SUKHDEO PANDEYversusUNION OF INDIA AND ANR.

                           SUKHDEO PANDEY                                           A
                                  v.
                       UNION OF INDIA AND ANR.

                              AUGUST 24, 2007

            (C.K THAKKERANDTARUNCHATIERJEE,JJ.)                                     B

     Service Law:

      Reinstatement-EDBPM selected for promotion as Postman but could
not be appointed as the selection was cancelled-Meanwhile a criminal case           C
was filed against him and as a result of departmental proceedings he was
removed from service-Removal set aside by High Court-Reinstatement
ordered-Reinstatement made as Postman-Realizing the mistake, Department
reverting him to post of EDBPM--Held, order of reversion does not call for
interference-Employee not entitled to arrears of salary for the period he did       D
not work-However, since he worked as Postman for a long period, he may
be continued to work as Postman and be given salary for the post but on
his superannuation his pension shall be fixed as EDBPM-Principle of 'no
work no pay'-Pension.

      The appellant, while working as Extra-Departmental Branch Post Master         E
(EDBPM) was selected through Departmental Promotion Examination for
promotion to the post of Postman, but on account of some irregularities stated
to have been committed in conducting the examination, the entire selection
was cancelled. Thereafter due to a criminal case filed against the appellant,
he was not allowed to join duty. Later, as a result of the departmental
proceedings he was removed from service. However, the order of removal was
                                                                                    F
quashed by the High Court and the appellant was appointed by order dated
21.9.1991 as Reserve Postman. Later, the appellant filed an application before
the Central Administrative Tribunal claiming arrears of salary for the period
he was not allowed to join the duty. Meanwhile it was detected that the appellant
instead of being reinstated as EDBPM, was wrongly reinstated by order dated         G
21.9.1991 as Postman, which post he never held earlier; and ultimately by
order dated 7.3.2003 he was reverted to the post of EDBPM. This order was
also challenged by the appellant The Tribunal dismissed both the applications.
The writ petitions filed by the appellant having been dismiss.ed, he filed the
                                      369                                           H
    370                     SUPREME COURT REPORTS                    [2007] 9 S.C.R.

A instant appeal. .
          Partly. allowing .the appeal, the Court

          HELD: I. So far as the claim of the appellant to his substantive post of
    EDBPM is concerned, since the order ofremoval was set aside by the High
B   Court, he was entitled.to the benefits as EDBPM. But his grievance that he
    ought to have been continued as Postman which was the promotional post from
    EDBPM, has no: force. Indisputably, the appellant was appointed as EDBPM.
    He had cleared the examination for the promotional cadre of Postman but
    because of irregularities in the selection process, no effect was given to the
C   said selection. It was, therefore, obvious that when reinstatement of the
    appellant was effected, he ought to have been reinstated to the substantive post
    held by him which· was EDBPM. It cannot, therefore, be said that by reverting
    the appellant from the cadre of Postman to the substantive cadre of EDBPM,
    any illegality was committed by the respondents.
                                              (Para 10 and 12) f374-B-D; 375-B)
D
          Dr. MS. Mudhol & Anr. v. S.D. Halegkar & Ors., (1993} 3'SCC 591,
    relied on.
                                                                                       .>·

          2. After the appellant was reverted from the cadre of Postman.to his
    substantive post of EDBPM, he did not join the duty and did not work though
E   no interim relief was granted by any court in his favour. It was obligatory on
    hiin to report for duty as EDBPM, but he failed to do so. Therefore, he will
    not be paid salary for the period for which he has not worked. The doctrine of
    'no work, no pay' is based·on-justice, equity and good conscience and in
    absence of valid reasons to the contrary; it should be applied:(Para 17)

F          3:Though the order passed by the Tribunal and confirmed by the.High
    Court-is not contrary to law or otherwise illegal, on the facts and in the
    circumstances of the~case, the respondents are directed to continue the
    appellant as·Postman on·which post he was reinstate<t about fifteen years back.
    He will now be allowed to work as Postman; He will also be:paid salary as
G   Postman but since the action of the respondent authorities in reverting him
    to his substantive post of EDBPM was strictly in consonance with law, the
    appellant would be entitled·to pensionary and other benefits not as Postman
    but as EDBPM which·post he was holding substantively.
                                            (Para.16 and 17) (375-G; 376-C, DI

H         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3888of1007.
              SUKHDEOPANDEYv.U.0.1.(C.K.THAKKER,J.J                      371

      From the final Judgment and Order dated 15.05.2006 of the High Court      A
of Jharkhand at Ranchi in W.P.(S) No. 4784 of2005.

