Proloy Kumar Dey & Ors vs Kolkata Municipal Corporation & ...
2023 Latest Caselaw 6011 Cal

           IN THE HIGH COURT AT CALCUTTA
            CIVIL APPELLATE JURISDICTION
                   APPELLATE SIDE


                         FMA 118 OF 2020
                                With
                       I.A. No. CAN 1 of 2018
                     (Old No. CAN 4190 of 2018)
                      Proloy Kumar Dey & Ors.
                              -Vs.-
               Kolkata Municipal Corporation & Ors



Before:          The Hon'ble Justice Arijit Banerjee
                               &
                 The Hon'ble Justice Apurba Sinha Ray



For the Appellants        : Mr. Ekramul Bari, Adv.
                            Mr. Tanuja Basak, Adv.


For the KMC               : Mr. Aloke Kr. Ghosh, Adv.
                            Mr. Arijit Dey, Adv.


For the Municipal Service : Ms. Koyeli Bhattacharyya
Commission


Judgment On               : 08.09.2023
                                       2




Apurba Sinha Ray, J. :-


The Case in a nutshell


1.

The brief facts of the case of the appellants (appellant nos. 1 and 2

being general candidates and appellant no. 3 being OBC (A) candidate are

that though the three appellants were successful in the written test as well

as interview for recruitment in the posts of S.A.E (Electrical), Kolkata

Municipal Corporation conducted by Municipal Service Commission ('MSC'

in short hereinafter) and their names surfaced in the supplementary panel,

they were not appointed in the relevant posts. However, two other

candidates from such supplementary panel were appointed due to non-

joining of two candidates from the main panel. Time and again, the

appellants were assured from the side of Kolkata Municipal Corporation

('KMC' in short hereinafter) that they would be appointed in the relevant

posts but in vain. The appellants have heavily relied upon the relevant letter

of Joint Municipal Commissioner (Personnel) dated 23.11.2016 wherein the

said officer of KMC has categorically stated that during validity of the

relevant panel, subsequent vacancies arose in more than 5 posts due to

promotion and resignation and, therefore, the left out 5 candidates in the

supplementary panel can be accommodated in their places. As the said

proposal was not carried into action, the writ application was filed but the

same was rejected solely on the ground that the validity of the panel had

already expired. According to the appellants/ writ petitioners the Writ Court

failed to consider that during pendency of the relevant panel, Model Code of

Conduct, 2016 had come into force due to Assembly Election in the State of

West Bengal in 2016, and it was KMC which was unable to take any

appropriate steps in this regard, and for which, the appellants should not be

made scapegoat. Hence, this appeal.

2. The contention of KMC, however, is that two candidates from General

category and one candidate from OBC (B) in the main panel did not join, and

accordingly, two general candidates, who are more meritorious than the

present appellants, from the supplementary panels were appointed. As there

is no OBC (B) candidate in the supplementary list, the post reserved for OBC

(B) was decided to be filled up through future recruitment process.

Furthermore, according to KMC, the Learned Single Judge rightly dismissed

the writ application as the validity period of one year of the panel expired

long ago. As two posts of general candidates and one post of OBC (A) as per

declared vacancies were already filled up, the plea of the three appellants,

should be rejected in limine.

Court's View

3. From the materials on record it is found that there were 15 declared

vacancies [General - 07, SC - 05, OBC(A) - 01, OBC(B) - 02] under main

panel for the post of Sub - Assistant (Electrical) Engineer and 08

subsequent/prospective vacancies under supplementary panel for the said

post [General - 04, General (PH) - 01, SC - 01, ST - 01, OBC(A) - 01]. At

the very outset, the relation between main panel and supplementary panel

needs to be scrutinized.

