Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5646 OF 2010
(Arising out of SLP (C) No.12866 of 2009)
Union of India and others …. Appellants
Versus
Miss Pritilata Nanda …. Respondent
O R D E R
Leave granted.
The only question which arises for consideration in this
appeal filed by the Union of India and four functionaries of South
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 III
post despite her selection by the competent authority only on the
ground that she did not get her name sponsored by an employment
exchange.
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 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. 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 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 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 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. 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
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 also remained member of
Parliament for two decades and did not face any difficulty in
discharging his role in that capacity.
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 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).
In Jacob M. Puthuparambil and others v. Kerala Water Authority
and others (1991) 1 SCC 28, this Court highlighted the importance
of both, Part III 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, 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 III of the Constitution. The
Constitution guarantees ‘equality’, 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 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 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 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
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 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,
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 certain justiciable
socio-economic rights and the Directive
Principles fix the socio-economic goals which the
State must strive to attain. These three together
constitute the core and conscience of the
Constitution.”
In last about six decades, the Parliament and State
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 their
dues.
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 on the part
of those entrusted with the task of doing justice on 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 Class III 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 III post with retrospective
effect, she has not thought it proper to appear and contest this
appeal filed against order dated 5.8.2008 passed by the Division
Bench of Orissa High Court in O.J.C. No.9958/2001.
In response to notification / advertisement dated 31.1.1987
issued by the office of Railway Divisional Manager, South Eastern
Railway, Khurda Road, the respondent applied for appointment as
Class III 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.XOI/30).
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 list.
Notwithstanding this, she was not appointed against one of the
advertised posts and those placed at Sl. 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 (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 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. 198 of 1997 in which she prayed
for issue of a direction to the concerned authorities of South
Eastern Railway to appoint her on a class III 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 candidature had not been sponsored by any special
employment exchange or any ordinary employment exchange.
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 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 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) CLT 335. In
that case, going by the decision of the Hon’ble
Supreme Court ion the case of Excise
Superintendent, Malkapatnam, 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 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 were directed to consider the
cases of those candidates 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 and viva voce was held on
28.8.1989 and 6.11.1989. Thus, the selection
process in this was 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.”
The respondent challenged the aforesaid order in O.J.C.
No.9958/2001. The Division Bench of the High Court referred to the
pleadings of the parties and observed:
“In view of the aforesaid stand taken by the
Railway 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 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 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 and viva voce tests and after name
find mention at serial No.11 of the merit list, it
was no longer open 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. 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 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, but
the Union of India, which is supposed to be an
ideal employer.”
The Division Bench then referred to the two judgments on which
reliance was placed by the respondent and observed:
“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 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 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.
We are of the view that the petitioner
satisfied all requirements of the advertisement
inviting applications by 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.”
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 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 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.”
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 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 be appointed against the advertised post
and the High Court committed serious error by ordaining her
appointment with retrospective effect along with monetary benefits.
In our opinion, there is no merit in the arguments of the
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 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
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:
“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
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
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.
(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 occur shall be such
as may be prescribed.
(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 under any of those sub-
sections.”
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 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 agency of the Employment Exchanges.
Far from it, Section 4(4) of the Act, on the other
hand, makes it explicitly clear that the employer
is under no obligation to recruit any person
through the Employment Exchanges to fill in a
vacancy merely because that 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.”
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 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 employer to employ those persons
only who have been sponsored by the Employment
Exchanges.”
(emphasis supplied)
In K.B.N. Visweshwara Rao’s case, a three-Judge 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 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 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 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
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
matter of employment would be available to all
eligible candidates.”
By applying the ratio of the above noted judgments to the case
in hand, we hold that the concerned authorities of the South
Eastern Railway committed grave illegality by denying appointment
to the respondent only on the ground that she did not get her name
sponsored by an employment exchange.
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 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 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.
We also agree with the High Court that once the 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 question her entitlement to be considered for appointment as
per her placement in the merit list on the specious ground that her
name had not been sponsored by the employment exchange.
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
employment guaranteed under Article 16 of the Constitution.
However, there is a small aberration in the operative part of
the impugned order. While the High Court was fully justified in
directing the appellants to appoint the respondent 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 Sl. No.12 at the merit
list was appointed and give her all monetary benefits with effect
from that date.
In the result, the appeal is dismissed. However, the
operative part of the impugned order is modified in the following
terms:
(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 III post. The appointment of
the respondent shall be made effective from the date person placed
at Sl. 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 be given actual monetary benefits with effect from
5.9.2008 i.e., the date 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 time to time and she be paid arrears
within a period of four months.
(3) The seniority of the respondent among Class III employees
shall be fixed by placing her below the person who was placed at
Sl. No.10 in the merit list.
(4) If during the intervening period, any person junior to the
respondent has been promoted 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.
(5) The General Manager, South Eastern 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 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.
The Divisional Railway Manager, South Eastern 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.
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-II, Dutta Tola, Post
Office/District – Puri, Orissa.
...….………………….………..J.
[G.S. Singhvi]
……..…..…………………………J.
[Asok Kumar Ganguly]
New Delhi
July 16, 2010.