Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Governor's Order Retaining Legal Advisor Stayed.
JUDGEMENT TITLE : In Re : Secretary, High Court Bar Association, Allahabad Vs. * On 23/06/2006 By Allahabad High Court
CASE NO : PUBLIC INTEREST LITIGATION (PIL) NO. 33146 OF 2006.
CORAM : Hon'ble Rakesh Tiwari,J. , Hon'ble S.S. Kulshrestha,J. , Hon'ble Prakash Krishna,J. , Hon'ble Devendra Pratap Singh,J. And Hon'ble Amreshwar Pratap Sahi,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Governor's Order Retaining Legal Adviser Stayed

COURT NO.21

Writ (PIL) Petition No. 33146 Of 2006
In Re : Secretary, High Court Bar Association, Allahabad

Hon'ble Rakesh Tewari, J.
Hon'ble S.S. Kulshrestha, J.
Hon'ble Prakash Krishna, J.
Hon'ble D.P. Singh, J.
Hon'ble A.P. Sahi, J.

This Bench Has Been Constituted In An Unprecedented Situation In The History Of This High Court Where The Executive Organ Of The State, Namely, His Excellency The Governor's Secretariat Has Refused To Acknowledge And Implement The Transfer And Suspension Order Of A Judicial Officer Of The Subordinate Judiciary Of This State And Which Issue Has Been Brought To The Notice Of This Court On The Judicial Side By Way Of A Public Interest Petition Moved By The Learned Secretary Of The High Court Bar Association, Allahabad.
Shri Pr Adeep Kumar Dubey, The Concerned Officer Was Inducted Into The Judicial Services Of The State, After Having Been Selected Under The Relevant Rules. The Records Indicate That In The Year 1994, He Came To Be Appointed As Additional Legal Advisor In The Secretariat Of His Excellency The Governor. This Appointment Was By Way Of Deputation. The Deputation Of Such An Officer, According To The Said Rules, Is To Be Governed By The Fundamental Rules And The Government Orders Issued From Time To Time. The Power To Send An Officer On Deputation To Such A Post And To Withdraw Him From The Same, Is Conferred On The Administrative Committee Of The High Court. These Powers Are Contained In Chapter - III Rule 4(C) (i) & (ii) Of The High Court Rules. Needless To Say That The Allahabad High Court Rules, 1952, Which Incorporate The Aforesaid Rules, Have Been Framed In Exercise Of The Powers Conferred Under Article 225 Of The Constitution Of India. The High Court Has Framed Its Policy That An Officer, Who Is Sent On Deputation, Can Be Spared At A Time For 3 Years. Sri Dubey, As Is Evident From The Records, Has Been Continuing On Deputation For The Past More Than 12 Years. The High Court Initiated Repatriation Of Sri Dubey In The Year 1998 But On The Request Of His Excellency The Governor, The Repatriation Was Deferred. This Became An Annual Affair And The Said Deferment/cancellation Continued. However, He Was Included In The Regular Chain Of Annual Transfers In 2004 Also.
On 13.10.2004, His Excellency The Governor Writes To Hon'ble Acting Chief Justice Seeking Stay Of Sri Dubey On The Ground "Since, I Have Taken Over As Governor Of The State In July, 2004, Assistance Of An Experienced Officer, Who Is Well Acquainted With The Working Of This Office, Is Needed At My End".
Accepting The Request Of His Excellency, The Acting Chief Justice Allowed The Officer To Continue For A Further Term Of Six Months And Accordingly Informed His Excellency The Governor Vide Letter Dated 03.11.2004. The Term Expired And Thus He Was Included In The Annual Chain Of 2005 And Transferred On Promotion To Unnao On 04.06.2005 With Intimation To The Governor's Secretariat. However, His Excellency The Governor Vide Letter Dated 06.06.2005 To Hon'ble The Chief Justice Requested That As Shri Dubey Has Been Promoted And Transferred, He Could Be Adjusted As Legal Advisor With His Excellency, As His Presence Was Necessary. Again, Hon'ble The Chief Justice Accepted The Request For His Continuance.
The Correspondence Between The Two Secretariats Of The State Government And His Excellency The Governor And The Registry Of The High Court Continued Thereafter, Which Indicates That The High Court Was Endeavouring To Replace Sri Dubey Which Was Necessary In Order To Maintain The Judicial Capabilities Of Officers And Rejuvenate Their Functioning.
The Governor's Secretariat Refuses To Relieve Shri Pradeep Kumar Dubey, Additional District Judge, Treating Him To Be Indispensable. This Situation Provokes A Thought That "is An Individual Indispensable To An Institution? If It Were, Damn The Institution!"
The Orders Of The High Court Were Well Within The Powers Of The High Court Keeping In View The Provisions Of Article 225 Of The Constitution Of India, Read With The Allahabad High Court Rules 1952 And Articles 233 To 236 Of The Constitution Of India. We Would Like To Record That The Powers Of The High Court In Exercising Control Over The Subordinate Judiciary Under The Aforesaid Provisions Have On Several Occasions Been The Subject Matter Of Consideration And Interpretation By The Apex Court. Without Burdening This Order With A Plethora Of Decisions, Which Are Available On The Subject, We Would Like To Refer To The Constitution Bench Decision Of The Supreme Court, In Chief Justice Of Andhra Pradesh & Anr. Etc. Vs. L.V.A. Dikshitulu & Ors., AIR 1979 SC 193 (Para 35).
Another Decision Of The Apex Court In State Of West Bengal Vs. Nripendra Nath Bagchi, AIR 1966 SC 447, Strongly Acknowledges "the Power Of Posting, Promotion And Grant Of Leave And The Control Of Courts To Be Vested In The High Court. What Is Vested Includes Disciplinary Jurisdiction. Control Is Useless If It Is Not Accompanied By Disciplinary Powers". Paragraphs 13, 14 And 17 Of The Said Decision Are Further Illustrative Of The Aforesaid Proposition.
We Are Pained At The Situation Which Has Arisen But At The Same Time, We Are Reminded Of The Following Excerpts From Late Nani Palkiwala's Write Up, Published In The Times Of India On 30th August, 1984:-
"Repeated Violations Of The Constitutions Are Bad Enough : But Even Worse Is The Acceptance And Approval Of The Violations In High Quarters"

