IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.618 of 2009 Dhiraj Kumar Yadav, son of late Hari Prasad Yadav, Resident of Mahespur, P.O-Mirjan Hat, P.S.-Mojahidpur, District-Bhagalpur. Petitioner. Versus 1. The T.M.Bhagalpur University, Bhagalpur through its Registrar. 2. The Vice Chancellor, T.M. Bhagalpur University, Bhagalpur. 3. The Registrar, T.M. Bhagalpur University, Bhagalpur. 4. The Deputy Registrar (Establishment), T.M., Bhagalpur University, Bhagalpur. 5. The Manager, University Press, T.M. Bhagalpur University, Bhagalpur. Respondents. For the petitioner: M/s Purushottam Kr. Jha, Advocate Sanjay Kumar, Advocate. For University: Mr. Anil Singh, Advocate. ---------- 3. 28.07.2011 Heard the counsel for the petitioner and the counsel appearing on behalf of the State Government Tilka Manjhi Bhagalpur University, Bhagalpur and the State. Petitioner’s father was working on the post of foreman in the University press of Tilka Manjhi Bhagalpur University, Bhagalpur. The father of the petitioner died in harness on 26th January, 1997. The petitioner filed his application for compassionate appointment. The University vide order no. 26/97 dated 04.06. 1997 (Annexure 1) appointed the petitioner on compassionate basis as a IVth Grade employee in the pay scale of Rs.775/--1025/-on this condition that if any of the information submitted by the petitioner found to be incorrect, his appointment will be cancelled and he will be regularized in service either on creation of the post as availability of the post. Petitioner was appointed as Class IVth employee, in anticipation 2 of vacancy on class IV post as there was no available vacant Class IV post at the relevant time, though there were vacancies on the post of Compositors, which is Class III post. Since, the day of his joining in the University, the petitioner was directed to discharge the duties on the post of Compositor, which was a sanctioned vacant post and till now, continuously he is working on the post of Compositor. He has represented on several occasions for regularization on the Compositor’s post, still the respondent are not considering his case for absorption against the post, he is working continuously for 14 years. It has also been submitted by the petitioners that the Press Committee of the University, had taken a resolution in the year 2007 that persons, who have been appointed on compassionate ground, will be absorbed on the sanctioned and availed posts, equivalent to the pay scale in which they have been appointed. Despite this resolution and there being vacancy, on the post, he is continuously discharging his duty, right from the date of appointment, no decision has been taken for his absorption. In the Counter affidavit filed on behalf of the University there is no denial that petitioner is working against the post of Compositor and he possess the requisite qualification for the post, but the stand taken by the University is that he cannot claim for his absorption on the post of Compositor, as his appointment was in the pay scale of Class IV employee. The 3 post of Compositor being Class III post, petitioner cannot claim his regularization. However, it has been stated that as and when post of Compositor will be advertised for regular appointment, the petitioner may apply for the post and his case will also be considered for appointment. What I find that, in between 1997 and 2008, the University has advertised vacancies of some class III post (Annexure-6), but post of Compositor was not advertised, despite the fact that six post of Compositors were vacant since 1997. Only reason, for this act of respondent authorities of the University, can be that six persons, receiving salary of class IV posts are working against class III Compositor Post, and work is not being hampered. This act of respondent University cannot be considered proper and legal. The stand taken by the respondent that petitioner cannot be absorbed against Class III post, even in the light of the resolution of the Press Committee as his appointment was on the class IV post, if taken to be correct, then also at least he could have been absorbed against Class IV post. Petitioner’s compassionate appointment itself could have been made against vacancy exiting in class III post, instead of anticipated vacancy in Class IV post. The University considering the eligibility, qualification of the petitioner and availability of vacancy in Class III post, should have taken decision for compassionate appointment of the petitioner against the existing vacancy. There was no reason for appointing the 4 petitioner against a post, which was not available at the relevant time. In case, the petitioner would have discharged his duties on the post of Compositor, for a few months, the matter would have been different, but continuously for 14 years he is working against this post. He is eligible for being appointed against that post as he posses requisite qualification for the post. There is no reason for not considering petitioner’s case for regularization, specially, when University is not advertising the vacancy. I find that petitioner has genuinely claimed for being absorbed against the post he is working continuously for 14 years. Accordingly, I find that the claim of the petitioner is fit to be allowed. The Vice Chancellor and Registrar of Tilka Manjhi Bhagalpur University are directed to consider petitioner’s case for absorption on the post of Compositor, against which he is working since 05.06.1997. He shall be allowed all consequential benefits attached to the post, with effect from the date of absorption. The necessary orders in this regard be passed within 8 weeks from the date of production/communication of the order. Kamlesh (Mridula Mishra, J.)