IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 8.3.2007 CORAM: THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA AND THE HONOURABLE MR.JUSTICE S.TAMILVANAN W.P.Nos.2481, 2628 and 11629 of 2002 & W.P.M.P.Nos.3450, 3656 and 15675 of 2002 1. The Union of India rep. by the Asst. Director General (Estt.), Department of Posts, Ministry of Communications, Dak Bhavan, Sansad Marg, New Delhi. 2. The Principal Post Master General, Tamil Nadu Circle, Chennai-600 002. .. Petitioners in W.P.No.2481 of 2002 1. The Union of India rep. by the Asst. Director General (Estt.), Department of Posts, Ministry of Communications, Dak Bhavan, Sansad Marg, New Delhi. 2. The Chief Post Master General, Tamil Nadu Circle, Chennai-600 002. .. Petitioners in W.P.No.2628 of 2002 1. Union of India rep. by The Principal Chief Post Master General, Tamil Nadu Circle, Chennai-600 002. 2. The Head Record Officer, Airmail Sorting Division, Chennai-600 027. .. Petitioners in W.P.No.11629 of 2002 vs. 1. K.Babu (EDSV) 2. N.Rajkumar (EDSV) 3. J.Sankar (EDMC) https://hcservices.ecourts.gov.in/hcservices/ 4. M.P.Subramanian (ED Packer) 5. S.Munusamy (EDSV) 6. L.Chandrasekaran (EDSV) 7. N.Raman (EDSV) 8. R.Banumoorthy (ED Packer) 9. N.Muniammal (ED Packer) 10. M.Vanitha (ED Packer) 11. G.Kuppuraj (EDSV) 12. K.Ravichandrakumar (EDSV) 13. L.Rajendran 14. P.Viswanathan (EDSV) 15. M.Savitri (ED Packer) 16. K.Alamelu (EDDA) 17. P.Sukumar (EDMC) 18. M.Thangapani (ED Packer) 19. M.Kumar 20. N.Buddan (EDSV) 21. E.Govindasamy (EDMC) 22. R.Leelavathy (ED Packer) 23. G.Sekar (EDSV) 24. T.Samuel Dhanraj (EDSV) 25. P.Munusamy (ED Packer) 26. R.Kumayun Kabeer (ED Packer) 27. K.Ganesh (ED Packer) 28. R.John Rosary Joseph (ED Packer) 29. M.Narayanan (EDMC) 30. S.Ashok Kumar (EDSV) 31. V.Sukumar (EDMC) 32. S.Balaji 33. K.Gopinathan 34. A.Ramesh 35. K.Ravi 36. J.Venkateswaran 37. N.Nageswari 38. P.Rajendran 39. M.Gandhi 40. S.Vijayaraghavan 41. T.Rathinam 42. A.Shankar 43. V.Kumar 44. E.D.Narasiman 45. C.Lakshmi 46. C.Dayalan 47. A.Azeez 48. Fiaz Ahamed 49. G.Ravi 50. J.Vijayakumar 51. M.Vimla Devi 52. J.Maheswari 53. T.Zahir Hussain https://hcservices.ecourts.gov.in/hcservices/ 54. G.A.Chandra Prakash 55. E.Soundararajan 56. Ansar Bee 57. S.Balasubramaniam 58. G.Velumani 59. P.S.Ravindranathakoor 60. R.Gunasekaran 61. K.Murthy 62. A.B.Mohamed 63. G.Balakrishnan 64. V.Babu Durai 65. Deva Rajan 66. C.Santhakumar 67. G.Srinivasan 68. K.Gunasekaran 69. V.Danaraj 70. N.Ramesh Babu 71. T.A.Velkumar 72. D.Somasundaram 73. Yadavakumari 74. T.Moses 75. B.K.S.Krishnan 76. G.Murthy 77. M.Alraj 78. T.Ravi 79. K.Srinivasan 80. V.Sukumaran 81. J.Sekar 82. S.Ravichandran 83. S.Rukmani 84. G.Mary Porkodi 85. N.S.Indiravathi 86. S.Adikesavan 87. B.Chandrasekar 88. B.Mhd.Samiullah 89. D.Vasudevan 90. G.Mohan 91. P.Nedunchezhian 92. L.Ravichandran 93. A.Karunakaran 94. K.Nithya 95. S.M.Shakul Ahmed 96. A.Pencilaiah 97. G.Panneerselvam 98. The Registrar, Central Administrative Tribunal, Madras Bench, City Civil Court Buildings, Chennai-600 104. .. Respondents in W.P.No.2481 of 2002 https://hcservices.ecourts.gov.in/hcservices/ 1. All India Postal Extra Departmental Employees Union, Chennai City North, Divisional Broad Way Post Office, Rep. by its Divisional Secretary S.Vedagiri 2. K.Boopathy 3. The Registrar, Central Administrative Tribunal, Madras Bench, City Civil Court Buildings, Chennai-600 104. .. Respondents in W.P.No.2628 of 2002 1. S.Sivakasi 2. S.Loganathan 3. A.Santhanam 4. E.Selvaraj 5. C.Rajendran 6. M.Prakasam 7. M.John Peter 8. S.Akilan 9. S.Gnanasekaran 10. A.Murthy 11. D.Sundar Sekar 12. R.Muthu 13. K.Anusuya 14. J.Srinivasan 15. A.Shankar 16. K.Murugan 17. S.George Solomon 18. P.Manavalan 19. K.Aliceraj 20. S.Palanivelu 21. G.Samuel Sundar raj 22. M.Karuppiah 23. K.Vedhagiri 24. K.Mathivanan 25. R.Sundar 26. M.K.Murthy 27. M.Padmanabhan 28. G.Gajendran 29. V.Parthiban 30. G.Jayakumar 31. P.Balaraman 32. K.Perumal 33. S.Anthoniyesudoss https://hcservices.ecourts.gov.in/hcservices/ 34. G.Veera Raghavan 35. D.John Clement 36. G.Mohana Sundar 37. K.Lakshmanan 38. C.Sundaram 39. R.Michael Victor 40. R.Kaliappan 41. M.Anbazhagan 42. K.Munuswamy 43. C.Gajendran 44. S.Raghu ramulu 45. C.Dass 46. E.Raghu 47. R.Sundaramurthy 48. K.Muthu 49. P.Mani 