Pankaj Bajpai

New Delhi, February 10, 2022: While finding that the transfer order of the then District & Sessions Judge, Gwalior, who raised sexual harassment complaint, was passed without taking into consideration the Guidelines provided in the Transfer Policy but was based on unverified allegations made in the complaint, the Supreme Court has stated that the action of then Chief Justice of MP High Court rejecting representation for reinstatement of concerned Judicial officer was arbitrary, unreasonable and was hit by Article 14 of the Constitution of India.

A Division Bench of Justice B.R. Gavai and Justice L. Nageswara Rao was at pains to say that rejection of representation made by Subordinate Judicial Officer for her transfer posting, depicted total non-application of mind by the then RG((Registrar General) as well as Judge of Transfer Committee of High Court. 

Going by the background of the case, the petitioner (Ms. X) 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. On her selection, the petitioner was posted as a 2nd to first Additional District and Sessions Judge (AD & SJ) at Gwalior. 

In the year 2014, the Petitioner alleged that she was sexually harassed by Justice ‘A’. It was further her case that due to the said sexual harassment and at the instance of Justice ‘A’, the then D & SJ addressed a complaint against her to the MP High Court. It was further urged that the Transfer Committee of the MP High Court comprising two Judges of the MP High Court, approved the transfer of the petitioner from Gwalior to Sidhi.

Later, the petitioner tendered her resignation which was accepted by the Government of Madhya Pradesh, Law and Legislative Affairs Department. Thereafter, the petitioner sent a representation to the President of India, the Chief Justice of India, with a copy to Chief Justice of MP High Court, praying to reconsider circumstances under which petitioner was coerced & exerted duress upon, until the only option she had was to resign. She also prayed for instituting an appropriate mechanism for redressal of grievances of subordinate services judicial officers. 

In the meanwhile, 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’. vs. Registrar General, High Court of Madhya Pradesh and Others , (2015) 4 SCC 91. In pursuance to the said judgment of this Court, the Chief Justice of India sought a preliminary inquiry report. In the meantime, a Notice of Motion for the removal of Justice ‘A’ was moved by 58 Members of Parliament in the Rajya Sabha. Accordingly, a Judges Inquiry Committee (JIC) came to be constituted, which submitted its report and thereafter, the Rajya Sabha cleared Justice ‘A’ of all charges. 

However, the JIC found that the transfer of the petitioner was irregular, resulting in her resignation. The JIC, therefore, expressed its opinion that the petitioner should be reinstated in service, in case she intends to rejoin. Pursuant to the recommendation of the JIC, the petitioner addressed a representation to the then Chief Justice of the MP High Court for her reinstatement, which was rejected. Hence, the present petition. 

After considering the submissions, the Top Court found that the JIC had 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, and further Justice ‘A’ had interfered with the transfer of the petitioner and also had a role to play in the rejection of her representations. 

The Bench added that Transfer Policy is only a set of Guidelines for internal administration of the District Judiciary issued by the MP High Court, and 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.

Speaking for the Bench, Justice Gavai found that the transfer of the petitioner was effected midterm though she could have very well been transferred in general transfers, to be effected in March-April, 2014, and it was only after the then D & SJ, Gwalior addressed a complaint to the then Registrar General (RG), seeking her transfer out of Gwalior, the matter was placed immediately before the Transfer Committee which approved the transfer of the petitioner. 

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, added the Bench. 

Justice Gavai observed that the petitioner had established that her transfer order was in contravention of the Transfer Policy and that rejection of her two representations, in addition of being contrary to the Transfer Policy, were arbitrary. 

When sub-clause (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…. 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 sub-clause (a) of Clause 9 of the Transfer Policy”, added the Bench.

Therefore, the Apex Court declared that the petitioner’s resignation from the post of Additional District & Sessions Judge, Gwalior, cannot be construed to be voluntary and directed the Respondents to reinstate the petitioner forthwith. 

Though the petitioner would not be entitled to back wages, the Court held that she would be entitled for continuity in service with all consequential benefits with effect from July 15,  2014.

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