Laxman Singh Rathore vs Raj. Agri. University

Dr. Vineet Kothari, J.—The lawyers are observing strike which is contrary to various Supreme Court decisions.

Heard the petitioner, Mr. Laxman Singh Rathore, who is present-in-person and on behalf of the respondents, Mr. R.K. Bairwa, Assistant Accounts Officer (Officer-in-Charge), who is also present-in-person.

The petitioner present-in-person submits that the controversy in hand is covered by the decision of this Court in the case of Somshekhar Vyas Vs. Vice-Chancellor, M.P. Agriculture & Technical University, Udaipur & Anr., CW No. 6220/2011, decided on 05.03.2014 in which, this Court has decided that the Sports Coaches working in the Universities have to be treated at par with the ''Teachers'' and pay-fixation accordingly be made in their cases. The petitioner also submits that the controversy is settled upto the Hon''ble Supreme Court with the decision in the case of Mohan Lal Sukhadia University, Udaipur Vs. Udai Raj Dhabai & Ors., Civil Appeal No. 1982/2004, decided on 07.12.2010. The copies of the orders passed by the Division Bench of this Court in the case of Udai Raj Dhabhai & Ors. Vs. Mohan Lal Sukhadia University, Udaipur, D.B. Civil Misc. Application No. 53/2003 in D.B. Civil Special Appeal No. 594/1999, decided on 25.09.2002 which is quoted in the S.B. Order dated 05.03.2014 quoted below and Misc. Application decided on 08.09.2003 and that of the Hon''ble Supreme Court''s Order dated 07.12.2010 dismissing the University''s Appeal are taken on record. The petitioner submits that, therefore, his case may also be disposed of in the same terms as the case of Somshekhar Vyas was decided on 05.03.2014. The order passed by this Court in the case of Somshekhar Vyas on 05.03.2014 is quoted herein below for ready reference:-

"1. In the present writ petition, the petitioner has sought following relief/s:-

"It is, therefore, humbly and respectfully prayed that this writ petition of the petitioner may kindly be allowed:-

A/. By an appropriate writ, order or direction, the respondents may kindly be directed to grant the prescribed revised pay scale of University Grants Commission to the petitioner with all consequential benefits from the date of his joining of service.

B/. By an appropriate writ, order or direction, the respondents may kindly be directed to fix the pay scale of the petitioner as per his entitlement of University Grants Commission Pay scale as any other university teacher.

C/. Any other appropriate writ, order or direction which this Hon''ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.

D/. Writ petition filed by the petitioner may kindly be allowed with costs."

The petitioner was appointed as ''Coach'' (Cricket) with the Diploma from National Institute of Sports in Cricket in Rajasthan Agricultural University, Bikaner on 01.01.2009 in the pay scale of Rs. 5500-175-9000. The controversy raised in the present writ petition is as to whether the post ''Coach'' is also a ''Teacher'' or not, and whether he is entitled to the similar benefit of pay scale as teacher.

Dr. Nupur Bhati, learned counsel for the petitioner has informed the Court that the controversy involved in the present writ petition is squarely covered by the decision of Division Bench of this Court in the case of Mohanlal Sukhadia University Vs. Udai Raj Bhandari (sic! Dhabai) & Ors. (DBSAW No. 700/1999 decided on 25.09.2002) and the SLP No. 1982/2004-Mohanlal Sukhadia University Vs. Udai Raj Bhandari (sic! Dhabai) & Ors. has also been dismissed by the Hon''ble Apex Court against the aforesaid judgment of the Division Bench on 07.12.2010.

The order dated 25.09.2002 passed by the Division Bench of this Court in the case of Udai Raj Bhandari (sic! Dhabai) (supra) is reproduced herein below for ready reference:-

"The only point for consideration in these appeals is whether coaches employed by the Mohanlal Sukhadia University (hereinafter referred to as the University) are covered within the definition of teacher.

The writ petition was filed by three persons, who had been appointed as coaches in the said University vide order dated 7th August, 1973 and 3rd April, 1979. These three persons were appointed as coaches for Tennis, Cricket and Wrestling respectively after due selection by the Selection Committee under the orders of the Vice Chancellor of the University. The writ petitioners claimed that they were covered in the definition of the word "teacher" as contained in the Act of 1962 and, therefore, they were entitled to UGC pay scales applicable to teachers. Section 2(J) the Act, defines "teacher" as under:-

"(J) "Teacher"-means a person appointed or recognized by the University for the purpose of imparting instructions or conducting and guiding research 5 [XX] and includes a person who may be declared by the Statutes to be a teacher."

