Abhinav Muskan Kumar Paswan vs The State Of Bihar & Ors.

“Question: Whether the learned Single Judge was justified in directing consideration of the respondents’ case for appointment, in light of Rule 7 of the 2009 Rules and the admitted position that candidates with lower merit have already been appointed pursuant to judicial orders?”

“41.

The issue which now falls for consideration is whether the learned Single Judge was justified in directing consideration of the respondent-writ petitioner for appointment in the light of Rule 7 of the Bihar Civil Court Staff (Class-III & IV) Rules, 2009, particularly when it is an admitted position that certain candidates, securing marks lower than that of the writ petitioner, have already been appointed pursuant to judicial orders.

42.

At the outset, it must be noted that Rule 7(12), (13) and (14) of the Rules, 2009 clearly envisage preparation of a common merit panel and its operation for a period of two years for the purpose of filling not only existing vacancies but also anticipated vacancies arising on account of non-joining, resignation, etc. The Division Bench, while deciding L.P.A. No. 650 of 2022 and analogous cases (order dated 19.04.2023), has already interpreted these provisions and returned a categorical finding that the authorities were under a statutory obligation to operate the panel for the said period and consider eligible candidates in order of merit.

43.

However, the crucial question is not the existence of vacancies or the merit position alone, but whether such a direction for consideration can be extended to every candidate irrespective of the nature and scope of the earlier judgment.

44.

From the submissions advanced on behalf of the appellants, it is evident that the benefit flowing from the judgment dated 19.04.2023 was extended only to those candidates who were parties to the earlier litigation or who had asserted their rights within a reasonable time. The appellants have consistently contended that the said judgment is one in personam and not in rem. This distinction is of considerable importance. Even if it is accepted that certain candidates with lower marks have been appointed pursuant to orders passed in earlier rounds of litigation, although they came to the court within stipulated time frame, such appointments cannot automatically confer an enforceable right upon the present writ petitioner. The doctrine of equality enshrined under Article 14 is a positive concept and does not envisage repetition of an illegality.

45.

Further reliance has been placed by the respondent on Lt. Col. Suprita Chandel vs. Union of India (Supra). While the Hon'ble Supreme Court in the said case emphasized that similarly situated persons should not be driven to litigation repeatedly, the same was in the context where the earlier judgment was not restricted in its operation. In the present case, however, there is nothing to indicate that the Division Bench intended its judgment in L.P.A. No. 650 of 2022 to operate universally for all candidates irrespective of their conduct or delay. It is also important to bear in mind that the direction issued by the Division Bench was for "consideration" of the cases of the appellants therein against vacancies arising within the validity period of the panel. Such a direction was clearly confined to those who had approached the Court and cannot be stretched to revive a lapsed panel for all candidates at large.

46.

The learned Single Judge, while directing consideration of the writ petitioner's case, appears to have been primarily influenced by the fact that candidates with lesser marks had already been appointed. However, such reasoning overlooks the settled legal position that parity cannot be claimed in illegality or irregularity, and that each case must be tested on its own merits, including the conduct of the claimant and the scope of the earlier judicial directions.

47.

In view of the aforesaid discussion, this Court is of the considered opinion that the learned Single Judge was not justified in issuing a direction for consideration of the writ petitioner solely on the ground that persons with lower merit had been appointed. The direction fails to appreciate the limited and person-specific nature of the earlier judgments, as well as the settled principle that Article 14 does not envisage negative equality.

48.

Accordingly, the issue is answered in favour of the appellants, holding that the impugned direction for consideration of the respondent-writ petitioner for appointment is unsustainable in law.”

“7(i) We have heard learned counsel for the parties at considerable length and have carefully perused the record, including the judgment dated 19-04-2023 passed in L.P.A. Nos. 650 of 2022 and analogous cases, the impugned order of the learned Single Judge, and the recent decision of a coordinate Division Bench of this Court in Patna High Court v. Chandan Kumar, L.P.A. No. 891 of 2025.

(ii)

The controversy, stripped of all embellishments, turns on a narrow question: whether a wait-listed candidate who was not a party to the earlier litigation, and who approached this Court only after appointments were made in compliance with the limited directions issued on 19-04-2023, can claim appointment on the dual plea that the earlier judgment is in rem and that appointment of lower-ranked candidates violates Articles 14 and 16 of the Constitution.

(iii)

At the outset, it is necessary to examine the true nature and scope of the judgment dated 19-04-2023. A plain reading of the said judgment shows that while the Division Bench examined the statutory provisions contained in Rules 7(12), 7(13) and 7(14) of the Bihar Civil Court Staff (Class-III and Class-IV) Rules, 2009 and made certain observations regarding the validity of the waiting list for a period of two years, the Court did not lay down any binding ratio decidendi of general application. A proper observation of our rules very accurately shows important nuances governing hierarchy. The observations were made in the specific context of the cases of the petitioners before it and are reproduced hereinbelow:

“20.

