Sarita Choudhary vs High Court Of Madhya Pradesh

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO.142 OF 2024

SARITA CHOUDHARY …PETITIONER

VERSUS

HIGH COURT OF MADHYA PRADESH & ANOTHER …RESPONDENTS

WITH

SUO MOTO WRIT PETITION (C) NO.2 OF 2023

IN RE: TERMINATION OF CIVIL JUDGE, CLASS-II (JR. DIVISION), MADHYA PRADESH STATE JUDICIAL SERVICE

AND

WRIT PETITION (C) NO.233 OF 2024

ADITI KUMAR SHARMA …PETITIONER

VERSUS

STATE OF MADHYA PRADESH & ANOTHER …RESPONDENTS

Signature Not Verified

Digitally signed by GEETA JOSHI Date: 2025.02.28 17:22:29 IST Reason:

Writ Petition (Civil) No.142 of 2024 Etc. Page 1 of 125 JUDGMENT

NAGARATHNA, J.

INDEX

Introduction: ................................................................................................... 3 Genesis of the Controversy: ............................................................................. 3 Factual Backdrop: ......................................................................................... 11 Re: Sarita Choudhary - W.P. (C) 142/2024: .............................................................. 11 Re: Aditi Kumar Sharma - W.P.(C) No. 233/2024: ..................................................... 24 Submissions of learned Amicus Curiae – Sri Gaurav Aggarwal, Senior Advocate: ..................................................................................................................... 33 Re: Sarita Choudhary: .......................................................................................... 33 Re: Aditi Kumar Sharma:....................................................................................... 38 Submissions on behalf of the Petitioner-Sarita Choudhary: ............................. 42 Submissions on behalf of Petitioner-Aditi Kumar Sharma: ............................... 45 Submissions on behalf of the Respondent-High Court: .................................... 60 Points for Consideration: ............................................................................... 71 Discussion: ................................................................................................... 76 Analysis: ....................................................................................................... 90 Re: Sarita Choudhary: .......................................................................................... 90 Re: Aditi Kumar Sharma:..................................................................................... 101 Women Workforce: Women in the Indian Judiciary: ....................................... 118 Conclusion: ................................................................................................ 123

Writ Petition (Civil) No.142 of 2024 Etc. Page 2 of 125 Introduction:

The careers of two women Judicial Officers out of six have

to be decided in these writ petitions filed by them as well as in

Suo Moto Writ Petition (Civil) No.2 of 2023. Out of six women

Judicial Officers who were terminated from service during their

probation period, four Judicial Officers have been reinstated

pursuant to the resolution of the Full Court of the respondent-

Madhya Pradesh High Court dated 01.08.2024 on certain terms.

However, insofar as two Judicial Officers, namely, Ms. Sarita

Choudhary and Ms. Aditi Kumar Sharma, there has been no

revocation of the earlier resolution and consequently, their

termination under challenge in these writ petitions have to be

decided by this Court.

Genesis of the Controversy:

2. On 23.05.2023, six women Judicial Officers serving in the

State of Madhya Pradesh (Civil Judges, Junior Division) were

terminated on the recommendation of the Administrative

Committee of High Court of Madhya Pradesh. Earlier that month,

the Administrative Committees of the High Court had met on

08.05.2023 and 10.05.2023 for shortlisting of officers for

Writ Petition (Civil) No.142 of 2024 Etc. Page 3 of 125 confirmation of judicial officers on probation. The shortlist were

then recommended to the Full Court of the High Court for

confirmation. On 13.05.2023, the High Court issued an order

confirming a list of 403 Judicial Officers and recommending

termination of services, inter alia, of the petitioners herein. On

the basis of the aforesaid order issued by the High Court, the

termination order(s) in respect of, inter alia, the petitioners

herein were passed on 23.05.2023, thereby, discharging the

petitioners from their duties.

2.1 On 02.09.2023, three women Judicial Officers of the

District Judiciary of the State of Madhya Pradesh made a

representation to Hon’ble the Chief Justice of India alleging their

termination from service as illegal, arbitrary, and contrary to the

Madhya Pradesh Judicial Service (Recruitment and Conditions

of Service) Rules, 1994 (for short, “Recruitment Rules”). Upon

considering the said representation, Hon’ble the Chief Justice of

India, by an administrative Order dated 11.11.2023, directed

that the matter be registered by way of a suo moto writ petition

in respect of all six women judicial officers who were terminated

from service.

Writ Petition (Civil) No.142 of 2024 Etc. Page 4 of 125 2.2 By the time the matter was registered on 07.12.2023, one

of the Judicial Officers, Ms. Sonakshi Joshi, had filed Writ

Petition (C) No.849/2023 before this Court invoking Article 32 of

the Constitution of India. However, by Order dated 22.08.2023,

she withdrew the said writ petition with liberty to secure relief

from the Madhya Pradesh High Court. Similarly, three other

Officers, namely, (1) Ms. Rachna Atulkar Joshi; (2) Ms. Jyoti

Varkade; and (3) Ms. Priya Sharma, who had also filed Writ

Petition (C) Nos.1325, 1339 and 1357 of 2023 respectively under

Article 32 withdrew their writ petitions with liberty to approach

the Madhya Pradesh High Court vide order dated 08.12.2023.

2.3 However, as these four petitioners, who withdrew their writ

petitions from this Court, were not aware of the fact that this

Court had registered Suo Moto Writ Petition as Hon’ble the Chief

Justice of India had already taken cognizance of their grievance,

we found it just that notice must be issued to them in the suo

motu writ petition.

2.4 On 23.07.2024, this Court had requested the Full Court of

the High Court of Madhya Pradesh to reconsider the termination

of the six women judicial officers. Pursuant to our order dated

Writ Petition (Civil) No.142 of 2024 Etc. Page 5 of 125 23.07.2024, the Full Court of the High Court of Madhya Pradesh

re-considered its earlier resolutions and orders impugned in the

suo motu writ petition as well as the other writ petitions, and

consequently, in its 530th Full Court Meeting held on

01.08.2024, four officers, namely, Smt. Jyoti Varkade, Sushri

Sonakshi Joshi, Sushri Priya Sharma, and Smt. Rachna Atulkar

Joshi were considered for reinstatement. However, there was no

quietus to the controversy qua two other officers namely, Sushri

Sarita Choudhary and Sushri Aditi Kumar Sharma as the Full

Court of the High Court did not deem it proper to reinstate them.

For ease of reference, the extract of the Minutes of 530th Full

Court Meeting dated 01.08.2024 at 5.00 P.M are extracted as

follows: -

“xxx

SUB NO.01. Consideration of the matter relating to termination of 06 Civil Judges, Junior Division of Madhya Pradesh Judicial Service.

Hon’ble the Supreme Court in Suo Motu Writ (C) No. 2/2023 in Re: Termination of Civil Judge, Junior Division has been pleased to pass following order on 23.07.2024: -

“Learned senior counsel and Amicus Curiae submitted that although earlier, the concerned Committee had reviewed the matter and had reiterated its earlier resolution, nevertheless,

Writ Petition (Civil) No.142 of 2024 Etc. Page 6 of 125 the Full Court of the High Court could reconsider the matter and depending upon its resolutions, further consideration of these matters could be taken up. In the circumstances, we request the Full Court of the High Court of Madhya Pradesh to reconsider its resolutions and orders impugned in these suo moto writ petition and other writ petitions filed by the parties. On a reconsideration by Full Court of the High Court, a copy of the resolution could be placed before this Court by learned counsel for the respondent-High Court preferably within a period of four weeks from today”.

In view of the order of Hon’ble Supreme Court, Full Court considered the matter and resolves that the termination of following 04 Civil Judges, Junior Division be revoked with a condition that they be posted as Civil Judge, Junior Division with a probation period of one year without backwages and they be placed at the bottom of their respective batch. They will regain their original seniority subject to their confirmation.

xxx

Full Court also considered the matter of Sushri Sarita Choudhary, the then II-Civil Judge Junior Division, Umaria and Sushri Aditi Kumar Sharma, the then V- Civil Judge, Junior Division, Tikamgarh. After considering their ACRs Gradings, Disposal Statistics, Adverse Remarks, complaints made against them and their overall performance, Full Court is of the view that the termination of Sushri Sarita Choudhary and Sushri Aditi Kumar Sharma cannot be revoked. In view thereof Full Court resolves to reiterate its earlier resolution dated 11.05.2023 in respect of Sushri Sarita Choudhary and Sushri Aditi Kumar Sharma. Full Court further resolves to place adverse remarks and other material against them before the Hon’ble Supreme Court in a sealed cover.”

Writ Petition (Civil) No.142 of 2024 Etc. Page 7 of 125 2.5 In these circumstances, the lis in respect of the four officers

stood closed and present adjudication remains only in respect of

petitioner-Sarita Choudhary and petitioner-Aditi Kumar

Sharma. For immediate reference, our order dated 03.09.2024

extracted as under:

“SMW(C) No.2/2023

Pursuant to our order dated 23.07.2024, the Full Court of the High Court of Madhya Pradesh has re-considered its earlier resolutions and orders impugned in the suo motu writ petition as well as other writ petitions filed by the respective petitioners which is evident by Minutes dated 01.08.2024 of 530th Full Court Meeting held on the said date. The following four officers, namely, Smt. Jyoti Varkade, Sushri Sonakshi Joshi, Sushri Priya Sharma and Smt. Rachna Atulkar Joshi have been considered for reinstatement subject to certain terms and conditions. Insofar as two other officers are concerned, namely, Sushri Sarita Choudhary and Sushri Aditi Kumar Sharma, there is no revocation of the earlier orders and resolutions and the Full Court has also further resolved to place the adverse remarks and other materials against them before this Court in a sealed cover.

For ease of reference, the extract of the Minutes of 530th Full Court Meeting dated 01.08.2024 at 5.00 P.M is extracted as follows: -

“xxx

SUB NO.01. Consideration of the matter relating to termination of 06 Civil Judges, Junior Division of Madhya Pradesh Judicial Service.

Writ Petition (Civil) No.142 of 2024 Etc. Page 8 of 125 Hon’ble the Supreme Court in Suo Motu Writ (C) No. 2/2023 in Re: Termination of Civil Judge, Junior Division has been pleased to pass following order on 23.07.2024:-

“Learned senior counsel and Amicus Curiae submitted that although earlier, the concerned Committee had reviewed the matter and had reiterated its earlier resolution, nevertheless, the Full Court of the High Court could reconsider the matter and depending upon its resolutions, further consideration of these matters could be taken up.

In the circumstances, we request the Full Court of the High Court of Madhya Pradesh to reconsider its resolutions and orders impugned in these suo moto writ petition and other writ petitions filed by the parties.

On a reconsideration by Full Court of the High Court, a copy of the resolution could be placed before this Court by learned counsel for the respondent-High Court preferably within a period of four weeks from today”.

In view of the order of Hon’ble Supreme Court, Full Court considered the matter and resolves that the termination of following 04 Civil Judges, Junior Division be revoked with a condition that they be posted as Civil Judge, Junior Division with a probation period of one year without backwages and they be placed at the bottom of their respective batch. They will regain their original seniority subject to their confirmation.