Further, the learned counsel appearing for the writ petitioners has drawn our attention of Statute 47 of the said University, which contains classification of teachers. The same is as under:-

Teachers Appointed:

(i) Professors.

(ii) Associate Professors.

(iii) Associate Readers.

(iv) [Assistant Professors.]

(v) Instructors.

On the basis of the above definition it is contended that the coaches in the University impart instructions and, therefore, they are clearly included within the definition of teacher. Denial of the grade of teacher by the University to the writ petitions is, therefore, said to be illegal and unjustified. It is further pointed out by learned counsel for the writ petitions that it is only the Mohanlal Sukhadia University, Udaipur and two Universities, i.e., Rajasthan Agricultural University, Bikaner and Maharanapratap Agricultural University, Udaipur, who are not accepting the position as contended by him. Rest of the Universities in Rajasthan are said to be including coaches in the definition of teacher and are paying them the UGC pay scale admissible to the teachers. Learned counsel submits that three Universities referred above are born out of the Udaipur Universities and, therefore, are having this common Policy and technically these three Universities are one and the same.

In reply to the above contention, the learned counsel appearing the University relied upon the Rajasthan Universities. Teachers and Officer (Selection for Appointment) Act, 1984, wherein as per sub-clause (ix) of Section 2, teachers has been defined, as under:-

"(ix). "Teacher" means a Professor, a Reader or a Lecturer of any faculty of University and such other person by whatever name designated by or under the relevant law, imparting instruction or conducting and guiding research or extension programme in a University."

On the basis of the above definition it is contended that teacher is really a person who imparts teaching in a class room by way of actual classes being held or instructions being given or he is supposed to guide research or extension programme in a University. Therefore, according to the learned counsel for the University, teacher does not include a coach.

We are unable to accept the contention advanced by the learned counsel for the University the definitions of the word "teacher" contained in Mohanlal Sukhadia University, Act, 1962 or in the Rajasthan Universities, Teachers & Officers (Section for Appointment) Act, 1984, are quoted above. Both of them refer to the function of imparting instructions. Rather the definitions in the Rajasthan Universities Act goes to the extent of using the word by "whatever name designed", which means a broader interpretation is sought to be put on the word "teacher". As a coach is also supposed to be imparting instructions while training the students in the respective categories, he should be included in the definition of teacher. Learned counsel view of the meaning of the word "teacher" by confining to person who are conducting classes in class rooms or lecturing to the students on academic matters. To test the argument of the learned counsel for the University, we would like to refer to a Yoga teacher. As per argument of learned counsel for the University, the Yoga teacher will not be a teacher and will not fall in the category of teachers. Similarly, there are others like music teachers, who train the voice or fingers to play instruments. Then there is art teacher, who trains the students in the art of drawing pictures or other such material. Shall we exclude all these persons from the category of teachers? It is to be noted that this is nobody''s arguments that the coaches are required to do any clerical work in the University offices. The only work, the coaches are required to do is to impart training in the respective sports to the students concerned. Whether you call it training or you call it instructions by instructors, it is one and the same thing. Therefore, we are unable to take such a restrictive view of the meaning of the word "teacher" as is suggested by the learned counsel for the University. Coaches being included in the definition of teacher and, therefore, they are entitled to the respective scales. Most of the other Universities in Rajasthan are treating the coaches as teachers. The stand of the University in the present case appears to be wholly unjustified and contrary of law.

Learned counsel for the University also argued that these persons were not appointed as teachers and, therefore, they are not entitled to be treated as teachers. This argument has no merit particularly in view of Statute 47 of the University, which contains definition of the word "teacher" which includes instructors.

Accordingly, the appeal filed by the University is hereby dismissed. The appeal filed by the writ petitions succeeds. However, learned counsel for the appellant in the said appeal has fairly conceded that the payment be restricted with effect from the date of Annex. 1 dated 05.12.90.

Both the appeals stand disposed of.

Sd/-

(PRAKASH TATIA), J.

Sd/-

(ARUN KUMAR), C.J."

Learned counsel for the respondents is not in a position to controvert this position.

