PETITIONER:
STATE OF U.P. & ANR.
Vs.
RESPONDENT:
C.L. AGRAWAL & ANR
DATE OF JUDGMENT: 02/05/1997
BENCH:
CJI, M.M. PUNCHHI, S.C.AGRAWAL, A.S. ANAND, S.P. BHARUCHA
ACT
HEADNOTE
JUDGMENT
WITH
CIVIL APPEAL NO.10596 OF 1996
JU D G ME N T S.P. BHARUCHA, J.
These civil appeals ariseupon identical facts and may be disposed ofby a common judgment. The principal judgment under appeal is that of a Full Benchof the High Court at Allahabad, in Civil Appeal No. 10568 of1996. The Full Bench judgment was followed by a Division Bench of the High Court and that orderis impugned in Civil Appeal No. 10596 of 1996.
The factsthat we state relate to Civil Appeal No. 10568 of 1996.The first respondent was appointed a Lower Division Assistant in the High Courtat Allahabad on 1st June, 1957. Hewas given, onthe orders ofthe Chief Justicein office at the relevant time, one premature (or advance) increment in theyear 1989, two premature increments in the year 1990 and one prematureincrement in the year 1991.He retired from service on 31st July, 1994. For the purposes of calculating hispensionary benefits, the appellantsdid not take into account these premature increments. They acted upon thebasis of a letter dated27th June, 1992, which had been addressed by the Joint secretary of the appellant State to the Registrarof the High Court in respectof 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 theGovernor, 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 theprovisions in this behalf in the Allahabad High Court (Condition of Service of Staff) Rules, 1946, and stated that there was no provision for grantof Premature increment in the 1976 Rules. The letterconcluded, "it shall be anirregularity to approve thepremature increment withoutprior approval of His Excellency the Governor".
The first respondent fileda writ petitionto quash the letter dated 27th June, 1992,and to seek a writ of mandamus to theappellant Stateand itsDirector of Pensions to make payment of the balance of his pensionarydues without reducing the amount of the four premature increments that had been granted to him bythe Chief Justiceof the High Court. The writ petition was referred to a FullBench, and the Full Bench allowed it bythe judgment and order now impugned.
Article 229 ofthe Constitution deals with the officers and servants and theexpenses of High Courts. It reads thus :
"229. officers andservants and the
expenses of High Courts. - (1)
Appointments of officers and
servants of a High Courtshall 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 Statemay by rule require that
insuch cases asmay be specified
inthe rule no person not already
attached to thecourt shall be
appointed to any office connected
with the court save after
consultation withthe State Public
Service Commission.
(2) Subject to the provisions of
any law made by the Legislature of
the State, the conditions of
service ofofficers and servants of
a High Court shall be such as may
beprescribed 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 rulesfor the
purpose :
Provided that therules 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
aHigh a Court, including all
salaries, allowances andpensions
payable to or inrespect of the
officers and servants of the court,
shall be charged upon the
Consolidated Fund of the State, and
any fees or other moneystaken by
the courtshall form part of that
Fund."
The Allahabad HighCourt Officers and Staff (Conditions of Service andConduct) Rules,1976, were madeby the Chief Justice of the HighCourt in exercise of the powers conferred by clause (2) of Article 229and were notified on 13th July, 1976. Rules 3, 40and 41 were called in aid by learnedcounselfor theappellants. They read thus :
"Strength of theestablishment -
(1) The number of permanent posts
of the various categories in
classes I, II, III and IV,
respectively, in the establishment
ofthe High Courtshall be such as
may he determined by the Chief
Justice from timeto timewith the
approval of Governor of Uttar
Pradesh. The Chief Justice may from
time to time, create such temporary
posts as may be considered
necessary with the approval of the
Governor.
(3) The Chief Justice may leave
unfilled or may hold inabeyance
any vacant postwithout thereby
entitling any person to
compensation.
(4) Thereshall be separate cadre
for each category of posts."
40. Regulation of other matters -
(1) All officers and servants of
the Courtshall be subject to the
superintendence and control of the
Chief Justice.