4. If we peruse the letter dated 14.09.2013 by which the KMC sent

requisition to the MSC for appointment of S.A.E. we shall find the reasons as

to why 08 vacancies for supplementary panel were advertised. The relevant

excerpt is as follows:-

"As regards preparation of panel beyond the number of declared vacancies, it needs to be mentioned that two sets of panels of selected candidates be prepared against the requisition from KMC. The first panel will be in respect of declared vacancies and the 2nd panel may be an additional panel or an extended one for the prospective vacancies that may occur from time to time during the validity of such panel i.e. within one year from the date of panel and it may be called supplementary panel."

5. From the arguments of both sides and materials on record it

transpired that though the declared and clear vacancies in the post of SAE

was 15 at the time of relevant advertisement, the KMC Authority also

advertised for 8 vacancies as per categories already mentioned above for the

purpose of subsequent/prospective vacancies which may arise during the

subsistence of the panel, and this panel is described as supplementary

panel. The preparation of the supplementary panel is for multipurpose use

so far as the KMC is concerned. It appears from the arguments of both sides

that it can be used as waiting list for the main panel, and further it can also

be used if prospective vacancies arise during the validity period of one year

due to promotion, resignation etc. However, it appears that such number of

vacancies in supplementary panel is computed on the basis of anticipated or

expected vacancies which may occur during a certain period, that is, one

year during the validity period of the panel. According to the learned counsel

of the appellants, if such anticipated vacancies actually occur during the

subsistence of supplementary panel due to promotion, resignation,

retirement etc. such vacancies can be filled up from the candidates whose

names are found in the supplementary list. As the KMC disclosed

anticipated vacancies of 08 in number during the relevant period, the KMC

was under an obligation to appoint the three appellants, two from general

quota and one from OBC (A) quota from the supplementary panel, even after

two candidates in supplementary panel were upgraded in the Main Panel.

Since the supplementary panel is meant for multipurpose use, which is

evident from the requisition for appointment in the year 2015, and also from

the letter dated 23.11.2016 of the Joint Municipal Commissioner (Personnel)

the relevant vacancies at the relevant time as indicated in the said letter

should be filled up by appointing the three appellants.

6. In our view, as the requisition letter dated 14.09.2013 of the KMC

addressed to MSC clearly shows that supplementary panel is to be used for

prospective vacancies that may occur from time to time during the validity of

such panel i.e. within a year from the date of the panel. We have to ascertain

what vacancies took place during the one year validity of the panel so far as

the post of S.A.E (Electrical) was concerned. Two general candidates in the

Main Panel did not join, and accordingly two other general candidates from

the supplementary panel, who were more meritorious than the two

appellants being no. 1 and 2 were upgraded in the Main Panel. The term

'prospective vacancies' as found in the requisition letter dated 14.09.2013 is

not confined only for the vacancies which might have occurred due to non-

joining of some candidates in the Main Panel, but any vacancy which might

have occurred 'from time to time' during the validity of such panel. In other

words, the panel will be extended to include other prospective vacancies

which may occur due to promotion, resignation etc. during validity of the

panel. This has been echoed in the letter dated 23.11.2016. The excerpts of

the letter as aforesaid is as follows:-

"KOLKATA MUNICIPAL CORPORATION PERSONNEL DEPARTMENT

5. S.N. BANERJEE ROAD, KOLKATA-700 013

No. P/1288/v/16-18 Dated: 23-11-16

To The Secretary Municipal Service Commission 149, AJC Bose Road Kolkata-700 014.

Sub: Seeking opinion regarding absorption of candidates in SAE (Electrical) cadre from Supplementary Panel vide memo no. 69 MSC/1D-18/2013 dated 07.03.2015.

It is to inform that As per Advertisement No.1 of 2014 dated 1st February 2014. Recruitment Examination for the post of SAE (Electrical) under the KMC was conducted by MSC. Subsequently, MSC forwarded a panel of 22 (twenty

two) nos of eligible candidates vide memo no. 69 MSC/1D-18/2013 dated 07.03.2015. There are 15 nos of candidates in Main Panel and 07 nos of candidates in Supplementary Panel. After intimation of vacancies to the MSC, several vacancies have occurred within the validity period of the panel due to

i) promotion to the post of A.E.(Electrical) from SAE(Electrical) cadre under direct quota & ii) resignation after joining from the main panel.

