Supreme Court: In the case where one Additional District and Sessions Judge of Madhya Pradesh was “was left with no other alternative” but to resign after she was transferred as a consequence of the sexual harassment allegations levelled by her against the then Portfolio/Administrative Judge of Madhya Pradesh High court, the bench of L. Nageswara Rao and BR Gavai has held that the said resignation cannot be said to be voluntary and hence, set aside the order accepting her resignation and directed her reinstatement directed as an Additional District & Sessions Judge.
In the 86-pages long verdict the Court refrained from naming the parties and only restricted itself to decide if the transfer and acceptance of Petitioner’s resignation was arbitrary or not.
“Frustrating” chain of events leading to resignation by the petitioner
- The petitioner was posted as a 2nd to 1st Additional District and Sessions (AD & SJ) at Gwalior on 1st August 2011.
- In the 1st Annual Confidential Report (ACR) of the petitioner, assessed in January, 2013, 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’, then Portfolio/Administrative Judge of the High Court of Madhya Pradesh at Gwalior Bench, she was graded ‘B/very good’.
- Thereafter, she was allegedly sexually harassed by Justice ‘A’. She complained on 3rd July 2014 and was eventually transferred from Gwalior to Sidhi on 7th July 2014. 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 (RG) of the MP High Court, praying for an extension of 8 months in Gwalior so that her daughter, who was studying in Class 12th and was also undergoing FIITJEE coaching, completes her academic session. The 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 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.
- 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. She was informed about the acceptance of her resignation on 18th July 2014.
- On 1st 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.
Factors considered by the Supreme Court
Mid-term Transfer
The transfer of the petitioner was effected mid-term though she could have very well been transferred in general transfers, to be effected in March–April, 2014. Even in the agenda of the mid-term transfers, which were to be effected on various grounds, petitioner’s name was not included. It was only after the then D & SJ, Gwalior 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.
The transfer was also 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 mid-term, is that the performance of such Judicial Officer is found to be below the norms prescribed. However, in the case at hand, 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’.
The second ground 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, is also not applicable to the present case.
Transfer from Gwalior to 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 then Judge on the 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.
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, the Court refused 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.
Representation with respect to daughter’s education vis-à-vis 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.
In the present case, within two days from the submission of the representation, the Transfer Committee rejected the same without considering sub-clause (a) of Clause 9 of the Transfer Policy. 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.
Judges are humans
“No doubt, that a Judicial Officer while discharging his/her duties, is expected to be independent, fearless, impassionate and non-impulsive. 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.”
The Petitioner had stated that her transfer had mostly affected the crucial stage of career of her daughter and therefore, she was left with no other option but to resign from her post.
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.
“It appears that in a gruesome battle between a mother and a Judicial Officer, the Judicial Officer lost the battle to the mother.”
Conclusion
- 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.
- Though it is the case of the RG that the petitioner was transferred on the ground of administrative exigencies, the material placed on record and particularly, the depositions of the then judge on he Transfer Committee and the then RG, clearly show that it was on the basis of the complaint made by the then D & SJ, Gwalior.
- The resignation letter in the present case was on account of exasperation and frustration actuated by a thought, that injustice was being meted out to her by the very Institution of Judiciary. The petitioner’s resignation dated 15th July 2014, could not be construed to be voluntary. Though, it may not be possible to observe that the petitioner was forced to resign, however, the circumstances enumerated above, clearly revealed that they were such, that out of frustration, the petitioner was left with no other alternative.
[Ms. X v. REGISTRAR GENERAL, HIGH COURT OF MADHYA PRADESH, 2022 SCC OnLine SC 171, decided on 10.02.2022]
*Judgment by: Justice BR Gavai
Counsels
For petitioner : Senior Advocate Indira Jaising
For respondent: Solicitor General Tushar Mehta