JUDGMENT
P. P. Naolekar, C.J.
1. Heard Mr, S. K. Medhi, the learned counsel appearing on behalf of the appellant and Mrs. A. Hazarika, learned Addl. Senior Government Advocate appearing on behalf of the respondents.
2. A petition has been filed by the appellant for his salary as subject teacher for the period from 1.8.1998 to 8.4.1999 on the following facts and circumstances.
3. The petitioner was a subject teacher in Hindi and was working in Dispur Government Higher Secondary School. On 4.7.1998 the petitioner was transferred from Dispur Government Higher Secondary School to Tezpur Govt. Girls’ Higher Secondary School. Aggrieved by the order of transfer, the petitioner filed a writ petition and the learned Single Judge of this court has granted stay of the transfer order on 22.7.1998. Thereafter the matter was taken up and the writ petition was dismissed on 31.3.1999. It is the case of petitioner that in spite of the stay order of his transfer granted by this court, the authority has not permitted him to join the service at Dispur although he was relieved and joined his service at Tezpur. The petitioner has made this claim on the basis of the stay order granted by the court whereby his transfer from Dispur to Tezpur was stayed. The learned Single Judge was of the view that the petitioner has not brought to the notice of the court that he has already joined at Tezpur and thus he is not entitled to any benefit under the stay order granted by the court and as he has not worked in the post he is not entitled to salary. The learned counsel for the State-respondent could not bring to our notice that any application has been moved for vacating the stay granted by the court, nor the stay order was got vacated, bringing to the notice of the court that the petitioner appellant herein was not entitled to have a stay in view of the fact that he has already joined at Tezpur. The net result of stay order granted by the court is that the transfer of the petitioner has been stayed. By virtue of the stay of the transfer order, the petitioner is entitled to join his duties at Dispur, which has been denied to the petitioner, and thus it cannot be said that the petitioner would not be entitled to salary for the period he has not worked as a teacher at Dispur because of the fact that he has not worked as a teacher in Dispur Government Higher Secondary School. The principle of ‘no work no pay’ shall be made applicable only when the employee is not willing to work and has not worked. The principle has no application where the employer refused to give work and consequent thereof refused to pay the salary.
4. In our opinion, the learned Single Judge has committed an error in not allowing the writ petition filed by the petitioner on the ground that the stay order has been obtained by the petitioner appellant herein without bringing into all facts to the notice of the court, when the respondent-State has not applied for vacation of the stay bringing to the notice of the court the true facts and stay order remained operative and on the grounds that since the petitioner – appellant has not worked as a teacher at Dispur and, therefore, he would not be entitled to salary for the period the stay order was in operation.
5. The appeal is allowed. The State-respondent is directed to pay the salary of the petitioner-appellant for the period from 1.8.1998 to 31.3.1999 the date on which the petition challenging the order of transfer was dismissed which has resulted in revocation of the stay order granted by the court.