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1997(4) Supreme 432
SUPREME COURT OF INDIA
J.S. Verma, CJI., M.M. Punchhi, S.C. Agrawal, A.S. Anand, S.P. Bharucha, JJ.
State of U.P. & Anr. -Appellants
versus
C.L. Agrawal & Anr. etc. -Respondents
Civil Appeal No. 10568 of 1996
With
Civil Appeal No. 10596 of 1996
Decided on 2-5-1997
Counsel for the Parties :
For the Appellants, Sudhir Chandra, Raju Ramachandran, Sr. Advs., Kavin Gulati, R.B. Misra, Kamlendra, M.C. Dhingra, Advocates.
For the Respondents, Rakesh Dwivedi, H.N. Salve, Sr. Adv., Ms. Niti Dikshit, Prashant Kumar, S.A. Syed, Naresh Kumar, Advocates.
Held : Rule 3 of the 1976 Rules requires that the number of permanent posts of the various categories in classes I to IV in the High Court s establishment shall be determined from time to time by the Chief Justice with the approval of the Governor. It is, therefore, the Chief Justice who has the power to create posts in the High Court. That he may do so with the approval of the Governor does not detract from this position. The creation of a post precedes and is different from the approval of its creation. In any event, by reason of the provisions of the 1976 Rules referred to above, the powers of the Governor under the rules and orders of the Government are exercisable by the Chief Justice in respect of matters not covered by the 1976 Rules. (Para 13)
Since, then, it is the Chief Justice who has the power to create posts in the High Court, it is the Chief Justice who may grant premature increments under the aforesaid Rule 27 to the officers and servants of the High Court. Moreover, even if the power under the aforesaid Rule 27 be exercisable by the Governor, by virtue of the second proviso to sub-rule (2) of Rule 40 of the 1976 Rules, the power is exercisable by the Chief Justice. (Para 14)
(ii) Judicial Discipline-A Division Bench should not examine de novo an issue that is concluded by the decision of a Full Bench of that High Court.
Held : We are dismayed that the Division Bench hearing the said writ petition should have proposed to examine the issue "notwithstanding the aforesaid pronouncement of the Full Bench judgment....". If the judgments in the cases of Supreme Court Employees Welfare Association and M.C. Puttaswamy were cited and the respondents to the said writ petition submitted that the Full Bench judgment was erroneous by reason thereof, the proper course for the Division Bench to follow, if it found any merit in the submission, was to refer the said writ petition to a Full Bench. Judicial discipline requires that a Division Bench should not examine de novo an issue that is concluded by the decision of a Full Bench of that High Court. (Para 19)
JUDGMENT
S.P. Bharucha, J.-These civil appeals arise upon identical facts and may be disposed of by a common judgment. The principal judgment under appeal is that of a Full Bench of the High Court at Allahabad, in Civil Appeal No. 10568 of 1996. The Full Bench judgment was followed by a Division Bench of the High Court and that order is impugned in Civil Appeal No. 10596 of 1996.
2. The facts that we state relate to Civil Appeal No. 10568 of 1996. The first respondent was appointed a Lower Division Assistant in the High Court at Allahabad on 1st June, 1957. He was given, on the orders of the Chief Justice in office at the relevant time, one premature (or advance) increment in the year 1989, two premature increments in the year 1990 and one premature increment in the year 1991. He retired from service on 31st July, 1994. For the purposes of calculating his pensionary benefits, the appellants did not take into account these premature increments. They acted upon the basis of a letter dated 27th June, 1992, which had been addressed by the Joint Secretary of the appellant State to the Registrar of the High Court in respect of a premature increment that had been granted to one Nazim Hussain, a Section Officer of the High Court, who had then retired. The letter stated, "As the power to create the post is vested with the Governor, so under Fundamental Rule 27 it is mandatory for His Excellency the Governor to exercise aforesaid powers. There is similar provision in Article 229 of the Constitution and Allahabad High Court (Condition of Service of Staff) Rules, 1976". The letter referred to a communication dated 30th May, 1955, addressed by the Accountant General of the appellant State explaining the provisions in this behalf in the Allahabad High Court (Condition of Service of Staff) Rules, 1946, and stated that there was no provision for grant of premature increment in the 1976 Rules. The letter concluded, "it shall be an irregularity to approve the premature increment without prior approval of His Excellency the Governor".
3. The first respondent filed a writ petition to quash the letter dated 27th June, 1992, and to seek a writ of mandamus to the appellant State and its Director of Pensions to make payment of the balance of his pensionary dues without reducing the amounts of the four premature increments that had been granted to him by the Chief Justice of the High Court. The writ petition was referred to a Full Bench, and the Full Bench allowed it by the judgment and order now impugned.
4. Article 229 of the Constitution deals with the officers and servants and the expenses of High Courts. It reads thus :
"229. Officers and servants and the expenses of High Courts.-(1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the court as he may direct :
Provided that the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the court shall be appointed to any office connected with the court save after consultation with the State Public Service Commission.
(2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the court authorised by the Chief Justice to make rules for the purpose:
Provided that the rules made under this clause shall, so far as they relate to salaries allowances, leave or pensions, require the approval of the Governor of the State.
(3) The administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the court, shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the court shall form part of that Fund."
5. The Allahabad High Court Officers and S
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