Sarita Choudhary v. High Court of Madhya Pradesh & Another

p. 1505

Further resolved that the representation dated 07.10.2021 of Sushri Sarita Choudhary, II Civil Judge, Junior Division, Goharganj (Raisen) regarding confirmation in M.P. Judicial Service is disposed off in terms of above resolution of the Committee. Let the matter be placed before Full Court for approval by circulation.

xxx xxx xxx Sd/- (RAMKUMAR CHOUBEY) REGISTRAR GENERAL Later on Full Court approved the above recommendation by circulation on 13.05.2023.” 11.2 The order of the Government of Madhya Pradesh, Law and Legislative Works Department dated 23.05.2023 is in respect of Ms. Sarita Choudhary, II-Civil Judge (Jr. Division), Umariya is extracted below. A similar order in respect of Ms. Aditi Kumar Sharma, V-Civil Judge (Junior Division), Tikamgarh was also passed bearing the same date. “GOVERNMENT OF MADHYA PRADESH, LAW & LEGISLATIVE WORKS DEPARTMENT ORDER Bhopal, dated 23rd May, 2023 F. No. 2404/2023/21-B(One). As a result of not completing the probation period satisfactorily and successfully by the member of Judicial Service namely Ms. Sarita Chaudhary, Second Civil Judge (Junior Division), Umariya, in pursuance of the decision taken in the meetings dated 08.05.2023 and 10.05.2023 of the Administrative Committee of High Court, Madhya Pradesh and meeting dated 13.05.2023 (by circulation) of Full Court, it has been recommended to Termination of Service of aforesaid Judicial Officer. Being agreed with the enclosures enclosed with the Recommendation of High Court, Madhya Pradesh

p. 1506

regarding aforesaid Judicial Officer, the State Government has decided that Ms. Sarita Chaudhary, Second Civil Judge (Junior Division), Umariya, be terminated from service with effect from the date of order. Therefore, under Rule 11(c) of the M.P. Judicial Service (Recruitment & Conditions of Service) Rules, 1994, the State Government do hereby Terminates Ms. Sarita Chaudhary, Second Civil Judge (Junior Division), Umariya from Service. In the name of Governor of Madhya Pradesh & by the Orders Sd/- (B.K. Dwivedi) Principal Secretary Law & Legislative Works Department Page No. F. No. 2404/2023/21-B(One) Bhopal, Dt. 23rd May, 2023 Copy to:-

1. Registrar General, M.P. High Court, Jabalpur, in reference to his Demi-Official letter No. 479/Gopniya/2023 Two-3-70/60 dated 13.05.2023.

2. Accountant General, Madhya Pradesh, Gwalior (M.P.) for information and necessary action.

3. Deputy Controller, Government Central Printing Press, Arera Hills, Bhopal for publication in the next issue of Gazette. Sd/-23.05.2023 (Rajghvendra Bhardwaj) Additional Secretary Government of Madhya Pradesh Law & Legislative Works Department”

Discussion:

12. The services of a probationer could result either in a confirmation in the post or ended by way of termination simpliciter. However, if a probationer is terminated from service owing to a misconduct as

p. 1507

a punishment, the termination would cause a stigma on him. If a probationer is unsuitable for a job and has been terminated then such a case is non-stigmatic as it is a termination simpliciter. Thus, the performance of a probationer has to be considered in order to ascertain whether it has been satisfactory or unsatisfactory. If the performance of a probationer has been unsatisfactory, he is liable to be terminated by the employer without conducting any inquiry. No right of hearing is also reserved with the probationer and hence, there would be no violation of principles of natural justice in such a case. 12.1 In Parshotam Lal Dhingra, this Court held that the protection of Article 311 also covers a probationer if the termination was by way of a punishment and “it puts delible stigma on the officer affecting his future career”. To a similar effect is the ruling of this Court in the case of State of Bihar vs. Gopi Kishore Prasad, AIR 1960 SC 689. In the said case, it was observed that if the employer simply terminates the services of a probationer without holding an inquiry and without giving him a reasonable chance of showing cause against his removal from service, the probationary civil servant has no cause of action even though the real motive behind the removal from service may have been that the employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct, or efficiency or some such cause. Thus, the test is, whether, in a given case the termination is simpliciter or by way of punishment. When termination is by way of punishment, the concept of stigma would arise. If a punishment casts a stigma on the competence of an employee, it can affect his future career. However, the dilemma is, even when the probationer, who has no right to hold the post in the first instance, could argue that a cessation of service owing to non-suitability, inefficiency or any other similar reason was stigmatic. 12.2 As noted, if a termination from service is not visited with any stigma and neither are there any civil consequences and nor is founded on misconduct, then, it would be a case of termination simpliciter. On the other hand, an assessment of remarks pertaining to the discharge of duties during the probationary period even without a finding of misconduct and termination on the basis of such remarks or assessment will be by way