We May Notably Quote The Following Instance Which Is An Eye-opener For Such Instances And Which Relates Back To An Incident, Which Occurred Centuries Ago In England:
"King James I Summoned The Judges And Claimed The Right To Decide Cases Himself Having The Support Of Archbishop Of Canterbury. Coke, Chief Justice Of Common Pleas, Who Employed Various Means To Curtail Executive Interference, With The Consent Of All The Judges, Said "The King In His Own Person Cannot Adjudge Any Case, But This Ought To Be Determined In A Court Of Justice According To The Law And Customs Of England". Perplexed, The King Replied: "My Lords, I Always Thought, And By My Soul I Have Often Heard The Boast, That Your English Law Was Founded Upon Reason. If That Be So, Why Have Not I And Others Reason As Well As You The Judges?" The Chief Replied : "True It Is, Please Your Majesty, That God Has Bestowed Your Majesty With Excellent Science As Well As Great Gifts Of Nature : But Your Majesty Will Allow Us To Say, With All Reverence, That You Are Not Learned In The Laws Of This Your Realm Of England. The Law Is An Art Which Requires Long Study And Experience Before A Man Can Obtain Cognizance Of It. The Law Which Tries The Cause Of Your Majesty's Subjects, It Is By The Same Law That Your Majesty Is Protected In Safety And In Peace". Offended, King James Threatened Treason, But Coke Quoted Bracton, A Judge In The Court Of Henry III, That " ''The King Is Under No Man, Save Under God And The Law'. "

We, Therefore, Proceed To Narrate The Facts Briefly, Which Are Borne Out From The Records Produced By The High Court And Thereafter The Constitutional Issues Which Arise On The Basis Of The Said Facts And The Adjudication Whereof Is Necessary, As This Situation Has Already Created An Impact Of Very Wide Ramifications. The Adjudication Has Become Necessary As The Petition, Prima Facie, Rightly Describes The Situation As One Of A Direct Threat To The Independence Of This Great Judicial Institution Created By The Constitution Of India. We Are Satisfied At Least For The Time Being That The Facts, As Unravelled In The Records, Clearly Tend To Undermine The Status Of The Judiciary And Gives An Impression That The Executive Is Deliberately Blocking The Administration And The Administrative Set Up Of This Institution.
The Present Crises Emerged When A Response Was Received From His Excellency The Governor Himself To The Communication Made By The Registrar General Of This Court On 9th May, 2006 Intimating The Principal Secretary To His Excellency The Governor That The Placement Of Another Officer In Place Of Sri Dubey Is Under Process And Would Be Made Available. The Response To His Excellency The Governor To The Said Letter Is Quoted Herein Below In Toto:-
"T.V. Rajeswar Raj Bhawan
Governor, Uttar Pradesh Lucknow - 227 132

