- (1.) V. N. Khare, J. The question which arises for consideration before this Full Bench is as to whether it is the Chief Justice of the High Court or the Governor of the State who is empowered to create post in the establishment of the High Court. This controversy has arisen in the context of the exercise of power by the Chief Justice of Allahabad High Court granting advance/ premature increment to the employees of the High Court. By the impugned letter dated 27-6 1992 which is Annexure 1 to the writ petition, the Joint Secretary, Government of U. P. has questioned the power of the Chief Justice of the High Court to grant advance/premature increments to the officers and servants of the High Court on the premise that since it is the Governor of the State who creates posts in the establishment of the High Court under Article 229 of the Constitution and as such the Chief Justice of the High Court is not empowered to grant advance/premature increment to the employees of the High Court under Rule 27 of the Financial Hand Book Vol. II, Parts II to IV which is extracted below : "27. An authority may grant a premature increment to a Govern ment servant on a time-scale of pay if it has power to create a post in the same cadre on the same scale of pay. "
(2.) TO give the relevant factual background the petitioner was initially appointed as a Lower Division Assistant in the Allahabad High Court and retired on 31-7-1994 after serving about 37 years. During the course of employment the petitioner was granted four advance increments by the diffe rent Chief Justices of the Allahabad High Court. When the petitioner's pension papers were being processed, respondent No. 2 excluded the four advance increments given to him from computation on the basis of the Govern ment Order dated 27-6-1992 which is impugned in this writ petition. This exclusion of four increments and denial of benefit of computation in the pension, it is alleged, is contrary to the past practice in the matter of finalization of pension meant for the retired employees of the Allahabad High Court. Before coming into force of the Constitution of India in 1952, the then Hon'ble the Chief Justice of Allahabad High Court had framed rules known as Allahabad High Court (Conditions of Service of Staff) Rules, 1946 (hereinafter referred to as 1946 Rules), under Section 241/242 of Government of India Act, 1935. The said rules had approval of the Governor in accor dance with the provisions of Government of India Act, 1935. Proviso to sub-rule (1) of Rule 7 of the 1946 Rules provided that the power exercised by the Governor of State under the rules framed by the State Government shall be exercised by the Chief Justice of the High Court. After coming into force the 1946 Rules, different Chief Justices of the Allahabad High Court exercised the power to grant advance increment to the staff and servants of the Allahabad High Court. In the year 1955, the question arose as to whether the Chief Justice of the High Court has power to grant advance increment to the emplo yees of the High Court, when the Accountant General U. P. doubted the power of the Chief Justice to grant such increment to one Sri L. Jauhari. Consequently, the matter was referred to the Government. The Government after considering the matter issued a letter dated 30-5-1955 with the concur rence of the Finance Department holding that the Chief Justice of Allahabad High Court is fully competent to grant premature increment to Sri L. Jauhari. A copy of the letter dated 30-5-1955 is Annexure 3 to the writ petition. The said letter is still intact and has never been recalled, rescinded or revoked by the U, P. Government or any other authority. In the year 1976, the 1946 Rules were substituted by the new rule known as Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 (hereinafter referred to as 1976 Rules) which was published in the U. P. Gazette of 31st July, 1976 after its approval by the Governor of Uttar Pradesh. It is noticeable that even after coming into force of 1976 Rules, the successive Chief Justices of Allahabad High Court continued to exercise powers to grant advance/premature increment to the employees of the High Court and no objection of any sort was taken against it by the Government.
(3.) HOWEVER, in the year 1991 in the matter of payment of pension to Nazim Hussain the Director of Pension took objection to grant of premature increment by the Chief Justice of Allahabad High Court. He referred the matter to the State Government. On reference the State Government issued certain directions to the Directorate of Pension that pending decision on the matter pension be released to Sri Nazim Hussain after excluding premature increment granted to him during the course of employment by the Chief Justice of Allahabad High Court. Thereafter, the Joint Secretary, U. P. Government issued the letter which is impugned in this writ petition. Aggrieved the peti tioner has come up before this Court by means of this petition under Article 226 of the Constitution challenging the impugned order. The prayer in the writ petition is that the letter dated 27-6-1992 issued by the Joint Secretary of the Government of U. P. be quashed and further a direction be issued to the respondents to make immediate payment of balance of the petitioner's pensionary dues without reducing the amount of premature increments granted by the Chief Justice of Allahabad High Court. Since the matter was of some importance the Hon'ble Chief Justice by order dated 18-1. 1995 referred this petition for decision to the Full Bench. Accordingly this Full Bench has been constituted to decide this writ petition. Initially when the matter came up before this Full Bench, a statement was made on behalf of the respondents that the case may be adjourned to enable i he Government to rethink over the matter for modifying the fundamental rules. After two adjournments, it was stated on behalf of the respondents that the State intends to contest the writ petition. A counter-affidavit has been filed on behalf of respondents Nos. 1 and 2. The stand taken therein is under Fundamental Rule 27 the power to grant advance increment lies only with those authorities who are empowered to create posts and since the Chief Justice of Allahabad High Court has no power to create post for the employees of Allahabad High Court, he is not empowered to grant any advance premature increment to the employees of the High Court. It is also stated therein that it is the Governor of U. P. who is empowered to create posts for the Allahabad High Court and as such it is he who can exercise the power to grant advance increment to the employees of the Allahabad High Court. So far as the past practice of the Chief Justice granting advance increment to the employees of the Allahabad High Court is concerned, it is State in the counter- affidavit that under Rule 7 of 1946 Rules, the Chief Justice of Allahabad High Court was empowered to exercise the power of Governor and as such, the grant of such increment by the Chief Justice of the High Court to the employees was permissible. However, after revocation of 1946 Rules ths power exercised by the Chief Justice in the matter of granting advance incre ment to the employees is not inconformity with Article 229 of the Constitution and Rules of 1976.;