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CASE NO.: Appeal (civil)  3888 of 2007

PETITIONER: SUKHDEO PANDEY

RESPONDENT: UNION OF INDIA & ANR

DATE OF JUDGMENT: 24/08/2007

BENCH: C.K. THAKKER & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 3888 OF 2007 ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 15065 OF 2006

C.K. THAKKER, J.

1.              Leave granted.

2.              This appeal is directed against the judgment  and order dated May 15, 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 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 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. 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 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 in respect of the  aforesaid allegations. The appellant filed his reply

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denying such allegations. According to the appellant,  without holding any inquiry, he was arbitrarily 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 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 law. Even at that stage,  the Department did not permit 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 appointed the appellant as Reserve Postman in  the cadre of Postman on temporary basis. He continued  to hold the said post thereafter. Since the appellant was  not 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  Central Administrative Tribunal. The appellant, therefore,  filed Original Application No. 88 of 2002 for arrears 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 EDBPM instead of  Postman. The appellant replied to the show cause notice  on March 5, 2003, inter alia, contending that he was  rightly placed in the cadre of Postman and he had  worked for about twelve years and there was no  irregularity in his reinstating as Postman. The  respondent No.2, however, without considering the reply  in its proper perspective and without considering the fact  that the appellant had worked 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 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. 5.              Notice was issued by this Court on September  1, 2006 and thereafter the matter was ordered to be  placed for final hearing and accordingly the matter is  before us. 6.              We have heard learned counsel for the parties. 7.              Learned counsel appearing for the appellant  contended that the Tribunal as well as the High Court  were wrong in dismissing the petitions filed by the  appellant and in not granting benefit to him. It was  submitted that so far as payment of salary is concerned,  since the order 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  that the Tribunal and the High Court were wrong in 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

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appointed because of pendency of criminal proceedings  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 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 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. 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 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 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 dismissing the petitions filed by the  appellant. 9.              Having heard the learned counsel for the  parties, in our opinion, the appeal deserves to be partly  allowed. 10.             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 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 reinstated  to the substantive post held by him which was EDBPM.   11.            In this connection, it is pertinent to observe  that the Central Administrative Tribunal considered this  aspect and rightly observed thus;

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"No doubt that the applicant was found fit for  promotion to the cadre of Postman vide  Annexure A/1, 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, keeping in view of  the order at Annexure A/1, 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 A/1. 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 of the appellant that he  had worked as postman for a substantially 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. M.S.  Mudhol & Anr. v. S.D. Halegkar & Ors., (1993) 3 SCC 591,  it was contended that the said position may be ordered to  continue. In M.S. 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 B 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  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.  Mudhol 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.

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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 service  jurisprudence 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.