IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 WP(C).No. 38229 of 2008(A) PETITIONER: ARYA ARAVIND, AGED 29, W/O. P.VINOD, ANUPAMA, AEROM, THADICADU P.O., ANCHAL, KOLLAM. BY ADV. SRI.JOHNSON MANAYANI RESPONDENTS : 1. THE MANAGER, P.G.M.H.S. FOR GIRLS, PARAKKODE, PATHANAMTHITTA DISTRICT. 2. THE HEADMASTER OF DO...DO.... 3. T. SMITHA RAJAN, UPSA, P.G.M.H.S. FOR GIRALS, PARAKKODE, PATHANAMTHITTA DISTRICT. 4. THE DISTRICT EDUCATIONAL OFFICER, PATHANAMTHITTA. 5. THE DEPUTY DIRECTOR OF EDUCATION (DD), PATHANAMTHITTA. 6. THE SECRETARY, GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 7. STATE OF KERALA, REP. BY ITS SECRETARY TO GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. R3 BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA SENIOR GOVERNMENT PLEADER SRI.A.J.VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/02/2009, ALONG WITH W.P.(C) NO.1543 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX (IN W.P.(C) NO.38229 OF 2008) PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONER BY THE FIRST RESPONDENT DATED 2.6.2008. EXT.P2 TRUE COPY OF THE ORDER OF THE THIRD RESPONDENT DATED 6.12.2008. EXT.P3 TRUE COPY OF THE INFORMATION ISSUED BY THE FOURTH RESPONDENT DATED 10.9.2008. EXT.P4 TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE THE SIXTH RESPONDENT DATED 22.12.2008. EXT.P5 TRUE COPY OF THE LETTER DATED 5.12.2008 OF THE THIRD RESPONDENT. EXT.P6 TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE FIFTH RESPONDENT. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 38229 OF 2008 A and W.P.(C) NO. 1543 OF 2009 H ------------------------------------------------------ Dated this the 2nd February, 2009 JUDGMENT W.P.(C) No.38229 of 2008 is filed by Arya Aravind challenging the order dated 6.12.2008 (Ext.P2 in W.P.(C) No.38229 of 2008 and Ext.P1 in W.P.(C) No.1543 of 2009), passed by the District Educational Officer, Pathanamthitta. The reliefs sought for in W.P.(C) No.38229 of 2008 are the following: “1) Issue appropriate writ, directions or orders quashing Exhibit P2. 2) Declare that petitioner is entitled to continue as UPSA under the respondents 1 and 2. 3) Issue such other reliefs as may be prayed for and which this Hon'ble Court may deem fit and proper to grant in the circumstances of the case.” 2. Against the order dated 6.12.2008 passed by the District Educational Officer, Pathanamthitta, Arya Aravind filed Revision Petition dated 22.12.2008 (Ext.P4 in W.P.(C) No.38229 of 2008) before the Government. She has also filed the petition dated 20.12.2008 (Ext.P6 in W.P.(C) No.38229 of 2008) before the Deputy Director of Education. Exts.P4 and P6 are pending disposal. The case of Arya Aravind is that W.P.(C) NOS.38229 OF 2008 & 1543 OF 2009 :: 2 :: she is working as UPSA in P.G.M.H.S. for Girls, Parakkode, Pathanamthitta District. She was appointed in the retirement vacancy of S.Chandralekha, who retired from service on 30.6.2008. T.Smitha Rajan (third respondent in W.P.(C) No.38229 of 2008) was working as UPSA in the School from 5.6.2006. She was appointed under Rule 51B of Chapter XIVA of the Kerala Education Rules. That appointment was in an additional division vacancy which arose in 2006-2007. It is stated that two vacancies of UPSA arose in 2006-2007, one a retirement vacancy and the other a division vacancy. One Thara Chandran, who was a Rule 51A claimant, was appointed as UPSA in the retirement vacancy and T.Smitha Rajan was appointed as UPSA against the new division vacancy. An additional division vacancy having arisen in the High School section in 2007-2008, Thara Chandran was promoted and appointed as H.S.A. in the additional division vacancy in the High School section and T.Smitha Rajan was shifted in the place of Thara Chandran with effect from 1.6.2007. It is further stated by Arya Aravind that she was appointed in the retirement vacancy of S.Chandralekha. T.Smitha Rajan filed appeal before the District Educational Officer contending that she was entitled to be appointed in the retirement vacancy in the place of Arya Aravind. The District Educational Officer accepted the case of T.Smitha Rajan and passed the order dated 6.12.2008. According to Arya Aravind, the order W.P.