Judgment :- ELIPE DHARMA RAO, J. 1. The question involved in this writ petition is 'whether an employee, who was transferred from one place to other but neither joined his new station nor applied leave, even though he was relieved from his duties at his earlier posting, is entitled for his wages and other service benefits, as if he continued in service, from the date he was relieved till the date he re-joined duty, on the ground that his transfer order from one station to other has been quashed by judicial fora, finding it to be tainted with bias and mala fide.' 2. The petitioner is a Professor and Head of the Department of Preventive and Social Medicine Department in the second respondent Institute. While so, by the order dated 10.1.2003, he was transferred from the second respondent Institute to Sardarjung Hospital, New Delhi, in public interest with immediate effect. According to the petitioner, at the relevant time, he was on winter vacation and was on conference duty from 1.1.2003 to 21.1.2003 and thereafter, he applied for leave from 22.1.2003 and was due to return to duty on 22.1.2003, but, on 29.1.2003, he was served with the transfer order dated 10.1.2003 and the relieving order dated 21.1.2003. This order of transfer was challenged by the petitioner before the Tribunal, by filing O.A.No.120 of 2003, alleging bias and mala fides and further stating that the order of transfer was issued at the behest of one Dr.R.Samabasiva Rao and Dr.K.A.Narayanan. 3. The Tribunal, by the order dated 6.2.2003 directed the first respondent to consider the representation of the petitioner dated 29.1.2003 and pass orders on the same within a period of two weeks. Ultimately, on 10.7.2003, the first respondent passed an order refusing to revoke the order of transfer, disagreeing with the contention of the petitioner that the order of transfer was slapped on him as a result of victimisation. 4. Prior to filing of the above said O.A.No.120 of 2003, the petitioner had filed O.A.No.955 of 2002, challenging the reduction of his seniority on various grounds, including mala fides. Since in this O.A., the Tribunal, in its order dated 20.10.2003, has accepted the case of the petitioner, the petitioner, has filed another O.A.No.82 of 2004 before the Tribunal, challenging his transfer from the second respondent Institute to Safdarjung Hospital, New Delhi. 5. Since in this O.A., the Tribunal, in its order dated 20.10.2003, has accepted the case of the petitioner, the petitioner, has filed another O.A.No.82 of 2004 before the Tribunal, challenging his transfer from the second respondent Institute to Safdarjung Hospital, New Delhi. 5. As the first respondent sent a letter dated 14.1.2004, seeking the petitioner to report for duty in New Delhi immediately within 15 days, further stating that if he fail to join duty at Delhi, disciplinary action will be initiated against him, the petitioner by filing a miscellaneous petition in O.A.No.82 of 2004, obtained an interim order of status-quo on 30.1.2004. Ultimately, by the order dated 9.8.2005, the Tribunal has allowed the said O.A., holding that the transfer order dated 10.1.2003 suffers from mala fides. This order of the Tribunal was challenged by the Administration before this Court in W.P.No.4977 of 2006 and this Court, by the order dated 30.6.2009 has dismissed the said writ petition. 6. It is to be mentioned that during pendency of the proceedings before the Tribunal, challenging his order of transfer, the petitioner did not join duty at Delhi and after the order of the Tribunal, dated 9.8.2005, the first respondent issued an order dated 5.9.2005, permitting the petitioner to join duties at the second respondent Institute. The petitioner also joined duty at the second respondent Institute on 9.9.2005 and requested payment of all his benefits, inclusive of full salary and allowances for the interregnum period from 22.1.2003, regularisation of his service, restoration of all his statutory rights and interests and his regular promotional prospects. Since the said request of the petitioner was not attended to by the respondents 1 and 2, he filed O.A.No.762 of 2006 before the Tribunal, praying to direct the respondents 1 and 2 herein to grant him all his arrears of pay for the period between 21.1.2003 and 9.9.2005 with due interest and award creditworthy confidential reports for the said period. Since the Tribunal, by the order dated 9.12.2009 has dismissed his claim, the petitioner has come forward to file this writ petition. 7. Ms.R.Vaigai, the learned counsel appearing for the petitioner would argue that when the order of transfer is held to be tainted with bias and mala fides, there is no justification on the part of respondents 1 and 2, in denying the salary and other service benefits to the petitioner for the interregnum period. 8. 