Wish men have menstruation, the Supreme Court has remarked, censuring the Madhya Pradesh High Court's decision to sack a woman judge in the state based on performance and not considering her predicament due to a miscarriage.

A bench of Justices B V Nagarathna and N Kotiswar Singh sought a clarification from the high court on the criteria for the termination of civil judges.

"I hope such criteria is also imposed on male judges. I have no hesitation in saying this. The lady, she has got pregnant and she had miscarriage. The mental and physical trauma of a lady who has undergone a miscarriage. What is this? I wish men have menstruation. Then they will know what it is," remarked Justice Nagarathna, questioning the assessment of the woman judicial officer which had ignored the mental and physical trauma endured by her due to the miscarriage.

On November 11, 2023, the top court took a suo motu (on its own) cognisance of the termination of six women civil judges by the state government over their alleged unsatisfactory performance.

However, a full court of the MP high court reconsidered its earlier resolutions on August 1, and decided to reinstate four officers, namely, Jyoti Varkade, Sushri Sonakshi Joshi, Sushri Priya Sharma and Rachna Atulkar Joshi on certain terms and conditions leaving out the other two Aditi Kumar Sharma and Sarita Chaudhary from the exercise.

The top court was considering the cases of the judges, who joined Madhya Pradesh judicial service in 2018 and 2017, respectively.

According to a report submitted by the high court, Sharma's performance dropped from “very good” and “good” ratings during 2019-20 to “average” and “poor” in the subsequent years.

In 2022, she had about 1,500 pending cases with disposal rate below 200, it was stated.

The judge, on the other hand, informed the high court about suffering a miscarriage in 2021, followed by her brother’s cancer diagnosis.

While taking cognisance of the termination, the bench issued notices to the high court registry and the judicial officers who had not approached it against the termination.

The judges were terminated despite the fact that a quantitative assessment of their work could not be done on account of the Covid outbreak, the court noted.

"The officers along with three other women officers were appointed in judicial services in the state of Madhya Pradesh. They are alleged to be terminated from service primarily on account of disposal not being up to the standards set," the office report stated.

The termination orders were passed in June, 2023 by the state law department after an administrative committee and a full court meeting found their performance during the probation period "unsatisfactory".

An impleadment plea of one of the judges, filed through advocate Charu Mathur, argued despite a four-year unblemished service record and no adverse remarks, she was terminated without following any due process of law.

She alleged her termination from service was a violation of her fundamental rights under Articles 14 (right to equality before law) and 21 (right to life and personal liberty) of the Constitution.

In her application, she said if the period of her maternity and child care leave was taken into consideration in the quantitative work assessment, it would be a grave injustice to her.

"It is a settled law that maternity and child care leave is a fundamental right of a woman and also the infant, therefore, evaluation of the applicant's performance for the probation period on the basis of the leave taken by her as part of maternity and child care is grossly violative of her fundamental rights," it said.

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