Patna High Court Sets Aside Direction To Appoint Waitlisted Candidate In Civil Court Recruitment, Says 'Fence-Sitters' Cannot Claim Parity

The Patna High Court has held that candidates who fail to assert their rights within the subsistence of a select panel cannot later seek parity with others who approached the Court in time, reiterating that writ relief is barred by delay and laches and that Article 14 does not permit extension of benefits on the basis of “negative equality.” A Division Bench comprising Chief Justice Sangam Kumar Sahoo and Justice Alok Kumar Sinha was hearing a Letters Patent Appeal assailing the judgment dated 09.07.2025 passed by a Single Judge in C.W.J.C. No. 10521 of 2022. The Single Judge had directed the authorities to consider the respondent's case for appointment as Clerk in Bihar Civil Courts by extending to him the benefit granted to similarly situated candidates. The dispute arose out of recruitment pursuant to Employment Notice No. 01/2016, where the respondent, though placed in the waiting list, was not appointed despite alleged vacancies arising due to non-joining. The appellants contended that the writ petition suffered from gross delay, as the panel expired on 26.09.2020 and the respondent approached the Court only in July 2022 without any plausible explanation. They argued that the earlier Division Bench judgment dated 19.04.2023 was confined to litigants who had approached within time and could not be extended universally. It was further submitted that with the coming into force of the 2022 Rules and fresh recruitment, earlier vacancies stood subsumed and could not be filled under the 2009 Rules. The respondent submitted that he was entitled to the same benefit as similarly situated candidates who had succeeded earlier and could not be treated as a fence-sitter, having attempted to intervene in earlier proceedings before filing the writ petition. At the outset, the Court noted that the controversy required adjudication on multiple legal aspects and accordingly framed four issues for determination:(i) whether the writ petition was liable to be dismissed on the ground of delay, laches and acquiescence, particularly in light of expiry of the select panel under Rule 7 of the 2009 Rules;(ii) whether the respondent could be characterised as a “fence-sitter” disentitled to relief or had acted with sufficient diligence;(iii) whether the Single Judge was justified in directing consideration of the respondent's appointment in light of Rule 7 and earlier Division Bench judgments; and(iv) whether the impugned judgment suffered from legal infirmity warranting interference in intra-court appellate jurisdiction. Issue I: Delay, laches, and expiry of panelThe Court held that the writ petition was clearly barred by delay and laches. It noted that the respondent approached the Court only on 22.07.2022, well after the expiry of the panel on 26.09.2020. Even his earlier attempt by way of an interlocutory application in May 2022 was beyond the panel's validity. The Court emphasised that although no rigid limitation applies to writ jurisdiction, equitable principles of delay operate with full force. Crucially, the cause of action existed during the currency of the panel, yet the respondent failed to assert his rights. The Court rejected the argument that pendency of other litigation could extend the life of a statutory panel, observing that such an approach would undermine certainty in recruitment processes and revive stale claims. Issue II: Whether respondent is a “fence-sitter”On this issue, the Court undertook a detailed exposition of the doctrine of fence-sitting as developed by the Supreme Court. It clarified that the determining factor is not whether the litigant approached before or after a favourable judgment, but whether the litigant acted when the cause of action was alive. Applying this test, the Court found that the respondent had remained indolent during the relevant period and approached the Court only after others had secured relief. Such conduct, the Court held, squarely attracted the doctrine of fence-sitting. It distinguished between vigilant litigants who actively pursue their remedies and those who “sit on the fence” awaiting the outcome of others' litigation, holding that the latter cannot claim parity as a matter of right. Issue III: Justification of direction for appointmentThe Court held that the Single Judge's direction was legally unsustainable. While Rule 7(12)–(14) of the 2009 Rules mandated operation of the merit panel for two years to fill existing and anticipated vacancies, the benefit of such operation had already been interpreted by the Division Bench in earlier litigation. However, the Court stressed that the benefit flowing from those judgments was confined to candidates who had approached the Court within a reasonable time. The Court accepted the appellants' contention that those judgments were in personam and not in rem.Further, the Court rejected the reasoning that since candidates with lower marks had been appointed pursuant to judicial orders, the respondent was entitled to similar relief. ...

Patna High Court Sets Aside Direction To Appoint Waitlisted Candidate In Civil Court Recruitment, Says 'Fence-Sitters' Cannot Claim Parity

Rushil Batra

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