SUPREME COURT OF INDIA
Feroz Ahmed
Vs
Delhi Development Authority and Others
Civil Appeal No. 4331 of 2006
(S. B. Sinha and Dalveer Bhandari, JJ)
29.09.2006
S. B. SINHA, J.
Leave granted.
2. Respondent herein is a statutory authority constituted under the Delhi Development Act, 1957. Appellant was appointed as a
Junior Engineer on 12-8-1976. It is contended by Appellant that he is a
Graduate Degree Holder. He is said to be senior to Respondent Nos. 2 and 3 who
are diploma holders. Appellant was promoted to the post of Assistant Engineer
on 29-3-2001. He made a representation for up gradation of his pay-scale to Rs.
10, 000-325-15, 200, with seniority, which was not granted, although similar benefits
had been granted to Respondent Nos. 2 and 3. He filed a writ petition before
the Delhi High Court. A learned single Judge of the High Court by an order
dated 13-8-2002, directed Respondent to consider his representation within a
period of six months. The said representation was rejected by Respondent by an
order dated 23-9-2002 stating that he was not entitled thereto. In support of
the said order, attention of Appellant was drawn to the norms laid down for
fixation of seniority as well as for step up of pay.
3. Thereafter, a writ petition was filed by Appellant herein before the Delhi
High Court. The said writ petition was dismissed by a learned Single Judge of
the High Court by an order dated 13-1-2004 opining that as DDA had framed
recruitment rules and promotions to the post of Assistant Engineer were being
effected in terms thereof providing for 50% of promotions from amongst the
Junior Engineers having a degree with 3 years of service in the post, and,
thus, the order impugned in the writ petition could not be interfered with. An
intra-Court appeal filed by Appellant being Letters Patent Appeal No. 363/2004
was dismissed by a Division Bench of the said High Court, inter alia, relying
on a decision of this court in Roop Chand Adlakha and others v. Delhi
Development Authority and others . Appellane is thus before us.
4. Mr. Nafis A. Siddiqui, learned counsel for Appellant would urge that
respondent No. 1 having adopted a resolution; in absence of any rules, the
rules framed by the Central Government were to be followed and, thus, it was
bound to apply the rules applicable to the employees of CPWD. In this
connection our attention has been drawn to a notification dated 17-1-1977
wherein it was provided:
"24. Recruitment by promotion shall be made:
(i) 50% by selection on the basis of merit from among permanent Junior
Engineers employed on the Electrical Engineering side of the Central Public
Works Department; and
(ii) 50% by selection from among Junior Engineers, employed on the Electrical
Engineering side of the Central Public Works Department, after consultation
with the Union Public Service Commission on the basis of a limited Departmental
Competitive Examination which shall be held in accordance with the rules to be
made by the Central Government, after consultation with the Union Public
Service Commission".
5. It has further been contended that a resolution was adopted by the DDA to
make a comparison of the proposed recruitment rules with those available in
sister organisation like Central Public Works department, NDMC, MCD, etc.
According to the learned counsel, the Central Government has also amended the
Central Elecrtrical Engineering Service, Class II, Recruitment Rules, in terms
where of recruitment was to be made on the basis of a competitive examination
or by promotion in accordance with Part IV therof. The purported rules framed
by the DDA, it was urged, were not made in terms of the regulation making power
as contained in Section 57 of the Act, as prior thereto neither any approval of
the Central Government was taken nor the rules were laid before the Parliament.
It was submitted that in any event, the degree holders and the diploma holders
having been appointed on a cadre, no discrimination in regard to the scale of
pay or avenue of promotion is permissible in law. In support of the said
contention, strong reliance has been made on the constitution Bench decision of
this Court in Roshan Lai Tandon v. Union of India and another . Reliance
has also been placed on Mervyn Continho and others v. Collector of Customs,
Bombay and others 1967 AIR(SC) 52 and S.M. Pandit and others etc. v. State
of Gujarat and others etc.[ .
6. Mr. Siddiqui would furthermore contend that the High Court committed a
manifest error in relying upon the judgment of this court in Roop Chand Adlakha
(supra) as the same has impliedly been overruled by this Court in DDA Graduate
Engineers' Association and others v. The Lieutenant Governor of Delhi and
others[JT1992(5)SC396]. The rules framed by a State, it was argued, must
conform to the constitutional requirements as contained in Articles 14 and 21
of the Constitution of India. Reliance in this behalf has been placed on Delhi
Transport Corporation v. DTC Mazdoor Congress and others 1991 (S1) SCC 600
7. Mr. Ashwani Kumar, learned counsel appearing for Respondent on the other
hand, would submit that Respondent No. 1 being a statutory authority, the
matters relating to recruitment and promotion of the employees are governed by
the rules and regulations framed by it. Such rules and regulations having been
framed by Respondent No. 1 and having been upheld by this Court in Roop Chand
Adlakha (supra), it is not open to Appellant to question the validity thereof.