     Dharmendra Kumar Sinha, Sunil Kishori and Umesh Chaurasia for the
Appellant.

     G.Prakash and V.K.Verma for the Respondents.                               B
     The Judgment of the Court was delivered by

     C.K. THAKKER, J. I. Leave granted.

      2. This appeal is directed against the judgment and order dated May 15,   C
2006, passed by the High Court of Jharkhant at Ranchi in Writ Petition (S)
No. 4784 of 2005. By the said order the Writ Petition filed by the appellant
herein was dismissed by the High Court.

      3. Short facts giving rise to the present appeal are that the appellant was
appointed as Extra Departmental Branch Post Master (hereinafter referred to D
as 'EDBPM') in 1964. The appellant appeared in the Departmental Promotion
Examination for the promotional cadre (Class III) of Postman and allied services
from Class IV. On April 30, 1969, the appellant, along with twenty two other
candidates, was declared successful and eligible for promotion to the post of
Postman and allied cadre. But it was alleged that there were some irregularities
in conducting the examination and accordingly the said examination was E
cancelled. Consequently, the appellant could not be appointed as Postman.
A true and correct copy of the final selection and approved list of candidates
for appointment to the post of Postman and allied cadre had been annexed
by the appellant along with· the appeal.
                                                                                F
      4. It is the case of the appellant that one Deoraj Ram, the then Inspector
of Post Offices lodged a false complaint against him alleging that the appellant
had committed an offence punishable under Section 467 read with Section 469
of the Indian Penal Code. In view of pendency of the case, the appellant was
not allowed to join duty. The police, after investigation, found that no offence
had been committed by the appellant. A final report was submitted on April G
24, 1973 by the police which was accepted by the Court. The Inspector of
Post Offices then filed a protest report which was re-inquired and re-investigated
and again a final report was submitted by the police on September 2, 1975 in
favour of the appellant which was again accepted by the Court. Meanwhile,
on August 16, 1973, a departmental charge-sheet was served on the appellant H
    372                    SUPREME COURT REPORTS
                                                      ..            [2007] 9 S.C.R.

A in respect of the af~resaid ~negations. 'The appellant filed hineply denying
    such allegations. According to the appell~nt, without holding any inquiry, he
    was arbi~rarily removed from service in May, 1977. A Departmental Appeal
    filed by the· appellant came to be dismissed on September 27, 1977. He,
    therefore, approached the High Court of Patna at Ranchi Bench by filing
B   petition under Article 226 of the Constitution. The High Court, on August 7,
    1984 allowed the petition, quashed and set aside the order of removal by
    granting liberty to the authorities to pass fresh order in accordance with Jaw.
    Even at that stage, the Department did not pennit the appellant to join duty
    on one pretext or the other. Finally, by an order dated September 21, 1991, the
    Postmaster (HSC), Gridih Head Quarter appojnted the appellant as Reserve
C   P?stma!1 in the cadre ~f Postman on temporary l:ia.sis. He continued to hold
    the .said post thereafter. Since the appellant was n?t paid salary during the
    pendency of the proceedings, he filed a petition being C. W.J.C. No. 4305 of
    2000 in the High Court of Patna for payment of his dues. The High Court,
    however, directed the appellant to approach the Cen~J Administrative Tribunal.
,   The appellant, therefore, filed Original Application No. 88 of2002 for arrears
D   of salary and other benefits. According to the appellant, as a counter blast,
    the Superintendent of Post Offices, respondent No.2 herein, issued a notice
    to the appellant on February 17, 2003 to show cause as to why he should not
    be .ordered to_join the post of EDB~M instead of Postman. The app~Jlant
    replied to the show cause notice on March 5, 2003, inter alia, contending that
E   he was rightly placed in the cadr~ of Postman a~d he had worked for about
    twel".e years ai:id there was no irregularity in his reinstating as Postman. The
    r:sp~ndent No.2, however, without consideririg the reply in its proper
    perspective an~ without considering the fact that the appellant had wo_rkeq
    for more than a decade as Postman, reverted him as EDBPM on March 7, 2003.
    The appellant, therefore, filed Original Application No. 78 of 2003 against the
F    reversion. The Tribunal by a common· order dated April 21, 2005 dismissed
     both the applications. The High Court, as mentioned above, dismissed the
     writ petition filed by the appellant against the Original Applications and
     hence the appellant has approached this Court.
               .                         '.