50. B.Raja 51. N.Sundaresan 52. R.Prabhakaran 53. P.Shanthi 54. H.Ghouse Basha 55. S.Ramamurthy 56. G.Murthy 57. S.Natarajan 58. R.Dilli Babu 59. P.Rajendran 60. K.Shanmugham 61. The Registrar, Central Administrative Tribunal, Madras Bench, City Civil Court Buildings, Chennai-600 104. .. Respondents in W.P.No.11629 of 2002 Writ Petition No.2481 of 2002 filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari, after calling for the concerned records relating to the order dated 20.7.2001 in O.A.No.138 of 2001 passed by the 98th respondent and to quash the same. Writ Petition No.2628 of 2002 filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari, after calling for the concerned records relating to the order dated 20.7.2001 in O.A.No.209 of 2000 passed by the third respondent and to quash the same. https://hcservices.ecourts.gov.in/hcservices/ Writ Petition No.11629 of 2002 filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari, after calling for the concerned records relating to the order dated 14.8.2001 in O.A.No.457 of 2001 passed by 61st respondent and to quash the same. For petitioners in all W.Ps: Mr.B.Shanthakumar, SCGSC For respondents: in W.P.No.2481 of 2002: Mr.R.Malaichamy for RR-2 to 7, 9 to 20, 22 to 27, 28, 29 to 34, 35, 36 to 39, 41, 43, 46, 47, 48, 54 to 59, 61, 62, 63, 66, 70, 75 to 77,78, 81, 82 to 85, 89 and 90 to 93 in W.P.No.2628 of 2002: Mr.P.Rajendran for RR-1 and 2 in W.P.No.11629 of 2002: Mr.Ramasamyrajarajan for RR-1, 2, 5 to 10, 13, 16 to 21, 23 to 28, 31, 34, 36, 41, 43 to 47, 50, 51, 56 and 57 COMMON ORDER (The Order of the Court was made by 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. https://hcservices.ecourts.gov.in/hcservices/ 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 Dte 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. https://hcservices.ecourts.gov.in/hcservices/ 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 of right. We cannot accept this argument for the reasons stated above and apart from the same it is a practice in vogue from 1971 onwards. As the applicants and predecessors are serving from 1971 onwards, they have got legitimate right and they are entitled to the benefit to have HRA and CCA for the purpose of calculation of wages and that right cannot be taken away on the basis of some correspondences alone. The claim of legitimate expectations are fortified by the proceedings of 1987, of which we have made references earlier. 10. In the result, we quash the impugned order and hold that the applicants in both the OAs are entitled to have the HRA and CCA for the purpose of calculating wages payable. If any amount is payable to the applicants while implementing this order we direct the respondents to pay the same to the applicants within a period of two months from the date of receipt of a copy of this order. The OAs are allowed as above. No costs." 7. In O.A.No.457 of 2001, the Tribunal, by order dated 14.8.2001, held as follows: "2. In the counter statement filed by the respondents they rely on the proceedings of the Assistant Director General where it is stated that the applicants are eligible to get only salary and DA and not HRA and CCA. The validity of the same order came before us for consideration in OA 138 of 2001 and 209 of 2000 wherein we have held that HRA and CCA also forms part of the emoluments payable to the Group 'D' employees and we have taken note of the Postal Manual for the said purpose. In fact in the counter affidavit https://hcservices.ecourts.gov.in/hcservices/ filed in those cases, the department admitted that HRA and CCA forms part of the emoluments payable to the employees. The rules has not been changed. The department is only intending to amend the rules and as on this date we have to implement the rules as it stand. On this ground we hold that the applicants are entitled to HRA and CCA and no amount is liable to be recovered from them. In view of the same, we allow the OA and the impugned order is also set aside. The respondents are also directed not to recover the amount if they have paid the amount. In case the amount is already recovered the same will be paid to the respective applicant within a period of one month from the date of receipt of a copy of this order. OA allowed." 