D.D.A. vs Firoz Ahmed and Another

Suresh Kait, J.—The petitioner, being aggrieved by the order dated 02.11.2007 in TA No. 17/2007 (WP(C) No. 1260/2003) passed by the Central Administrative Tribunal, Principal Bench, New Delhi, has filed the present writ petition.

In brief, facts of the case are that the respondents were appointed as Junior Engineer (Electrical) on 12.08.1976. The Recruitment Rules & Regulations for the post of Assistant Engineer (Electrical) were approved by Delhi Development Authority (hereinafter to be referred as DDA) vide Resolution No. 106 of 04th September, 1976 and the same were notified in the Gazette of India vide Notification No. GSR (10E). The respondent No. 1 was promoted as Assistant Engineer (Electrical) on 12.07.2000.

The respondent No. 1, herein, filed the Writ Petition No. 1260/2003 in this High Court while praying; (a) directing the petitioner herein to fix the basic pay of the respondent herein at Rs. 10,975/- w.e.f. the date of upgradation of pay of his junior, namely, Iqbal Singh and Ms. K.V. Jameela (R-2 & 3 herein), and consequential benefits, accordingly. (b) to direct the petitioner herein to fix the seniority of the respondent No. 1 herein, in the cadre of Assistant Engineer (Electrical/Mechanical) above his juniors i.e. respondent Nos. 2 & 3.

As alleged by the respondent No. 1 that for promotion from the post of junior engineer to the post of Assistant Engineer Recruitment Rules were framed by the Central Government vide notification dated 17.01.1997. Rule 24 of the said Rules provides for 50% appointments by selection on the basis of merit from amongst permanent Junior Engineers employed in Civil Engineering side of the Central Public Works Department, and 50% appointments by selection from amongst Junior Engineers employed on the Civil 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.

It was also alleged by the respondent No. 1 that the above rules do not give power to the petitioner to differentiate between the Diploma and Degree holders while considering them for promotion. The only criteria for the promotion of Junior Engineer, was to be adopted i.e. seniority. The main grievance of the respondent No. 1 herein was that respondent No. 2 & 3, who were initially junior to him were promoted as Assistant Engineer on officiating basis in December, 1980, while the respondent No. 1 was promoted to the post of Assistant Engineer in January, 2000. He further alleged that the pay of the respondent Nos. 2 & 3, who were junior to him were upgraded and fixed at Rs. 10,975/-, while the respondent No. 1�s scale was fixed at Rs. 10,000/- w.e.f. 12.08.2001.

Being aggrieved, the respondent No. 1 made a representation dated 09.04.2001 to the petitioner, which was rejected by order dated 23.09.2002. The respondent No. 1 herein challenged the aforesaid order by filing a writ petition No. 1260/2003, which was dismissed by the learned Single Judge of this Court, vide order dated 13.01.2004 as under:

Learned Counsel for the petitioner relies upon the recruitment rules dated 17.01.1977 at page 24 & 25 of the writ petition. The said recruitment rules have been framed by the Government of India, Ministry of Works and Housing and relates to the Engineers under the employment of Government of India. Petitioner is admittedly an employee of Delhi Development Authority. DDA has framed recruitment rules, which have been annexed as Annexure R-1 to the counter affidavit filed. It has been explained in the counter affidavit that promotions to the post of Assistant Engineer (PNL) are being effected in terms of recruitment rules which provide for 50% promotions from Junior Engineers having a degree with 3 years of service in the post. In view of the recruitment rules being Annexure R-1, there is no merit in the writ petition. The same is accordingly dismissed.

Being aggrieved by the aforesaid order of the learned Single Judge, the respondent No. 1 herein filed LPA No. 363/2004, which was dismissed by the Division Bench of this Court vide orders dated 15.12.2005, the relevant portion of the said order is as under:

It is clear that the DDA has framed its own recruitment and promotion rules which have been upheld by the Supreme Court in Roop Chand Adlakha and Ors. v. Delhi Development Authority and Ors. (supra). These recruitment rules stipulate different qualifying service for degree holders and diploma holders among the Junior Engineers. The DDA has acted in accordance with these rules. The appellant was only a diploma holder and hence he cannot be placed in the same category as degree holder.