No: RB/OSD/187 May 10, 2006

Dear Chief Justice
The Registrar General Of Allahabad High Court Has Sent A Fax Dated May 9, 2006 Addressed To My Principal Secretary, Regarding The Proposed Transfer Of Shri P.K. Dubey, Additional Legal Advisor And The Posting Of Another Officer In His Place.
2. I Am Conscious Of The Fact That Shri P.K. Dubey Has Been In Raj Bhavan For A Fairly Long Time And Would Normally Be In The Consideration Zone For Transfer. However, In View Of The Forthcoming Elections, Which May Be Any Time Between February And May 2007, I Would Be Unable To Spare His Services Till The Next Assembly Elections Are Over. The Proposal For His Transfer May, Therefore, Kindly Be Deferred Accordingly.

With Kind Regards
Yours Sincerely
Sd/- T.V. Rajeshwar
Hon'ble Mr. Justice A.N. Ray,
Chief Justice
Allahabad High Court
Allahabad."

Hon'ble The Chief Justice In An Exceptionally Courteous Language That Suited The Occasion Replied As Under:-
"Justice Ajoy Nath Ray HIGH COURT
Chief Justice ALLAHABAD
My 18, 2006
Dear Excellency,
Thank You Very Much For Your Letter Dated The 10th Of May, 2006.

With A Lot Of Concern And With The Deepest Of Respect, I Am Constrained To Answer That It Has Become Absolutely Essential To Put Sri P.K. Dubey In The Normal Pool Of Transfer This Year.

He Has Been Serving In The Same Post For Nearly 12-13 Years And Keeping Him There Any Further Will Send Out A Bad Signal For Others.
Apologizing Profusely For Being Unable To Accede To Your Excellency's Requirement, I Send You My Warmest Regards.

Yours Sincerely
Sd/- Ajoy Nath Ray
His Excellency The Governor,
Uttar Pradesh
Raj Bhawan
Lucknow."

Unfortunately The Aforesaid Response Of The Chief Justice Was Met With An Authoritative Communication Of His Excellency The Governor Himself Reiterating The Stand Taken Earlier, Quoted Herein Below:
"T.V. Rajeswar Raj Bhawan
Governor, Uttar Pradesh Lucknow - 227 132
No: RB/OSD/191 May 22, 2006
Dear Chief Justice
Please Refer To Your Letter Dated May 18, 2006 Regarding Shri P.K. Dubey, Additional Legal Advisor In The Governor's Secretariat.

2. I Am Constrained To Point Out That The Procedure Taken In Contemplating His Transfer And Posting A Substitute In His Place Has Not Been In The Fitness Of Things. The Registrar General Of Allahabad High Court Wrote On May 9, 2006 To My Principal Secretary Stating That Shri P.K. Dubey's Reversion To The Regular Line And Posting Of A Substitute Were Under Process, "which Would Be Completed Very Shortly". I Also Learn That The Registrar General Had Sent Out A Circular On May 9, 2006 Itself To The District Judges, Asking For Volunteers For The Post Of Legal Advisor In The Governor's Secretariat And That Their Reply Should Reach Him By May 12.

3. Since The Question Of Transfer Of Shri P.K. Dubey Has Been A Subject Of Correspondence Between The Chief Justice And The Governor Since June 2005, It Was Surprising That The Registrar General Should Have Intimated My Principal Secretary Regarding The Proposed Transfer And Simultaneously Going Ahead Looking For A Substitute, Presuming That He Would Be Replaced. A Legal Advisor On Deputation To The Governor's Secretariat Cannot Be Transferred Without The Governor's Consent.

4. For Reason Already Mentioned In My Letter Of May 10, 2006, Shri P.K. Dubey's Services Cannot Be Spared At Present And He Would Be, No Doubt, Relieved By May-June, 2007.

With Best Wishes And Kind Regards,
Yours Sincerely
Sd/- T.V. Rajeshwar
Hon'ble Mr. Justice A.N. Ray,
Chief Justice
Allahabad High Court
Allahabad"

However, Hon'ble The Chief Justice In Yet Another Letter Dated 23rd May, 2006 Made The Following Communication To His Excellency The Governor Making Clear The Stand Of The High Court:
"Justice Ajoy Nath Ray HIGH COURT
Chief Justice ALLAHABAD

May 23, 2006
Dear Excellency,

Thank You Very Much For Your Letter Dated 22nd Of May, 2006. Subject To Correction By You, It Is Perhaps Better To Leave Our Subordinate Like The Learned Registrar General Out, When We Are Discussing A Matter.

