Patna High Court
Gaurav Kumar vs The State Of Bihar on 16 March, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10174 of 2022
======================================================
Gaurav Kumar S/o- Sankar Saw Address- Vidyapith Chowk, P.O.- Lakhisarai,
District- Lakhisarai, Bihar, Pin- 811311 at present residing at C/o - Sankar
Saw, 21 D Fourth Floor, Skylark Apartment, Site- 2, Ghazipur, East Delhi-
110096.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Old
Secretariat, Patna, Bihar.
2. The Additional Chief Secretary, Road Construction Department,
Government of Bihar, Patna.
3. The Secretary, Public Health Engineering Department, Government of
Bihar, Patna.
4. The Secretary, Water Resources Department, Government of Bihar, Patna.
5. The Secretary, Building Construction Department, Government of Bihar,
Patna.
6. The Secretary, Rural Works Department, Government of Bihar, Patna.
7. The Secretary, Planning and Development Department, Government of
Bihar, Patna.
8. The Principal Secretary, Minor Water Resources Department, Government
of Bihar, Patna.
9. The Bihar Public Service Commission through its Chairman, Patna.
10. The Secretary, Bihar Public Service Commission, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Kumar Brijnandan, Advocate
Mr. Amit Pandey, Advocate
Mr. Rakesh Kumar, Advocate
For the State : Mr. Uday Shankar Sharan Singh ( GP- 19 )
For the B.P.S.C. : Mr. Sanjay Pandey
Mr. Nishant Kumar, Jha
======================================================
CORAM: HONOURABLE MR. JUSTICE RITESH KUMAR
CAV JUDGMENT
Date :16-03-2026
Heard the parties.
2. The present writ petition has been filed for
commanding the respondents to appoint the petitioner on the
post of Assistant Engineer ( Civil) under EBC category on the
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advertised posts of Advertisement No. 02/2017, remaining
vacant due to non-joining of at least 17 finally selection
candidates of EBC category, in as much as the petitioner herein
belongs to EBC category and he has obtained 434 marks in the
final examination (written examination + interview) whereas the
cut off marks of EBC category candidates for the said
Advertisement was 435 marks only and as per the RTI
information supplied by the Bihar Public Service Commission,
the petitioner herein has been placed at 9th merit posts (Merit
Serial No. 1508) below the last selected candidate under the
EBC male Category.
3. The learned counsel for the petitioner submits
that the Bihar Service Public Commission issued Advertisement
No. 02/11 for recruitment on the posts of Assistant Engineer
( Civil) in various Works Department under the State of Bihar,
final result of which was published on 27.05.2013 and thereafter
no advertisement was issued for recruitment on the posts of
Assistant Engineer ( Civil) till 2017. Advertisement No. 02/2017
was issued by the Bihar Public Service Commission
(hereinafter referred to as BPSC) by notice dated 03.03.2017,
for filling up 963 vacant posts of Assistant Engineer (Civil) in
various Works Department of the Government of Bihar.
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Subsequently, vide notice dated 09.11.2017 the aforementioned
advertisement was re-advertised by the B.P.S.C. and in the re-
advertisement, the total number of posts were increased to 1237.
The petitioner who belongs to the EBC category duly submitted
his application form and participated in all the stages of
recruitment process.
4. It has further been submitted by the learned
counsel for the petitioner that the Bihar Public Service
Commission published the result of the preliminary examination
on 30.01.2019 and vide notice dated 06.02.2019 the successful
candidates were invited to fill up the application forms for
appearing in the Mains/Written Examination. Subsequently,
Advertisement No. 01 of 2019 was issued by the BPSC by
notice dated 08.03.2019 for filling up 31 posts of Assistant
Engineer ( Civil) in the Building Construction Department and
also for filling up 83 vacant posts of Assistant Engineer ( Civil)
in Water Resources Department of the Government of Bihar.
Similarly, Advertisement No. 03/2019 was issued by the BPSC
for filling up 18 vacant posts of Assistant Engineer (Civil) in
Minor Water Resources Department of the Government of Bihar.
In the meantime, the result of the Mains /Written examination
for recruitment of Assistant Engineer (Civil) in relation to
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Advertisement No. 02/2017 was published on 24.01.2021. Vide
notice dated 20.02.2021, the BPSC issued correction letter
regarding the details of vacancies available in the 7 Works
Department of the Government of Bihar and it was indicated
that the total number of vacancies are 1257 out of which 323
posts are reserved for female candidates.
5. It has further been submitted by the learned
counsel for the petitioner that on the basis of the marks obtained
in Mains/Written Examination and Interview, the final result of
Assistant Engineer (Civil) was published on 14.07.2021, which
was subsequently revised on 24.08.2021, on account of some
Court cases and total number of 1241 candidates were declared
successful. The petitioner filed complaint before the appropriate
authority of the General Administration Department,
Government of Bihar, Patna on 19.08.2021, informing him that
many of the finally selected candidates in relation to
Advertisement 02/2017 are already serving in other Departments
or Institutions of Central as well as State Governments,
therefore, these seats would not be filled up. A request was made
that BPSC be directed to release waiting list as soon as possible,
so that the vacancies thus created due to non-joining of the
finally selected candidates of Advertisement No. 02/2017, could
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be filled up only from the merit list of the said advertisement.
6. The learned counsel for the petitioner further
submits that some of candidates who were not in the final select
list, approached the National Commission for Backward
Classes, regarding Advertisement No. 02/2017 and some other
advertisements issued by the BPSC and after hearing the parties
the National Commission for Backward Classes vide its
reasoned order dated 07.09.2021 directed the BPSC/State of
Bihar to publish the waiting list so that the vacancies arising out
of non-joining of the selected candidates could be filled up from
the same merit list. It has been contended that the petitioner has
obtained 434 marks in the final examination whereas the cut off
marks for EBC category candidates was 435 and the petitionr
has been placed at 9th in the merit position, below the last
selected candidate under the EBC male category.
7. Finally, selected candidates were allocated to the
various Works Department of the Government of Bihar by
Memo No. 6252(S) dated 31.12.2021 issued by the Department
of Road Construction, Government of Bihar. The total number
of candidates who were allocated the departments were 1245
and out of above mentioned 1245 total 42 candidates did not
present themselves for document verification and 111 candidates
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did not join after document verification, therefore, 153 seats
remained vacant with regard to Advertisement no. 02/2017, out
of which at least 17 posts of Assistant Engineer (Civil) is said to
have remained vacant under the EBC category.
8. It has further been submitted by the learned
counsel for the petitioner that the petitioner is entitled to be
appointed as Assistant Engineer (Civil) under the EBC category
on the advertised posts of Advertisement No. 02/2017, which
remained vacant due to non-joining of at least 17 finally selected
candidates under the EBC category. In view of the fact that he
has obtained 434 marks in the final examination, which is just
one mark lower than the cut off marks for EBC category
candidates and as per the RTI information, he has been placed at
9th in the merit position, below the last selected candidate under
the EBC male category, therefore, not appointing the petitioner
on the above mentioned vacant posts would be violative of
principles enshrined under Article 14 and 16 of the Constitution
of India.