(2) In respect ofall matters (not
provided for in these rules)
regarding the conditions of service
ofofficers and servants of the
Court including matters relating to
their conduct, control and
discipline, the rules and orders
for the time being in force and
applicableto Governmentservants
holding corresponding posts in the
Governmentof Uttar Pradesh shall
apply to the officers andservants
of the Court subjectto such
modifications, variations, and
exceptionsif any, as the Chief
Justice may, from time to time,
specify. Provided that no order
containing modifications,
variationsor exceptions in rules
or orders relating to salaries,
allowances, leave or pensions shall
bemade bythe Chief Justice except
with the approval of the Governor. Provided further thatthe said
powers exercisable under rules and
orders of Government of Uttar
Pradesh by the Governor shall be
exercised by the Chief Justice or
by such officeras hemay, by
general orspecialorder, direct.
(3) If any doubtarises in regard
to a particular postin the
establishment being corresponding
toa postin the State Government,
the matter will be decided by the
Chief Justice.
41. Residuary powers-Nothing in
these rules shall be deemed to
affect the power of the Chief
Justice to make such orders, from
time to time, ashe may,deem fit
inregard to all matters incidental
orancillary to these rules not
specifically provided for herein or
inregardto matters as have not
been sufficiently providedfor : Provided that if any such
order relates to salaries,
allowances, leaveor pension, the
same shall be made with the
approval of the Governor of U.P."
Learned counsel for the appellants submitted that the premature increments could nothave been givento the first respondents inthese appeals without the approval of the Governor. Inhis submission, the orders granting the premature increments were orders relating to salariesthat required the approval of the Governor by reason of the provisions of the firstprovisoto sub rule (2)of Rule40.
The argument, ona plain reading of Rule 40, is untenable. Thefirst proviso to Sub-rule (2)of Rule 40 speaks of rules or orders relating to salaries, allowances, leave or pensions and states that theseshall not be made by the Chief Justice except with the approval of the Governor. The second proviso to sub rule(2) of Rule 40 refers to the powers exercisable under rulesand orders of the Government by the Governor. Reading thetwo provisos together, it is apparent that the rules and orders that are referred to are rules and orders of a general nature and not orders made in exercise thereof in individual cases.
The second proviso to sub-rule (2) of Rule 40 is of importance for a more fundamental reason. It states that the powers which are exercisable bythe Governor under the rules and orders of the Government inRespectof matters regarding conditions of service not provided for by the 1976 Rules shall be exercised bythe Chief Justice or bysuch officer as he may direct. Insofar asofficers and servants of the High Court areconcerned, therefore, the Chief Justice or his delegateexercises thepowersexercisable by the Governor undersuch rules andordersof the Government. Insofaras officers and servants of the High Court are concerned, it is enoughthat the Chief justice exercises the powers conferred upon the Governor under such rules and ordersof the Government; no further approval by the Governor is required.
Rule 41 gives the Chief Justiceresiduary powers to make orders inregard to matters incidental orancillary to the 1976 Rules and if the orders relate to salaries, allowances, leave or pension,they are to be made with the approval of theGovernor. Once again, clearly, the reference is to the making of general orders in regard to matters incidental or ancillary to the1976 Rules and not in regard to orders in individualcases.
The orders of the ChiefJustice granting premature increments didnot, therefore, require the approval of the Governor under the aforesaid provisions.
Learned counsel for the appellants then based hiscase upon Rule 27 ofthe Financial Hand Book, Vol. II, Part II to IV, which readsthus :
"27. Anauthority maygrant a
premature increment to a Government
servant on a time scale of pay if
ithas power to create a post in
the same cadre on the samescale of
pay."
Learned counsel submittedthat itwas theGovernor who had created the postswhich the firstrespondents in these appeals had occupiedand, therefore, it was only the Governor who could have approved thegrant of premature increments to them.