Sr. Name of the Officers whose No. termination is to be revoked 1. Smt. Jyoti Varkade, the then CJ, Jr. Division, Timarni [Harda]

Writ Petition (Civil) No.142 of 2024 Etc. Page 9 of 125 2. Sushri Sonakshi Joshi, the then V AJ To I CJ, Jr. Division, Morena 3. Sushri Priya Sharma, the then I CJ, Jr. Division, Dr. Ambedkar Nagar [Indore] 4. Smt. Rachna Atulkar Joshi, the then II CJ, Jr. Division, Teonthar [Rewa]

Full Court also considered the matter of Sushri Sarita Choudhary, the then II Civil Judge Junior Division, Umaria and Sushri Aditi Kumar Sharma, the then V Civil Judge, Junior Division, Tikamgarh. After considering their ACRs Gradings, Disposal Statistics, Adverse Remarks, complaints made against them and their overall performance, Full Court is of the view that the termination of Sushri Sarita Choudhary and Sushri Aditi Kumar Sharma cannot be revoked. In view thereof Full Court resolves to reiterate its earlier resolution dated 11.05.2023 in respect of Sushri Sarita Choudhary and Sushri Aditi Kumar Sharma. Full Court further resolves to place adverse remarks and other material against them before the Hon’ble Supreme Court in a sealed cover.”

Learned senior counsel Shri R Basant, appearing for the aforesaid three officers, namely, Smt. Jyoti Varkade, Sushri Priya Sharma and Smt. Rachna Atulkar Joshi submitted that these officers have no grievance with regard to the resolution passed as such. The submission regarding payment of salary from the date of termination till reinstatement is rejected.

Shri R Basant, learned senior counsel urged that the High Court may issue orders as expeditiously as possible and within a period of four weeks from today so that the aforesaid officers on reinstatement may join their duties.

In the circumstances, the lis in suo motu writ petition in respect of the four officers stand closed.

Writ Petition (Civil) No.142 of 2024 Etc. Page 10 of 125 Ms. Tanvi Dubey, learned counsel, who appeared for Sushri Sonakshi Joshi, also submitted that her client has accepted the aforesaid resolution.

It is needless to observe that these officers on regaining their original seniority as stated above, shall be granted continuity in service and all consequential benefits except back wages.

Insofar as Sushri Sarita Choudhary and Sushri Aditi Kumar Sharma are concerned, the Full Court has stated that Resolutions and Orders passed as against them cannot be revoked.

We appreciate the assistance rendered by learned senior counsel and learned Amicus Curiae and learned counsel who have appeared for the respective parties and particularly Shri Arjun Garg, who has appeared for the High Court.

List the matter on 24.09.2024 to hear regarding the case of other two judicial officers.”

3. We find it necessary to briefly enumerate the facts relevant

to the career trajectory and service details of the two petitioners

and other necessary facts relevant to the present adjudication.

Factual Backdrop:

Re: Sarita Choudhary - W.P. (C) 142/2024:

3.1 By Order Fa.No.3(B)3/2015/21-B(One), issued in

December 2016, the Department of Law and Legislative Affairs

of the respondent-State appointed the Petitioner in W.P. (C)

142/2024 to the post of Civil Judge Class-II (Entry Level) in the

Writ Petition (Civil) No.142 of 2024 Etc. Page 11 of 125 Madhya Pradesh Judicial Service on probation of two years from

the date she assumed charge. On 25.01.2017, the said petitioner

was appointed as Civil Judge, Class-2 on probation for two years.

Her initial positing as a trainee Judge was at Raisen, Madhya

Pradesh. For this period, the petitioner has drawn our attention

to the fact that for her first year as a trainee judge i.e. for the

period from 25.01.2017 to 31.12.2017, the Annual Confidential

Report (ACR) was initially graded by the District Judge as “good”

or “very good” and “satisfactory” on all parameters. However,

subsequently the Portfolio Judge converted the grading to C

(good). A perusal of the ACR reveals that explicitly no

shortcomings were found despite the fact that an adverse entry

was later communicated to the petitioner on 28.08.2018.

3.2 In the following year, on 05.02.2018, High Court

transferred the petitioner to Shajapur as First Civil Judge Class-

II on independent charge in the regular vacant court. Her ACR

for the period from 01.01.2018 to 31.12.2018 recorded a final

grade of ‘B-Very Good’ and also noted that she had good conduct,

was sincere and polite, and her judicial work was good in both

quantity as well as quality. Pertinent to note is that in this time

Writ Petition (Civil) No.142 of 2024 Etc. Page 12 of 125 period, she earned a total of 1233.96 units within 220 standard

working days; however, her civil units earned stood at 83.05.

3.3 We note that during the aforesaid time period, the

petitioner was posted in a vacant court, which understandably

does not see a high disposal rate in civil matters as Judicial

Officers are required to re-initiate and kickstart the entire

machinery of civil suits, sometimes from the issuance of

notice(s).

3.4 Notably, her ACR for the period 01.01.2019 to 31.12.2019

carried a demoted graded of ‘C-Good’. However, she was still

reported to display good conduct of business in court and in

office. It was argued by learned counsel for the respondent-High

Court that this degrading was due to three complaints that were

filed against the petitioner in the year 2019. These complaints

alleged that the petitioner had failed to conduct proceedings as

per law, and in a criminal case even passed an order despite

pendency of counter cases. Learned Amicus and learned senior

counsel for the petitioner highlighted that despite the number or

nature of these complaints, it was considered just by the Chief

Justice of the High Court to close all three complaints simply

Writ Petition (Civil) No.142 of 2024 Etc. Page 13 of 125 with warnings to the petitioner. She was noted to be an average

judicial officer as far as sincerity and punctuality were concerned

and her quality of judgment was appreciated to be good. Despite

a nearly threefold jump in units earned from 83.05 to 234.15,

she had failed to earn the prescribed civil units. It is pertinent to

consider that the ACR noted as improvable her management,

initiative, planning, relations with advocates, staff and colleague

judicial officers. In our view, equally relevant is a letter that was

issued to the petitioner on 27.11.2020 stating that the remarks

in the ACR for the year 2019 were only advisory in nature and

meant for future guidance. Learned senior counsel appearing for

the Petitioner, Sri Basant contended that this Court must be

alive to the fact that despite some complaints – which were closed

with only warnings - the ACR of the petitioner observed her as a

good judicial officer and all the adverse remarks were admittedly

only advisory in nature.

3.5 Petitioner-Ms. Sarita Choudhary was then transferred to

Goharganj (Raisen) as 2nd Civil Judge, where she joined on

25.11.2019. A perusal of her ACR for the period from 01.01.2020

to 31.12.2020 reflects that she was graded ‘D i.e. Average’.

Writ Petition (Civil) No.142 of 2024 Etc. Page 14 of 125 Furthermore, her ACR noted that her conduct of business was

not satisfactory as she lacked effective control over staff and did

not take initiative to clear pending cases. The petitioner was

recorded to have failed to achieve her unit criteria and also

lacked in punctuality, seriousness, transparency, and quality in

judicial work, cordiality with staff and advocates, and team work.

Two complaints were also filed against the petitioner in 2020 for

lack of punctuality and in respect of an error made by the

petitioner whilst granting bail in a non-bailable offence. Perusal

of material on record shows that both of these complaints were

met with warnings from the Chief Justice and finally closed.

Adverse remarks made in the ACR were replied to by the

petitioner through a representation.

3.6 After completion of three years of probation, the petitioner’s

case was considered for confirmation by the Administrative

Committee of the Madhya Pradesh High Court on 24.07.2020,

but the same was deferred in view of the pending complaints.

3.7 It is also necessary to note that in March 2020, in the wake

of Covid-19 pandemic, the unit criteria – a quantitative metric

used to assess performance of Judicial Officers - applicable to

Writ Petition (Civil) No.142 of 2024 Etc. Page 15 of 125 District Judiciary including Family Courts in Madhya Pradesh,

was suspended from 16.03.2020 till 31.03.2020. As the

continuing nature of the pandemic revealed itself, the unit

criteria was eventually suspended till 31.12.2020. Pertinent to

note is that throughout 2020, several circulars had been issued

by Madhya Pradesh High Court regulating the limited

functioning of the District Judiciary. It was only on 11.12.2020

that the Madhya Pradesh High Court issued directions to start

regular but limited physical functioning in District Courts.

3.8 For the following year being 01.01.2021 to 31.12.2021, her

ACR grade again witnessed a decline to ‘E – Poor’. It was noted

that the judicial work of the officer was not up to the mark.

Although she was noted to be efficient and had good grasp over

the subject of law, the assessing officer recorded that she lacked

sincerity and did not fulfil her administrative tasks. It was noted

that she failed to meet her unit criteria. While she disposed of

124 cases pending for more than three years, achieved 756.5

units, and also achieved 122 units through ADR, it was noted

that she failed to dispose of even a single contested civil case.

Upon comparing this ACR to the year prior, it will be seen that

Writ Petition (Civil) No.142 of 2024 Etc. Page 16 of 125 the ACR noted that she had good personal relationships and

good team work. This finding in the ACR merits consideration as

it finds place despite two complaints filed in 2021 alleging

misbehaviour with colleagues, advocates, staff, parties/witness/

prosecution. Pertinently, both complaints were closed with

advisories to the petitioner from the Chief Justice of Madhya

Pradesh High Court.

3.9 Our attention was drawn to the improvement of her ACR

for the period from 01.01.2022 to 31.12.2022. This ACR

assigned to petitioner was a significant improvement from ‘E –

Poor’ to grade ‘C – Good’. It was noted that her understanding of

law and application in her judgments was appropriate and well-

reasoned. Her ability to efficiently dispose of the cases was seen

as reflective of her good legal knowledge.

3.10 Per contra, it was highlighted that several complaints

were filed against the petitioner in 2022.

(i) Complaint No. 81/2022 dt. 12.01.2022 alleged procedural

lapses and inappropriate behaviour with advocates, parties or

witnesses. Vide Order dt.22.03.2023, the Chief Justice of the

Writ Petition (Civil) No.142 of 2024 Etc. Page 17 of 125 High Court warned the petitioner to be careful in future and to

ensure that lapses should not be repeated.

(ii) Similar was the outcome of Complaint No.877/2022 dt.

29.09.2022 which was filed alleging misbehaviour by petitioner

in RCT No.310/2019, titled “State vs. Kanhaiya Lal”.

(iii) However, in respect of 2022, one Complaint bearing

No.992/2022 (21.12.2022) wherein it was alleged that petitioner

failed to monitor 321 sensitive/suspicious files/cases and keep

track of those files, the file was kept in abeyance by order dated

28.06.2023 of the Chief Justice of Madhya Pradesh High Court.

Learned senior counsel for the petitioner highlighted that

321 suspicious cases were indeed discovered in an almirah

(cabinet/storage) in the court room but those cases were related

to predecessor judges. A departmental inquiry was conducted

targeting the clerical staff involved, and one specific staff member

D.R. Ahirwar at position Execution Clerk was identified and

found guilty of dereliction of duty.

3.11 During her posting at Raisen, the petitioner failed to

achieve unit criteria as she achieved only 3.36 units per day.