9. It has further been submitted that many selected
candidates of Advertisement No. 02/2017 did not turn up for
document verification, many other selected candidates did not
join their allocated Work Department and many will not be
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joining their allocated Departments since the instant recruitment
which lasted almost 4-5 years, therefore, many of the selected
candidates may have joined elsewhere and other government
services, therefore, it is reasonable and proper that the advertised
post remaining vacant due to non-joining of the finally selected
candidates be filled up only from the merit list, so prepared for
Advertisement No. 02/2017. It has further been submitted that in
many departments of the State Government the appointments on
the advertised posts lying vacant due to non-joining of the
finally selected candidates, are consistently being made from the
wait listed candidates and the State Government cannot
discriminate while making recruitment to various services and
adopt one set of yardstick for making recruitment to Assistant
Engineer (Civil) and another set of yardstick for making
recruitment to the other services, therefore, the State
Government is under constitutional obligation to fill up the
advertised posts, remaining vacant due to non-joining of the
finally selected candidates from the candidates lower in the
merit list of the said advertisement.
10. The learned counsel for the petitioner submits
that due to orders passed by a Co-ordinate Bench of this Court
result of 124 candidates of unreserved category, in relation to
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Advertisement No. 02/2017 were published by the BPSC on
03.09.2025
and the rest of the vacancies caused due to non-
joining of finally selected candidates of Advertisement No.
02/2017 were shown as backlog vacancies in Advertisement No.
29 of 2025 dated 28.04.2025 issued by the BPSC. He further
submits that from Advertisement No. 29 of 2025, it is clear and
admitted position that at least 15 EBC seats of Advertisement
No. 02/2017 remained vacant due to non-joining of finally
selected EBC candidates. He further submits that the
Advertisement No. 02/2017 itself provides that how the merit
list shall be prepared. Clause 2 of the advertisement provides
that written (Mains) examination shall be conducted wherein a
candidates must secure in minimum of 30% marks in Hindi and
English and in the remaining four papers 34% marks in
aggregate which is the minimum qualifying marks for appearing
in the interview, however, there is no minimum qualifying marks
in the interview. The final merit list shall be prepared by adding
the marks obtained at viva-voice test and the marks obtained in
the written examination. The petitioner who is a EBC (Male
Candidate) and has obtained 434 marks in the final examination,
which the more than the qualifying marks as prescribed in the
advertisement, therefore, he is eligible/ suitable candidate for
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being appointed in terms of Advertisement No. 02/2017.
11. It has further been submitted by the learned
counsel for the petitioner that from the information supplied by
the BPSC under RTI Act, it transpires that the petitioner is an
eligible/suitable/qualified candidate, placed at merit Serial No.
1508 and standing at 9th position after the last selected candidate
of EBC Male Category and the list of candidates provided by
the BPSC contains the names of only those candidates who
have obtained more than the qualifying marks, as prescribed in
the advertisement and it does not mention the names of the
candidate/candidates who failed to secure even the minimum
qualifying marks, as prescribed in the advertisement. Even the
respondents do not deny or dispute that EBC Male Category
seats remained vacant due to non-joining of the finally selected
EBC candidates and the only ground taken is that in view of
Government Circular and Resolution Dated 16.07.2007 issued
by the Department of personnel and Administrative Reforms,
Government of Bihar, if any candidate fails to join post then the
said post will be carried forward to the next recruitment year
and the post not filled up on account of non-joining of the
selected candidate will be added in the next requisition for
recruitment. Even no waiting list has been prepared and issued
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with regard to the advertisement in question. The petitioner has
also filed an Interlocutory Application bearing I.A. No. 01 of
2023 for setting aside clause 16 of the circular of the State
Government dated 16.07.2007 issued by the Department of
Personal and Administrative Reforms, Government of Bihar
since the same is not in consonance with the Bihar Engineering
Service Recruitment Rules, 1983. The learned counsel for the
petitioner submits that clause 16 of the Government circular and
resolution dated 16.07.2007, which is merely in the nature be
executive instructions, cannot override section 4 (b) of the Bihar
Reservation of vacancies in the post and services ( For
Scheduled Castes and Scheduled Tribes and other Backwards
Classes) Act, 1991 and the Bihar Engineering Services Class II
Recruitment Rules made by the Governor in exercise of the
powers conferred by the proviso to Article 309 of the
constitution of India.
12. The learned counsel for the petitioner further
submits that though the petitioner invoked the jurisdiction of this
Court promptly without wasting any time, but by the time the
present writ petition came to be finally heard, the State
Government, despite pendency of the present writ petition and
in complete violation of the mandate of Section 4(b) of the Bihar
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Reservation of vacancies in posts and services (Scheduled
Castes and Scheduled Tribes) and other Backward Classes Act,
1991, decided to carry forward the vacancies caused due to non-
joining of the finally selected EBC candidates, to the next
recruitment exercise i.e. Advertisement No. 29 of 2025, showing
them as backlog vacancies of Advertisement No. 17 of 2017, in
which the final result has not been published by the BPSC and
such no third party right have crystallized in favour of the
applicants/candidates of Advertisement No. 29 / 2025. He
further submits that Clause 16 of the Government Circular and
Resolution dated 16.07.2007 issued by the Department of
Personnal and Administrative Reforms, Government of Bihar,
Patna has no applicability, in so far as recruitment to the post of
Assistant Engineer (Civil) is concerned, which is governed by
the Bihar Engineering Services Class II recruitment rules made
by the Governor in exercise of the powers conferred by the
proviso to Article 309 of the Constitution of India.
13. It has been submitted that a combined reading
of Rule 11(a), 12(a) and 12(b) of the Bihar Engineering Service
Class II Recruitment Rules notified on 16.05.1990 makes it
amply clear that the preparation of waiting list is inherent or
implicit in the very scheme of the things of the Rules. The word
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“the list” appearing in 11(a) and 12(a) of the Rules makes its
crystal clear that the list to be submitted to the Governor is not
restricted only to the recommended candidates, rather it included
all the candidates who appeared in the viva voice test/ interview.
Further, there is no provision in the Rules that vacancies caused
due to non-joining of the finally selected candidates shall be
carried forward to the next recruitment exercise and there is no
statutory embargo to fill up the vacancies created due to non-
joining of the finally selected candidate, rather, the Rule
mandates the State to fill up all the seats from the candidates of
the same examination who are lower in the merit list. Similarly,
Section 4(b) of the Bihar Reservation of vacancies in posts and
services (for Scheduled Caste and Scheduled Tribes and other
Backward Classes) Act, 1991 makes it amply clear, that if the
eligible/suitable candidates of EBC category are available, then
vacancies caused due to non-joining of the finally selected EBC
Candidates shall be filled up from the aforesaid eligible/suitable
candidates of EBC category of the same examination.