p. 1508

of punishment because such remarks or assessment would be stigmatic. According to the dictionary meaning, stigma is indicative of a blemish, disgrace indicating a deviation from a norm. Stigma might be inferred from the references quoted in the termination order although the order itself might not contain anything offensive. Where there is a discharge from service after prescribed probation period was completed and the discharge order contain allegations against a probationer and surrounding circumstances also showed that discharge was not based solely on the assessment of the employee’s work and conduct during probation, the termination was held to be stigmatic and punitive vide Jaswantsingh Pratapsingh Jadeja vs. Rajkot Municipal Corporation, (2007) 10 SCC 71. 12.3 Even though a probationer has no right to hold a post, it would not imply that the mandate of Articles 14 and 16 of the Constitution could be violated inasmuch as there cannot be any arbitrary or discriminatory discharge or an absence of application of mind in the matter of assessment of performance and consideration of relevant materials. Thus, in deciding whether, in a given case, a termination was by way of punishment or not, the courts have to look into the substance of the matter and not the form. 12.4 In Samsher Singh vs. State of Punjab, AIR 1974 SC 2192, a seven-Judge Bench of this Court held that if a probationer was discharged on the ground of misconduct or inefficiency or for similar reasons without a proper inquiry it might, in a given case, amount to inflicting the punishment of removal from services within the meaning of Article 311(2) of the Constitution. In the very same case, it was also observed as a test for determining whether, the termination was by way of punishment, namely, whether, the termination was sought to be founded on misconduct, negligence, inefficiency or other disqualification. Thus, if a termination is founded on misconduct, it would be a punishment but de hors this, if the right to terminate existed, the motive operating in the mind of the employer would be wholly irrelevant. However, all that is stated above would ultimately boil down to the question, whether, the termination would prejudicially affect the future employment of the employee. It is this delicate line which has to

p. 1509

be discerned in every case where a challenge to a termination is made by a probationer. In other words, if the termination is simply owing to unsuitability having regard to the nature of the job and such other factors, it is not stigmatic. Before any probationer is considered for confirmation, the satisfactory nature of the work and suitability of the probationer have to be considered for which some inquiry would have to be made and if it is found that he is unsuitable for the job then, he could be discharged and the same would be non-stigmatic and this would also not call for opportunity for hearing being given to a probationer.

13. The relevant case law could be discussed at this stage: (i) In Anoop Jaiswal, the facts were that the impugned order of discharge was passed in the middle of the probation period after seeking an explanation regarding the alleged act of indiscipline. Similar explanations were called from persons other than the appellant therein, but in the end only the case of the appellant was dealt with severely. This Court observed that even though the order of discharge was non-committal, it could not stand alone. It was observed that though the noting in the file of the Government may have been irrelevant, the cause of the order of discharge could not have been ignored. That the recommendation, which was the basis or the foundation for the order of discharge should have been read with the order for the purpose of determining its true character. If on reading the two together the court reached the conclusion that the alleged act of misconduct was the cause of the order and but for that allegation it could not have been passed, then it was inevitable that the order of discharge should fall to the ground. This was because the appellant therein had not been afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution. While holding so, this Court held in paragraph 12 as under: “12. It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of

p. 1510

the order. If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.” Consequently, in the aforesaid case, after discussing the facts of the case in detail, this Court set aside the order of discharge/ termination of service on the ground that an inquiry ought to have been held against the appellant therein prior to termination of service. As a result, the appellant therein was reinstated in service at the same rank and seniority in which he was entitled to before the order the discharge was passed, as if it had not been passed at all, with all consequential benefits. (ii) In Dipti Prakash Banerjee, this Court inter alia, considered the following points: “(1) In what circumstances, termination of a probationer’s services can be said to be founded on misconduct and in what circumstances could it be said that allegations were only a motive? (2) When can an order of termination of a probationer be said to contain an express stigma? (3) Can stigma be gathered by referring back to proceedings referred to in termination order? Each of the aforesaid points were answered which can summarised as under: Point 1: If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as “founded” on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want

p. 1511

to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid. xxx Point 2: There is considerable difficulty in finding out whether in a given case where the order of termination is not a simple order of termination, the words used in the order can be said to contain a ‘stigma’. It depends on facts and circumstances of each case and language or words used to ascertain whether termination order contains stigma. xxx Point 3: Material which amounts to stigma need not be contained in termination order of a probationer but might be contained in documents referred to in the termination order or in its annexures. Such documents can be asked for, or called for, by any future employer of the probationer. In such a case, employee’s interests would be harmed and therefore termination order would stand vitiated on the ground that no regular enquiry was conducted. xxx It is true that the Supreme Court in some of the cases has held that termination order is not punitive where employee has been given suitable warnings or has been advised to improve himself or where he has been given a long rope by way of extension of probation. However, in all such cases, there were simple orders of termination which did not contain any words amounting to stigma. On the other hand, there is a stigma in the impugned order which cannot be ignored because it will have effect on the appellant’s future. Stigma need not be contained in termination order but may also be contained in an

p. 1512

order or proceeding referred to in termination order or in an annexure thereto and would vitiate the termination order.” Referring to Indra Pal Gupta vs. Managing Committee, Model Inter College, Thora, (1984) 3 SCC 384, it was observed in paragraph 35 that the said decision is a clear authority for the proposition that the material which amounts to stigma need not be contained in the order of termination of the probationer but might be contained in any document referred to in the termination order or in its annexures. Obviously, such a document could be asked for or called for by any future employer of the probationer. In such a case, the order of termination would stand vitiated on the ground that no regular enquiry was conducted. In that case, the employer had given ample opportunity to the employee by giving him warnings, asking him to improve and even extended his probation twice. It was observed that in such circumstances where he was given a long rope by way of extension of probation, this Court had said that the termination order could not be held to be punitive as held in Hindustan Paper Corpn. vs. Purnendu Chakrobarty & Ors., (1996) 11 SCC 404, Oil & Natural Gas Commission vs. Dr Md. S. Iskender Ali, (1980) 3 SCC 428, Principal, Institute of Post Graduate Medical Education & Research, Pondicherry vs. S. Andel & Ors., 1995 Supp (4) SCC 609 and a labour case being Oswal Pressure Die Casting Industry, Faridabad vs. Presiding Officer, (1998) 3 SCC 225. This Court further observed that in the above noted cases, the order were simple orders of termination which did not contain any word amounting to stigma. That in case it was concluded that there was stigma in the impugned order of termination or discharge it would have an effect on the future irrespective of whatever had been the earlier opportunities granted by the employer to the employee to improve. Thus, the approach of the Court must be firstly, to ascertain whether the impugned order is founded on any conclusions arrived at by the employer as to his misconduct or whether the termination was passed because the employer did not want to continue an employee against whom there were some