It was pointed out that Appellant had been put in the pay-scale of Rs. 10,
000-325-15, 200 under the Assured Career Promotion Scheme with effect from
12-8-2000 (under the second up gradation) and in that view of the matter, CPWD
Rules relied upon by him are not applicable. According to the learned counsel,
for the purpose of promotion, the recruitment rules which are applicable in the
instant case provide for quota of 50% from Junior Engineers having a degree
with 3 years of service and 50% from Junior Engineers having 8 years of service
on regular scale. Seniority list, it was urged, was made in terms of the said
rules.
8. Delhi Development Act, 1957 was enacted to
provide for the development of Delhi according to plan and the matters
ancillary thereto. For the purpose of giving effect to the said Act,
engineering operations which include the formation or laying out of means of
access to a road or the laying out of means of water supply, are required to be
carried into effect. Section 2(h) defines a "regulation" to mean a
regulation made under this Act by the Delhi Development Authority constituted
under Section 3. Section 2(i) defines "rule" to mean a rule made
under this Act by the Central Government. Section 3 provides that the Central
Government shall by notification in the Official Gazette, constitute an authority
to be called the Delhi Development Authority. Section 4 deals with the staff of
the Authority.
9. The object of the Authority is defined in Section 6 as under:
"The objects of the Authority shall be to promote and secure the
development of Delhi according to plan and for that purpose the Authority shall
have the power to acquire, hold, manage and dispose of land and other property,
to carry out building, engineering, mining and other operations, to execute
works in connection with supply of water and electricity, disposal of sewage
and other services and amenities and generally to do anything necessary or
expedient for purposes of such development and for purposes incidental thereto:
Provided that save provided in this Act, nothing contained in this Act shall be
construed as authorizing the disregard by the Authority of any law for the time
being in force'.
The power to make regulations is envisaged in Section 57 which reads as under:
"(1) The Authority, with the previous approval of the Central Government, may,
by notification in the Official Gazette, make regulations consistent with this
Act and the rules made thereunder to carry out the purposes of this Act, and
without prejudice to the generality of this power, such regulations may provide
for-
(a) ...
(b) ...
(c) the salaries, allowances and conditions of service of the secretary, chief
accounts officer and other officers and employees;...."
10. The terms and conditions of service of the employees of the Delhi
Development Authority, thus, are governed by the statutory rules. Rules and
regulations are required to be framed in terms of the provisions of the
statute. Respondents proceeded on the basis that in terms of the rules framed
by the Delhi Development Authority, the CPWD rules ceased to have any force. In
terms of the said purported rules, Respondents contend quota of 50% promotion
to the post of Junior Engineer is required to be made in terms thereof.
11. A purported copy of the rules which has been placed before us is a Xeroxed
copy. It had some cuttings. We had asked learned counsel appearing on behalf of
Respondents to produce a copy of the regulations. The same has not been
produced. We, therefore, are not sure as to whether the said regulations have
been made in terms of the provisions of the Delhi
Development Act or whether while framing them, conditions precedent therefor
had been followed. Appellant, however, before the High court did not raise any
question as regards the constitutionality of the said purported regulations.
12. The question raised by Appellant would, however, depend upon the validity
and/or applicability of the rules. If no rules have been framed in accordance
with law, the earlier rules validly framed shall prevail. A statutory rule, it
is trite, cannot be supplemented by an executive order.
13. The High Court has strongly relied upon a decision of this Court in Roop
chand Adlakha (supra). The questions raised before us had not been raised
therein. This Court in that case proceeded on the basis that the rules and
regulations have been validly made and published. The question furthermore even
was not considered in the subsequent decision of this court in DDA Graduate
Engineers' Association (supra).
14. Having regard to the facts and circumstances of this case, we are of the
opinion that it is a fit case where an opportunity should be given to Appellant
to raise the contention as regards the validity and/ or constitutionality of
the rules. If no rules have validly been framed indisputably the rules
prevailing prior thereto shall operate.
15. We are, therefore, of the opinion that the matter requires a fresh
consideration at the hands of the High Court. The Writ Petitioner-Appellant
would be entitled to file an application for amendment of writ petition
questioning the validity of the said purported rules. Respondents shall file a
counter affidavit within two week from the date of filing the said application.
Keeping in view the importance of the question involved, we are of the opinion
that the matter should be considered by the Division Bench itself. We, however,
set aside the impugned judgment of the Division Bench and remit the matter for
fresh consideration in accordance with the directions and observations made
hereinbefore. For the views we have taken, it is not necessary to. deal with
the other contentions raised by the parties herein at this stage. In view of
the fact that the matter is pending for a long time, we would request the High
Court to consider the desirability of disposing of the matter expeditiously and
preferably within eight weeks from the date of receipt of copy of this order
16.The appeal is disposed ' of accordingly.