A fence-sitting waitlisted candidate cannot claim appointment through negative equality against lower-ranked appointees.

The petitioner, belonging to the Scheduled Caste category, participated in the recruitment process for appointment to the post of Clerk in the subordinate courts of Bihar pursuant to Employment Notice No. 01/2016.

He appeared in the screening and final written examinations and subsequently in the interview process.

His name appeared in the merit list at Serial No. 4076, with 65.50 marks.

During the recruitment process, other candidates approached the High Court in CWJC No. 266 of 2018 and connected proceedings.

Pursuant to subsequent litigation, including LPA Nos. 650, 657 and 661 of 2022, a list of 20 candidates was prepared and approved for appointment in 2023.

The petitioner contended that he was wrongly excluded, although Anand Kumar, ranked lower at Serial No. 4095, was selected and appointed.

He alleged violation of Articles 14 and 16 of the Constitution and sought appointment with consequential benefits.

The respondents relied on later Division Bench decisions in Patna High Court through Registrar General v. Chandan Kumar, LPA No. 891 of 2025, and Chandra Madhav Singh v. State of Bihar, LPA No. 459 of 2024, which had rejected similar claims by candidates who had not timely approached the Court.

Whether a candidate placed higher in the merit list, but who was not a party to the earlier litigation and approached the Court only after lower-ranked candidates were appointed pursuant to judicial orders, is entitled to appointment under Articles 14 and 16 of the Constitution?

Whether the petitioner could claim the benefit of the Division Bench judgment dated 19 April 2023, which directed consideration of the cases of the petitioners before that Court against unfilled or anticipated vacancies?

Whether appointment of lower-ranked candidates pursuant to limited judicial directions created an enforceable right in favour of the petitioner on the basis of parity or negative equality?

The Court applied Rules 7(12), 7(13) and 7(14) of the Bihar Civil Court Staff (Class-III and Class-IV) Rules, 2009, which contemplate preparation and operation of a common merit panel for two years to fill existing and anticipated vacancies.

It relied on the Division Bench decision dated 19 April 2023, holding that its operative directions were confined to consideration of the cases of the petitioners before that Court and did not create a universal right in favour of all candidates in the waiting list.

The Court applied the principles that Article 14 does not permit “negative equality” or repetition of an illegality, and that a person cannot claim parity merely because a lower-ranked candidate received relief.

It further relied on State of U.P. v. Arvind Kumar Srivastava, (2015) 1 SCC 347, and U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464, concerning delay, laches, acquiescence and “fence-sitters”; C. Jacob v. Director of Geology and Mining, (2008) 10 SCC 115, holding that a representation cannot revive a stale claim; Chairman & Managing Director, U.P. Power Corporation Ltd. v. Ram Gopal, (2021) 13 SCC 225, concerning belated claims for parity; and State of U.P. v. Harish Chandra, (1996) 9 SCC 309, and Shiba Shankar Mohapatra v. State of Orissa, (2010) 12 SCC 471, concerning the limited life of select or waiting lists and the effect of delay.

The Court held that the petitioner’s higher merit position, by itself, did not entitle him to appointment.

The Division Bench judgment dated 19 April 2023 directed consideration only of the candidates who were petitioners in those proceedings and did not mandate operation of the entire waiting list for all candidates.

The petitioner had remained inactive during the relevant period and approached the Court only after appointment letters were issued to 20 candidates, including a candidate ranked below him.

This conduct amounted to delay, acquiescence and fence-sitting, and the subsequent representation or writ petition could not revive the stale claim.

The Court further reasoned that the appointments of lower-ranked candidates were made pursuant to specific judicial directions and could not be treated as an arbitrary selection by the respondents.

Consequently, the petitioner could not invoke Articles 14 and 16 to claim “negative equality” or demand repetition of relief granted to others in litigation to which he was not a party.

It held that the petitioner was not entitled to appointment merely because he had secured higher marks or because a lower-ranked candidate had been appointed pursuant to limited judicial directions.

The judgment dated 19 April 2023 was held to operate, insofar as relief was concerned, in personam and not as a general direction benefiting every candidate in the waiting list.

Finding no merit in the writ petition, the Court dismissed CWJC No. 18616 of 2023.