No doubt, respondents 2 & 3 were initially junior to the petitioner in the seniority list of the Junior Engineers, but having acquired a degree they were promoted much earlier than the petitioner out of their own quota and thus became senior to the petitioner.

In our opinion, there is no force in this appeal and the same is dismissed.

The respondent No. 1 herein challenged the aforesaid judgment before the Supreme Court by filing SLP(C) No. 3256/2006, which was admitted as Civil Appeal No. 4331/2006. While disposing of the aforesaid appeal their Lordships observed as under:

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 therefore had been followed. Appellant, however, before the High Court did not raise any question as regards the constitutionality of the said purported regulations.

The Supreme Court further observed that the question raised by the petitioner herein would, however, depend on 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. By observing the aforesaid question their lordships has disposed of the SLP by directing this Court as under:

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).

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.

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 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. 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.

The appeal is disposed of accordingly.

Pursuant to the aforesaid directions of the Supreme Court, the respondent No. 1, got revived WP(C) No. 1260/2003 which was initially disposed of by this Court, subsequently the same was transferred to Central Administrative Tribunal, Principal Bench, Delhi, was registered as TA No. 17/2007. The respondent No. 1 herein had assailed; firstly, Recruitment Regulations for the post of Assistant Engineer (AE)(Electrical & Mechanical) as ultra vires of Section 57 of the Delhi Development Act, 1957 (DD Act, for short). Secondly, he had claimed, as a consequence thereof, promotion as Assistant Engineer w.e.f. 03.12.1980 and Executive Engineer (XEN) w.e.f 15.05.2006 being senior to respondent Nos. 2 & 3 with all consequential benefits with fixation of basic pay at Rs. 10,975/- from the date of upgradation to the post of his juniors, who are respondent No. 2 & 3 herein. Lastly, he had claimed fixation of seniority as Assistant Engineer above than the respondent No. 2 & 3 herein.

Whether the Recruitment Rules for the post of Assistant Engineer (Electrical & Mechanical) as ultravirus of Section 57 of the DD Act or not, we will take up this issue lateron. The second claim of the respondent No. 1 herein is regarding his promotion as Assistant Engineer w.e.f. 03.12.1980 and consequential promotion as an Executive Engineer.

Admittedly, the facts inter alia are not in dispute that the respondent No. 1 herein was appointed as JE on 12.08.1976. He is a Diploma holder. On 17.01.1977, Rule 27 was substituted by way of an amendment and prescribed recruitment by promotion up to 50% through selection amongst JEs in consultation with the UPSC on the basis of limited Departmental Competitive Examination (LDCE), wherein, seniority was the only criterion. Accordingly, seniority list was issued on 28.06.1977. As per the said list, the respondent No. 1 was placed at serial No. 77 and respondent Nos. 2 & 3 were shown at serial No. 87 & 81 respectively. In the year 1980, the promotion-cum-seniority list of Assistant Engineers was circulated. All were degree holders, as is clarified by the counsel for the petitioner. The respondent No. 1, being Diploma holder was not promoted, therefore, his name was not in that list. Admittedly, respondent No. 1 herein did not challenge that list for more than 20 years which was circulated in the year 1980.

We have to keep in mind that in the instant case we are dealing with the issue of seniority. The seniority list was prepared and circulated in the year 1980 and the respondent No. 1 herein challenged the aforesaid seniority list after a long gap. The Supreme Court reminded, time and again, that the settled issue relating to seniority should not be allowed to be reopened after a substantial period elapsed and should be given a quietus. The Supreme Court in the matter of K.R. Mudgal and Others Vs. R.P. Singh and Others, while dealing with the matter of a draft seniority list of Assistants issued in 1958, was stated to have circulated but objections to this list were not received over the years. Again seniority list was issued and finalized in 1976 after intervention of the Hon�ble High Court of Andhra Pradesh. It was noticed that the petitioner had approached the court nearly 18 years after the first draft seniority list was published. The Apex Court has held:

Satisfactory service conditions postulate that there should be no sense of uncertainty amongst the government servants created by the writ petitions filed after several years as in this case. It is essential that anyone who feels aggrieved by the seniority assigned to him should approach the court as early as possible as otherwise in addition to the creation of a sense of insecurity in the minds of the government servants there would also be administrative complications and difficulties. Unfortunately in this case even after nearly 32 years the dispute regarding the appointment of some of the respondents to the writ petition is still lingering in this Court. In these circumstances we consider that the High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches.

