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
1
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
64
aged parents, the petitioner had to draw a balance between
her duties as a Judicial Officer and as a mother.
76. Till 8th  July 2014, everything was smooth but on the
said date, came the transfer order transferring her to Sidhi,
which was at a far away distance of 507 Kms. from Gwalior.
Taking shelter under Clause 9(a) of the Transfer Policy, the
petitioner made a representation to the MP High Court on the
very next day, requesting the respondent No. 1 that she be
retained at Gwalior, at least till her daughter completes her
Class 12th  education, but the same was rejected within a
short   period   of   two   days.   She   made   her   second
representation on 11th July 2014, requesting the respondent
No.1   to   give   her   alternate   posting   at   any   of   the   4   cities
mentioned therein, where her daughter could continue with
her education. All the 4 cities were Category ‘B’ cities.   In
normal circumstances, a Judicial Officer, who is in Category
‘A’ city, is required to be transferred to Category ‘B’ city.
However,   to   her   utter  shock,  the  same  was  also   rejected
within three days.
65
77. One cannot imagine the trauma which the petitioner
must have faced during this short period of time.  She was
also not aware that she was being transferred on the ground
of the complaint made by the then D & SJ, Gwalior, who
himself appears to have joined at Gwalior sometime in 2014,
after   the   then   D   &   SJ,   Gwalior,   who   had   assessed   the
petitioner for the year 2013, was transferred.  She had come
to know about the complaint at a much later point of time. In
her first representation dated 9th  July 2014, the petitioner
elaborated in detail, her precarious situation inasmuch as
she was required to be both a mother and father to her
children and draw a balance between her professional duties
and duties towards her daughters. She stated that on receipt
of her transfer order, her elder daughter had become meek
with fear and anxiety, as she faced an emotional trauma and
a bleak prospect.  The petitioner stated that at the cost of her
career, she could not disturb the right of her daughter to
decent education and curb her prospects for an inspirational
life. The petitioner only appealed that in order to avoid the
emotional trauma and to support her daughter to complete
66
her Class 12th, she should be continued at Gwalior for a
short   period.     She   also   assured   that   after   her   daughter
completes   Class   12th,   she   would   move   on   to   whichever
posting allocated to her.   However, the same was rejected
within two days i.e. on 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.
68
81. Reaction of a person to a particular situation would
depend from person to person.   No two individuals can be
expected to respond identically to a same situation. It is quite
possible that some other person in the petitioner’s place,
would   have   chosen   to   pursue   one’s   own   career   without
bothering about the daughter’s education and prospects of
good career.
82. On the very next day of submission of resignation, the
MP   High   Court   forwarded   her   resignation   with   the
recommendation   to   accept   the   same   and   thereafter,
immediately   on   the   very   next   day,   the   respondent   No.   2
accepted the same.  
83. It will be apposite to refer to the following observations
of this Court in the case of Dr. Prabha Atri v. State of U.P.
and Others13:
“7. The  only  question   that   mainly   requires  to   be
considered is as to whether the letter dated 9­1­
1999 could be construed to mean or amounted to a
letter of resignation or merely an expression of her
intention to resign, if her claims in respect of the
13 (2003) 1 SCC 701
69
alleged lapse are not viewed favourably. Rule 9 of
the Hospital Service Rules provided for resignation
or abandonment of service by an employee. It is
stated   therein   that   a   permanent   employee   is
required to give three months' notice of resignation
in   writing   to   the   appointing   authority   or   three
months' salary in lieu of notice and that he/she
may be required to serve the period for such notice.
In   case   of   non­compliance   with   the   above,   the
employee  concerned  is  not  only  liable  to  pay  an
amount   equal   to   three   months'   salary   but   such
amount shall be realizable from the dues, if any, of
the employee lying with the hospital. In Words and
Phrases (Permanent Edn.) Vol. 37, at p. 476, it is
found stated that:
“To constitute a ‘resignation’, it must be
unconditional   and   with   an   intent   to
operate   as   such.   There   must   be   an
intention to relinquish a portion of the
term of office accompanied by an act of
relinquishment. It is to give back, to give
up in a formal manner, an office.”