Similarly, petitioner failed to achieve the target on civil side as

Writ Petition (Civil) No.142 of 2024 Etc. Page 18 of 125 she achieved only 30.80 units. However, out of 25 targeted old

cases, the petitioner successfully disposed of 100% cases.

3.12 Dissecting and inferring from these facts, learned senior

counsel for the petitioner has drawn our attention to the fact that

the latest ACR immediately before her termination in 2023 had

in fact noted her to be a ‘Good’ judicial officer and even observed

that she had good decisive nature, managerial skill, and that she

maintained good relationships in the team.

3.13 Soon thereafter, on 10.04.2023, Ms. Sarita Choudhary

was again transferred to Umaria as 2nd Civil Judge, Junior

Division. Only a month thereafter, on 13.05.2023, the Madhya

Pradesh High Court recommended termination of services of the

petitioner. This was followed by Termination Order dt.

23.05.2023 which was received by petitioner on 26.05.2023.

Surprisingly, on 09.10.2023 i.e. several months after her

termination, adverse remarks made in petitioner’s ACR for the

year 2021 were communicated to the Judicial Officer.

3.14 For ease of reference, relevant information pertaining to

Petitioner-Sarita Choudhary are tabulated hereunder:

Writ Petition (Civil) No.142 of 2024 Etc. Page 19 of 125 ACR GRADING TABLE PERIOD GRADE 25.01.2017 to C- Good 31.12.2018 01.01.2018 to B- Very Good 31.12.2018 01.01.2019 to C-Good 31.12.2019 01.01.2020 to D-Average 31.12.2020 01.01.2021 to E-Poor 31.12.2021 01.01.2022 to C-Good 31.12.2022

UNIT VALUE YEAR VALUE 2017 Trainee Judge 2018 7.11 2019 8.53 2020 3.72 Learned Amicus emphasized before this Court that for the pre-Covid period, her unit value was 9.3 as per page 73 of reply. 2021 6.47 2022 3.36 (3.64 as per page 108 of reply)

LIST OF COMPLAINTS S.NO COMPLAINT COMPLAINT ACTION NO. & DATE 2019 1 26/2019 dt. In Case Complaint disposed 10.01.2019 No.369/2016, of by Hon'ble Chief titled “Vipin Justice by order Bedle vs. Rajesh dated 25.01.2020. Malviya” the petitioner did not proceed as per law

Writ Petition (Civil) No.142 of 2024 Etc. Page 20 of 125 S.NO COMPLAINT COMPLAINT ACTION NO. & DATE 2 311/2019 dt. Cases not Warning by Hon'ble 24.04.2019 conducted as Chief Justice vide & 407/2019 per law order dated dt. 19.09.2021. 07.06.2019 3 408/2019 dt. No.1501281/20 Non-recordable 07.06.2019 16 (State of MP Warning dated vs. Umaravlal)- 19.09.2021 by Passed orders in Hon'ble Chief Cr. Non- Justice. recordable Case despite counter cases are pending adjudication. 2020 4 354/2020 dt. Remained not Advised not to leave 24.07.2020 punctual the headquarters despite repeated without prior warnings permission and to sit on the dais on time and not to leave the dais before court working hours vide order dated 28.01.2023 by Hon'ble Chief Justice. 5 495/2020 dt. Granted bail in a Warned to remain 09.10.2020 non-bailable careful and vigilant in offence and future while passing making the bail orders and alteration in the not to repeat the order sheet mistake as committed by her while passing bail order for offence u/s 304 IPC in Crime No.

Writ Petition (Civil) No.142 of 2024 Etc. Page 21 of 125 S.NO COMPLAINT COMPLAINT ACTION NO. & DATE 122/2020 of PS Obedullaganj, vide order 14.02.2023 by Hon'ble Chief Justice. 2021 6 127/2021 dt. Misbehaviour File the complaint 24.02.2021 towards with an advice to Ms. colleagues and Sarita Choudhary seniors that she mend her behavior towards her seniors and should remain careful in future, vide order dated 03.08.2022 by Hon'ble Chief Justice. 7 130/2021 dt. Rude behaviour Advised to be careful, 02.03.2021 with advocates, vigilant while dealing staff, parties/ with the cases and to witness/prosec make sincere efforts ution including to dispose of the not taking same as early as interest in possible, vide order judicial work. dated 22.03.2023 by Hon'ble Chief Justice.

8 Registrar Order 05.08.2020 – General note- case deferred and a sheet special report called 12.11.2021 for from the concerned District and Sessions Judge. Report sent to Joint Registrar on 04.12.2021

Writ Petition (Civil) No.142 of 2024 Etc. Page 22 of 125 S.NO COMPLAINT COMPLAINT ACTION NO. & DATE 2022 9 81/2022 dt. Procedural Warned to be careful 12.01.2022 lapses and in future and lapses inappropriate should not be behavior with repeated in future, advocates, vide order dated parties/witness 22.03.2023 by es affecting Hon'ble Chief dignity of the Justice. court. 10 468/2022 dt. Complaint by As per note-sheet 17.05.2022 Advocate that dated 30.09.2022, Petitioner has the Hon’ble Chief done work Justice directed that against the the complaint be dignity of the filed. Court on 19.04.2022

Petitioner contends that this complaint was never communicated to her and cannot be used to her detriment 11 877/2022 dt. Re: Advisory by Hon’ble 29.09.2022 Misbehaviour Chief Justice to with the maintain cordiality Advocate in RCT vide Order dated No.310/2019 27.04.2023 (State vs. Kanhaiya Lal) 12 992/2022 dt. Failed to File be kept in 21.12.2022 monitor abeyance by order of sensitive/ Hon'ble Chief Justice dated 28.06.2023

Writ Petition (Civil) No.142 of 2024 Etc. Page 23 of 125 S.NO COMPLAINT COMPLAINT ACTION NO. & DATE suspicious files/ cases 2023 13 174/2023 dt. Inappropriate File be kept in 15.03.2023 post in social abeyance by order of media Hon'ble Chief Justice (Facebook) dated 28.06.2023 14 271/2023 dt. Certain acts of File be kept in 29.04.2023 the Judicial abeyance by order of Officer affecting Chief Justice dated the dignity of the 14.05.2023 post 15 286/2023 dt. Unauthorized Matter/Complaint be 08.05.2023 absence from kept in abeyance as office. per note dated 14.05.2023 of PPS.

Re: Aditi Kumar Sharma - W.P.(C) No. 233/2024:

4. It is pertinent to narrate the facts relevant to the career

trajectory and termination of Petitioner-Aditi Kumar Sharma in

W.P(C) No.233/2024. On 25.10.2018, Petitioner-Aditi Kumar

Sharma was appointed and later posted as Trainee Judge at

Rajgarh, Madhya Pradesh on probation for two years or till

further orders. The petitioner’s ACR for the period 01.01.2019 to

31.12.2019 was graded with a final grade of ‘B – Very Good’. It

was observed that the petitioner possessed good capacity to do

Writ Petition (Civil) No.142 of 2024 Etc. Page 24 of 125 judicial work, good reputation and character, and was overall a

very good Judge.

4.1 The Petitioner-Aditi Kumar Sharma was appointed as First

Civil Judge, Class-II, at Satna in the regular court on

22.06.2020. In ACR for the period being 01.01.2020 to

31.12.2020, the petitioner was graded ‘C-Good’. The petitioner’s

marshalling of evidence, legal reasoning and consideration of law

was appreciated. It was also observed that petitioner-Aditi

Kumar Sharma had made sincere efforts to minimize pendency

of civil and criminal cases.

4.2 A perusal of the ACR for 01.01.2021 to 31.12.2021 reveals

that this petitioner was again awarded the grade ‘C – Good’ for

the year. While the District and Principal Sessions Judge had

awarded the grade ‘B-Very Good’, notably, the Portfolio Judge

(High Court Judge) lowered the grading to ‘C – Good’ considering

the pendency and disposal.

4.3 ACR for the year 2021 also notes that the petitioner-Aditi

Kumar Sharma exhibited good conduct of business in court and

with the office staff. However, a complaint bearing no.75/2021

Writ Petition (Civil) No.142 of 2024 Etc. Page 25 of 125 dated 01.02.2021 was filed alleging the petitioner wrongfully

adjourned Civil Suit No.4A/2015 titled, “Ramashankar Pandey

vs. Beva Rachil”. The inquiry Officer found the allegation to be

not proved.

4.4 The same ACR also appreciated her to be a sincere and

punctual judicial officer who successfully ensured regular entry

and uploading of accurate and complete data. Her quality of

judgments was also appreciated to be very good. Additionally,

her capacity to lead, manage, plan and decision making was

noted to be good.

4.5 It must also be noted that the petitioner-Aditi Kumar

Sharma earned total 220.50 units within 162 standard working

days. However, she earned only 22.9 civil units.

4.6 For a contextual appreciation of the unit value earned by

the petitioner-Aditi Kumar Sharma, our attention was drawn to

the fact that the she had a tumultuous time in the year 2021. At

that point, she was given charge of a vacant court whose effective

functioning even worsened due to the global pandemic. In 2020,

this petitioner got married on a short notice and was hospitalized

Writ Petition (Civil) No.142 of 2024 Etc. Page 26 of 125 in ICU for treatment of Covid at Chirayu Hospital, Bhopal. The

petitioner was hospitalized for a period of eleven days with

further prescription of bed rest for more than ten days after

getting discharged. Furthermore in 2021, in the month of

January, the petitioner’s brother was diagnosed with blood

cancer and soon thereafter, in the month of March, the petitioner

herself suffered a miscarriage. Such practical realities both

inside and outside the courtroom would certainly merit

consideration of this Court.

4.7 Our attention was drawn by learned counsel for the

respondents to the fact that her ACR for the period 01.01.2022

to 31.12.2022 witnessed a demotion to the grade of ‘D – Average’.

While the ACR for 2022 noted that although petitioner had been

at the same posting from 26.05.2020, a total of only 28 contested

regular cases were disposed of in 2022 and no remarkable work

was noticed in her duties as junior-in-charge of filing section.

4.8 It was also noted that despite 1500 number of cases on

average pending for adjudication before her Court, the total

number of contested and uncontested cases disposed of by her

in the entire year of 2022 was less than 200. To explain the low

Writ Petition (Civil) No.142 of 2024 Etc. Page 27 of 125 disposal rate and less units earned, the petitioner attributed the

same to less number of cases ready for disposal, absence of

witnesses, non-service of notices, warrants, etc. However, these

reasons were found to be not satisfactory in relation to lesser

units earned by her.

4.9 In 2022, following complaints were registered against the

petitioner-Aditi Kumar Sharma which merit our perusal.

(i) Complaint No. 251/2022 dated 24.02.2022 was filed

alleging that the name of the petitioner was mentioned in

Crime No.284/2021 registered on behalf of the petitioner’s

sister to create influence on the police.

(ii) It was alleged in another Complaint No.664/2022 dt.

28.07.2022 that in response to objections raised against

petitioner’s dogs defecating in front of complainant’s

house, the petitioner used abusive words and released her

dogs behind the complainant. Vide Order dt. 17.12.2022,

the Chief Justice of the High Court directed that

permission regarding taking criminal action against the

petitioner may not be given.

