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2020 DIGILAW 545 (CAL)

Chiranjib Roy v. Kolkata Municipal Corporation

2020-07-01

SUBRATA TALUKDAR

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JUDGMENT : Subrata Talukdar, J 1. The petitioner is presently working as a Junior Assistant (for short JA) under the Kolkata Municipal Corporation (for short KMC). The petitioner came to the Hon’ble Court by way of a previous writ petition, being WP No. 2003 (W) of 2001 (for short WP-I). 2. The grievance of the petitioner, as raised in WP I, arose from the fact that although the Municipal Service Commission (for short MSC) invited applications for appointment to 11 posts of JAs under the KMC, only five appointments were actually given in the year 2000. The petitioner contended through WP I that although he was the first Scheduled Caste (SC) candidate in the final list of 11 merit based candidates, he was not offered appointment. 3. The petitioner further contended that appointment was offered to a candidate at Serial No.3 of the merit based list treating the said Serial No.3, one Ranesh Kumar Biswas, as a SC candidate. The petitioner submits through Mr. Ghoshal, Learned Senior Counsel appearing with Mr. Nandi, Learned Counsel, that the said Serial No.3 (supra) ought to have been treated in the merit list as part of the Unreserved Category since out of the 11, 6 were reserved for the Unreserved category, 3 for the SC category, one for the Scheduled Tribe (ST) category and one for the Other Backward Classes (OBC) category. 4. It is submitted that it is a settled legal position that a meritorious Reserved category candidate such as the said Serial No.3 (supra), should be treated as part of the General Unreserved category in view of his overall position in the merit list. It is further submitted that such legal position is fortified by Section 4(2) of the West Bengal Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Service and Posts) Act, 1976 (for short the 1976 Act). 5. WP I was finally decided by the Hon’ble Court vide its order dated 29th June, 2012. It would be relevant to mention that following an interim direction of the Hon’ble Court dated 26th September, 2011, the petitioner was directed to implead the persons offered appointment as JAs following the common selection initiated in the year 1999 as party respondents to WP I. 6. It would be relevant at this juncture to reproduce the final order dated 29th June, 2012 at its operative part for the benefit of this discussion. It would be relevant at this juncture to reproduce the final order dated 29th June, 2012 at its operative part for the benefit of this discussion. The same reads as follows:- “(Section) 4(2) The number of any Scheduled Caste or Scheduled Tribe candidate qualifying on merit for appointment to any unreserved vacancy in service or post in any establishment to be filled up by direct recruitment shall not be deducted from the quota reserved in such service or post for such candidate under sub-section. In view of the aforesaid provision of law in the event a Scheduled Caste candidate qualifies to an unreserved category, then the reserved quota can be availed of by the next successful candidate in such reserved category. Hence, in the present case, the petitioner as the next successful Scheduled Caste candidate was entitled to appointment in the reserved category. Mr. Bihani, learned senior counsel for the Corporation does not contest this legal position. He, however, submits that as there are vacancies available in the cadre the petitioner may be considered for appointment in Scheduled Caste category without disturbing the appointments already made. In support of his contention, he submits the written instructions of his client that there are sufficient vacancies available. Let such written instructions be kept with the record. In view of the fact that the panel was prepared for 11 posts wherefrom only 5 posts were filled up and since there are existing vacancies in the said cadre, I am of the opinion that the petitioner may be accommodated in one of such vacancies as a Scheduled Caste candidate without disturbing the appointments already made. I dispose of this writ petition by directing that the respondent Corporation to appoint the petitioner in the Scheduled Caste category to one of the available vacant posts in the said cadre in accordance with law after complying with necessary formalities within a period of eight weeks from the date of communication of the order. There will be, however, no order as to costs.” 7. Following the final adjudication dated 29th June, 2012 (supra), the petitioner accepted the appointment and joined the post of JA from the date of his appointment in 2012. There will be, however, no order as to costs.” 7. Following the final adjudication dated 29th June, 2012 (supra), the petitioner accepted the appointment and joined the post of JA from the date of his appointment in 2012. Now, by way of the present writ petition, i.e. WP 27875 (W) of 2016 (WP II), the petitioner, inter alia, prays for being treated in regular service of the KMC from the year 2000, i.e. the date of the initial appointments following the selection process of 1999, with additional prayers for grant of seniority, promotional and corresponding financial benefits, as have accrued to his peers over the years. 