It may be noted that two candidates in 'General' category from the Supplementary Panel have been absorbed within the validity period of the panel due to non- joining of two candidate 'General' category of Main Panel.

Subsequently since Model Code of Conduct of West Bengal Legislative Assembly Election, 2016 came in force from March 2016 to May 2016, we were unable to process the recruitment procedure. It is pertinent to mention here that KMC is now facing acute shortage of staff in SAE(Electrical) Cadre.

As per letter no. 207 MSC/1D-12/2013 dated 04.10.2016, the validity period of supplementary panel recommended by MSC will remain valid for one year from the date of recommendation as per existing order. According to this, the panel validity has expired on 06.03.2016.

Now, it is seen that there are 5(five) more candidates in the Supplementary Panel. More than 5 nos of vacancies have been occurred in SAE(Electrical) cadre within the validity period of the panel due to promotion, resignation.

Hence, it is evident that these 5 nos. of candidates of Supplementary Panel may be absorbed against the above vacancies which have occurred within the validity period of the panel.

Yours faithfully,

Joint Municipal Commissioner (Personnel)"

7. However, as the said letter dated 23.11.2016 of Joint Municipal

Commissioner (Personnel) has specifically hinted that more than 5 vacancies

arose due to promotion and resignation in the posts of S.A.E. (Electrical)

during the validity period of the relevant panel, we have to look into the

particulars of the said vacancies for proper adjudication of the 'lis' before us.

8. Accordingly, by our order dated 26.06.2023 we directed the Municipal

Commissioner, KMC to produce all the relevant upto date gradation lists of

S.A.E (Electrical) of 2015, 2016, 2017, and a report in the form of Affidavit

stating the particulars of 5 vacancies including the categories which took

place during the validity period of the supplementary panel being no. 69

MSC/1D-18/2013 dated 07.03.2015 i.e. upto 06.03.2016.

9. Pursuant to our aforesaid direction, the KMC authority submitted an

affidavit along with copies of updated gradation list of SAE (Electrical) as on

01.08.2012 (published on 08.08.2012) which existed up to 16.12.2015, a

provisional gradation list of SAE (Electrical) as on 01.02.2015 published on

17.12.2015 and a final gradation list of SAE (Electrical) which was published

on 05.02.2016. The KMC authority has further submitted that in the year

2017 no gradation list of SAE (Electrical) was published.

10. Although we had directed the KMC authority to state the particulars of

the five vacancies including the categories in which such vacancies arose,

during the validity of the supplementary panel being No. 69MSC/1D-

18/2023 dated 07.03.2015 that is up to 06.03.2016, KMC authority did not

divulge the particulars of five vacancies which were referred to by the Joint

Municipal Commissioner (personnel) in his letter dated 23.11.2016. Without

disclosing the particulars of the five vacancies as referred to in the said letter

dated 23.11.2016, the KMC authority again repeated the names and

categories of left out candidates as per supplementary panel. Therefore, the

KMC has failed to comply with the direction of this Court in true letters and

spirit for reasons best known to it.

11. In view of such non-compliance on the part of the KMC, the main

issue, which is required to be adjudicated now is that whether any legal

right for appointment in the relevant posts accrued to the present appellants

during the validity period of the panel or not. To adjudicate the same, this

Court needs to scrutinize the available materials on record.

12. The first and foremost point is whether the supplementary panel is to

be treated as merely a waiting list vis-a-vis the main panel or the same is

more than a waiting list.

