Dismissed

Bina Devi v. National Institute of Technolo

Jharkhand HC17 Feb 2022WPC/179/2010

Case brief

AI extract

What is this about?

The High Court of Jharkhand dismissed a writ petition seeking compassionate appointment. The Court held that the doctrine of equality was not violated as the petitioner applied for Group D posts with no vacancies, whereas the similarly situated appointee occupied a Group C post with existing vacancies. Mandamus cannot compel appointment in the absence of a vacancy.

What the court decided

AI extract

Bina Devi Vs National Institute of Technolo — Pension and Retirement Benefits | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 179 of 2010

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Bina Devi, Wife of Late Santosh Bahadur, Resident of Harijan Basti, Ichapur, P.O. and P.S.- R.I.T., Jamshedpur, Town Jamshedpur, District East Singhbhum … … Petitioner

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Versus

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National Institute of Technology, Having its office at N.I.T. Campus, Adityapur, Jamshedpur, P.O. and P.S. Jamshedpur Pin Code No. 831014, District East Singhbhum, through its Director.

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Director, National Institute of Technology, Having its office at N.I.T. Campus, Adityapur, Jamshedpur, P.O. and P.S. Jamshedpur Pin Code No. 831014, District East Singhbhum

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Dean, National Institute of Technology, Having its office at N.I.T. Campus, Adityapur, Jamshedpur, P.O. and P.S. Jamshedpur Pin Code No. 831014, District East Singhbhum

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… … Respondents

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Ms. Aakansha Mittal, Advocate For the Respondents : Mr. Anoop Kr. Mehta, Advocate Mr. Manish Kumar, Advocate

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Through Video Conferencing

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19 /17.02.2022 Heard Ms. Aakansha Mittal, learned counsel appearing on behalf of the petitioner.

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2. Heard Mr. Anoop Kr. Mehta, learned counsel appearing on behalf of the respondents along with Mr. Manish Kumar, Advocate.

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3. The present petition has been filed seeking a direction upon the respondents particularly respondent nos. 2 and 3 to forthwith take up the matter of appointment of the petitioner on compassionate ground and to appoint her on suitable post. The petitioner has raised a further grievance that the petitioner has been discriminated arbitrarily from the similarly situated persons including one Kanak Kumari who was given compassionate appointment on the post of Lower Division Clerk on 21.10.2008.

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4. This case was earlier taken up on 27.01.2017 and this Court observed that on perusal of the writ petition, it transpired that no order has been brought on record regarding the decision taken by respondent authorities and therefore, a direction was issued to the respondent institute to take a decision and pass a final order in accordance with law taking into consideration the order of Division Bench dated 22.02.2006 passed in L.P.A. No. 595 of 2004 (Kanak Kumari versus

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National Institute of Technology, Jamshedpur and Others) within a period of four weeks.

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5. Pursuant to such order, the respondents have taken up the case of the petitioner and passed an order dated 24.02.2017, inter alia, rejecting the case of the petitioner on the ground that the case of the petitioner was different from Kanak Kumari and there was complete ban made on all appointments after the conversion of the institute into National Institute of Technology, Jamshedpur on account of total unfavorable ratio of teaching and non-teaching post. It was also held in the impugned order that since no post was available for direct recruitment of non-teaching staff, no compassionate appointment could be made. However, in the said impugned order dated 24.02.2017, it was also observed that the name of the petitioner was kept in live roster for three years till 2011 and then taken out of the roster and when sufficient vacancies for direct recruitment are available to the post on which the petitioner can be considered for appointment commensurate with her educational qualification, she can be considered along with other applicants taking into consideration her family condition then vis-à-vis other applicants as per DOP&T guidelines. This order dated 24.02.2017 was challenged by the petitioner by way of amendment petition being I.A. No. 2694 of 2017. The said interlocutory application was allowed and was directed to be treated as a part of the main writ petition vide order dated 07.04.2017. Thus, the order dated 24.02.2017 is now the impugned order in the present writ petition .

