JUDGMENT
S. Ravindra Bhat, J.
1. The petitioner seeks appropriate directions under Article 226 of the Constitution for his regularization in the post of Wireman Grade-I. A further direction has been claimed that the petitioner’s name should be included in the list of Wireman Grade-I at the appropriate place, w.e.f. the date of his appointment to that post on Muster Roll.
2. The petitioner was first appointed by the respondent (hereafter MCD) as Electric Beldar on Muster Roll basis in 1976. He was subsequently appointed in 1979 to the post of Wireman Grade-II on Muster Roll daily wage basis.
3. At that time a policy existed in the civil ring of MCD to regularize employees onpost- to-post basis, i.e., regularize the concerned incumbent in the post or position then held by him. However, in respect of other departments, notably the electric side (with which the present petition is concerned), the policy was that regularization had to be at the lowest level namely the post of beldar.
4. On 7.8.1980, the existing policy in respect of the civil wing was extended to the electrical side. Consequently, a further issue arose as to what would be the fate of those who were already regularized to the post of beldar in terms of the existing policy applicable in the electrical wing. In respect of such persons, the policy dated 7.8.1980 stated that the workers not working on Muster Roll since 1970, should be jointly considered for their regular appointment on post-to-post basis provided they fulfill the technical qualifications as provided in the R.Rs.
The above policy was given effect to.
5. In the meanwhile, in terms of the policy applicable to the electrical wing, the petitioner had been regularized as beldar w.e.f. 1.4.1991. The petitioner’s claim here is to the post of Wireman Grade-I, where he had been appointed on 1.7.1981. In support of this claim he has produced a copy of the Muster Roll for the period July-August, 1981.
6. Some of the existing employees who had been appointed or regularized as Wireman Grade-I/Wireman Grade-II/beldar approached this court under Article 226 of the Constitution impugning the policy decision of MCD to effect regularization on post-to-post basis under Article 226 of the Constitution, being WP No. 1373/1980. By an order dated 7.8.1981 implementation of the policy decision (dated 7.8.1980) in regard to the regularization of Muster Roll employees was stayed.
7. The writ petition was eventually disposed of by a judgment dated 4.2.1987. The Court did not interfere or quash the policy. However, the Court was of the view that the equities of different parties ought to be adjusted while preparing the seniority list. Certain directions were accordingly issued which included one directing creation of supernumerary posts. The relevant directions containing in the judgment are extracted below:-
In the present writ petition, therefore, without quashing the decision of the respondent-Corporation of regularizing the Muster Roll employees on point to point basis, I issue a writ of mandamus direction the respondent-Corporation to first consider the petitioners for promotion, if are so eligible, to the next higher posts 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 regularized in various posts.
8. Consequent upon the directions, the MCD issued a list on 7.3.1990 containing a proposal to regularise/promote employees of the electrical side to the respective posts indicated, appointed till a certain date in 1978. Objections were invited by 30th March, 1990.
9. Another seniority list was published on 6.2.1992 in respect of different categories of employees including Wireman Grade-II, Wireman Grade-I etc. engaged during the period 1.1.79 to 31.3.86. The petitioner’s case is that his name ought to have been included, but for some reasons stood excluded. He also states that he was not aware of the list and consequently could not represent to the authorities within time. Therefore, he made a representation for inclusion on 8.7.92. In the representation, the petitioner has also given the names of nine persons, who like him were initially regularized as beldars but subsequently following the decision of this court dated 4.2.87 were regularized as Wireman Grade-I.
10. In this background, the petitioner approached this court seeking appropriate relief as indicated above. Notice was issued on 6.1.93 in the petition and despite opportunity, no response was forthcoming from the MCD. Consequently, rule was issued on 24.11.93. Again, when the matter was taken up for hearing on subsequent dates in 2002 and 2003, time was sought to file a reply which was, however, not forthcoming. The matter was heard on 24.09.2004, 1.10.2004 and 8.10.2004 The MCD has now filed its response and pursuant to directions, the records have also been produced in court. The MCD does not dispute that the petitioner was regularized as electric beldar w.e.f. 1.4.1981. As per their reply, the petitioner was engaged as Wireman Grade-II w.e.f. 1.11.1980 on daily wage Muster Roll basis and later as Wireman Grade-I w.e.f. 15.7.1981.
11. The MCD denies that the Circular dated 6.2.1992 was not appropriately make known to all employees. It is their case that the petitioner had been regularized to the post of beldar on which he was initially engaged and since he accepted that position, included the terms and conditions contained in the order dated 31.3.1982 and has been working in that post, he cannot claim the reliefs sought in the present petition.
