Vidyalaya Sangathan and Ors Vs. Shri Dharmendra Sharma  Insc 920 (14 September 2007)
Arijit Pasayat & Lokeshwar Singh Panta
APPEAL NO. 4265 OF 2007 (Arising out of S.L.P. (Civil) No.15767 OF 2005) Dr.
ARIJIT PASAYAT, J.
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
Background facts in a nutshell are as follows:
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.
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 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.
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.
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.
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.
is for KVS to decide.
High Court's order is set aside and the appeal is allowed to the aforesaid
extent with no order as to costs.