IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY 2019 BEFORE THE HON'BLE MR. JUSTICE P. B. BAJANTHRI WRIT PETITION NO.35088 OF 2014 (S-R) Between:
Sri.K.R.Prakash, S/o Late K.M.Rudrappa, Aged about 62 years, R/at No.758, 12th Main Road, Vijayanagar I Stage, Mysore-17.
(By Sri.M.V.Vedachala, Advocate) And:
1. The State of Karnataka, Represented by its Secretary, Education Department, M.S.Building, Bangalore-01.
2. The Vice Chancellor, University of Mysore, Mysore-570 005.
3. The Registrar, Mysore University, Mysore-570 005.
…Petitioner ...Respondents (By Sri.K.S.Bheemaiah, Advocate for R3 Sri.Sreedhar N Hegde, HCGP for R1) This Writ Petition is filed under Articles 226 and 227 of Constitution of India praying to quash or set aside the order dated 25.01.2014 (Instead of 25.01.2013) passed by the State Government at Annex- K.
This Writ Petition coming on for Preliminary hearing in ‘B’ Group this day, the Court made the following:-
ORDER In the instant petition, petitioner has sought for the following reliefs;
a) Issue a writ of certiorari quashing or set aside the order dt:25.01.2014 (instead of 25.01.2013), bg.No.ED14 UMS 2010, passed by the State Government at Annexure-K.
b) Issue a writ in the nature of mandamus directing the respondents to consider the petitioner as ‘Teacher’ under the constitutes state universities Act, 1976 and to extent the benefits of UGC pay scales as available to a teacher to the petitioner from the date of appointment till superannuation and grant him all other consequential benefits and emoluments pursuant to his revision in the pay scale.
c) Pass such other order/s as this Hon’ble Court may deems fit in the facts and circumstances of the above case in the interest of justice and equity.”
2. The petitioner was appointed as Football Coach in the Department of Physical Education, Mysore University on 16.06.1979. He had grievance relating to extending benefits of UGC Pay Scale, for which he had submitted representation. His representations were rejected on 25.01.2014. Feeling aggrieved by the said rejection, he had approached this Court. The petitioner although attained the age of superannuation on 29.02.2012, he was continued in service by virtue of an order passed by this Court in WP.No.5971/2012 disposed of on 27.03.2014 with the following order;
“Order Sri.Prashant T Pandit, learned advocate for the petitioner submitted that in view of the petitioner attaining superannuation age of 62 years, the grievance put forth in this writ petition does not survive for consideration.
In view of the submission made by the learned counsel, petition is disposed of as not surviving for consideration.
It is open to the petition to submit representation, in the matter of payment of balance retirement/service benefit, if any.”
3. Thereafter, State Government on 25.01.2013 communicated its decision to the Registrar, Mysore University, Mysore that Government is inability to agree to the proposal of the Mysore University, Mysore for redesignation for the posts of Football Coach in the State pay scale as Assistant Director Physical Education, so as to extend the benefit of UGC Pay scale, as these Coaches were appointed as Coaches in the State scale of pay and continued as Coaches in the State scales of pay till today. Feeling aggrieved by the said decision of the Government, present petition has been filed.
4. Learned counsel for the petitioner submits that if the Coaches are equivalent to Teachers, in such an event, petitioner is entitled to seek for extending benefit of UGC pay scale. Coaches are treated as Teachers in the judicial pronouncement namely, Jayashree Nayak V/s. State of Karnataka and others reported in ILR 2002 KAR 5355 paragraph-7 is reproduced as under;
“7.The only question that would arise for consideration in this petition is as to whether the respondents should be directed to regularise the service of the petitioner as a stopgap Lecturer?
It is not in dispute that the petitioner was appointed as a Physical Culture Instructor on 11th September, 1989. The discharge of duties by the petitioner as a Physical Culture Instructor in my view has to be considered as a teaching staff. In fact this view also is supported by the decision of the Supreme Court in the case of P.S. Ramamohana Rao, supra, relied upon by Sri Holla. In the said decision, at paragraph 10, the Supreme Court has observed as follows:
"10. From the aforesaid affidavit it is clear that a Physical Director has multifarious duties. He not only arranges games and sports for the students every evening and looks after the procurement of sports material and the maintenance of the grounds but also arranges inter-class and inter-college tournaments and accompanies the students team when they go for the inter-University tournaments. For that purpose it is one of his important duties to guide them about the rules of the various games and sports. It is well- known that different games and sports have different rules and practices and unless the students are guided about the said rules and practices they will not be able to play the games and participate in the sports in a proper manner. Further, in our view, it is inherent in the duties of a Physical Director that he imparts to the students various skills and techniques of these games and sports. There are large number of indoor and outdoor games in. which the students have to be trained. Therefore, he has to teach them several skills and the techniques of these games apart from, the rules applicable to these games".
5. In yet another decision in the case of P.S.Ramamohana Rao V/s. A.P.Agricultural University and another reported in AIR 1997 SC 3433, paragraphs 5 and 10 extracted below;
“5. For the purpose of deciding the above issue arising between the parties, it is necessary to refer to the relevant provisions of the Act and the Regulations. Sub- clause (n) of sector 2 defines `teacher' as follows :
"teacher" includes a professor, reader, lecturer or other person appointed or recognised by the University for the purpose of imparting instruction or conducting and guiding research or extension programmes, and any person declared by the statute to be a teacher".
