IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 WP(C).No. 26331 of 2010(N) PETITIONER: --------------- SAJNA T.P.,LOWER GRADE URDU TEACHER, DESASEVA A.U.P.SCHOOL, KURUMPOYIL, KANNADIPOYIL P.O.,VIA BALUSSERY KOZHIKODE-673612 BY ADV. SRI.P.C.SASIDHARAN RESPONDENTS: --------------- 1. THE ASSISTANT EDUCATIONAL OFFICER, BALUSSERY,KOZHIKODE-673612 2. THE MANAGER, DESASEVA AUP SCHOOL KURUMPOYIL, KANNADIPOYIL P.O.,VIA BALUSSERY KOZHIKODE-673612 3. E.SARALA, AGED 53 YEARS, D/O.LATE MR.E.RARICHAKUTTY ERANHANDOOR HOUSE, IYYAD P.O., VIA UNNIKULAM,KOZHIKODE-673587 R3 BY ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH R2 BY ADV.SRI.V.RAJENDRAN GOVERNMENT PLEADER SRI.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONER. EXT.P2 TRUE COPY OF THE JUDGMENT IN W.P.(C)NO.20975 OF 2010. EXT.P3 TRUE COPY OF THE COMMUNICATION ISSUED BY THE FIRST RESPONDENT DATED 26.7.2010. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 26331 OF 2010 N ------------------------------------------------------ Dated this the 21st day of October, 2010 JUDGMENT The petitioner, namely, Sajna T.P., was appointed as lower grade Urdu Teacher in Desaseva A.U.P.School, Kurumpoyil by the second respondent Manager on 1.6.2010. The Manager submitted the proposal for approval of the appointment of Sajna T.P. to the Assistant Educational Officer. 2. The third respondent, namely E.Sarala, claimed that she was appointed in the same School in a leave vacancy for the period from 16.6.1992 to 15.6.1997. E.Sarala therefore claimed that she had a preferential claim for appointment in the vacancy which arose on the retirement of K.Ussain on 31.3.2010, under Rule 51A of Chapter XIV A of the Kerala Education Rules. Sajna.T.P., the petitioner, was appointed by the Manager in the vacancy which arose on the retirement of K.Ussain. E.Sarala filed a representation before the Assistant Educational Officer raising objection to the approval of appointment of Sajna T.P. and claimed that E.Sarala has W.P.(C) NO.26331 OF 2010 :: 2 :: a preferential claim for appointment under Rule 51A of Chapter XIV A of the Kerala Education Rules. E.Sarala filed W.P.(C) No.20975 of 2010, complaining that the Assistant Educational Officer failed to take any action on the representation submitted by her. W.P.(C) No.20975 of 2010 was disposed of as per Ext.P2 judgment dated 9.7.2010, directing the Assistant Educational Officer to consider and pass orders on the representation submitted by E.Sarala within a period of two months from the date of receipt of a copy of the judgment, with notice to E.Sarala, the Manager and Sajna T.P. 3. Thereafter, the Assistant Educational Officer passed Ext.P3 order dated 28.7.2010 holding that E.Sarala is a Rule 51A claimant and therefore, the Manager was not justified in appointing Sajna T.P. The Assistant Educational Officer directed the Manager to cancel the appointment of Sajna T.P. and to appoint E.Sarala. The Assistant Educational Officer also brought to the notice of the Manager of the declaration given by the Manager in the proposal for approval of Sajna T.P. that there was no Rule 51A claimant in the School. Sajna.T.P. has challenged Ext.P3 order in this Writ Petition. W.P.(C) NO.26331 OF 2010 :: 3 :: 4. Various grounds have been raised by Sajna T.P. in the Writ Petition. The main contention raised by Sajna T.P. is that she was not given any notice by the Assistant Educational Officer before passing Ext.P3 order. It is pointed out that W.P.(C) No.20975 of 2010 was disposed of without notice to Sajna T.P. However, this Court in Ext.P2 judgment directed the Assistant Educational Officer to issue notice to Sajna T.P., E.Sarala and the Manager before taking a decision. This direction issued by this Court was not observed by the Assistant Educational Officer. The petitioner, Sajna.T.P., has also raised a contention in the Writ Petition that E.Sarala is not entitled to be appointed, even assuming that she has got Rule 51A claim, in view of her illness and in view of her age. 5. The learned counsel appearing for the third respondent, E.Sarala, submitted that no counter affidavit was filed in this Writ Petition, since it is clear that the Writ Petition is liable to be allowed on the ground that no notice was issued by the Assistant Educational Officer to Sajna T.P. and the Manager before passing Ext.P3 order. The counsel submitted that the various averments made in the Writ Petition may not be taken as admitted and that E.Sarala may be W.P.(C) NO.26331 OF 2010 :: 4 :: afforded an opportunity to put forward her contentions before the Assistant Educational Officer. Since the rival claims between Sajna T.P. and E.Sarala are not being considered on the merits in this Writ Petition, I do not think that it is necessary to consider the various objections raised by Sajna T.P. against the claim for appointment of E.Sarala. It is also not necessary to take the non-filing of a counter affidavit as an admission of the averments in the Writ Petition, since no decision is being taken on the merits of the rival claims between Sajna T.P. and E.Sarala in this Writ Petition. 6. Since the Assistant Educational Officer did not issue notice to the Manager and Sajna T.P., Ext.P3 order is liable to be quashed on that short ground. Accordingly, Ext.P3 order is quashed. The Assistant Educational Officer shall take a fresh decision, after affording an opportunity of being heard to Sajna T.P., E.Sarala and the Manager. Sufficient prior notice shall be given by the Assistant Educational Officer to the parties so that they can make an effective representation before the Assistant Educational Officer. It is made clear that all the parties would be entitled to make detailed representations and put forward their respective contentions before W.P.(C) NO.26331 OF 2010 :: 5 :: the Assistant Educational Officer. The Assistant Educational Officer shall consider all the contentions put forward by the parties and shall take a decision after affording a meaningful opportunity of being heard to all of them. The Assistant Educational Officer shall dispose of the matter as expeditiously as possible and, at any rate, within a period of two months from the date of receipt of a copy of the judgment. The Writ Petition is allowed as above. The learned Government Pleader submitted that after passing Ext.P3 order dated 28.7.2010, realising the mistake of not giving notice to the petitioner and the Manager, the Assistant Educational Officer heard the petitioner on 26.8.2010. That hearing has no relevance at all, since by that time Ext.P3 order was passed. The Assistant Educational Officer shall not treat the hearing conducted by him on 26.8.2010 as a hearing at all for the purpose of complying with the directions in this judgment. (K.T.SANKARAN) Judge ahz/