Furthermore, the weighty observations made by a Constitution Bench of this Court in Malcom Lawrence Cecil D''souza Vs. Union of India (UOI) and Others, as under:

Although security of service cannot be used as a shield against administrative action for lapses of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. It is difficulty no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one�s position in the seniority after having been settled for once should not be liable to be reopened after lapse of many years at the instance of a party who has during the intervening period chosen to keep quiet. Raking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time.

In another case titled G.P. Doval and Others Vs. Chief Secretary, Government of U.P. and Others, it was held as under:

A grievance was made that the petitioners have moved this Court after a long unexplained delay and the Court should not grant any relief to them. It was pointed out that the provisional seniority list was drawn up on March 22, 1971 and the petitions have been filed in the year 1983. The respondents therefore submitted that the Court should throw out the petitions on the ground of delay, laches and acquiescence. It was said that promotions granted on the basis of impugned seniority list were not questioned by the petitioners and they have acquiesced into it. We are not disposed to accede to this request because respondents 1 to 3 have not finalized the seniority list for a period of more than 12 years and are operating the same for further promotion to the utter disadvantage of the petitioners. Petitioners went on making representations after representations which did not yield any response, reply or relief. Coupled with this is the fact that the petitioners belong to the lower echelons of service and it is not difficult to visualize that they may find it extremely difficult to rush to the court. Therefore, the contention must be rejected.

The Supreme Court in the said case found justifiable explanation for approaching the court belatedly by means of a writ petition. There is no period of limitation provided for filing a writ petition, whereas the Administrative Tribunal Act provides one year limitation period for approaching the Tribunal and the Supreme Court has specifically held in a catena of judgments that a person who sleeps for a long time for his rights, if, later on awaken, he should be allowed to sleep further but would not extend the period of limitation.

In the present case, the seniority list of Assistant Engineers was circulated in 1980 wherein the name of the respondent No. 1 was not in the seniority list. The respondent No. 1, at that point of time, did not bother to challenge. Today, we do not deem appropriate to go into the seniority list which was circulated in 1980, whether issued rightly or wrongly. Therefore, we are of the considered opinion that seniority list should not be disturbed today after a gap of more than 29 years. Since we have decided not to discuss about the seniority list issued in 1980, therefore, the consequential promotion for the post of Executive Engineer does not arise. Though, we are going to decide about the constitutionality of Rule. Even, if, we come to the conclusion that the rules are unconstitutional, it is trite law, that will be prospective and in any manner, the petitioner is not going to be benefited, therefore, it will be academic only.

Second issue of the respondent No. 1 starts from January, 2000 when he was promoted as an Assistant Engineer. Regulation 6 of DDA (Salaries, Allowances & Conditions of Services) Regulations provides general condition of service for the employees and the same conditions mutatis mutandis as per FR & SR applicable to the Central Government officers. On 23.04.2000, the approval was accorded for processing the promotion for grant of benefit of ACP to JEs (Electrical & Mechanical). As a result thereof, the benefit of upgradation of pay scale of Rs. 10,000 - 15,200/- was accorded to respondent No. 2 vide order dated 29.03.2001. The respondent No. 1 herein being aggrieved by the aforesaid order, submitted his representation dated 23.09.2002 for fixation of seniority and upgradation of pay scale, which was not responded to, led to filing of a writ petition before this High Court. Thereafter, the issue went up to Supreme Court. The Apex Court has remanded the case back to the High Court for adjudication on merits, relevant portions of which are reproduced as under:

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.

The Writ Petitioner - Appellant would be entitled to file an application for amendment of writ petition questioning the validity of the said purported rules.

For the views we have taken, it is not necessary to deal with the other contentions raised by the parties herein at this stage.

Ultimately, writ petition No. 1260/2003 was revived, thereafter, on transfer, adjudicated by the Tribunal.