G         5. Notice was !~sued bY. this C~urt Ol) September I, 2006 and thereafter
    the matter was ordered to be placed for final hearing and accordingly the
    matter is befor~ us.

          6. We have heard learned counsel for the parties.

          7. Learned counsel appearing for the appellant contended that the
H
                   SUKHDEOPANDEYv. U.O.I.[C.K.THAKKER,J.]                       373

     Tribunal as well as the High Court were wrong in dismissing the petitions filed    A
     by the appellant and in not granting benefit to him. It was submitted that so
     far as payment of salary is concerned, since the orcier of removal passed
     against the appellant was set aside by the High Court, he was entitled to
     payment of salary and other allowances. The Tribunal, in the circumstances,
     was not justified in refusing the relief in a petition which was filed by the
     appellant in O.A. No. 88 of 2002. The further grievance of the appellant was       B
     that the Tribunal and the High Court were wrong m not allowing the appellant
     to continue as Postman. He was working as EDBPM, appeared in the
     Departmental Promotion Examination and cleared it in April, 1969. His name
     was included in the Select List. He was, therefore, entitled to appointment as
     Postman. He was not appointed because of pendency of criminal proceedings          C
     against him and as soon as the final report was submitted and accepted by
     the Court, he was entitled to reinstatement and he was actually reinstated
     albeit belatedly. It was urged that even if there was irregularity in selection
     process and the persons selected in the said examination were not appointed
     to the promotional cadre of Postman, it was not the fault of the appellant and,
     therefore, he should not suffer. The respondents reinstated the appellant and      D
     appointed him as Postman and the appellant worked on the said post for more
     than a decade. He should not thereafter have been reverted as EDBPM as
     done in 2003. The said action was, therefore, illegal and the Tribunal and High
     Court were wrong in not setting aside the said action. Finally, it was submitted
     that the appellant is on the verge of retirement and even if this Court comes      E
     to the conclusion that he ought to have been reinstated as EDBPM and was
     wrongly placed in the cadre of Postman, taking into account the fact that the
     appellant had actually worked for about fifteen years by now as Postman and
     within a short period he will retire, the present status of the appellant may
     be ordered to continue by taking sympathetic view of the matter.
                                                                                        F
           8. Learned counsel for the respondents, on the other hand, supported
     the action taken by the authorities. It was submitted that the appellant was
     working as EDBPM. He was removed from service. It was stated that the order
     was no doubt set aside by the High Court and he was ordered to be reinstated
     and actually reinstated but it was a mistake on the part of the respondents
     in reinstating the appellant as Postman instead of EDBPM which post he had         G
     never held prior to his removal. It was also stated that when the selection
-{   process was held to be vitiated because of irregularities and no person from
     the said list was promoted as Postman and allied cadre, the appellant had no
     right over that post. A show cause notice was, therefore, issued to him,
     explanation was sought and after considering the matter, he was reverted to        H
     374                     SUPREME COURT REPORTS                  [2007] 9 S.C.R.

A    his substantive post· of EDBPM. It was, therefore, submitted that there is no
     illegality in the order and the Tribunal as well as the High Court were right
     in dismissipg. the petitions filed by the appellant.

           9. Having heard the learned counsel for the parties, in our opinion, the
.B apj>eal <!~serves to b~ .partly allowed.
            1-0. So far .as the claim of the appellant to his substantive post of
     EDBPM is concerned, since the order of removal was set aside by the High
     Court, he was entitled to the benefits as EDBPM. But his grievance that he
     ought to have been continued.as Postman which was the promotional post
     from EDBPM, has no force. Indisputably, the appellant was appointed as
C    EDBPM. He had cleared the examination for the promotional cadre of Postman
     but because of irregularities in the selection process, no effect was given to
     the said selection and none could claim the benefit from the list prepared at
     the said selection process which was vitiated. It was, therefore, obvious that
     when reinstatement of the appellant was effected, he ought to have been
D    reinstated to the substantive post held by him which was EDBPM.

