The legal effect of constructive res judicata and issue estoppel in the context of a final court order, and the interpretation of statutory provisions under the West Bengal Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Service and Posts) Act, 1976, were central to the judgment.

JUDGMENT

Subrata Talukdar, J. - 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. 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 t