p. 1513

complaints. The second aspect is whether there is any stigma in the order of termination or in the documents referred to in the termination order. In the aforesaid case, the impugned order of termination was quashed and the appeal was allowed. The appellant therein was directed to be reinstated with back wages till the date of reinstatement and continuity of service reserving liberty to the respondents therein to take such action as they deem fit in accordance with law against the appellant therein. (iii) Recently in Swati Priyadarshini, this Court, placing reliance on the earlier judgment in Parshotam Lal Dhingra granted relief to the appellant therein. The relevant portion of Parshotam Lal Dhingra could be recapitulated as under: “28. …. Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal. … In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with. As already stated if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Article

p. 1514

311, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affecting his future career. …” (iv) Jayshree Chamanlal Buddhbhatti is a case pertaining to a Civil Judge, Junior Division who was placed on probation for the period of two years. The respondent in the aforesaid case initially received certain adverse remarks to which she sent her replies and the same were followed by her termination from service on the premise that her performance was not good and satisfactory and that she was not suitable for the post she held. Therefore, it was recommended for termination of her probation immediately and that she should not be allowed to continue to officiate in service for a long term. Being unsuccessful in her representation, she assailed the same before the High Court which held that it was not a case of termination simpliciter of a probationary officer and therefore set aside the termination of her service and directed reinstatement with back wages. The High Court of Gujarat had preferred an appeal before this Court. Going through the original records, this Court summarised as under: “The question is whether this is a case of termination simpliciter of the services of a probationer on account of her unsuitability for the post that she was holding, or whether it is a termination of her services after holding an inquiry behind her back, and without giving her an opportunity to defend herself. Having gone through the salient judgments on the issue in hand, one thing which emerges very clearly is that, if it is a case of deciding the suitability of a probationer, and for that limited purpose any inquiry is conducted, the same cannot be faulted as such. However, if during the course of such an inquiry any allegations are made against the person concerned, which result into a stigma, he must be afforded the minimum protection which is contemplated under Article 311(2) of the Constitution even though he may be a probationer. The protection is very limited viz. to inform the person concerned about the charges against him, and to give him a reasonable opportunity of being heard.”

p. 1515

Consequently, this Court affirmed relief granted to the respondent therein by granting reinstatement of her service with continuity and all consequential benefits. However, the back wages payable to her were restricted to the period subsequent to the decision of the High Court as the respondent therein confined her prayer to that extent as she was interested in mitigating her position.

Analysis:

Re: Sarita Choudhary:

14. As already noted, Ms. Sarita Choudhary was appointed as a Civil Judge, Class-II (Entry level) vide order dated 28.12.2016 in Madhya Pradesh Judicial Service. For the year 2017 she served as a trainee Judge for which the District Judge graded her as ‘B-Very Good’; however, the Portfolio Judge reduced her general assessment grade to ‘C-Good’. It was noted by the District Judge that her judicial work was satisfactory and she had good reputation and good character. However, the Portfolio Judge noted that on an overall review he disagreed with the remark made by the District & Sessions Judge and thereby changed her grade. 14.1 The ACR of the successive year i.e. 2018 is appreciative for the petitioner. The District Judge granted the petitioner a general assessment grade of ‘B-Very Good’ and it was also noted that she has good conduct of business in court and office, is a sincere and punctual judicial officer and that the quality of her judgments is good. Notably, her management and inter- personal skills were also appreciated. It is equally important to note that her judicial work, quantity and quality-wise, was termed to be ‘good’. Despite not meeting the civil units due to being posted in a vacant court, this assessment was approved as it is by the Portfolio Judge. 14.2 In the following year, while her unit value increased, her general assessment grade was yet downgraded in the ACR for 2019 to ‘C-Good’. Consistent with previous years, it was noted that she has good conduct in in court and office. She was an average judicial officer insofar as sincerity, punctuality and overall performance were concerned. Again, despite not earning requisite civil units it was observed that her quantity of work was good. Our attention was drawn to two letters: the first dated 26.11.2020 which communicated the adverse

p. 1516

remarks to the petitioner and provided her with an opportunity to submit representation. This is particularly useful to know in light of the fact that Complaint No.26/2019 dated 04.01.2019 was filed by an advocate against the petitioner complaining that the petitioner had failed to take action in accordance with law in a grave criminal case. However, the respondent-High Court submitted before us that in a discreet enquiry the said complaint was found to be baseless and therefore no action was taken. 14.3 Furthermore, in another complaint filed by an advocate it was alleged that the petitioner had failed to conduct her court in accordance with law. As her explanation was not found satisfactory, she was issued a warning to conduct proceedings as per law. Finally in another complaint bearing no. 408/2019, the High Court upon discreet enquiry issued a non-recordable warning (oral) to her stating that the petitioner must not repeat procedural mistakes in the future. 14.4 This context is particularly useful in the context of reliance placed on a second letter dated 27.11.2020 which clarified to the petitioner that certain adverse remarks in the ACR for 2019 were only advisory in nature and meant for future guidance and improvement. Therefore, despite these observations the ACR was categorical that she deserves ‘C-Good’ grade and that her quality of judgments is good. We must also note that although all these complaints related to conduct in court, the ACR categorically recorded that petitioner had good conduct of business in court and office, a fact, as already noted, consistent with previous years. 14.5 The Administrative Committee of the High Court was convened on July 24, 2020, to consider the confirmation of 92 temporary Civil Judges (Entry Level) under Rule 11. While considering these cases, the Committee deferred its decision regarding the petitioner due to a complaint filed against her, for which they requested a special report from the District & Sessions Judge. The Administrative Committee’s decision was subsequently approved on August 18, 2020. As we have noted above, the first complaint filed in 2019 was found to be baseless and in the other two, the petitioner was only asked to be careful and conduct proceedings as per law. Albeit, these two complaints were only closed in September 2021, much after petitioner’s case had been deferred.