12. The facts indicated above disclose the following features:-
(1)The petitioner had been regularized as beldar w.e.f. 1.4.1981. At that point in time the policy applicable was that employees in the electrical wing could be regularized only as beldars. The policy dated 7.8.1980 (enabling regularization on post-to-post basis) had been impugned in writ proceedings. Consequently, the MCD did not give effect to it and continued with its existing policy of regularizing employees to the position of beldar.
(2) Admittedly, the petitioner was engaged as Wireman Grade-I on Muster Roll basis w.e.f. 15th July, 1981.
(3) The policy dated 7.8.80 could be given effect to only after the decision of this court in WP No.1373/1980 dated 4.2.1987.
(4) The judgment directed MCD to adjust the equities as between persons who were already been regularized as beldar/Wireman Grade-II/Wireman Grade-I in effecting seniority and regularization at different grades.
(5) Pursuant to the directions of this court, two provisional lists were issued-
(a). On 7.3.1990 in respect of employees who had been appointed till 1.4.78 and (b). On 6.2.1992 in respect of different categories of employees appointed between 1.1.79 and 31.3.1986. The petitioner’s name was not included in the latter list, though naes of other Wiremen Grade-I were included.
13. The above facts establish that the petitioner was clearly entitled to regularization in accordance of policy of 7.8.1980 and as directed by this court in its previous judgment. However, in the concerned list dated 6.2.82, for some inexplicable reasons, his name was not excluded. The explanation forthcoming by MCD is that petitioner stood regularized as beldar and that he has accepted his terms of the engagement to MCD to that position.
14. I am of the view that the stand taken by MCD cannot be countenanced. Admittedly till the court disposed of the writ petition on 4.2.87, an interim order operated. That order had the effect of staying the hands of the MCD. Consequently, the previous policy of regularizing employees in the electrical wing only to the post of beldar applied. So too was the case of the petitioner who stood regularized as beldar w.e.f. 1.4.1981.
15. The first objective of the policy dated 7.8.1980 was to give benefit of post-to-post regularization to all employees of the electrical wing. The second objective was to give appropriate relief to those who had been regularized (as beldar) under the previous policy but had in fact later worked in higher positions. If these two are kept in mind, every employee who stood regularized as beldar had a right to be considered in terms of the policy dated 7.8.1980, as interpreted by this court in its judgment.
16. The MCD has not given any cogent or acceptable reason as to why the petitioner’s name did not figure in the list dated 6.2.1992. The two reasons detailed in its counter-affidavit cannot be accepted. The regularization of the petitioner as beldar or his acceptance of terms of such regularization cannot be legitimately cited as impediments to his claim for regularization on post-to-post basis, which was the objective of the 1980 policy. There is nothing to show that the petitioner’s claim for regulaization as Wireman Grade-I was any different from others who were similarly holding higher posts but were regularized as Beldars under the old policy pending consideration of validity of the 1980 policy. It is not disputed that the representation of the petitioner dated 8.7.1992 which highlighted his wrongful exclusion had also pointed out nine instances of others like him (regularized earlier as Beldar) who had been given the benefit of regularization in the post of Wireman Grade-I, was received by the MCD. The petitioner was entitled to similar treatment. MCD has not denied this.
17. During the hearing, it has transpired that another office order dated 11.3.1994 was issued in respect of the same subject matter. This has not been denied by MCD. This order indicates that Wireman Grade-I engaged on different dates between 15.6.1979 and 7.8.1984 were given the benefit of regularization. Many of these names figured in the provisional seniority list dated 6.2.1992. The petitioner was admittedly engaged as Wireman Grade-I w.e.f. 15.7.1981, as per the stand of MCD. He too was entitle to similar treatment.
18. Having regard to the totality of circumstances and the admissions made by MCD with regard to the receipt of representation of the petitioner as also the prevalence of the policy which could be given effect only after the judgment of this court, the petitioner is entitled to succeed. He has to be treated similarly as those Wireman Grade-I who stood regularized w.e.f. 1.4.1988 as per order dated 11.4.1994, since he was appointed during the period when those mentioned in that order were appointed.
19. I accordingly allow the writ petition and issue the following directions:-
(1)The petitioner’s case for regularization to the post of Wireman Grade-I on post-to-post basis, in accordance with the policy dated 7.8.1980 (Annexure VI to the petition) read with the directions in civil writ petition No.1373/1980 decided on 4.2.1987 and the order dated 11.3.1994, shall be considered and decided within a period of ten weeks from today;
(2) Consequently, benefits flowing from the appointment and regularization of the petitioner in the post of Wireman Grade-I, shall be released to him within a period of six weeks thereafter.
20. Rule made absolute in above terms. Costs quantified at Rs.2,000/-.