At p. 474 of the very same book, it is found stated:
“Statements by club's President and corresponding
Secretary   that   they   would   resign,   if   constant
bickering   among   members   did   not   cease,
constituted merely threatened offers, not tenders, of
their resignations.” It is also stated therein that “A
‘resignation’ of a public office to be effective must be
made with an intention of relinquishing the office
accompanied by an act of relinquishment.” In the
ordinary   dictionary   sense,   the   word   “resignation”
was   considered   to   mean   the   spontaneous
relinquishment of one's own right, as conveyed by
70
the   maxim: Resignatio   est   juris   proprii   spontanea
refutatio (Black's   Law   Dictionary,   6th   Edn.).
In Corpus   Juris   Secundum,   Vol.   77,  p.   311,   it   is
found stated:
“It has been said that ‘resignation’ is a
term   of   legal   art,   having   legal
connotations which describe certain legal
results.   It   is   characteristically,   the
voluntary surrender of a position by the
one resigning, made freely and not under
duress and the word is defined generally
as meaning the act of resigning or giving
up, as a claim, possession or position.”
8. In P.K.   Ramachandra   Iyer v. Union   of
India [(1984) 2 SCC 141 : 1984 SCC (L&S) 214] this
Court had an occasion to consider the nature and
character of a letter written by one of the petitioners
in that case who after stating in the letter that he
has been all along patiently waiting for the redressal
of his grievance, yet justice has not been done to
him and
“as such, after showing so much patience
in the matter, I am sorry to decide that I
should   resign   from   the   membership   of
the   Faculty   in   protest   against   such   a
treatment and against the discrimination
and   victimization   shown   to   me   by   the
Head of the Division in the allotment of
students of 1968 and 1969 batches and
departmental candidates”. (SCC p. 172,
para 34)
71
In that context, this Court observed that the callous
and heartless attitude of the Academic Council in
seizing an opportunity to get rid of him by treating
the said letter to be a letter of resignation when
really   he   was   all   along   making   representations
seeking justice to him and out of exasperation the
said person wrote that letter stating that the only
honourable course left open to him was to resign
rather than suffer (SCC p. 173, para 34).
In Moti Ram v. Param Dev [(1993) 2 SCC 725] this
Court   observed   as   hereunder:   (SCC   pp.   735­36,
para 16)
“16.   As   pointed   out   by   this   Court,
‘resignation’   means   the   spontaneous
relinquishment of one's own right and in
relation to an office, it connotes the act of
giving up or relinquishing the office. It
has been held that in the general juristic
sense, in order to constitute a complete
and operative resignation there must be
the intention to give up or relinquish the
office   and   the   concomitant   act   of   its
relinquishment. It has also been observed
that the act of relinquishment may take
different forms or assume a unilateral or
bilateral   character,   depending   on   the
nature of  the  office and  the conditions
governing it. (See: Union of India v. Gopal
Chandra Misra [(1978) 2 SCC 301 : 1978
SCC   (L&S)   303]   .)   If   the   act   of
relinquishment is of unilateral character,
it   comes   into   effect   when   such   act
indicating the intention to relinquish the
office is communicated to the competent
72
authority. The authority to whom the act
of relinquishment is communicated is not
required   to   take   any   action   and   the
relinquishment takes effect from the date
of   such   communication   where   the
resignation   is   intended   to   operate   in
praesenti.   A   resignation   may   also   be
prospective to be operative from a future
date and in that event it would take effect
from the date indicated therein and not
from the date of communication. In cases
where the act of relinquishment is of a
bilateral character, the communication of
the   intention   to   relinquish,   by   itself,
would   not   be   sufficient   to   result   in
relinquishment   of   the   office   and   some
action is required to be taken on such
communication   of   the   intention   to
relinquish,   e.g.,   acceptance   of   the   said
request to relinquish the office, and in
such a case the relinquishment does not
become   effective   or   operative   till   such
action is taken. As to whether the act of
relinquishment of an office is unilateral
or   bilateral   in   character   would   depend
upon   the   nature   of   the   office   and   the
conditions governing it.”