14. It has been thus submitted that the condition
precedent for carrying forward the vacancies caused due to non-
joining of the finally selected EBC category candidates to the
next recruitment exercise as backlog vacancies is “non-
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availability of suitable candidates”. It has been submitted that in
the present case the petitioner is eligible/suitable candidates
having obtained 434 marks in final examination, which is more
than the qualifying marks as prescribed in the advertisement,
therefore, the very Act of carrying forward 15 EBC seats to the
next recruitment exercise and showing them as backlog
vacancies is illegal and void, for being in direct contravention of
Section 4(b) of the Act, 1991. Clause 16 of the Government
Circular and Resolution dated 16.07.2007 issued by the
Department of personnel and Administrative Reforms,
Government of Bihar is directly in teeth of various judicial
pronouncements, wherein it has been categorically held that
vacancies caused due to non-joining of the finally selected
candidates have to be filled up from the merit list of the same
examination and the decision not to fill the up vacancies so
caused has to be taken bona fide for appropriate reasons on
sound, rational and conscious application of mind. The carry
forward rule in incorporated in the Clause 16 of the Government
Circular dated 16.07.2007 is discretionary and is thus hit by
Article 14 and 16 of the Constitution of India, since while
making recruitment to various services, the State Government
cannot unjustly discriminate and adopt one set of yardstick for
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making recruitment to the post of Assistant Engineers and
different set up of yardstick for making recruitment in other
services. It has further been submitted that carry forward rule
incorporated in Clause 16 of the Government Circular dated
16.07.2007 is unreasonable and not in public interest. It has
further been submitted that the Rule 16 of the Resolution dated
16.07.2007 is merely in the nature of executive instruction and
the law is well settled that executive instructions cannot override
the statutory Rules and the Act/ statute, thus Section 4(b) of the
Act, 1991 and Bihar Engineering Service Class II recruitment
rules made by the Governor in exercise of powers conferred by
the proviso to Article 309 of the Constitution shall prevail over
Clause 16 of the Government Circular dated 16.07.2007.
15. The learned counsel for the petitioner finally
submits that it is clear that showing 15 seats under EBC, which
remained vacant due to non-joining of the finally selected
candidates as backlog vacancies in Advertisement No. 29 of
2025, during pendency of the present writ petition, is bad in law
and therefore, since the final result in relation to Advertisement
No. 29 of 2025 has not been published by the BPSC, no third
party rights have crystallized and since the petitioner invoked
the jurisdiction of this Court promptly without wasting any time,
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therefore, his case deserves to be considered on merit and it
deserves to be appointed.
16. Per contra, the learned counsel appearing on
behalf of the BPSC submits that the Commission on the
requisition received from the concerned department, published
Advertisement No. 02/2017, inviting applications for
appointment on 963 posts of Assistant Engineering (Civil) under
the different Departments of Government of Bihar, Patna
however, in view of order dated 08.08.2017 passed in C.W.J.C.
No. 5799 of 2017, the said advertisement was amended on
09.11.2017, enhancing the posts to 1237 and the last date was
fixed as 06.12.2017. The Commission published a corrigendum
on 26.07.2018, wherein the number of posts was enhanced to
1284. It has further been contended that pursuant to the said
advertisement, petitioner applied under the EBC quota and after
preliminary test altogether 17865 candidates, including the
petitioner appeared in the said test. The result of the same was
published in which 10106 candidates including the petitioner
were declared successful, thereafter the commission published
advertisement for Written (Mains) Examination which was held
from 27.03.2019 to 31.03.2019. The result was published on
24.01.2021 in which total 3107 candidates were declared
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successful, including the petitioner for interview. The interview
was conducted from 22.02.2021 to 19.04.2021, but the
Commission again published a corrigendum on 20.02.2021,
wherein the number of posts were reduced to 1257. The
petitioner was called for interview and the final result was
published by the Commission on 14.07.202, in which 1240
were declared successful, but the petitioner was not declared
successful, since he has secured 434 marks, which was the less
than the cut off marks of 435 in his reservation category i.e.
EBC category. Total 1240 candidates were declared successful,
out of 1257 vacancies and 17 vacancies of the unreserved
category was kept reserved, on account of non-availability of
handicapped candidates in view of Memo No. 962 dated
22.01.2022 of the General Administration Department. The
commission published revised final result dated 24.08.2021, in
view of order passed by the this Court in C.W.J.C. No.
13107/2021 and another analogous matters, thereafter the
commission sent its recommendation of the successful
candidates to the Nodal Department on 25.08.2021. Thereafter,
the appointments made and the selection process came to an
end.
17. It has further been submitted that Clause 16 of
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the Resolution contained in Memo No. 2374 dated 16.07.2007
of the Personnel Administrative Reforms Department,
Government of Bihar envisages that due to non-joining of the
any candidate or candidates within the time limit or due to other
reasons, if the vacancies are not filled up, then such vacancies
shall be carried forward for the next requisition, which is
reiteration of Clause-xiv of the Circular dated 17.06.1997 issued
by the Department of Personnel, Government of Bihar which
stipulates the vacancies remaining unfilled due to candidates
non-joining the post or for any other reason shall be carried
forward to the next year. It has further been contended that the
Commission after publication of the Advertisement No.
02/2017, had published Advertisement no. 01/2019, 32/2024 and
29/2025, for appointment to the post of Assistant Engineering
(Civil) and the Commission after completion of the selection
process under Advertisement No. 02/2017 also completed the
selection process under Advertisement No. 01 of 2019 and
Advertisement No. 32/2024 and the appointments have already
been made. The Commission under Advertisement No. 29/2025
has conducted the written examination and the process is
underway.
18. It has been further submitted by the learned
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counsel for the B.P.S.C. that it is well settled, that whenever
selected candidates does not join, the resultant vacancies shall
be treated as fresh vacancy and the aforesaid stand and decision
of the Commission has been affirmed by this Court while
dealing with similar issues vide order dated 06.12.2021 passed
in C.W.J.C. No. 10217 of 2021 and order dated 23.09.2019
passed in C.W.J.C. No. 21461 of 2018. The order dated
23.09.2019 passed in C.W.J.C. No. 21461 of 2018 has been
affirmed by a Hon’ble Division Bench of this Court vide order
dated 27.02.2022 passed in L.P.A. No. 1460 of 2019. Further the
Hon’ble Supreme Court in the case of Orissa Court & Ors. Vs.
Rajkishore Nanda & Ors. reported in 2010 (6) SCC 777 has
held that the select list cannot be treated as a perpetual reservoir
for purposes of appointment, that vacancy can be filled up
taking the names from that list as and when it is so required. It is
settled legal proposition that no relief can be granted to the
candidate, if he approaches the Court after expiry of the select
list. If the selection process is over, the select list has expired
and appointments have been made, then no relief can be granted
by the Court at a belated stage. Lastly, it has been submitted that
the Commission has acted as per the rules and regulations
formulated by the concerned department and there is no
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infirmity in the same.