Accordingly, the order of the learned Single dated 29.09.2022 passed in CWJC No. 6259 of 2019 and connected matters stands set aside. While allowing LPA No. 650 of 2022 (arising out of CWJC No. 6259 of 2019), LPA No. 657 of 2022 (arising out of CWJC No. 21219 of 2018), & LPA No. 661 of 2022 (arising out of CWJC No. 21219 of 2018) the concerned selecting/appointing authority is hereby directed to consider each of the petitioners name for the purpose of appointment to the post of Clerk against unfilled vacancies and anticipated vacancies during the relevant period of two years and necessary order of appointment shall be issued to each of the eligible petitioner within a period of three months from the date of receipt of this order. If any, of the candidate is not suitable or eligible in that event necessary speaking order shall be passed and communicated to such petitioner/s.”

(iv)

The operative directions were expressly confined to consideration of “each of the petitioner’s name” for appointment against unfilled and anticipated vacancies. The Division Bench neither issued a general mandamus for implementation of the entire waiting list nor declared that every candidate figuring in the list would automatically become entitled to appointment irrespective of whether he had approached the Court. Consequently, the judgment remains in personam insofar as the grant of relief is concerned, and the observations made therein cannot be elevated to the status of a ratio having universal application to all wait-listed candidates.

(v)

The principle laid down by the Hon’ble Supreme Court in State of U.P. v. Arvind Kumar Srivastava, (2015) 1 SCC 347, that the benefit of a judgment should ordinarily be extended to all identically situated persons, is not absolute. The Hon’ble Supreme Court itself recognised well-settled exceptions of delay, laches and acquiescence. Persons who remain silent, allow the cause of action to become stale, and wake up only after others have succeeded by pursuing their remedies, are treated as fence-sitters and are not entitled to the same relief. This position has been reiterated in U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464. The present case falls squarely within that exception. The relevant paragraph of the said judgment is reproduced below:

“13.

In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?”

(vi)

The appellant was ranked at Serial No. 951 in a waiting list prepared as far back as 2017-2018. He took no steps when the selected candidates failed to join, nor when the Committee treated the resultant vacancies as fresh vacancies. He remained inactive even after the writ petitions of other wait-listed candidates were dismissed by the learned Single Judge and during the pendency of the earlier LPAs. He stirred into action only after appointment letters were issued to 20 candidates (including two ranked lower than him) on 25-09-2023. Such conduct is classic fence-sitting. The subsequent service of a legal notice and the filing of the writ petition cannot wipe out the long period of unexplained inaction. The Hon’ble Supreme Court settled the point that a stale claim cannot be revived by filing a representation or a belated writ petition in C. Jacob v. Director of Geology and Mining, (2008) 10 SCC 115. The relevant paragraphs of the said jusgment are reproduced below:

“10.

Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.

11.

When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do so may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of “acknowledgement of a jural relationship” to give rise to a fresh cause of action.”

(vii)

The decision of the Hon'ble Supreme Court in Chairman & Managing Director, U.P. Power Corporation Ltd. v. Ram Gopal, (2021) 13 SCC 225, fortifies the above conclusion. A person who waits for years and approaches the Court only after others have obtained relief cannot claim parity as a matter of right.

(viii)

Equally relevant is the decision in State of U.P. v. Harish Chandra, (1996) 9 SCC 309, which reiterates that a select list or waiting list has a limited statutory life. Once that period expires, no mandamus can ordinarily be issued for appointment from the expired list. The same principle has been reaffirmed in Shiba Shankar Mohapatra v. State of Orissa, (2010) 12 SCC 471. The relevant paragraph of the said judgment is reproduced below:

“18.

The question of entertaining the petition disputing the long-standing seniority filed at a belated stage is no more res integra. A Constitution Bench of this Court, in Ramchandra Shankar Deodhar v. State of Maharashtra [(1974) 1 SCC 317 : 1974 SCC (L&S) 137] considered the effect of delay in challenging the promotion and seniority list and held that any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period. A party should approach the court just after accrual of the cause of complaint. While deciding the said case, this Court placed reliance upon its earlier judgments, particularly in Tilokchand Motichand v. H.B. Munshi [(1969) 1 SCC 110] , wherein it has been observed that the principle on which the court proceeds in refusing relief to the petitioner on the ground of laches or delay, is that the rights, which have accrued to others by reason of delay in filing the writ petition should not be allowed to be disturbed unless there is a reasonable explanation for delay. The Court further observed as under : (Tilokchand case [(1969) 1 SCC 110] , SCC p. 115, para 7)

“7.

… The party claiming fundamental rights must move the Court before other rights come into existence. The action of courts cannot harm innocent parties if their rights emerge by reason of delay on the part of the person moving the Court.”