However, Since You Mention Him, I Have To Point Out That He Has Acted All Along Bona Fide And Since He Is All The Time In Close Contact With Me, He Has Been Aware For Quite Some Time Past That I Was Feeling Disturbed About The Exceptionally Long Tenure Which One Single Officer Has Had As Your Excellency's Legal Advisor.

Your Excellency Also Says "Legal Officer On Deputation To The Governor's Secretariat Cannot Be Transferred Out Without The Governor's Consent", Again Subject To Correction, It Appears That An Employee Under The Superintendence Of The High Court Can Always Be Transferred Wherever He Might Be Working. As Such I Am Constrained To Stick To The Stand Taken In Regard To Sri Dubey Earlier.

With Best Wishes And Warm Regards.
Yours Sincerely
Sd/- Ajoy Nath Ray
His Excellency The Governor,
Uttar Pradesh
Raj Bhawan
Lucknow"

His Excellency The Governor Again On 24th May, 2006 Made The Following Communications:
"T.V. RAJESWAR Raj Bhawan
Governor, Uttar Pradesh Lucknow - 227 132

No: RB/OSD/193 May 24, 2006
Dear Chief Justice

I Have Received Your Letter Of May 23, 2006 Regarding Shri P.K. Dubey, Additional Legal Advisor In The Governor's Secretariat.

2. I Have Nothing More To Say Except To Reiterate The Points Made In My Letter Of May 22, 2006.

With Best Wishes And Kind Regards
Yours Sincerely
Sd/- T.V. Rajeshwar
Hon'ble Mr. Justice A.N. Ray,
Chief Justice
Allahabad High Court
Allahabad"

The Aforesaid Communication Was Marked By Hon'ble The Chief Justice To The Registrar General To Place The Letters Of His Excellency The Governor Before The Administrative Committee, The Meeting Whereof Was Scheduled To Be Held On 25th May, 2006.
Hon'ble The Chief Justice Appears To Have Resorted To This Procedure In Order To Get His Opinion Ratified By The Administrative Committee As Per The Provisions Of Chapter-III, Rule 4(C) (i) Of The Allahabad High Court Rules, 1952. All The Aforesaid Three Letters Of His Excellency The Governor Were Considered By The Administrative Committee Of This Court And The Following Resolution Was Passed:
"Excerpt From The Minutes Of The A.C. Meeting Held On 25.05.2006.
AGENDA RESOLUTION

Re: Three Letters Of His Excellency The Governor Dated 10th Of May, 2006, 22nd Of May, 2006 And 24th Of May, 2006 Addressed To The Chief Justice And The Reply Of Hon'ble The Chief Justice To His Excellency The Governor, For Information And Necessary Decision/action If Any. Considered Three Letters Of His Excellency The Governor Dated 10th Of May, 2006, 22nd Of May, 2006 And 24th Of May, 2006 Addressed To The Hon'ble The Chief Justice And The Reply Of Hon'ble The Chief Justice To His Excellency The Governor.Resolved That The Administrative Committee Does Not Feel Differently From Hon'ble The Chief Justice.

J.R. (S)
Sd/- Registrar (Cf.)