19. The learned counsel for the State-respondents
submitted that as per Clause 16 of the Government Resolution
dated 15.07.2007, it has been provided that if any candidate fails
to join the post, then the said post will be carried forward to the
next recruitment cycle. Further it has been submitted that in the
supplementary affidavit filed by the petitioner, he has admitted
that a fresh Advertisement has been published vide
Advertisement No. 29/2025 and all the remaining posts of the
said advertisement has been taken into consideration in the
Advertisement No. 29/2025.
20. The learned counsel for the petitioner relies on a
judgment of the Hon’ble Supreme Court of India reported in
1997 (8) SCC 488 Surinder Singh and Ors Vs. State of Punjab
and Ors. Wherein in paragraph No. 14 and 15 the Hon’ble
Supreme Court has held as follows:-
“14.The High Court in the impugned judgment
had noted a decision of this Court in Gujarat State
Dy. Executive Engineers’ Assn. v. State of Gujarat 2
and relying on that had quashed the appointment
of the teachers over and above that advertisement.
We may refer to paras 8 and 9 of the judgment
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“8. Coming to the next issue, the
first question is what is a waiting
list?; can it be treated as a source of
recruitment from which candidates
may be drawn as and when
necessary?; and lastly how long can it
operate? These are some important
questions which do arise as a result of
direction issued by the High Court. A
waiting list prepared in service
matters by the competent authority is
a list of eligible and qualified
candidates who in order of merit are
placed below the last selected
candidate. How it should operate and
what is its nature may be governed by
the rules. Usually it is linked with the
selection or examination for which it
is prepared. For instance, if an
examination is held say for selecting
10 candidates for 1990 and the
competent authority prepares a
waiting list then it is in respect of
those 10 seats only for which selection
or competition was held. Reason for it
is that whenever selection is held,
except where it is for single post, it is
normally held by taking into account
not only the number of vacancies
existing on the date when
advertisement is issued or
applications are invited but even those
which are likely to arise in future
within one year or so due to
retirement etc. It is more so where
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Commission. Such lists are prepared
either under the rules or even
otherwise mainly to ensure that the
working in the office does not suffer if
the selected candidates do not join for
one or the other reason or the next
selection or examination is not held
soon. A candidate in the waiting list in
the order of merit has a right to claim
that he may be appointed if one or the
other selected candidate does not join.
But once the selected candidates join
and no vacancy arises due to
resignation etc. or for any other
reason within the period the list is to
operate under the rules or within
reasonable period where no specific
period is provided then the candidate
from the waiting list has no right to
claim appointment to any future
vacancy which may arise unless the
selection was held for it. He has no
vested right except to the limited
extent, indicated above, or when the
appointing authority acts arbitrarily
and makes appointment from the
waiting list by picking and choosing
for extraneous reasons.
9. A waiting list prepared in an
examination conducted by the
Commission does not furnish a source
of recruitment. It is operative only for
the contingency that if any of the
selected candidates does not join then
the person from the waiting list may
be pushed up and be appointed in the
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extreme exigency the Government may
as a matter of policy decision pick up
persons in order of merit from the
waiting list. But the view taken by the
High Court that since the vacancies
have not been worked out properly,
therefore, the candidates from the
waiting list were liable to be
appointed does not appear to be
sound. This practice, may result in
depriving those candidates who
become eligible for competing for the
vacancies available in future. If the
waiting list in one examination was to
operate as an infinite stock for
appointments, there is a danger that
the State Government may resort to
the device of not holding an
examination for years together and
pick up candidates from the waiting
list as and when required. The
constitutional discipline requires that
this Court should not permit such
improper exercise of power which may
result in creating a vested interest and
perpetrate waiting list for the
candidates of one examination at the
cost of entire set of fresh candidates
either from the open or even from
service.”
“15.Prem Singh case1 was decided on the facts
of that case and those facts do not hold good in
the present case. In the case of Gujarat State Dy.
Executive Engineers’ Assn.2 this Court has
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and how it is to operate in service jurisprudence.
It cannot be used as a perennial source of
recruitment filling up the vacancies not
advertised. The Court also did not approve the
view of the High Court that since vacancies had
not been worked out properly, therefore, the
candidates from the waiting list were liable to be
appointed. Candidates in the waiting list have no
vested right to be appointed except to the limited
extent that when a candidate selected against the
existing vacancy does not join for some reason
and the waiting list is still operative.”
21. The learned counsel for the petitioner further
relies on a judgment of the Hon’ble Supreme Court of India
reported in 1991 (3) SCC 47 Shankarsan Dash Vs. Union of
India wherein paragraph No. 07 the Hon’ble Supreme Court has
held as follows:-
“7. It is not correct to say that if a number of
vacancies are notified for appointment and
adequate number of candidates are found fit, the
successful candidates acquire an indefeasible
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
24/55right to be appointed which cannot be
legitimately denied. Ordinarily the notification
merely amounts to an invitation to qualified
candidates to apply for recruitment and on their
selection they do not acquire any right to the
post. Unless the relevant recruitment rules so
indicate, the State is under no legal duty to fill up
all or any of the vacancies. However, it does not
mean that the State has the licence of acting in
an arbitrary manner. The decision not to fill up
the vacancies has to be taken bona fide for
appropriate reasons. And if the vacancies or any
of them are filled up, the State is bound to
respect the comparative merit of the candidates,
as reflected at the recruitment test, and no
discrimination can be permitted. This correct
position has been consistently followed by this
Court, and we do not find any discordant note in
the decisions in State of Haryana v. Subash
Chander Marwaha1 ,Neelima Shangla v. State of
Haryana2 or Jatendra Kumar v. State of
Punjab3.”
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
25/55
22. The learned counsel for the petitioner further
relies on a judgment of the Hon’ble Supreme Court of India in
Civil Appeal No. 4041 of 1989 A.V. Bhogeshwarudu Vs. A.P.
Public Service Commission and Ors. wherein in paragraph No.
02 the Hon’ble Supreme Court of India has held as follows:-
“2. We have perused the counter affidavit filed
on behalf of the State. Public Service
Commission pursuant to the direction of this
Court. It is not disputed that the preliminary
process of selection started in 1983 and was
completed in 1987 and the vacancies that arose
in between were also sought to be
accommodated from the recruitment list
prepared by the State Public Service
Commission. The only point which requires
consideration is as to whether if out of the names
recommended for appointment, some candidates
do not join, whether the vacancies remaining
unfilled should or should not be relied up from
out of the remaining successful candidates. We
see no justification in the stand of the State
Public Service Commission that instead of filling
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
26/55up the vacancies by recommending the
candidates next in order of merit out of the
present list why a fresh selection should be made.
We, accordingly, dispose of this appeal by
directing that the number of vacancies remaining
to be filled up on account of non-joining of
selected candidates for whatever reason shall be
out of the present list. This may be done within
ten weeks. No costs.”
