,   a   practice   is   followed,   that   whenever   a   Judicial

Officer having good track record tenders his/her resignation,

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

counsel and persuade him/her to withdraw the resignation.

Valuable time and money is spent on training of a Judicial

Officer. Losing a good Judicial Officer without counselling

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

introspect and re­think, will not be in the interest of either

the Judicial Officer or the Judiciary.  We find that it will be in

the interest of judiciary that such a practice is followed by all

the High Courts. 

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

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

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

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

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August 2014, the petitioner had made a representation to

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

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

for reconsideration of the circumstances under which, she

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

possible to observe that the petitioner was forced to resign,

however, the circumstances enumerated hereinabove, would

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

petitioner was left with no other alternative.

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

petitioner, who was on probation, had voluntarily tendered

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

irrevocable   severance   of   relationship   of   the   employer   and

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

was initially appointed on probation for a period of two years

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

August 2013.  Admittedly, there has been no order extending

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

onwards. On the contrary, she was assigned with various

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

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assessment for the assessment year 2013, during which, she

would   be   deemed   to   be   confirmed,   was   ‘very   good’.     We

therefore find that the said contention is nothing but an

after­thought.

89. Insofar   as   the   contention   with   regard   to   delay   is

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

Immediately after the petitioner resigned on 15th July 2014,

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

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

Justice of the MP High Court, requesting to reconsider the

circumstances in which she was left with no option but to

resign.   The petitioner thereafter had also pursued a writ

petition before this Court.  Thereafter, she had participated

in the proceedings before the JIC and after the JIC expressed

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

should be re­instated in service, she made a representation

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

said   representation   was   rejected,   she   has   immediately

approached this Court in the present matter.  We therefore

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find that the petitioner cannot be denied the reliefs on the socalled grounds of delay and laches.

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

Solicitor   General,   that   if   we   hold   the   resignation   in   the

present case to be actuated by coercion, it will have farreaching   implications   and   will   open   floodgates   to   the

similarly   situated   Judicial   Officers.     Another   submission

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

Court   is   interfered   with,   it   will   stigmatize   the   entire

Institution and have catastrophic effects.  

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

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

the correctness and otherwise of the order of transfer, the

rejection   of   the   representations   and   the   question   as   to

whether   the  resignation   in   the   facts   of  the   present   case,

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

gone   into   the   question,   regarding   the   correctness   or

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

Court   with   regard   to   the   rejection   of   the   petitioner’s

representation.     As   already   discussed   hereinabove,   there

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might be reasons and factors which might have weighed with

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

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

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

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

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

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

occasion   would   have   been   accepted,   the   exercise   of

examining the factual scenario, could have been avoided.  In

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

which we found necessary to decide the present case.   We

have refrained ourselves from going into the details of the

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

concerned.  We have refrained ourselves from mentioning a

single name in our judgment.

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

Solicitor General with regard to stigmatizing the MP High

Court is without substance.  

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

resignation in the present case to be coercive, it will have far82

reaching   effects   on   the   administration   of   judiciary   is

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

apposite to refer to the following observations made by this

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

Dhanwanti Devi and Others14:

“9. …….. It is not everything said by a Judge while

giving judgment that constitutes a precedent. The

only thing in a Judge's decision binding a party is

the principle upon which the case is decided and for

this reason it is important to analyse a decision and

isolate from it the ratio decidendi. According to the

well­settled   theory   of   precedents,   every   decision

contains   three   basic   postulates—(i)   findings   of

material facts, direct and inferential. An inferential

finding of facts is the inference which the Judge

draws   from   the   direct,   or   perceptible   facts;   (ii)

statements of the principles of law applicable to the

legal   problems   disclosed   by   the   facts;   and   (iii)

judgment   based   on   the   combined   effect   of   the

above. A decision is only an authority for what it

actually   decides.   What   is   of   the   essence   in   a

decision is its ratio and not every observation found

therein nor what logically follows from the various

observations made in the judgment. Every judgment

must be read as applicable to the particular facts

proved,   or   assumed   to   be   proved,   since   the

generality of the expressions which may be found

there is not intended to be exposition of the whole

law, but governed and qualified by the particular

facts of the case in which such expressions are to

be found……”

14 (1996) 6 SCC 44

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

decision is an authority only for what it actually decides.

Every judgment must be read as applicable to the particular

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

expressions found there, is not intended to be exposition of

the whole law, but governed and qualified by the particular

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

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

Another v. Pawan Kumar Dubey15 has succinctly observed

thus:

“7. …..Even   where   there   appears   to   be   some

conflict, it would, we think, vanish when the ratio

decidendi of each case is correctly understood. It is

the rule deducible from the application of law to the

facts and circumstances of a case which constitutes

its ratio decidendi and not some conclusion based

upon facts which may appear to be similar. One

additional   or   different   fact   can   make   a   world   of

difference between conclusions in two cases even

when the same principles are applied in each case

to similar facts.”

The  ratio   decidendi  is   a   rule   deducible   from   the

application of law to the facts and circumstances of a case

and not some conclusion based upon facts which may appear

15 (1976) 3 SCC 334

84

to be similar. It has been held that one additional or different

fact can make a world of difference between conclusions in

two cases even when the same principles are applied in each

case to similar facts.  

95. As has already been discussed hereinabove, we may

reiterate that we have decided the present matter only on the

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

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

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

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

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

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

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

never so high, the law is above you”.

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

place on record our appreciation for the valuable assistance

rendered by Smt. Indira Jaising, learned Senior Counsel and

Shri Tushar Mehta, learned Solicitor General of India.

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

following terms:

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

from the post of Additional District & Sessions Judge,

Gwalior dated 15th July 2014, cannot be construed to

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

2014,   passed   by   the   respondent   No.   2,   thereby

accepting the resignation of the petitioner, is quashed

and set aside; and

(ii) The   respondents   are   directed   to   re­instate   the

petitioner   forthwith   as   an   Additional   District   &

Sessions Judge.  Though the petitioner would not be

entitled   to   back   wages,   she   would   be   entitled   for

continuity in service with all consequential benefits

with effect from 15th July 2014.  

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

stand disposed of in the above terms.

……....….......................J.

[L. NAGESWARA RAO]

..…....….......................J.

      [B.R. GAVAI]

NEW DELHI;

FEBRUARY 10, 2022.

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Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले