JUDGMENT

K. Vinod Chandran, J.

The appeal arises from the judgment of a learned Single Judge, which relied on the judgment of an another Division Bench in District Educational Officer, Kannur v. A.V. Sathyabhama and others [2016 (4) KHC 911 to allow the writ petition. The question raised is whether an UPSA promoted as HSA on 01.06.2016 is entitled to be protected under Ext.P5 G.O. dated 29.01.2016.

2. The brief facts to be noticed are that the 1^st respondent herein was appointed in a promotion vacancy as HSA on 01.06.2016. The appellant herein was originally appointed as UPSA on 01.06.1999 and then promoted as HSA on 01.06.2016, in which vacancy the 1^st respondent was appointed as UPSA. In the academic year 2017-2018, there was a division fall in the High School and the appellant, who was a promoted hand in the post of HSA, was directed to be reverted to the post of UPSA as per the staff fixation order. On such reversion, the 1^st respondent would be retrenched from service subject only to Rule 51A of the Kerala Educational Rules, 1959 [for brevity, 'the KER']. The 1^st respondent then filed a writ petition before this Court contending that the appellant herein is entitled to protection as per Ext.P5 G.O. The appellant resisted the same before the learned Single Judge, since even if protected, he would be sent out from the School and would have to continue in another School, where there is a vacancy of HSA.

3. The learned Single Judge found that the question is squarely covered by A.V. Sathyabhama [supra]. Therein, according to the learned Single Judge, the Division Bench had categorically found that the initial appointment to service and regularisation there at is the relevant aspect, which has to be considered for the purpose of enabling protection of a teacher. The appeal challenges the said reliance on the Division Bench, placed by the learned Single Judge, contending that the relevant G.O.'s are distinguishable on the protection enabled.

4. The learned Counsel for the appellant points out Ext.P5 and specifically refers to Clause I(6), wherein any appointments made after 2015-2016 is specifically excluded from the benefit of protection. The learned Counsel appearing for the 1^st respondent would assert that going by Clause I(1) of Ext.P5 G.O., any person, regularly continuing in service by virtue of an appointment granted prior to 31.03.2011, is entitled to protection. The 1^st respondent also asserts that the judgment cited would squarely apply in the present case. The learned Senior Government Pleader would submit that Ext.P5 dated 29.01.2016 was brought out in the context of the earlier package having been set aside by judgment of a learned Single Judge. The Government though initially filed an appeal from the judgment, later withdrew it and issued Ext.P5.

5. We notice that Ext.P5 package was introduced only subject to a challenge made from the judgment in WP(C) No.19008 of 2013 and connected cases. We have been informed that the said judgment has been approved up to the Hon'ble Supreme Court. However, it does not affect the specific issue of protection as raised in the present writ petition, since the referred decision is with respect to the ratio between the teachers and students and the manner in which staff fixation orders have to be passed up to Standard VIII and then in the High Schools also.

6. We first have to look at the decision cited by the learned Counsel for the 1^st respondent. A.V. Sathyabhama [supra] was a case in which the UPSA's entered service on various dates in July, 1997. They were promoted as HSA's in January, 1998 and June, 1999. The protection orders were also specifically referred to in the judgment. The Division Bench, in paragraph 12 found that GO(P) No.175/99/G.Edn. Indicates that all aided School teachers, who were in service as on 14.07.1996, will be given protection by retaining them in the respective Schools subject to the three conditions specified therein. Later, a clarification was issued by GO(P