R. BHATTACHARYYA, J. ( 1 ) THE petitioners have triggred off this Writ application against the respondents for mandamus commanding the respondents, their officers, agents, men subordinates superiors, successors-in-office to take steps, measures and action forthwith towards absorption of the petitioners in the substantive capacity, for certiorari, Rule NISI and for other incidental reliefs which included amongst others the cost. ( 2 ) TO understand the contention, a few potent facts need be stated, as the vital aspect of the case, dwelling on regularisation or absorption in the municipality, a writ in the above nature could be issued, if the material proposition of fact and law is asserted by one about absorption and regularisation and denied by the other. There is much uproar over the issue when the court has been invited to render a verdict, since the petitioners are robbed off their rights of absorption and regularisation. ( 3 ) NOW to the facts :-the petitioners No. 3 to 9 alongwith others were the casual or the daily rated workers of the Howrah Municipality, since 1987, who rendered services as Majdur to work under different Borough committees whose services were fully explored to maintain the water supply. They rendered continuous services without interruption at a monthly salary fixed from time to time by the respondent No. 2, annexure A, however, their length of service was ignored by the municipality. The right accrued to them for absorption on substantive basis never gained any premium or momentum as their claim for such appointment was given a feather weight. ( 4 ) ON 31st August, 1988, 16 casual workers were selected for the appointment in the substantive posts of Majdur, annexure B. The different casual workers working under the various departments of the respondent No. 2, would be approximately 55, annexure C. ( 5 ) TO the utter dismay of the petitioners only 16 workers were choosen to be absorbed to the substantive posts to the exclusion of other daily rated casual workers which included amongst others the petitioners No. 3 to 7. The representations though galored did not fructify the claim of the petitioners to be absorbed in the substantive posts as evident by the annexure. The endeavour made by the petitioners for their absorption lost its force and momentum for the inaction of the Municipality. On the strength of circular dated 1. 11. The representations though galored did not fructify the claim of the petitioners to be absorbed in the substantive posts as evident by the annexure. The endeavour made by the petitioners for their absorption lost its force and momentum for the inaction of the Municipality. On the strength of circular dated 1. 11. 89, a panel consisting of 16 such workers was prepared on the strength of the applications made by the applicants. The circular that spoke of absorption would be restricted to the persons having worked as leave substitutes, annexure D. ( 6 ) CURIOUSLY enough, the petitioners No. 3 to 7 were not allowed to join their respective duties on 2nd of September, 1979 after jettisoning their claim for absorption which anchored at continuous discharge of duties. The above led a skirmish between the petitioners on one hand and the respondents on the other, where much water had flown into the Ganges. The petitioners No. 3 to 7 had been serving at Borough I to render faithful services of public utility to keep the essential supplies or water for the benefit of the people at large. Though the petitioners wept much for their absorption yet their tears did not move the respondents. The action of the respondents was all through tainted having its pedestal on arbitrariness, whims and discrimination violating the salubrious provisions of the Constitution of India, the preparation of the panel of candidates for one category of employees, preciously selecting from the leave substitutes annihilating the claim or right of the petitioners for being absorbed in the substantive capacity, has offended equal treatment amongst the equals as the petitioners were one amongst the equals. An indefeasible right for the length of services had accrued in favour of the petitioners and the same is sought to have axed by the respondents foreign to the provisions of Constitution and the fundamental principle of natural justice. The vacancies are still available for their absorption or regularisation but the respondent No. 2 who kept the petitioners at bay to cheer its ego. ( 7 ) THE petitioners, thus, highly aggrieved by and dissatisfied with the action of the respondents are constrained to file the writ to explore relief for canalising their right to absorption. ( 8 ) THE respondents have contradicted the claim of the petitioners in their affidavit-in-opposition on the score that they were appointed on monthly salary. ( 7 ) THE petitioners, thus, highly aggrieved by and dissatisfied with the action of the respondents are constrained to file the writ to explore relief for canalising their right to absorption. ( 8 ) THE respondents have contradicted the claim of the petitioners in their affidavit-in-opposition on the score that they were appointed on monthly salary. They were appointed as daily rated workers with no work no pay basis at variable rates. The acquisition of right of the petitioners for absorption is absolutely a myth. They were appointed under the exigencies of the circumstances, where the permanent absorption did not show its head. The 16 workers who were appointed on substantive post as majdur w. e. f. 1st September, 1988 have been working for several years much before the working of the petitioners. They were not appointed from the list of 55 candidates. The action of the respondents were neither malafide nor arbitrary nor visited with unreasonable discrimination by preparing the panel for absorption in substantive capacity concerning the 16 candidates disregarding the claim of the rights of the petitioners. ( 9 ) THE petitioners are not the lone employees, but there are many others who worsted as daily rated casual workers. The panel for leave substitutes is for any casual vacancies due to leave etc, where the dally rated workers are for performing the particular emergency works which are distinguished from that other and the claim of equal treatment is therefore, devoid of context. ( 10 ) THE pivotal question raised for decision of the court is as to whether, in the background of the claim and counter claim, the petitioners could be absorbed as regular or permanent employee of the Howrah Municipal Corporation (HMC ). ( 11 ) MR. Moitra to sustain his claim for employment of the petitioners in substantive capacity has argued with much vehemence and industry that the services rendered by the petitioners are/were perennial in nature having much reflection on the public utility service and the maintenance job in respect of essential service. To petter all doubt, he has taken me through the lanes and by-lanes of the writ application and affidavit-in-opposition to knock out the case of the respondents which gave currency that absorption is not automatic, but founded upon rules, regulations and statute. To petter all doubt, he has taken me through the lanes and by-lanes of the writ application and affidavit-in-opposition to knock out the case of the respondents which gave currency that absorption is not automatic, but founded upon rules, regulations and statute. ( 12 ) WHILE sedulously cultivating his claim, he has made a thread bare submission that the vacancies are still in existence in the HMC but the respondents avoided absorption or regularisation of the petitioners on the pretext of rules or regularisation for appointment in substantive capacity. It is manifest from the bossom of the petition that the petitioners have rendered continuous service for a long time, but their names have been expelled from the list of candidates prepared by the HMC for absorption in the substantive capacity. The action of the respondents is totally unsatisfactory, since not approved of by any canon of natural justice, law or the statute. It does not appear from the body of the petition that the claim of the petitioner is rested upon ad hoc appointment or temporary appointment which according to Mr. Moitra is an endeavour of the respondent to make a mountain out of a mole hill and to give a false colouring to the case of the petitioners, the object being to deprive them of their legitimate dues, contrary to Articles 39 (d), 14, 16 and 21 of the Constitution. Conduct of the respondent is patently discretionary and arbitrary to that they resorted to a policy of pick and choose to select the candidates. The treatment meated out to the petitioners by resorting to discretion has resulted in infraction of law as to equality which is the sacred temple of our Constitution of India. The respondents sought to have desecrated or profaned the temple of equality which is the citadel of our Constitution. ( 13 ) MR. Moitra has relied on a number of decisions which in my view are not of much relevance for deciding the case. In the background of the factual exposure, I refrain myself from burdening my judgment with citations. ( 14 ) TO rebut the contention, the learned counsel for the respondents has emphasised in his submission that had there been any rules and regulations for absorption it could inevitably fuel the claim of the petitioners. In the background of the factual exposure, I refrain myself from burdening my judgment with citations. ( 14 ) TO rebut the contention, the learned counsel for the respondents has emphasised in his submission that had there been any rules and regulations for absorption it could inevitably fuel the claim of the petitioners. The absorption through the medium of rules and regulations has been cemented by a plethora of decisions which is now the order of the day. Nobody could wriggle out of the same in order to make the appointment through the backdoor. It hovers considerable doubt which is rational that absorption must be geared into action only on the anvil of rules and regulations. If we are to accept the contention of Mr. Sarkar to be true and a strength-giving factor then none could be employed or absorbed in the HMC as the respondent did not take any steps for framing rules and regulations for absorption of their employees who were appointed either dally rated or no work no pay basis. Mr. Sarkar has deployed his formidable and oratorical skill to make an impressive case