State of Kerala vs V.J. Joseph Ceasar

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 22nd July 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. P-8 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, 4� periods have to be rounded to 5. If that had been done, the post should not have been abolished. Hence abolition of post as per Ext. P-2 is wrong. In the light of that, I quash Exts. P-2, P-6 and P-7 so far as abolition of post of Music Teacher in the High School section is concerned.

It is represented that the above judgment of Sankarasubban, 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 Anr. 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. P-5 and pass appropriate orders. The fourth Respondent in the said writ petition was directed to consider and pass orders on Ext. P-5 representation seeking direction to grant salary to the Petitioner for the period during which he was kept out of service pursuant to Ext. P-1 to P-3 order. It is argued by the learned Government Pleader that since there was no direction in the order dated 29th March 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. P-2. In the light of that, the learned Judge quashed Exts. P-2, P-6 and P-7 in O.P. 5451/92 in so far as abolition of post of Music Teacher in the High School section is concerned.

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. P-1 to P-3 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. P-4 in accordance with law within the time frame fixed by this Court. Under Ext. P-6 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. P-5 representation. Under Ext. P-8 in the present O.P. the District Educational Officer, Alapuzha has passed the order in the following terms:

As the post is deemed to have been continued, consequent on the quashing of the Exts. P-2, P-6 and P-7 in O.P. No. 8451/92 the Petitioner is permitted to be accommodated with effect from 3rd June 1996 in the post which is deemed to have been continuing. Though the post is deemed to be in existence from 1991-92 onwards, the Petitioner have no claim for pay and allowances for the period of his absence from 1st August 1992 to 2nd May 1996.

The Ext. P-5 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.

Against this order present writ petition has been filed for a mandamus directing the Respondents to grant salary to the Petitioner for the period during which he was kept out of service pursuant to Exts. P-1 to P-3 orders and to reckon the period for all service benefits including seniority. This O.P. was allowed by the learned Single Judge by holding that there is no justification for denying the fruits of litigation which the Petitioner fought and won and on that basis the learned Judge quashed Ext. P-8. It is argued by the learned Government Pleader that since the Petitioner had not worked in the post is not entitled for the salary for the period in question. In support of the above contention learned Government Pleader cited a Full Bench decision of this Court reported in State of Kerala v. E.C. Elsy and Ors. 1987 (2) KLT 882 The short point which arose for consideration in the above case is whether the State is liable to pay salary to a teacher whose preferential right for appointment under Rule 51A, Chapter XIV A of the Kerala Education Rules is denied by the Manager by appointing someone else in the vacancy and the said teacher drawing his salary from the Government. After briefly stating the necessary facts the Bench in paragraph 7 of its order held that the service of a teacher commenced only from the date the performance of service commences and as the salary is recompense for the service performed he becomes entitled to receive salary with effect from the date on which he reports to duty and that therefore the claim for the anterior period is not therefore, for salary and that the claim for the period during which the teacher was deprived of the appointment on account of the wrongful action of the 5th Respondent Manager is not claim for salary. The Bench also considered the right of a Government servant claiming a similar right which according to them stand on a different footing. The Bench has observed that the State Government was right in denying the first Respondent therein salary for the period during which she had not actually worked. The above judgment is distinguishable on facts. In the instant case this Court has clearly held that the post was wrongly abolished and in the light of the said finding this Court quashed Exts. P-2, P-6 and P-7 in so far as abolition of Music Teacher in the High School section is concerned. The teacher would have worked in the post in question had the post had not been wrongly abolished by the authorities concerned. The Teacher was prevented from discharging his duties as a teacher in the post in question during the relevant period. We are of the view that because of the wrongful act on the part of the authorities concerned the teacher should not have been made to suffer. We are therefore of the view that the teacher is entitled for the salary for the period in question which the teacher has rightly claimed in O.P. 8445/96 in which this Court has issued a direction to the fourth Respondent in the said writ petition to consider the representation Ext. P-5. The said representation in fact was considered by the District Educational Officer under Ext. P-8 which was quashed by the learned Single Judge for the reasons stated in the order appealed against. The order, in our opinion, is perfectly in order. No interference is called for. In our opinion the learned Judge has rightly quashed Ext. P-8 and issued a direction to the fourth Respondent to disburse the salary of the Petitioner during the period in question. There are absolutely no merits in the writ appeal. The writ appeal fails and is dismissed. No costs. C.M.P. No. 5779/97 also stands dismissed.