Gaurav Kumar vs The State Of Bihar on 16 March, 2026

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    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.

    SPONSORED

    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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    which we reproduce as under: (SCC pp. 598-99)

    “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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    selections are held regularly by the
    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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    vacancy so caused or if there is some
    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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    explained the scope and intent of a waiting list

    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
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    right 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.”

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    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
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    up 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
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    above 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.
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    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
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    Supreme 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.
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    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
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    Government 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.
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    We 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
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    time 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
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    valuable 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
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    neither 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
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    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:-

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    “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.

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    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
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    hereinabove 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
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    sub-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
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    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
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    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
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    the 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
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    Madan 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
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    contend 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
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    the 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
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    “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
    49/55

    Union 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
    Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
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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
    52/55

    (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
    53/55

    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
    Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
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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
    Patna High Court CWJC No.10174 of 2022 dt.16-03-2026
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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
     



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