Patna High Court

BiharversusRajiv Kumar

Decided: 23 March 2026
Disposal: DISMISSED
Bench: THE CHIEF JUSTICE HARISH KUMAR

Holding

The court held that there is no legal right to appointment, only a right to consideration, and the State’s discretion not to fill posts is not subject to mandamus unless shown to be arbitrary, thus dismissing the appeal.

Summary

The Patna High Court considered an appeal (LPA No.40 of 2025) filed by the State of Bihar challenging a single judge's order that dismissed a writ petition seeking mandamus directing the Bihar Public Service Commission (BPSC) to publish a supplementary merit list for primary school teachers under an EWS advertisement. The appellant argued that the earlier decision was rendered without giving the BPSC counsel an opportunity to examine whether the petition fell within a prior judgment (CWJC No.1151 of 2024). The court noted that a Division Bench had already set aside the single judge’s order, holding that there is no legal right to appointment, only a right to be considered, and that the State’s discretion not to fill posts is not ordinarily subject to judicial interference unless arbitrary. Relying on precedents such as Shankarsan Dash, R.S. Mittal, Food Corporation of India v. Bhanu Lodh, and Dinesh Kumar Kashyap, the court affirmed that the employer’s discretion must be exercised judiciously and is not a ground for mandamus. Consequently, the appeal was dismissed and the LPA was disposed of in the same terms as the Division Bench’s order dated 08‑04‑2025.

Issues considered

Whether a candidate has a legal right to appointment as a primary school teacher under the EWS vacancy or merely a right to be considered.
Whether the court can issue a writ of mandamus directing the BPSC to publish a supplementary/revised merit list.
Whether the single judge’s dismissal of the writ petition was valid given the lack of opportunity for the BPSC counsel to argue the applicability of the earlier CWJC judgment.
Whether the State’s discretion to not fill vacancies is arbitrary, capricious, or whimsical.

Subjects

mandamus
appointment discretion
public service commission
supplementary merit list
EWS reservation
judicial review
delay condonation

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.40 of 2025
In
Civil Writ Jurisdiction Case No.13369 of 2024
======================================================
1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna.
2. The Chief Secretary, Government of Bihar, Patna.
3. The Additional Chief Secretary, Education Department, Old Secretariat,
Bailey Road, Patna-800015.
4. The Secretary, Education Department, Old Secretariat, Bailey Road, Patna-
800015.
5. The Director, Secondary Education, Education Department, Old Secretariat,
Bailey Road, Patna-800015.
6. The Bihar Public Service Commission, through its Chairman, 15 Jawahar
Lal Nehru Marg, Bailey Road, Patna.
7. The Chairman, Bihar Public Service Commission, 15 Jawahar Lal Nehru
Marg, Bailey Road, Patna.
8. The Secretary, Bihar Public Service Commission, Bihar, Patna.
9. The Joint Secretary-cum-Examination Controller, Bihar Public Service
Commission, 15 Jawahar Lal Nehru Marg, Bailey Road, Patna.

... ... Appellant/s
Versus
Rajiv Kumar Son of Srinarayan Singh, Resident of Village- Bichhiaon P.O.
Bichhiaon P.S.- Sandesh, District- Bhojpur, Roll No.- 468979.

... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Akash Raj (AC TO GA 5)
For the Respondent/s : Mr.
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)

Date : 23-03-2026

No one appears on behalf of the sole respondent though

notice has been validly served upon him.

I.A. No. 01 of 2025

2. I.A. No. 1 of 2025 is an application for condonation
Patna High Court L.P.A No.40 of 2025 dt.23-03-2026
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of delay. The Stamp Reporter has pointed out that there is

delay of 100 days in filing this LPA.

3. After hearing the learned counsel for the appellant

and going through the averments made in the interim

application, we are inclined to condone the delay in filing the

present LPA.

4. Accordingly, the delay of 100 days in filing LPA No.

40 of 2025 is condoned.

5. I.A. No. 01 of 2025 stands allowed.

LPA No. 40 of 2025

6. We have already passed an order on 16.03.2026 that

the matter will be taken up next week, so that the learned

counsel for the appellant will address both on the point of

condonation of delay as well as on the merit.

7. Today, learned counsel for the appellant has placed a

copy of the judgment dated 08.04.2025 passed by a Division

Bench of this Court in L.P.A No. 1030 of 2024, which is taken

on record.

8. The present LPA has been filed challenging the

order dated 05.09.2024 passed by the learned Single Judge in

CWJC No. 13369 of 2024. The writ petition was filed by the

respondent Rajiv Kumar seeking for the following relief(s):-

“I. Issuance of Writ, Order, direction in the
Patna High Court L.P.A No.40 of 2025 dt.23-03-2026
3/6