The case before the Central Administrative Tribunal of the respondent No. 1 herein was that no discrimination can be made in a cadre on the ground of Educational Qualification (Diploma & Degree) and, the terms of service cannot be altered unilaterally by the Government. He has relied upon the Constitutional Bench decision of the Apex Court in the case of Roshan Lal Tandon Vs. Union of India (UOI), He also placed reliance upon the decision of the Apex Court in Mervyn Coutindo and Others Vs. Collector of Customs, Bombay and Others, whereby denial of equal opportunities to two participants of common grade on the basis of sources, was held to be violative of Articles 14 & 16 of the Constitution of India.

As regards the first issue, which is in fact main and legal one, the respondent No. 1 herein has challenged that recruitment regulations promulgated by the DDA are non est and have not been framed as per Section 56 & 57 of the DD Act, 1957. As per the said provision, only the Central Government is empowered to carry out such provision, for the purpose of the Act and laying down qualifications and disqualifications only as per Section 57, in consultation with the concerned authorities by a Notification of an official gazette, which is to be passed by both the Houses of the Parliament. He also relied upon Section 58 of the DD Act, wherein laying of Rules and Regulations before the Parliament is a mandate.

In the above backdrop, he has stated that the regulations framed, had not been approved by the Central Government and had also not been placed before the Parliament and also not gazetted in the official gazette of Government of India. Accordingly, a subordinate legislation, not being in accordance with statute and the procedure laid down, would be a nullity in law. While supporting the aforesaid contentions, he has relied upon the decision of the Apex Court in Supreme Court Employees'' Welfare Association and Others Vs. Union of India (UOI) and Another, submitted that an arbitrary exercise of power by a public authority when due to unequal treatment in respect of promotion of Ex. En�s from AEs, whereas in respect of promotion from JE to AE is discriminatory, are liable to be set aside. Apart, he has relied upon the Constitution Bench decision of the Apex Court in Minerva Mills Ltd. and Others Vs. Union of India (UOI) and Others, and Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others,

The last contention of the respondent No. 1 herein is, there being no question of qualification of AE for the post of Ex. En in which diploma holders are also promoted according to the seniority and when employees recruited by sources and are observed in one cadre, no discrimination can be made in future promotion being one feeder class. Accordingly, he has prayed for quashing of the order and grant of the benefits.

We have observed that the petitioner herein did not file the counter reply before the Tribunal despite opportunities, therefore, their right to file the counter affidavit was forfeited. The petitioner, herein, filed written submission, which was taken into consideration to impart justice and also to avoid miscarriage of justice.

The learned Counsel for the petitioner herein has referred to Section 52(2) of the DD Act and a Notification issued in official gazette on 14.02.1969. According to which the Central Government has delegated its authority to Lt. Governor for framing the Rules & Regulations. Therefore, the regulations were correctly framed. The notification of the Recruitment Regulations was processed for placing before the Houses of Parliament. He further stated that the Recruitment Regulations for the post of AEs were framed u/s 57 of the DD Act and approved by a Resolution dated 04.09.1976. The Government of India also conveyed its approval to the recommendations of Committee, which included the revision of the pay scale. He also stated that notified Recruitment Regulations were sent to the Ministry of Urban Development to be placed before each house of Parliament, which was valid compliance.

Lastly, learned Counsel for the petitioner has stated that rule-making powers stood delegated to the Lt. Governor. Admittedly, the respondent No. 1 herein is a diploma holder and was promoted as AE in January, 2000, whereas, respondent Nos. 2 & 3 being degree holders were promoted as AEs long back somewhere in the year 1980.