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Arguments on behalf of the petitioner

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6. Learned counsel for the petitioner has submitted that the husband of the petitioner had expired on 22.03.2005 and the petitioner had made an application on 23.10.2008 seeking her appointment on compassionate ground and her case was kept pending on the ground that under the instructions of Central Government, the posts were not required to be filled up. She submits that the case of the petitioner is squarely covered by the judgement passed by this Court in L.P.A. No. 595 of 2004. She submits that the said LPA arose out of order passed in the case of one Kanak Kumari who filed a writ petition before this Court claiming compassionate appointment in writ petition being

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W.P.(S) No. 605 of 2004 and the Hon’ble Single Judge had dismissed the writ petition, inter alia, on the ground that there was complete ban on fresh recruitment. The said judgement was subject matter of appeal in the aforesaid L.P.A. and this Court allowed the L.P.A. in view of the fact that no material was brought on record showing complete ban on fresh recruitment. The learned counsel submits that in the present case also, the respondents have taken similar grounds.

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7. However, during the course of argument, the attention of the learned counsel for the petitioner was drawn on Annexure-4 to the present writ petition which is a letter dated 28.05.2003 issued by the Ministry of Human Resource Development (Department of Secondary and Higher Education), Government of India to the Principal/Director of all RECs/NITs mentioning therein as follows:

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“In view of the above, it is once again instructed that no Recruitments/Promotions should be effected in your Institution till the new Service Rules are notified.”

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8. The learned counsel has reiterated that the respondents having given appointment to one Kanak Kumari, cannot deny such compassionate appointment to the petitioner being similarly placed and such denial of the respondents to the petitioner is arbitrary and discriminatory and hence violative of Article 14 of the Constitution of India.

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Arguments on behalf of the respondents

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9. The learned counsel for the respondents, on the other hand, while opposing the prayer has submitted that Kanak Kumari was given compassionate appointment on account of the reason that there was a direction passed by this Court in the aforesaid L.P.A. and in the L.P.A. or the writ records of Kanak Kumari, no material could be brought on record regarding complete ban on recruitment. He also submits that Kanak Kumari was appointed in Group C post and vacancies in Group C post was existing and considering the directions of this Court and also, considering the vacancy position, the appointment was given to Kanak Kumari.

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10. While distinguishing the case of the petitioner from that of Kanak Kumari, the learned counsel for the respondents submits that the petitioner being not sufficiently qualified, had applied to the post of Group D, but there is no vacancy in Group D position and in fact,

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there are excess number of staffs under non-teaching category. The learned counsel has referred to the affidavit dated 28.06.2021 and has referred to another communication of the Ministry of Human Resource Development, Department of Higher Education, Government of India dated 12.06.2012 and addressed to the respondent no. 2 wherein it has been clearly mentioned that the corresponding non-faculty strength was revised to 271. In the said communication, it was observed that against the proposed strength of 37 of supporting staff, the actual strength is 144 and thus, there is surplus of 107 supporting staff. The learned counsel submits that as no vacancy is available for the category in which the petitioner has applied for compassionate appointment, no mandamus can be issued to give compassionate appointment to the petitioner.

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11. The learned counsel for the respondents has further submitted that as per the impugned order itself the entitlement of the petitioner is not completely closed. She can apply as and when such advertisements is issued for appointment in Group D post subject to certain other conditions as mentioned in the said impugned order itself.

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12. The learned counsel for the respondents has referred to the judgement passed by Hon’ble Supreme Court reported in (1996) 4 SCC 560 (Himachal Road Transport Corporation Vs. Dinesh Kumar) (para 10) and another judgement reported in (1996) 6 SCC 394 [Hindustan Aeronautics Limited Vs. A Radhika Thirumalai (Smt)] (para 6) to submit that an appointment on compassionate ground can be made only if vacancy is available. 13. Accordingly, the learned counsel for the respondents submits that no ground for interference with the impugned order or for issuance of a mandamus upon the respondents to give compassionate appointment to the petitioner is made out in the present case.

