IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.85 of 2008 RAM NARESH THAKUR Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner : Mr. Krishna Kant Singh. For the Respondent : None. ------ 03/ 12.05.2008 Heard. Appellant before us is a Class-IV employee of the State Government. He responded to an advertisement published by the Bihar Staff Selection Commission inviting applications from Class-IV employees to appear at an examination to be conducted by it for promotion to Class-III posts in the State of Bihar. The last date of responding to the said advertisement was 31st January, 2004. The appellant responded to the said advertisement and thereupon filed a writ petition along with five others on 18th March, 2004 seeking to contend that the advertisement, as published and responded by the appellant, is not correct. It was contended that the advertisement should have confined itself to the divisional need, but the advertisement purported to address to the State wise need, but in few of its departments. While the writ petition was pending, the appellant took the 2 maximum benefit of his response to the advertisement by sitting at the examination. After having had failed in the examination, he along with other petitioners pressed the petition to be heard on merits. Petition having not been heard on merits and the same having been dismissed, amongst others, on the ground that the person, who has taken advantage of a thing cannot turn around and challenge the very thing itself, the appellant alone and no other petitioner is before us. The learned counsel for the petitioner submitted that according to the Rules then in existence, the vacancies in the promotional posts were required to be determined on divisional basis and the same should have been made available to the persons working in those Divisions. The advertisement did not do so. The mandate, which is the foundation of the above submission, appears to be an executive instruction. There being no difference in the status of a Class-IV employee working in a department of State with another Class-IV employee working in another department of the State, they could not be classified on the basis of their placement in departments, unless it is shown, 3 which has not been shown, that they belong to separate cadres, for such a classification will have no logical nexus and accordingly, the very contention that as the appellant was working in a particular department or in a particular division, he acquired any right to be appointed in the vacancies in that department or division to the exclusion of other similarly situated persons working in some other department or division has no legal basis. That apart, a person may be permitted to blow hot, hotter and hottest, but not hot and cold in the same breath. Appellant having had taken the chance in terms of the advertisement without reserving his right, he is not entitle to challenge, after having had failed in his attempt, the very basis upon which the attempt was founded. The appeal is, accordingly, dismissed. S.B.P. (Barin Ghosh, J.) (C.M. Prasad, J.)