8. Assailing the above orders of the Tribunal, Mr.B.Shanthakumar, learned Senior Central Government Standing Counsel (in short, SCGSC) appearing for the petitioners, after taking us through the Preface to the Posts and Telegraphs Manual (Volume IV) Establishments, as well as the financial powers of the Director General of Postal Services, contended that the payment of H.R.A. and C.C.A. to the substitutes cannot be construed as part of the 'wages' payable to the regular Group-D employees, that by virtue of the powers vested with the Director General of Postal Services under the relevant Regulations, the said authority had every power to pass the order dated 17.7.1998, which came to be implemented by the subsequent proceedings, in and by which it was held that the substitutes are entitled only for the revised scales of pay of the post concerned (Postmen, Mailguards and Group-D, as the case may be) plus admissible D.A. alone excluding H.R.A. and C.C.A. The learned SCGSC relied upon a Division Bench decision of this Court reported in 2006 (4) L.L.N. 299 (Kendriya Vidyalaya Sangathan vs. D.Sarala) and the Supreme Court decision reported in 1994 (2) L.L.N. 1032 (Director, Central Plantation Crops Research Institute, Kesaragod and others vs. M.Purushothaman and other) in support of his submissions. 9. As against the above submissions, Mr.Malaichamy, learned counsel appearing for the contesting respondents in W.P.No.2481 of 2002, contended that though the contesting respondents were called as 'substitutes' of Group-D employees, having regard to their continued engagement as substitutes, they had become part of the Postal establishment, and therefore, by virtue of the Rules applicable to such substitutes as per the Posts and Telegraphs Manual (Vol.IV) applicable to Establishments, read along with Appendix-6 therein, they were entitled for continued payment of HRA and CCA along with the pay applicable to the concerned employees who were the substitutes while rendering service to the petitioners. The learned counsel for the contesting respondents therefore contended that unless there was an amendment to the said Rule relating to the substitutes, the petitioners were not legally justified in resorting to the withdrawal of H.R.A. and C.C.A. or the attempted recovery of the https://hcservices.ecourts.gov.in/hcservices/ payments made from 1.1.1996. 10. Similarly, Mr.P.Rajendran, learned counsel appearing for the contesting respondents in W.P.No.2628 of 2002, while reiterating the submissions of Mr.Malaichamy, relied upon the decisions of the Supreme Court reported in 1992 (4) S.C.C. 432 (Union of India vs. Deep Chand Pandey) and 1995 (5) S.C.C. 678 (H.P. State Electricity Board vs. Tirath Raj) and contended that by virtue of Articles 13(1), 313, 366 and 372(1) of the Constitution of India, the Rules as contained in Volume IV of the Posts and Telegraphs Manual, Establishments, read along with Appendix-6 therein, continue to operate and thereby the right accrued to the substitute-employees cannot be altered without proper amendment to the Rules. According to the learned counsel for the contesting respondents, the Clause contained in Appendix-6 of the Posts and Telegraphs Manual Vol.IV, Establishments, namely the Note to Rule 4, which states that the term "minimum pay" referred to therein includes "dearness and all other allowances", would take within its compass the payment of H.R.A. and C.C.A. 11. Mr.S.Ramasamyrajarajan, learned counsel for the contesting respondents in W.P.No.11629 of 2002, relied upon the decisions of the Supreme Court reported in AIR 1987 SC 2342 (Daily R.C.Labour, P & T Deptt. vs. Union of India), AIR 2002 SC 1223 (State of Karnataka vs. M.U.Non- Teaching Employees Association) and AIR 2000 SC 3554 (Food Corporation of India vs. Shyamal K.Chatterjee) to contend that the payment of H.R.A. and C.C.A. has been stated to be part of 'wages' in those decisions and therefore, it is too late in the day for the petitioners to contend that by way of executive instructions, such payments which were in force right from the year 1971, could be abruptly withdrawn without any amendment to the Rules. 