13. Learned Counsel of the KMC tried to impress upon this court that the

supplementary list is a waiting list and nothing more than that. He

eloquently submitted that during validity of the panel as two general

candidates did not join, the KMC appointed two general candidates from

supplementary panel and therefore the vacancies for the general candidates

in the main panel having been filled up, there is no scope for appointment of

the appellant no. 1 and 2, being the left out general candidates in the

supplementary panel. Moreover, as one vacancy in the OBC (A) category in

the main panel has already been filled up, the appellant no.3 being the left

out candidate from OBC (A) category has no legal right to be appointed in

the said category. Therefore, the sum and substance of such argument of

the Learned Counsel of the KMC is that he treats the supplementary panel

as a mere waiting list. However, in our view, such argument does not receive

support from the documents of KMC itself.

14. To understand why the supplementary list is more than a mere

waiting list, we have to know first about the vacancies advertised for main

panel and supplementary panel in the relevant advertisement, which may be

quoted as hereunder:-

Main Panel for Sub-Assistant Engineer (Electrical)

Category SAE (Electrical)

BC Category A- 1

Category B- 2

Total 15

The break up for the extended/supplementary panel will be in the following

order:-

Category                                 SAE (Electrical)














BC                                       Category A- 1

15. A cursory glance through the above vacancies would show that it is

next to impossible for any employer to know beforehand as to how many

candidates will qualify for the final merit list and how many persons will

remain in the waiting list. Had supplementary panel been a mere waiting

list, the KMC being the employer could not foresee that 4 candidates from

General Category would be in the waiting list or 1 candidate from SC

Category would be in the waiting list. A further scrutiny would reveal that

though no vacancy exists in the Main panel for ST Category, one vacancy is

available in the supplementary panel for ST Category. Similar is the

situation for General (PH) Category candidate also. Therefore, the

supplementary panel, as aforesaid, cannot be only a waiting list, as

essentially argued from the side of the KMC.

16. Moreover, the argument of KMC on this issue does not get support

from the letter dated 14.09.2013 by which KMC sent requisition to the

Municipal Service Commission. We have already quoted the excerpts of the

said letter in paragraph no. 4. But at the cost of repetition, we are

recollecting the above contents herein below for the sake of convenience.

"As regards preparation of panel beyond the number of declared vacancies, it needs to be mentioned that two sets of panels of selected candidates be prepared against the requisition from KMC. The first panel will be in respect of declared vacancies and the 2nd panel may be an additional panel or an extended one for the prospective vacancies that may occur from time to time during the validity of such panel i.e. within one year from the date of panel and it may be called supplementary panel."

The said requisition letter, therefore, shows that the proposed

supplementary panel will be treated as an additional panel or extended one

for the purpose of including prospective vacancies that may occur from time

to time but not beyond one year from the publication of such panel. Now,

the term 'prospective vacancies' as contemplated in the said letter dated

14.09.2013 of KMC, does not include only the vacancies which may occur in

respect of 15 vacancies in the Main panel, but it also includes other

vacancies in the post of SAE (Electrical) which may occur due to promotion,

death, etc. during the validity period of the panel.

17. A model employer knows that unless there are good schemes for

promotion, and new recruitment of Officers/Staff, there may occur a serious

scarcity of officers/ staff who are in fact, the spine and hands of such

employer, and to avoid such difficulties the model employer always tries to

mitigate the hurdles by promoting old officers/staff and recruiting new

officers/staff in their places. It is known to everybody that a recruitment

process is inevitably a long drawn process, and during pendency of a

recruitment process for some advertised posts, further vacancies may occur

in the said cadre due to promotion, resignation, death etc., of its

officers/staff, and to bridge such gap, if the employer makes provision in the

advertisement for recruitment to fill up prospective vacancies which may

occur during pendency of such recruitment process, the effort of the

employer should not be viewed with suspicion since it shows that the

employer is not willing to keep posts vacant till further recruitment process

is initiated which will also take some time to be completed. The relevant

letter dated 14.09.2013 shows that the KMC had consciously anticipated the

situation and preferred to make a supplementary panel that would take care

of future vacancies which may occur during the validity of the panel arising

out of the relevant recruitment process. Moreover, the words 'additional

panel or extended one' in the said letter dated 14.09.2013 further fortify the

plea that the panel prepared after the recruitment process may be extended

if further vacancies occur in the cadre during the validity period of the said

panel.

