One Mark Short, No Right to Appointment: Patna High Court Dismisses Engineer's Claim to Vacancies Left by Non-Joining Candidates

"Select list cannot be treated as a perpetual reservoir for purposes of appointment", In a ruling that settles a recurring controversy in Bihar's public recruitment landscape, the Patna High Court on March 16, 2026 dismissed a writ petition filed by an unsuccessful candidate for the post of Assistant Engineer (Civil) who had missed the cut-off by a single mark and sought appointment against vacancies left behind by selected candidates who never joined their posts.

Justice Ritesh Kumar held that no right accrues to a non-selected candidate to claim appointment from an exhausted select list, and that the State's longstanding carry-forward policy — in operation since 1977 and reiterated in 2007 — is valid, binding, and beyond challenge by a candidate who had knowingly participated in the selection process.

Background of the Case

The Bihar Public Service Commission issued Advertisement No. 02/2017 for 963 posts of Assistant Engineer (Civil) in various Works Departments of the Government of Bihar, subsequently revised upward to 1,257 vacancies. The petitioner, Gaurav Kumar, belonging to the Extremely Backward Class (EBC) category, participated in all stages of the recruitment process — preliminary examination, mains/written examination, and interview. The final result published on July 14, 2021 declared 1,240 candidates successful. The petitioner secured 434 marks in the final examination. The cut-off for EBC male candidates was 435 marks — precisely one mark above what the petitioner had obtained. As per RTI information furnished by the BPSC, the petitioner was placed at Merit Serial No. 1508, standing ninth in position below the last selected EBC male candidate.

Following allocation of selected candidates to various Works Departments, 42 candidates did not present themselves for document verification and 111 others did not join after document verification — leaving 153 seats vacant under Advertisement No. 02/2017, of which at least 17 were under the EBC category. The petitioner filed the writ petition seeking a direction to appoint him against these 17 vacancies. He also filed an interlocutory application challenging the validity of Clause 16 of the Government Resolution dated July 16, 2007, which mandates that vacancies caused by non-joining of selected candidates shall be carried forward to the next recruitment cycle.

The Carry-Forward Policy and Its Legal Pedigree

"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"

The central legal controversy in the case was whether the carry-forward policy embodied in Clause 16 of the Government Resolution dated July 16, 2007 was valid and applicable, or whether vacancies created by non-joining candidates had to be filled from the same merit list.

The State and BPSC placed before the Court the text of Clause 16, which provides in unambiguous terms that where any candidate or candidates fail to join within the specified time limit or for any other reason vacancies cannot be filled, such vacancies shall be carried forward to the next requisition. The Court noted that this policy was not a novelty of 2007 — it was a reiteration of Clause (xiv) of the Government Memorandum dated June 17, 1977, which had identically stipulated that vacancies remaining unfilled due to candidates not joining the post or for any other reason shall be carried forward to the next year. A Division Bench of the Patna High Court had confirmed the validity of this policy in L.P.A. No. 1460 of 2019 decided on February 27, 2022, holding that the State had evolved this policy as early as 1977 and candidates have not established any statutory right to claim appointment on account of non-joining vacancies.

The Court further noted that subsequent to Advertisement No. 02/2017, the BPSC had issued Advertisement No. 01/2019, Advertisement No. 32/2024, and Advertisement No. 29/2025 for the same post of Assistant Engineer (Civil). Appointments had already been made pursuant to the first two, and the written examination under Advertisement No. 29/2025 had already been held. The carry-forward vacancies from Advertisement No. 02/2017 had been shown as backlog vacancies in Advertisement No. 29/2025. The select list from Advertisement No. 02/2017 had therefore entirely lost its significance.

The Law on Select Lists: No Perpetual Reservoir, No Indefeasible Right

The Court engaged with the rich body of precedent on the nature and scope of select lists and waiting lists in service law.

Relying on Orissa Court & Ors. v. Rajkishore Nanda, (2010) 6 SCC 777, the Court affirmed the BPSC's position that "the select list cannot be treated as a perpetual reservoir for purposes of appointment" and that once the selected candidates equal to the advertised vacancies are appointed, the selection process comes to an end. The Supreme Court in Shankarsan Dash v. Union of India, (1991) 3 SCC 47 had settled that "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 right to be appointed which cannot be legitimately denied" — a fortiori, no such right could vest in an unsuccessful candidate who was not even part of the select list.

The petitioner placed heavy reliance on A.V. Bhogeshwarudu v. A.P. Public Service Commission and Jai Narain Ram v. State of U.P., (1996) 1 SCC 332, which involved situations where waiting lists were prepared and the State had itself decided to fill vacancies from the existing recruitment list. The Court distinguished these decisions on facts, observing that in the present case no waiting list had been prepared and the State's express policy mandated carry-forward. Similarly, Manoj Manu v. Union of India, (2013) 12 SCC 171, relied upon by the petitioner, was found distinguishable because in that case the Government had itself requisitioned the UPSC to send further names to fill the remaining vacancies — reflecting a conscious governmental decision to fill all notified vacancies from the same list, a decision entirely absent here.

On the nature of waiting lists, the Court drew upon the Supreme Court's analysis in Surinder Singh v. State of Punjab, (1997) 8 SCC 488, where it was held that "a waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment" and that "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, the Supreme Court had cautioned, requires that such improper exercises of power not be permitted.

Estoppel by Participation: A Candidate Who Took His Chance Cannot Challenge the Process

Beyond the substantive question on the carry-forward policy, the Court found a separate and independent bar to the petitioner's claim — the doctrine of estoppel arising from voluntary participation in the selection process.

The Court noted that the Government Resolution of 2007, including its Clause 16 governing carry-forward of unfilled vacancies, was part of the regulatory framework governing the selection when the petitioner applied and participated. Having knowledge of this policy and having taken his chance in the selection process all the way to the interview stage, the petitioner could not, after being found unsuccessful, turn around and challenge the very policy under which the recruitment was conducted.

The Supreme Court's exposition of this principle in State of U.P. v. Karunesh Kumar was applied in full, wherein it was held that "a candidate who has participated in the selection process adopted is estopped and has acquiesced himself from questioning it thereafter."

The Patna High Court dismissed the writ petition and all pending interlocutory applications, finding no irregularity in the procedure adopted by the BPSC in terms of the Government Circular dated July 16, 2007. The Court's ruling reinforces three interconnected principles of service law: that a select list is not a perpetual reservoir of appointment; that a candidate who fails to clear the cut-off acquires no right to claim appointment against non-joining vacancies; and that a candidate who participates in a selection process knowing its governing rules is estopped from challenging those rules after failing to be selected. The State's carry-forward policy, consistently followed since 1977, was upheld as valid, rational, and binding.

Date of Decision: March 16, 2026