(C) NOS.38229 OF 2008 & 1543 OF 2009 :: 3 :: dated 6.12.2008 was passed by the District Educational Officer without notice to her and without affording her an opportunity of being heard. 3. T.Smitha Rajan has filed W.P.(C) No.1543 of 2009 for the issue of a writ of mandamus commanding the Manager to implement the order dated 6.12.2008 passed by the District Educational Officer and for the issue of a writ of mandamus commanding the District Educational Officer to approve her appointment as UPSA from 2.6.2008 onwards in the retirement vacancy and disburse salary and allowances forthwith. T.Smitha Rajan contends that two vacancies of UPSA arose in the School during the academic year 2006-2007, one in a retirement vacancy and the other in an anticipated additional division vacancy. Thara Chandran was appointed as UPSA against the retirement vacancy and T.Smitha Rajan was appointed as UPSA from 5.6.2006 against the anticipated additional division vacancy. During the academic year 2007-2008, one anticipated additional division vacancy in the category of High School Assistant arose. Thara Chandran was promoted as H.S.A. and T.Smitha Rajan was shifted in the place of Thara Chandran with effect from 1.6.2007 onwards. It is also stated by T.Smitha Rajan that during the academic year 2008- 2009, two vacancies of UPSA are available in the School, one in a retirement vacancy and the other in an anticipated additional division W.P.(C) NOS.38229 OF 2008 & 1543 OF 2009 :: 4 :: vacancy. According to T.Smitha Rajan, appointment of Arya Aravind against the retirement vacancy was illegal. Therefore, she filed a representation before the Manager and the District Educational Officer. The District Educational Officer by the order dated 6.12.2008 approved the claim put forward by T.Smitha Rajan. After the District Educational Officer passed the order, T.Smitha Rajan submitted a representation before the Manager on 15.12.2008, to implement the order passed by the District Educational Officer. Since the Manager has not taken any steps, she was constrained to approach this Court in W.P.(C) No.1543 of 2009. 4. From the facts narrated above, it is clear that T.Smitha Rajan wants to implement the order dated 6.12.2008, passed by the District Educational Officer, while Arya Aravind challenges that order. Arya Aravind has challenged that order before the Government in the Revision Petition dated 22.12.2008 and that Revision Petition is pending. While admitting W.P.(C) No.38229 of 2008, an interim stay for a period of three weeks was granted on 30.12.2008. It is not in dispute that Arya Aravind was not heard by the District Educational Officer before passing the order dated 6.12.2008. When an order was sought to be passed which would affect Arya Aravind, it is mandatory that she should be heard. Normally, this would have the consequence of quashing the order dated 6.12.2008. W.P.(C) NOS.38229 OF 2008 & 1543 OF 2009 :: 5 :: But, in view of the peculiar facts and circumstances of the case and to suit the general convenience of the parties, I am inclined to direct the Government to dispose of the Revision Petition dated 22.12.2008 filed by Arya Aravind, expeditiously, after affording an opportunity of being heard to Arya Aravind, T.Smitha Rajan and the Manager. At the same time, it is just and necessary to keep in abeyance the order dated 6.12.2008 passed by the District Educational Officer, pending disposal of the Revision by the Government. Accordingly, the Writ Petitions are disposed of as follows: a) The Government shall dispose of the Revision dated 22.12.2008 filed by Arya Aravind (Ext.P4 in W.P.(C) No.38229 of 2008), as expeditiously as possible and, at any rate, within a period of three months from the date of receipt of a copy of the judgment, after affording an opportunity of being heard to Arya Aravind, T.Smitha Rajan and the Manager. b) Till the Revision is disposed of by the Government, the order NO.B6 5482/08 K.Dis. dated 6.12.2008 passed by the District Educational Officer (Ext.P2 in W.P.(C) No.38229 of 2008 and Ext.P1 in W.P.(C) No.1543 of 2009) shall be kept in abeyance. W.P.(C) NOS.38229 OF 2008 & 1543 OF 2009 :: 6 :: c) The petitioners shall produce a copy of the respective Writ Petitions filed by them and certified copy of the judgment before the Government. (K.T.SANKARAN) Judge ahz/