On 26.05.2006, The Registrar General Of This Court Addressed A Letter To The Principal Secretary Of His Excellency The Governor With A Copy To The Secretary, Government Of U.P. Appointment Section IV Requesting Them To Ask The Officer To Be Ready To Handover The Charge On 06.06.2006, The Date On Which The Annual Chain Of Transfer Of 2006 Was To Be Effected. The Officer Was Further Intimated That The High Court Would Be Constrained To Take Action Against Him If He Failed To Relinquish His Post.
Yet Sri Dubey Did Not Relinquish Charge Or Join At His New Place Of Posting.
Flurry Of Letters Were Exchanged Between The Registrar General Of This Court And The Principal Secretary Of His Excellency The Governor And The State Government. When The Officer Failed To Comply With The Courts Directive, Vide An Order Dated 07.06.2006, He Was Placed Under Suspension And The Said Order Was Communicated Through An Office Memorandum Dated 07.06.2006 To The Officer Which Was Received By Him On 08.06.2006. On The Same Date The State Government Vide Its Notification Dated 08.06.2006 Relieved Sri Dubey And Informed The Registrar Of This Court And So Also The Principal Secretary Of His Excellency The Governor. The Said Suspension Order Was Ratified And Approved By The Administrative Committee In The Meeting Held On 09.06.2006.
We, Prima Facie, Find That The Communications, Which Are On Record And Received From The Secretariat Of His Excellency The Governor Refusing To Implement The Order Of Transfer And Of Suspension Of This Court Are Not Only Illegal And Patently Without Jurisdiction But Are Also Highly Improper To The Extent Of Creating A Constitutional Crisis.
We Have Been Taken Through The Communications, Which Have Followed After The Transfer Order Of Sri Dubey On 03.06.2006 And The Language Employed In The Communications Addressed By Sri Lov Verma, Principal Secretary To His Excellency The Governor To The Registrar General Of The High Court, Are Against Any Known And Established Canons Of Decency And Propriety Apart From Reflecting A Complete Lack Of Understanding Of The Legal Provisions, Referred To Hereinabove. We Are Not Only Surprised But Are Also Shocked At The Communication Of The Said Officer Dated 08.06.2006 Describing The Suspension Order To Have Neither Been Served On Sri Dubey Nor It Shall Be Treated To Have Been Served On Him And Which Expression Leaves Us Aghast.
We Are In Serious Doubt As To Whether The Language Used By Shri Lov Verma In The Communications Had The Approval Of His Excellency The Governor And To That Extent Shri Lov Verma Owes An Explanation To This Court.
The Communication, Of "treating The Suspension Order Deemed Not To Have Been Served" On The Concerned Officer, Prima Facie Appears To Be Preposterous. We Are Unaware Of Any Such Law Which May Authorize Any Authority To Take Away The Impact Of A Valid Order Of Transfer Or Suspension By Some Imaginative Fiction For Which There Is No Provision Under Any Law For The Time Being In Force Relating To The Present Controversy. The Reference In The Communication On Record By The Principal Secretary To His Excellency The Governor To Articles 233 And 236 Of The Constitution Of India Without Understanding The Impact Of Article 235 Of The Constitution And The High Court Rules Framed Under Article 225 Of The Constitution Of India, In Our Opinion, Is Totally Misplaced In The Present Scenario.
Another Turn Which Took Place Deserves Taking Notice Of, Namely The Notification Dated 08.06.2006 Whereby The State Government Relieved Sri Dubey From His Post Of Additional Legal Advisor To His Excellency The Governor For Taking Charge As Additional District Judge In The District Court At Lucknow. The Officer Had Been Suspended And An Enquiry Was Instituted Against Him, Which Proceedings Were Ratified And Approved By The Administrative Committee In The Meeting Held On 09.06.2006.
The Communication Thereafter In An Unfortunately Obstinate And Intemperate Language From The Governor's Secretariat, Illegally Proceeds To Treat Sri Pradeep Kumar Dubey As Continuing In Service On The Post In Question. The Language Employed In The Letter Dated 12.06.2006 Is Untamed And Unbridled As It States That Sri P. K. Dubey Cannot Be And Neither Treated To Be Transferred Or Suspended. It Further States With The Same Degree Of Arrogance That Since The Said Orders Do Not Have The Prior Approval Or Permission Of His Excellency The Governor, Therefore They Have No Meaning Whatsoever Including The Relieving Order Of The State Government Dated 08.06.2006. The View Of The High Court Was Expressed In The Order Passed By Hon'ble Senior Judge On 17.06.2006, Which Was Communicated To The Principal Secretary To His Excellency The Governor. Unfortunately The Communication Of The Governor's Secretariat Dated 20.06.2006 Again Describes The Stand Of The High Court As Unconstitutional And Invalid.
Another Notable Turn That Took Place At This Stage Was The Order Of The State Government Dated 20.06.2006 Whereby The Placement Of The New Incumbent By The High Court Namely Sri Vijay Verma-II Was Notified By The State Government Reiterating That Sri Dubey Already Stands Relieved.
The Latest Communication Which Has Now Been Published In The Newspapers Giving Rise To This Litigation Speaks Volumes Of The Almost Contemptuous Language Used By The Principal Secretary To His Excellency The Governor Namely Sri Lov Verma While Sending The Communication To The High Court And Also The Letter Of The Same Date Addressed To The Registrar General. The Communication Dated 21.06.2006 Sent By The Principal Secretary Sri Lov Verma To The State Government With A Copy Of The Same To The Registrar General Indicates The Penultimate Expression Of Arrogance Of Power Formulated On Distorted Facts. The Said Communication Tends To Cancel The Communication Of The State Government In Respect Of The Appointment Of The New Incumbent And The Relieving Of Sri Pradeep Kumar Dubey. The Letter Addressed To The Registrar General Of The Same Date Is More Demeaning Than The Communication Already Referred To Hereinabove. It States That The Action Taken By The High Court Is Irregular As The High Court Has No Administrative Jurisdiction Over An Officer, Who Is On Deputation And Is Under The Administrative Control Of His Excellency The Governor. The Communication Further Makes A Suggestion To The Registrar General That The Attempt Made By The High Court Is Futile And Has Described The Entire Effort Of The High Court As An Invalid Exercise, Which May Be Given Up. This, In Our Opinion, Is A Direct Threat To The Administrative Control Of The High Court Preserved Under The Constitution.
Even Though At This Stage It Is Not Necessary To Express Any Further Opinion On The Matter Yet The Entire Gamut Of The Correspondence, Referred To Hereinabove, Coupled With The Legal Issues Raised, Leave No Room For Doubt That The Same Has Precipitated A Serious Constitutional Issue, Which Deserves To Be Dealt With Forthwith In Order To Prevent Any Further Undermining Of The Prestige Of One Of The Constitutional Pillars Of Our Great Democratic Nation.
The Questions Of The Constitutionality, The Legality And The Propriety Of Action Taken By His Excellency The Governor's Secretariat, Prima Facie, May Raise The Following Questions:-
(i) WHETHER His Excellency The Governor Or The Secretariat Of His Excellency Has Any Constitutional Or Legal Authority To Override And Overrule The Orders Of This Court On The Administrative Side In The Matters Of Transfer, Deputation And Suspension Of The Officers Of The Subordinate Judiciary?

