- (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. 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 3-11- 2004. The term expired and thus he was included in the annual chain of 2005 and transferred on promotion to Unnao on 4-6-2005 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.
(3.) 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!";