The case of the respondent No. 1 herein, the rules adopted by the DDA were not approved by the Central Government and not notified in the official gazette and, thereafter, not placed before both the Houses of the Parliament. For deciding the aforesaid issue, we have to go through the process conducted by the DDA and all the procedures and powers in various Sections of the DD Act, 1957. The Recruitment Regulations for the post of Assistant Engineer (Electrical/Mechanical) were framed u/s 57 of the DD Act, 1957, duly approved by the authority vide Resolution No. 106 dated 04.9.1976. The method of recruitment was 50% from direct or deputation and 50% on promotion from Section Officer. For promotion from the Section Officer should have been (a) graduate in Engineering with three years� service or (b) Diploma holders with 8 years service. Thereafter, the matter regarding revision of the Recruitment Regulations Rules was reviewed by Cadre Review Committee of Engineering Cadre in the year 1998 and the recommendations of the Cadre Review Committee were submitted to Ministry of Urban Affairs & Employment, Delhi Division vide letter No. F/7(43)/88-PB.I/PT./327 dated 28.01.1999. In response to which the Under Secretary, Government of India, Urban Affairs and Employment had conveyed approval of Government of India vide its letter No. K-11011/29/95-DDIA dated 05.03.1999.

As clarified, in the approval, the Central Government had also included the revision of pay scale to the post of Assistant Engineer (Electrical/Mechanical). The approval of the Central Government for revision of these Recruitment Regulations for the said post are 75% by promotion and 25% by Limited Departmental Competitive Examination from Junior Engineers in DDA. In view of the approval of the Ministry of Urban Development Department, Government of India, the DDA had approved the revision of Recruitment Regulations vide its Resolution No. 104/2002 for the post of Assistant Engineer (Electrical/Mechanical). Accordingly, the aforementioned regulations were notified in the gazette of India vide Notification No. GSR (10-E) dated 10.01.1996. Thereafter, the aforesaid notified Recruitment Regulations for the said posts were sent to Ministry of Urban Development, Government of India to place the same before each of the house of the Parliament vide letter No. F/7(59)/2004-PB/I/2889 dated 21.11.2006.

Learned Counsel for the petitioner, while supporting their stand, further submitted that the Delhi Development Act, 1957 came into force on 01.12.1957. Section 3 & 4 of the said Act prescribes the "Authority" and Staff of the Authority, as under:

As per Section 3 of the said Act, the Authority consists of a:

- Chairman, who shall be Administrator of the Union Territory of Delhi.

- Ex-officio, Vice Chairman, Finance and Accounts Member.

- An Engineer Member to be appointed by the Central Government.

- Two representatives of the Municipal Corporation of Delhi.

- Three representatives of the Metropolitan Council of the Union Territory of Delhi.

- Three persons to be appointed by the Central Government &

- The Commissioner of Municipal Corporation of Delhi Ex-officio.

Section 4 of the Act is reproduced hereinbelow for the sake of convenience:

Staff of the Authority - (1) The Central Government may appoint two suitable persons respectively as the secretary and the Chief Accounts Officer of the Authority who shall exercise such powers and perform such duties as may be prescribed by regulations or delegated to them by the authority or the Chairman.

The main issue before the Tribunal and now before us is whether as a subordinate legislation under provisions of Sections 57 & 58 of the DD Act, the Authorities (DDA) is empowered to frame Rules & Regulations though with the previous approval of the Central Government and Notification in the official gazette and thereafter Regulations to be placed before both the houses of the Parliament for ratification. Sections 57 & 58 of the DD Act are reproduced as under:

57 Power to make regulations.

(1) The Authority, with the previous approval of the Central Government, may 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) The summoning and holding of meetings of the Authority, the time and place where such meetings are to be held, the conduct of business at such meetings and the number of members necessary to form a quorum thereat;

(b) The powers and duties of the secretary and chief accounts officer of the Authority;

(c) The salaries, allowances and conditions of service of the secretary, chief accounts officer and other officers and employees;

(d) The procedure for the carrying out the functions of the Authority under Chapter III;

(e) The form in which any application for permission under Sub-section (1) of Section 13 shall be made and the particulars to be furnished in such application;

(f) The terms and conditions subject to which user of lands and buildings in contravention of plans may be continued;

(g) The manner of publication of the notice u/s 15;

(h) The manner of communicating the grounds of refusal of permission for development;

(i) The form of the register of applications for permission and the particulars to be contained in such register;

(j) The management of the properties of the Authority;

(k) The time and manner of payment of betterment charge; and

(l) Any other matter which has to be, or may be, prescribed by regulations.

(2) Until the Authority is established under this Act, any regulation which may be made under Sub-section (1) may be made by the Central Government; and any regulation so made may be altered or rescinded by the Authority in exercise of its powers under Sub-section (1).

