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
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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
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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
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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
03.09.2025and 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 Patna High Court CWJC No.10174 of 2022 dt.16-03-2026 9/55 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 Patna High Court CWJC No.10174 of 2022 dt.16-03-2026 10/55 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 Patna High Court CWJC No.10174 of 2022 dt.16-03-2026 11/55 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 Patna High Court CWJC No.10174 of 2022 dt.16-03-2026 12/55 "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- Patna High Court CWJC No.10174 of 2022 dt.16-03-2026 13/55 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 Patna High Court CWJC No.10174 of 2022 dt.16-03-2026 14/55 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, Patna High Court CWJC No.10174 of 2022 dt.16-03-2026 15/55 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 Patna High Court CWJC No.10174 of 2022 dt.16-03-2026 16/55 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 Patna High Court CWJC No.10174 of 2022 dt.16-03-2026 17/55 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 Patna High Court CWJC No.10174 of 2022 dt.16-03-2026 18/55 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 Patna High Court CWJC No.10174 of 2022 dt.16-03-2026 19/55 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 Patna High Court CWJC No.10174 of 2022 dt.16-03-2026 20/55 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 Patna High Court CWJC No.10174 of 2022 dt.16-03-2026 21/55 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 Patna High Court CWJC No.10174 of 2022 dt.16-03-2026 22/55 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 Patna High Court CWJC No.10174 of 2022 dt.16-03-2026 23/55 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 Patna High Court CWJC No.10174 of 2022 dt.16-03-2026 24/55 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."
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 26/55 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 Patna High Court CWJC No.10174 of 2022 dt.16-03-2026 27/55 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. 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 29/55 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. 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 31/55 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. Patna High Court CWJC No.10174 of 2022 dt.16-03-2026 32/55 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 Patna High Court CWJC No.10174 of 2022 dt.16-03-2026 33/55 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 Patna High Court CWJC No.10174 of 2022 dt.16-03-2026 34/55 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 Patna High Court CWJC No.10174 of 2022 dt.16-03-2026 35/55 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 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 39/55 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 Patna High Court CWJC No.10174 of 2022 dt.16-03-2026 40/55 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 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 43/55 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 Patna High Court CWJC No.10174 of 2022 dt.16-03-2026 44/55 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 45/55 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 46/55 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 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 49/55 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 50/55 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 51/55 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 54/55 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 55/55 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/-
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