IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 27TH NOVEMBER 2008 / 6TH AGRAHAYANA 1930 WP(C).No. 9406 of 2006(T) ------------------------- PETITIONER(S): ------------------ G.SULATHA, W/O. RAJENDRA PRASAD, AGED 45, U.P.SCHOOL ASSISTANT, AMRITHA SANSKRIT HIGH SCHOOL, PARIPALLY, KOLLAM. BY ADV. SRI.P.N.MOHANAN RESPONDENT(S): ------------------- 1. SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATION OFFICER, KOLLAM. 3. THE MANAGER, AMRITHA SANSKRIT HIGHER SECONDARY SCHOOL, PARIPALLY, KOLLAM. GOVERNMENT PLEADER SMT.T.B.REMANI FOR R1,R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.9406/06 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE ORDER DT 15.2.96 ISSUED BY THE GOVERNMENT. EXT.P2: TRUE COPY OF THE TP MESSAGE NO.84650/72/87.GEN DT 28.10.1988. EXT.P3: TRUE COPY OF THE ORDER DT 13.9.02 OF THE 1ST RESPONDENT. EXT.P4: TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN OP NO.32560/02 BEFORE THIS HON'BLE COURT. EXT.P5: TRUE COPY OF THE JUDGMENT DT 26.9.05 IN OP NO.32560/02 BEFORE THIS HON'BLE COURT. EXT.P6: TRUE COPY OF THE ORDER DT 6.1.06 OF THE 1ST RESPONDENT. EXT.P7: TRUE COPY OF THE CIRCULAR NO.15934/J3/91/G.EDN DT 3.4.1991. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. ============== W.P.(C) NO. 9406 OF 2006 (T) ==================== Dated this the 27th day of November, 2008 J U D G M E N T Petitioner was appointed as HSA in the school of which the 3rd respondent is the Manager. The challenge in this writ petition is against Ext.P6, by which the claim of the petitioner for the benefit of Rule 52(1) has been turned down. 2. Briefly stated, facts of the case are that the petitioner was appointed as HSA on 15/7/85. She was retrenched w.e.f. 15/7/92 and was appointed as UPSA w.e.f. 30/7/92. It is stated that by order dated 13/8/01, break in service for 14 days was regularised by the DPI, but however, her claim for pay protection under Rule 52(1) of Chapter XIV A was declined. The revision filed against that order also ended in rejection by Ext.P3. Ext.P3 order was set aside by this Court in Ext.P5 and the matter was remitted for reconsideration. It is in that manner that the matter came to be reconsidered and Ext.P6 order was passed. 3. In Ext.P6, it has been held that the benefit of Rule 52(1) is available only to a protected teacher and that as the petitioner was appointed as a fresh entrant in the UPSA category w.e.f. 30/7/92, petitioner is not entitled to get pay protection. Counsel for the petitioner WPC 9406/06 :2 : submits that the concept of protected teacher is alien to Rule 52, Chapter XIV A KER and that any teacher retrenched from service and reappointed is entitled to the benefit of the Rule. 4. However, according to the learned Government Pleader, Rule 51(A) as it stood at the time when the petitioner was retrenched in 1992 provided only for reappointment in the same category. It is stated that the rule was amended only in 2005, enabling appointment in lower or higher category. It is stated that only a person appointed in the same category as was contemplated in Rule 51(A) is eligible for the benefit of Rule 52(1) It is also stated that such beneficiaries can only be protected teachers who are eligible for the said benefit by virtue of the Government order dated 15/2/96. 5. This contention of the learned Government Pleader is sought to be contradicted by the learned counsel for the petitioner by referring to Ext.P7 circular No.15934/J3/91/G.Edn dated 03/04/91, Clause (i) of which is extracted below for reference. (i) the manager can re-appoint a trained Graduate, who is a 51A claimant in the category of High School Assistants/HSA(Language) as a teacher in the Lower Primary/Upper Primary Sections (eg. UPSA/LPSA/Junior Language Teacher), provided it will not affect the preferential claim of any Rule 43 or 51A claimant in the Lower/Upper Primary Section. WPC 9406/06 :3 : 6. True as contended by the learned Government Pleader, Rule 51(A) Chapter XIV A KER was amended only in 2005, providing for appointment in lower or higher categories. But then, the Circular was issued in 03/04/91. Although it is the contention of the learned Government Pleader that circular could not have had overriding effect over the statutory rule, in my view, the circular having been issued by the Government itself, the Government should have considered the case of the petitioner in the light of the Circular as well. 7. A reading of Ext.P6 order passed in pursuance to Ext.P5 judgment of this Court shows that Ext.P7 circular has not even been adverted to. To be fair to the Government, it should be mentioned that the petitioner also has no case that the Circular was not relied on when the matter was adjudicated by the Government. Now that admittedly, Circular was issued by the Government, and as it has a relevance in so far as the claim raised by the petitioner is concerned, I am inclined to direct that the matter should be reconsidered. 8. Accordingly, Ext.P6 will stand set aside and the 1st respondent shall reconsider the claim of the petitioner for pay protection as provided in Rule 52(1) of Chapter XIV A KER as directed in Ext.P5 judgment in OP 32560/02, taking note of all orders including Ext.P7 circular dated WPC 9406/06 :4 : 03/04/91. 9. Orders shall be passed as above, with notice to the petitioner, as expeditiously as possible, at any rate within 3 months of production of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp