Holding

The Supreme Court set aside the Division Bench judgment and remitted the matter to the High Court for fresh consideration of the validity of the Delhi Development Authority's rules.

Summary

Feroz Ahmad, a Junior Engineer appointed in 1976, sought a pay‑scale upgradation with seniority, which was denied while junior diploma‑holders received the benefit. He filed a writ petition; the Delhi High Court dismissed it, and a Letters Patent Appeal was also dismissed. On appeal, the Supreme Court examined whether the Delhi Development Authority's recruitment and promotion rules were validly framed under the Delhi Development Act, 1957. The Court found no evidence that the rules were made in accordance with the statute and noted that the appellant had not raised a constitutional challenge. Consequently, the Supreme Court set aside the Division Bench judgment and remitted the matter to a Division Bench of the High Court for fresh determination of the rules' validity, allowing the appellant to amend his writ petition. The appeal was disposed of.

Issues considered

Whether the recruitment and promotion rules framed by the Delhi Development Authority are valid and applicable under the Delhi Development Act, 1957.
Whether the appellant can challenge the validity or constitutionality of those rules.
Whether the appellant is entitled to pay‑scale upgradation with seniority under the applicable rules.

Legislation cited

Delhi Development Act, 1957s. 2(h), s. 2(i), s. 3, s. 4, s. 57, s. 6

Subjects

service lawsenioritystatutory rulesDelhi Development Authoritypromotionpay scalevalidity of rulesconstitutional challengeadministrative law

Judgment

A FEROZ AHMAD
v.
DELHI DEVELOPMENT AUTHORITY AND ORS.

SEPTEMBER 29, 2006

B [S.B. SINHA AND DAL VEER BHANDARI, JJ.)

Service law:

Delhi Development Act, 1957-Seniority-Claim for-Denied in view
C of statutory Rules-Also denied by Courts below-In appeal, held: The
question raised in the matter would depend upon validity of the Rules-In
absence of proof whether the Rules are framed in terms of the statute and
since the constitutionality of the Rules not challenged, matter remitted to
Division Bench of High Court for fresh determination of validity of the Rules.
D Appellant was appointed as Junior Engineer with respondent No. 1. His
representation for upgradation of his pay-scale with seniority was rejected,
while the same was granted to respondent Nos. 2 and 3 who were junior to
the appellant, they being diploma holders.

Appellant filed Writ Petition and the same was dismissed by Single
E
Judge of High Court in view of the norms laid down for fixation of seniority.
Letters Patent Appeal thereagainst was also dismissed by Division Bench of
High Court Hence the present appeal.

Disposing of the appeal and remitting the matter to Division Bench of ,.
F High Court, the Court
HELD: I. The terms and conditions of service of the employees of the
Delhi Development Authority are governed by the statutory rules. Rules and
regulations are required to be framed in terms of the provisions of the statute.
The Court has not been able to make out as to whether the said regulations
G have been made in terms of the provisions of the Delhi Development Act, 1957
or whether while framing them, conditions precedent therefor had been
followed. [823-8, D[

2. Appellant did not raise any question as regards the constitutionality

H 818
FEROZ AHMAD 1•. DELHI DEVELOPMENT AUTHORITY [SINHA, l] 819
of the said purported regulations. The question raised by appellant would, A·
however, depend upon the validity and/or applicability of the rules. Having
regard to the facts and circumstances of this case, 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. A
statutory rule, it is trite, cannot be supplemented by an executive order. B
Appellant would be entitled to file an application for amendment of writ petition
questioning the validity of the said purported rules. [823-D, E, G)

Roop Chand Adlakha and Ors. v. Delhi Development Authority and Ors.,
[1989] Supp. 1 SCC 116 and DDA Graduate Engineers' Association and Ors. C
v. The Lieutenant Governor of Delhi and Ors., JT (1992) 5 SC 396,
distinguished.

Roshan Lal Tandon v. Union of India and Anr., AIR (1967) SC 1889;
Mervya Continho and Ors. v. Collector of Customs, Bombay and Ors., AIR
(1967) SC 52; S.M Pandit and Ors. etc. v. State ofGujarat and Ors. etc., AIR D
(1972) SC 252 and Delhi Transport Corporation v. D. T.C. Mazdoor Congress
and Ors., (1991 J Supp. 1 SCC 600, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4331 of2006.