Article 229 does not statethat posts in the High Court are tobe created by the Governor; it does not evendeal with the creation of posts. Clause (1)thereofempowers the Chief Justice to makethe appointments of officers and servants of a High Court. Clause (2)empowers the Chief Justiceto make rules prescribing the conditions of service of officers and servants of a High Court with the proviso that so far as these rules relate to salaries, allowances, leave or pensions, they require the Governor’s approval. Clause (3) requires the administrativeexpenses of theHigh Court to be charged upon the Consolidated Fund of the State.
Rule 3 ofthe 1976 Rules requires that the number of permanent postsof the various categories in classes I to IV in theHigh Court’s establishment shall be determinedfrom 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 postsin the High Court. Thathe may do so with the approval of the Governor does not detract fromthis position. The creationof a post precedes andis different from the approval of its creation. Inany event, by reason of theprovisions of the 1976Rules referred to above, the powers of the Governor under the rules and orders of the Government areexercisable bythe Chief Justice in respect of matters not covered by the 1976 Rules.
Since, then, it is the Chief Justice who has the power to create posts in the High Court, itis the Chief Justice who may grant premature increments under the aforesaidRule 27 to the officers and Servantsof the High Court. Moreover, even ifthe power underthe aforesaid Rule 27 be exercisable by the Governor, by virtue of the second proviso to sub-rule (2) ofRule 40 of the1976 Rules, thepower is exercisable by the Chief Justice.
Itneeds to be noted that the appellants had before them an analysis of the power of Chief Justice to grant premature increments in the communication dated 30thMay, 1955, addressed by the Additional Deputy Secretary of the appellant State to its Accountant General, with a copy to the Registrar of theHigh Court. The letter dated27th June, 1992, which has been quashed by the impugnedFull Bench decision,refers to it. The communicationof 30thMay, 1955, stated :
"Rule 7 of these rulesprovides
that the rules and orders for the
time being in force and applicable
to Government servants of
corresponding classesin the
service ofthe State shallregulate
conditionsof service (other than
these covered by the Rules) of
persons servingon the staff
attached to the High Courtprovided
that the powers exercisable under
the said rules and orders by the
Governor shall be exercisable by
the Chief Justice or by such person
ashe maydirectAccordingly, the
power exercisableby theGovernor
under Fundamental Rule 27 Financial
Hand BookVol. II regarding grant
ofpremature increments is vested
inthe Chief Justice in so far as
the High Court staff is concerned.
Iam further to invite your
attention to the explanatory Note
tothe Financial Hand Book, Vol. II
Part II-IV and to say that in the
circumstances the Chief Justice was
fully competentto grant three
premature increments to Sri Lalloo
Lal Jouhary. Theseorders are being
issued with the concurrence of
Finance Department.
The letter dated 27th June, 1992,seeks to distinguish the analysis on the basis that therewas no provision for grant of premature increment in the 1976 Rules. The distinction was not justifiedfor the substance of the relevant provisions inthe 1946 Rulesremainsunaltered in the 1976 Rules,as has already been pointed out.
Itwill have been noted that the appellants did not directly challenge theordersof theChief Justice giving the premature increments to the first respondents.They employed a side wind,by refusing totake these premature increments into account for the purposes of calculating the first respondents’ pensionarybenefits and,accordingly, compelled the first respondents to file the writ petitions challenging the orders in this behalf. The appellants approach must be deplored. We can do nobetter than to refer to the observationsof aConstitution Bench in M. Gurumoorthy vs. Accountant General Assam & Nagaland & Ors., 1971 Supp. S.C.R. 420, thus :
"Once an order had been passed by
the Chief Justice of the High Court
in exercise of his power under
Article 229 of theConstitution the
only course open to the Government,
ifit wanted tochallenge those
orders, was to take appropriate
proceedings either byway of
persuading the Chief Justice to
rescind or amend his order on the
administrative side or to file a
writ petition challenging his
orders inthe High Court. But the
Governmenttook the extraordinary
and somewhat unusual step of
directingthe Accountant General
not to issue anypay slip to the
appellant until final orders of the
Governmentwere issued."