9. In   traversing   the   contention   on   behalf   of   the
appellant that the letter in question dated 9­1­1999
could not be construed as a letter of resignation, on
behalf of the respondent hospital authorities it is
strenuously contended that  such a letter coming
from the appellant in the teeth of suspension order
and proposed domestic enquiry expressing a desire
to tender resignation and that too with immediate
effect,   cannot   but   be   a   resignation   outright   and
73
simpliciter to avoid facing disciplinary proceedings
and that, therefore, the competent authority acted
well   within   its   rights   in   treating   it   to   be   a
resignation and accepting the same forthwith and
as a consequence thereof, directing further not to
proceed with the domestic enquiry already ordered.
Finally, it has been submitted that if this Court is
pleased to interfere in the matter the right of the
hospital   authorities   to   pursue   the   disciplinary
action already initiated from the stage at which it
stood on the date of acceptance of the resignation
should   not   be   jeopardized   and   liberty   may   be
granted in this regard.
10. We have carefully considered the submissions
of the learned counsel appearing on either side, in
the light of the materials and principles, noticed
supra. This is not a case where it is required to
consider   as   to   whether   the   relinquishment
envisaged under the rules and conditions of service
is unilateral or bilateral in character but whether
the letter dated 9­1­1999 could be treated or held to
be a letter of resignation or relinquishment of the
office, so as to sever her services once and for all.
The   letter   cannot   be   construed,   in   our   view,   to
convey   any   spontaneous   intention   to   give   up   or
relinquish   her   office   accompanied   by   any   act   of
relinquishment.   To   constitute   a   “resignation”,   it
must   be   unconditional   and   with   an   intention   to
operate as such. At best, as observed by this Court
in the decision in P.K. Ramachandra Iyer [(1984) 2
SCC 141 : 1984 SCC (L&S) 214] it may amount to a
threatened offer more on account of exasperation, to
resign on account of a feeling of frustration born out
of   an   idea   that   she   was   being   harassed
unnecessarily but not, at any rate, amounting to a
74
resignation, actual and simple. The appellant had
put in about two decades of service in the hospital,
that she was placed under suspension and exposed
to disciplinary proceedings and proposed domestic
enquiry and she had certain benefits flowing to her
benefit, if she resigns but yet the letter dated 9­1­
1999 does not seek for any of those things to be
settled   or   the   disciplinary   proceedings   being
scrapped as a sequel to her so­called resignation.
The words “with immediate effect” in the said letter
could not be given undue importance dehors the
context, tenor of language used and the purport as
well as the remaining portion of the letter indicating
the circumstances in which it was written. That the
management of the hospital took up such action
forthwith,   as   a   result   of   acceptance   of   the
resignation   is   not   of   much   significance   in
ascertaining the true or real intention of the letter
written by the appellant on 9­1­1999. Consequently,
it appears to be reasonable to view that as in the
case   reported   in P.K.   Ramachandra   Iyer [(1984)   2
SCC 141 : 1984 SCC (L&S) 214] the respondents
have   seized   an   opportunity   to   get   rid   of   the
appellant the moment they got the letter dated 9­1­
1999, without due or proper consideration of the
matter in a right perspective or understanding of
the contents thereof. The High Court also seems to
have completely lost sight of these vital aspects in
rejecting the writ petition.”
84. The facts in the above case are somewhat similar to the
present case.  The present case is also not a case where it is
required   to   consider   as   to   whether   the   relinquishment
75
envisaged   under   the   Rules   and   Conditions   of   Service,   is
unilateral or bilateral in character.  In the present case also,
the words “with immediate effect” in the resignation letter
could not be given undue importance, dehors the context,
tenor of language used therein, indicating the circumstances
in which it was written. The resignation letter in the present
case, as has already been discussed hereinabove, appears to
be on account of exasperation and frustration actuated by a
thought, that  injustice was being meted out to her by the
very Institution of Judiciary. 