From the Judgment/final Order dated 15.12.2005 of the High Court of E
Delhi at New Delhi in L.P.A. No. 363 of 2004.

Dr. Nafis A. Siddiqui for the Appellants.

Ashwani Kumar and Nitin Thalwal for the Respondents.
F
The Judgment of the Court was delivered by

S.B. SINHA. J. Leave granted.

Respondent herein is a statutory authority constituted under the Delhi
Development Act, 1957. Appellant was appointed as a Junior Engineer on G
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 & 3 who are diploma holders .
.>
Appellant was promoted to the post of Assistant Engineer on 29.3.2001. He
made a representation for upgradation 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 & 3. He filed a writ petition before the H
820 SUPREME COURT REPORTS [2006) SUPP. 6 S.C.R.

A 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
B fixation of seniority as well as for step up of pay.

Thereafter, a writ petition was tiled 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 ODA had
framed recruitment rules and promotions to the post of Assistant Engineer
C 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 tiled 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 Ors.
D v. Delhi Development Authority and Ors., [1989] Supp. I SCC 116. Appellant
is thus before us.

Mr. Nafis A. Siddiqui, learned counsel for Appellant would urge that
respondent No.I having adopted a resolution; in absence of any rules, the
rules framed by the Central Government were to be followed and, thus, it was
E bound to apply the rules applicable to the employees of the 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 Engi:ieers, employed on the
Electrical Engineering side of the Central Public Works Department,
... after consultation with the Union Public Service Commission on the
J
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."

U: It has further been co'ltended that a resolution was adopted by the
FEROZ AHMAD v. DELHI DEVELOPMENT AUTHORITY [SINHA, J.] 82 J
DOA to make a comparison of the proposed recruitment rules with those A
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 Electrical Engineering Service, Class II, Recruitment
Rules, in terms whereof recruitment was to be made on the basis· of a
competitive examination or by promotion in accordance with Part IV thereof. B
The purported rules framed by the DOA, it was urged, were not made in tenns
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 C
permissible in law. In support of the said contention, strong reliance has been
made on the Constitution Bench decision of this Court in Roshan Lal Tandon
v. Union ofIndia & Anr., AIR (1967) SC 1889. Reliance has also been placed
on Meryn Continho & Ors. v. Collector of Customs, Bombay & Ors., AIR
(1967) SC 52 and S.M, Pandit & Ors. etc, v. State ofGuiarat & Ors. etc., AIR
(1972) SC 252. D
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 & Ors. v. The Lieutenant Governor E
ofDelhi & Ors., JT (1992) 5 SC 396. 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. D. T.C. Mazdoor Congress & Ors., [1991]
Supp. 1 sec 600.
F
Mr. Ashwani Kumar, learned counsel appearing for Respondent on the
other hand, would submit that Respondent No. I 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.I and having been upheld by this
Court in Roop Chand Adlakha (supra), it is not open to Appellant to question G
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 upgradation) 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 H
822 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A 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.

Delhi Development Act, 1957 was enacted to provide for the development
B 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
C 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.

D 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
E 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 as provided in this Act, nothing contained in this
F Act shall be construed as authorising 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:

G "(I) 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-

H (a) ...
FEROZ AHMAD"· DELHI DEVELOPMENT AUTHORITY [SINHA, J.] 823
(b) ... A
(c) the salaries, allowances and conditions of service of the secretary,
chief accounts officer and other officers and employees; ..."

The terms and conditions of service of the employees of the Delhi
Development Authority, thus, are governed by the statutory rules. Rules and B
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 o( the said purported rules, Respondents contend quota of 50%,
promotion to the post of Junior Engineer is required to be made in terms
thereof. C
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 iil terms of the provisions of the Delhi D
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.

The question raised by Appellant would, however, depend upon the E
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.

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 F
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).

Having regard to the facts and circumstances of this case, we are of the G
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.

We are, therefore, of the opinion that the matter requires a fresh H
824 SUPREME COURT REPORTS (2006] SUPP. 6 S.C.R.

A 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 weeks 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.
B 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
C 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.

The appeal is disposed of accordingly.

D K.K.T. Appeal disposed of.

•