During the courseof thehearing of these appeals we noticedthat an orderdated 27th October, 1995, madeby a Division Bench of the High Court (in Writ Petition No. 32987 of 1993, S.D. Dixit vs.State U.P. & Ors.) had been included in thepaper books and asked about it. It appears that the said writ petitioner is in the same position as are the first respondents in the appeals before us. Learned counsel on hisbehalf prayed that the Division Bench hearing the said writ petition follow the impugnedFull Bench judgment. The Division Bench observed :
"The submission made above by Dr.
Padia appears to be contrary to the
Apex Court decisions rendered in
Supreme Court Employees Welfare
Association vs. Union ofIndia &
Others, A.I.R. 1990 S.C.334, and
inH.C. Puttaswamy& others vs. The
Hon’ble Chief Justice of Karnataka
High Court & others A.I.R. 1991
S.C. 294. Further, these two
decisions appear to havenot been
brought to the notice ofthe Full
Bench inadvertently as the Full
Bench has not referred to these two
above mentioned Apex Court
decisions which have binding
effect. Itis, therefore, necessary
toexamine the issue involved in
this petition in the light of the
above referred decisions of the
Apex Court as the aforesaid
decision of theApex Court are
binding on this court
notwithstandingthe aforesaid
pronouncement of the FullBench in
C.L. Agarwal’s case in this regard.
Sri Padiahas prayed for and is
granted time. List thiscase on 15th
December, 1995."
Weasked learned counsel for the appellants whether he desiredto rely upon the aforementioned judgments ofthis Court in the cases ofthe Supreme Court Employees’ Welfare Association andM.C. Puttaswamy. Learned counsel statedthat they were not relevanthaving regard to the interpretation of the Rules that has appealed to us.
There is a passage in the judgment in the case of SupremeCourt Employees’ Welfare Association that, in the contextof the matters before us, deserves to be set out. We endorsewhat is observed and commendit to the States so that they may deal with proposals made bytheir Chief Justices with due deference andrespect.
"57. So far as the Supreme Court
and the High Courts are concerned,
the ChiefJusticeof India and the
Chief Justice of the concerned High
Court, areempowered to frame rules
subject tothis that when the rules
are framed by theChief Justice of
India or by the Chief Justice of
the High Court relating to
salaries,allowances, leave or
pensions,the approvalof the
President of Indiaor the Governor,
asthese may be, is required. It is
apparent that theChief Justice of
India andthe Chief Justice of the
High Court have been placed at a
higher level in regard to the
framing of rules containing the
conditionsof service. It is true
that the President of India cannot
becompelled to grant approval to
the rules framed by the Chief
Justice of India relating to
salaries,allowances, leave or
pensions, but it is equally true
that when such rules have been
framed bya very high dignitary of
the State,it should be looked upon
with respect and unless there is
very good reason not to grant
approval, the approval should
always be granted.If the President
ofIndia is of the viewthat the
approval cannotbe granted, he
cannot straightway refuseto grant
such approval, but before doing
so, there mustbe exchange of
thoughts between the President of
India and the Chief Justice of
India."
Weare dismayed that theDivision Benchhearing the said writ petition should have proposedto examine the issue "notwithstanding the aforesaidpronouncement of theFull Bench judgment". If the judgments inthe cases of Supreme Court employees’ welfare Association and M.C. Puttaswamy were cited and the respondents to the said writ petition submitted thatthe Full Benchjudgment 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 saidwrit petition to a Full Bench. Judicial discipline requires that a Division Bench should not examine de novo an issue that is concludedby the decisionof a Full Bench of that HighCourt.
The High Court shall now proceed to expeditiouslyhear and dispose ofthe said writ petition and the three orfour other similar writ petitions that arestated to be pending before it in the light of thisjudgment.
The appeals are dismissed. The appellants shall finalise within 6 weeks from today the pensionary benefits payableto thefirst respondents in the appeals takinginto accountthe prematureincrements that had so farbeen excluded and shall pay them all arrears inthis behalf within 12 weeksfrom today.
The appellants shall payto thefirst respondents in each of theseappeals the costs thereof fixed at Rs. 10,000/-.