18. Now, the word 'prospective vacancies', in our opinion, includes not

only vacancies occurred in the main panel for not joining of some candidates

in the main panel, but it also includes vacancies which occur due to

promotion, resignation or death of any officer/staff of KMC in the relevant

cadre during the validity of the said panel, as per the scheme of the

recruitment laid down in the requisition letter dated 14.09.2013 of KMC.

19. Moreover, the letter dated 14.09.2013 as aforesaid shows that specific

number of anticipated vacancies in the General, General PH, SC, ST and

Backward categories has been mentioned. It is true that though the factum

of resignation or death cannot be anticipated, but the factum of promotion of

the concerned staff from lower post to higher post can be anticipated

beforehand since the KMC maintains gradation lists and accordingly the

notified vacancies in the supplementary panel in this case have been

anticipated by the KMC beforehand as the promotion of many staff from

lower rung to higher rung was due at the relevant point of time and that is

why the supplementary panel with specific number of vacancies and

category thereto was advertised in anticipation of such vacancies and that is

the only plausible reason for making such notified future vacancies in

anticipation. It was done with a view that the work of KMC so far as regards

electrical wing which deals with serious and emergent issues, is not

hampered due to scarcity of staff. This conclusion is also fortified by the

letter dated 23.11.2016 of Joint Municipal Commissioner (Personnel)

wherein it was stated that more than five vacancies occurred due to

promotion, resignation of the staff and the left out candidates in the

supplementary panel as aforesaid could be accommodated therein. This goes

to show that promotion of staff of the concerned cadre or rung took place

during the validity period of the panel in question. As such, the anticipation

of KMC for preparation of supplementary panel for future vacancies is

shown to have been well founded. Therefore, we are of the opinion that the

supplementary panel as aforesaid was notified to include prospective or

future vacancies and it was not only for the vacancies created for non-

joining of the selected candidates in the main panel, but also for the

vacancies which occurred due to promotion of the staff/officers during the

relevant period as aforesaid.

20. The learned counsel for the KMC has referred to case laws reported at

AIR 1995 SC 1088 (Madan Lal & Ors. Vs. State of Jammu and Kashmir

& Ors.), JT 2006 (3) SC 167 (State of UP & Ors. Vs. Rajkumar Sharma &

Ors.), AIR 1994 Supreme Court Cases 765 (State of Bihar & Anr. Vs.

Modan Mohan Singh & Ors.), AIR 1997 SC 2197 (Sanjay Bhattacharjee

Vs. Union of India & Ors.), 1992 AIR 1348 (Rakesh Ranjan Verma & Ors.

Vs. State of Bihar & Ors.), (2009) 5 Supreme Court Cases 368 (Bharat

Sanchar Nigam Limited & Ors. Vs. Abhishek Shukla & Anr.), (2005) 10

Supreme Court Cases 314 (Sheo Shyam & Ors. Vs. State of UP & Ors.),

(2010) 2 Supreme Court Cases 637 (Rakhi Ray & Ors. Vs. High Court of

Delhi & Ors.), AIR 1994 SC 736 (State of Bihar and Ors. Vs. The

Secretariat Assistant Successful Examinees Union 1986 & Ors.), (1999)

6 Supreme Court Cases 49 (Purushottam Vs. Chairman, M.S.E.B & Anr.),

(2013) 11 SCC 611 (Vijoy Kumar Pandey Vs. Arvind Kumar Rai & Ors.,)

2010 (6) SCC 777 (State of Orissa & Anr. Vs. Rajkishore Nanda & Ors.),

(1996) 2 SCC 7 (State of Bihar & Ors. Vs. Md. Kalimuddin & Ors.) and

one unreported judgment dated 14.02.2013 passed in APO No. 365 of

2011 CS No. 3 of 2005 by the Hon'ble High Court at Calcutta (the

Registrar General High Court, Calcutta, Vs. Minakshi Chakraborty), in

support of his contention that as the validity period of the panel has expired

long ago the prayer of the appellants cannot be entertained and further the

court cannot direct the KMC to appoint the appellants when the declared

vacancies have already been filled up.