7. Ms.R.Vaigai, the learned counsel appearing for the petitioner would argue that when the order of transfer is held to be tainted with bias and mala fides, there is no justification on the part of respondents 1 and 2, in denying the salary and other service benefits to the petitioner for the interregnum period. 8. The learned counsel for the petitioner, in support of her arguments, would rely on the following judgments: 1. DEVENDRA PRATAP NARAIN RAI SHARMA vs. STATE OF UTTAR PRADESH AND OTHERS [ AIR 1962 SC 1334 ], 2. J.N.SRIVASTAVA vs. UNION OF INDIA AND ANOTHER [ (1998) 9 SCC 559 ] and 3. UNION OF INDIA vs. MADHUSUDAN PRASAD [ (2004) 1 SCC 43 ] 9. In the first judgment cited above, the Constitution Bench of the Honourable Apex Court has held as follows: "Rule 54 of the Fundamental Rules framed by the State of Uttar Pradesh under Art.309 undoubtedly enables the State Government to fix the pay of a public servant where dismissal is set aside in a departmental appeal. But the rule has no application to cases in which the dismissal of a public servant is declared invalid by a civil court and he is reinstated. It would not in such a contigency be open to the authority to deprive the public servant of the remuneration which he would have earned had he been permitted to work." 10. In the second judgment cited above, the appellant/employee served a mandatory three months notice of voluntary retirement on the authorities on 3.10.1989, which was to come into effect from 31.1.1990. Notice was accepted by the Government on 2.11.1989 and thereafter the appellant/employee withdrew the notice by his letter dated 11.12.1989. But, this request of the employee was rejected by the authorities by their communication dated 26.12.1989. On challenge, the Tribunal took the view that the voluntary retirement had come into force on 31.1.1990 and the employee had given up the charge of the post as per his memo. relinquishing the charge and consequently, he was estopped from withdrawing his voluntary retirement notice. On challenge, the Tribunal took the view that the voluntary retirement had come into force on 31.1.1990 and the employee had given up the charge of the post as per his memo. relinquishing the charge and consequently, he was estopped from withdrawing his voluntary retirement notice. The Honourable Apex Court set aside the above finding of the Tribunal, holding that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement and therefore, the employee is deemed to have continued in service till his superannuation age. The Honourable Apex Court further rejecting the contention raised on the part of the Government that no back salary should be allowed to the employee as he did not work, by invoking the principle of 'no work, no pay', has observed that the said argument of the Government did not bear scrutiny as the appellant/employee therein was always ready and willing to work but the authorities did not allow him to work after 31.1.1990. With such observations, the Honourable Apex Court has directed the authorities to treat that the employee continued in service till the date of his superannuation and grant him all arrears of salary and other emoluments, including increments and to get his pensionary benefits re-fixed accordingly. 11. In the third judgment cited above, the Honourable Apex Court has held as follows: "It is true that when a reinstatement is ordered in appeal or review, the authorities can pass specific order regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty preceding the dismissal, removal or compulsory retirement, as the case may be in view of Fundamental Rule 54. In the instant case, the Appellate Authority directed reinstatement of the respondent and held that he was not entitled to get back wages for the period he was out of service. But the respondent was removed from service without any enquiry and he was not even given a show-cause notice prior to his dismissal from service. There was fault on the part of the employer in not following the principles of natural justice. But the respondent was removed from service without any enquiry and he was not even given a show-cause notice prior to his dismissal from service. There was fault on the part of the employer in not following the principles of natural justice. Therefore, Fundamental Rule 54 cannot be invoked by the authorities to deny him back wages from the date of dismissal to reinstatement." 12. Relying on the above judgments, the learned counsel for the petitioner would argue that for no fault of the petitioner, he was unnecessarily disturbed from the second respondent Institute and was transferred to Delhi by the authorities. When once the order of such a transfer is held to be tainted with bias and mala fides, the authorities should have treated that the petitioner continued in service and should have disbursed all the monetary and service benefits attached to the interregnum period to the petitioner. 