p. 1517

14.6 Thereafter, petitioner’s ACR for 2020 witnessed a downward shift in her grade to ‘D-Average’. 14.7 In 2020, two complaints were filed against the petitioner by the District and Session Judge, Raisen wherein he complained regarding petitioner’s lack of punctuality and improper conduct of office, and an instance of erroneous grant of bail in a criminal case triable by Sessions Court. Notably, in both complaints she was only given advice to adhere with the rules of court and propriety. In the complaint related to erroneous grant of bail, she was warned to remain vigilant and not commit the same mistake again. 14.8 We note that it is not the case advanced before us that petitioner was not adept at handling criminal cases. In fact her ACRs reflect that the petitioner regularly handled criminal cases. The High Court’s decision to only issue a warning seems to be an acknowledgement of the fact that this instance was an error made by a junior judicial officer who is, indeed, expected to be vigilant but also expected to learn with experience. 14.9 Part II of her ACR for 2020, prepared by the District Judge, noted that her conduct of business in court and office was satisfactory. This observation is despite the first complaint suggesting that she poorly managed her court. While the ACR was overtly critical of her conduct, her lack of sincerity to dispose of old cases and highlighted the lack of transparency in her judicial work which had room for improvement, we must also note that the ACR observed that her unit value earned was in ‘Very Good’ category. Furthermore, it was also noted in the ACR that she earned a total 253.5 units by disposal of cases pending for more than three years. The ACR form, as placed before us, noted 15% of total units earned as the benchmark for disposal of old cases and the same had clearly been achieved by the petitioner. Thus, we are not clear as to how the aforesaid adverse remark regarding lack of sincerity to dispose of old cases was warranted. Although the District Judge had noted that she earned only 3 units in civil cases, we are of the view that this must be seen in light of the fact that the petitioner was already in charge of a vacant court and Covid-19 prolonged civil cases during the year 2020.

p. 1518

14.10 Although it was noted that her judicial and administrative work was not up to the mark and she was habitual to make unnecessary and false statement in official letters, it was also noted that she had satisfactory capability to manage the cases, lead, initiate, plan and make decisions. 14.11 The adverse remarks in the ACR were communicated to the petitioner only on 09.12.2021 and her representation was rejected by the High Court vide letter dated 13.12.2023. We find ourselves in agreement with the general submission of the petitioners that such delay in communicating adverse remarks deprives judicial officers of the ability to rectify their approach and conduct towards their work. In that regard, we would hope that hereafter the High Court will take all reasonable and necessary steps to ensure that such delay is minimized and curtailed. 14.12 It is pertinent to note that as the format of the Assessment Chart placed before the Administrative Committee only includes comments that were exclusively adverse comments, it was never highlighted that her unit value for old cases fell in the ‘Very Good’ classification or that her conduct of business in court and office was considered to be ‘satisfactory’. 14.13 Petitioner’s ACR for 2021 was further downgraded to ‘E-Poor’, despite earning units in excess than required units. It is noted that though the required units per day to be classified as very good were only 3.5, the petitioner had achieved 6.47 units per day. Notably, she was recorded to dispose of 124 cases pending for more than three years. However, she achieved only 149.8 units on the civil side. 14.14 For a comprehensive evaluation of the material on record, we must be cognizant of the fact that the ACR notes her to be not interested in judicial work and adversely remarks her aversion to work. However, simultaneously, it has also been noted that her unit value and disposal of old cases is very good. The ACR also notes that out of 25 targeted old cases she disposed of all cases. Therefore, although the petitioner may have not been able to dispose of any contested civil case in the year 2021, it seems unclear to suggest that a judicial officer may lack initiative to work when the quantitative record suggests that she has been highly productive.

p. 1519

14.15 In stark contrast to the previous year, it was noted that the petitioner has good personal relationship and good team work. In our view, this signifies a crucial improvement in her outlook and interpersonal behaviour and a marked departure which should be appreciated. 14.16 A complaint bearing No.127/2021 was filed against the petitioner for improper behaviour towards her seniors, but upon noting her explanation and apology, the Chief Justice advised her to improve her behaviour and exercise care. Similarly, in another complaint No.130/2021 filed by an advocate, the Chief Justice advised her to be careful. Pertinently, upon perusal of the submissions of the respondent-High Court, it is revealed that as the complaint had been withdrawn, no further enquiry was called for. In light of the fact that this complaint was not mentioned in the Assessment Chart and the complaints had been withdrawn, we are of the view that no adverse inference must be drawn against this petitioner. 14.17 Learned Amicus Curiae and learned senior counsel for the petitioner have drawn our attention to the fact that there was a significant improvement, as noted in her ACR for the following year i.e. 2022, which was also the year before termination. It was noted that the petitioner’s work is ‘good and up to mark’. Comprehensively, her understanding of law, marshalling and appreciation of evidence was appreciated. Her interpersonal relationship with office staff was also appreciated. In consonance with last few years, it was noted that her unit value was in the ‘very good’ category. Although she was unable to achieve the benchmark for disposal of civil cases and disposal through ADR, the District Judge noted that petitioner successfully disposed of all 25 old cases, as targeted in pursuance of High Court Memo No.A/3397 Jabalpur dated 01.09.2022 14.18 We must note that despite complaints filed by members of the Bar in 2022 and one even alleging mismanagement of files in her courtroom, the District Judge in the ACR for 2022 noted that her managerial skill and leadership quality was good and so was her decisive nature.

