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CASE NO.: Appeal (civil)  4265 of 2007

PETITIONER: Kendriya Vidyalaya Sangathan and Ors

RESPONDENT: Shri Dharmendra Sharma

DATE OF JUDGMENT: 14/09/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 4265 OF 2007 (Arising out of S.L.P. (Civil) No.15767 OF 2005)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a  Division Bench of the Rajasthan High Court, Jaipur Bench,  dismissing the writ petition filed by the appellants. Challenge  before the High Court was to the order dated 26.11.2002  passed by the Central Administrative Tribunal, Jaipur (in  short ’CAT’) in OA 35/2002.   

3.      Background facts in a nutshell are as follows:

       Father of the respondent was employed in Kendriya  Vidyalaya Sangathan (in short ’KVS’) and died in harness on  17.9.1999.  Respondent filed an application for appointment  on compassionate ground. The same was rejected by the  appellants. The respondent filed OA/2000 before the CAT  which was allowed and the Union of India and others were  directed to consider the request of the respondent for  appointment on compassionate ground against 5% of the 53  Group-D vacancies available. Despite these directions, the  prayer of the respondent was declined by order dated  18.9.2001. The order was challenged before the CAT by filing  OA 35/2002 which was decided on 26.11.2002.  Said order  was the subject matter of challenge before the High Court. 4.      Reference was made before the CAT to the decision of the  Government  in notification dated 6.12.1976 which prohibited  employment of contract labour for sweeping, cleaning, dusting  and watching of buildings in or occupied by establishments in  respect of the Central Government.  CAT rejected the plea  primarily on the ground that after earlier decision of the CAT,  the appellant did not have any right to reject the application of  the applicant for appointment on compassionate ground on  the ground that work of cleaning of school building or  maintenance of garden had been given to private agencies. The  Tribunal, while granting relief to the respondent, directed that  respondent’s name should be kept on panel for appointment  on compassionate ground and his case should be considered  as and when vacancy arises.  This view found acceptance of  the High Court.  It was of the view that it is a department

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which would create vacancy and department alone would take  work from an employee and not the contractor who may  employ a person of his choice. Accordingly, the writ petition  was dismissed.                                       5.      Learned counsel for the appellants submitted that a  policy decision had been taken not to make appointment of  Group ’D’ post.  It was submitted that the so called 5%  reservation from posts of Group ’D’ related to the Central  Government only and it did not apply to the appellants who  had their own operative regulations and norms.  By the said  policy decision, KVS decided to privatize certain services of the  schools as watch and ward duties of schools, cleaning of  school buildings, toilets, class rooms including dusting of  desks etc., proper maintenance of gardens, lawns and  compound which were being carried out by the Chowkidars,  Safai Karamcharis and Malis respectively.  In a sense, the KVS  abolished the direct recruitment of Group ’D’ employees.  The  office memorandum dated 10.12.1999 related to privatization  of certain services in schools of KVS.

6.      There is no dispute that such a policy decision had been  taken. What was contended by learned counsel for the  respondent is that certain categories of Group ’D’ posts were  not covered by the policy decision.  The Tribunal and the High  Court did not refer to the policy decision at all. On the  contrary, the High Court noted that contractor could employ  person of his choice and not somebody who may be an  applicant under compassionate appointment.  That is really of  no relevance.  Since the policy decision was not challenged, it  was incumbent upon the Tribunal and the High Court to  examine the applicability of the policy decision.  No direction  could have been given to KVS to act contrary to its policy  decision.   

7.      Therefore, the decision by CAT as affirmed by the High  Court cannot be maintained.  However, it is made clear if at  any point of time KVS wants to adopt any compassionate  appointments scheme and intends to make appointments in  Group D posts, the case of the respondent shall be duly  considered.  We make it clear that we have not expressed any  opinion as to the eligibility or otherwise of the respondent.   That is for KVS to decide.   

8.      The High Court’s order is set aside and the appeal is  allowed to the aforesaid extent with no order as to costs.