2022 (2) TMI 1495 - SC - Indian Laws

Legality of order transferring the Petitioner from Gwalior to Sidhi dated 8th July 2014 - legality of order rejecting the Petitioner s representations - resignation of the Petitioner dated 15th July 2014 can be considered to be voluntary or the one which has been forced due to circumstances. HELD 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. 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. The Petitioner s resignation dated 15th July 2014 could not be construed to be voluntary. In any case immediately in a fortnight 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. 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. Conclusion - i) 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. ii) The Respondents are directed to re-instate 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. Petition allowed in part.

Summary

1. **Issues Presented and Considered**

The Court considered the following core legal issues:

(i) The legality of the transfer order dated 8th July 2014, transferring the Petitioner from Gwalior to Sidhi.

(ii) The legality of the orders dated 11th July 2014 and 14th July 2014, which rejected the Petitioner's representations dated 9th July 2014 and 11th July 2014, respectively.

(iii) Whether the Petitioner's resignation dated 15th July 2014 was voluntary or forced due to circumstances.

2. **Issue-wise Detailed Analysis**

(i) Legality of the Transfer Order

- **Relevant Legal Framework and Precedents:** The Transfer Policy of the Madhya Pradesh High Court, established on 12th January 2012, outlines the procedure for transferring judicial officers. Key clauses include the tenure of postings, grounds for mid-term transfers, and provisions for extensions based on family circumstances.

- **Court's Interpretation and Reasoning:** The Court found that the Petitioner's transfer was contrary to the Transfer Policy. The policy allowed for extensions if a judicial officer's child was in the final year of board exams and lacked hostel facilities. The Petitioner's daughter was in Class 12th, and the Court noted that her request for an extension was not properly considered.

- **Key Evidence and Findings:** The Joint Inquiry Committee (JIC) had found the transfer irregular and noted that it was based on a complaint by the then District and Sessions Judge, Gwalior, rather than administrative grounds.

- **Application of Law to Facts:** The Court determined that the transfer was not made in public interest or administrative necessity, as claimed by the respondents, but was based on unverified allegations.

- **Treatment of Competing Arguments:** The respondents argued that the transfer was an administrative decision, but the Court found this unsubstantiated by evidence.

- **Conclusions:** The transfer order was deemed illegal and arbitrary, violating the Petitioner's legitimate expectations under the Transfer Policy.

(ii) Legality of the Rejection of Representations

- **Relevant Legal Framework and Precedents:** The Transfer Policy allowed judicial officers to make representations for retention or alternative postings, which should be considered earnestly.

- **Court's Interpretation and Reasoning:** The Court found that the rejection of the Petitioner's representations was arbitrary and contrary to the Transfer Policy. The representations were not considered in light of the policy's provisions.

- **Key Evidence and Findings:** The representations were rejected without proper consideration, and the required procedure under the policy was not followed.

- **Application of Law to Facts:** The Court noted that the Petitioner's representations were dismissed without considering the educational needs of her daughter, which was a valid ground under the policy.

- **Treatment of Competing Arguments:** The respondents maintained that the representations were considered, but the Court found this claim unsupported by the facts.

- **Conclusions:** The rejections were invalid as they were not based on relevant considerations and failed to follow the policy.

(iii) Voluntariness of the Resignation

- **Relevant Legal Framework and Precedents:** The concept of constructive dismissal and the voluntariness of resignation were considered, referencing precedents from the UK and US courts.

- **Court's Interpretation and Reasoning:** The Court concluded that the resignation was not voluntary but was forced by the circumstances, particularly the mid-term transfer and the rejection of representations.

- **Key Evidence and Findings:** The resignation letter indicated that the Petitioner felt she had no option but to resign due to the impact on her daughter's education.

- **Application of Law to Facts:** The Court considered the rapid sequence of events leading to the resignation and the lack of proper consideration of the Petitioner's circumstances.

- **Treatment of Competing Arguments:** The respondents argued that the resignation was voluntary and acted upon, but the Court found that the circumstances suggested otherwise.

- **Conclusions:** The resignation was not voluntary, and the acceptance of the resignation was set aside.

3. **Significant Holdings**

- **Core Principles Established:** The Court emphasized the importance of adhering to established policies and procedures, particularly when they create legitimate expectations for individuals. It underscored the requirement for fair and reasonable consideration of representations made under such policies.

- **Final Determinations:** The Court quashed the acceptance of the Petitioner's resignation and directed her reinstatement with continuity in service but without back wages.