IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 10687 of 2009 Vijay Kumar Mandal, son of late Ram Sewak Mandal, resident of Village - Bhattpura, Police Station – Manigachhi, District – Darbhanga-Petitioner Versus 1 The National Institute of Technology, Patna through its Director, National Institute of Technology, Patna 2 The Director, National Institute of Technology, Patna 3 The Registrar, National Institute of Technology, Patna -Respondents *** For the petitioner : Mr Siya Ram Shahi For the respondents : Mr Shashi Bhushan Prasad *** 6 13.10.2009 The right of petitioner to be considered for compassionate appointment in the National Institute of Technology, Bihar at Patna is not in dispute. What is in dispute is whether he shall get appointment on basis of the Central Government guideline in this regard. It is not in dispute that the Central Government guidelines provide that 5% of the service strength has to be reserved for appointment of persons on compassionate ground. The dispute, thus, is as to how this 5% has to be calculated. The bold stand of NIT is that there are only 30 sanctioned post of Grade-C and 8 sanctioned post of Grade-B as sanctioned by Ministry of Human Resources, Government of India after the Bihar College of Engineering, a constituent college of the Patna University was taken over with effect from 28.01.2004 by notification of the same date issued by Government of India in the Ministry of Human Resources Development, Department of Secondary and Higher Education (Annexure-A to the 2 supplementary counter affidavit). NIT further states that calculating 5% of 30 Grade-C post, as sanctioned, it comes to only 1 post. Thus, there is a waiting list and petitioner is at serial No 4. As and when his chance comes, he may be considered. On the other hand, there is no sanctioned post so far as Grade-D which is equivalent to Class-IV post and that being so for the present, petitioner cannot be considered for appointment on compassionate ground. To the contrary, learned counsel for the petitioner submits that the statement, as made by NIT, is deliberately false to their knowledge and only to mislead this Court for the purposes of denying petitioner the right to be considered for appointment on compassionate basis. This strong objection of the petitioner is sought to be substantiated from their own pleadings of NIT. NIT has admitted that on the date of take over, there were 140 Class-III and Class–IV employees out of which 17 were employees associated with Intermediate (Science) Section and, as such, were taken back by Patna University. That left 123 employees of Class- III and Class-IV. Out of this 123 strength of Class-III and Class- IV employees who were there at the time of take over, 5% is reserved for compassionate appointment. That would come to at least 5. Petitioner being 4th as per NIT’s own stand in the seniority for consideration had to be considered for compassionate appointment. Learned counsel for the petitioner further refers to the take over notification dated 28.01.2004 (Annexure-A to the supplementary counter affidavit) and points out that the said 3 notification leaves no manner of doubt when it states “the personnel and the assets – both moveable and immoveable – of erstwhile Bihar College of Engineering which was hitherto under the control of Government of Bihar on the date of such transfer shall be deemed to have been transferred to the National Institute of Technology, Patna, Bihar. Thus, petitioner submits that the entire teaching and non-teaching staff, later consisting of Grade-C and Grade-D would automatically become staff of NIT within its deemed sanctioned strength. It is further pointed that there were about 35 persons in the non-teaching staff of Grade-III equivalent to Grade-C at the time of take over. When the Central Government, in the Department of Human Resources Development, sanctioned 30 posts of Grade-C, it could only mean that this was in addition to the Class-III (Grade-C) employees already working and taken over. Learned counsel for the NIT takes objection to this and states that there are only 30 sanctioned posts of Grade-III (Grade-C) as done by Central Government and these sanctioned posts are not in addition to what already was taken over. In other words, what is stated by the learned counsel for the NIT is that whatever may have been the position at the time of take over, at present there are in all only 38 sanctioned posts in NIT, 8 of Class-II that is Grade-B and 30 of Grade-C. There are no sanctioned posts whatsoever of Grade-D (Class-IV). It is the correctness of these rival contentions that has to be considered by this Court. 4 With consent of parties, the writ petition has been heard on several dates and is now being disposed of at this stage itself. Having considered the matter, in my view, on its own pleadings, as made in the counter affidavit and the supplementary counter affidavit, the stand of NIT cannot be accepted. Petitioner may be correct in submitting that it is a deliberately false stand taken by NIT before this Court only to mislead this Court to deny consideration of petitioner’s case. This is apparent from their own averment in their supplementary counter affidavit and in their own conduct in that regard. As noted above, the stand of NIT is that 5% of the sanctioned strength is to be the position which would be available to persons seeking compassionate appointment. There cannot be any dispute with this. The dispute is what is understood by “sanctioned strength”. NIT submits that there is no sanctioned strength of Class-IV (Grade-D) employees whatsoever. So far as Class-III (Grade-C) is concerned, there are only 30 sanctioned posts and these are not in addition to the existing employees. In my view, the stand is deliberately misleading inasmuch as if this was correct then as per their own statement contained in Annexure-B and averment made in paragraph-7 of the supplementary counter affidavit, there were already 39 Class-III (Grade-C) employees in employment at the time of take over. If 30 posts were subsequently sanctioned then these 30 posts had to be utilised for people already in employment but again this is not 5 so. As per their own stand, notwithstanding 39 Class-III (Grade- C) employees already in their employment consequent to sanction of 30 Grade-C posts, fresh advertisement for those 30 posts were made and fresh recruitment done in addition to 39 existing. Thus, the stand of NIT is false on the face of it which is proved by their own conduct. Secondly, if there are no sanctioned posts for Class-IV employees at all then how is the institution to work without any sanctioned Class-IV post. Merely because the take over Ordinance and the Memorandum of Association in relation to NIT states that all employees on the date of take over will be taken over cannot be said that that will not be the sanctioned strength for that would be a contradiction in terms keeping employees without sanctioned strength. It is, thus, abundantly clear that taking into consideration the number of employees already there in Class-III and Class-IV (Grade-C and Grade-D respectively), further posts are being sanctioned. It is inconceivable that a National Institute of Technology would work with only 38 sanctioned posts but still have employees strength of over 150. It is because of this diabolical stand taken that the Court accepts the submission of the petitioner that this stand is taken only to defeat the legitimate claim of the petitioner. At the time of take over, admittedly, as per Annexure-B to the supplementary counter affidavit of NIT, the total strength of non-teaching Class-IV (Grade-D) employees, with which we are actually concerned, was 101 out of which substantial number have retired or expired and the total number of 6 compassionate appointment against this 101 being minimum 5 (5%) and petitioner being 04th in the serial, in my view, petitioner cannot be denied the appointment on the ground that no posts are available. As noted above, the plea of NIT in this regard is unsustainable for the facts noted above. It does not behove of an organization of the status of NIT to take such diabolical stand to defeat legitimate claims of citizens. I, accordingly, hold so and direct NIT to forthwith consider the case of petitioner for being given employment in Grade-D (Class-IV) post if he otherwise not ineligible. With these observations and directions, the writ petition is allowed. M.E.H./ (Navaniti Prasad Singh)