Judgment:
B.N. Kirpal, J.
(1) The petitioners are regular and confirmed employees of the respondent-corporation holding the ranks of Wiremen Grade Ii, Electric Motor Driver and Beldar in the Electric Department (General Wing) of the Municipal Corporation of Delhi. Their grievance in this petition is that they are not being considered for promotion at the time when some master roll employees are being inducted into the various posts in this Department.
(2) The paramedical structure of the aforesaid categories of employees is as follows :-
(I) Wiremen Grade I (Class III).
(II) Wiremen Grade Ii (Class IV).
(III) Electric Motor Driver (Class IV).
(IV) Beldar (Class IV).
Though there are no statutory rules for recruitment to the aforesaid posts, nevertheless the respondent-corporation has from time to time passed resolutions purporting to frame some-recruitment rules.These rules have been framed for recruitment to the posts of Electric Motor Driver, Workmen Grade If (Class IV) and Workman Grade I (Class III). The age limit as well as the qualifications required for the said posts are contained in the said rules. The said rules', which have been placed on record by the petitioners, provide that for recruitment to the post of Electric Motor Driver the method of recruitment is by promotion failing which by direct recruitment. The persons eligible for promotion are Beldars on the basis of seniority-cum-merit. For the posts of Workmen Grade Ii the method of recruitment is. 100 percent by promotion failing which by direct recruitment. Those persons working as Electric Motor Drivers are eligible for being considered for promotion provided they have two years' service in that grade and also fulfill other requisite qualifications. Recruitment to the posts of Workmen Grade I is again 100 per cent by promotion failing which by direct recruitment. Those persons working as Workmen Grade Ii having two years service in the grade and who fulfill the other qualifications mentioned therein are eligible for recruitment.
(3) Petitioners 1 to 7, at the time when the petition was filed, were working as Workmen Grade II. Petitioners 8 to Ii were working as Engine Motor Drivers (EMD) and the rest of the petitioners Nos. 12 to 22 were working as Beldars. According to the petition, each one of the petitioner is eligible for being considered for promotion to the next higher grade.
(4) Because of the volume of work, and possibly for some other reason which is act immediately decipherable, the respondent-Corporation has been having a policy of engaging people on muster roll basis. From time to time for doing different type of word, such recruitment has been made. Same of the people who have been so engaged have continued for a number of years. It seems that there must have been some sort of an agitation by some employees because thereafter in agreement was reached between the respondent-corporation and the Union representing the muster roll employees. As a result of the agreement, a decision was taken by the respondent-corporation, which was communicated by a letter dated 7th August , !1980 from the Commissioner, Municipal Corporation to the Secratarty, Municipal Corporation to the effect that it had been decided that the muster roll staff working on the side should be given the benefit of post to post regularisation as had been done in the civil side. This proposal was accepted by the Corporation by its resolution dated 11th August, 1980 and it was stated that the approval of regularisation on post to post basis was being given in public interest. It was also decided that those muster roll employees who, since 1970, had been regarded as Beldam should also be given this benefit. It might here by stated that previously the practice which was being followed by the respondent-corporation was that irrespective of the work which was being done by the muster roll employees, they were being regularised only as Beldars. For example, if a person was asked to do the work of Wireman Grade Ii then subsequently his service was not regularised as Workman Grade Ii but he was appointed as Beldar and he would be shown junior to all the existing regularly, employed Beldars like the petitioners. The result of the decision of 7th August, 1980, however, was -that the muster roll employees would be eligible for being regularised not as Beldars but would be regularised to such posts whose work they were doing. If, thereforee, there was. an employee who was working as Workman Grade I on muster roll basis, he would be regularised against that post and a person who was working as Workman Grade Ij would be regularised against the post of Workman Grade II.
(5) The grievance of the petitioners is that, as already noted, previously the regularisation of muster roil employees was only in the grade of Beldats. This did not cause any prejudice to any of the petitioners because the employees so employed would always be shown junior to the petitioners. The. impugned decision, however, has resulted in chances .of promotion of the petitioners being marred. According to the petitioners they have been working as Beldars. EMCs and Wireman Grade Ii for a number of years but have not been promoted to the next higher grade though as a result of the impugned decision a large number of muster roll employees would be appointed to the higher posts of Emd, Workman Grade Ii and Wireman Grade I. At the time when they are so regularised the petitioners were eligible for promotion to. the post against which the regularisation is made but the petitioners are being denied the benefit. The grievance of the petitioners is that this is a case of discrimination in reverse where employees who are regularly employed are being discriminated against.