23. The learned counsel for the petitioner further relies
on a judgment of the Hon’ble Supreme Court reported in 1996
(1) SCC 332 Jai Narain Ram Vs. State of U.P. and Ors
wherein in paragraph No. 7 the Hon’ble Supreme Court of India
has held as follows:-
“7. Right to seek appointment to a post under
Article 14 read with Articles 16(1) and (4) is a
constitutional right to equality. The State failed
to perform its constitutional duty to requisition
the PSC to recommend the next qualified persons
to the posts reserved for Scheduled Castes.
Under these circumstances, the denial of
appointment to the appellant and three others
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
27/55above him is unconstitutional. Therefore, the
respondents are not justified in denying the claim
of the appellant for the appointment to the above
post.”
24. Lastly, learned counsel for the petitioner relies on
a judgment of the Hon’ble Supreme Court of India reported in
2013 (12) SCC 171 Manoj Manu and another Vs. Union of
India and Ors. wherein in paragraphs No. 12 and 13 the
Hon’ble Supreme Court has held as follows:-
“12. It is, thus, manifest that a person whose
name is included in the select list, does not
acquire any right to be appointed. The
Government may decide not to fill up all the
vacancies for valid reasons. Such a decision on
the part of the Government not to fill up the
required/advertised vacancies should not be
arbitrary or unreasonable but must be based on
sound, rational and conscious application of
mind. Once it is found that the decision of the
Government is based on some valid reason, the
Court would not issue any mandamus to the
Government to fill up the vacancies.
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
28/55
13. In the present case, however, we find that
after UPSC sent the list of 184
persons/recommended by it to the Government
for appointment, six persons out of the said list
did not join. It is not a case where the
Government decided not to fill up further
vacancies. On the contrary DoPT sent
requisition to UPSC to send six names so that the
remaining vacancies are also filled up. This
shows that insofar as the Government is
concerned, it wanted to fill up all the notified
vacancies. The requisition dated 20-11-2009 in
this behalf was in consonance with its Clause
4(c) of OM dated 14-7-1967. Even when the
Government wanted to fill up the posts, UPSC
chose to forward names of three candidates.”
25. The learned counsel for the Bihar Public Service
Commission relies on a judgment of a Co-ordinate Bench of this
Court reported in 2011 (1) PLJR 283 Dr. Punam Kumari Vs.
State of Bihar and Ors wherein paragraphs No. 7 to 9 it has
been held has held as follows:-
“7. Similar is the view expressed by Hon’ble
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
29/55Supreme Court in the case of Public Service
Commission Uttaranchal v. Manta Bisht which is
reported in 2010 (3) PLJR 100 (SC). Learned
counsel for the BPSC has drawn the attention of
this Court to paragraph 6 of the said decision
which too is reproduced hereinbelow:
Para-6 : “It is settled legal proposition
that vacancies over and above the
number of vacancies advertised cannot
be filled up. Once all the vacancies are
filled up the selection process comes to
an end in case a selected candidate
after joining resigns or dies; the
vacancy, so occurred cannot be filled
up from the panel, which stood already
exhausted (Vide Rakhi Ray v. The High
Court of Delhi, AIR 2010 SC 932)”
8. In view of what has been observed by the
Hon’ble Supreme Court in similar and identical
matter, this Court has difficulty in entertaining
the application or request of the petitioner for
giving a direction upon the State or the Bihar
Public Service Commission to make a fresh
recommendation for her appointment on the so-
called vacancy which is still available by way
of non-joining, as has been asserted by the
petitioner in the supplementary affidavit.
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
30/55
Hon’ble Supreme Court has rightly held that
select list cannot be treated as reservoir for the
purpose of appointments. Taking cue from the
observation of Hon’ble Supreme Court this
Court can draw an analogy by stating that
appointments are not like vacant berths in a
train which ought to be filled up by passengers
from RAC or wait list categories, on a
perpetual basis. There is no merit in the claim
of the petitioner.
9. This writ application is dismissed.”
26. The learned counsel for the BPSC further relies on
a judgment passed by Co-ordinate Bench of this Court reported
in 2012 (2) PLJR 647 Subodh Kumar Vs. The State of Bihar
wherein in paragraphs No. 12, 14 to 16 and 19 to 23 it has been
held as follows:-
“12. We have noticed that thus far the
Government of Bihar has not passed any
enactment or framed statutory rules in exercise
of power conferred by Article 309 of the
Constitution. The selection process for
recruitment to various cadres under the State
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
31/55Government is governed by the
resolutions/circulars/instructions issued by the
Government from time to time. Undoubtedly,
Article 162 of the Constitution of India
empowers the State Government to issue
executive instructions in connection with the
matters in respect of which the Legislature of
the State has power to make laws. In absence of
any legislative enactment or the statutory rules,
such executive instructions partake the nature of
statutory rules; they are equally binding to the
State Government and the persons concerned.
But, we may note that it is not safe to exercise
the administrative powers of the State
Government through executive instructions for
interminably long period as it has tendency to
lead to discrimination, favouritism and
nepotism. The State of Bihar is now celebrating
its 100th Year and the Constitution of India is
past 60 years. It is high time that the State
Government should make appropriate statutory
provisions in the administrative matters also.
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
32/55We believe it would be a fitting tribute in the
Centenary Year of the State of Bihar to pass an
enactment or to frame statutory rules to govern
the recruitment process for various posts under
the State Government so as to ensure uniformity
and transparency in the recruitment process.
13. In absence of the statutory rules, as we have
recorded hereinabove, the executive instructions
would hold the field. In the present case, the
State of Bihar has, as early as on 17th June,
1977, issued a Memorandum containing
instructions in respect of the Combined
Competitive Examination conducted by the
Commission.
14. Paragraph 4 of the said Memorandum sets
out a time-schedule in respect of each stage of
the recruitment process. Clause (xiv) thereof
provides: “Vacancies remaining unfilled due to
candidates not joining the post or for any other
reason shall be carried forward to the next
year.” It appears that the State Government has
compiled the instructions issued from time to
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
33/55time in respect of the recruitment process in
Government Resolution dated 16th July, 2007.
The aforesaid instruction has been reiterated in
the said Resolution dated 16th July, 2007.
Clause (16) of Paragraph 3 of the said
Resolution reiterates that the vacancies
remaining unfilled due to non-joining of the
selected candidates shall be carried forward.
15. It is apparent that it is the consistent policy
of the State, at least since 1977, to carry
forward the vacancies which remain unfilled to
the next selection process.
16. Learned Advocate Mr. Mishra has submitted
that the abovereferred instructions issued in
1977 and reiterated in 2007 have never been
implemented. He has submitted that although
the said instructions provide for conducting
competitive examination every year regularly;
the Commission, for the reasons best known to
it, has failed to adhere to the said timeframe.
Evidently, the competitive examinations are not
conducted every year leading to the loss of
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
34/55valuable years of the candidates seeking
employment in the State service. He has further
submitted that the abovereferred Clause (xiv) of
the 1977 Memorandum or Clause (16) of the
2007 Resolution has never been implemented;
the same, therefore, cannot be pressed into
service to deny appointment to the petitioner.