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Findings of this Court

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14. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, it is not in dispute that husband of the petitioner was working in the respondent institute since 2001 and he expired on 22.03.2005. The petitioner had filed an application for compassionate appointment on 23.10.2008 under

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Group -D post. Thereafter, the petitioner was informed that the Central Government through the Ministry of HRD, had directed for not filling up non-teaching post even if vacancies exist and the ratio of the faculty to non-faculty in the institute should be 1:1 and at that point of time, the same was much higher in Respondent N.I.T., Jamshedpur. This was informed to the petitioner vide communication dated 04.03.2009.

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15. From the records of the writ petition itself, it appears that the petitioner has herself annexed Annexure-4 which is dated 28.05.2003 which is a communication issued by Ministry of Human Resource Development (Department of Secondary and Higher Education), Government of India, wherein it has been clearly mentioned that the institute was once again instructed that no recruitments or promotion should be affected in the institution till the new service rules are notified.

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16. This Court further finds that the respondents have filed an affidavit dated 28.06.2021 clearly indicating that the corresponding non-faculty strength has been revised to 271 and there are surplus 107 supporting staffs. Thus, it is not in dispute that there is no vacancy available to the post of Group D and the petitioner had applied for compassionate appointment in Group D post and is not eligible for Group C post.

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17. Considering the aforesaid judgements which have been relied upon, this Court is of the considered view that in absence of any existing vacancy, no mandamus can be issued to the respondents to appoint the petitioner on compassionate ground against Group D post. 18. In the judgement reported in (1996) 4 SCC 560 (Himachal Road Transport Corporation Vs. Dinesh Kumar) it has been held that in absence of a vacancy it is not open to the Corporation to appoint a person to any post. It will be a gross abuse of the powers of a public authority to appoint persons when vacancies are not available. If persons are so appointed and paid salaries, it will be a mere misuse of public funds, which is totally unauthorized. It has also been held that normally, even if the Tribunal finds that a person is qualified to be appointed to a post under the kith and kin policy, the Tribunal should only give a direction to the appropriate authority to consider the case

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of the particular applicant, in the light of the relevant rules and subject to the availability of the post. It is not open to the Tribunal either to direct the appointment of any person to a post or direct the authorities concerned to create a supernumerary post and then appoint a person to such a post. Similarly, in the judgement reported in (1996) 6 SCC 394 [Hindustan Aeronautics Limited Vs. A Radhika Thirumalai (Smt)] it has been held that an appointment on compassionate grounds can be made only if a vacancy is available and such appointment is to be made as per the policy of the concerned organization.

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19. So far as the case of Kanak Kumari is concerned, the learned counsel for the respondents has rightly distinguished the case of Kanak Kumari from that of the petitioner and it is not in dispute that Kanak Kumari was appointed against Group C post where the vacancy was available. It further appears that in the case of Kanak Kumari, no document/material was brought on record regarding any ban on fresh recruitment, and in the present case, the petitioner has herself brought on record Annexure- 4 which has been issued by the Ministry of Human Resource Development (Department of Secondary and Higher Education), Government of India directing that no recruitment/promotion should be effected in the institution till the new service rules are notified.

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20. In view of the aforesaid facts and circumstances, particularly in absence of any vacancy in Group -D post, this Court finds no ground to interfere with the impugned order dated 24.02.2017 issued by the Registrar of the respondent Institute.

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21. However, as already observed in the impugned order, it will be open to the petitioner to apply for compassionate appointment as and when such advertisement is issued and the case of the petitioner would be considered along with other applicants taking into consideration her family condition then vis-à-vis other applicants as per DOP&T guidelines.

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22. With the aforesaid observations and directions, the present writ petition is disposed of.

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23. Pending interlocutory application, if any, is closed.

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(Anubha Rawat Choudhary, J.)

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Pankaj

Bina Devi v. National Institute of Technolo

Case brief

What is this about?

What the court decided

Bina Devi v. National Institute of Technolo

Case brief

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