IN THE HIGH COURT OF JUDICATURE AT PATNA C. REV. No.223 of 2007 1. Md. Zafar Alam son of late Nasiruddin R/o Village Ahilgaon, P.S. Jalalgarh, Distt. Purnea, Presently posted as Sub-Divisional Education Officer, Birpur, Supaul 2. Gyan Prakash S/o Sri Ram Chhatri Singh @ Shyam Mani Tiwari R/o village Mangalpur Kala, Ward No.5 Shashtri Nagar, Bettiah, P.S. Nautan, Distt. West Champaran, at present posted Sub- Divisional Education Officer, East Champaran at Motihari. …….Respondents-Petitioners. Versus 1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Old Secretariat, Patna. 2. The Commissioner-cum-Secretary, Department of Personnel and Administrative Reforms, Govt. of Bihar, Old Secretariat, Patna 3. The Director (Administrative) Cum-Deputy Secretary, Department of Human Resources Development, Govt. of Bihar, Vikash Bhawan, New Secretariat, Patna. 4. The Bihar Public Service Commission through its Secretary, Bailey Road, Patna. 5. The Chairman, Bihar Public Service Commission, Bailey Road, Patna 6. The Deputy Secretary, Bihar Public Service Commission, Bailey Road, Patna. ……..Respondents-Opposite parties. 7. Chandrashekhar Azad S/o Sri Achyuta Nand Singh R/o C/o late Harnath Singh, Road No.1, Naya Tola Sasristabad, Post Anisabad, P.S. Gardanibagh, Distt. Patna. ……..Petitioner-Opposite party. For the petitioners : M/s Shailesh Kumar and Jainul Abedin, Advocates. For the State : Mr. Nirmal Kumar, Advocate. For B.P.S.C. : Mr. Ashok Kumar Choudhary, Advocate. ----------- 09/ 16.07.2010 Heard learned counsel for the petitioners, learned counsel for the State and learned counsel for the Bihar Public Service Commission. This petition has been filed by the petitioners for review of order dated 01.03.2007 by which C.W.J.C. No.321 of 2006 was disposed of with the following observations:- 2 “However, it appears to be the contention of the erstwhile members of the Commission and even the minority view of the present Commission, that the policy, as has been adopted now and as discussed above, was in vogue even for the 42th to 45th Combined Competitive Examination. It has been stated that when a candidate, having merit to occupy an open category post has been recommended for such post, but having regard to the fact that the post was not a choice post, reverted back to have a recommendation on the basis of his merit amongst his category, for all practical purposes, it must be deemed that he has eaten up that open category post and accordingly, the reserved post has not been filled up by him. This argument is not acceptable to Court. A person cannot have the cake and eat too. No doubt, he is entitle to exercise his right under Article 14 of the Constitution of India and accordingly, can say that I have merit and accordingly, I should be appointed to the post which is available for open category, but neither Article 14, nor the laws made for reservation, authorities him to say that if the post as is available in the open category is not suitable, I should be permitted to exercise yet another option by being treated in my class. In those circumstances, this writ petition is disposed of by directing the Commission to ascertain whether on the basis of the merit of the petitioner and by not adjusting the open category posts in the manner it had been adjusted upon conclusion of 45th Combined Competitive Examination, the petitioner was entitled to be recommended in a post in the open category for he belongs to open category and if so to make a suitable recommendation in favour of the petitioner. The commission is requested to expedite the matter and complete the exercise preferably within three months from today.” Although learned counsel for the petitioners vehemently challenges the aforesaid order of a Bench of this court, this court does not find any error apparent on the face of the record, nor does it find any fresh material to take a 3 different view. Accordingly, this civil review petition is dismissed. harish/ ( S. N. Hussain, J. )