(ii) WHETHER The Powers Exercised By The High Court Under The Rules Framed Under Article 225 Of The Constitution Of India And The Powers Conferred On It Under Article 235 Of The Constitution Of India In Respect Of Matters Of Transfer, Deputation And Suspension Are Absolute And Unfettered?

(iii) WHETHER The Communications On Record Relating To The Transfer And Suspension Of Sri Pradeep Kumar Dubey Are Without Jurisdiction And Tampered In A Highly Improper Language?

(iv) WHETHER The Action Of The Secretariat Of His Excellency The Governor Precipitates A Constitutional Crisis Undermining The Very Independency Of The Judicial Administration Of The State?

(v) WHETHER His Excellency The Governor Has The Authority To Nullify The Effect Of The Orders Of This Court By Describing It As Deemed Not To Have Been Served Or Passed Or Given Effect To, As Contained In The Communications On Record?

(vi) WHETHER The Action Of His Excellency The Governor Diminishes Settled Democratic Norms And Devalues The Constitution?

It Is In The Backdrop Of The Facts Narrated Hereinafter That We Have Found It Necessary To Issue Suo Motu Notices To All Concerned, As Per Our Directions Herein Below, As We Find That That The Issues Raised Are Of General Public Importance. The Newspaper Reports, Appended Along With The Petition Moved By The Secretary, High Court Bar Association, Relate The Alleged Stand-off Between High Court And The Secretariat Of His Excellency The Governor. We Have Perused The Entire Records Relating To The Controversy And Also The Records Pertaining To The Career Of Sri Pradeep Kumar Dubey Extending Over A Span Of Almost 12 Years, Which Exhibits The Manner In Which He Has Been Able To Retain Himself As Additional Legal Advisor To His Excellency The Governor. We Would Further Like To Record That From The Communications Received From His Excellency's The Governor's Secretariat, It Appears As If The Governor's Secretariat Is Functioning As An Official Liquidator Of The Orders Issued By The High Court Concerning Sri Pradeep Kumar Dubey.
This Full Bench Assembled, As Fixed, At 10.00 A.m. When The Learned Secretary, High Court Bar Association, In Person, Learned Advocate General, U.P., Allahabad And The Chief Standing Counsel Were Present, As Directed. The Officiating Registrar General Was Also Present In The Court Along With The Entire Record, Which Was Perused. At The Outset, The Learned Advocate General Informed The Court That He Has Received Instructions From The Principal Secretary Of His Excellency The Governor And Also The State Government And Sought Time To Peruse The Record And Make His Submissions. The Court Was Of The View That The Entire Record Relating To The Officer, Which Is In The Nature Of Correspondence Between His Excellency's Secretariat And The High Court, Was Available With His Excellency's Secretariat Itself, There Should Not Have Been Any Difficulty In Apprising The Court Of The Stand Of His Client. The Court Was Further Of The View That In All Fairness, Some Time Should Be Granted To Him To File His Response, If Any, But He Was Requested By The Court To Seek Further Instructions With Regard To Grant Of Interim Order Because The Non-implementation Of The Order Would Otherwise Affect The Transfer Chain. The Court Was Also Of The Opinion That If No Interim Order Is Granted, The Daily Publication In The Newspapers Would Further Erode The Confidence Of Public At Large In The Administration Of Justice And, Therefore, He Was Given The Option To Honour The Orders Of The Court So That No Judicial Intervention Is Required. At This Stage, The Learned Advocate General Requested That The Court May Assemble After Lunch And His Request Was Acceded To.
When The Court Reassembled After Lunch, The Learned Advocate General Produced Before Us A Fax Letter Sent By Him To The Principal Secretary. It Would Be Useful To Note The Contents Of The Letter Of The Learned Advocate General:-