Writ Petition (Civil) No.142 of 2024 Etc. Page 28 of 125 (iii) Complainant in Complaint No.775/2022 dt. 22.09.2022

alleged that the petitioner did not record the statement of

complainant in UNCR 27/2022.

(iv) Complaint No.776/2022 dated 22.09.2022 again alleged

misconduct in the courtroom. It was alleged therein that

in UNCR 25/2022 & 26/2022, unnecessary comments

were recorded by the petitioner in the order sheet due to

sheer animosity. As a consequence, petitioner was advised

to mend her behaviour in order to maintain cordial

relations with the Bar. Files for both these complaints

alleging poor conduct in the courtroom were kept in

abeyance by order of the Chief Justice of High Court dated

26.07.2023.

4.10 On 23.12.2022, the sitting Principal District & Sessions

Judge prepared an Annual Inspection Report which recorded

this petitioner’s marshalling and appreciation of evidence as

proper and generally observed that judicial work of the petitioner

appeared to be ‘excellent’. However, on the very next day another

complaint dt. 24.12.2022 was filed against the petitioner. We

Writ Petition (Civil) No.142 of 2024 Etc. Page 29 of 125 need not delve into the same as it was not considered by the Full

Court in coming to its decision.

4.11 During the year 2022, petitioner-Aditi Kumar Sharma

earned only 44.16 units towards civil cases and 269 units for

criminal cases. Cumulatively, her unit value, a measure of work

done, was 1.68 units per day for 228 working days. Post

adjusting a total of thirteen days as medical leave and 01 day for

training out of 220 working days, her final work done was 1.86

units per day, which the ACR notes to fall under the ‘poor

category’.

4.12 Notably, the Portfolio Judge, commenting on her ACR,

specifically recorded that the petitioner lacked in her

management skills and must drastically improve to achieve

targets. Subsequently, on 31.03.2023, the High Court of Madhya

Pradesh transferred the petitioner to District Tikamgarh, where

she assumed charge and served as V Civil Judge, Junior Division

until her termination.

4.13 For ready reference, petitioner-Aditi Kumar Sharma’s

Unit Value for each ACR is tabulated as under:

Writ Petition (Civil) No.142 of 2024 Etc. Page 30 of 125 UNIT VALUE YEAR UNIT VALUE 2019 Trainee Judge 2020 1.95 2021 1.36 2022 1.86 2023 4.80

LIST OF COMPLAINTS SR. COMPLAINT COMPLAINT ACTION NO. NO. & DATE 2021 1 Complaint Judicial officer was alleged Inquiry Officer had No. 75/2021 to have wrongfully not found allegation dt. deferred/adjourned Civil be proved. 01.02.2021 Suit No.4A/2015, titled ‘Ramashankar Pandey vs. Beva Rachi’ 2022 2 Complaint In Crime No.284/2021, File to be kept in No. ‘Anjali Chakravarti vs. abeyance as per order 251/2022 Subrat Chakravarti’, name of the Chief Justice dt. of Aditi Singh Kumhare dated 27.06.2023 24.02.2021 (Sharma) Civil Judge Class-II, Satna who is the sister of Anjali Chakravarti is mentioned in the FIR to create influence on the police 3 Complaint Complainant objected to Chief Justice vide No. the act of allowing dogs of order dated 664/2022 dt. Ms. Aditi Kumar Sharma, 17.12.2022 directed 28.07.2022 Judicial Officer directed that permission & that permission to defecate regarding taking 26.04.2023 in front of complainant's criminal action house. On 22.07.2022 against the judicial around 8:00 pm, she used officer may not be

Writ Petition (Civil) No.142 of 2024 Etc. Page 31 of 125 SR. COMPLAINT COMPLAINT ACTION NO. NO. & DATE abusive words and given and the released her dogs behind complaint be filed. the complainant by Since terminated, untying the rope. hence, file be kept in abeyance by Order of Chief Justice dated 05.08.2023. 4 Complaint In UNCR 27/2022 judicial File be kept in No.775/2022 officer is alleged to have abeyance by order of dt. not recorded statement of Chief Justice dated 22.09.2022 the claimant and also 27.06.2023 erred in functioning of the court. 5 Complaint In UNCR 25/2022 & PR(V) proposed to No.776/2022 26/2022, judicial officer advise Sushri Aditi dt. 22.09.222 recorded unnecessary/ Sharma, I-CJ. Jr. uncalled for comments Division, Satna to against the advocate in the mend her behavior in order sheet due to order to maintain animosity. cordial relations between the Bar and Bench.

File be kept in abeyance by order of Hon'ble Chief Justice dated 27.06.2023 6 Complaint In Civil Suit No.26/2014, The 6th complaint No.10/2023 titled ‘Kali Prajapati vs. dated 24.12.2022 dt. Soniya Prajapati’ the does not appear to be 24.12.2022 judicial officer failed to part of the pass judgment since consideration by the February, 2022 despite administrative side. written arguments filed by both parties.

Writ Petition (Civil) No.142 of 2024 Etc. Page 32 of 125 Submissions of learned Amicus Curiae – Sri Gaurav Aggarwal, Senior Advocate:

5. In Suo Moto Writ Petition (C) No.2 of 2023, Sri Gaurav

Aggarwal was appointed as the Amicus to assist this Court by

the order of the Hon’ble the Chief Justice of India. He has made

his submissions in respect of both petitioners.

Re: Sarita Choudhary:

5.1 Learned Amicus submitted that 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 two years or

on temporary basis till further orders. Initially, she was a trainee

Judge and was posted to a regular court with effect from

05.02.2018. In July, 2020, her confirmation was deferred owing

to pending complaints and on 26.05.2023, she was terminated

from service. Thus, she served for a period of six years and four

months on probation. That the State Government order dated

13.05.2023 recorded that the concerned judicial officer had not

utilised her probation period successfully and satisfactorily and

having regard to the record of her ACRs, assessment chart and

other materials, the services of the judicial officer were dispensed

Writ Petition (Civil) No.142 of 2024 Etc. Page 33 of 125 with. Pursuant to the direction of this Court, the Full Court of

the Madhya Pradesh High Court reconsidered the matter and

noted that there were complaints made against Ms. Sarita

Choudhary and therefore, the earlier view of termination could

not be revoked and hence, it resolved to reiterate the resolution

dated 13.05.2023.

5.2 Referring to the ACRs for the years 2017 to 2022, learned

Amicus contended that the adverse remarks for the year 2020

ought not to have been taken into consideration as the

representation given by the concerned judicial officer was

pending at the time when the decision was taken by the Full

Court on 13.05.2023. The representation was rejected on

13.12.2023 i.e. after termination. The adverse remarks for the

year 2021 ought not to have been taken into consideration as

the said adverse remarks were communicated to the judicial

officer on 09.10.2023 i.e. after her termination. It is contended

that the non-communication of the adverse remarks in the ACRs

was arbitrary and violative of Article 14 of the Constitution of

India.

Writ Petition (Civil) No.142 of 2024 Etc. Page 34 of 125 5.3 It was further submitted by learned Amicus that the ACR

of Ms. Sarita Choudhary had substantially improved which fact

ought to have weighed with the Full Court on 01.08.2024 when

there was a reconsideration of her case pursuant to the order of

this Court.

5.4 It was next submitted that the unit value of the judicial

officer in the year 2022 was lesser than the previous years for

which there was an explanation offered by her citing the

following reasons:

(i) that number of civil cases in court was very less and all of

them were transferred to another court.

(ii) the number of criminal cases in her court also reduced.

(iii) that on 18.01.2022, there was an order for transfer of

criminal cases from her court to another court from

November, 2019, when the officer had already conducted

the proceedings.

(iv) that the above factors affected the workload making it

difficult to reach the target unit value. Most of the cases

pending in her court were at preliminary stage.

Writ Petition (Civil) No.142 of 2024 Etc. Page 35 of 125 (v) Also, due to non-allotment of the police station, fresh

cases could not be allotted to her thereby the unit points

earned was reduced.

(vi) Securing the presence of the parties especially retired

persons and migrant labourers became difficult as the

parties were residing in other States.

(vii) Therefore, it was the submission that the low unit value of

the year 2022 could not have been the basis for holding

that the judicial officer had not completed her probation

satisfactorily.

5.5 With regard to the complaints made against Ms. Sarita

Choudhary, it was contended that the Full Court Resolution

dated 01.08.2024 has referred to the said complaints. Two

complaints are pending and nine complaints have been closed in

the form of advisories, non-recordable warnings or warnings.

That none of the complaints could have been the basis for the

termination of the judicial officer. That the pending complaints

are not serious inasmuch as the first complaint concerned the

non-monitoring of the work of the two clerks in the court and the

second related to an innocuous facebook post.

Writ Petition (Civil) No.142 of 2024 Etc. Page 36 of 125 5.6 In the above context, reliance was placed on Anoop

Jaiswal vs. Government of India, (1984) 2 SCC 369 (“Anoop

Jaiswal”) to contend that it is open for the court to go behind

the form and ascertain the true character of the termination

order to see whether in reality, it is a cloak for an order of

punishment. This is because in the case of misconduct, Article

311(2) of the Constitution would be attracted and an inquiry has

to be conducted in the first instance. The aforesaid decision has

been followed by this Court in Dipti Prakash Banerjee vs.

Satyendra Nath Bose National Centre for Basis Sciences,

Calcutta, (1999) 3 SCC 60 (“Dipti Prakash Banerjee”), and

recently in Swati Priyadarshini vs. State of Madhya

Pradesh, 2024 SCC OnLine SC 2139 (“Swati

Priyadarshini”).

5.7 It was submitted by the learned Amicus that possibly the

warnings and advisories given to the concerned judicial officer

may have been the basis for the termination which is founded on

alleged misconduct. That this judicial officer had worked for over

six years and her unit value was also good. There was no doubt

on her integrity and her work also improved in the year 2022.

Writ Petition (Civil) No.142 of 2024 Etc. Page 37 of 125 Therefore, this officer ought to be given an opportunity just as

other four judicial officer have been given by the Madhya Pradesh

High Court.

5.8 It was submitted that the non-confirmation of a judicial

officer who is on probation and consequent termination is

subject to judicial review.

Re: Aditi Kumar Sharma:

6. Learned Amicus Curiae submitted that Ms. Aditi Kumar

Sharma joined duty on 30.11.2018 as a trainee judicial officer

appointed as Civil Judge Class-II. She was posted in regular

court from 22.06.2020 and was terminated on 26.05.2023. That

on 08.05.2023 and 10.05.2023, the Administrative Committee of

the Madhya Pradesh High Court met to discuss the performance

of 393 Civil Judges which resulted in the termination of this

judicial officer, amongst others.

6.1 Learned Amicus submitted that for the year 2019, this

petitioner received “B-Very Good” grading and for the years 2020

and 2021, “C-Good” grading, while for the year 2022, the grading

was “D-Average”. The said grading could not have been taken

Writ Petition (Civil) No.142 of 2024 Etc. Page 38 of 125 into consideration as the same was approved by the Chief Justice

of the High Court on 11.07.2023 i.e. after the termination dated

26.05.2023. The adverse remark for the year 2022 was

communicated to this officer by letter dated 23.01.2024, six

months after her termination.

