A two-judge Bench of the Supreme Court comprising of Justice L Nageswara Rao and Justice BR Gavai has held the Petitioner's resignation from the post of Additional District & Sessions Judge, Gwalior cannot be construed to be voluntary. The Respondents were directed to reinstate the Petitioner as an Additional District & Sessions Judge.

This was a Writ action filed before the Apex Court under Article 32 of the Constitution praying setting aside of Order of the Chief Justice of Madhya Pradesh High Court, passed in Full Court Meeting, rejecting the application for reinstatement as violative of Article 14, 15, 16, 21 read with 233, 235, and 311 of the Constitution and natural justice.

The Petitioner also prayed that the resignation from the post of ADJ be declared as constructive dismissal due to the employer's conduct.

Ms. Indira Jaising, Senior Advocate appeared on behalf of the Petitioner while Mr. Tushar Mehta, SG appeared for the Respondents.

The Petitioner was selected in MP HJS at District Entry Level and stood 2nd in the said examination. The Petitioner was posted as a 2nd to 1st AD and SJ at Gwalior.

The Petitioner alleged that she was sexually harassed by Justice A. It was averred that due to the harassment and at the instance of Justice A, the then D & SJ addressed a complaint against her to the MP High Court. Her transfer was approved to Sidhi. The Petitioner sent her first representation to the RG praying for an extension of 8 months so that her daughter completes her academic session. This was rejected.

Being unaware of rejection, a second representation was sent seeking alternative posting so that daughter could continue with her education. This was also rejected.

Petitioner tendered her resignation which was accepted. She addressed a representation to the President, Chief Justice of India with a copy of Chief Justice of MP High Court.

A judgment was passed by the Apex Court in Additional District and Sessions Judge 'X'. v. Registrar General, High Court of Madhya Pradesh and Others with regard to the enquiry into the conduct of Justice A.

An In House Committee was constituted. A notice of motion was moved for removal of Justice A. Motion was admitted. A Judges Inquiry Commission was constituted under Section 3 of the Judges Inquiry Act. A report was tabled before Rajya Sabha. It was found that the transfer was irregular and had become unbearable for her to continue in service resulting in her resignation. JIC expressed its opinion that the Petitioner should be reinstated in case she intends to join.

The Petitioner then addressed a representation to the then CJ of MP HC. This was rejected by a Full Court. Hence, the present petition was filed. The Petitioner restricted her submissions to the transfer order being illegal.

The Supreme Court noted that it was not examining the correctness of the decisions of the Full Court of MP HC. It noted that the scope of judicial review of a decision of a Full Court is extremely narrow and it cannot sit in an appeal over the decision of a Full Court.

The Court noted it was examining the matter purely as a lis between an employee and an employer without being influenced by the fact that one of the parties is the administrative side of MP HC and the other is a judicial officer.

The Court noted that "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." The Court relied upon observations made in Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71.

The Court noted 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."

The Court noted that the Petitioner had a legitimate expectation of her representation being considered specifically in view of Clause 9(a) of the Transfer Policy.

The Court noted that rejection of second representation depicts total non-application of mind by RG as well as the then Judge of Transfer Committee.

The Court made the following crucial observations:

"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."

The Court noted that a judicial officer is also a human being. The Court noted that "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."

The Court noted that both the Petitioner's daughters were taking education. It was noted that 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.

The Court made the following observations:

"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 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."

The Court noted that in the peculiar facts and circumstances of the case, the Petitioner's resignation could not be construed to be voluntary.

The Court noted that "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."

The Respondents were directed to reinstate the petitioner as an AD & SJ. The Petitioner would not be entitled to back wages but she would be entitled to continuity in service with all consequential benefits.

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