Laying of rules and regulations before Parliament.

Every rule and every regulation made under this Act shall be laid, as soon as may be after such rule or regulation is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation, or both Houses agree that the rule or regulation should not be made, the rule or regulation shall, thereafter have effect only in such modified form or be or no effect, as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.

As per the observation of the Tribunal, the regulations framed in 1997, which are being assailed, were not approved by the Central Government and had not been placed before both the houses of Parliament within the stipulated period of 30 days, which were not made in conformity with the provisions of the Act as a subordinate legislation is, therefore, violative of plenary legislation and would be nullity in law and ineffective. The Tribunal has relied upon the decision of the Apex court in Kerala Samsthana Chethu Thozhilali Union v. State of Kerala and Ors. 2006 SCC (L & S) 796.

The Tribunal had further observed that u/s 57 of the DD Act, any rule or regulation pertaining to the service conditions has to be framed as a condition precedent after seeking approval of the Central Government. Section 52 of the DD Act provides as under:

Section 52. Power to delegate.

(1) The Authority may, by notification in the official Gazette, direct that any power exercisable by it under this Act except the power to make regulations may also be exercised by such officer or local authority or committee constituted u/s 5A as may be mentioned therein, in such cases and subject to such conditions, if any, as may be specified therein.

(2) The Central Government may, by notification in the official Gazette, direct that any power exercisable by it under this Act, except the power to make rules, may also be exercised by such officer as may be mentioned therein, in such cases and subject to such conditions, if any, as may be specified therein.

(3) The Administrator of the Union Territory of Delhi, may, by notification in the official Gazette, direct that any power exercisable by him under this Act, except the power to hear appeals, may also be exercised by such officer as may be mentioned therein, in such cases and subject to such conditions, if any as may be specified therein.

The matter went up to the Supreme Court and the Supreme Court remanded back the matter to the High Court to decide the issues which were raised by the respondent No. 1 herein.

The Tribunal has further observed as under:

If one has regard to the above, when no approval of the Central Government has been sought as a condition precedent the recruitment regulation/rule as a subordinate legislation would not only be ineffective but also contrary to the provisions of the parent act and is not to be pressed in its operation regarding service conditions of the employee.

Under the principles of interpretation of a statute or a rule as per the Constitution Bench decision of the Apex Court in Dadi Jagannadham Vs. Jammulu Ramulu and Others, ruled that a presumption that legislature did not make the mistake is to start with the principle and then the obvious intent of the legislature is to be kept in mind without adding any thing on a literal interpretation. A contextual construction, which is construed, as a whole is one of the principles laid down by the Apex Court in a Constitution Bench decision in Union of India Vs. Elphinstone Spinning and Weaving Co. Ltd. and Others etc., In the matter of construction, as held by a three-Judge bench of the Apex Court in The East India Hotels Ltd. and Another Vs. Union of India and Another, on a harmonious construction where the Act has to be read as a whole and the provisions have to be harmonized, giving effect to all of them, if applied to the present situation in the context of the decision of the Apex Court in Bharathidasan University and Another Vs. All India Council for Technical Education and Others, where the legislature when uses an expression it has to be given effect to and is not to be rendered nugatory by giving undue importance to other provisions.

In the above backdrop, what we find that the plain reading of Section 57 of the DD Act makes it clear and unambiguous that when a rule or regulation as a subordinate legislation is to be framed or promulgated the condition precedent is approval by the Central Government and on a notification in gazette laying of the rules/regulations before both the Houses of Parliament within 30 days. Admittedly, the Regulation, which has discriminated and is the bone of contention has been promulgated in the year 1977 does not show the condition precedent of approval by the Central Government and for want of a notification in the gazette and non-laying of this rule/regulation before both the Houses of Parliament the same cannot be promulgated or framed on a delegated authority u/s 52(2) of the Act, as framing of the rules and regulations being the prerogative of the Central Government on approval cannot be delegated. Such a rule when framed is non est right from its inception and is ultra vires to the Act as correct methodology under the Act has not been adopted to promulgate the rule. It would not take effect in law and cannot be operated in any manner to the disadvantage of applicant.

