IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18483 of 2009 1. BINAY LAWRANCE MINJ S/O DOMINIC MINJ AT PRESENT RESIDING AT MOHANPUR PUNAICHAK, P.S.- SHASTRI NAGAR, DISTT.- PATNA Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY GOVERNMENT OF BIHAR, PATNA 2. THE PRINCIPAL SECRETARY DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS, GOVERNMENT OF BIHAR, PATNA 3. THE PRINCIPAL SECRETARY DEPARTMENT OF ENERGY, GOVERNMENT OF BIHAR, PATNA 4. THE PRINCIPAL SECRETARY DEPARTMENT OF FISHERIES, GOVERNMENT OF BIHAR, PATNA 5. THE PRINCIPAL SECRETARY DEPARTMENT OF SOCIAL WELFARE, GOVERNMENT OF BIHAR, PATNA ----------- 2. 2.4.2010 Heard learned counsel for the petitioner and the State. An advertisement was published on 18.3.1993 inter alia for 46 posts of Assistant in the Scheduled Tribe category. The petitioner claims to be a successful candidate. The merit list was published on 11.11.2000 in which his name is stated to figure at serial no. 41. Form these 46 recommendations, 31 persons came to be appointed. Obviously, the petitioner was not one of them. Litigation ensued with regard to the post advertised and the appointments made on a different post. This Court gave certain direction which culminated in L.P.A. No. 109 of 2002 based on which correction came to be made with regard to appointment on the post as per the advertisement. 2 Learned counsel for the petitioner submits that once the recommendation had been made on 9.2.2001, and 31 appointments made, if vacancies still remained, it was the obligation of the respondents to make the remaining appointments. The fact of the matter is that in pursuance of the orders in L.P.A. No. 109 of 2002, the State Government has on 4.11.2006 made appointments by correction on the posts advertised. Learned counsel next submitted that certain directions for appointment came to be made subsequently also on 17.8.2004 in writ petition filed by certain others in the year 2004. The letters Patent Appeal against the same, L.P.A. No. 568 of 2005 came to be dismissed on 31.8.2005. In an advertisement of 1999 and a recommendation of 9.2.2001, the petitioner was not even one of the 31 persons appointed on an erroneous post contrary to the advertisement. He chose to sleep over the matter when others more vigilant came to this Court which culminated in L.P.A. No. 109 of 2002. Those who came to be appointed on the post of L.D.C. and have fought for appointment to the post of Assistant stand in a category by themselves and the petitioner stands in a different category. The two 3 cannot be considered at par. In so far as the orders in L.P.A. No. 568 of 2005 is concerned, that is also of no avail to the petitioner. For like reason, he did not choose to come to this Court in the year 2004 also, if it could have condoned the lack of vigilance of his part in the year 2002. This Court in exercise of its discretionary jurisdiction under Article 226, can refuse to grant the same relief to the petitioner as may have granted to others alleged to be similarly situated. In this case, the Court does not find that the petitioner is similarly situated as the others. Nonetheless, even if this Court were to find so, the petitioner clearly falls in the category of a person who was not vigilant about his right and chose to do what is euphemistically called ‘fence sitting’ to await his move at the right point of time according to him. The principle finds reference at Paragraph 40 of the judgment reported in (2007) 2 SCC 725 (A.P. Steel Re-rolling Mill Ltd. Vs. State of Kerala & Ors.) read as follows:- “ The benefit of a judgment is not extended to a case automatically while granting relief in a writ petition, the High Court is entitled to consider the fact situation obtaining in each case including the conduct of the petitioner. In doing so, 4 the Court is entitled to take into consideration the fact as to whether the writ petitioner had chosen to sit over the matter and then wake up after the decision of this Court. If it is found that the appellant approached the Court after a long delay, the same may disentitle him to obtain a discretionary relief. If this Court were to grant any indulgence to the petitioner on this belated writ application, it shall be violating Article 14 of the Constitution of India as it shall be shutting out from consideration by denying even the right to apply the work to such new force which has now emerged afresh due to laches of the petitioner and has a constitutional right to be considered on any existing vacancies which are required to be advertised afresh. The writ application has no merit and it is accordingly dismissed. P. Kumar (Navin Sinha, J.)