UNION OF INDIA AND OTHERSversusMISS PRITILATA NANDA

                     [201 OJ 8 S.C.R. 733


               UNION OF INDIA AND OTHERS                           A
                               v.
                   MISS PRITILATA NANDA
               (Civil Appeal No. 5646 of 2010)

                        JULY 16, 2010
                                                                   B
   [G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]

     SERVICE LAW

    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    E
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                   F
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
                              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.

          SERVICE LAW
B        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.
  Registrar (Judicial}, Orissa High Court, Cuttack 83(1997) CLT
  335, relied on.

          Jacob M. Puthuparambil and others v. Kera/a Water
H
  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
                                                                     E
                             ORDER

     1. Leave granted.

    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 post despite her selection by the
competent authority only on the ground that she did not get her      G
name sponsored by an employment exchange.

       3. Since the inception of mankind, many lacs have suffered
.from different types of physical handicaps (today about 600
 million people suffer from such handicaps), but many of them
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    736     SUPREME COURT REPORTS                   [2010] 8 S.C.R.


A overcame all kinds of handicaps and achieved distinctions in
  various fields. Sarah Bernhardt - French actress was disabled
  by a knee injury. Her leg was amputated in 1914 but she
  continued to work on stage until just before her death.
  Beethoven was deaf when he composed his 9th symphony.
B Winston Churchill, Walt Disney, Thomas Edison, Albert Einstein,
  Alexander Graham Bell, Nelson Rockefeller, George
  Washington and many others had learning disability. Stevie
  Wonder who was blinded during his childhood became world
  famous pianist and singer: Brail, who was a blind, had the
C distinction of inventing script for the blind. With the aid of brail
  script, a large number of physically handicapped (blind) made
  tremendous achievement in life. Dr. Hellen Keller who was blind
  became an international figure because despite her handicap,
  she discovered the world through her finger tips. Her
D achievements of difficult goals and her loving kindness made
  her life an inspiration for countless people all over the world.
  Expressing his admiration for Dr. Hellen Keller, Eleanor
  Roosevelt wrote "in her life and happiness in life, Miss Keller
  has taught an unforgettable lesson to the rest of us who would
  not have had such difficulties to overcome. Ralph Barton Perry
E in his introduction to Dr. Keller's book 'The Story of My Life'
  wrote "it is true that Hellen Keller is handicapped as indeed,
  who is not but that which distinguishes her is not her handicap
  but the extent to which she has overcome it and even profited
  by it. She calls for sympathy and understanding and not pity.
F No one can know her or read her without feeling admiration and
  gratitude. Soordas and Milton, both of whom were blind made
  poetry great by their brilliance and richness of thoughts and
  language. Edison, a great scientist and inventor was deaf.
  Byron, a great poet of England and Taimoor Leng, Mangolian
G warrior were lame. Maharaja Ranjit Singh, a great warrior and
  administrator was handicapped in eye sight. Mr. Mukat Behari
  Lal, a renowned and eminent advocate of the country, who
  became blind at a young age acquired phenomenal memory
  and argued cases after cases with extraordinary brilliance. He
H also remained member of Parliament for two decades and did
  UNION OF INDIA AND ORS. v. PRITILATA NANDA                    737


not face any difficulty in discharging his role in that capacity.       A

     4. The framers of the Constitution recognized the necessity
of providing assistance to the physically challenged by making
it obligatory for the State, within the limits of its economic
capacity and development, to make effective provision for               8
securing the right to work, to education and to public assistance
in cases of unemployment, old age, sickness and disablement,
and in other cases of undeserved want. (Article 41 ).

