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WRANGLE ?
?THE GOVERNOR?S secretariat refuses to relieve Additional Legal Advisor Pradeep Kumar Dubey, treating him to be indispensable. This situation provokes a thought that ?is an individual indispensable to an institution? If it were, damn the institution,? observed the five-judge Bench of the Allahabad High Court, while declaring the Governor?s orders otiose, over transferring and suspending Dubey.
Stand-off, face-off, whatever you call it, there are faces to this coin too.
“THE GOVERNOR’S secretariat refuses to relieve Additional Legal Advisor Pradeep Kumar Dubey, treating him to be indispensable. This situation provokes a thought that ‘is an individual indispensable to an institution? If it were, damn the institution,” observed the five-judge Bench of the Allahabad High Court, while declaring the Governor’s orders otiose, over transferring and suspending Dubey.
True, the issue provokes thought in every individual who has closely watched the ongoing standoff between the two Constitutional bodies. With the HC’s order, the Raj Bhawan has been left in a quandary. So where does it end? Will the Raj Bhawan soften its stand now?
If legal eagles were to be believed, the HC had left Raj Bhawan few options. By appointing Vijay Verma (himself an outstanding officer) as the Governor’s legal advisor, without consulting Raj Bhawan, the State Government has already added a new twist or a third dimension to the stand-off. Taking strong exception to the move, the Governor had called Chief Minister Mulayam Singh Yadav, asking the State Government quash the notification regarding Verma’s appointment.
The Chief Minister, however, showed his inability saying the State Government’s notification was based on recommendations of the High Court. According to sources, Raj Bhawan is already closely examining the HC verdict and may make the next move in the next few days. If those working with Raj Bhawan are to be believed, Governor TV Rajeswar is very sensitive about appointments made in his secretariat. That was probably the reason that the Governor strongly objected to the State Government’s decision to unilaterally relieve his Principal Secretary Luv Verma without consulting him. Governor's concern on the issue is also reflected by the fact that the Raj Bhawan shot a strong worded letter to Registrar General Swatantra Singh recently when some allegations were made against Dubey. "Dubey has been working in Raj Bhawan to the satisfaction of four Governors in the past and the present Governor and his integrity had been certified all through, said Raj Bhawan in a communication to Registrar General recently.
So the Governor is unlikely to accept any judicial officer in Raj Bhawan till the State Government took his consent on the appointment. A way out may be found when Luv Verma appears before the HC on July 4, 2006. According to the letter from Verma that Advocate General SMA Kazmi quoted in the Allahabad High Court relieving Dubey without a replacement would create a void in Raj Bhawan. So Dubey, who has been placed under suspension for non-compliance of transfer orders (obviously under instructions from the Governor), also faces a piquant situation. Dubey has to join duty or else, he would invite action under contempt of court now.
Much before the stand-off assumed larger dimensions, the Raj Bhawan and registry of High Court exchanged letters one after another. As per records, Dubey was inducted into the judicial services of the State after having been selected under the relevant Rules. The HC in its order too has noted that 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.
The HC noted that this appointment was by way of deputation. The deputation of such an officer, according to the Rules, is to be governed by the Fundamental Rules and the Government Orders issued from time to time, said HC adding, “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 orders are contained in Chapter-III Rule 4 ( C ) (I ) and (II) of the High Court Rules.”
Now, the Raj Bhawan is ina jam of sorts. The case not only involves serious legal issues but also the prestige of the Governor. The Governor may find himself on the back foot now. Legal luminaries also agree that Dubey’s case has brought into focus various constitutional issues. Former legal advisor to the Governor CB Pandey said the case reflected on the divide between the Governor and the State Government. “The legal wing of the State Government should have tried to settle the issue out of court, instead of a getting a judicial order,” said Pandey.
The Governor enjoys privileges under Article 361 of thde Constitution. Hence, the case would not have any impact on the authority of the Governor, he said.
Pandey, however, agreed that the HC was fully empowered to take action against a judicial officer. Another legal expert, IB Singh said, “the HC’s order would prevail in the case. Yet, the irony is that the Governor should be entitled to select his own legal advisor”.
In its order, the five-judge Bench too has noted that the orders of the High Court on Dubey’s transfer and suspension issue were within its powers. “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 of consideration and interpretation of 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 the Chief Justice of Andhra Pradesh & Anr. Etc. vs LVA Dikshitulu & others, AIR 1979 SC 193 (para 35). Another decision of the Apex Court is the 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.”
The Raj Bhawan on the other hand, had asserted that the Governor had the last word in matters pertaining to his personal establishment and the Governor’s House. Raj Bhawan had also relied its case on Article 233 of the Constitution that provided the HC is consulted by the Governor in matters of appointing, posting and promoting district judges. The Raj Bhawan had also quoted the UP Rules of Business-1975 and a Government Order of 1985 to support its case.
CM smiling?
CHIEF MINISTER Mulayam Singh Yadav must be trying hard to hide a smile, now that the Raj Bhawan finds itself in a quandary. The Chief Minister and the Raj Bhawan have often come face to face on various issues.
As a result the Samajwadi Party has also attacked Governor TV Rajeswar frequently. SP general secretary Amar Singh had even called the “Rajya Pal” (Governor) a “Dwar Pal” (gateman) for what he called pursuing the Congress agenda in the State.
There have been other instances of confrontation between the two. The Governor’s move to visit the spot of the Mau riots, the Maulana Mohammad Ali Jauhar University Bill, the Governor’s decision to ask senior IAS officer GB Patnaik to conduct inquiry against vice-chancellors, too became contentious issues.
