State of Bihar and Others v. Kripa Nano Singh and Another

KURIAN, J.: 1. Leave granted. 2. 'No work, no pay', is the rule and 'no work, yet pay', is the exception. Compulsory waiting period is one such exception. But to qualify for the exception, an employee has to establish that he had made earnest endeavors and yet that he was not able t9 join duty for no fault on his part. He must also show his earnestness to join duty. Voluntary waiting period is not covered by the exception. 3. First respondent was appointed Teacher in political G science as per Memo No. 400-548 dated 05.02.1986 and he was directed to join the High School, Kisko, Lohardagga within 21 days. He reported for duty on 24.02.1986. However, his appointment order was returned by the Headmaster with the endorsement as under: H "According to the memo no. 400-548 dated 5th February, 1986 Shri Kripanand Singh (Assistant Teacher) has been appointed in Political Science subject issued by the Deputy Director of Education Secondary, Budhmarg, Patna. In this School already Teachers in Political Science and History subjects are working. In this school there is only one vacant post of Hindi subject. Therefore, it is not possible to accept joining of him in this School." 4. After five years, by Memo No. 1736-79 dated 17.07.1991 issued by Deputy Director Education, Patna, first respondent was posted in the High School Sahjadpur (Madhepura). However, there also, there was no vacant post. D Therefore, by Memo No. 333-6 dated 24.07.1991 issued by Additional Director of Education, Darbhanga and Kasi Division, first respondent was directed to join in the High School Balwahat (Sarharsa). 5. After ten years of his joining duty, first respondent filed E Writ Petition CWJC No. 16087 of 2001 before the High Court of Judicature at Patna for payment of salary for the period 24.02.1986 to 16.07.1991. The said Writ Petition was disposed of with a direction to make a fresh representation. It was made clear in the order that: "In case the petition was unable to join due to defective orders of posting and in case he was not at fault for not being able to join any post during the period in question, there should be no reason to deny him the salary for the mistakes committed by the department officials." (Emphasis supplied) 6. The representation was turned down by Order dated 21.09.2002. That was challenged in Writ Petition CWJC No. 126 of 2003 leading to Judgment dated 03.03.2009. The H learned Single Judge took the view that the Government had STATE OF BIHAR v. KRIPA NANO SINGH 309 [KURIAN, J.] not passed proper order as per the directions issued by the A court. It was further held that the rejection of the claim for salary for the period 24.02.1986 to 16.07.1991 was not explained in the counter affidavit. According to the learned' Single Judge, the Headmaster, having not permitted th~ first respondent to join duty on account of non-availability of vacant post and posting B having been made thereafter only in 1991, pursuant to which he joined duty on 17.07.1991, first respondent is entitled to salary for the period 24.02.1986 to 16.07.1991. The judgment of the learned Single Judge was challenged before the High Court. The Division Bench dismissed the appeal by, a cryptic c order, which reads as follows: " ... the learned single judge has rightly issued direction of payment of salary to the respondents. As concluded by the learned single judge, the writ petitioner was not able to join on account of defect in the order of transfer and not on D account of his own." 7. Heard the learned counsel appearing for the State and the counsel appearing for the respondents. 8. At the outset, it has to be noticed that it is not a case of E transfer as wrongly noted by the Division Bench. It is a case of first appointment. It is significant to note that the first respondent , had not joined duty in the school as per the letter of appointment at Kisko, Lohardagga. True, the Headmaster of the school had not accepted the joining but the first respondent had necessarily 'F to bring the matter to the higher authorities since he was to join duty as per his order of appointment within 21 days of the issuance of the appointment letter dated 05.02.1986. There is no whisper either in the writ petitions or in the counter affidavit before this Court that the first respondent made any serious G attempt before any authority seeking permission to join duty in any other school. It becomes difficult to believe that for five years, he was waiting for an order to join duty in school where there is vacar:icy. As we have already observed above, it is not a case of an employee being transferred from one place to H 310 SUPREME COURT REPORTS. [2014] 8 S.C.R. A another. It is a case of fresh appointment. In case, the appointee could not join duty in the first place of posting, he should have brought the matter to the notice of the higher authorities and sought for a posting in any other place, so as to save his appointment. Nothing of that sort was done by the first B respondent. He waited till 1991 till he got a Memo dated 17.07 .1991. As noted by the Additional Director in letter dated 24.07.1991: "Shri Singh had joined on 17.7.1991 in pursuance of the departmental order in High School Sahajadpur (Madhepura). In these circumstances Shri Singh salary from 17.7.1991 to the date of joining in the newly posting school, taking that to be waiting period will be made by the Apurb High School Balwahat Saharsa." (Emphasis supplied) 9. In the Judgment dated 31.01.2002, the first round of litigation in CWJC 16087 of 2001, the High Court had made it clear that his entitlement for salary for the period between 24.02.1986 to 16.07.1991 would depend on whether he was E at fault or not to in joining any post during the period in question. His conduct speaks volumes to show that he was at fault. He waited for five years to get another posting. He had not made any representation during the said period for joining duty in any other place. His writ petition itself is after ten years of his joining F duty at a place apparently of his choice. Though the order is dated 05.02.1986, he had joined duty only on 17.07.1991. In such circumstances, it cannot be said that the period between 24.02.1986 to 16.07.1991 is to be treated as a compulsory waiting period. It is in fact a voluntary waiting period. G 10. Accordingly, we allow the appeal. The impugned order is set aside. The Writ Petition CWJC No. 126 of 2003 on the files of the High Court of Judicature at Patna is dismissed. 11. There is no order as to costs. H Kalpana K Tripathy Appeals allowed.