    5. In Jacob M. Puthuparambil and others v. Kera/a Water
Authority and others (1991) 1 SCC 28, this Court highlighted            C
the importance of both, Part Ill and Part IV of the Constitution
in the following words:

     "The Preamble of our Constitution obligates the State to
     secure to all its citizens social and economic justice,            D
     besides political justice. By the Forty-second Amendment,
     the Preamble of the Constitution was amended to say that
     ours will be a socialistic democracy. In furtherance of these
     promises certain fundamental rights were engrafted in Part
     Ill of the Constitution. The Constitution guarantees 'equality',
                                                                        E
     abhors discrimination, prohibits and penalises forced
     labour in any form whatsoever and extends protection
     against exploitation of labour including child labour. After
     extending these guarantees, amongst others, the
     Constitution makers proceeded to chart out the course for
                                                                        F
     the governance of the country in Part IV of the Constitution
     entitled 'Directive Principles of State Policy'. These
     principles reflect the hopes and aspirations of the people.
     Although the provisions of this part are not enforceable by
     any court, the principles laid down therein are nevertheless
     fundamental in the governance of the country and the State         G
     is under an obligation to apply them in making laws. The
     principles laid down therein, therefore, define the
     objectives and goals which the State must endeavour to
     achieve over a period of time. Therefore, whenever the
      State is required to make laws it must do so consistently         H
    738       SUPREME COURT REPORTS                   (2010] 8 S.C.R.


A         with these principles with a view to securing social and
          economic freedom so essential for the establishment of
          an egalitarian society. This part, therefore, mandates that
          the State shall strive to promote the welfare of the people
          by minimising the inequalities in income and eliminating
B         inequalities in status, facilities and opportunities; by
          directing its policy towards securing, amongst others, the
          distribution of the material resources of the community to
          subserve the common good; by so operating the economic
          system as not to result in concentration of wealth; and by
c         making effective provision for securing the right to work as
          also to public assistance in cases of unemployment, albeit
          within the limits of its economic capacities. There are
          certain other provisions which enjoin on the State certain
          duties, e.g. securing to all workers work, a living wage, just
          and humane conditions of work, a decent standard of life,
D
          participation in management, etc. which are aimed at
          improving the lot of the working classes. Thus the
          Preamble promises socio-economic justice, the
          fundamental rights confer certa:n justiciable socio-
          economic rights and the Directive Principles fix the socio-
E         economic goals which the State must strive to attain. These
          three together constitute the core and conscience of the
          Constitution."

       6. In last about six decades, the Parliament and State
F Legislatures have enacted several laws for giving effect to the
  provisions contained in Part IV of the Constitution but
  implementation of these legislations has been extremely tardy
  and intended beneficiaries of such legislations have to struggle
  hard and, at times, seek intervention of the Court for getting
G their dues.

          7. In one of her lectures, Dr. Hellen Keller said: Science
    may have found a cure for most evils; but it has found no remedy
    for the worst of them all - the apathy of human beings. This
    appeal is one of many cases illustrative of lack of sensitivity
H
  UNION OF !NOIA AND ORS. v. PRITILATA NANDA                  739


on the part of those entrusted with the task of doing justice on     A
the administrative side which is sine qua non for good
governance. The respondent, who suffers from paralysis of
lower limbs, has become a victim of constitutionally flawed
approach adopted by the officers of South Eastern Railway and
has been deprived of her legitimate right to be appointed on a       8
Class Ill post. The respondent appears to have become so
frustrated that even though she succeeded in convincing the
High Court to issue a direction to the competent authority to
appoint her on a Class Ill post with retrospective effect, she has
not thought it proper to appear and contest this appeal filed        C
against order dated 5.8.2008 passed by the Division Bench
of Orissa High Court in O.J.C. No.9958/2001.

     8. In response to notification I advertisement dated
31.1.1987 issued by the office of Railway Divisional Manager,
South Eastern Railway, Khurda Road, the respondent applied           D
for appointment as Class Ill employee. At the relevant time, she
possessed the qualification of B.A. (Economics with. Hons.) and
was registered with Employment Exchange, Pun with
registration No.CW/750/87 (Code No.XOl/30).
                                                                     E
      9. The competent authority entertained the respondent's
application and allowed her to appear in the written test held
on 2.7.1989. On being declared successful in the written test,
the respondent was called for viva voce test. She was finally
selected and her name was placed at serial No. 11 in the merit
                                                                     F
list. Notwithstanding this, she was not appointed against one
of the advertised posts and those placed at SI. Nos.12 and 13
were offered appointment. The respondent represented her
grievance before the higher authorities of South Eastern
Railway, but without success. She then filed O.A. No. 112 of
1996 in Cuttack Bench of the Central Administrative Tribunal         G
(for short, 'the Tribunal'). The Tribunal passed an interim order
and made it clear that any future appointment of physically
handicapped candidate will be subject to the result of the O.A.
During the pendency of the case, the respondent's father was
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    740      SUPREME COURT REPORTS                 [2010] 8 S.C.R.


