SUKHDEO PANDEY v. UNION OF INDIA AND ANR

Citation: [2007] 9 S.C.R. 369

Court: Supreme Court of India

Bench: C.K. THAKKER, TARUN CHATTERJEE

Case summary

SUKHDEO PANDEY v. UNION OF INDIA AND ANR.pdf

Judgment text

SUKHDEO PANDEY v. UNION OF INDIA AND ANR. AUGUST 24, 2007 (C. K THAKKERANDTARUNCHATIERJEE,JJ. ) Service Law: Reinstatement-EDBPM selected for promotion as Postman but could not be appointed as the selection was cancelled-Meanwhile a criminal case 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 ofEDBPM--Held, order ofreversion does not call for interference-Employee not entitled to arrears ofsalary for the period he did 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 (EDBPM) was selected through Departmental Promotion Examination for promotion to the post of Postman, but on account ofsome 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 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 ofsalary 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 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 instant appeal. . Partly. allowing . the appeal, the Court HELD: I. So far as the claim ofthe appellant to his substantive post of EDBPM is concerned, since the order ofremoval 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 EDBPM. He had cleared the examination for the promotional cadre of Postman but because ofirregularities in the selection process, no effect was given to the 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 ofEDBPM, any illegality was committed by the respondents. (Para 10 and 12) f374-B-D; 375-B) 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 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 ofvalid reasons to the contrary; it should be applied:(Para 17) 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 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 EDBPM. He had cleared the examination for the promotional cadre ofPostman 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 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 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 Giridih0keeping in view of the order at Annexure A/I, posted him to 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". (emphasis supplied) 12. The Tribunal, in our opinion, was also right in observing that the contention ofthe 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 and irregularly which was detected after a long period. Since he had no right 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 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 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 . 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 find itself impelled to interfere with the appointment by a writ ofquo 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 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, 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 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 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, 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. 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. ·