C L AGRAWAL Vs. STATE OF U P

JUDGEMENT

(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.

(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.