13. On the contrary, Mr.V.K.Rao, the learned senior counsel appearing for the second respondent would argue that the case of the present petitioner does not fall within the ambit of the decisions of the Honourable Apex Court, since he voluntarily avoided to join duty. He would further argue that if at all, the period of absence of the petitioner can be treated only as a leave period. In support of his contentions, the learned senior counsel would rely on a judgment of the Honourable Apex Court in SOMESH TIWARI vs. UNION OF INDIA AND OTHERS [ (2009) 2 SCC 592 ]. In this case, while setting aside the order of transfer of the appellant/employee as suffering from non-application of mind and malice in law, the Honourable Apex Court has held as follows: "Mechanical application of normal rule 'no work no pay' may in a case of this nature, be found to be wholly unjust. No absolute proposition of law in this behalf can be laid down. Interest of justice would be subserved if during the period from 28.12.2005 till appellant's joining in Bhopal, the appellant is treated to be on leave and respondents are directed to pass an appropriate order invoking the leave rules applicable in this behalf." 14. But, the learned counsel for the petitioner would submit that when the order of transfer is held to be malicious, there is no need to treat the period of absence of the petitioner as leave. 15. But, the learned counsel for the petitioner would submit that when the order of transfer is held to be malicious, there is no need to treat the period of absence of the petitioner as leave. 15. The factum that the order of transfer of the petitioner was held to be bad in law, by the judicial fora, is not in dispute. It is to be pointed out that when the first respondent sent a letter dated 14.1.2004, requiring the petitioner to report for duty in Delhi immediately within 15 days, further stating that if he fail to join duty at Delhi, disciplinary action will be initiated against him, the petitioner, by filing a miscellaneous petition in O.A.No.82 of 2004, obtained an interim order of status-quo on 30.1.2004. Ultimately when the Tribunal has quashed the order of transfer on 9.8.2005, the petitioner joined the service on 9.9.2005. Therefore, we cannot find fault with the petitioner for not joining the duty. The finding, by a judicial order, that the order of transfer of the petitioner is tainted with malice, bias and malafides has, admittedly, attained finality since not challenged by the Administration. When that being the case, in view of the above pronouncements of the Honourable Apex Court, particularly that of the Constitutional Bench, it must be held that the petitioner should be treated as in service in the interregnum period since, as has already been observed by us supra, no fault could be attributed to the petitioner for not joining the duty and it is only because of the illegality perpetrated on him by the officers at the helm of affairs of the respondents 1 and 2, that the petitioner could not join duty. Therefore, there is every justification in the argument advanced on the part of the petitioner by Ms.R.Vaigai that as the petitioner could not be blamed for not joining the duty, the absence period should not be treated as on leave. 16. When the officers at the helm of affairs of respondents 1 and 2 are to be blamed for perpetrating an illegality on the petitioner, by slapping a tainted order of transfer, the general principle of 'no work, no pay' cannot be made applicable to the case of the petitioner herein. 16. When the officers at the helm of affairs of respondents 1 and 2 are to be blamed for perpetrating an illegality on the petitioner, by slapping a tainted order of transfer, the general principle of 'no work, no pay' cannot be made applicable to the case of the petitioner herein. Likewise, it would also be improper to treat the interregnum period as leave, since would amount to punishing the petitioner by deducting his eligible leave, for the illegality perpetrated on him by the respondents 1 and 2. Since in the case on hand, an interim order of status-quo has been passed by the Tribunal against the order of the first respondent, requiring the petitioner to join duty immediately, and thus the petitioner cannot be blamed for not joining the duty, the judgment of the Honourable Apex Court in Somesh Tiwari case, relied on by the learned senior counsel for the second respondent, will have no application to the case on hand. Thus, answering the point in favour of the petitioner, this Writ Petition is allowed. The respondents 1 and 2 are directed to treat that the petitioner continued to be in service for all the purposes, during the interregnum period also and pay him all the salary and other emoluments including increments within eight weeks from the date of receipt of a copy of this order. No costs. Consequently, Miscellaneous Petitions are closed.