nature of Mandamus commanding the Respondents
especially Bihar Public Service Commission to
publish Supplementary, revised merit list for school
teachers in Primary School for Class I to V in
connection with Advertisement No. 26 of 2023 dt.
30.05.2023, against the vacancies under Economically
Weaker Section (EWS) that could not be filed due to
in ineligibility/disqualification of provisionally
successful candidates for non-passing of the CTET
and D.El.Ed. Examination.
II. Issuance of Writ in the nature of
Mandamus directing the Respondents to consider the
case of the Petitioner in the light of Judgment dt.
18.07.2024 passed in C.W.J.C. No.1151 of 2024
(Dhirendra Kumar and Ors. Versus The State of Bihar
and Anrs.).
III. To issue an appropriate writ/order in the
nature of Mandamus commanding the Respondents to
publish the result of the Petitioner in the fresh
Supplementary List and called the Petitioner for
documents verification and accordingly, allot
respective schools after the publication of the
Supplementary/revised merit list for teachers in
Primary school for Class I to V against Advertisement
No. 26 of 2023 dt. 30.05.2023 under Economically
Weaker Section (EWS).
IV. To issuance an appropriate writ, order,
direction in the nature of Mandamus commanding the
Respondents to consequently, lower down the cut-off
date of birth in all the categorizes in the
Supplementary/revised merit list for teachers in
Primary Schools for Class I to V against
Advertisement No. 26 of 2023 dt. 30.05.2023 and
publish the revised merit accordingly.
V. To issue an appropriate writ, order,
direction in the nature of Mandamus commanding the
Respondents not to merge/include the left over
vacancy of Advertisement No. 26 of 2023 dt.
30.05.2023 with the future vacancies of teacher
recruitment examination.
VI. To issue an appropriate writ, order,
direction in the nature of Mandamus commanding the
Respondents to furnish the details of the vacancies
accrued in Primary Teacher for Class I to V due to the
candidature rejection of successful candidates in want
Patna High Court L.P.A No.40 of 2025 dt.23-03-2026
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of CTET and D.El.Ed. certificates and for any other
reasons.
VII. To hold and declare that the
Respondents Bihar Public Service Commission is
legally bound to publish the Supplementary/revised
merit list for teachers in Primary School for Class I to
V in Advertisement No. 26 of 2023 dt. 30.05.2023 and
thereafter, on the basis of Supplementary/Revised
merit list for teachers, the appointments be made.”

9. When this matter was taken up for the first time on

05.09.2024, learned counsel for the appellant submitted that an

identical issue had already been decided by a co-ordinate Bench

of this Court vide order dated 18.07.2024 passed in CWJC No.

1151 of 2024 (Dhirendra Kumar & Ors. vs. the State of Bihar &

Ors.), and that the co-ordinate Bench, in paragraph no. 56 of the

aforesaid judgment, has held as follows:

“56. Accordingly, following directions are deemed
appropriate:
(i) The respondent nos. 1, 2, 3 and 4 are
directed to identify the number of vacancies that have
arisen due to non-appointment of the candidates
recommended by the B.P.S.C. as primary teacher for
class I-V pursuant to the Advertisement No. 26/2023
for want of requisite qualifications and convey it to
the respondent nos. 5, 6 and 7.
(ii) The respondent nos. 5, 6 and 7, on
receipt of the above information, shall publish a
supplementary result in order of merit from the
selection held pursuant to Advertisement No. 26 of
2023, subject to the candidate(s) having secured the
cut off marks and meets the cut off date of birth
prescribed by the B.P.S.C.”

10. Though the learned counsel appearing for the BPSC

sought for some time to examine as to whether the case of the
Patna High Court L.P.A No.40 of 2025 dt.23-03-2026
5/6

petitioner is covered by the aforesaid judgment or not and

liberty was granted but at the same time, the writ petition was

disposed of on the very same date i.e. 05.09.2024, therefore,

according to the learned counsel for the State, no opportunity

was granted to the learned counsel for the respondents in the

writ petition, so as to verify, whether the issue raised in the writ

petition is covered by the order dated 18.07.2024 passed in

C.W.J.C No. 1151 of 2024 or not.

11. Learned counsel for the appellant-State further

submits that the writ petition was disposed of in terms of the

order dated 18.07.2024 passed in CWJC No. 1151 of 2025.

However, the aforesaid order was challenged by the State of

Bihar and Ors., before this Court in L.P.A No. 1030 of 2024 and

this Court vide order dated 08.04.2025 set aside the order of the

learned Single Judge and came to hold in paragraph nos. 25, 26

and 27 as follows:-

“25. The law operating in the field in this
behalf is neither in doubt nor in dispute. There is no
legal right to appointment but only of being
considered, which is subject to bona fide action on
the part of the State. An aspirant has no legal right
and the superior Court, in exercise of its judicial
power of review, would not ordinarily direct
issuance of any writ in the absence of any pleading
and proof of mala fide or arbitrariness on the part of
the employer. [Refer to Shankarsan Dash Vs.
Union of India : (1991) 3 SCC 47; R.S. Mittal Vs.
Union of India : 1995 Supp.(2) SCC 230 and Food
Corporation of India & Ors. Vs. Bhanu Lodh &
Patna High Court L.P.A No.40 of 2025 dt.23-03-2026
6/6

Ors. : (2005) 3 SCC 618].
26. It is not incumbent upon the employer
to fill all posts but discretion not to appoint, must be
exercised judiciously. Courts normally would not
interfere with the discretion not to fill up posts but
exercise of such discretion should not be arbitrary,
capricious or whimsical. [Refer to Dinesh Kumar
Kashyap & Ors. Vs. South East Central Railway
& Ors. : (2019) 12 SCC 798].
27. For the afore-noted reasons, we are of
the opinion that it is not a fit case where the
impugned judgment could be sustained.”

12. In view of the fact that the writ petition was

disposed of in terms of the order dated 18.07.2024 passed in

CWJC No. 1151 of 2022, which has been set aside by a Division

Bench of this Court in L.P.A No. 1030 of 2024 vide order dated

08.04.2025, the present LPA is also disposed of in similar terms

of the order dated 08.04.2025 passed by the Division Bench of

this Court in L.P.A No. 1030 of 2024.

(Sangam Kumar Sahoo, CJ)

(Harish Kumar, J)

ranjan/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 23.03.2026
Transmission Date NA

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