6.2 Insofar as the low unit value of this officer is concerned, the

following submissions were advanced:

(i) That for the years 2020 and 2021, despite the disposal rate

being 1.95 and 1.36, this judicial officer had “C-Good” in

the said years.

(ii) That owing to Covid-19 pandemic, the High Court had

waived the target of the requisite unit value vide Circular

of the High Court dated 03.12.2020.

(iii) For the year 2021, the High Court reduced the unit value

requirement to 50 per cent. Moreover, this judicial officer

had submitted her detailed explanation for the low

disposal in the year 2021. Similarly, an explanation was

offered for the year 2022.

Writ Petition (Civil) No.142 of 2024 Etc. Page 39 of 125 (iv) From January to April, 2023, the unit value of this judicial

officer was 4.80 (for four months only). Thus, the

performance of this officer had improved considerably.

6.3 It was submitted that if the conduct and the quality of

performance of the officer has been good and her reputation is

also good, mere low disposal should not be the reason for

termination. The High Court ought to have made a concession

for newly appointed judicial officer. Hence, this Court may

consider the correctness of the termination of this officer and

give another opportunity to her to prove herself.

6.4 As far as the complaints against this officer are concerned,

the first complaint was by one Ramashankar Pandey and on a

discrete enquiry conducted by District Judge (I) Inspection,

Jabalpur, this officer was advised to maintain cordial relations

between the Bench and the Bar. This advice had been approved

by the Portfolio Judge and the file has not yet been placed before

the Chief Justice of the High Court. This advice has neither been

communicated to this officer nor has she had an opportunity to

represent against the proposed advice.

Writ Petition (Civil) No.142 of 2024 Etc. Page 40 of 125 6.5 The second complaint was made by one Devrath

Chakraworthy who is a litigant and an inquiry into the same was

found to be baseless. Therefore, this complaint could not have

been the basis for consideration of the case of the judicial officer.

The third complaint made by one Advocate Sukhendra Kumar

Pandey was that the statement of the complainant was not

recorded. No steps has been taken on the said complaint.

6.6 It was next submitted that the order of the termination of

this officer is not termination simpliciter but appears to be

stigmatic. Therefore, this case would call for closer scrutiny. It

was further submitted that the termination of this officer must

be vitiated as despite having very good and good ACRs for the

initial years and for the year 2022, the grade ‘D-Average’ was not

communicated to her. Consequently, this officer has been denied

the opportunity to represent against adverse remarks. Since, this

officer had shown remarkable improvement in the year 2023, the

low rate of disposal of cases could not have been the sole factor

for termination of this officer.

Writ Petition (Civil) No.142 of 2024 Etc. Page 41 of 125 6.7 Further, the complaints could not have been the basis for

termination inasmuch as if the allegation against misconduct of

the judicial officer is not followed by an inquiry but is the basis

of termination then, the purported termination simpliciter could

be interfered with. The court could go behind the form and

ascertain the true character of the order by lifting the veil. In this

case, it was also contended that the protection of Article 311(2)

ought to have been provided to this officer as has been held in

Registrar General, High Court of Gujarat vs. Jayshree

Chamanlal Buddhbhatti, (2013) 16 SCC 59 (“Jayshree

Chamanlal Buddhbhatti”).

6.8 Learned Amicus Curiae submitted that the cases of both

the aforesaid officers may be considered favourably by setting

aside the termination order and granting them an opportunity to

fare themselves better by allowing these writ petitions with

appropriate conditions.

Submissions on behalf of the Petitioner-Sarita Choudhary:

7. Learned senior counsel, Sri Basant appearing for the

petitioner, at the outset, contended that the High Court was not

right in not declaring the successful completion of probation of

Writ Petition (Civil) No.142 of 2024 Etc. Page 42 of 125 the petitioner-Ms. Sarita Choudhary and consequently, she has

been subjected to discrimination and arbitrary action on the part

of the High Court.

7.1 We might note at the outset that learned senior counsel for

the petitioner drew our attention to Rule 11 of the Recruitment

Rules which provides that the probation period ‘shall’ not be

extended beyond three years from the date of

appointment/joining.

7.2 Sri Basant contended on behalf of the petitioner-Sarita

Choudhary that the low unit value for year 2022 being 3.35 can

be explained inter alia, by several reasons; firstly, the number of

civil cases in the court were very less and absolutely NIL after

transfer of cases; secondly, the criminal matters which she had

brought to the stage of disposal since November 2019 were

transferred to another Court on January 18, 2022 and the

remaining matters could not be disposed of by the petitioner;

thirdly, no police station was allotted to the petitioner which

curtailed new and miscellaneous judicial work, and resultantly

new charge sheets and summary cases were not filed.

Consequently, there was reduction in units earned.

Writ Petition (Civil) No.142 of 2024 Etc. Page 43 of 125 Furthermore, petitioner submitted that most of the cases (3

years or less than 3 years old) pending in her court were at the

preliminary stage. It was also contended that for the year 2022,

the petitioner was not in charge of any section till December 7th,

2022. The efficiency of the petitioner was even hampered due to

court employees regularly taking casual leave without prior

notice. Similarly, there was only one typist at the dais in the

court which severely hurdled court proceedings. Petitioner’s

learned senior counsel further submitted that despite being

directed, the execution clerk would not facilitate referral of

mediation cases. Furthermore, it is also submitted that it was

laborious and time-consuming to seek the presence of parties,

as several were migrant labourers and drivers working in areas

other than Raisen district, and employees residing in other

States, etc.

7.3 As far as the ACR for the year 2020 is concerned, it was

submitted that petitioner had given a representation against said

ACR but it was pending consideration as on the date of her

termination. It was also contended that the actions of

Respondent-High Court are in violation of principles of natural

Writ Petition (Civil) No.142 of 2024 Etc. Page 44 of 125 justice as the ACR for 2021 was communicated to the officer only

after her termination.

7.4 Inferring from the reply of the respondent-High Court filed

before this Court, learned senior counsel for the petitioner

contended that it was mentioned before the Administrative

Committee that two complaints were pending against the

petitioner. In respect of the first complaint, the petitioner has

voraciously highlighted that although the subject matter of the

complaint is grave as it involves 321 suspicious cases the

allegation qua the petitioner is only of not monitoring the work

of execution clerks. The petitioner was given an opportunity to

explain and the same was submitted on 06.04.2023. As for the

pending complaint concerning the post put up by the petitioner

on WhatsApp, it was contended that no explanation was called

from her.

Submissions on behalf of Petitioner-Aditi Kumar Sharma:

8. Ms. Indira Jaising, learned senior counsel appearing for the

petitioner-Ms. Aditi Kumar Sharma, in the first instance,

contended that her party has been subjected to discrimination

Writ Petition (Civil) No.142 of 2024 Etc. Page 45 of 125 inasmuch as four of the Judicial Officers have been reinstated

but not her by the High Court.

8.1 Learned senior counsel sought to contend that a holistic

perusal of the petitioner’s ACRs would establish that the

petitioner indeed was suitable for confirmation and that the

failure to confirm her by relying on irrelevant and insufficient

material is bad in law. Learned senior counsel also contended

that any conclusion drawn must not be punitive and be based

upon a holistic appreciation of petitioner’s service record. It is

therefore prayed that this Court may quash and set aside the

impugned order of termination for being perverse and illegal;

direct the petitioner’s reinstatement as a permanent judicial

officer with full back wages, continuity in service and seniority.

8.2 Emphasizing on the integral and compendious nature of

ACRs as the primary documents determining a public servant's

suitability in services, the petitioner emphasized that, notably,

there are no minimum criteria for earning units that must be

fulfilled for an officer to be confirmed.

Writ Petition (Civil) No.142 of 2024 Etc. Page 46 of 125 8.3 The manner of preparation and approval of an ACR was

adverted to. Upon filling up of the ACR by a judicial officer based

on his/her self-assessment, it is graded by the reporting

authority i.e. the Principal District Judge. Thereafter, the same

is reviewed by the Portfolio Judge who is a High Court Judge.

Finally, the ACR is placed before the Chief Justice for

acceptance.

8.4 It was submitted in respect of the ACR for 2019 that after

approval from the Portfolio Judge and the Chief Justice the

petitioner was finally graded ‘B-Very Good’ in the year 2019. For

the year 2020, the petitioner was graded ‘C-Good’ in the ACR and

she is aggrieved by alleged ‘incorrect and misleading data’

presentation of disposal units in the Assessment Chart placed

before the Administrative Committee. The Assessment Chart

showed the disposal rate for the entire year of 2020 as 1.95

units. The petitioner contended that an accurate picture is

gleaned from the distribution between pre-Covid (from 1st

January to 11th June 2020) and post-Covid (from 13th June to

31st December 2020). Our attention was drawn to the adverse

remarks column in the Assessment Chart which records the pre-

Writ Petition (Civil) No.142 of 2024 Etc. Page 47 of 125 Covid disposal as 0.24 and post-Covid disposal to be 0.67. It was

however contended that disposal for the post-Covid period

should accurately reflect 6.99 units earned by the petitioner

which would, as per the relevant circular, fall under the category

of "Very Good". Reliance in this regard is placed on the ‘Statement

Showing the Net Disposal’ forming part of the ACR for year 2020.

8.5 It was also emphasized that in light of Covid-19, the High

Court had waived the unit value requirement for the year 2020.

As a corollary, the petitioner would submit that no weight should

be given to any adverse remarks stemming from low unit value

in the year 2020.

8.6 Both Petitioners highlight that the Covid years - 2020 and

2021 - were particularly cumbersome for the judicial system

inasmuch as disposing of cases and other work done was

concerned. According to the Petitioner, for the year 2021 the

High Court had given 50% relaxation in unit value. Therefore, it

was contended that if benefit of extra 1.50 is given to the

petitioner-Aditi Kumar Sharma, the unit value for 2021 will

increase to 2.86.

Writ Petition (Civil) No.142 of 2024 Etc. Page 48 of 125 8.7 We need not repeat the practical difficulties endured by

petitioner-Aditi Kumar Sharma in 2021. Learned senior counsel

for the petitioner argued that the low unit value and any other

deficiency for the year must be seen in light of the trials and

tribulations faced by this petitioner.

8.8 On the aspect of grade B-Very Good – awarded by the

Principal District Judge – relegated to C-Good by the Portfolio

Judge citing "pendency and her disposal" in petitioner’s ACR for

2021, the petitioner contended that such relegation was

approved by the Chief Justice on 13.04.2023 i.e. post an

excessively inordinate delay of more than one year. The

inordinate delay, according to the petitioner, deprived her of

improving in a timely manner and therefore negatively impacted

her future assessments.

8.9 Furthermore, it is submitted that despite Covid-19

limitations on functioning of courts, the Principal District Judge

remarked her performance to be ‘good’ in the "quantity of work"

section of the Report even though she earned only 22.9 civil units

as, summarily, she earned sufficient units over 162 working

days.

Writ Petition (Civil) No.142 of 2024 Etc. Page 49 of 125 8.10 Furthermore, the petitioner also contended that there was

a violation of principles of natural justice. It was argued that the

petitioner was never given an opportunity to furnish an

explanation against the "adverse remark” noted in the ACR,

which was eventually considered by the Administrative

Committee for recommending the termination of her services.