A informed by General Manager, South Eastern Railway, Caluctta
  that his daughter's case would be considered only if the O.A.
  is withdrawn. Thereupon, the respondent withdrew O.A. No. 112
  of 1996. However, her candidature was not considered
  necessitating filing of O.A. No. 198of1997 in which she prayed
8 for issue of a direction to the concerned authorities of South
  Eastern Railway to appoint her on a class Ill post. In the counter
  filed by the appellants herein, it was pleaded that even though
  the respondent had been selected, she was not offered
  appointment because her candidc.,ure had not been sponsored
C by any special employment exchange or any ordinary
  employment exchange.

       10. By an order dated 3.5.2001, the Tribunal dismissed
  O.A. No.198/1997 by observing that respondent's candidature
  was not sponsored by any employment exchange. The Tribunal
D distinguished the judgments of this Court in Excise
  Superintendent, Malkapatnam, Krishna District, A.P. v. K.B.N.
  Visweshwara Rao and others (1996) 6 SCC 216 and of the
  Orissa High Court in Susanta Kumar Kar v. Registrar
  (Judicial), Orissa High Court, Cuttack, 83(1997) CLT 335 by
E making the following observations:

          "In support of his contention the learned counsel for the
          petitioner has relied on the decision of the Hon'ble High
          Court of Orissa in the case of Susanta Kumar Kar vs.
          Registrar (Judicial), Orissa High Court, Cuttack, 83(1997)
F
          CLT 335. In that case, going by the decision of the Hon'ble
          Supreme Court ion the case of Excise Superintendent,
          Ma/kapatnam, Krishna District, Andhra Pradesh vs. KBN
          Viweshwara Rao and others, 19965 (7) SCC 201, the
          Hon'ble High Court have held that for the post of Junior
G         Assistant in the High Court of Orissa, compulsory
          sponsoring arrangement by employment exchange, if
          insisted upon, affects interests of those candidates who
          have not been able to register their names or are awaiting
          to be so registered, and therefore, the opposite parties
H
  UNION OF INDIA AND ORS. v. PRITILATA NANDA                741


    were directed to consider the cases of those candidates         A
    who have applied directly to the High Court. IN the instant
    case, the respondents in their counter have stated that
    applications were invited in 1987 and written test held on
    2. 7 .1989 anc;l viva voce was held on 28.8.1989 and
    6.11.1989. Thus, .the selection process in this was             B
    undertaken much before the decision of the Hon'ble
    Supreme Court and therefore the law as laid down by the
    Hon'ble Supreme Court in the above case is not
    applicable to the present case. We accept the above stand
    of the respondents."                                            c
     11. The respondent challenged the aforesaid order in
O.J.C. No.9958/2001. The Division Bench of tile High Court
referred to the pleadings of the parties and observed:

     "In view of the aforesaid stand taken by the Railway           D
     authority, the averments made by the petitioner remain
     uncontroverted and are affirmed. The recruitment process
     started in the year 1987 through an advertisement and
     thereafter, written test and viva voce test were held in the
   · year 1989 and the select list of candidates was published      E
     on 14.1.1992. It is indeed necessary to note the very sorry
     state of affairs of the manner in which the authorities
     concerned are dealing with the life and livelihood of
     common citizens. It needs to be reiterated that whereas
     physical handicapped candidates are required to be             F
     approached with a more compassionate manner, the
     authorities seem to have acted in a callous and heartless
     manner.

    Once the petitioner's application was accepted by the
    authorities and she was allowed to appear in the written        G
    and viva voce tests and after name find mention at serial
    No.11 of the merit list, it was n.o longer op,en to the
    authorities concerned to raise any question 'relating to
    petitioner's application for the purpose of dis-entitling her
    from the benefit of issuing her with an appointment letter.     H
    742       SUPREME COURT REPORTS                    [2010] 8 S.C.R.