Accordingly, the present writ petition is disposed of in the terms of Division Bench of this Court in the case of Udai Raj Bhandari (sic! Dhabai) (supra). No costs. A copy of this order be sent to the concerned parties forthwith.

Sd/-

(Dr. VINEET KOTHARI), J."

The Division Bench disposed of the Misc. Application No. 53/2003 filed u/s 151 C.P.C. for correction in the judgment dated 25.09.2002 passed in D.B. Civil Special Appeal No. 594/1999 in the following terms:-

"1. The brief facts of the case are that the petitioners sought direction against the respondent that the petitioners may be treated as teachers as defined u/s 2(j) of the Mohanlal Sukhadia University Act, 1962 for all purposes and respondents may be directed to fix the petitioners in the prescribed U.G.C. pay scale for the University Coaches with effect from the date of their initial appointment. The corresponding revised pay scales prescribed by the U.G.C. may also be allowed to the petitioners. The arrears accruing as a consequence for their fixation in the pay scales prescribed by the U.G.C. may also be paid to the petitioners. In addition to above, the petitioners sought relief which is in alternative, and that is order dated 5.12.1990 denying actual cash payment of the U.G.C. prescribed pay scales with effect from 1.9.1976 to 31.3.1980 may be quashed and set aside. It is also prayed that the respondent may be directed to fix the petitioners in a pay scale of Rs. 700-1300 with effect from 1.9.1976 and thereafter the corresponding revised pay scales prescribed by U.G.C.

The writ petition of the petitioner was allowed by the learned Single Judge by judgment dated 16.3.1990. The operative part of the judgment is as under:-

"In the result, this writ petition is allowed and the order Annexure R. 9 dated 11.7.1994 passed by the Vice Chancellor of Mohanlal Sukhadia University, Udaipur is set aside and quashed. The respondent are directed to make compliance of the order (Annexure/1) dated 5.12.1990 within a period of three months from today."

The petitioners as well as the respondent-University both preferred appeals against the above judgment of the learned Single Judge dated 16.3.1990.

The grievance of the respondent-University was against allowing the writ petition of the petitioners and against the directions to make compliance of the order dated 5.12.1990. Against this, grievance of the private petitioners-appellants, is that the learned Single Judge has not decided the status of the petitioners and had the learned Single Judge decided the status of the petitioners, the petitioners would have become entitled for U.G.C. pay scales from the date of their initial appointments. The Division Bench vide judgment dated 25.9.2002 dismissed the appeal of the respondent-University whereas allowed the appeal of the petitioners.

The Division Bench, while allowing the appeal of the private petitioners, held that the petitioners are included in the definition of the teachers and, therefore, they are entitled to the respective scales. Therefore, the petitioners were in fact entitled for the full relief on the basis of declaration of the status. The learned counsel for the appellants-petitioners agree for some concession from the side of the appellants. The concession recorded by the Division Bench in the operative portion is as under:-

"Accordingly the appeal filed by the University is hereby dismissed. The appeal filed by the writ petitioners succeeds. However, learned counsel for the appellants in the said appeal has fairly conceded that the payment be restricted with effect from the date of Annex. 1 dated 5.12.1990."

The petitioner-appellants'' Advocate submitted an application u/s 151, CPC seeking correction in the judgment dated 25.9.2002. This application was filed immediately just on the third day of the passing of the judgment of the Division Bench. The learned counsel for the appellants submitted that the learned counsel for the appellants conceded to the relief that the petitioners-appellants will be satisfied even if they are granted relief as mentioned in the order Annexure-1 dated 5.12.1990. According to the learned counsel for the petitioners, inadvertently instead of restricting relief "with effect from the date mentioned in the order Annexure-1 dated 5.12.1990", it has been mentioned "payment be restricted with effect from the date of Annexure-1 dated 5.12.1990.

Reply has been filed by the University. The respondent-University submitted that once counsel for the petitioners had conceded that payment be restricted from with effect from 5.12.1990 then they cannot withdraw this concession. It is also submitted that the order is unambiguous and the appellants-petitioners are bound by it. It is also submitted that the effect of the order of the Division Bench is that the petitioners are entitled for the benefit from 5.12.1990 and in case the order is amended, the petitioners will be entitled for the benefit of payment from 1.4.1980 and it cannot submitted that appellants no. 2 and 3 have received the payments in full and final settlement of their claims without raising any objection. Not only this but even petitioner no. 1 also submitted in writing before the respondent-University that University shall not be liable for any sort of proceeding and the judgment of the High Court shall be deemed to have been fully compromised/complied with and settled once for all times to come. The respondent also placed on record the copy of the application submitted by all the three petitioners-appellants and the orders passed by the respondent-University. The appellant no. 2 and 3 also submitted application subsequently on 19.8.2003 stating therein that application for amending in the order dated 25.9.2002 may be dismissed as they have settled their claims with the respondent.