for clearing of the mess. But it is curious to note that the respondents maintained an unnatural silence in regard to annexure-D annexed to writ application where appointment was made without recourse to regularisation. ( 15 ) IT is nothing but secret going on behind the veil. If the respondents are astute and discreet in their deeds and actions, there could not be any dual policy for absorption. In its strong version, the attitude and concept underline the discriminatory approach of the authority. It evinces from the writ petition that the claim of the petitioner has not its pedestal on any scheme, act hoc appointment or temporary appointment where the cases cited by Mr. Sarkar, Delhi Development Horticulture Employees' Union v. Delhi Administration AIR 1992 SC 798, J and K Public Service Commission v. Narinder Mohan AIR 1994 SC 1808 , Arundhuti A Pargaonkar v. State of Maharashtra AIR 1995 SC 962 , State of Haryana v. Peyara Singh 1992 (3) SCJ 416 could be called in aid as the facts of the rulings under reference do not verge on the facts of the present case. It must not be lost sight of the fact from the nature of pleadings that the petitioners were appointed according to exigencies which generated the claim of their absorption and their cases could not be steamrolled or bulldozed on the plea of rules and regulations being oblivious of the fact that they are connected with the supply of water which is essentially a job of perennial nature, however, the respondents may say. ( 16 ) BAFFLED by the enigma, Mr. Sarkar has intensified in his argument the rules and regulations as a spring board to invalidate their claim. The factual exposure of the rulings under reference at the risk of repetition, I find that they have distinguishing features which are not identical with the case at hand. The guidelines laid down by the apex court in Piyara Singh (supra) had not been followed till date to letter or religiously by the authority who did not take immediate steps to replace the casual workers or daily rated workers by a regularly selected employees as early as possible (emphasis supplied)*. How the respondent could draw food from the ratio decidendi laid down in Piyara Singh case when they sat on the fence? The case of Arundhuti (supra), as indicated earlier, cannot be applied to be facts of the instant case. The learned counsel for the respondents has made a lofty claim in his submission to strike down the case of the petitioner which is a complete departure from the pleadings. The rules, regulations and regularisation never showed their heads in the affidavit-in-opposition which are nothing but an academic exercise or stance by the respondents in the state of materials on record. It is nothing but an attempt or endeavour to get rid of the dilemma. ( 17 ) INCIDENTALLY, it is quite apposite to mention that HMC is a statutory body governed by the statute. But when it maintains a vacuum regarding rules and regulations for appointment, benefit of the vacuum must go to the petitioners who have been working there since a long time. If there is a mischief in the statute, it will always lean in favour of that person who wants to take benefit of the mischief. But when it maintains a vacuum regarding rules and regulations for appointment, benefit of the vacuum must go to the petitioners who have been working there since a long time. If there is a mischief in the statute, it will always lean in favour of that person who wants to take benefit of the mischief. ( 18 ) IN the background of the above, it is legitimate to hold and observe, to terms of the pleadings, that it is the latest roar from the HMC of the newly launched pleas of regularisation, rules and regulations for substantive appointments to salvages the issue. The petitioners by dint of their long and marathon work have acquired sufficient experience who were engaged in supply of water beset with perennial word and the craving for regularisation via Employment Exchange would be an onslaught on their livelihood not having been encompassed by the articles 14, 16 and 21 of the Constitution of India, in particular, that others similarly circumstanced were absorbed de hors the process of regularisation. Their absorption through regularisation would be, in the contest of the facts, an empty formality and that they are, in my view, are not required to stand the interview by observing the barren formalities of sponsoring their names through the media of Employment Exchange. I say this and no more. ( 19 ) HAVING considered the conspectus of the facts and circumstances of the case, and, having regard to the peculiar feature of it, I have no hesitation to come to the conclusion that a right has accrued in favour of the petitioners No. 3 to 7 to be appointed in the substantive capacity at Howrah Municipal Corporation within eight weeks from date where age of the petitioners will not be taken into consideration. But I make it clear that the petitioners are not entitled to any salary or any other remuneration for the interregnum period as they did not render any service to the Howrah Municipal Corporation. Accordingly, the application is allowed rejecting the affidavit-in-opposition. Issue mandamus accordingly. Appeal allowed