IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17487 of 2010 BABLU KUMAR, SON OF BENI PRASAD, RESIDENT OF MOHALLA EAST LOHANIPUR(NEAR GIRI APARTMENT) POLICE STATION KADAM KUAN, DISTRICT PATNA. Versus 1. THE NATIONAL INSTITUTE OF TECHNOLOGY, PATNA THROUGH ITS DIRECTOR, NATIONAL INSTITUTE OF TECHNOLIGY, PATNA. 2. THE DIRECTOR, NATIONAL INSTITUTE OF TECHNOLOGY, PATNA. 3. THE REGISTRAR, NATIONAL INSTITUTE OF TECHNOLOGY, PATNA. ----------- 03. 15.11.2010 Counsel for the National Institute of Technology, Patna(hereinafter referred to as the NIT) has filed counter affidavit, which is taken on record. 2. Petitioner is the son of late Beni Prasad who died on 19.3.2009 while serving the NIT, Patna. He has filed this writ application assailing the order dated 1.9.2010, Annexure-8, whereunder his request for appointment on compassionate ground in NIT, Patna has been rejected observing that petitioner cannot be considered for such appointment as there is no Group-C, D posts available in the NIT, Patna as also candidature of others whose bread winner died earlier is still pending for such appointment. 3. By filing counter affidavit NIT has reinforced the ground taken in support of the order dated 1.9.2010 by stating that other son of late Beni Prasad is already employed elsewhere and family of the petitioner is not in penurious condition, in the circumstances, petitioner is not entitled for being considered for appointment on compassionate ground. 4. Counsel for the petitioner desires time to file 2 rejoinder to the counter affidavit, but such prayer is being refused in view of the fact that impugned order dated 1.9.2010, Annexure-8 is to be considered on the basis of the grounds stated therein and not on other grounds which is not taken in the order dated 1.9.2010, as it is well known that administrative order passed by the authorities is to be tested on the basis of the grounds taken therein and not with reference to the averments made in the counter affidavit. In this connection, reliance may be placed on the judgment of the Hon’ble Supreme Court in the case of Mohinder Singh Gill and another Versus The Chief Election Commissioner, New Delhi and others, reported in AIR 1978 SC 851 5. The ground taken in the impugned order dated 1.9.2010, Annexure-8 that there is no Group C, D vacancy available in the NIT also does not appear to be correct in view of the notification dated 28.1.2004, Annexure-1 of the Government of India taking over Bihar College of Engineering, Patna as NIT, wherefrom it is evident that personnel, assets both movable and immovable of erstwhile Bihar College of Engineering, Patna shall be deemed to have been transferred to the NIT. From Annexures-5, 9 it appears that there were 197 Class-III, IV posts available in the Bihar College of Engineering, Patna on the date of its take over, against which 160 persons were serving, whereafter another 30 Class-III post was sanctioned by the Government of India. The total number of Class-III post in NIT became 64 and the number of Class-IV post increased to 163. The authorities of the NIT in the counter affidavit have not 3 accepted that the vacancies available in the Bihar College of Engineering on the date of its take over were transferred to NIT, as according to the counsel for the NIT only the persons working on the date of take over in Bihar College of Engineering were taken over by the NIT and not the post. I regret not to accept such submission, in view of the contents of the notification of the Union dated 28.1.2004, Annexure-1 taking over the Bihar College of Engineering, Patna as NIT reciting in unequivocal term that personnel and assets both movable and immovable of erstwhile Bihar College of Engineering, Patna shall be deemed to have been transferred to the NIT. The assets taken over under notification dated 28.1.2004 will not only include the personnel but also the posts as personnel cannot exist without there being posts available for them. 6. Aforesaid views of mine is further reinforced in the light of the instruction of the Director, Human Resources Development Department of Higher Education, Government of India contained in letter issued in December, 2008, Annexure- 10, which inter alia state that on conversion of erstwhile Bihar College of Engineering, Patna to NIT, the posts which existed in the Bihar College of Engineering, Patna are deemed to be transferred to NIT. 7. In view of the contents of notification of the Government of India dated 28.1.2004, Annexure-1 and the letter of the Director, Human Resources Development Department of Higher Education, Government of India Annexure-10, I am satisfied that there is no dearth of posts in the NIT against 4 which petitioner and others whose cases are waiting for being considered for appointment on compassionate ground can be considered. Accordingly while setting aside the impugned order dated 1.9.2010, Annexure-8, I direct the respondents to consider the case of the petitioner and all others similarly situate persons for appointment on compassionate ground not only against 30 Class-III posts which were created after conversion of the Bihar College of Engineering into NIT, Patna under notification dated 28.1.2004, Annexure-1 but also against 163 Class-IV posts and 34 Class-III posts, which stood in the Bihar College of Engineering prior to its conversion as NIT, as early as possible, in any case within two months from the date of receipt/production of a copy of this order before the respondents 1, 2. 8. The writ application is, accordingly, disposed of. Rajesh/ ( V. N. Sinha, J.)