JUDGMENT Rakesh Tewari, S.S. Kulshrestha, Prakash Krishna, D.P. Singh and A.P. Sahi, JJ.
1. 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.
2. Shri Pradeep 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) and (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.
3. On 13.10.2004, His Excellency the Governor writes to Hon'ble Acting Chief Justice seeking stay of Sri Dubey on the ground. "Since, 1 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.
4. 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 3.11.2004. The term expired and thus he was included in the annual chain of 2005 and transferred on promotion to Unnao on 4.5.2005 with intimation to the Governor's Secretariat. However, His Excellency the Governor vide letter dated 6.6.2005 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.
5. 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.
6. 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!
7. 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 and Anr., etc. v. L.V.A. Dikshitulu and Ors. .
8. Another decision of the Apex Court in State of West Bengal v. Nripendra Nath Bagchi , 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.
9. 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 violation of the Constitutions are bad enough : but even worse Is the acceptance and approval of the violations in high quarters.
10. 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 interferences 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'.
11. 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 fade, 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
12. 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 Governor, Uttar Pradesh No : RB/OSD/187 Dear Chief Justice Raj Bhawan Lucknow-227 132 May 10, 2006 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.
13. Hon'ble the Chief Justice in an exceptionally courteous language that suited the occasion replied as under:
Justice Ajoy Nath Ray Chief Justice High Court Allahabad May 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.
Apolozing 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.
14. 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 Governor, Uttar Pradesh No : RB/OSD/191 Raj Bhawan Lucknow - 227 132 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 ray 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.
15. 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 Chief Justice High Court 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.
16. His Excellency the Governor again on 24th May, 2006, made the following communications:
T.V. Rajeswar Governor, Uttar Pradesh No : RB/OSD/193 Raj Bhawan Lucknow-227 132 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.
17. 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.
18. 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 25.5.2006.
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.)
19. On 26.5.2006, 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 UP. Appointment Section IV requesting them to ask the officer to be ready to handover the charge on 6.6.2006, 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.
20. Yet Sri Dubey did not relinquish charge or join at his new place of posting.
21. 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 Court's directive, vide an order dated 7.6.2006, he was placed under suspension and the said order was communicated through an Office Memorandum dated 7.6.2006 to the Officer which was received by him on 8.6.2006. On the same date the State Government vide its notification dated 8.6.2006, 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 9.6.2006.
22. We, prima faice, 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.
23. We have been taken through the communications, which have followed after the transfer order of Sri Dubey on 3.6.2006 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 8.6.2006, 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.
24. 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.
25. 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.
26. Another turn which took place deserves taking notice of, namely the Notification dated 8.6.2006, whereby the State Govrenment 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 9.6.2006.
27. The communication thereafter in an unfortunately obstinate and intemperate language from the Governor's Secretariat, illegally proceeds to treat Sr