The fact that the Registrar General of the High Court, on

07.10.2023, by way of a communication gave an opportunity to

the petitioner to file a representation explaining the “adverse

remarks” from the ACR for 2021 is relied upon by the Petitioner

to contend that prior to October 2023, the petitioner was never

given an opportunity to file a representation; that such an

adverse remark did not warrant termination; and that there was

complete non-application of mind at the stage of termination.

The adverse remark noted stated that "... she has earned only

22.9 civil units."

8.11 In respect of the ACR for 2022, the petitioner-Aditi

Kumar Sharma submitted various grounds before the High

Court, inter alia, excessively large number of interim applications

prolonging disposal of civil matters, prioritizing matters older

Writ Petition (Civil) No.142 of 2024 Etc. Page 50 of 125 than 3 years, etc. It was preliminarily submitted that the

Administrative Committee in its meetings in May 2023 should

have never considered the ACR of 2022 as the same would not

finalised by the accepting authority i.e. the Chief Justice till July

2023.

8.12 Furthermore, it was contended that the ACR for 2022 was

not prepared by petitioner's Principal District Judge or his

successor or the second senior-most judge who had supervised

the petitioner for three months but was prepared by the Principal

District Judge of Ratlam by virtue of her being the District Judge

(Inspection) of the Jabalpur Zone during the relevant period vide

D.O letter issued by the Registrar General of the High Court of

Madhya Pradesh. According to the letter, Smt. Anuradha Shukla

was authorized to act as the Inspection Judge of District Satna

for the year 2023. Petitioner challenges the evaluation by the

District Judge by contending that the District Judge was not

competent to evaluate the petitioner; that the District Judge did

not have any opportunity to personally evaluate the performance

of the Petitioner; that, consequently, petitioner was graded solely

on the basis of units earned dehors any holistic evaluation of

Writ Petition (Civil) No.142 of 2024 Etc. Page 51 of 125 other factors such as conduct of business, quality of judgment

writing, etc.; that the Principal District Judge of the Petitioner

who personally evaluated the petitioner had assessed her judicial

work to be ‘excellent’ in December 2022 in the Annual Inspection

Report of the Petitioner.

8.13 Therefore, according to the petitioner, it is apparent that

on the date the Committee met, this ACR was neither final nor

communicated to the Petitioner, and yet the "adverse remarks"

and grading of ‘D – Average’ appearing therein were taken into

consideration by the Committee while terminating her services.

8.14 Although it was contended by the learned counsel

appearing for the High Court of Madhya Pradesh that the

Administrative Committee of the High Court had arrived at the

decision to terminate the services of petitioner-Aditi Kumar

Sharma on a holistic appreciation of her ACRs and service, the

petitioner has vociferously contended that the termination is not

simpliciter in nature but is founded upon the complaints which

were made against the petitioner. It is not out of place to note

here that according to petitioner, even as far as her worst ACR

of the year 2022 is concerned, the Principal District and Sessions

Writ Petition (Civil) No.142 of 2024 Etc. Page 52 of 125 Judge, Satna vide Annual Inspection Report dated 23.12.2022

assessed that the judicial work of the petitioner appears to be

excellent.

8.15 In order to display her efficiency and commitment to the

service, petitioner-Aditi Kumar Sharma also highlighted that the

petitioner earned 4.80 units from January to April 2023 i.e. until

her transfer to District Tikamgarh, which was ‘Very Good’. The

petitioner earned a total of 321.35 units and, specifically, 126.4

civil units – both categorized as ‘Very Good’. The Petitioner

contends that this shows significant improvement in units

earned. This was during post-Covid period.

8.16 Furthermore, emphasis was laid on the fact that the

petitioner had been found not guilty in three complaints out of

the five placed before the Administrative Committee. Although

she was found guilty in the discreet inquiries conducted in the

remainder two complaints, it was contended that these inquiries

violated the principles of natural justice as the petitioner was not

given an opportunity to defend herself or to make a

representation.

Writ Petition (Civil) No.142 of 2024 Etc. Page 53 of 125 8.17 Learned senior counsel would contend that such

deprivation of opportunity to defend herself signifies that the

termination is stigmatic and violative of Article 311(2) of the

Constitution, vide Khem Chand vs. Union of India, 1958 SCR

1080.

8.18 According to her, the termination of the petitioner is

punitive and not termination simpliciter as it was founded on

complaints of misconduct and the finding of guilt in reports of

full-scale inquiries. - vide Pavanendra Narayan Verma vs.

Sanjay Gandhi PGI of Medical Sciences, (2002) 1 SCC 520

8.19 Therefore, it was contended that prior to her termination,

the Petitioner should have been given an opportunity to be

heard, vide Chandra Prakash Shahi vs. State of U.P, (2000)

5 SCC 152.

8.20 Arguing from the factual record, it was contended that, in

any event, the findings of these discreet enquiries are perverse

as the petitioner was found guilty of misconduct in complaint no.

775/2022 despite the complaint being withdrawn by the

complainant. Therefore, where there could have been no finding

Writ Petition (Civil) No.142 of 2024 Etc. Page 54 of 125 of guilt, according to the Petitioner, only an advisory should have

been given which, in fact, never was. As for Complaint no.

776/2022, it was advanced that the same was perverse as the

statements of the witnesses recorded were not supported by

affidavits, instead a piece of paper with the signatures of some

advocates was annexed with the report. As per the petitioner,

such a practice is unsustainable in law, vide Amar Singh vs.

Union of India, (2011) 7 SCC 69.

8.21 To support the submission that the termination is

punitive, it was submitted that this Court can discern the

reasons for the termination from the material on record and need

not restrict itself to the reasons appearing on the order of

termination. Our attention was drawn to the letter addressed by

the High Court to the Law and Legislative Works Department

dated 13.05.2023 recommending the termination of the

petitioner which mentions that the Assessment Chart which

contains the complaints and the finding of guilt formed part of

the material taken into consideration by the Administrative

Committee. Specifically, it was emphasized that the Assessment

Chart was the only material annexed to the letter.

Writ Petition (Civil) No.142 of 2024 Etc. Page 55 of 125 8.22 Learned senior counsel submitted that it is trite law that

for an order of termination to be stigmatic the words casting

stigma may also be contained in an order or proceeding referred

to in such an order or in an annexure thereto. That being the

case here, it was contended that the order must be construed as

ex facie a stigmatic order of termination, as any such reference

would inevitably impact the future prospects of the judicial

officer, vide Dr. Vijayakumaran CPV vs. Central University of

Kerala & Ors, (2020) 12 SCC 426.

8.23 Furthermore, it was argued that an order may be stigmatic

if perusal of the record discloses that other material was taken

into consideration while proposing the action of termination, vide

State of Bihar vs. Shiva Bhikshuk Mishra, (1970) 2 SCC 871

and Shamsher Singh vs. State of Punjab, (1974) 2 SCC 831.

8.24 Our attention was also invited to the Full Court’s

observation made while reconsidering the termination inasmuch

as it stated that “considering the ACR Gradings, Disposal

Statistics, Adverse Remarks, ‘complaints made against them’

and their overall performance”, Full Court was of the view that

the termination of the petitioner cannot be revoked. According to

Writ Petition (Civil) No.142 of 2024 Etc. Page 56 of 125 the petitioner, this categorically establishes that the Committee

acted on irrelevant material i.e. complaints were taken into

consideration whilst ignoring relevant material, i.e., her good

performance. It was contended that such decision making is bad

in law as inquiries of these complaints were held behind the back

of the Petitioner without giving her the reasonable opportunity

to show cause vide Dipti Prakash Banerjee vs. Satyendra

Nath Bose National Centre for Basic Sciences, (1999) 3 SCC

60.

8.25 It was also argued by learned senior counsel for the

petitioner that even a probationer is entitled to the protection

provided under Article 311(2) of the Constitution as the Article

does not condition protection on permanency and is available to

probationers alike, vide – Jagdish Mitter vs. Union of India,

1963 SCC OnLine SC 75 : AIR 1964 SC 449. It was contended

that probationers require the protection of the Article as much

as permanent employees do and to limit the protective provisions

of Article 311(2) to only that class of persons who hold

permanent positions would be adding qualifying words to the

Article which do not ex facie exist, vide Parshotam Lal Dhingra

Writ Petition (Civil) No.142 of 2024 Etc. Page 57 of 125 vs. Union of India, AIR 1958 SC 36 (“Parshotam Lal

Dhingra”).

8.26 Learned senior counsel argued that at least soon after

approval by the Chief Justice the "adverse remarks" should have

been communicated to the petitioner along with an opportunity

to respond to the same. It was contended that deprivation of

such opportunity, as a corollary, also deprived the petitioner to

make her case for the grading to be upgraded. It was also

highlighted that a downgrade from a grading of "very good" in the

previous year to "good" in the subsequent year is considered an

"adverse remark" and must have been required to be

communicated to the petitioner. - vide Abhijit Ghosh Dastidar

vs. Union of India, (2009) 16 SCC 146.

8.27 It was contended that though the Respondent-High Court

has power to terminate the services of probationers under Rule

11(c) of M.P. Judicial Service (Recruitment and Conditions of

Services) Rules, 1994, this discretion cannot be exercised in an

arbitrary manner, upon the subjective satisfaction of the High

Court and in violation of principles of natural justice. Therefore,

the termination order being against right and reason must be set

Writ Petition (Civil) No.142 of 2024 Etc. Page 58 of 125 aside. - vide Central Inland Water Transport Corporation

Limited vs. Tarun Kanti Sengupta, (1986) 3 SCC 156.

8.28 It was also contended that the petitioner must be made a

permanent judicial officer as the impugned action suffers from

material illegalities and is liable to be set aside. The plea of the

petitioner was that to direct the petitioner to serve on probation

again would put her in a vulnerable position.

8.29 It was highlighted that as a constitutional spearhead over

the District judiciary, High Courts have a duty to guide and

protect judicial officers from concocted complaints.

Furthermore, the High Court must aid and advance the

improvement of judicial officers instead of using the mistake of a

probationer as an excuse to terminate his/her services in the

first instance. Relying on Ishwar Chand Jain vs. High Court

of Punjab & Haryana, (1988) 3 SCC 370, the petitioner argued

that if even after warning and guidance a probationer fails to

improve, then the High Court can terminate their services;

however, this power must not be exercised arbitrarily.

Writ Petition (Civil) No.142 of 2024 Etc. Page 59 of 125 8.30 Learned senior counsel finally contended that the District

Judiciary will be stifled if judicial officers are forced to live under

a constant threat of complaint and inquiry. Furthermore, as the

termination herein was, in substance, by way of punishment and

therefore bad in law, it needs to be quashed and the petitioner

should be reinstated with seniority and back wages.

Submissions on behalf of the Respondent-High Court:

9. Per contra, Sri Arjun Garg, learned counsel appearing for

the Madhya Pradesh High Court, at the outset contended that as

per Rule 11(d) of the Recruitment Rules, even if the maximum

period of probation has lapsed (two years), a probationer cannot

be automatically confirmed without a specific order being passed

by the High Court. Although the probationary period lapsed, the

probation would continue till the High Court confirms the officer.

