JUDGMENT :

Kurian Joseph, 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 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.

3. First Respondent was appointed Teacher in political 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:

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. Therefore, by Memo No. 333-6 dated 24.07.1991 issued by Additional Director of Education, Darbhanga and Kosi Division, first Respondent was directed to join in the High School Balwahat (Sarharsa).

5. After ten years of his joining duty, first Respondent filed 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 learned Single Judge took the view that the Government had not passed proper order as per the directions issued by the 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 the first Respondent to join duty on account of non-availability of vacant post and posting 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 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 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 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 to bring the matter to the higher authorities since he was to join duty as per