"S.M.A. KAZMI
ADVOCATE GENERAL (UTTAR PRADESH)


23.6.2006
To,
Sri Lov Verma
Principal Secretary To
His Excellency The Governor Of Uttar Pradesh
Raj Bhavan, Lucknow.

Sub: Writ (PIL) Petition No. 33146 Of 2006 In-re Secretary,
High Court Bar Association.

Dear Sir,
Kindly Take Reference Of Your Letter Dated 22.6.2006 And The Telephonic Communication Made By Me Today At 10.30 A.M. At 10.00 A.M. A Full Bench Of 5 Hon'ble Judges Comprising Of Hon'ble Mr. Justice Rakesh Tiwari, Hon'ble Mr. Justice S.S. Kulshreshtha, Hon'ble Mr. Justice Prakash Krishna, Hon'ble Mr. Justice D.P.Singh And Hon'ble Mr. Justice A.P.Sahi Assembled.
I Was Called Upon To Address The Court On The Constitutional Dimension Of The Issue Involved. I Inform The Hon'ble Court That In View Of The Communication Received From The Office Of His Excellency The Governor Of Uttar Pradesh I Am Instructed To Seek 10 Days Time For Seeking The Instructions From The Office Of His Excellency The Governor Of Uttar Pradesh And From The Office Of Hon'ble Chief Minister, U.P. And, Therefore, Without Getting The Complete Instructions It Will Not Be Appropriate For Me To Initiate My Argument, Even Regarding The Legal Dimensions, Since They May Ultimately Be Dependable On The Factual Dimensions Of The Case.
Thereupon, The Hon'ble Court Observed That The Time For Seeking The Instructions Can Be Granted, But, Since From The Record Available To The Court, Prima Facie, A Case For Interim Order Is Made Out, Therefore, The Court May Contemplate The Possibility Of Granting An Interim Order To The Effect That The Officer Concerned Shall Be Deemed To Stand Relieved In Pursuance Of The Order Of The High Court Dated 3.6.2006 & 7.6.2006. However, On My Persuasion, The Hon'ble Bench Has Adjourned The Case Till 2.00 P.M. Today To Provide Me The Time To Apprise The Office Of His Excellency The Governor Of Uttar Pradesh And Seek Necessary Instructions On This Aspect.
A Request Was Also Being Made By The Counsel For The Petitioner For Providing The Copies Of The Documents On The Record, Regarding Which My Request For Deferring That Issue Till The Next Sitting Of The Court At 2.00P.M. Has Also Been Accepted By The Court.
The Hon'ble Bench Will Reassemble At 2.00 P.M. On The Aforenoted Subject. You Are Being Informed For Providing The Immediate Instructions.
Yours Sincerely,
Sd/- S,M.A. Kazmi
Advocate General, U.P.

Copy To : 1. Chief Secretary, Govt. Of U.P, Lucknow
2. Principal Secretary To Hon'be Chief Minister,
Govt. Of U.P., Lucknow.
Sd/- S.M.A Kazmi
Advocate General."