85. We further find that the breakneck speed at which the
events have taken place in the present matter, gives rise to a
suspicion, that there is something more than which meets
the eye.  On 3rd July 2014, the then D & SJ, Gwalior, who
appears   to   have   joined   the   service   a   short   while   ago,
addressed a complaint to the then RG. The said D & SJ,
Gwalior,   in   his   deposition   before   the   JIC,   has   clearly
admitted   that   the   instances   mentioned   in   the   complaint,
were not within his personal knowledge, but were on the
basis   of   the   complaints   made   to   him   by   other   Judicial
76
Officers. He further admitted that the complaints were with
regard to the period, which was before his joining as D & SJ,
Gwalior.   He further admitted that there were no written
complaints   by   the   Judicial   Officers   and   that   he   had
proceeded to write the complaint on the basis of their oral
complaints.  Within days of the said complaint being made,
on 7th July 2014, the Transfer Committee decided to transfer
the petitioner from Gwalior to Sidhi.  The transfer order was
issued   on   8th  July   2014.   The   petitioner   made   a
representation on the very next day i.e. 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
78
August 2014, the petitioner had made a representation to
Hon’ble the President of India as well as the Chief Justice of
India, with a copy to the Chief Justice of the MP High Court
for reconsideration of the circumstances under which, she
was left with no option but to resign.  Though, it may not be
possible to observe that the petitioner was forced to resign,
however, the circumstances enumerated hereinabove, would
clearly reveal that they were such, that out of frustration, the
petitioner was left with no other alternative.
88. It is contended on behalf of the MP High Court that the
petitioner, who was on probation, had voluntarily tendered
her resignation, which was accepted and as such, led to an
irrevocable   severance   of   relationship   of   the   employer   and
employee. In this regard, it is to be noted that the petitioner
was initially appointed on probation for a period of two years
on 1st  August 2011.   Her probation was completed on 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
79
assessment for the assessment year 2013, during which, she
would   be   deemed   to   be   confirmed,   was   ‘very   good’.     We
therefore find that the said contention is nothing but an
after­thought.
89. Insofar   as   the   contention   with   regard   to   delay   is
concerned,  we   find   no   merit   in   the  said   contention   also.
Immediately after the petitioner resigned on 15th July 2014,
she made a representation to Hon’ble the President of India
as well as the Chief Justice of India, with a copy to the Chief
Justice of the MP High Court, requesting to reconsider the
circumstances in which she was left with no option but to
resign.   The petitioner thereafter had also pursued a writ
petition before this Court.  Thereafter, she had participated
in the proceedings before the JIC and after the JIC expressed
its opinion, that it would be in the interest of justice that she
should be re­instated in service, she made a representation
to the MP High Court, for re­instatement in service.  After the
said   representation   was   rejected,   she   has   immediately
approached this Court in the present matter.  We therefore
80
find that the petitioner cannot be denied the reliefs on the 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
81
might be reasons and factors which might have weighed with
the   Full   Court   of   the   MP   High   Court   for   taking   such   a
decision.  At the cost of repetition, we reiterate that we have
full respect for the authority of the Full Court to arrive at
such a decision. As such, there is no question of stigmatizing
the Full Court of the MP High Court.  It is a different matter,
that if the suggestions made by this Court on more than one
occasion   would   have   been   accepted,   the   exercise   of
examining the factual scenario, could have been avoided.  In
any case, we have restricted our inquiry only to the facts,
which we found necessary to decide the present case.   We
have refrained ourselves from going into the details of the
findings   of   the   JIC,   so   as   to   protect   the   dignity   of   all
concerned.  We have refrained ourselves from mentioning a
single name in our judgment.
92. In that view of the matter, the contention of the learned
Solicitor General with regard to stigmatizing the MP High
Court is without substance.  
93. Insofar as the contention, that if this Court holds the
resignation in the present case to be coercive, it will have 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
83
It could thus be seen that this Court has held that a
decision is an authority only for what it actually decides.
Every judgment must be read as applicable to the particular
facts, proved or assumed to be proved.  The generality of the
expressions found there, is not intended to be exposition of
the whole law, but governed and qualified by the particular
facts of the case in which such expressions are to be found.
94. This Court in the case of The Regional Manager and
Another v. Pawan Kumar 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:
85
(i) We hold and declare that the petitioner’s resignation
from the post of Additional District & Sessions Judge,
Gwalior dated 15th July 2014, cannot be construed to
be voluntary and as such, the order dated 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.
86

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