STATE OF BIHAR AND OTHERSversusKRIPA NANO SINGH AND ANOTHER

                     [2014) 8 S.C.R. 305


              STATE OF BIHAR AND OTHERS                             A
                               v.
            KRIPA NANO SINGH AND ANOTHER
              (Civil Appeal No. 6692 of 2014)
                        JULY 23, 2014
                                                                    B
    [MADAN B. LOKUR AND KURIAN JOSEPH, JJ.)

     Service Law:

       'No work, no pay' - Appointment - Appointee not able to      c
join as per appointment letter, since he was not permitted to
join - Appointee did not bring this fact to the notice of higher
 authorities - After five years joined the duty - After 10 years
 of service, approached the Court seeking payment of salary
 for the period, he had not worked - Courts below granted the
                                                                    0
 claim - On appeal, held: 'No work, no pay' is the rule and 'no
 work, yet pay' is the exception - Compulsory waiting period
 comes under exception, if the claimant establishes that
 despite earnest endeavours, he was not able to join the duty
 - Voluntary waiting period is not covered by exception - In the    E
present case, the claimant failed to show that he made
 earnest endeavour to join the duty, once he was refused to
join the duty - Hence, the period from the date of refusal to
join, till the date of his joining the duty, cannot be said to be
 compulsory waiting period - Hence the appointee not entitled
 for the salary for that period.                                    F
     Respondent was appointed as a teacher of Political
Science. He was asked to report to a particular school for
joining the duty within a period of 21 days from the date
of appointment letter i.e. 5.2.1986. The respondent                 G
reported for the duty within stipulated time i.e. on
24.2.1986, but was not allowed to join, on the ground that
there already existed the teacher for political science. He
joined duty after five years on 17.2.1991 after receiving a
                            305                                     H
    306     SUPREME COURT REPORTS             [2014] 8 S.C.R.

A   letter from the Department. After ten years of his joining
    the duty, he filed writ petition claiming salary for the
    period from 24.2.1986to16.7.1991. The claim was allowed
    by courts below. Hence the present appeal by the State.

          Allowing the appeal, the Court
B
         HELD: 1. '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
C . endeavors and yet that he was not able to 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. [Para 2] [307-F]

0      2. It is not a case of transfer as wrongly noted by the
  Division Bench. It is a case of first appointment. The first
  respondent had not joined duty in the school as per the
  letter of appointment. True, the Headmaster of the school
  had not accepted the joining but the first respondent had
E necessarily 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 attempt before any
F 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 vacancy. In case, the appointee could not join
  duty in the first place of posting, he should have brought
G 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
  respondent. He waited till 1991 till he got a Memo dated
  17.07.1991. [Para 8] [309-E-H; 310-A-B]
H
      STATE OF BIHAR v. KRIPA NANO SINGH                    307

     2. The conduct of the respondent shows that he was             A
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 duty at a place
apparently of his choice. Though the order is dated                 B
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.
[Para 9] [310-E-G]                                                  c
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6692 of 2014
    From the Judgment and Order dated 14.09.2009 in LPA
No. 1061/2009 of the High Court of Patna.
                                                                    D
    Gopal Singh and Manish Kumar frlr the Appellants.
    S.K. Sinha, Sushma Suri, Tapesh Kumar, Bimlesh Kr.
Singh for the Respondents.
    The Judgment of the Court was delivered by                      E
     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
                                                                    F
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
    308       SUPREME COURT REPORTS                   [2014] 8 S.C.R.


A         "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.
B         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."
c
        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:
F         "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."
G
                                                 (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
c         (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)
D
          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.