The Letter Evoked The Following Reply:-

"Principal Secretary To Governor
No. PA-209-PSS Dt. 23.6.06
Raj Bhavan
Lucknow

Dear Sri Kazmi,

Please Refer To Our Telephonic Conversation And Your Letter Dated June 23,2006 About The Matter Being Heard In The Court Today. I Have Been Directed To Pass On Following Instructions In This Regard :-
1. The Governor Had Requested The Chief Justice For Retaining Sri Pradeep Kumar Dubey Till About May,2007. However, When This Was Not Accepted To, The Governor Requested For A Panel Of Three Names For Selecting One Officer Out Of Them After Due Procedure Which Is Followed For Selecting Officers In Raj Bhavan. After One Office Is Selected, He Should Understudy Or Get Acquainted With The Work Of Governor's Secretariat From Sri Pradeep Kumar Dubey And Sri Dubey Will Be Relieved, Thereafter, In A Period Of Three Months. Even This Was Not Agreed By The High Court And The High Court Cited Article 235 Of The Constitution Of India About The Control Over Transfer And Posting Of Judicial Officers. The Governor Referred To Article 233 Of The Powers Of The Governor In Posting Of Judicial Officers On Their Promotion To The Cadre Of Additional District Judge.
2. The High Court Transferred Sri Dubey And Recommended The Name Of Sri Vijay Verma For Posting In Governor's Secretariat. No Officer Can Be Posted In The Governor's Secretariat Without The Choice Of The Governor. The Governor Cited Circular Letters Of The Home Ministry, Government Of India And Other Relevant Rules In This Regard. Sri Dubey Was Then Suspended For Not Obeying The Transfer Orders While He Was Not Relieved By The Governor And Was Working Under The Orders Of The Governor.
3. Sri Dubey Cannot Be Relieved Unless An Officer Of The Choice Of The Governor Is Posted In The Governor's Secretariat. No Vacuum Can Be Created In Governor's Secretariat, Otherwise, It Will Seriously Hamper The Work Of Governor's Secretariat Causing Great Inconvenience To H.E. The Governor.
4. Hon'ble Court May Be Apprised That Relieving Of Sri Pradeep Kumar Dubey Without An Officer Of The Choice Of Governor Will Create Void In The Governor's Secretariat. The Work Of The Governor's Secretariat Is Different From Normal Judicial Functioning And Therefore, It Is Necessary That An Officer Of The Choice Of Governor Who Joins In Governor's House Has To Get Acquainted With The Work From The Present Incumbent. Hence The Panel Of Three Name May Be Sent By The High Court And Mr. Dubey Will Be Relieved After The Officer Selected From The Panel Gets Acquainted With The Work Of Governor's Secretariat.

Yours Sincerely

Sd/- Lov Verma

Sri S.M.A Kazmi
Advocate General Uttar Pradesh,
1, Kalidas Marg,
Lucknow"

This Court Since 1998, In Nearly Every Annual Chain Of Transfers, Was Including The Name Of Shri Pradeep Kumar Dubey But On The Request Of His Excellency The Governor, His Repatriation Was Deferred. Today, A Last Opportunity Was Granted And Instead Of Availing It, With Anguish We Note, That It Was Not Only Spurned But The Language Used By The Principal Secretary To His Excellency The Governor, Has Reached The Pinnacle Of Obstinacy. There Remains No Room For Us Except To Pass The Following Directions:-
1. Shri Lov Verma, Principal Secretary To His Excellency The Governor Of Uttar Pradesh Shall Appear Before This Court Along With The Entire Record Relating To Shri Pradeep Kumar Dubey, The Then Additional Legal Advisor To His Excellency The Governor, On The Next Date Fixed.
2. Shri Pradeep Kumar Dubey, Additional District Judge (under Suspension)/the Then Additional Legal Advisor To His Excellency The Governor Shall Forthwith Report At His Headquarter At Ballia.
3. It Is Made Clear That The Departmental Enquiry Directed By This Court Shall Continue Unhindered By These Orders.
4. Issue Notice To The Secretary (Home), Government Of India, New Delhi; Chief Secretary, Government Of Uttar Pradesh; Principal Secretary (Law), Uttar Pradesh; Registrar General Of High Court Of Judicature At Allahabad And Shri P.K. Dubey, Additional District And Sessions Judge (under Suspension).
5. The Registrar General Of This Court Shall Forthwith Transmit Copies Of This Order To All The Aforesaid Noticees And Also Supply A Copy To The Petitioner. He Would Also Supply Copies Of The Correspondence Noted In This Order Along With The Notices To The Aforesaid Officials.
6. All Communications/orders/letters Emanating From The Secretariat Of His Excellency The Governor Of Uttar Pradesh, To The Extent They Nullify/cancel The Relieving And Suspension Order Of Shri P.K. Dubey Shall Be Treated As Otiose, Ineffective And Inoperative.
List This Petition On 4th July, 2006 At 10 A.M.

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