The wrongful abolition of a post leading to the absence of an employee does not negate the entitlement to salary, as established by the Kerala Education Rules and R.51A Chapter XIVA.

A.R. Lakshmanan, J.

Heard Mr. C.K. Pavithran, Government Pleader for the State. The appeal is directed against the judgment of the learned single judge of this Court dated 22.7.1997. Learned Single Judge by his above order has clearly held that there is no justification for denying the fruits of litigation which the petitioner fought and won. By holding so the learned judge quashed Ext. P8 and held that the petitioner is entitled to get salary during the period when he was kept out of service due to wrong staff fixation. The fourth respondent in O.P. 14670/96 was directed to disburse the salary of the petitioner during the period in question within three months from the date of receipt of a copy of the said judgment. It is pertinent to note that this Court while disposing of O.P. 5451/92 has clearly held as follows:

"Now it is admitted before me by learned Government Pleader that as per the circular issued by the Director of Public Instruction and as per the decision of this Court, 41/2 periods have to be founded to 5. If that had been done, the post should not have been abolished. Hence, abolition of post as per Ex t. P2 is wrong. In the light of that, I quash Exts. P2, P6 and P7 so far as abolition of post of Music Teacher in the High School Section is concerned."

2. It. is represented mat the above judgment of Sankara Subban, J. has not been appealed against and therefore, the said judgment has become final and conclusive. It is further stated that the petitioner himself filed another Writ Petition in O.P. 8445/96 which was disposed of by a learned single judge of this Court by directing the authority concerned to dispose of Ext. P5 and pass appropriate orders. The fourth respondent in the said Writ Petition was directed to consider and pass orders on Ext. P5 representation seeking direction to grant salary to the petitioner for the period during which he was kept out of service pursuant to Ext. PI to P3 order. It is argued by the learned Government Pleader that since there was no direction in the order dated 29.3.1996 in O.P. 5451/92 for payment of salary, the petitioner is not entitled to claim salary and the order now passed by the learned single judge in O.P. 14670/96 is illegal. We are unable to countenance such a contention. As already noticed this Court has clearly and categorically held that the post in which the petitioner was working had been illegally and wrongly abolished under Ext. P2. In the light of that, the learned judge quashed Exts. P2, P6 and P7 in O.P. 5451/92 in so far as abolition of post of Music Teacher in the High School section is concerned.

3. In the second Writ Petition, the petitioner had sought for a writ of mandamus directing the respondents to grant salary to the petitioner for the period during which he was kept out of service pursuant to Exts. PI to P3 orders. A further prayer by way of mandamus was also asked for directing the 4th respondent in the said Writ Petition to consider and dispose of Ext. P4 in accordance with law within the time frame fixed by this Court. Under Ext. P6 the learned single judge of this Court had disposed of the Writ Petition by directing the fourth respondent in O.P. 8445/1996 to consider and pass orders on Ext. P5 representation. Under Ext. P8 in the present O.P. the District Educational Officer, Alappuzha has passed the order in the following terms:

"As the post is deemed to have been continued, consequent on the questing of the Exts. P2, P6and P7 in O.P. No. 8451/92 the petitioner is permitted to be accommodated with effect from 3.6.1996 in the post which is deemed to have been continuing. Though the post is deemed to be in existence from 91-92 onwards, the petitioner have no claim for pay and allowances for the period of his absence from 1.8.92 to 2.5.96.

The Ext. P5 representation is disposed of in the manner stated above. The Headmistress S.N.D.P..H.S. Kuttamangalam will take necessary steps for drawal and disbursement of the amount to the teacher."