19. In view of the binding instructions issued by
the State Government to carry forward the
unfilled vacancy to the next recruitment process,
the relief sought for by the petitioner cannot be
granted. Further, since the recruitment pursuant
to the Advertisement No. 4 of 2007, the
Commission has already commenced the next
recruitment process by holding the Preliminary
Test preceding the 53rd to 55th Common
Combined Competitive Examination.
20. The contention that a pane) once prepared
is operative till the next panel is prepared is
equally misconceived, contrary to the aforesaid
Memorandum of 1977 and the Resolution of
2007 and has no legs to stand on. Although
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
35/55neither the Memorandum of 1977 nor the
Resolution of 2007 specifically provides for how
long the panel shall be operative. However,
clause (xi) of the Memorandum of 1977
specifically provides that the recommendation
made by the Commission shall correspond to
the number of actual vacancies. The same reads
as under-
“(xi) The number of candidates
recommended by the Commission for
appointment out of the merit list thus
drawn up shall correspond to the
number of actual vacancies.”
21. In our opinion, the conjoint reading of the
abovereferred clauses (xi) and (xiv) of the
Memorandum of 1977 coupled with the settled
law that not more than advertised vacancies can
be filled in pursuant to a selection process,
establish by necessary implication that once the
Commission makes the recommendation for the
vacancies advertised, the merit list stands
exhausted. No further appointment can be made
from such merit list.
22. In our view the claim made by the petitioner
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
36/55
is misconceived. The relief prayed for by him
cannot be granted.
23. As we have recorded hereinabove, the State
of Bihar has not thought it necessary to exercise
its power to pass a legislative enactment or to
frame rules governing the recruitment process to
various cadres under the State Government. We
therefore direct that the State of Bihar will pass
due enactment or will frame the rules to govern
the recruitment process to various cadres under
the State Government which are now governed
by the executive fiats issued from time to time. It
will be most befitting if the State of Bihar passes
such enactment or frames the rules in the 101st
Year of its formation. This direction will be
complied with in letter and spirit latest by 22nd
March, 2013.”
27. The learned counsel for the BPSC further refers to
and a relies on a judgment dated 27.07.2022 passed by a
Division Bench of this Court in L.P.A. No. 1460 of 2019
wherein in paragraph Nos. 04 to 09 the Hon’ble Division Bench
has held as follows:-
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
37/55“04. Undisputedly, appellants were not
selected and their names were not reflected
in the final select list. The appellants noticed
that some of the candidates who were
selected and appointed have not reported for
duty due to various reasons thus number of
vacancies have occurred and those
vacancies were required to be filled up
among the next more merited candidates in
the respective category. Thus, a writ petition
was filed and it was dismissed on
23.09.2019. Hence, the present LPA.
05. Learned counsel for the appellants
vehemently contended that if the appointed
candidates failed to report for duty pursuant
to their selection and appointment in Class-
II gazetted post in that event vacancies
accrued due to non-reporting of selected
and appointed candidates were required to
be filled up while operating next more
merited candidates with reference to the
respective categories.
06. In support of the aforesaid contention
appellants counsel has not furnished any
material information like policy decision of
the State that if selected and appointed
candidate failed to report for duty that
vacancy is required to be filled up by next
more merited candidate with reference to the
respective category.
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
38/55
07. On the other hand, State Government
have evolved a policy in the year 1977 in
respect of non-reporting of a selected and
appointed candidate vacancy is required to
be carried forward to the next recruitment.
The same was reiterated while revising the
policy on 16.07.2007 also.
08. In the light of these facts and
circumstances, the petitioners have not
established their statutory right accrued in
favour of each of them that due to non-
filling up of appointed candidate vacancies,
their names to be considered.
09. Hon’ble Apex Court in the case of State
of Rajasthan vs. Kiran Meena and Anr.
reported in (2018) 12 SCC 503 held that
whenever selected candidate does not join,
the resultant vacancy shall be treated as
fresh vacancy. The law laid down in the
above decision is squarely applicable to the
case in hand, therefore, appellants have not
made out case.”
28. The learned counsel for the BPSC further relies
on a order dated 31.07.2023 passed in C.W.J.C. No. 15352 of
2021 by a Co-ordinate Bench of this Court, wherein the Co-
ordinate Bench in paragraph No. 11 it has been held has
follows:-
“11. Having regard to the submissions noted
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
39/55hereinabove and on finding that there is
specific stipulation in the resolution dated
16.07.2007 (Annexure- ‘K’ series) which
reads as under:-
“ककिससी उम्मसीदववार यवा उम्मसीदववाररों दवारवा कनिरर्धाकरत
समय-ससीमवा किक अन्दर ययोगदवानि निहहीं दकनि क यवा अन्य
किवारणरों सक करककतयरों भरसी निहहीं जवा सकिनिक किसी
कसस्थिकत ममें ऐससी करककतयरों अगलसी अकरयवाचनिवा किक कलए
अग्रणसीत किसी जवायमेंगसी।”
and taking note of the judgment of the
Hon’ble Supreme Court in the case of
Vallampati Sathish Babu (supra) of which
paragraph ’33’ reads as under:-
“33. Applying the law laid down by this
Court in the case of Suresh Prasad (supra) to
the facts of the case on hand and considering
the statutory provisions contained in Rule 16
of the Rules, 2012 read with the Guidelines,
we are of the view that the appellant cannot
claim appointment on the unfilled vacancy
being next
Note: Bihar State Electricity Board v. Suresh
Prasad, (2004) 2 SCC 681
below the candidate in the merit list. If the
submission on behalf of the appellant is
accepted, in that case, it will lead to
providing for preparation of a waiting list,
which otherwise is not permissible as per
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
40/55sub-rule (5) of Rule 16. If the same is
permitted, in that case, it will be directing
the respondents to act contrary to the
statutory provisions. Therefore, the High
Court has not committed any error in
refusing to appoint the appellant to the post
which remained unfilled due to one of the
selected candidates in the final selection list
not appearing for counselling. The impugned
judgment and order passed by the High
Court is absolutely in consonance with the
relevant statutory provisions with which we
agree.”,
this Court finds no merit in this writ
application. It is dismissed accordingly.”
29. After hearing the learned counsel for the parties
and after going through the pleadings on record, this Court finds
that the advertisement was issued for appointment to the post of
Assistant Engineer (Civil) in various Works Department under
the State of Bihar vide Advertisement No. 02/2017, which
finally culminated in selection of 1240 candidates and 17
vacancies of the unreserved category, which have been kept
reserved on account of non-availability of handicapped
candidates remained vacant, in view of Memo No. 962 dated
22.01.2021 of General Administration Department. Admittedly,
the petitioner does not belong to the handicap category. Further
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
41/55
it is not in dispute that the petitioner secured 434 marks and the
last selected candidate secured 435 marks in his category i.e.
