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2007 Supreme(Mad) 849
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE F.M. IBRAHIM KALIFULLA & THE HONOURABLE MR. JUSTICE S. TAMILVANAN
The Union of India rep. by the Asst. Director General (Estt.), Department of Posts, Ministry of Communications, New Delhi & Others
Versus
The Union of India rep. by the Asst. Director General (Estt.), Department of Posts, Ministry of Communications, New Delhi & Others
W.P.Nos.2481 of 2002, 2628 of 2002 and 11629 of 2002 & W.P.M.P.Nos.3450 of 2002, 3656 of 2002 and 15675 of 2002
Decided On : 08-03-2007
For the Petitioners: B. Shanthakumar, SCGSC.
For the Respondents:R. Malaichamy, P. Rajendran, Ramasamyrajarajan, Advocates.
The main legal point established in the judgment is that statutory rules, such as Appendix-6 of Vol.IV of P & T Manual-Establishments, continue to govern the service conditions of substitute employees, and that executive orders cannot unilaterally withdraw entitlements such as House Rent Allowance (H.R.A.) and City Compensatory Allowance (C.C.A.) without proper amendment to the rules.
Headnote:
H.R.A. and C.C.A. - Payment to Substitutes - Appendix-6 of Vol.IV of P & T Manual-Establishments - Summary of Acts and Sections: Appendix-6, Rule 100, Article 372(1), Article 366(10), Article 313, Article 13 - The judgment discusses the entitlement of substitutes to receive House Rent Allowance (H.R.A.) and City Compensatory Allowance (C.C.A.) as part of their wages. It interprets Appendix-6 of Vol.IV of P & T Manual-Establishments and its provisions, along with relevant constitutional articles, to establish the substitutes' right to these allowances. The court emphasizes that the statutory rules continue to govern the service conditions of substitute employees and that the Director General of Postal Services does not have unbridled power to withdraw these payments.
Fact of the Case:
The case involves a challenge to the withdrawal of House Rent Allowance (H.R.A.) and City Compensatory Allowance (C.C.A.) to substitutes in the Postal Department. The substitutes had been receiving these allowances since 1971, but the Postal Department sought to withdraw them based on an executive order.
Finding of the Court:
The court found that the substitutes were entitled to receive H.R.A. and C.C.A. as part of their wages, as per the statutory rules outlined in Appendix-6 of Vol.IV of P & T Manual-Establishments. It held that the Director General of Postal Services did not have the authority to unilaterally withdraw these payments, and that the substitutes' right to these allowances was protected by the statutory rules and constitutional provisions.
Issues: The main issues revolved around the entitlement of substitutes to receive H.R.A. and C.C.A. as part of their wages, the authority of the Director General of Postal Services to withdraw these payments, and the legal status of the substitutes' employment.
Ratio Decidendi: The court's decision was based on the interpretation of Appendix-6 of Vol.IV of P & T Manual-Establishments, along with relevant constitutional articles such as Article 372(1), Article 366(10), Article 313, and Article 13. It emphasized that the statutory rules continued to govern the service conditions of substitute employees, and that the Director General of Postal Services did not have unbridled power to withdraw H.R.A. and C.C.A. payments.
Final Decision: The court dismissed the Writ Petitions, upholding the entitlement of substitutes to receive H.R.A. and C.C.A. as part of their wages and rejecting the Postal Department's attempt to withdraw these payments. The court also rejected the contention that the substitutes were not in the services of the petitioners, emphasizing that the substitutes' right to these allowances was protected by the statutory rules and constitutional provisions.
F.M. Ibrahim Kalifulla, J.
In W.P.Nos.2481 and 2628 of 2002, the petitioners are The Union of India represented by the Assistant Director General (Estt.), Department of Posts, Ministry of Communications, Dak Bhavan, Sansad Marg, New Delhi and the Principal/Chief Post Master General, Tamil Nadu Circle, Chennai600 002. In W.P.No.11629 of 2002, the petitioners are the Union of India represented by the Principal Chief Post Master General, Tamil Nadu Circle, Chennai-600 002 and the Head Record Officer, Airmail Sorting Division, Chennai-600 027.
2. The challenge in all these Writ Petitions is to the orders of the Central Administrative Tribunal, dated 20.7.2001 in O.A.No.138 of 2001 and 209 of 2000 and dated 14.8.2001 in O.A.No.457 of 2001 respectively.
3. The contesting respondents herein were all employed as substitutes in the place of Group-D employees as and when such employment arose by virtue of certain contingencies like leave, absence etc. The claim before the Tribunal by the contesting respondents related to the withdrawal of the payment of House Rent Allowance (in short, H.R.A) and City Compensatory Allowance (in short, C.C.A) to them on and after 1997-1998.
4. In O.A.Nos.138 of 2001 and 209 of 2000, the challenge was to the order dated 27.8.1999 of the Postal Department, in and by which the payment of H.R.A. and C.C.A. came to be withdrawn by stating that the substitutes in short term vacancies would be paid remuneration on the basis of the minimum of the revised scale of pay of the post plus admissible Dearness Allowance (in short, D.A.) alone.
5. In O.A.No.457 of 2001, the contesting respondents/applicants made a challenge to the orders of the petitioners/Postal Department dated 28.1.1999, 2.2.2001 and 9.4.2001 for the recovery of the payment of H.R.A. and C.C.A. as the excess payment made to the contesting respondents for the period 1.1.1996 to 31.7.1998 and also for a direction to the petitioners to refund the amounts if any already recovered.
6. The Tribunal, on a detailed analysis of the issue relating to the payment of H.R.A. and C.C.A. to the substitutes, has held as under in paragraphs 9 and 10 in O.A.Nos.138 of 2001 and 209 of 2000:
"9. ... It is pursuant to these communications the impugned order was passed. It is clear from those communications that though the respondents wanted to change the rules immediately the same has not been given effect to by amending the rules or the relevant portion of the manual. Further correspondents are still going on to implement the decision and no final decision has been taken to implement the same. Even from the Assistant Director General (Estt) New Delhi, letter dated 5.7.2001, addressed to the CPMG, Tamil Nadu Circle, it is clear that no final decision has been taken so far. The said letter reads as thus:
"Ref: No.APA/65-209/2000 dated 20.6.2001.
In continuation of this office letter No. Even dated 3.7.2001, the further information is as follow:
1. The Date had issued no Gazette notification, in connection with order under which the payment of HRA and CCA to be paid to substitute working in short term vacancies of postman/Gr.D had been withdrawn.
2. Regarding correction Appendix VI Vol.IV of postal Manuals, "Manual Revision Committee" is doing the work relating to revision of Postal Manuals and the same is still under review."
It is clear from the above said letter that rule has not been amended so far and the relevant provisions in the Manual has not been diluted. In any way so long as the rules have not been amended and given effect to, executive instructions cannot be relied on for the purpose of denying HRA and CCA for the purpose of calculation of wages. It is clear from the proceedings that the applicants are unapproved candidates and H.R.A. and C.C.A. was paid to them from 1971 onwards. Another argument was taken by the learned counsel for the respondents that HRA and CCA are only allowances and therefore the applicants cannot claim them as a matter o