In this regard, reliance was placed on High Court of Madhya

Pradesh vs. Satya Narayan Jhavar, (2001) 7 SCC 161 and

Durgabai Deshmukh Memorial Senior Secondary School vs.

JAJ Vasu Sena, (2019) 17 SCC 157.

9.1 It was next submitted that a probationer can be discharged

without any notice or opportunity of hearing or without

Writ Petition (Civil) No.142 of 2024 Etc. Page 60 of 125 conducting any inquiry under Article 311 of the Constitution of

India. Reliance was placed on Rajasthan High Court vs. Ved

Priya, (2021) 13 SCC 151 (“Ved Priya”); High Court of

Judicature at Patna vs. Pandey Madan Mohan Prasad

Sinha, (1997) 10 SCC 409 (“Pandey Madan Mohan Prasad

Sinha”) and Satya Narayan Athya vs. High Court of Madhya

Pradesh, (1996) 1 SCC 560. Further, it was contended that a

discharge simpliciter or cessation of service of an employee

during probation would not cast any stigma on the employee.

The service rules do not contemplate any prior notice or

opportunity of hearing before discharge or termination of a

probationer. The following judgments were relied upon

Pavanendra Naryana Verma vs. Sanjay Gandhi PGI of

Medical Science, (2002) 1 SCC 520; and Rajesh Kohli vs.

High Court of Jammu and Kashmir, (2010) 12 SCC 783.

9.2 It was contended that in the case of a probationer, the

overall record must be considered. This would include the entries

in the confidential reports/character rolls/vigilance reports,

both favourable and adverse. The confirmation of probationer is

purely a matter subject to the satisfaction of the High Court.

Writ Petition (Civil) No.142 of 2024 Etc. Page 61 of 125 Further, unless there is a direct nexus between the charges

levelled and action taken, a mere preliminary inquiry or

examination of the complaints against the probationer for

assessment for his overall performance would not vitiate an

order of termination so as to make it punitive. The employer need

not conduct an inquiry but at the same time, he can terminate

the employee if he does not want him to continue in view of the

complaints against him. In such a case, the termination is not

punitive. Reliance was placed on the following judgments:

a. Registrar, High Court of Gujarat vs. CG Sharma, (2005) 1 SCC 132. b. Rajesh Kumar Srivastava vs. State of Jharkhand, (2011) 4 SCC 447. c. Governing Council of Kidwai Memorial Institute of Oncology, Bangalore vs. Dr. Pandurang Godwalkar, (1992) 4 SCC 719. d. Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences, (1999) 3 SCC 60.

9.3 It was lastly contended that the judicial service in a

district falls under the control of the High Court under Articles

233-235 of the Constitution and therefore, if the High Court

found an officer not to be suitable, the said opinion has to be

regarded and acted upon by terminating the officer concerned

Writ Petition (Civil) No.142 of 2024 Etc. Page 62 of 125 from service even if the probation has not been successfully

completed. In this context, reliance was placed on Ved Priya,

and Dipti Prakash Banerjee.

9.4 On facts, learned counsel for the respondent contended

that the petitioner-Aditi Kumar Sharma was not entitled to the

benefit of additional 1.5 units for the year 2021 as the same is

provided for a period of two years from the date of her joining. As

the petitioner-Aditi Kumar Sharma joined service on 15.11.2018,

two years would have completed on 15.11.2020 and therefore,

the benefit of 1.5 units cannot be extended to her for the year

2021.

9.5 Furthermore, it was contended that petitioner-Aditi

Kumar Sharma was indeed allocated adequate number of

criminal cases and it was not open for her to suggest that her

unit value for criminal cases was hindered due to insufficient

number of criminal cases pending in her court.

9.6 Learned counsel also apprised us of the fact that four out

of the five complaints made against the Petitioner are kept in

abeyance and a singular complaint was disposed of with only a

Writ Petition (Civil) No.142 of 2024 Etc. Page 63 of 125 direction to the complainant to take criminal action against the

petitioner as the complainant deems fit. It was therefore

contended that it is not open to the petitioner to contend that

petitioner was dismissed based on false, frivolous and malicious

pending complaints.

9.7 Learned counsel appearing for the High Court placed

significant reliance on the position that the decision to terminate

the services of the petitioners-probationary judicial officers

herein had been taken based on a comprehensive view formed

on a holistic and overall performance of the judicial officers

rather than any specific misconduct.

9.8 To elaborate that there was no exclusive link between the

complaints and termination, it was contended by learned

counsel that there was no request made for termination in any

of the complaints. In the context of the complaint that from

September 2022, petitioner had a poor conduct and acrimony

with members of the Bar within the courtroom, it was submitted

that a discreet enquiry was conducted by the then District Judge

(Inspection) Jabalpur. While the petitioner was found guilty as

per the report of the District Judge, the final suggestions were

Writ Petition (Civil) No.142 of 2024 Etc. Page 64 of 125 submitted to the Principal Registrar (Vigilance) of the High Court.

Thereafter, on 28.03.2023, the Principal Registrar (Vigilance)

thought it sufficient to merely advice the petitioner-Aditi Kumar

Sharma to behave “properly with fellow advocates and maintain

cordial relations between the Bench and Bar". At this juncture,

it was again argued that the question of terminating the

petitioner was neither raised nor suggested. Furthermore, as the

services of the Petitioner had already been terminated on

23.05.2023 i.e. before the conclusion of enquiry, the file was kept

in abeyance.

9.9 Without prejudice to the aforesaid factual position, it was

also contended that it is trite law that a probationer can assert

no indefeasible right to continue in employment until he/she is

confirmed by the competent authority. It was also summarily

argued that the subjective exercise of evaluating the performance

of two judicial officers during probation could not possibly be, in

the facts herein, held to be either violative of any fundamental

right of the petitioners or as arbitrary exercise of power by the

High Court.

Writ Petition (Civil) No.142 of 2024 Etc. Page 65 of 125 9.10 Insofar as the controversy over the presiding officer for

ACR of year 2022 is concerned, learned counsel for the

respondent-High Court submitted that while ordinarily the ACR

for the petitioner-Aditi Kumar Sharma - posted as Civil Judge,

Junior Division, Satna during the period from 22.06.2020 to

09.04.2023 - would be recorded by the then Principal District &

Sessions Judge, Satna, however, since Shri Ramesh Srivastava,

the then Principal District & Sessions Judge, Satna, was to be

superannuated on 31.12.2022, Smt. Anuradha Shukla, the then

District Judge (Inspection), Zone Jabalpur was authorized by the

High Court of Madhya Pradesh to record ACR of Judicial Officers

of district Satna in compliance with the order of the Chief Justice

of Madhya Pradesh High Court dated 21.12.2022.

9.11 It was further contended on behalf of the respondent-

High Court that it is a consistent position of this Court that the

conduct of judicial officers while discharging their

responsibilities must be impeccable and judges must act as role

models for the entire judicial system. - vide Arundhati Ashok

Walavalkar vs. State of Maharashtra, (2011) 11 SCC

Writ Petition (Civil) No.142 of 2024 Etc. Page 66 of 125 324; and Ram Murti Yadav vs. State of U.P., (2020) 1 SCC

801.

9.12 It was further submitted that the objective of probation is

to provide the employer an opportunity to evaluate the

probationer’s performance and suitability. For the said

evaluation, the employer can assess the overall performance. -

vide Kazia Mohammed Muzzammil vs. State of Karnataka,

(2010) 8 SCC 155. According to the respondent-High Court, this

discretion is subject to subjective satisfaction and cannot be

based only on objective material. In that regard, reliance was

placed on the dicta of this Court in Ved Priya.

9.13 Relying on the aforesaid judgment, it was also contended

that unless the removal of a probationer is stigmatic and causes

prejudice to their future prospect or casts aspersions on their

character or violates their constitutional rights, they cannot seek

protection under the umbrella of principles of natural justice.

Notably, the case of the petitioners herein is that the termination

order is stigmatic.

Writ Petition (Civil) No.142 of 2024 Etc. Page 67 of 125 9.14 To distinguish the present case from Anoop Jaiswal it

was submitted that, herein, there is no occasion for lifting of the

veil, that is to say, go behind the termination order as the

material on record amply shows that the order of termination is

not punitive. It was submitted that the reference to complaints

in the assessment chart is only as part of the overall record of

the petitioner and neither the sole nor principal force behind

termination. Therefore, the present cases are of termination

simpliciter and not punitive termination. Reliance in this regard

is again placed on the para 24 of Ved Priya.

9.15 A related submission was that the present order of

termination was borne out of routine confirmation exercise and

not out of any specific action against the petitioners and merely

because some complaints were pending cannot lead to the

conclusion that those complaints only were the foundation of

termination. On the relevance of closed complaints, it was

submitted that complaints even though closed can be taken into

consideration except when no truth is found in such complaints.

Furthermore, a complaint being closed merely with advisory

Writ Petition (Civil) No.142 of 2024 Etc. Page 68 of 125 issued would be crucial for an eventual determination of

confirmation as they speak to overall performance.

9.16 Insofar as petitioner-Sarita Choudhary is concerned, it

was submitted that she was given warnings repeatedly, year after

year, on complaints ranging from misbehaviour, indiscipline,

administrative and work related issues.

9.17 It was vehemently contended that a probationer neither

has a right to continue in the post nor is a probationer a

substantive appointee, therefore, would not strictly be protected

by Article 311(2). In that regard, it was submitted that the

termination orders being neither punitive nor based on any

specific act of misconduct there was no need to serve any notice

or grant any opportunity of hearing.

9.18 Learned counsel also contended that this Court in its writ

jurisdiction does not sit in appeal over the decision of the Full

Court. Relying on Ved Priya, it was submitted that “the collective

wisdom of the Full Court deserves due respect, weightage and

consideration in the process of judicial review”.

Writ Petition (Civil) No.142 of 2024 Etc. Page 69 of 125 9.19 It was next submitted that non-communication of ACRs

and no notice being served before discharge/termination is not

fatal to the validity of the orders of termination. The delay in

communication of ACRs was due to evaluation of representations

called from the judicial officers for upgradation of ACRs for the

period between 2016 and 2020. As the said exercise was

completed only in 2023, adverse/advisory remarks were

scrutinized and thereafter were communicated to the judicial

officers resulting in delay. Furthermore, it was contended that

there exists no obligation in law to communicate adverse

material to a petitioner before the decision is taken since the

petitioners herein did not hold any right to a post; therefore,

principles of natural justice do not apply to such situations.

Reliance in this regard was placed on Pandey Madan Mohan

Prasad Sinha wherein this Court had to answer whether non-

communication of remarks for some of the years served by a

probationer would amount to a violation of principles of natural

justice. Therein, adverse remarks in respect of some years were

communicated only after the decision to terminate had been

taken. Observing that a probationer does not have a right to hold

Writ Petition (Civil) No.142 of 2024 Etc. Page 70 of 125 the post during the period of probation, this Court held that a

sine qua non for questioning an order terminating the services of

a probationer is arbitrariness or showing that it has been passed

by way of punishment without complying with the requirements

of Article 311(2) of the Constitution. It was held that lacking the

right to hold the post on which a person has been appointed on

probation, a probationer cannot claim a right to be heard before

an order terminating his services was passed.