10. From the aforesaid affidavit, it is clear that a Physical Director has multifarious duties. He not only arranges game and sports for the students every evening and looks after the procurement of sports material and the maintenance of the grounds out also arranges inter-class and inter-college tournaments and accompany the students team when they go for the inter-University tournaments. For that purpose it is one of his important duties to guide them about the rules of the various games and sports. It is well known that different games and sports have different rules and practices and unless the students are guided about the said rules and practices they will not be able to play the games and participate in the sports in a proper manner, further, in our view, it is inherent in the duties of a Physical Director that he imparts games and sports. There are large number of indoor and outdoor games in which the students have to be trained. Therefore, he has to teach them several skills and the techniques of these games apart from the rules applicable to these games.”
6. Learned counsel for the respondents resisted the petitioner’s contention and submitted that Co- ordinate Bench of this Court interpreted Section 2 of (12) of the Karnataka State Universities Act, 2000, ( for short KSU Act, 2000) in WP.No.13051/2016 and connected matters decided on 23.11.2018 held that selection grade of Assistant Librarian cannot be equated to that of Teacher in view of Section 2(12) of KSU, Act, 2000. Paragraphs 5 and 6 of WP.No.13051/2016 and connected matters are reproduced as under;
“5. Going by the exhaustive definition of “Teacher” given u/s.2(12) of KSU Act, 2000, the petitioners by any stretch of imagination cannot be called as the Members of the Teaching Community, which they could have been under the inclusive definition of “Teacher” under the repealed KSU Act, 1976. The text and context of the Government Order of 1998 at Annexure-C mentioned above which has been issued under the KSU 1976 Act which is now repealed also cannot be banked upon by the petitioners without making violence to the definition of “Teacher” under the new KSU Act, 2000.
“6.The next contention of the learned Senior Shri.Nagaprasanna is that irrespective of the definition of “Teacher” under the KSU Act, 2000, the petitioners being the Librarians working in the U.G.C. pay scales are entitled to higher age of retirement prescribed under the U.G.C Regulations governing the Service Conditions of th class of employee to which the petitioners belong. This contention also fails because the U.G.C. Regulations being a piece of delegated legislation cannot over-ride the KSU Act 2000 which is a State Legislation, in the case of conflict as held by the Apex Court in the case of Jagadish Prasad Sharma & Others V/s.State of Bihar and others-(2013) 8 SCC 633. Paragraphs 69 of the said decision reads as under;
To some extent there is an air of redundancy in the prayers made on behalf of the Respondents in the submissions made regarding the applicability of the scheme to the State and its universities, colleges and other educational institutions. The elaborate arguments advanced in regard to the powers of the UGC to frame such Regulations and/or to direct the increase in the age of teachers from 62 to 65 years as a condition precedent for receiving aid from the UGC, appears to have little relevance to the actual issue involved in these cases. That the Commission is empowered to frame Regulations under Section 26 of the UGC Act, 1956, for the promotion and coordination of university education and for the determination and maintenance of standards of teaching, examination and research, cannot be denied. The question that assumes importance is whether in the process of framing such Regulations, the Commission could alter the service conditions of the employees which were entirely under the control of the States in regard to State institutions.”
7. Heard the learned counsel appearing for both the parties. No doubt petitioner has not made out a case so as to seek for re-designation of post of Coaches, in the State Pay Scale as Assistant Director of Physical Education so as to extend the benefit of UGC pay scale as it is a policy decision of State Government. The Supreme Court in the case of P.U.JOSHI vs. ACCOUNTANT GENERAL reported in (2003) 2 SCC 632) at paragraph-10 has held as under;
“10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.”
8. Another decision in the case of Union of India V/s. Pushpa Rani and Others reported in (2008) SCC 242 has held that merger of post or re-designation of any service condition of post is a policy matter of the respective Government. Therefore, Court/Tribunals cannot give directions to the State to frame a policy in a particular manner.
9. The next question is relating to whether the post of Coach could be treated as Teacher or not? In this regard, it is necessary to reproduce Sub Section (12) of Section 2 of KSU Act, 2000 as under;
“2 (12) “Teachers” Means Professors, Assistant Professors, Readers or Lecturers imparting instructions in any university;”
10. Co-ordinate Bench in WP.No.13051/2016 and connected matters has considered the aforesaid clause and held that Selection Grade of Assistant Librarian cannot be treated as Teachers.
11. In view of Supreme Court decision read with Jayashree Nayak’s case cited supra, the contention of the respondents in the case of H.J.Poornachandra V/s.Davanagere University and another in WP.No.13051/2016, the Supreme Court decision prevails. Perusal of paragraph-5 of the Hon’ble Supreme Court decision in the case of P.S.Ramamohana Rao V/s. A.P.Agricultural University and another reported in AIR 1997 SC 3433 where Sub clause (n) of Section 2 of the Universities Regulations are identical to that of Section 2(12) of KSU Act, 2000. It is noted that Teacher under the definition, it is evident that imparting instructions or conducting and guiding research etc, are held to be a Teacher. In the present case, petitioner is a Football Coach. During the course of his employment, he has to impart instructions to the students. Therefore, Coaches are required to be treated on par with the Teachers. In other words, Coaches are also teaching the students in the Physical Education Department.
12. In view of these facts and circumstances, Coaches are held to be as Teachers. Thus, petitioner who was Foot Ball Coach treated as Teacher, in that event, petitioner is at liberty to make necessary representation to the competent authority for seeking certain benefit whether petitioner is entitled to UGC pay scale or not.
13. In this regard, petitioner is permitted to submit his representation/application before competent authority within a period of eight weeks from today. Thereafter, concerned respondent is hereby directed to take decision and communicate to the petitioner within a period of three months from the date of receipt of the petitioner’s representation.
Sd/- JUDGE SB