On 9^th December 2021, in the case of Ms X vs Registrar General, High Court of Madhya Pradesh and another, it was held by the Supreme Court that the petitioner’s resignation from the post of Additional District & Sessions Judge, Gwalior was made in dire circumstances and therefore, is not voluntary.

Facts:

• The petitioner was selected in Madhya Pradesh Higher Judicial Services at District Entry Level in 2011 and was subsequently posted as a 2nd to 1st Additional District and Sessions at Gwalior on 1^st August 2011.
• She was assigned various responsibilities and upon her performance, she was graded as C/good and B/very good in 2013 and 2014 respectively. The petitioner was assessed by the then District and Sessions Judge (“D & SJ”) and endorsed by Justice ‘A’.
• Thereafter, she was allegedly sexually harassed by Justice ‘A’. She complained on 3^rd July 2014 and was eventually transferred from Gwalior to Sidhi on 7^th July 2014. The petitioner was informed about the transfer order on 8^th July 2014.
• On 9^th July 2014, the petitioner sent her first representation to the then Registrar General (“RG”) of the Madhya Pradesh High Court (“MP HC”), praying for an extension of 8 months in Gwalior so that her daughter could complete her class XII academic session in school. Her request was rejected on 11^th July 2014. The petitioner, unaware about the rejection of her first representation, sent her second representation on 11^th July 2014, seeking alternative posting to cities namely Sehore, Raisen, Dewas or Ujjain so that her daughter could continue with her education, which was also rejected on 14^th July 2014.
• The petitioner resigned on 15^th July 2014, which was accepted by the Government of Madhya Pradesh, Law and Legislative Affairs Department on 17^th July 2014. She was informed about the acceptance of her resignation on 18^th July 2014.
• On 1^st 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 HC for reconsideration of the circumstances under which, she was left with no option but to resign.
• In this writ petition, the petitioner did not move the court on the ground of sexual harassment by Justice ‘A’ and limited her submissions in reference to the transfer order amounting to being invalid.

Issue: Therefore, the important questions in this writ petition was to determine:

• Whether the order transferring the petitioner from Gwalior to Sidhi was valid in the eyes of law
• Whether rejection of the petitioner’s representation was legal
• Whether the resignation of the petitioner can be considered as voluntary or was it forced due to abysmal circumstances.

On issue 1:

The Court observed the following points regarding the transfer of the petitioner:

• The then Judge on the Transfer committee had agreed in his statement before the Judges Inquiry Committee (“JIC”) that at the time of the transfer, vacancies at the 4 places which were requested by the petitioner in her second representation, was much higher than at Sidhi. Even so, the transfer of the petitioner was made in view of public interest or in the interest of the administration relating to the requirement of an Additional Judge at Sidhi.
• One of the grounds on which the transfer could be made in mid­term, is that the performance of such Judicial Officer should be below the norms prescribed. This does not apply in the present case. The petitioner’s performance in the assessment made by the then D & SJ, Gwalior on 15^th 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.
• 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.
• In Somesh Tiwari v. Union of India and Others [(2009) 2 SCC 592], this Court 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 which is of two kinds — one ‘malice in fact’ and the second ‘malice in law’.  When an order is not based on any factor relevant for passing an order of transfer then, such an order would not be sustainable in law. 

Decision: The Court decided that the transfer order of the petitioner dated 8^th July 2014, was not made in the public interest or in the interest of the administration. The transfer was made based on the complaint made by the then D & SJ, Gwalior. Therefore, the transfer order would fall under ‘malice in law’ in as much as it was passed without taking into consideration the Guidelines provided in the transfer policy but based on unverified allegations made in the complaint made by the then D & SJ, Gwalior.

On issue 2:

The Court observed the following points regarding the petitioner’s representation:

• As per the transfer policy, the petitioner is entitled to make a representation to the MP HC for retaining her at the same posting, or for posting at alternate places of her choice. When the transfer policy provides for a ground on which the representation is to be made, then the least, it is to be expected that the matter should be considered in reference to the provisions 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 in her first representation.  The petitioner was willing to abide by the transfer order after her daughter completed her academic year.  However, the Transfer committee, in its meeting held on 7^th July 2014, had recommended the transfer of the petitioner on administrative grounds about the conduct and behaviour of the petitioner, and therefore, the first representation was rejected.
• The petitioner made two representations with different requests, In the first representation, she had sought retention at Gwalior, and in the second representation, she had requested for posting at any of the 4 places as aforesaid with respect to her daughter’s education. However, the then Registrar General on 14^th July 2014 decided that “the said representation was made almost on identical grounds as were made in the first representation, which was already rejected on 11^th July 2014”. 

Decision: The Court decided that this was factually incorrect. In consonance with 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. The then Judge on the transfer committee, in his statement before the JIC, also agreed that he had not gone into the annexures, which were attached with the representation of the petitioner. The decision taken was irrational. An action which is arbitrary, irrational, and unreasonable would be hit by Article 14 of the Constitution of India. Therefore, the rejection of the representations made by the petitioner dated 9^th July 2014 and 11^th July 2014, is invalid in law.

On issue 3:

The Court observed the following regarding the resignation of the petitioner.

• Resignation in the present matter could not be construed as voluntary or not, unless the circumstances surrounding the resignation is taken into consideration.
• The petitioner was assigned various responsibilities and upon her performance, she was graded as C/good and B/very good in 2013 and 2014 respectively. With respect to the career of the petitioner, there were no issues.
• 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 commitments and also that he had to look after his aged parents, the petitioner had to draw a balance between her duties as a Judicial Officer and as a mother.
• The transfer order came in on 8^th July 2014. 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.
• The petitioner in her resignation letter, 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. She also wrote that, 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.
• In some High Courts, whenever a Judicial Officer having good track record resigns, an attempt is made by the Senior Judges of the High Court to counsel and persuade to withdraw the resignation. 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. 

Decision: The Court referred to the judgment Dr. Prabha Atri v. State of U.P. and Others [(2003) 1 SCC 701], In P.K. Ramachandra Iyer v. Union of India [(1984) 2 SCC 141 : 1984 SCC (L&S) 214], Moti Ram v. Param Dev [(1993) 2 SCC 725] and reiterated that ‘To constitute a ‘resignation’, it must be unconditional and with an intent to operate as such.’ Resignation is a voluntary surrender of a position by the one resigning, which should be made freely and not under duress. The petitioner’s resignation was made in exasperation and frustration and this injustice was being done by the very own Institution of Judiciary.

Judgment: The Court declared that the petitioner’s resignation from the post of Additional District & Sessions Judge, Gwalior dated 15^th July 2014 is not voluntary. The resignation was quashed, and the petitioner was made entitled for continuity in service with effect from 15^th July 2014.

(Note: As stated above, Article 14 of the Constitution of India provides for equality before the law or equal protection of the laws within the territory of India.)

– Shagnik Bhattacherjee, Legal and Compliance & Rhea Bazaz, Final Year Student, Symbiosis Law School, Pune