EBC category, on account of the same the petitioner could not
be selected. The petitioner is claiming his appointment on the 17
seats, which remained vacant and he claims to be 9 th in the merit
position, therefore, he seeks appointment against the said 17
vacant posts.
30. It further appears that those 17 vacancies, which
the petitioners claims to be vacant and prays for being adjusted
on the same were kept reserved for handicapped candidates and
due to non-availability of handicapped candidates, they have
been carried forward. It further appears that after Advertisement
No. 02/2017, Advertisement No. 01/2019, 32 of 2024 and
29/2025, for appointment on the post of Assistant Engineer
(Civil) have been published and appointment have already been
made, pursuant to Advertisement No. 01/2019 and 32/2024 and
written examination has already been held with regard to the
Advertisement No. 29/2025. The 17 posts which remained
vacant due to non-availability of or handicapped candidates
have been taken into consideration, while issuing advertisement
subsequently.
31. Further petitioner participated in the selection
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
42/55
process and being not selected finally, filed the present writ
petition wherein by filling, I.A. No. 01 of 2023 he has sought to
challenge Clause 16 of the Resolution contained in Memo No.
2374 dated 16.07.2007 of the State Government, wherein a
provision was already made that on account of non-joining by
the candidate or non-joining within the time specified or due to
any other reason, if the seats cannot be filled up then the same
will be carried forward in the next appointment. The petitioner
was aware of the circular of the State Government, but,
participated in the selection process, therefore, after
participating in the selection process he cannot be permitted to
challenge the selection process. Law in this regard is very much
clear that once a candidate participated in the selected process
and he is not declared successful, then he cannot be permitted to
challenge the procedure.
32. The Hon’ble Supreme Court in the case of State
of U.P. Vs. Karunesh Kumar and Others (Civil Appeal Nos.
8822-8823 of 2022 in paragraph No. 21 has held as follows:-
“(21) A candidate who has participated in the
selection process adopted under the 2015 Rules
is estopped and has acquiesced himself from
questioning it thereafter, as held by this Court in
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
43/55the case of Anupal Singh (supra):
“55. Having participated in the interview, the
private respondents cannot challenge the Office
Memorandum dated 12-10-2014 and the
selection. On behalf of the appellants, it was
contended that after the revised Notification
dated 12-10-2014, the private respondents
participated in the interview without protest and
only after the result was announced and finding
that they were not selected, the private
respondents chose to challenge the revised
Notification dated 12-10-2014 and the private
respondents are estopped from challenging the
selection process. It is a settled law that a person
having consciously participated in the interview
cannot turn around and challenge the selection
process.
56. Observing that the result of the interview
cannot be challenged by a candidate who has
participated in the interview and has taken the
chance to get selected at the said interview and
ultimately, finds himself to be unsuccessful, in
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
44/55Madan Lal v. State of J&K [(1995) 3 SCC 486 :
1995 SCC (L&S) 712], it was held as under :
(SCC p. 493, para 9)
“9. … The petitioners also appeared at the oral
interview conducted by the Members concerned
of the Commission who interviewed the
petitioners as well as the contesting respondents
concerned. Thus the petitioners took a chance to
get themselves selected at the said oral interview.
Only because they did not find themselves to
have emerged successful as a result of their
combined performance both at written test and
oral interview, they have filed this petition. It is
now well settled that if a candidate takes a
calculated chance
57. In K.H. Sinaj v. High Court of Kerala
[(2006) 6 SCC 395: 2006 SCC (L&S) 1345], it
was held as under : (SCC p. 426, para 73)
“73. The appellant-petitioners having
participated in the interview in this background,
it is not open appellant-petitioners to turn round
thereafter when they failed at the interview and
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
45/55contend that the provision of a minimum mark
for the interview was not proper.”
58. In Union of India v. S. Vinodh Kumar [(2007)
8 SCC 100: (2007) 2 SCC (L&S) 792], it was
held as under: (SCC p. 107, para 19)
“34. There is thus no doubt that while question
of any estoppel by conduct would not arise in the
contextual facts but the law seem to be well
settled that in the event a candidate appears at
the interview and participates therein, only
because the result of the interview is not
“palatable” to him, he cannot turn round and
subsequently contend that the process of
interview was unfair or there was some lacuna in
the process”
59. Same principle was reiterated in Sadananda
Halo v. Momtaz Ali Sheikh [(2008) 4 SCC 619:
(2008) 2 SCC (L&S) 9] wherein, it was held as
under: (SCC pp. 645-46, para 59)
59. It is also a settled position that the
unsuccessful candidates cannot turn back and
assail the selection process. There are of course
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
46/55the exceptions carved out by this Court to this
general rule. This position was reiterated by this
Court in its latest judgment in Union of India v.
S. Vinodh Kumar [(2007) & SCC 100: (2007) 2
SCC (L&S) 792]…. The Court also referred to
the judgment in Om Prakash Shukla v. Akhilesh
Kumar Shukla [1986 Supp SCC 285 : 1986 SCC
(L&S) 644], where it has been held specifically
that when a candidate appears in the
examination without protest and subsequently is
found to be not successful in the examination, the
question of entertaining the petition challenging
such examination would not arise.”
33. The same view has been reiterated by the Hon’ble
Supreme Court of India in Civil Appeal No. 14524/2015 Union
of India and Ors. Vs. Air Commodore N.K. Sharma (17038)
ADM/ LGL decided on 14.12.2023 wherein in paragraph No.
28.4.3 the Hon’ble Supreme Court has held as follows:-
“28.4.3 Recently, in Tajvir Singh Sodhi &
Ors. v. State of Jammu Kashmir & Ors23
having considered a number of earlier
decisions, it was held by this Court that:-
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
47/55“69. It is therefore trite that
candidates, having taken part in the
selection process without any demur
or protest, cannot challenge the same
after having been declared
unsuccessful. The candidates cannot
approbate and reprobate at the same
time. In other words, simply because
the result of the selection process is
not palatable to a candidate, he
cannot allege that the process of
interview was unfair or that there was
some lacuna in the process. Therefore,
we find that the writ petitioners in
these cases, could not have questioned
before a Court of law, the rationale
behind recasting the selection criteria,
as they willingly took part in the
selection process even after the
criteria had been so recast. Their
candidature was not withdrawn in
light of the amended criteria. A
challenge was thrown against the
same only after they had been
declared unsuccessful in the selection
process, at which stage the challenge
ought not to have been entertained in
light of the principle of waiver and
acquiescence”
34. Similar view has been taken by a Co-ordinate
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
48/55
Bench of this Court vide judgment dated 04.03.2021 passed in
C.W.J.C. No. 8520 of 2020 Aditya Prakash & Anr Vs. The
State of Bihar & Ors. wherein in paragraph No. 13 it has been
held as follows:-
13. In Ashok Kumar v State of Bihar,
(2017) 4 SCC 357, the Hon’ble Supreme Court
has thus expressed:
“13. The law on the subject has been
crystallised in several decisions of this
Court. In Chandra Prakash Tiwari v.