Points for Consideration:

10. Having heard learned Amicus and learned senior counsel

for the petitioners and learned counsel for the respondents at

length, the following points would arise for our consideration:

i) Whether the respondent-High Court was right in

terminating the services of the petitioners? In other

words, whether the cessation of services of the

petitioners in the instant cases is punitive, arbitrary

and therefore contrary to law?

ii) If the answer to the aforesaid question is in the

affirmative, then what order?

Writ Petition (Civil) No.142 of 2024 Etc. Page 71 of 125 11. Before proceeding to consider the individual cases, it

would be useful to discuss the applicable Rule.

Rule 11 of the Recruitment Rules reads as under:

“11. Probation-

(a) A person appointed to category (i) of rule 3(1) shall, from the date on which he joins duty, be on probation for a period of two years.

(b) The High Court may, at any time, extend the probation, but the total period of probation shall not exceed three years.

(c) It shall be competent for High Court at any time during or at the end of the period of probation in the case of Civil Judge (Entry Level) to recommend termination of his service and in the case of Senior Civil Judge, to revert him on account of unsuitability for the post.

(d) On successful completion of probation, the probationer shall, of there is permanent post available be confirmed on the service or post to which he has been appointed and if no permanent post is available, a certificate shall be issued by the High court to the effect that he would have been confirmed, but for the non-availability of the permanent post and as soon as permanent post become available, he will be confirmed, if the High court decides that he has successfully completed the period of probation and he is suitable to hold the post.”

Writ Petition (Civil) No.142 of 2024 Etc. Page 72 of 125 11.1 The extract of the Minutes of the Meeting of the

Administrative Committee (Madhya Pradesh Judicial Services)

held on 08.05.2023 and 10.05.2023 by which services of six

women judicial officers were terminated as per Rule 11(c) of the

Recruitment Rules reads as under:

“EXTRACT OF THE MINUTES OF THE MEETING OF ADMINISTRATIVE COMMITTEE (M.P. JUDICIAL SERVICE) HELD ON 08.05.2023 and 10.05.2023.

xxx xxx xxx

PART-3 & 4

ITEM No.02. Consideration regarding confirmation of 393 temporary Civil Judges (Junior Division), completed probation period upto 31.12.2021 (01.01.2020 to 31.12.2021) under Rule 11 of the M.P. Judicial Service (Recruitment and Conditions of Service) (amended) Rules, 1994 along with 25 officers of previous consideration.

D. 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:-

Writ Petition (Civil) No.142 of 2024 Etc. Page 73 of 125 Sr. Name of the Officers No. Sarvashri 1 Sushri Sarita Choudhary, II Civil Judge Jr. Division, Umaria 2 Smt. Jyoti Varkade, CJ, Jr. Division, Timarni [Harda] 3 Sushri Aditi Kumar Sharma, V CJ, Jr. Division, Tikamgarh 4 Sushri Sonakshi Joshi, VAJ To I CJ, Jr. Division, Morena 5 Sushri Priya Sharma, I CJ, Jr. Division, Dr Ambedkar Nagar [Indore] 6 Smt. Rachna Atulkar Joshi, II CJ, Jr. Division, Teonthar [Rewa]

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

Writ Petition (Civil) No.142 of 2024 Etc. Page 74 of 125 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 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.

Writ Petition (Civil) No.142 of 2024 Etc. Page 75 of 125 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 a punishment, the termination would

cause a stigma on him. If a probationer is unsuitable for a job

Writ Petition (Civil) No.142 of 2024 Etc. Page 76 of 125 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

Writ Petition (Civil) No.142 of 2024 Etc. Page 77 of 125 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 of

punishment because such remarks or assessment would be

stigmatic. According to the dictionary meaning, stigma is

Writ Petition (Civil) No.142 of 2024 Etc. Page 78 of 125 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.

Writ Petition (Civil) No.142 of 2024 Etc. Page 79 of 125 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

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

Writ Petition (Civil) No.142 of 2024 Etc. Page 80 of 125 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

Writ Petition (Civil) No.142 of 2024 Etc. Page 81 of 125 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 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

Writ Petition (Civil) No.142 of 2024 Etc. Page 82 of 125 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 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

Writ Petition (Civil) No.142 of 2024 Etc. Page 83 of 125 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 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

Writ Petition (Civil) No.142 of 2024 Etc. Page 84 of 125 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

Writ Petition (Civil) No.142 of 2024 Etc. Page 85 of 125 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

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

Writ Petition (Civil) No.142 of 2024 Etc. Page 86 of 125 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 311, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances.

Writ Petition (Civil) No.142 of 2024 Etc. Page 87 of 125 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:

Writ Petition (Civil) No.142 of 2024 Etc. Page 88 of 125

“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.”

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.

Writ Petition (Civil) No.142 of 2024 Etc. Page 89 of 125 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

Writ Petition (Civil) No.142 of 2024 Etc. Page 90 of 125 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 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

Writ Petition (Civil) No.142 of 2024 Etc. Page 91 of 125 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

Writ Petition (Civil) No.142 of 2024 Etc. Page 92 of 125 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.

14.6 Thereafter, petitioner’s ACR for 2020 witnessed a

downward shift in her grade to ‘D-Average’.

Writ Petition (Civil) No.142 of 2024 Etc. Page 93 of 125 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

Writ Petition (Civil) No.142 of 2024 Etc. Page 94 of 125 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.

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

Writ Petition (Civil) No.142 of 2024 Etc. Page 95 of 125 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’.

Writ Petition (Civil) No.142 of 2024 Etc. Page 96 of 125 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.

Writ Petition (Civil) No.142 of 2024 Etc. Page 97 of 125 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

Writ Petition (Civil) No.142 of 2024 Etc. Page 98 of 125 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.

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

Writ Petition (Civil) No.142 of 2024 Etc. Page 99 of 125 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

Writ Petition (Civil) No.142 of 2024 Etc. Page 100 of 125 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.

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

Writ Petition (Civil) No.142 of 2024 Etc. Page 101 of 125 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’

Writ Petition (Civil) No.142 of 2024 Etc. Page 102 of 125 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’.

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

Writ Petition (Civil) No.142 of 2024 Etc. Page 103 of 125 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

Writ Petition (Civil) No.142 of 2024 Etc. Page 104 of 125 good state ever since Covid-19. Clearly her elder brother’s

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

Writ Petition (Civil) No.142 of 2024 Etc. Page 105 of 125 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 of the

minutes of the meeting Administrative Committee on 08.05.2023

and 10.05.2023 reads as follows:

Writ Petition (Civil) No.142 of 2024 Etc. Page 106 of 125

“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

Writ Petition (Civil) No.142 of 2024 Etc. Page 107 of 125 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.

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

Writ Petition (Civil) No.142 of 2024 Etc. Page 108 of 125 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-

Writ Petition (Civil) No.142 of 2024 Etc. Page 109 of 125

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 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’

Writ Petition (Civil) No.142 of 2024 Etc. Page 110 of 125 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.

Writ Petition (Civil) No.142 of 2024 Etc. Page 111 of 125 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 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

Writ Petition (Civil) No.142 of 2024 Etc. Page 112 of 125 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

Writ Petition (Civil) No.142 of 2024 Etc. Page 113 of 125 Bench. Furthermore, we also note that from 2019 till 2021, her

respective ACRs have noted that her 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.

Writ Petition (Civil) No.142 of 2024 Etc. Page 114 of 125

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

Writ Petition (Civil) No.142 of 2024 Etc. Page 115 of 125 Court insofar as these two officers are concerned. The

record does not reflect any consistent poor performance;

the record speaks otherwise. 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

Writ Petition (Civil) No.142 of 2024 Etc. Page 116 of 125 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

Writ Petition (Civil) No.142 of 2024 Etc. Page 117 of 125 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.

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.

Writ Petition (Civil) No.142 of 2024 Etc. Page 118 of 125 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;

Writ Petition (Civil) No.142 of 2024 Etc. Page 119 of 125 (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

Writ Petition (Civil) No.142 of 2024 Etc. Page 120 of 125 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

17.5 In Ministry of Defence v. Babita Puniya, (2020) 7 SCC

469, this Court castigated the State’s perpetuation of

anachronistic gender roles based on sex stereotypes which have

long discriminated against women. Reliance was placed by the

State on the “inherent physiological differences between men and

women” to effectively suggest that the “weaker” sex may not

1 See: V Klier, P Geller and J Ritsher, 'Affective Disorders in the Aftermath of Miscarriage: A Comprehensive Review' (2002) 5 Archives of Women's Mental Health 129-149; Siobhan Quenby and others, ‘Miscarriage Matters: The Epidemiological, Physical, Psychological, and Economic Costs of Early Pregnancy Loss' (2021) The Lancet, May; P Gerber-Epstein, RD Leichtentritt and Y Benyamini, 'The Experience of Miscarriage in First Pregnancy: The Women’s Voices' (2008) 33(1) Death Studies 1-29; OB Van den Akker, 'The Psychological and Social Consequences of Miscarriage' (2011) 6(3) Expert Review of Obstetrics & Gynecology 295

Writ Petition (Civil) No.142 of 2024 Etc. Page 121 of 125 undertake tasks that are “too arduous” for them. This Court

rejected the State’s arguments finding them to not constitute a

constitutionally valid basis for denying equal opportunity to

women officers.

17.6 In Nitisha v. Indian Army, (2021) 15 SCC 125, this

Court significantly advanced Indian jurisprudence on indirect

discrimination. In this case, this Court explained how the facade

of certain structures as harmless and as a “norm” may in reality

reflect the ‘insidious patriarchal system’. Cognizant of the

transformative intent of our constitutional project, this Court

noted the need to rebuild societal and legal structures to realise

equal opportunity in public employment and gender equality.

17.7 Much like ‘it is not enough to proudly state that women

officers are allowed to serve the nation in the Armed Forces’, it is

not enough to find comfort solely in the growing number of

female judicial officers if we are unable to secure for them a

sensitive work environment and guidance. The High Court has

erred in acting agnostic to, inter alia, claims of insubordination

of petitioner-Sarita Chaudhary and acute medical and emotional

conditions battled by petitioner-Aditi Kumar Sharma. Despite

Writ Petition (Civil) No.142 of 2024 Etc. Page 122 of 125 still reeling from the effects of a severe case of Covid-19 and a

miscarriage, the ACR for 2021 of petitioner-Aditi Kumar Sharma

was downgraded by the Portfolio Judge from ‘B-Very Good’ to ‘C-

Good’ only considering ‘pendency and disposal’. While gender is

not a rescue for poor performance, it is a critical consideration

which must weigh for holistic decision-making at certain times

and stages of a woman judicial officer.

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 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;

Writ Petition (Civil) No.142 of 2024 Etc. Page 123 of 125

(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.

Writ Petition (Civil) No.142 of 2024 Etc. Page 124 of 125 The writ petitions as well as Suo Moto Writ Petition are

allowed and disposed of in the aforesaid terms.

………………………………………………..J. (B. V. NAGARATHNA)

………………………………………………..J. (NONGMEIKAPAM KOTISWAR SINGH) NEW DELHI;

FEBRUARY 28, 2025.

Writ Petition (Civil) No.142 of 2024 Etc. Page 125 of 125