IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3953 of 2010 1. SANTOSH KUMAR S/O BISUNDAYAL RAM R/O VILL.- AGRASANDA, P.S. ARA (MUFFASIL), DISTT.- BHOJPUR 2. NITISH KUMAR AZAD S/O SATENDRA PRASAD RAI R/O VILL.- DHAMAR, P.S. ARA (MUFASSIL), DISTT.- BHOJPUR Versus 1. THE STATE OF BIHAR THROUGH HOME COMMISSIONER GOVT. OF BIHAR, PATNA 2. THE DIRECTOR GENERAL OF POLICE BIHAR, PATNA 3. THE CHAIRMAN null CONSTABLE SELECTION BOARD, SHAHABAD, REGION, BOARD NO. 1-CUM- POLICE SUPERINTENDENT, SPECIAL BRANCH, BIHAR, PATNA 4. THE DEPUTY INSPECTOR GENERAL OF POLICE SHAHABAD REGION, DEHRI-ON-SON 5. THE SUPERINTENDENT OF POLICE BHOJPUR ----------- 3/ 08/11/2010 Heard learned counsel for the petitioners and learned counsel for the State. Counter affidavit has been filed on behalf of the respondents. The petitioners were applicants under advertisement No.1/2004 for appointment on the post of Constable in the district of Bhojpur quantified at 331 vacancies and were called for physical test. Claiming to be successful in the physical test petitioner No.1 having secured 13 marks and petitioner No.2 having secured 14 marks, in their respective Scheduled Caste Category and Backward Class Category, but denied appointment they came to this Court in C.W.J.C. No.11989/09. The application was disposed on 11.9.2009 with directions to represent when either their joining was to be accepted or a reasoned order as to why they could not be asked to join was required to be - 2 - passed. The impugned order dated 28.10.2009 has been passed in pursuance of the same individually with regard to the two petitioners. It states that the press note dated 7.9.2008 called them for verification of their documents explicitly stating that it may not be understood as an appointment letter. Secondly, reliance was placed on an order of this Court in C.W.J.C. No.5230/09 holding that the selection process and consequent appointments in pursuance of advertisement of 2004 had finally closed. It is not in controversy that subsequently advertisement No.1/09 has also been issued. Learned counsel for the petitioner submitted that the impugned order dated 28.10.2009 is not in accordance with the directions of this Court dated 11.9.2009. No reasons have been assigned why the petitioners have not been selected. The counter affidavit on behalf of respondent No.3 at paragraph-5 states that in the Scheduled Caste Category to which petitioner No.1 belonged, another candidate with 13 marks having his date of birth as 7.12.1982, when the petitioner’s date of birth was 1.2.1984, has been appointed. Likewise, in the Backward Caste Category to which petitioner No.2 belonged, the candidate having 14 marks as he but with the date of birth as 23.1.1981 when the petitioner’s date of birth is 8.2.1983 has been appointed. - 3 - No allegations have been levelled in the writ petition that any person with lesser marks than the petitioners in their reserved category has been appointed. It is an accepted principle of service jurisprudence that when two competing candidates have the same marks, the person with an earlier date of birth is appointed on basis of seniority. The petitioners have not placed any other materials on record with regard to any violation of the reservation roster etc. No other ground has been urged. In that view of the matter, learned counsel for the petitioner prays for leave to withdraw the application to pursue remedies before the authorities themselves, if so advised. The law stands well settled that no person can be vexed more than once on the same issue applying the principle of constructive res judicata. If the petitioners represent and any fresh orders are passed in pursuance of the present observations, that shall not vest a fresh cause of action in the petitioners to approach this Court again as they are required to compile their full facts and figures and then present the same before the Court. The application is dismissed as withdrawn. KC ( Navin Sinha, J.)