Legal Correspondent

`High Court will have primacy in the transfer of judicial officers'

The whole problem started because of lettersGovernor could have invited the Chief Justice and sorted out the issue

New Delhi: The Supreme Court on Tuesday, while expressing its displeasure on the tenor of the letters written by the Uttar Pradesh Governor to the Chief Justice of the Allahabad High Court, asked the High Court not to proceed further with the hearing of the case relating to the transfer of P.K. Dubey, additional legal adviser to the Governor, T.V. Rajeswhar.

A vacation Bench of Justice A.R. Lakshmanan and Justice Altamas Kabir, hearing a special leave petition filed by the Centre against the High Court order dated June 23, told Additional Solicitor-General Gopal Subramaniam that the High Court would have primacy in the transfer and posting of judicial officers in any of the offices under the Executive.

Mr. Dubey, a judicial officer, was holding the post of additional legal adviser in the Raj Bhavan for the last 12 years. The High Court transferred him as Additional District Judge at Ballia. Since the Raj Bhavan did not relieve him, he could not assume charge of the new post. Taking exception to this, the High Court suspended Mr. Dubey. In the meantime, the State Government appointed Vijay Verma in place of Mr. Dubey. But the new appointee could not take charge as the Governor declined to relieve Mr. Dubey whose suspension was revoked by the Raj Bhavan. Acting on a petition from the Bar Association, the Chief Justice constituted a five-judge Bench and on June 23 this Bench ordered immediate recall of Mr. Dubey. The Centre's SLP is directed against this order.

Root cause

The vacation Bench noted that the Governor's letter to the Chief Justice dated May 10 "in view of the forthcoming elections, which may be any time between February and May 2007, I would be unable to spare his {lcub}Mr. Dubey's{rcub} services till the next Assembly elections are over" was the root cause for the confrontation. The Bench also referred to another letter from the Governor dated May 22, which said, "Mr. Dubey's services cannot be spared at present and he would be, no doubt, relieved by May-June 2007."

The Judges disapproved the contents of these letters and said, "See the language used. It is not for the Executive to say I will not relieve him {lcub}Mr. Dubey{rcub}. The Governor has no business to write such letters to the Chief Justice. The whole problem started only because of these letters. These had a cascading effect. The Governor could have invited the Chief Justice for dinner and sorted out the issue."

Mr. Subramaniam tried to defend the Governor's action and said what the Governor wanted was only a panel of three judicial officers to choose one of them as his additional legal advisor. He blamed the Uttar Pradesh Government for precipitating the situation by issuing notification for appointment of Mr. Vijay Verma in place of Mr. Dubey without consulting the Governor. He contended that the High Court could not post a judicial officer in the Raj Bhavan without consulting the Governor.

Entertaining the SLP, the Bench issued notice to the High Court Registrar General, U.P. Chief Secretary, High Court Bar Association, Principal Secretary to the Governor and Mr. Dubey and asked them to file their response in four weeks. It also referred the matter to the Chief Justice of India for placing it before a larger Bench.

The Bench, however, made it clear that the pendency of this matter before the Supreme Court would not prevent the Governor and the Allahabad High Court Chief Justice from resolving the issue to give a quietus to the issues raised in the SLP.

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