STATE OF U.P. AND ANR. versus C.L. AGARWAL AND ANR. ETC.

Citation: [1997] SUPP. 1 S.C.R. 1 · Decided: 02-05-1997 · Supreme Court of India · Bench: J.S. VERMA · Disposal: Dismissed

Judgment (excerpt)

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STATE OF U.P. AND ANR. 
v. 
C.L. AGARWAL AND ANR. ETC. 
MAY 2, 1997 
[J.S. VERMA, CJ., M.M. PUNCHHI, S.C. AGRAWAL, 
DR. A.S. ANAND AND S.P. BHARUCHA, JJ.) 
Service Law : 
Allahabad High Court Officers und Staff (Conditions of Service and 
Conduct) Rules, 1976/Financial Hand Book, Vol. II. 
Rules 3, 40 and 41/Rule 27-f'remature increments-<iranted to 
employees of High Court by the Chief Justice-Approval of Governor-Held, 
not required-Chief Justice has power to create posts in the High Court, and, 
there[ ore, he has power to grant premature increments to employees of the 
High Court-Constitution of India, 1950 : Article 229. 
Judicial prop1iety-Division Bench of High Court-Held, should not 
examine de novo the issue concluded by a Full Bench of that High 
Court-Stare decisis. 
Respondent No. 1 (in C.A. No. 10568/96), an employee of the Al-
lahabad High Court, was granted four premature increments by orders of 
the Chief Justice. But, on his superannuation, the said premature incre-
ments were not taken into consideration for the purpose of calculating his 
pensionary benefits. The. respondent filed a writ petition before the High 
Court. The matter was referred to a Full Bench, which allowed the writ 
petition. Aggrieved, the State Government filed the appeal. The other 
appeals were also filed in similar circumstances. 
It was contended for the appellant-State Government that the 
premature increments could not have been given without the approval of 
the Governor inasmuch as the orders granting the premature increments 
were orders relating to salaries and, therefore, required approval of the 
Governor as provided under Article 229 of the Constitution and the first 
proviso to sub-rule (2) of Rule 40 of the Allahabad High Court Officers 
and Staff (Con4ition of Service and Conduct) Rules, 1976. It was con-
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SUPREME COURT REPORTS [1997) SUPP. l S.C.R. 
A tended that by virtue of Rule 27 of the Financial Hand Book Vol. II an 
authority competent to create the post could only grant premature incre-
ments, and since it was Governor who had created the post occupied by 
the respondent, it was only the Governor who could have approved the 
grant of premature increments. 
B 
It was also brought to the notice of this Court that some other writ 
petitions, involving a similar issue, were still pending before the High 
Court, and in one of the said writ petitions, a Division Bench of the High 
Court had observed that in view of the decision of this Court in the case 
of Supreme Cowt Employees' Welfare Association*, the issue required to be 
C examined notwithstanding the impugned decision of the Full Bench. 
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Dismissing the appeals, this Court 
HELD : 1.1. The orders of the Chief Justice granting premature 
D increments did not require approval of the Governor under the provisions 
of the Allahabad High Court Officers and Staff (Conditions of Service and 
Conduct) Rules, 1976 or under the provisions of Article 229 of the Con-
stitution. (6-C-D] 
1.2. The second proviso to sub-rule (2) of Rule 40 of1976 Rules states 
E that the powers which are exercisable by the Governor under the rules and 
orders of the Government in resped of matters regarding conditions of 
Service not provided for by the 1976 Rules shall be exercised by the Chief 
Justice or by such officer as he may direct. Insofar as officers and servants 
of the High Court are concerned, therefore, the Chief Justice or his 
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delegate exercises the powers exercisable by the Governor under such rules 
and orders of the Government. Thus, it is enough that the Chief Justice 
exercises the powers conferred upon the Governor under such rules and 
orders of the Government; no further approval by the Governor is re-
quired. Besides, the rules and orders that are referred to are rules and 
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orders of a general nature and not orders made in exercise thereof in 
G individual cases. (8-C-D; E-F] 
2.1. It is the Chief Justice who has the power to create posts in the 
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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 
H different from the approval of its creation. (9-D-E] 
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STAIB v. C.L.AGARWAL 
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2.2. Article 229 does not state that posts in the High Court are to be A 
created by the Governor; it does not even deal with the creation-of posts. It 
empowers the Chief Justice, inter alia, to make appointments 

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