8. Mr. Ghosh, Learned Counsel appearing for the KMC, reiterates the position that since financial and administrative compulsions did not permit the filling up of 11 vacancies in the year 2000, the petitioner could be only offered appointment in the year 2012 qua the existing vacancies. The offer of appointment in 2012 was accepted without demur by the petitioner, notwithstanding the emphasis being now placed by his Learned Senior Counsel on the applicability of Section 4(2) of the 1976 Act (supra). 9. It is therefore submitted that the petitioner’ present relief is barred by application of constructive res judicata, issue estoppel and principles analogous thereto. The implication of the reliefs as claimed by the petitioner in this writ petition after having previously acted contrary thereto, are huge for a public utility entity, such the KMC, being run on public exchequer. The grant of the prayers of the petitioner shall lead to an avalanche of events unsettling the settled hierarchy of positions and benefits in KMC. Learned Counsel for KMC takes the point that it was always open to the petitioner to have resiled from the relief granted in WP I upon contest having regard to the scope, content and extent of such relief. It is pointed out that the present writ petition, i.e. WP II, has been filed a good long four years of completion of service by the petitioner from 2012 onwards. 10. Having heard the parties and considering the materials placed, this Court finds the stand of the parties and the direction of the Hon’ble Court dated 29th June, 2012 to be unambiguous. 10. Having heard the parties and considering the materials placed, this Court finds the stand of the parties and the direction of the Hon’ble Court dated 29th June, 2012 to be unambiguous. After recording the stand of the parties, the Court permitted the petitioner to be accommodated in one of such vacancies as a Scheduled Caste candidate without disturbing the appointments already made. 11. To the mind of this Court the direction dated 29th of June, 2012 has attained a finality. The Hon’ble Court directed accommodation in a SC vacancy of 2012. The Hon’ble Court took care to ensure that since the writ petition of 2001 was being decided in 2012, in the light of the stand taken by KMC that vacancies presently exist, the KMC was directed to offer appointment to the petitioner without disturbing the appointments already made. 12. In the above view of the matter, this Court is of the clear view that the reliefs now pressed by the petitioner in the form of reallocation of his position in the gradation list, grant of seniority, promotional and corresponding financial benefits will have the proverbial domino effect besides being deeply disruptive of the solemn order dated 29th June, 2012. Additionally, this Court, neither acting in appellate or reviewing capacity, is limited by jurisdiction from interpreting the solemn order dated 29th June, 2012 in WP I. 13. However, to the further mind of this Court, the legal effect of constructive res judicata and issue estoppel in the context of the final order dated 29th June, 2012, shall always remain qualified by the expression without disturbing the appointments already made. Axiomatically, any appointment notionally extended to the petitioner from the year 2000, which would have the effect of protecting his qualifying service to receive pensionary benefits, would neither prejudice the existing appointees of 2012 or, prior thereto nor fall foul of the order dated 29th June, 2012. The loss of qualifying service to receive pension benefits, for no fault on the part of the petitioner in the year 2000, is an aspect which the KMC is expected to recognise in its theoretical avatar as a model employer. 14. The loss of qualifying service to receive pension benefits, for no fault on the part of the petitioner in the year 2000, is an aspect which the KMC is expected to recognise in its theoretical avatar as a model employer. 14. Besides, by seeking to enforce his rights under Section 4(2) of the 1976 Act, the petitioner has placed the shoes of estoppel on the feet of the KMC, since KMC is estopped from taking a position which runs contrary to the statutory mandate under Section 4(2) of the 1976 Act, thereby rendering the selection of the said Serial No.3, Mr. Biswas, of the Merit-based List of 2000, vulnerable. 15. In the backdrop of the above discussion, KMC is directed to only treat the service of the petitioner as JA notionally with effect from the year 2000 and accordingly fix his total pension as well as related superannuation benefits for regular disbursement on retirement. 16. There will be no order as to costs. 17. W.P. No. 27875 (W) of 2016 stands accordingly allowed. 18. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.