21. To counter, the Learned Counsel for the appellants has referred to

case laws reported at (2009) 5 SCC 368 (Bharat Sanchar Nigam Limited &

Ors. Vs. Abhishek Shukla & Anr.), (2005) 10 SCC 314 (Sheo Shyam &

Ors. Vs. State of UP & Ors.) and also one unreported decision of this Court

passed in W.P. No. 18081 (W) of 2017 in the year 2017 in support of his

contention that the case laws referred to by the learned Counsel of the KMC

are not applicable to the factual matrix of the present case.

22. Needless to mention, each case has its own texture, and the factual

differences are material factors which may ultimately pave the way for

looking at a particular case from a different angle. The present case in our

hand is one of such cases. The scheme of supplementary panel for future

vacancies along with the main panel of clear vacancies has given this case a

unique character.

23. Therefore, it is seen from the case laws reported at Rajkishore Nanda

(supra), Rakhi Ray & Ors. (supra), Bharat Nigam Sanchar Ltd & Ors.

(supra), Sanjay Bhattacharjee (supra), State of Bihar & Anr. (supra),

Madan Lal & Ors. (supra), Rakesh Ranjan Verma & Ors. (supra) that they

deal with the notified vacancies of particular posts, and as the notified

vacancies thereat were filled up, the prayers for appointment of the

candidates concerned were not accepted. In our case, the position is

different since 08 number of future vacancies were notified and advertised

along with 15 clear vacancies. The scheme of the KMC was to fill up the

prospective 8 vacancies which could occur within the one year of the panel,

and the materials on record particularly the letter dated 23.11.2016 of Joint

Municipal Commissioner (Personnel) showed that such vacancies did occur

during the validity period of the panel. Therefore, the case of the appellants

is with regard to 08 notified future vacancies which were declared and

advertised by the KMC itself by proposing to make a supplementary panel of

successful candidates for the purpose of using the same for future

vacancies. The said case laws, therefore, in our view, do not improve the

position of the KMC.

24. It is also the contention of the KMC that the panel expired long ago,

and therefore, the prayer of the appellants is not sustainable. However from

the discussion as recorded in the foregoing paragraphs, it transpires that the

appellants have been able to show that the supplementary panel is not only

for the vacancies occurring in the main panel but also for future vacancies

arising during the validity period of the panel. Moreover, the appellants have

been further able to show on the strength of materials on record that during

the validity period of the panel, more than five vacancies occurred in which

the appellants could have been accommodated. Therefore, it goes to show

that the right of appointment to the vacancies arising out of promotion etc.

accrued in favour of the appellants before the expiry of validity period of the

panel. But the KMC was unable to take any appropriate steps as according

to KMC, the Model Code of Conduct for General Election 2016 came into

force. It was not the fault of the appellants. As the right to appointment in

the relevant vacancies accrued to the appellants during the validity period of

the panel, the same cannot be abrogated for inaction of the KMC, or merely

on the ground that the Model Code of Conduct was in force at that time

which consumed the period of validity of the panel. The KMC has utterly

failed to show that there was any fault on the part of the appellants for

which the process of appointment of the appellants could not be fructified.

The case law of Sheo Shyam and Ors. (supra) has no application in this

case since in our case, the Rule regarding period of validity is specifically

mentioned in the relevant advertisement. The case law reported at JT 2006

(3) SC 167 is also not applicable since it is nobody's case that the KMC has

committed any mistake but, on the other hand, the allegation is that the

KMC denied the right of the appellants to be appointed in the relevant post

which arose out of notified and declared future vacancies in the relevant

post of the KMC. Moreover in the unreported decision in APO 365 of 2011,

the Registrar General, High Court (supra) it is held that " it is true that

there is no inviolable rule that a select list would remain in force for one

year. It is for the employer to decide the period......". In our case, the

employer KMC had already decided that the validity period of the panel

would be one year, and the appellants have been able to show that right to

be appointed in the vacancies accrued upon them before expiry of such

panel.