p. 1520

14.19 In the assessment chart placed before the Administrative Committee and the Full Court, two complaints against the petitioner were shown as pending. Of these, the first related to 321 suspicious cases/order sheets found in the court of the petitioner. There is merit in the submission of the petitioner that the Inquiry Report dated 13.12.2022 found that while the petitioner should have continuously monitored those suspicious cases/order sheets but the actual negligence and lack of sense of duty was on part of the then posted execution clerks, who were then subjected to departmental inquiry. In our view, this fact also lends credence to her submission that her court staff generally failed to execute and follow directions or instructions. 14.20 Another complaint bearing No.174/2023 is reflected as pending in the Assessment Chart. However, as neither any explanation was actually called for nor any action was taken in respect of this complaint regarding a post on Face Book messenger, the same would not merit further consideration by us. Although two more complaints were filed against the petitioner in 2023, we must be circumspect in considering the same as they were not placed before the Administrative Committee and the Full Court when the decision to terminate was taken. It is alleged in Complaint No.271/2023 dated 29.04.2023 that during her posting in Umaria District, the petitioner resided in Room No.4 of Judicial Officer’s Circuit House without submitting any application for allotment in the Circuit House. It was complained that petitioner’s act of leaving with the keys of the VIP Room had caused grave inconvenience to visiting guests. 14.21 In Complaint No.286/2023, it was complained that petitioner took unauthorized absence from office. 14.22 In our view, these complaints should not stand as a hurdle in any holistic consideration in favour of this petitioner as neither do they speak about her capabilities as a judicial officer nor do they militate the fact that the latest ACR for 2022 was generally positive and noted her to have undoubtful integrity, good personal relationships and high disposal.

p. 1521

Re: Aditi Kumar Sharma:

15. On a perusal of the material on record, it is inferred that petitioner- Aditi Kumar Sharma’s performance for the years 2019 and 2020 was sufficiently good and does not call for minute scrutiny except for the low unit value. Although the respondent-High Court has contended that in 2020, her final disposal rate was poor, it is pertinent to give weight to the submission that in 2020 only urgent cases were heard due to the pandemic and that in the same year she got married. On a broader level, we note that after considering her overall performance the petitioner was finally awarded the grades ‘B-Very Good’ in her ACR for 2019 and ‘C-Good’ in the ACR for 2020. 15.1 Note must also be made of ‘Column 8 – General Assessment’ wherein the Principal District Judge has noted as follows: “She is hard working judge, having good reputation and character and takes her responsibilities seriously. Her conduct, behaviour and working is very good. She is submissive, serious officer.” 15.2 If there indeed was a significant deficiency towards her work, there clearly would have been no occasion for the Principal District Judge to observe as above. The aforesaid ACR was also approved by the Chief Justice as it is. 15.3 Therefore what falls for consideration, on facts, are the ACRs for the following two years and the complaints filed against her. As noted, the petitioner’s initial grade of ‘B-Very Good’ in the ACR of 2021 was lowered by the Portfolio Judge to ‘C – Good’ considering the pendency and disposal. Foundationally, it is pertinent to examine the remarks of the Principal District and Sessions Judge made in her ACR for the year 2021. Part II of the ACR for 2021 noted that the Principal District Judge was of the view that the petitioner has ‘very good conduct of business in court and office staff’. Additionally, she was also noted to be ‘sincere and punctual’ and someone who ensures the regular entry of data on NJDG portal. Although she earned only 22.9 civil units in 2021, the general assessment was that her ‘judicial work, quantity and quality wise is very good. Her administrative work is very good’.

p. 1522

15.4 Upon perusal of the record, it is apparent that the Portfolio Judge deemed it fit to downgrade her from ‘B-Very Good’ to ‘C-Good’ only due to ‘pendency and disposal’. We are of the view that an appropriate analysis of ‘pendency and disposal’ must not be distanced from the practical realities of the courtroom and the petitioner’s life. In fact, the petitioner in the section titled ‘If required the following note stating reasons/endeavours may be added’ has supplemented the quantitative record of the ACR with reasons explaining the deficit. In Column 1(e) it was added that she was unable to reach the benchmark set for disposing of sufficient number of cases pending in her court as she presided over a vacant court with very old and complicated files transferred to her. Furthermore, in Column 1(f) wherein a judicial officer is provided opportunity to give any other sufficient reason beyond control, she submitted as follows: “After my regular posting to a vacant court, most of the time the proper and regular functioning of the court ha(d) been adversely affected by the global pandemic COVID-19. In the same course of time, i got married on a very short notice shortly after which i had contracted COVID-19 infection. i was hospitalised in ICU for the treatment of the same at dedicated covid 19 centre Chirayu Hospital, Bhopal for 11 days with further prescription of bed rest for more than 10 days after getting discharged ever since then my health not been in good state. In the month of January my elder brother was diagnosed with blood cancer and in the month of march I had a miscarriage due to w(h)ich i had to avail special leave of 45 days on the advice of my doctor. (I) would attribute only the above stated unfortunate yet unavoidable reason for having not achieve the bench mark set by hon. High Court.” 15.5 Some of the prevailing factors cited in her ACR for 2021 by the petitioner-Aditi Kumar Sharma had occurred in 2020 but we would be remiss to ignore their cascading effects, especially as the petitioner submitted that her health had not been in a good state ever since Covid-19. Clearly her elder brother’s