The appellant no. 1 Udai Raj Dhabi submitted an additional affidavit on 4.9.2003 and submitted that he did not relinquish his claim. It is also submitted that rather the offer given by the petitioner-appellant no. 1 was rejected by the respondent-University itself.

Heard learned counsel for the parties.

The question involved in this application is only to the effect that whether the concession shown by the learned counsel for the appellant-petitioner was the same which is mentioned in the judgment dated 25.9.2002 and if it is not then whether this can be corrected on the application of the appellant despite the fact that the appellants no. 2 and 3 are interested in the relief.

So far as the relinquishment of the claim of the appellants no. 2 and 3 is concerned, they have right to relinquish their claim even after getting the favourable decision from the court. The question of relinquishment of claim comes only after when there is right in existence. Acceptance of judgment of the court as it conveys is also a different matter because even after holding entitlement of the party for a major relief, the court if grants a lesser relief and is accepted by the party, the party can accept it. By these acts of other parties, the right of the person who is seeking relief of corrections in the order to get larger benefit cannot be denied because of the reason that relinquishment of the rights or benefits by one of parties cannot take away the right or benefit of other party.

The facts relevant for the purpose of deciding this application is that the judgment was delivered on 25.9.2002. The copy was delivered to the learned counsel for the appellant-petitioner on 27.9.2002, the present application has been filed in court on the next day only on 28.9.2002. The application is supported by affidavit of appellant no. 1 Udai Raj Dhabai. It appears from the judgment of the learned Single Judge that the learned Single Judge allowed the writ petition of the petitioners-appellants by directing respondent to make compliance of the order Annexure-1 dated 5.12.1990. The petitioners were not satisfied with the said relief and to get more relief than the granted by the learned Single Judge, preferred appeal. The appeal was allowed by the Division Bench of this Court and if the concession as recorded in the order dated 25.9.2002 is kept as it is then the petitioners will be denied the relief which was even granted by the learned Single Judge. This could not have been intention of the appellant or appellant''s counsel to prefer appeal, contest it, succeed in it and, thereafter, lose even the benefit which was allowed to them by the learned Single Judge.

It appears more just and probable that the intention of the learned counsel for the appellants even after succeeding in the appeal was to settle the matter by not claiming the benefit of the payment for the period prior to the date mentioned in Annexure-1 and concession is for the period from 1.9.1996 to 1.4.1980. By the full relief, the petitioner-appellants would have got the benefit of actual cash payment for the period prior to 1/4/1980 and that benefit has been relinquished by the petitioners-appellants only and, therefore, by this concession, the respondent-University is benefited and the respondent-University is not liable to pay any arrears in actual cash as claimed by the petitioners-appellants which is from the year 1976. Therefore, it is not a case of withdrawal of concession by the petitioners-appellants to pointing out from wrong phrased used in the order by which the petitioners are put in a position of depriving the benefit of the judgment of the learned Single Judge despite the fact that the petitioners were found by the Division Bench for more benefits than the benefits granted by the learned Single Judge.

In view of the above the application deserves to be allowed and hence allowed and the operative portion of the order dated 25.09.2002 may be read as under:-

"Accordingly the appeal filed by the University is hereby dismissed. The appeal filed by the writ petitions succeeds. However, learned counsel for the appellant in the said appeal has fairly conceded that the payment be restricted with effect from the dates mentioned in order Annexure-1 dated 5.12.1990.

Sd/-

(PRAKASH TATIA), J.

Sd/-

(D.N. JOSHI), J."

The Hon''ble Supreme Court''s order in the case of Mohan Lal Sukhadia University, Udaipur Vs. Udai Raj Dhabai & Ors. dated 07.12.2010 is also quoted below for ready reference:-

"We find no merit in the appeal.

The Civil Appeal is dismissed in terms of the signed order."

The present writ petition is, accordingly, disposed of in the same terms, as in the case of Somshekhar Vyas (supra).

A copy of this order be sent to the parties concerned forthwith.