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
1
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
2
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
4
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;
5
(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
6
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
7
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
8
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
9
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
10
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
11
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
12
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
13
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
14
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.
15
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.
16
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.
17
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
18
“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.
19
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
20
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.
21
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
22
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
