IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 WP(C).No. 938 of 2007(J) ------------------------ PETITIONER(S): ------------------ JEENA N.P. H.S.A. PHYSICAL SCIENCE, C.H.M.M.H.S. KAVUMPADY, P.O.THELLENKERI, KANNUR DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): -------------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC IINSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR. 4. THE DISTRICT EDUCATIONAL OFFICER, THALASSERRY. 5. THE MANAGER, C.H.M.M.H.S. KAVUMPADY, P.O. THELLENKERI, KANNUR DISTRICT. ADV. SRI.T.R.JAGADEESH FOR R5 GOVERNMENT PLEADER SMT.T.B.REMANI FOR R1-R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.938/07 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE APPOINTMENT ORDER DATED 16.2.2005. EXT.P2: TRUE COPY OF THE ORDER DATED 18.3.2005 ISSUED BY THE DEO. EXT.P3: TRUE COPY OF THE APPEAL MEMORANDUM DT 4.4.2005 SUBMITTED BY THE MANAGER BEFORE THE DDE. EXT.P4: TRUE COPY OF THE ORDER DT 22.12.2005. EXT.P5: TRUE COPY OF THE ORDER DT 26.12.2005. EXT.P6: TRUE COPY OF THE MEMORANDUM DT 19.1.2006 FILED BY THE MANAGER BEFORE THE GOVERNMENT. EXT.P7: TRUE COPY OF THE MEMORANDUM FILED BY THE PETITIONER BEFORE THE MINISTER FOR EDUCATION. EXT.P8: TRUE COPY OF THE LETTER DT 8.8.2006. EXT.P9: TRUE COPY OF THE LETTER DT 3.10.2006 TOGETHER WITH ACKNOWLEDGEMENT DT 11.11.2006. EXT.P10: TRUE COPY OF THE STAFF STAEMENT OF CHMHS KAVUMPADY FOR CORE SUBJECTS AS ON 15.7.2004. EXT.P11: TRUE COPY OF THE STAFF FIXATION ORDER AS PER PROCEEDINGS DT 14.7.2004. EXT.P12: TRUE COPY OF THE PROCEEDINGS OF THE DEO, THALASSERRY DT 15.7.2005. EXT.P13: TRUE COPY OF THE STAFF FIXATION ORDER DT 31.7.2006. EXT.P14: TRUE COPY OF THE LETTER DT 2.12.2006 ISSUED BY RESPONDENT NO.4 TOGETHER WITH COPIES OF THE FILES AND ANNEXURES. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. =============== W.P.(C) NO. 938 OF 2007 (J) ==================== Dated this the 7th day of October, 2008 J U D G M E N T The 5th respondent Manager appointed the petitioner as an HSA (Physical Science) by Ext.P1 order dated 16/2/2005. The vacancy arose out of the resignation of one Sri.V.P.Naseer, who resigned from the service w.e.f. 17/12/2004. However, by Ext.P2 order, approval was declined by the DEO on the ground that the Manager had the obligation to appoint protected teachers in view of the provisions contained in the Government Order dated 28/6/2002. Ext.P3 appeal filed before the Deputy Director was rejected. The petitioner and the Manager carried the matter in revision before the Government by filing Exts. P6 and P7 revisions under Rule 92 of Chapter XIV A KER and that was rejected by Ext.P8 common order. 2. All that is stated in Ext.P8 is that the request for approval cannot be considered as there was no sanctioned post to accommodate the petitioner at the time of her appointment. As already noticed, by Ext.P2 order, approval was rejected on the ground that the Manager did WPC 938/07 :2 : not honour the obligation to appoint protected hands. When it came to the Appellate order passed by the DPI, the reason stated was that the resignation was not approved and that protected teachers were available for appointment. None of these reasons have been dealt with by the Government in Ext.P8, but it has only stated that there was no post available. Though in the counter affidavit, list of 12 protected hands have been given, the Manager and the petitioner have a case that no protected hands were available and that even otherwise the obligation was already discharged. 3. Referring to the documents produced in this writ petition, petitioner also contends that the finding that the post was not available is also incorrect. Irrespective of the disputed issues that are now raised, in my view, Ext.P8 deserves to be invalidated for the reason that none of the contentions raised by the Manager or the petitioner have been considered or dealt with in Ext.P8. This order shows non application of mind and for that reason, I set aside Ext.P8. 4. The 1st respondent shall reconsider Exts. P6 and P7 revisions filed by the Manager and the petitioner with notice to the parties and WPC 938/07 :3 : adverting to the contentions raised and decide the matter afresh. It will be open to the petitioner also to urge her contentions regarding the availability of posts for accommodating her. Orders shall be passed as above, within 3 months of the date of receipt of a copy of the judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp