KENDRIYA VIDYALAYA SANGATHAN AND ORS.versusSHRI DHARMENDRA SHARMA

                KENDRIY A VIDYALAYA SANGATHAN AND ORS.                                A
                                          v.
                          SHRI DHARMENDRA SHARMA

                               SEPTEMBER 14, 2007

         (DR. ARIJITPASAYAT AND LOKESHWAR SINGH PANT A,JJ.J                           B

          Service Law:

          Compassionate appointment-Appointment against quota reserved for
    compassionate appointment denied to respondent on ground of policy C
    decision-Correctness of-Held: A policy decision not to make appointment
    in Group 'D' posts taken by the appellant-organisation was not challenged
    by the respondent-Courts b<;/ow did not refer to the policy decision before
    arriving at the findings-Hence, direction of Central Administrative Tribunal
    to appellant-organisation to appoint the respondent on compassionate ground D
    against quota reserved for such posts, as affirmed by the High Court, cannot
    be maintained-However, [f the appellant at any point of time, adopt any
    compassionate appointment scheme and intends to make appointment in
    Group 'D' posts, the case of the respondent shall be duly considered-
    Directions issued
                                                                                      E
           Father of the respondent was employed in Kendriya Vidyalaya Sangathan
    and died in harness on 17.9.1999. An application filed by the respondent for
    appointment on compassionate ground was rejected by the authorities.
    Aggrieved, the respondent filed a petition before the Central Administrative
    Tribunal, which was allowed by it directing the appellant to appoint the          F
    respondent on compassionate ground. Despite the directions, prayer of the
    respondent was rejected by the appellant vide its order dated 18.9.2001. The
    order was challenged by the respondent before the CAT by filing another
    petition. The Tribunal, while granting relief to the respondent, directed that
    respondent's name should be kept on panel for appointment on cortapassionate
    ground and his case should be considered as and when vacancy arises.              G
    Appellant challenged the order by filing a writ petition before the High Court,
)   which was allowed by the High Court. Hence the present appeal.
J         Appellant-Organisation contended that a policy decisiou had been taken

                                         1007
    1008                  SUPREME COURT REPORTS                    [2007] 9 S.C.R.

A   not to make appointment of Group 'D' post

           Partly allowing the appeal, the Court

          HELD: 1.1. The Tribunal and the High Court did not refer to the policy
    decision at all. (Para 6) (1010-A)
B
           1.2. 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 Kendriya Vidyalaya Sangathan
    to act ctontrary to its policy decision. Therefore, the decision by CAT as
    affirmedby the High Court cannot be maintained. However, it is made clear if
C   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. It is clarified further that no opinion
    has been expressed as to the eligibility or otherwise of the respondent That
    is for KVS to decide. (Paras 6 and 7) (1010-A-C)
D          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4265 of2007.

          From the Judgment and Order dated 16.03.2005 of the High Court of
    Rajasthan at Jaipur Bench in D.B. (C) Writ Petition No. 988 of 2003.
                                                                                          .
                                                                                          t




           S. Rajappa and Jayaraman for the Appellants.
E
         Manoj Swamp, Lalita Kohli A.K. Tripathi and Manoj Swamp & Co., for
    the Respondents.

           The Judgment of the Court was delivered by

F          DR. ARIJIT PASAYA T, 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
G   26.11.2002 passed by the Central Administrative Tribunal, Jaipur (in short
    'CAT') in OA 35/i002.

           3. Background facts in a nutshell are as follows:                          (

           Father of the respondent was employed in Kendriya Vidyalaya Sangathan          J_
H (in short 'KVS') and died in harness on 17.9.1999. Respondent filed an
 KEN.VIDYA.SANGATHANv. DHARMENDRASHARMA[PASAYAT,J.] l 009

application for appointment on compassionate ground. The same was rejected      A
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       B
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 Jabour C
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 D
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 E
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 F
Government only and it did not apply to the appellants wbo 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 G
respectively. In a sense, the KVS abolished the direct recruitment of Group
'D' employees. The office memorandum dated I 0.12.1999 related to privatization
of certain services in schools of KVS.

      6. There is no dispute that such a policy decision had been taken. What   H
    1010                  SUPREME COURT REPORTS                     [2007] 9 S.C.R.

A   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
B   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
C   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.

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

    S.K.S.                                                 Appeal partly allowed.