Delhi High Court
Ram Kumar vs M.C.D. And Ors. on 22 December, 2005
Author: M Katju
Bench: M Katju, M B Lokur
JUDGMENT
Markandeya Katju, C.J.
1. This writ appeal has been filed against the impugned judgment of the learned Single Judge dated 17.12.2004 by which the writ petition was dismissed.
2. Heard the learned counsel for the appellant and perused the record.
3. The prayer in the writ petition was to re-engage the applicant in the service of the respondent/M.C.D. as daily rated casual labourer and also to consider him for regularization against any of the Group D posts in preference to freshers and juniors.
4. The petitioner was initially appointed on 31st March, 1989 in the service of the respondent/ M.C.D. He has alleged that he served the Department up to December 2002 with breaks in service in different schools.
5. It is alleged in para 5 of the writ petition that the petitioner was engaged on daily wage basis on a regular sanctioned post. A perusal of the appointment orders issued to the petitioner, copies of which are collectively annexed as Annexure P-3 to the writ petition shows that the petitioner was only engaged as daily rated worker for a few days at a time. For instance, he was appointed as daily rated Chowkidar on temporary basis from 24.12.1990 to 26.12.1990 in the DMC Boys/Girls School, Kamrudeen Nagar-II by order dated 5.2.1991. Similarly, by order dated 19.12.2002, he was appointed as daily rated Chowkidar on temporary basis from 26.10.2002 to 4.11.2002 in the same School. On 25.4.1989 he was appointed for one day on the same basis on 31.3.1989. In our opinion no right accrues to the petitioner on the basis of these short appointments.
6. The petitioner has relied on certain Government notifications which have been annexed as Annexure P-4 to the writ petition. For example, the Notification of the Ministry of Home Affairs (Department of Personnel and Administrative Reforms) dated 26th October, 1984 states that the services of a casual worker may be regularized in a Group `D' post provided, inter alia, he has put in two years' as a casual worker with 240 days or more of service as such during each year.
7. We are of the opinion that petitioner has not been able to prove that he comes within the ambit of the said Notification dated 26th October, 1984. Moreover, we are of the opinion that the said Notification dated 26th October, 1984 is not enforceable by a Court as it is a non-statutory Notification. It is well-settled that a non-statutory executive order/Notification is not enforceable by a writ of mandamus. Vide, J.R. Raghupathy v. State of A.P., AIR 1988 S.C. 168, G.J. Fernandes v. The State of Mysore and Ors., , R. Abdulla Rowther v. The State Transport Appellate Tribunal, Madras and Ors., AIR 1959 S.C.896 Joint Chief Controller v. Aminchand, , State of Assam v. Ajit Kumar Sharma, , etc.
8. No doubt certain exceptions have been carved out to the aforesaid principle e.g., the principles of promissory estoppel, legitimate expectation, etc. or the principle that in service matters if there is no statutory rule regarding conditions of service of Government employees, executive instructions can fill in the gaps and these can be enforced by a mandamus. However, the general rule remains that a non-statutory Government instruction is not enforceable by a mandamus. This case does not come within any of the exceptions to the general rule.
9. Moreover, the aforesaid Notification, prima facie, appears to be violative of Article 16 of the Constitution because in view of Section 16 appointments on public posts should be filled in by a selection and not by a back-door appointment de hors the Rules.
10. There is no force in this appeal and it is dismissed.