(6) In my view, the grievance of the petitioners is fully justified. Till the impugned decision had been taken promotions were being made according to the aforesaid recruitment rules. The petitioners were regular employees and were entitled to be promoted in accordance with the said rules. By creating new posts and inducting muster roll employees on point to point basis recruitment has been made to those posts contrary to the recruitment rules which had earlier been in operation for a number of years. At the time when the muster roll employees will be appointed on point to point basis those of the petitioners who were qualified for being promoted to those posts would not even be considered. If the petitioners had been working as muster roll employees they would have got the benefit of the impugned decision but this benefit is being denied to them because they are regular employees. Petitioner No. I, for example, has been working as a Wireman Grade Ii since 28th October, 1964. He was not promoted to the post of Wireman Grade I though Rama Nand, respondent No. 44 was first appointed as Beldar on muster roll basis on 17th July, 1971 and then was employed as Wireman Grade I on muster roll basis on 15th June, 1974. Rama Nand would, as a result of the impugned decision, be regularised as Wireman Grade I with effect from 15th June, 1974 whereas petitioner No. I, who has been working as Wireman Grade Ii with effect from 28th October, 1964, even before Rama Nand was employed as a Beldar on muster roll basis, would not be considered for promotion to the post of Wireman Grade I as on 15th June, 1974. This is clearly inequities and arbitrary. There are numerous other instances but it is not necessary for. me to refer to them in greater detail. A perusal of the service record of the petitioners and of the respondents shows that the grievance of the petitioners is fully justified.
(7) It is true that in the public interest muster roll employees who have been working for a number of years ought to be regularised. Though the prayer in the writ petition is that the regularisation of such employees should be quashed, I do not think that that would be really proper or in the public interest. The petitioners can have no grievance if their chances of promotion are not marred by regularisation being made on point to point basis. As already noted, the petitioners never complained when, at an earlier date, muster roll employees used to be regularised as Beldars but would be shown junior to the regular employees. In fact petitioners 14 to 22 are such who at one time were muster roll employees but were then regularised as Beldars. If, thereforee, the Corporation had taken a decision to promote eligible petitioners to the next higher post at the time when regularisation of muster roll employees is being done, and show the regularised employees as being junior to the promoted employees, there would neither be any hardship nor grievance caused to any party. The regular employees like the petitioners have put in more years of service than any of the muster roll employees. The law and the rules are meant to be obeyed and, as far as possible, persons who are governed by the rules should not be discriminated against. The recruitment rules do not provide for recruitment being made to the posts of Emd, Wireman Grade Ii and Wireman Grade I by direct recruitment if persons in the lower posts are available for promotion. thereforee, the decision of the respondent-Corporation to induct the muster roll employees directly on point to point basis would strictly not be in accordance with the said rules. Nevertheless, this decision has been taken in public interest. It is always open to the Corporation to amend its rules but such a decision should not be to the prejudice of persons like the petitioners who have aspirations for being promoted to the next higher grade if they. were duly qualified. The non-consideration of this aspect by the respondent-corporation was clearly arbitrary. The Corporation ought to have first promoted the eligible petitioners to the higher posts and thereafter ought to have regularised the muster roll employees on point to point basis. If, for example, petitioner No. 1 had been promoted as Wireman Grade I in 1974 and thereafter respondent No. 44 is regularised as Wireman Grade I there would be no hardship caused to any one. This would have been the fair and just solution. The respondent-corporation cannot be heard to say that there are no posts to which the promotions of the petitioners had to be made. In order to regularise the muster roll employees the respondent-corporation has created new posts. I see no reason as to why the Corporation should not have increased the number of posts in order to accommodate the promotees from amongst the petitioners if the Corporation wanted to accommodate the muster roll employees.
(8) In the present writ petition, thereforee, without quashing the decision of the respondent-corporation of regularising the muster roll employees on point to point basis, I issue a writ of mandamus directing the respondent-corporation to first consider the petitioners for promotion, if they are so eligible, to the next higher posts before they make recruitment to those posts on point to point basis from amongst the muster roll employees. I further direct the respondent-corporation that, if need be, it should create supernumerary posts so as to accommodate the promotees. It is further directed that the persons so promoted from amongst the petitioners will rank senior to the persons who are inducted, .on point to point basis, from amongst the muster roll employees. The consideration for promotion from amongst the petitioners must be on that date(s) as on which date(s) the muster roll employees are sought to be regularised in various posts.
(9) The respondent-corporation should canny out the directions issued herein within a period of four months from today.