25. The case law reported at State of Bihar and Ors. (supra) has laid

down that empanelment does not create a vested right to be appointed

unless relevant service Rule says to the contrary. In Vijoy Kumar Pandey

(supra), Hon'ble Apex Court quoted the observation of the case law reported

at (1991) 3 SCC 47 (Shankarsan Dash V. Union of India) in para 14. The

essence of such quotation is that unless the relevant recruitment rules so

indicate, the authority is under no legal duty to fill up all or any of the

vacancies. However, it does not mean that the authority has the licence of

acting in an arbitrary manner. The decision not to fill up the vacancies has

to be taken bonafide and for valid and justifiable reason.

26. In fact the above two decisions support the cause of the appellants

herein. The relevant scheme of recruitment of SAE (Electrical) as found from

the materials on record was that the KMC itself requisitioned two lists of

successful candidates one for 15 clear vacancies and the other for notified

08 future vacancies. The scheme further suggests that the first panel will be

in respect of declared vacancies and the second panel may be an additional

panel or an extended one for the purpose of filling up the prospective

vacancies that may occur from time to time during the validity of such

panel, that is, within one year from the date of panel. Therefore, the scheme

of recruitment policy of KMC at that point of time propelled the preparation

of a panel for successful candidates for prospective vacancies which may

occur within a period of one year, along with the main panel. Therefore, the

above case laws professed that if the relevant recruitment rules indicate

certain action is to be taken in certain direction, then the same can be

adopted. In our case as the recruitment policy of the KMC has allowed

future vacancies to be notified and a panel of successful candidates can be

prepared for filling up such prospective vacancies within one year from the

publication of the panel, we do think that the appellants have been able to

show that their rights of appointment in the relevant vacancies have been

infringed by the KMC by not appointing them in spite of having recruitment

policy of KMC in their favour and also in spite of occurring of future

vacancies in the relevant post as per the relevant recruitment policy of the

KMC.

27. The case law reported at (1996) 2 SCC 7 (State of Bihar & Ors. Vs.

Md. Kalimuddin & Ors.) is not applicable in our case since in that case

there was an acceptable reason for not appointing the empanelled

candidates. But in our case the right to appointment of the appellants was

denied on the ground that as the Model Code of Conduct 2016 was in force

at the relevant point of time the validity period of the panel expired. In our

view, such a reason cannot abrogate the right of the appellants to be

appointed in the posts which were notified as future vacancies in the

relevant advertisement of the KMC.

28. Considering all the aspects of the matter we are of the considered view

that there is no fault on the part of the appellants to whom the reason for

expiry of the validity period of the panel can be attributed. As the scheme of

the recruitment policy of the KMC notified future vacancies by way of the

relevant advertisement and such vacancies actually occurred during the

validity period of the panel, three appellants being two general candidates

and one OBC - A candidate respectively are entitled to be appointed as per

the relevant advertisement in question. Accordingly, we direct Municipal

Commissioner, KMC to consider the case of appointment of the present

appellants in the respective posts in the right earnest in the light of this

judgment and take appropriate steps to appoint them within two months

from the date.

29. The impugned judgment and order passed on November 8, 2017 in

W.P. No. 12178 (W) of 2017 is hereby set aside. The instant appeal is

allowed. No order as to costs. The connected application is also disposed of.

30. Urgent certified website copies of this judgment, if applied for, be

supplied to the parties subject to compliance with all the requisite

formalities.

I agree.

(ARIJIT BANERJEE, J.)

(APURBA SINHA RAY, J.)