From the written submissions what we find that a justification as to resolution of respondents dated 4.9.1976 and a reference to the Urban Development Ministry as per Annexure R-2 when approval is given to the revision of the pay scale for revision of the recruitment regulation would not ratify or in any manner mitigate the illegality already committed by the respondents, whereby the Regulation promulgated in 1977 was neither approved by the Central Government nor placed before both the Houses of Parliament. What is now to be placed is a regulation, which, on a delegated authority on Lt. Governor, would not cure the defects already been cropped up in 1977, failure to place before both the Houses of Parliament the Regulation in legal parlance had not taken effect right from its inception.

Insofar as the decision of the Apex Court in Adalkha''s case (supra) is concerned, the Apex Court has not adverted to the vires of the rules and regulations in the context of Section 57 of the DD Act and accordingly in DDA Graduate Engineers'' Association and others Vs. The Lieutenant Governor of Delhi and others, Adalkha''s case (supra) was not found to have any applicability. As held by the Apex Court in State of Karnataka and Another Vs. B. Suvarna Malini and Another etc., any administrative law on subordinate legislation if the rules framed are under a statute after duly complying with the requirements only then they attain the legislative character having the force of law.

Applying the converse if the requirements are not followed the rules would be nullity.

Insofar as discrimination between the degree and diploma holders is concerned, as the rules which are operated to discriminate have now been done away with being ultra vires in view of the Constitutional Bench decision of the Apex Court in Roshan Lal Tandon''s case (supra) holding two feeder categories in a cadre for official movement by way of promotion any discrimination meted out would be violative of Articles 14 and 16 of the Constitution of India, as the difference is not intelligible and we do not find any reasonable nexus with the object sought to be achieved, such an invidious discrimination without any basis certainly offends Articles 14 and 16 of the Constitution of India.

Insofar as the regulation demonstrated to be framed by the respondents laying down 75% and 25% criteria respectively it is trite that any regulation framed would be prospective in application and would not affect in any manner the right accrued to a person. Moreover, the new regulation, as alleged by them, is also not established to be given effect after completion of the formalities as per Sections 56-58 of the DD Act of 1957.

In the result, for the foregoing reasons, TA is allowed. Rules/Regulations framed in 1977 are declared ultra vires in contravention of Section 57 of the DD Act, 1957. As a result thereof, the claim of applicant now be considered for the post of AE and XEN and for fixation of basic pay and arrears thereof on assignment of seniority, as prayed for, in paragraphs 2-5 of the TA. This shall be done within a period of three months from the date of receipt of a copy of this order. Consequences to ensue in law. No costs.

We have heard learned Counsel for both the parties and gone through all the relevant documents placed on record. We are of the view that the Tribunal has erred in holding that the regulation framed in 1977 were not approved by the Central Government. A bare perusal of the said regulations shows that the said Regulations were not the said Regulations which were framed in 1977. As far as 1997 regulations are concerned, the respondent No. 1 had relied upon a Notification issued by the Central Government dated 17.01.1977 wherein Rule 24 have been substituted by the Central Government and the said regulations did not apply to DDA as the said regulations were of Central Public Works Department. Therefore, the Tribunal erred in holding that the 1977 Regulations were not approved by the Central Government. On the other hand, DDA by Resolution No. 106 dated 04.09.1996 had framed Recruitment Rules for the post of Assistant Engineers and by virtue of the Notification dated 01.05.1967 the Central Government had delegated all the powers to the Lt. Governor of Delhi by virtue of its Notification dated 14.02.1969 including power to make regulations.

We are fully convinced by the arguments advanced by learned Counsel for the petitioner that the Tribunal erred in holding that the Notification issued on 14.02.1969 by which the Central Government had delegated powers to the Lt. Governor was ultra virus is absolutely misconceived. As per Section 52(2) of the DD Act, the Central Government could direct all powers to be delegated except the power to make rules. However, in the present case the Central Government had not delegated its powers to approve the Regulations framed by the DDA under Rule 57 of the Delhi Development Rules. A bare perusal of the Notification dated 14.02.1969 would show that the Central Government in exercise of its power under Sub-section 2 of Section 52 had delegated its power to make regulations u/s 57 to the Lt. Governor and, therefore, the said delegation could no by any stretch of imagination be called as ultravirus or ineffective.