p. 1523

diagnosis is of January 2021 and later in March of the same year she suffered a miscarriage herself. It is apparent from the aforesaid that the additional reasons provided by the petitioner in conjunction with her posting in a vacant court would sufficiently explain the low units earned in 2021. It is also worth noting that so far neither the quality of her work nor the reasons of her health were ever noted to act as hindrances to her service. This is particular evident from absence of negative comments on her ‘State of health’ in any ACR In fact, the respondent-High Court submitted before us that the sole reason for grade ‘C-Good’ was her low disposal rate. At this point, it would be beneficial to appreciate the argument of the learned amicus to the effect that low disposal in the above factual backdrop should not be the sole reason for termination of this petitioner. 15.6 Further, a total of five complaints filed against the petitioner were also taken into consideration by the Administrative Committee. Insofar as 2021 is concerned, the complaint bearing no.75/2021 in which the allegation was of wrongfully adjourning a case was found to be not proved in the report of the enquiry officer. The petitioner has contended that despite a positive preliminary report, the status of the complaint was erroneously marked as pending and placed before the Administrative Committee. We are of the view that it would not be appropriate to draw any negative inference against the petitioner from this complaint as the allegation was found to be not proved. Even the respondent-High Court in its submissions before this Court has noted that it is due to termination of the petitioner that the complaint is kept in abeyance by order of the Chief Justice dt. 27.06.2023. More importantly, as the ACR of 2021 does note that her management, planning, and decision making were good, we glean that the true general assessment of the petitioner on court management would be positive. 15.7 At this juncture, it is pertinent to examine the argument of learned senior counsel for the petitioner who contended that the Administrative Committee gravely erred in considering petitioner-Aditi Kumar Sharma’s ACR for 2022 as the same was yet to be approved and finalised. The relevant extract

p. 1524

of the minutes of the meeting Administrative Committee on 08.05.2023 and 10.05.2023 reads as follows: “Further resolved that following officers did not utilise their probation period successfully and satisfactorily, therefore having considered the ACRs, assessment chart, consistently poor performance/work done and other material, the Committee resolved to recommend that services of the following officers are no more required to be continued. Accordingly, it is resolved to recommend termination of services of the following officers as per Rule 11(c) of M.P. Judicial Service (Recruitment and Conditions of Service) Rules,1994. (emphasis supplied)”

15.8 It is the submission of the petitioner’s learned senior counsel that in reply to an RTI application, it was revealed that the ‘other material’ relied upon were excerpts of ‘unapproved and under process’ ACR of 2022 and the statement showing her actual disposal from January 2023. As noted, after an assessment the ACR is graded by the reporting authority i.e. the Principal District Judge. Thereafter, the same is reviewed by the Portfolio Judge and is finally placed before the Chief Justice for acceptance. It was therefore argued that an unapproved and unprocessed ACR is akin to irrelevant material and could not have been placed for consideration before the Administrative Committee and the Full Court. It is trite law that what cannot be done directly cannot be done indirectly. The imprimatur of the Chief Justice to an ACR is an approval of the highest judicial office in the State which is a mandatory requirement. In the absence of the said procedure being completed, the Administrative Committee could not have considered by classifying an unapproved ACR as ‘other material’. 15.9 Given that the Administrative Committee did indeed take into consideration the ACR for 2022 we consider it useful to examine the same to draw a complete overview of petitioner’s service.

p. 1525

15.10 It is true that the general assessment of the petitioner was further downgraded in her ACR for 2022 to ‘D-Average’. In her self-assessment in the ACR for 2022, the petitioner duly acknowledged that the quantity of work done by her was not satisfactory but that she was leaving no stone unturned to improve. The reasons appended by the petitioner explaining the shortfall, inter alia, were being posted to a vacant court, excessive interim applications, priority given to matters pending for over three years, non-appearance of witnesses and insufficient number of criminal cases, were rejected as unsatisfactory by the Principal District Judge, Ratlam. That being the case, it also merits consideration that the petitioner highlighted in her self-assessment that out of 25 cases specially listed by the High Court in September 2022, the petitioner disposed of 10 cases by the end of the year including the oldest pending case of Satna District. Pertinently, even this ACR found no qualms with the quality of her judicial work. 15.11 Part II of the ACR for 2022 assessed by the Principal District Judge, Ratlam (M.P.) is equal parts appreciative of the quality of petitioner’s judgments, her marshalling and appreciation of evidence, her interpretation and application of law and the style of language in writing judgments, but was critical of the low quantity of work done by her. Column 1 of Part II is a field marked for assessment of judicial officer’s ‘Quality of work’. Further filtered down, Column 1(a) is for evaluation of ‘Conduct of business in Court and Office’. However, instead of assessing the quality of work done in Column 1(a), the Principal District Judge, Ratlam has noted that this petitioner, despite being in the same posting since 26.05.2020, only resolved 28 regular cases in 2022. It is further noted by the Principal District Judge, Ratlam that although the petitioner served as junior-in-charge of the filing section, no notable work carried out by her had been highlighted. In our view any such adverse remark must not be read dehors petitioner’s general approach towards court management. In her self- assessment for the year 2022, the petitioner indeed noted that she inspected the filing section with her senior-in-charge various times and that she found no major shortcoming in