           11. In this conn.ection, it is pertinent to observe that the Central
     Administrative Tribunal considered this aspect and rightly observed thus;

             "No doubt that the applicant was found fit for promotion to the cadre
E            of Postman vide Annexure A/I, but as made clear in the written
             statement, that order was withdrawn because of some irregularities.
             There is nothing on record to show that the withdrawal order was ever
             rescinded. After order of the Hon'ble High Court, aforesaid when the
             applicant requested for his re-engagement, the concerned official at
             Giridih 0 keeping in view of the order at Annexure A/I, posted him to
F            the post of Postman, which was not only irregular, but without any
             legal basis. It has been admitted that prior to that posting, he had
             never worked in the cadre of Postman on account of the order at
             Annexure All. It is obvious, therefore, that the applicant should have
             been reinstated in the post of EDBPM which he was holding prior
             to his removal from service".
G
                                                               (emphasis supplied)

           12. The Tribunal, in our opinion, was also right in observing that the
     contention of the appeUant that he had worked as postman for a substantially
'H   long period would not help him since he had worked on the said post illegally
               SUKHDEOPANDEYv.U.O.I.[C.K.THAKKER,J.]                        375

and irregularly which was detected after a long period. Since he had no right       A
to hold the said post, he could be reverted to his substantive post and the
respondent authorities were right by taking such course, particularly when
the said action was taken after due observance of principles of natural justice
and fair play. A notice was issued to the appellant to show cause as to why
he should not be reverted to his substantive post, his explanation was sought       B
and thereafter the impugned action was taken. We are, therefore, unable to
hold that by reverting the appellant from the cadre of Postman to a substantive
cadre of EDBPM, any illegality had been committed by the respondents.

      13. At the same time, however, it is clear that the appellant has worked
for more than a decade as Postman. Relying on a decision of this Court in           C
Dr. MS. Mudhol & Anr. v. S.D. Halegkar & Ors., [1993] 3 SCC 591, it was
contended that the said position may be ordered to continue. In MS. Mudhol,
one B did not possess requisite qualifications to be selected for the post of
Principal in a school. The Selection Committee, however, considered his claim
and appointed him as Principal. B continued to occupy the post almost for
a decade. A challenged the selection and appointment of B by seeking a writ         D .
of quo warranto. On behalf of 8. it was, inter alia, contended that since he
had worked for quite some time holding the post, he should not be disturbed
from the position.

       14. The Court also stated; "The post of the Principal in a private school
though aided, is not of such sensitive public importance that the court should      E
find itself impelled to interfere with the appointment by a writ of quo warranto
even assuming that such a writ is maintainable".

      15. The learned counsel for the appellant contended that the proposition
of law laid down in M.S. Mudho/ would apply with equal force in the case            F
on hand inasmuch as the cadre of Postman also cannot be said to be of so
much significance that the appellant who is to retire shortly should be disturbed
and should not be allowed to continue for some time more.

      16. Though we are of the view that the order passed by the Tribunal
and confirmed by the High Court is not contrary to law or otherwise illegal,        G
on the facts and in the circumstances of the case, we direct the respondents
to continue appellant as Postman on which he was reinstated about fifteen
years back from today.

       17. Before parting with the matter, however, we may make one thing
clear. From the record, it appears that after the appellant was reverted from       H
    376                     SUPREME COURT REPORTS                    [2007] 9 S.C.R.

A   the cadre of Postman to his substantive post of EDBPM, he has not joined
    duty and has not worked. No interim relief was granted by any court including
    this Court in his favour. In the circumstances,. it was obligatory on him to
    report for duty as EDBPM. He, however, failed to do so. We, therefore, hold
    that if the appellant has not worked, he will not be paid salary for the period
B   for which he has not worked. It is well-settled principle in servicejurisprudence
    that a person must be paid if he has worked and should not be paid if he has
    not. In other words, the doctrine of '.no work, no pay' is based on justice,
    equity.and good conscience and in absence of valid reasons to the contrary,
    it should be applied. In the present case, though the appellant ought to have
    joined as EDBPM, he did not do so. He, therefore, in our considered opinion,
C   cannot claim salary for that period. But he will now be allowed to work as
    Postman. He will also be paid salary as Postman but we also hold that ·since
    the action of the respondent authorities in reverting him to his substantive
    post of EDBPM was strictly in consonance with law, the appellant would be
    entitled to pensionary and other benefits not as Postman but as EDBPM
    which post he was holding substantively.
D
          18. The appeal is accordingly partly allowed to the extent indicated
    above. On the facts and in the circumstances of the case, there shall be no
    order as to costs.

    RP.                                                      Appeal partly allowed. ·