Withdrawal of payment of H.R.A. and C.C.A. to substitutes by Executive Order is illegal.

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, Chennai-600 002. 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was to the order dated 27.8.1999 of the Postal Department, in and by which the payment of H.R.A. and C.C.A. came to be withdrawn by stating that the substitutes in short term vacancies would be paid remuneration on the basis of the minimum of the revised scale of pay of the post plus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 follows:

1. The Date had issued no Gazette notification, in connection with order under which the payment of H.R.A. and C.C.A. to be paid to substitutes 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 H.R.A. and C.C.A. 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 H.R.A. and C.C.A. are only allowances and therefore the applicants can