A         We consider it to be a gross abuse of the statutory power.
          In the case at hand, the plight of the petitioner is writ large
          in the averments contained in the writ application and
          accompanying documents and unfortunately, the utter
          callous attitude of the authorities are writ large in the
B         counter affidavit filed on behalf of Opp. Party No.5. It is
          indeed unfortunate that a physically handicapped female
          candidate who had applied in the year 1989 and more
          than 20 years have lapsed by now, has been denied
          appointment by the Railway authorities which is none else,
c         bL..t the Union of India, which is supposed to be an ideal
          employer."

        12. The Division Bench then referred to the two judgments
    on which reliance was placed by the respondent and observed:

D         "It is reiterated herein that once the Court has held that
          compulsory sponsoring arrangement by Employment
          Exchange, if insisted upon, affects interest of those
          candidates who have not been able to register their names
          or are awaiting to be so registered, the same principle is
E         final and binding on all courts and Judicial Tribunals and
          would apply fully to any pending case. We are of the view
          that the Tribunal, in the present case has approached the
          subject in pedantic manner by treating the aforesaid
          judgment has only prospective operation even though the
          challenge was pending before it even after the judgments
          were pronounced both by the Hon'ble Supreme Court and
          the High Court. It is averred by the petitioner and not
          denied by the Opp. Parties that the petitioner had
          registered her name in the Employment Exchange, Puri
          and had been granted a Registration number. Apart from
G
          it, all necessary certificates in support of her being a
          handicapped candidate has been appended to her
          application along with her certificates of educational
          qualification.

H               We are of the view that the petitioner satisfied all
 UNION OF !NOIA AND ORS. v. PRITILATA NANDA                   743


    requirements of the advertisement inviting applications by       A
    the Railways and after accepting her application and
    ultimately preparing a select list which contained her name,
    not issuing appointment letter to her amounts to travesty
    of justice."
                                                                     B
     13. The Division Bench finally allowed the writ petition in
the following terms:

    "In view of the discussions made herein above, the writ
    application is allowed and the order impugned under
    Annexure-1 is quashed and we direct Opp. Parties 4 and           C
    5 to issue the petitioner with necessary letter of
    appointment and such appointment shall be given effect
    to from the date on which her juniors have been given
    appointment. We further direct that the petitioner shall also
    be entitled to full back wages and seniority. The letter of      o
    appointment be issued to the petitioner within a period of
    30 (thirty) days from the date of this judgment and all
    arrears be computed and paid to the petitioner within a
    period of six months from today."
                                                                     E
     14. Shri Mohan Jain, learned Additional Solicitor General
referred to the advertisement issued by the office of Divisional
Railway Manager to show that the names of the candidates
were required to be sponsored by any special or ordinary
employment exchange and argued that the appellants rightly
refused to appoint the respondent because her name had not           F
been sponsored by the employment exchange. Learned
Additional Solicitor General further argued that even though the
application of the respondent was entertained without insisting
on sponsoring her name by the employment exchange and her
name was included in the merit list, she did not acquire a to        G
be appointed against the adver:tised post and the High Court
committed serious error by ordaining her appointment with
retrospective effect along with monetary benefits.

     15. In our opinion, there is no merit in the arguments of the   H
    744      SUPREME COURT REPORTS                  [2010] 8 S.C.R.


A learned Additional Solicitor General. In the first place, we
  consider it necessary to observe that the condition embodied
  in the advertisement that the candidate should get his/her name
  sponsored by any special employment exchange or any
  ordinary employment exchange cannot be equated with a
8 mandatory provision incorporated in a statute, the violation of
  which may visit the concerned person with penal consequence.
  The requirement of notifying the vacancies to the employment
  exchange is embodied in the Employment Exchanges
  (Compulsory Notification of Vacancies) Act, 1959 (for short, 'the
C 1959 Act'), but there is nothing in the Act which obligates the
  employer to appoint only those who are sponsored by the
  employment exchange. Section 4 of the 1959 Act, which
  provides for notification of vacancies to employment exchanges
  reads as under:

D         "4(1) After the commencement of this Act in any State or
          area thereof, the employer in every establishment in public
          sector in that State or area shall, before filling up any
          vacancy in any employment in that establishment, notify that
          vacancy to such employment exchanges as may be
E         prescribed.