2022. However, it is also pertinent to note that in the preceding

p. 1526

years (2021 and 2020) the petitioner was junior-in-charge of civil record room wherein, according to her ACR for the relevant years, she did observe shortcomings in arrangement of old records and took active steps to ensure that old files were bundled and maintained appropriately in accordance with relevant rules and orders. Therefore, it is apparent that the petitioner has been neither aloof nor uninvested in the improvement of court operations and it would therefore be incongruous with her record to infer the same solely from the observation in ACR of 2022. 15.12 In Part III, the Portfolio Judge agreed with the assessment of the Principal District Judge, Ratlam and concluded that the petitioner deserved the grade of ‘D-Average’ as drastic improvement in working was necessitated to achieve desired targets. In contrast to these observations, we must not lose sight of the fact that the then Principal District & Sessions Judge, who had personally supervised the petitioner, on 23.12.2022 prepared an Annual Inspection Report and observed that petitioner’s judicial work appeared to be ‘excellent’. 15.13 Out of the four remaining complaints, two each were presented before the Administrative Committee as pending and closed. Complaint No.251/2022 dated 24.02.2022, which was shown as pending, alleged an indirect misuse of her position to exert pressure on police officials by way of mentioning the said judicial officer’s name in FIR filed by her sister. While the petitioner contends violation of principles of natural justice and incomplete disclosure by the High Court officials before the Administrative Committee and the Full Court, it is observed that the respondent-High Court has itself in its written submissions filed before this Court notes that by a discreet enquiry report dt. 13.06.2022 the allegations were not found to be correct; however, the file has been kept in abeyance because of the termination of the petitioner. This complaint is inconsequential. 15.14 Another pending complaint in the assessment chart was Complaint No.775/2022 alleging that petitioner did not record the statement of the complainant. While the petitioner contends

p. 1527

that the enquiry was conducted in violation of fundamental principles of natural justice, we find it more appropriate to appreciate the submission of the petitioner that the complaint was voluntarily withdrawn. In view of the same, at this stage, it is inconsequential whether the complaint was supported by affidavit(s) or was the fact of voluntary withdrawal placed before the Administrative Committee or not. In any event, the respondent-High Court has submitted before this Court that Registrar (Vigilance) by his report dated 31.03.2023 only recommended issuance of advice to the petitioner-Aditi Kumar Sharma. Therefore, in view of the aforesaid facts, especially that the complaint is said to have been voluntarily withdrawn, it would be irrelevant to consider the same. 15.15 Two further complaints were reflected as concluded in the assessment chart. Complaint No.664/2022 dated 28.07.2022 alleged that petitioner released her dogs and used abusive words at the complainant. The Assessment Chart noted that, “Status: Hon’ble the Chief Justice order dated 17.12.2022, the permission/direction regarding to take criminal action against the judicial officer namely Sushri Aditi Kumar Sharma may not be given and the complaint be filed.” The petitioner has contended that it was concealed from the Administrative Committee that the Chief Justice had ordered the filing of the complaint after a preliminary enquiry conducted by Registrar (Vigilance) found that the allegations, prima facie, appeared to be an afterthought and counterblast to the police complaint filed by the petitioner against the complainant. Presently, since terminated, the file is kept in abeyance by order of the Chief Justice. 15.16 Complaint No.776/2022 concerning notation of unnecessary comments against an advocate in the order sheet was also shown as concluded in the Assessment Chart. The petitioner has contended that despite being found guilty in a discreet enquiry, no explanation was ever sought from her. Moreover, we note that the only semblance of any action taken therein has been the proposal by PR(Vigilance) to advise the petitioner to maintain cordial relations between the Bar and the Bench. Furthermore, we also note that from 2019 till 2021, her respective ACRs have noted that her

p. 1528

inter-personal relationship with advocates, staff, colleagues, and litigants, was good. Even the ACR for 2021 notes her inter-personal relationship to be satisfactory. Considering the general assessment in the ACR to be the compendious annual review of a judicial officer, rather than relying exclusively on complaints, we find that it would be appropriate to take a holistic view of the material on record. That being the case, especially when action taken was an advisory to maintain cordial relations between the Bar and Bench, no inference negativing her generally cordial approach – as evidenced by successive ACRs - could be drawn from this complaint. 15.17 Therefore, it appears that it is only Complaint No. 664/2022 dated 28.07.2022 concerned with use of abusive words by the petitioner-Aditi Kumar Sharma which would hold weight and suggest that she displayed conduct unbecoming of a judicial officer. However, it is also noteworthy that the Chief Justice had directed that permission for a criminal complaint against the petitioner may not be given.

16. On a perusal of the Minutes of the Meetings of the Administrative Committee of the High Court dated 08.05.2023 and 10.05.2023, it is apparent that the Committee considered the ACRs, Assessment Charts which included the complaints pending/concluded against these two judicial officers. Their consistent “poor performance”/work done and “other material” were also considered by the Committee. As a result of the said consideration, it was resolved that, inter alia, these two officers were no longer required to be continued in their posts. The Minutes extracted above when juxtaposed with our aforesaid analysis would bring to fore the following aspects: (i) That the ACRs which were adverse in nature were either not communicated in time and even after an explanation was received, there were no effort to expunge the adverse remarks made in the said ACRs on the basis of a consideration of the explanation. Possibly they were simply rejected. (ii) The reference to the consistent “poor performance” is also not in accordance with the record which has been submitted by the learned counsel for the respondent-High Court insofar as these two officers are concerned. The record does not reflect any consistent poor performance; the record speaks otherwise.

