LexUNION OF INDIA AND OTHERS versus MISS PRITILATA NANDA
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[201 OJ 8 S.C.R. 733 UNION OF INDIA AND OTHERS v. MISS PRITILATA NANDA (Civil Appeal No. 5646 of 2010) JULY 16, 2010 [G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.] SERVICE LAW A B Employment Exchanges (Compulsory Notification of c Vacancies) Act, 1959: s. 4 - Appointment - Vacancies to be notified to Employment Exchanges - A handicapped candidate registered in Employment Exchange, though selected, yet denied appointment stating that she did not get her name D sponsored by the Employment Exchange - HELD: The condition embodied in the advertisement that the candidate should get his/her name sponsored by the employment exchange cannot be equated with a mandatory provision incorporated in a statute, the violation of which may visit the person concerned with penal consequence - Section 4 makes it clear that even though the employer is required to notify the vacancies to the employment exchanges, it is not obliged to recruit only those who are sponsored by the employment exchanges - The authorities concerned committed grave illegality by denying appointment to the claimant only on the ground that she did not get her name sponsored by an employment exchange - It was neither the pleaded case of the authorities nor any evidence has been produced by them to prove that the notification/advertisement G was sent to all the employment exchanges including the special employment exchanges in the State of Orissa - By denying appointment to the claimant, despite her selection and placement in the merit list, the employer violated her right E F 733 H 734 SUPREME COURT REPORTS [2010] 8 S.C.R. A to equality in the matter of employment guaranteed under Article 16 of the Constitution - Constitution of India, 1950 - Article 16. B SERVICE LAW Backwages and seniority - Appointment illegally denied to a handicapped candidate - High Court directing appointment of claimant from the date the candidate below her in merit list was appointed, with full back wages and seniority - Held: While the High Court was fully justified in C directing the employers to appoint the claimant from the date the persons lower in merit were appointed, but, the direction given for payment of full salary with retrospective effect cannot be approved - High Court should have directed the employers to notionally fix the pay of the claimant with effect D from the date the person placed below her in the merit list was appointed and give her all monetary benefits with effect from that date - The seniority of the claimant shall be fixed in accordance with her position in the merit list - If during the intervening period, any person junior to the claimant has been E promoted on the next higher post, then her candidature shall a/so be considered for promotion and on being found suitable, she shall be promoted with effect from the date any of her junior was promoted, with all consequential benefits - Since the claimant has been deprived of her rights for almost F 21 years, the employers are directed to pay her cost of Rs. 3, 00, 0001- - Costs. Union of India v. N. Hargopal 1987 (2) SCR 911 =(1987) 3 SCC 308; Excise Superintendent, Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao and others 1996 (5) G Suppl. SCR 73=(1996) 6 SCC 216; Susanta Kumar Kar v. H Registrar (Judicial}, Orissa High Court, Cuttack 83(1997) CLT 335, relied on. Jacob M. Puthuparambil and others v. Kera/a Water UNION OF INDIA AND ORS. v. PRITILATA NANDA 735 Authority and others 1990 (1) Suppl. SCR 562=(1991) 1 A sec 28, referred to. Case Law Reference: 1990 (1) Suppl. SCR 562 referred to para 5 B 1996 (5) Suppl. SCR 73 relied on para 10 83(1997) CLT 335 relied on para 10 1987 (2) SCR 911 relied on para 16 CIVIL APPELLATE JURISDICTION : Civil Appeal No. C 5646 of 2010. From the Judgment & Order dated 05.08.2008 of the High Court of Orissa at Cuttack in Original Jurisdiction Case No. 9958 of 2001. D Mohan Jain, D.K. Thakµr, Rohini Mukherjee, Subhash Kaushik, A.K." Sharma, Sushma Suri for the Appellants The following order of the Court was delivered ORDER 1. Leave granted. E 2. The only question which arises for consideration in this appeal filed by the Union of India and four functionaries of South F Eastern Railway against the order of the Division Bench of Orissa High Court is whether respondent - Miss Pritilata Nanda, who is physically handicapped, could be denied appointment on Class Ill
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