12. Having heard learned counsel for the respective parties and on a perusal of the impugned orders of the Tribunal as well as the relevant documents, at the outset, we wish to state that the Rules as framed under Appendix-6 of Vol.IV of Posts and Telegraphs Manual-Establishments, though came into being as early as from the year 1926, the same continue to remain in force till date, which was a pre-Constitutional Rule. The said Rule under Appendix-6 came to be framed by virtue of Rule 100 of Vol.IV of Posts and Telegraphs Manual-Establishments. The employment of substitutes has been dealt with under Rule 100(b) which reads as under: Rule 100(b): by employment of substitutes: (i) in post offices, in the place of postmen and Group 'D' servants (other than boy messengers) Deptt. Of I. and L. Letter No.20, P.T.E., dated 28.8.1926); (ii) in telegraph offices, in the place of Group 'D' staff (other than boy peons). (Department of I & L. Letter No.Est.B, 60-2/34, dated 30-7-1936); (iii) in the place of telegraphists, telephone operators, transmission assistants and wireless operators. https://hcservices.ecourts.gov.in/hcservices/ NOTE—The rules regulating the employment of substitutes in casual leave vacancies are given in Appendix 6 of this volume." By virtue of the provisions contained in the Note to Rule 100(b), Appendix-6 came into being. Appendix-6 relates to Casual Leave and has been specifically captioned as "Rules for the employment of paid substitutes in casual leave vacancies of postmen, village postmen and Group "D" postal officials. Rule 4 of Appendix-6 is to the following effect: "4. The amount to be paid to a substitute employed under these rules must not exceed the minimum pay of the time-scale in force at the office concerned for the class to which the absentee belongs. Payment must be made direct to the substitute, whose receipt should be obtained. NOTE—The term "minimum pay" referred to above includes dearness and all other allowances." 13. In the light of the said Rules, by virtue of Article 372(1) of the Constitution, the said Appendix-6 read along with Rule 100 of Vol.IV of Posts and Telegraphs Manual-Establishments, continue to govern the service conditions of the substitute-employees in the Postal Department. In the decision reported in 2003 (8) S.C.C. 413 (Illachi Devi vs. Jain Society, Protection of Orphans India), the Supreme Court has stated the legal position as regards the operation of Article 372 of the Constitution vis-a-vis the pre-Constitutional Rule as under: "20. .... The Rules have been framed by the Governor-General-in-Council, which, after the enforcement of the Constitution of India, would be a law within the manner of Article 372 of the Constitution of India. . ..." 14. Under Article 366(10) of the Constitution, it has been specifically provided that the term "existing law" would mean among other instructions, a law, Rule or Regulation passed or made before the commencement of the Constitution by any Legislature, authority or person having power to make such a law, Rule or Regulation. 15. Even under Article 313 of the Constitution, it has been specifically provided until other provision is made under the Constitution, all the laws in force immediately before the commencement of the Constitution and applicable to any public service or any post which continue to exist after the commencement of service or post under the Union or a State, should continue to be in force so far as the same is consistent with the provisions of the Constitution. https://hcservices.ecourts.gov.in/hcservices/ 16. Under Article 13 of the Constitution, which deals with the laws which are inconsistent with or in derogation of the provisions contained in Part-III alone have been held to be void. Even under Article 13 of the Constitution, it is specifically stated under Article 13(3)(a) that "law" would include any Rule, Regulation, Notification, custom or usage having in the territory of India, the force of law. 17. In the above context, it will also be appropriate to refer to the decision of the Supreme Court reported in AIR 1965 SC 1061 (Builders Supply Corpn. vs. Union of India) wherein, a Constitution Bench of the Supreme Court has stated in unequivocal terms, while dealing with Article 372(1) of the Constitution, as under in paragraph 20: "20. It is, however, clear that there was no difference of opinion on the question that common law was included within the expression "law in force" used by Art.372(1). The majority judgment expressly states that the relevant expression "law in force" includes not only statutory law, but also custom or usage having the force of law and as such, it must be interpreted as including the common law of England which was adopted as the law of this country before the Constitution came into force." 