p. 1529

We have also pointed out the inherent contradictions in the ACRs in our analysis. (iii) As far as “other material” considered is concerned, it could have been the complaints which were either concluded or pending against them. If the complaints formed the foundation for these officers to be terminated, we find that the voluminous cases which we have referred to above in our discussion would clearly point out that an opportunity had to be given before termination. This is particularly having regard to Article 311 of the Constitution read with relevant Conduct Rules. (iv) Therefore, in our view, the termination of these two judicial officers is punitive, arbitrary and therefore illegal. They are not in accordance with the judgments of this Court discussed above, as we have applied the tests laid down in those judgments to the facts of the present cases while detailing the ACRs, the Assessment Charts and other material in light of the submissions made by the learned amicus as well as learned Senior Counsel appearing for the respective petitioners. (v) Even on perusal of the records of the petitioners submitted by the learned counsel for the High Court in a sealed cover, they do not persuade us to take a different view in the matter. (vi) Therefore, we are of the view that the impugned terminations herein were by way of punishment as the surrounding circumstances also show that the terminations were, inter alia, founded on the allegations of the complaints of misconduct and “inefficiency” and were stigmatic in nature. Even though many of the complaints against these officers may have been closed or resulted in advisories/warnings, they could not have been the basis for the impugned terminations. 16.1 In the circumstances, we find that the Resolutions of the Administrative Committee dated 08.05.2023 and 10.05.2023 followed by the Resolution of the Full Court dated 13.05.2023 by circulation; orders of the High Court dated 13.05.2023 and the Government Orders dated 23.05.2023 insofar as these two officers are concerned, are illegal and contrary to the established principles of law and, therefore, are liable to be set-aside and are set-aside.

p. 1530

Women Workforce: Women in the Indian Judiciary:

17. To holistically understand women’s effective participation in the Judiciary, it is important to look at three main phenomena: (I) the entry of women into the legal profession; (II) the retention of women and growth of their numbers in the profession; and (III) the advancement of women, in numbers, to senior echelons of the profession. 17.1 Many have stressed that increased diversity within a judiciary, and ensuring judges are representative of society, enables the judiciary as a whole to better respond to diverse social and individual contexts and experiences. It is a recognition of this fact that a greater representation of women in the judiciary, would greatly improve the overall quality of judicial decision making and this impacts generally and also specifically in cases affecting women. 17.2 Advancing women’s greater participation in the judiciary also plays a role in promoting gender equality in broader ways: a. Female judicial appointments, particularly at senior levels, can shift gender stereotypes, thereby changing attitudes and perceptions as to appropriate roles of men and women. b. Women’s visibility as judicial officers can pave the way for women’s greater representation in other decision- making positions, such as in legislative and executive branches of government. c. Higher numbers, and greater visibility, of women judges can increase the willingness of women to seek justice and enforce their rights through the courts. 17.3 Article 10 of the International Covenant on Economic Social and Cultural Rights states that special protection should be accorded to mothers during a reasonable period before and after child birth. Article 11 of CEDAW states that in order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, State Parties shall take appropriate measures, which can be extracted as under: (a) The right to work as an inalienable right of all human beings;

p. 1531

(b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment; (c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training; (d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work. 17.4 The freedom from discrimination or equal protection of the laws during pregnancy and maternity of a woman are precious rights for women workforce. If pregnancy results in the birth of a child, it brings not only joy to the parents of the child but also a sense of fulfilment to the young mother. On the other hand, a pregnancy miscarriage has deep physical, mental and psychological aftereffects on a woman. Miscarriage is generally defined as a loss of pregnancy before viability. Psychological consequences include increase in the risk of anxiety, depression, post-traumatic stress disorder, sometimes leading to suicides. Recurrent miscarriage leads to obstetrics complications and long-term health problems. Although there is varying amount of physical aftereffects including backache and abdominal pain involved in miscarriages, the psychological and social effects may be more severe and long lasting. A miscarriage affects a person’s identity, leading to disappointments and challenges to motherhood identity and role, stigma and isolation, amongst other aspects. A number of risk factors predisposing women to experience significant psychological distress following miscarriage have also been identified. There could be psychiatric illness and a previous pregnancy loss could lead to increase in chances of severe psychological distress.¹

p. 1532

Conclusion:

18. In the result, we set aside the termination orders vis-à-vis the petitioners herein including Resolution dated 13.05.2023 and the

p. 1533

order/letter dated 13.05.2023 of the High Court, order of the State Government dated 23.05.2023 and all consequential adverse orders, if any. The petitioners herein are reinstated in their service with all consequential benefits, subject to the following conditions: (i) the respondents are directed to declare their probation as on the date their juniors were confirmed; (ii) However, the petitioners herein shall not be entitled to any salary from the date of termination till their reinstatement but the monetary benefits for the said period shall be calculated notionally for the purpose of pensionary benefits etc.; (iii) It is directed that these petitioners shall be reinstated into service within a period of fifteen days from today in accordance with their seniority that they possessed as on the date of termination; and (iv) the complaints if any, which were kept in abeyance by orders of the Chief Justice owing to the termination of these officers may be dealt with in accordance with law. Before parting with these matters, we wish to record our appreciation for the valuable assistance rendered by Sri Gaurav Agrawal, learned senior advocate and Amicus Curiae appointed by the Chief Justice of India in effectively assisting the Court in the adjudication of these cases. The writ petitions as well as Suo Moto Writ Petition are allowed and disposed of in the aforesaid terms.

Result of the case: Writ Petitions and Suo Moto Writ Petition allowed.