Summary
Two women Civil Judges (Junior Division) of Madhya Pradesh, terminated during probation in May 2023 under Rule 11(c) of the M.P. Judicial Service (Recruitment and Conditions of Service) Rules, 1994 and not reinstated when the Full Court reconsidered the matter at the Supreme Court's request, challenged their terminations. Examining their ACRs, assessment charts and complaints, the Court found no consistent poor performance, found that adverse remarks were communicated late or not at all and an unapproved ACR was relied on, and held that the terminations were founded on complaints of misconduct and inefficiency without any opportunity to be heard, making them punitive, stigmatic and arbitrary. It set aside the terminations and ordered reinstatement with declared probation, seniority and notional benefits, but without salary for the intervening period.
Issues
- Whether the termination of the two probationer judicial officers was a termination simpliciter for unsuitability or was punitive, stigmatic and arbitrary, and therefore contrary to law.
- Whether complaints that were closed with advisories or warnings, found not proved, or kept pending, and adverse ACR remarks not communicated before termination (including an ACR not yet approved by the Chief Justice), could form the basis for terminating a probationer without an inquiry or opportunity of hearing under Article 311(2).
- What relief follows if the terminations are found illegal.
Provisions considered
- Rule 11 (probation; Rule 11(c) termination for unsuitability), Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules, 1994Rule 11 provides a two-year probation extendable to a maximum of three years, empowers the High Court to recommend termination of a Civil Judge (Entry Level) for unsuitability during or at the end of probation, and provides for confirmation on successful completion. The terminations were made under Rule 11(c); the Court held the power cannot be exercised arbitrarily or as a cloak for punishment, and found on the record that the officers were not shown to be unsuitable. (¶¶ 7.1, 8.27, 9, 11, 11.1, 11.2, 16)
- Article 311(2), Constitution of IndiaA probationer is protected by Article 311(2) where the termination is by way of punishment: if it is founded on misconduct, negligence or inefficiency, or on findings reached in an inquiry behind the officer's back, or where stigma can be gathered from documents referred to in or annexed to the order, the officer must at least be informed of the allegations and heard. The Court found the terminations founded inter alia on complaints of misconduct and inefficiency and therefore vitiated for want of opportunity. (¶¶ 12, 12.1, 12.4, 13, 16)
- Articles 14 and 16, Constitution of IndiaEven though a probationer has no right to the post, discharge cannot be arbitrary or discriminatory or reflect non-application of mind to relevant material; courts look to the substance of the termination, not its form. (¶ 12.3)
- Articles 233 to 235, Constitution of IndiaThe High Court argued that its control over the district judiciary required its opinion of unsuitability to be acted upon; the Court nonetheless reviewed the record and found the opinion of consistent poor performance unsupported by it. (¶¶ 9.3, 16)
- Article 32, Constitution of IndiaThe two officers invoked Article 32 and the Chief Justice of India had directed registration of a suo motu writ petition concerning all six terminated women officers; the petitions were allowed. (¶¶ 2.1, 2.2, 18)
Held
- A probationer's service may end either by confirmation or by termination simpliciter for unsuitability, which is non-stigmatic and requires no inquiry or hearing. But if the termination is by way of punishment founded on misconduct, negligence, inefficiency or similar disqualification, it is stigmatic and attracts Article 311(2) even for a probationer. The test is substance, not form: the court may lift the veil to see whether the order is a camouflage for punishment, and stigma may be gathered from documents referred to in or annexed to the order. Although a probationer has no right to the post, Articles 14 and 16 forbid arbitrary or discriminatory discharge or non-application of mind to relevant material. (¶¶ 12, 12.1, 12.2, 12.3, 12.4, 13)
- Where findings of misconduct are reached in an inquiry behind the officer's back or without a regular departmental inquiry, a simple order of termination is 'founded' on those allegations and is bad; where no inquiry is held and the employer merely does not wish to continue an employee against whom complaints exist, the complaints are only the motive and the order is valid. If an inquiry conducted to decide suitability produces allegations resulting in stigma, the probationer must be given the minimum protection of being informed of the charges and heard. (¶ 13)
- On the record of the first petitioner, the ACRs did not show consistent poor performance: her unit value was repeatedly in the 'very good' category, she disposed of all targeted old cases, the complaints against her were closed with advisories or warnings or found baseless, the pending complaint about 321 suspicious files had on inquiry attributed negligence to the execution clerks, and her last ACR before termination was 'good' with undoubted integrity. Adverse remarks were communicated with long delay, in one case only after termination, and the assessment chart placed before the Administrative Committee recorded only adverse comments while omitting favourable ones. (¶¶ 14, 14.9, 14.11, 14.12, 14.13, 14.14, 14.16, 14.17, 14.19, 14.20, 14.22)
- On the record of the second petitioner, her grades were 'very good' and 'good' for 2019 to 2021 and the downgrade in 2021 rested solely on pendency and disposal, which had to be seen against her posting in a vacant court during the pandemic, her ICU hospitalisation for Covid-19, her brother's cancer diagnosis and her miscarriage. The Administrative Committee relied on her unapproved 2022 ACR as 'other material', which it could not do since approval by the Chief Justice is mandatory and what cannot be done directly cannot be done indirectly. Of the five complaints, one was found not proved, one withdrawn, one found an afterthought, and one closed with a proposed advisory; only one suggested conduct unbecoming, and even there criminal action was refused. (¶¶ 15, 15.3, 15.4, 15.5, 15.6, 15.8, 15.12, 15.13, 15.14, 15.15, 15.16, 15.17)
- Delay in communicating adverse ACR remarks deprives judicial officers of the chance to rectify their approach; the High Court should take all reasonable steps to minimise such delay, and explanations received should be actually considered rather than simply rejected. (¶¶ 14.11, 16)
- The Administrative Committee's reference to consistent 'poor performance' was not borne out by the record; adverse ACRs were not communicated in time and representations were not genuinely considered; and insofar as complaints formed the foundation for termination, an opportunity of hearing was required under Article 311 read with the Conduct Rules. The terminations were therefore punitive, arbitrary, stigmatic and illegal, and the sealed-cover material did not alter this view. Complaints closed with advisories or warnings could not be the basis for termination. (¶¶ 16, 16.1)
- Greater representation of women in the judiciary improves judicial decision-making and promotes gender equality, and international instruments recognise special protection for mothers and non-discrimination on grounds of maternity. A miscarriage has deep physical and psychological after-effects. While gender is not a rescue for poor performance, it is a critical consideration that must weigh in holistic decision-making at certain stages of a woman judicial officer's life; the High Court erred in acting agnostic to the acute medical and emotional conditions faced by the second petitioner when downgrading her ACR solely on disposal. (¶¶ 17, 17.1, 17.2, 17.3, 17.4, 17.7)
Result
Writ petitions and suo motu writ petition allowed. Terminations, the resolutions and order of 13.05.2023 and the Government orders of 23.05.2023 set aside qua the two petitioners; they are to be reinstated within fifteen days with their seniority as on termination and consequential benefits, their probation declared as on the date their juniors were confirmed; no salary for the intervening period, but notional benefits for pensionary purposes; complaints kept in abeyance may be dealt with in accordance with law.