          (2) The appropriate government may, by notification in the
          Official Gazette, require that from such date as may be
          specified in the notification, the employer in every
          establishment in private sector or every establishment
F
          pertaining to any class or category of establishments in
          private sector shall, before filling up any vacancy in any
          employment in that establishment, notify that vacancy to
          such employment exchanges as may be prescribed, and
          the employer shall thereupon comply with such requisition.
G
          (3) The manner in which the vacancies referred to in sub-
          section (1) or sub-section (2) shall be notified of the
          employment exchanges and the particulars of employments
          in which such vacancies have occurred or are about to
H
   UNION OF INDIA AND ORS. v. PRIT!LATA NANDA                    745


      occur shall be such as may be prescribed.                          A

      (4) Nothing in sub-sections (1) and (2) shall be deemed
      to impose any obligation upon any employer to recruit any
      person through the employment exchanges to fill any
      vacancy merely because that vacancy has been notified              8
      under any of those sub-sections."

       16. A reading of the plain language of 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                 C
  exchanges. In Union of India v. N. Hargopal (1987) 3 SCC 308,
· this Court examined the scheme of the 1959 Act and observed:

      "It is evident that there is no provision in the Act which
      obliges an employer to make appointments through the               D
      agency of the Employment Exchanges. Far from it,
      Section 4(4) of the Act, on the other hand, makes it
      fiXplicitly clear that the employer is under no obligation
      to recruit any person through the Employment
      Exchanges to fill in a vacancy merely because that                 E
      vacancy has been notified under Section 4(1) or Section
      4(2). In the face of Section 4(4), we consider it utterly futile
      for the learned Additional Solicitor General to argue that
      the Act imposes any obligation on the employers apart
      from notifying the vacancies to the Employment
      Exchanges."                                                        F

      xxx   xxx                      xxx               xxx
      "It is, therefore, clear that the object of the Act is not to
      restrict, but to enlarge the field of choice so that the           G
      employer may choose the best and the most efficient and
      to provide an opportunity to the worker to have his claim
      for appointment considered without the worker having to
      knock at every door for employment. We are, therefore,
      firmly of the view that the Act does not oblige any                H
    746       SUPREME COURT REPORTS                  [2010] 8 S.C.R.


A         employer to employ those persons only who have been
          sponsored by the Employment Exchanges."

                                                (emphasis supplied)

      17. In K.B.N. Visweshwara Rao's case, a three-Judge
B Bench of this Court considered a similar question, referred to
  an earlier judgment in Union of India v. N. Hargopal (supra)
  and observed:

          "It is common knowledge that many a candidate is unable
c         to have the names sponsored, though their names are
          either registered or are waiting to be registered in the
          employment exchange, with the result that the choice of
          selection is restricted to only such of the candidates whose
          names come to be sponsored by the employment
D         exchange. Under these circumstances, many a deserving
          candidate is deprived of the right to be considered for
          appointment to a post under the State. Better view
          appears to be that it should be mandatory for the
          requisitioning authority/ establishment to intimate the
          employment exchange, and employment exchange should
E
          sponsor the names of the candidates to the requisitioning
          departments for selection strictly according to seniority and
          reservation, as per.requisition. In addition, the appropriate
          department or undertaking or establishment should call for
          the names by publication in the newspapers having wider
F         circulation and also display on their office notice boards
          or announce on radio, television and employment news
          bulletins; and then consider the cases of all the candidates
          who have applied. If this procedure is adopted, fair play
          would be subserved. The equality of opportunity in the
G         matter of employment would be available to all eligible
          candidates."

       18. By applying the ratio of the above noted judgments to
  the case in hand, we hold that the concerned authorities of the
H South Eastern Railway committed grave illegality by denying
 UNION OF INDIA AND ORS. v. PRITILATA NANDA                    747


appointment to the respondent only on the ground that she did          A
not get her name sponsored by an employment exchange.