Shakuntala Shukla [Chandra Prakash
Tiwari v. Shakuntala Shukla, (2002) 6
SCC 127: 2002 SCC (L&S) 830], this
Court laid down the principle that
when a candidate appears at an
examination without objection and is
subsequently found to be not
successful, a challenge to the process
is precluded. The question of
entertaining a petition challenging an
examination would not arise where a
candidate has appeared and
participated. He or she cannot
subsequently turn around and contend
that the process was unfair or that
there was a lacuna therein, merely
because the result is not palatable. In
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
49/55Union of India v. S. Vinodh Kumar
[Union of India v. S. Vinodh Kumar,
(2007) 8 SCC 100 : (2007) 2 SCC
(L&S) 792), this Court held that: (SCC
p. 107, para 18)
“18. It is also well settled that
those candidates who had taken
part in the selection process
knowing fully well the procedure
laid down therein were not
entitled to question the same. (See
Munindra Kumar v. Rajiv Govil
[Munindra Kumar v. Rajiv Govil,
(1991) 3 SCC 368 : 1991 SCC
(L&S) 1052] and Rashmi Mishra
v. M.P Public Service
Commission [Rashmi Mishra v
M.P Public Service Commission,
(2006) 12 SCC 724 : (2007) 2
SCC (L&S) 345].)”
14. The same view was reiterated in
Amlan Jyoti Borooah [Amlan Jyoti
Borooah v. State of Assam, (2009) 3
SCC 227: (2009) 1 SCC (L&S) 627]
wherein it was held to be well settled
that the candidates who have taken
part in a selection process knowing
fully well the procedure laid down
therein are not entitled to question it
upon being declared to be
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unsuccessful.
15. In Manish Kumar Shahi v. State of
Bihar (Manish Kumar Shahi v State of
Bihar, (2010) 12 SCC 576 : (2011) 1
SCC (L&S) 256], the same principle
was reiterated in the following
observations; (SCC p. 584, para 16)
“16. We also agree with the High
Court [Manish Ku-mar Shahi v.
State of Bihar, 2008 SCC OnLine
Pat 321 : (2009) 4 SLR 272] that
after having taken part in the
process of selection knowing fully
well that more than 19% marks
have been earmarked for viva voce
test, the petitioner is not entitled to
challenge the criteria or process of
selection. Surely, if the petitioner’s
name had appeared in the merit list,
he would not have even dreamed of
challenging the selection. The
petitioner invoked jurisdiction of
the High Court under Article 226 of
the Constitution of India only after
he found that his name does not
figure in the merit list prepared by
the Commission. This conduct of
the petitioner clearly disentitles him
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
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from questioning the selection and
the High Court did not commit any
error by refusing to entertain the
writ petition. Reference in this
connection may be made to the
judgments in Madan Lal v. State of
J&K [Madan Lal v. State of J&K.
(1995) 3 SCC 486 :1995 SCC
(L&S) 712], Marripati Nagaraja v.
State of A.P. [Marripati Nagaraja v.
State of A. P., (2007) 11 SCC 522 :
(2008) 1 SCC (L&S) 68],
Dhananjay Malik v. State of
Uttaranchal [Dhananjay Malik v.
State of Uttaranchal, (2008) 4 SCC
171 : (2008) 1 SCC (L&S) 1005 :
(2008) 3 PLJR 271], Amlan Jyoti
Borooah v. State of Assam [Amlan
Jyoti Borooah v. State of Assam,
(2009) 3 SCC 227 : (2009) 1 SCC
(L&S) 627] and K.A. Nagamani v.
Indian Airlines [K.A. Nagamani v.
Indian Airlines, (2009) 5 SCC 515 :
(2009) 2 SCC (L&S) 57].”
16. In Vijendra Kumar Verma v. Public
Service Commission [Vijendra Kumar
Verma v. Public Service Commission,
(2011) 1 SCC 150 : (2011) 1 SCC
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
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(L&S) 21], candidates who had
participated in the selection process
were aware that they were required to
possess certain specific qualifications
in computer operations. The appellants
had appeared in the selection process
and after participating in the interview
sought to challenge the selection
process as being without jurisdiction.
This was held to be impermissible.
17. In Ramesh Chandra Shah v Anil
Joshi [Ramesh Chandra Shah v. Anil
Joshi, (2013) 11 SCC 309 : (2011) 3
SCC (L&S) 129], candidates who were
competing for the post of
Physiotherapist in the State of
Uttarakhand participated in a written
examination held in pursuance of an
advertisement. This Court held that if
they had cleared the test, the
respondents would not have raised any
objection to the selection process or to
Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
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the methodology adopted. Having
taken a chance of selection, it was held
that the respondents were disentitled to
seek relief under Article 226 and
would be deemed to have waived their
right to challenge the advertisement or
the procedure of selection. This Court
held that. (SCC p. 318, para 18)
“18. It is settled law that a person
who consciously takes part in the
process of selection cannot,
thereafter, turn around and question
the method of selection and its
outcome.”
19. In the present case, regard must be
had to the fact that the appellants
were clearly on notice, when the fresh
selection process took place that
written examination would carry
ninety marks and the interview, ten
marks. The appellants participated in
the selection process. Moreover, two
other considerations weigh in balance
The High Court noted in the impugned
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judgment [Anurag Verma v. State of
Bihar, 2011 SCC OnLine Pat 1289.]
that the interpretation of Rule 6 was
not free from vagueness. There was, in
other words, no glaring or patent
illegality in the process adopted by the
High Court. There was an element of
vagueness about whether Rule 6
which dealt with promotion merely
incorporated the requirement of an
examination provided in Rule 5 for
direct recruitment to Class III posts or
whether the marks and qualifying
marks were also incorporated.
Moreover, no prejudice was
established to have been caused to the
appellants by the 90 :10 allocation.”
(emphasis supplied)
35. In view of the discussions made above, this Court
finds that the Circular of the State Government was there from
2007 and the same was reiteration of the 1997 circular/policy of
the State Government. The petitioner participated in the
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selection process, but unfortunately, finally he was not
appointed and now the petitioner cannot be permitted to
challenge the Circular of the State Government dated
16.07.2007. Even otherwise, the merit list prepared for
Advertisement No. 02 of 2017, lost its significance altogether
after subsequent Advertisement and Recommendation made by
the BPSC with regard to Advertisement No. 01 of 2019 and 32
of 2024.
36. For the reasons above mentioned and having
found no irregularity in the procedure adopted by the BPSC, in
terms of the circular of the State Government dated 16.07.2007,
I find no merit in the writ petition and the same is accordingly
dismissed.
37. Pending applications, if any, shall also stands
dismissed.
(Ritesh Kumar, J)
krishnakant/-
AFR/NAFR NA CAV DATE 03.02.2026 Uploading Date 16.03.2026 Transmission Date NA