18. Therefore, applying the above ruling of the Supreme Court to Appendix-6 of Vol.IV of P & T Manual-Establishments, in consonance with Rule 100 of Vol.IV of P & T Manual-Establishments, we are convinced that the said Appendix-6 along with Rule 100 continue to remain in force even as on date. Under Rule 4 of Appendix-6, the 'Note' makes it clear that the term "minimum pay" payable to substitutes, would include apart from D.A., "all other allowances". Therefore, the question is whether H.R.A. and C.C.A. which were paid to the substitutes right from the year 1971, could be abruptly withdrawn by the order of the Director General of Postal Services, without any specific provision contained in the Rule. 19. According to the learned SCGSC appearing for the petitioners, the Preface to the P & T Manual-Vol.IV-Establishments, and the Schedule-I-A of the financial powers of the Director General, Postal Services, which were prescribed every now and then, empowers the Director General of Postal Services to pass orders as regards the Special Pay, Compensatory Allowance and H.R.A. https://hcservices.ecourts.gov.in/hcservices/ 20. The learned SCGSC made a specific reference to Schedule I.A of the said financial powers, which enumerates all the financial powers of the Director General of Postal Services. In the said Schedule I.A., while prescribing the nature and extent of powers, a reference has been made to letter No.27-P.T.E, dated 14.11.1928 and No.150-Est., A-20, Coll.II, dated 14.1.1931. The said prescription reads as under: "2. Additions to Pay: (a) Special Pay, compensatory and house rent allowances: May sanction the grant of special pay or of compensatory or house rent allowances to the holders of permanent posts, posts which are within his powers of creation in any locality at the rate and subject to the terms and conditions laid down by the Government of India for Government servants of similar status in the same locality. Note 1: The Director General of Posts and Telegraphs has been authorised to sanction the grant of special pay or compensatory allowance (including house rent allowance) or both to the holder of a temporary post created by him in any locality at the rate and subject to the conditions laid down by the President for permanent officials of the Indian Posts and Telegraphs Department of similar status serving in the same locality." 21. By referring to the said prescription in Schedule I.A, the learned SCGSC contended that it was within the powers of the Director General of Postal Services to grant Special Pay or Compensatory Pay or H.R.A. to the holders of temporary posts and therefore, it was well within his powers even to withdraw such Special Pay or Compensatory Pay or H.R.A. According to the learned SCGSC, when in exercise of the said powers vested in him, the Director General of Postal Services issued the Office Memorandum dated 17.7.1998, stating that the payment of the revised scales of pay of the substitutes can be 1/30th of the pay at the minimum of the relevant pay scale plus Dearness allowance for one full day's work, excluding the H.R.A. and C.C.A., the contesting respondents cannot question the same. https://hcservices.ecourts.gov.in/hcservices/ 22. When we refer to the submissions made on behalf of the petitioners, the only power traceable is to the financial powers vested with the Director General of Postal Services, as provided under the said Schedule I.A. We are of the view that such an unbridled power claimed by the Director General of Postal Services to withdraw the substantial part of the wages of the substitutes in the form of H.R.A. and C.C.A., cannot be held to be existing when considered in the light of Appendix-6 to Vol.IV of the P & T Manual-Establishments, which specifically mentions that the substitutes are