     19. The issue deserves to be considered from another
angle. It was neither the pleaded case of the appellants before
the Tribunal and the High Court nor any evidence was produced          8
by them to prove that notification/advertisement dated
31.1.1987 was sent to all the employment exchanges including
the special employment exchanges in the State of Orissa.
Before this Court also, no document has been produced to
show that the advertisement was circulated to the employment           C
exchanges in the State. In this backdrop, it is not possible to
approve the stance of the appellants that the respondent was
not appointed because she did not get her candidature
sponsored by an employment exchange.

      20. We also agree with the High Court that once the              D
candidature of the respondent was accepted by the concerned
authorities and she was allowed to participate in the process
of selection i.e., written test and viva voce, it was not open to
them to turn around and q{Jestion her entitlement to be
considered for appointment as per her placement in the merit           E
list on the specious ground that her name had not been
sponsored by the employment exchange.

       21. In our considered view, by denying appointment to the
respondent despite her selection and placement in the merit
list, the appellants violated her right to equality in the matter of   F
employment guaranteed under Article 16 of the Constitution.

      22. However, there is a small aberration in the operative
part of the impugned order. While the High Court was fully
justified in directing the ap~ellants to appoint the respondent        G
from the date persons lower in merit were appointed, but it is
not possible to confirm the direction given for payment of full
salary with retrospective effect. In our view, the High Court
should have directed the appellants to notionally fix the pay of
the respondent with effect from the date person placed at SI.          H
    748     SUPREME COURT REPORTS                   [2010] 8 S.C.R.


A No.12 at the merit list was appointed and give her all monetary
    benefits with effect from that date.

        23. In the result, the appeal is dismissed. However, the
    operative part of the impugned order is modified in the following
    terms:
B
                (1)    The concerned competent authority of the
                       South Eastern Railway shall, within a period
                       of two weeks from today, issue order
                       appointing the respondent on a Class Ill post.
c                      The appointment of the respondent shall be
                       made effective from the date person placed
                       at SI. Nos.12 in the merit list was appointed.
                       The pay of the respondent shall be notionally
                       fixed with effect from that date and she shall
D                      be given actual monetary benefits with effect
                       from 5.9.2008 i.e., the dat6 specified in the
                       order passed by the High Court.

                 (2)   The pay of the respondent shall also be fixed
                       in the revised pay scales introduced from
E
                       time to time and she be paid arrears within
                       a period of four months.

                 (3)   The seniority of the respondent among Class
                       Ill employees shall be fixed by placing her
F                      below the person who was placed at SI.
                       No.10 in the merit list.

                 (4)   If during the intervening period, any person
                       junior to the respondent has been promoted
G                      on the next higher post, then her candidature
                       shall also be considered for promotion and
                       on being found suitable, she shall be
                       promoted with effect from the date any of her
                       junior was promoted and she be given all
                       consequential benefits.
H
  UNION OF INDIA AND ORS: v. PRITILATA NANDA                  749


             (5)   The General Manager, South Eastern                A
                   Railway is directed to ensure that the
                   respondent is not victimised by being posted
                   in a remote area.

             (6)   Since the respondent has been deprived of         B
                   her rights for almost 21 years, we direct the
                   appellants to pay her cost of Rs.3,00,000/-.
                   The amount of cost shall be paid within 2
                   months from today.

     24. The Divisional Railway Manager, South Eastern               C
Railway, Khurda Road shall send compliance report to this
Court on or before 22nd November, 2010. The Registry shall
bring the report to the notice of the Court by listing the case on
judicial side.
                                                                     D
     25. Copies of this order be sent to General Manager,
South Eastern Railway, Garden Reach, Calcutta, Divisional
Railway Manager (P), Khurda Road, Jatni, District Khurda and
respondent, Miss Pritilata Nanda, D/o Mr. Nityananda Nanda,
Nanda Nivas-11, Dutta Tola, Post Office/District~ Puri, Orissa.      E
RP.                                           Matter Adjourned.