We are also convinced that the matter regarding the revision of the Recruitment Regulation was reviewed by the Cadre Review Committee of Engineering Cadre in the year 1998 and the recommendations of the said Committee were submitted to the Ministry of Urban Affairs and Employment, Delhi Division as noted hereinabove, in response to which the Under Secretary, Government of India, Ministry of Urban Affairs & Employment conveyed the approval of the Government to the recommendations of the Committee. Beyond this, the notified recruitment Regulations for the said post have since been sent to the Ministry of Urban Development, Government of India to place before each of the House of the Parliament.

Further, it was denied that the Regulations framed by the respondent No. 1 are in violation of Section 57 of the Delhi Development Act, 1957. Even otherwise, the Central Government has delegated its rule making power u/s 52 of the Delhi Development Act in favour of the Lt. Governor u/s 57 of the said Act and the Lt. Governor being the Ex-officio Chairman of the DDA the authority has framed the said rules.

It is, thus, the CAT erred in not considering the aspect of fixation of pay. As regards fixation of pay consequent to ACP Scheme and the benefit extended to respondents Nos. 2 & 3, it is contended that the basic pay of respondent No. 2 was fixed at Rs. 10,975/- and was upgraded on 01.12.2000 instead of 09.09.2000. The said Scheme envisages mere placement in the higher pay scale/grant of financial benefits through financial upgradation only to Government Servant concerned on personal basis and that the financial upgradation under the said Scheme is purely personal to each employee concerned and has no relevance to his/her seniority position. Even the learned CAT went wrong in holding that there is violation of Article 13(2) of the Constitution of India and that Recruitment Rules could not have been framed for Assistant Engineers, which were upheld by the Supreme Court in the case of Roop Chand Adlakha and Others Vs. Delhi Development Authority and Others, as under:

State, consistent with the requirements of the promotional posts and in the interest of the efficiency of the service, is not precluded from conferring eligibility on diploma holders conditioning it by other requirements which may as here, include certain quantum of service experience. It cannot be said that the choice of the State was either to recognise diploma holders as "eligible" for promotion or wholly exclude them as "not eligible". If the educational qualification by itself was recognised as conferring eligibility for promotion, then the superimposition of further conditions such as a particular period of service, selectively, on the diploma holders alone to their disadvantage might become discriminatory. This does not prevent the State from formulating a policy which prescribes as an essential part of the conditions for the very eligibility that the candidate must have a particular qualification plus a stipulated quantum of service experience. The graduates and diploma holders were not treated as equal in the matter of eligibility for promotion. The different prescriptions for conditioning eligibility are themselves questioned which need to be decided on the basis whether the discrimination contemplated and brought about in the matter of promotional opportunities between graduates and non-graduates, based on the differences in the quality of their technical qualifications, were relatable to, and justified on the basis of, the requirements of the promotional posts. On the basis of the "Vaish Committee" report, the authorities considered the infusion of higher academic and technical quality in the personnel requirements in the relevant cadres of Engineering Services necessary. These are essentially matters of policy. Unless the provision is shown to be arbitrary, capricious, or to bring about grossly unfair results, judicial policy should be one of judicial restraint. The prescriptions may be somewhat cumbersome or produce some hardship in their application in some individual cases, but they cannot be struck down as unreasonable, capricious or arbitrary.

Besides, the approach by virtue of which there could be no discrimination the Tribunal went wrong. In this context, reliance is being made to the decision of Apex Court in the case of Shailender Bania and Ors. v. S.P. Dube and Ors. Civil Appeal No. 2219-2222/2000, wherein the Supreme Court has held that there can no manner or doubt that higher education knowledge would give better thrust to administrative efficiency and quality output and to carry out specialised job more efficiently, higher education knowledge would be the requirement. Higher education qualifications developed broader perspective and, therefore service rendered on the same post by higher qualified person would be qualitatively different.

We are of the considered view that for the foregoing reasons, the judgment passed by the Tribunal vide order dated 07.11.2007 is bad in law and cannot survive. Therefore, we set aside the same and allow the writ petition. No order as to costs.