Case: UNIVERSITY OF KERALA AND ORS. ETC Vs. MERLIN J.N. AND ANR. ETC. ETC

uses the word declaratory, the words so used may not be sufficient to hold that the statute is a declaratory Act as words may be used in order to bring into effect new law. 21. The respondents herein had submitted that it was not the UGCs intention to give retrospective effect to the 2016 UGCR, even though the UGC had the power to do so under Section 26(3) of the UGC Act. It was additionally urged that in such circumstances, the court should not interpret the amendments so as to confer such benefits retrospectively, especially to pending proceedings. 22. This court is unpersuaded by such contentions. In situations such as these, a retrospective restoration of rights which had earlier been taken away, will certainly affect pending proceedings - however, it is the duty of the courts, whether trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same (G.P. Singh, Principles of Statutory Interpretation (14th Edn.), Pg. 631). If on such consideration, it is held by the court that an amendment speaks a language which expressly or by clear intendment takes in even pending matters, the court of first instance as well as the court of appeal must have regard to the intention so expressed, and the court of appeal may give effect to such a law even after the judgment of the court of first instance Noorunissa Begum v. Brij Kishore Sanghi, (2015) 17 SCC 128, para 28. 23. When an enactment or an amendment is declaratory, curative or clarificatory, impelled by a felt need to make clear what was always intended, such amendment is usually meant to operate from an antecedent date, or to cover antecedent events. This position was clarified in Commissioner of Income Tax, Bhopal vs. Shelly Products & Ors., (2003) 5 SCC 461, para 38 where this court, while interpreting an amendment, held that: It seeks to clarify the law so as to remove doubts leading to the courts giving conflicting decisions, and in several cases directing the revenue to refund the entire amount of income-tax paid by the assessee where the revenue was not in a position to frame a fresh assessment. Being clarificatory in nature it must be held to be retrospective, in the facts and circumstances of the case. It is well settled that the legislature may pass a declaratory Act to set aside what the legislature deems to have been a judicial error in the interpretation of statute. It only seeks to clear a meaning of a provision of the principal Act and make explicit that which was already implicit. 24. Likewise, in Zile Singh v State of Haryana Zile Singh v State of Haryana, 2004 (8) SCC 1, para 14, this court, quoted from G.P. Singhs Principles of Statutory Interpretation (9th Edn.), and applied the relevant rule of construction: If a new Act is to explain an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended...An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect. 25. Another argument raised by the respondent was that this courts decision in Manoj Sharma (supra) squarely held against the appellants. We disagree. In Manoj Sharma (supra), the respondents had obtained M.Phil. degrees under distance education programs, which was de-recognized by the 2009 Ph.D. Regulations. The Madhya Pradesh High Court held [Manoj Sharma v State of Madhya Pradesh, W.P. (C) No. 3290 of 2012, dated 29.08.2012 [MP HC]] that such de-recognition was prospective in nature, and their M.Phil. degrees were not rendered ineffective, which was upheld by this court State of Madhya Pradesh v. Manoj Sharma, 2018 (3) SCC 329, para 12. As far as the issue of application of 2009 UGCR was concerned, the same was restricted to only MPhil degree holders, wherein the 2009 UGCR removed the NET exemption granted for M.Phil. degree holders, and retained it only for Ph.D. holders in accordance with 2009 Ph.D. Regulations. Again, this court was not afforded the opportunity to analyse the 2016 or 2018 UGCR, as those were not raised before it (the respondents were unrepresented before this court). Thus, we find limited applicability of Manoj Sharma (supra) to the present case. 26. The logic pervading all the versions of the UGCR from 1993-2018 (as discussed above) to exempt M. Phil. / Ph.D. holders from qualifying in the NET was perhaps premised on the understanding that such a doctorate in ones chosen subject, involving years of study, would render a greater understanding of the subject compared to most other candidates taking the NET who have only obtained a Masters degree. Such qualification (M. Phil. or Ph. D.) is undoubtedly awarded for a proven proficiency of the candidate in the concerned subject or discipline. This is apparent from the minimum qualification requirements of different positions as well – for e.g., while a Masters degree is sufficient for application to the post of Assistant Professor, a Ph.D. is required for applying to the post of Associate Professor onwards [See Reg. 4.1, 2018 UGCR, applicable to all disciplines of Arts, Commerce, Humanities, Education, Law, Social Sciences, Sciences, Languages, Library Science, Physical Education, and Journalism & Mass Communication]. To interpret the 2018 UGCR prospectively would imply that a pre-2009 Ph.D. holders appointment would be rendered illegal, and after having taught for several years, he/she would lose his/her seniority and all accrued benefits and would now have to take the NET in order to teach – which is clearly unwarranted. This court therefore, holds that Dr. Jayakumars appointment is protected by the 2016 UGCR, which is applicable retrospectively.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]13. From the narration of facts, it is evident that for long, whenever the UGC introduced regulations pertaining to qualifications for university teaching staff, exemptions were provided for Ph. D and M. Phil. holders from the requirement of qualifying in the NET. This is evident from the successive changes which UGC introduced in the relevant regulations dealing with eligibility and qualifications for appointment as Assistant Professors, Associate Professors, etc. in 1993, 2000, 2002 and 2006. The 2009 Ph.D. Regulations were the first time that the pedagogic content of curriculum and manner in which evaluation of thesis/viva voce, etc. were spelt out. Building on this, the 2009/10 UGCR dealt with the qualifications for appointment of teaching staff in universities, and made a break with the past inasmuch as only those who had earned their Ph.D. in terms of the 2009 Ph.D. Regulations or were to earn them under that regime were entitled to the exemption from taking the NET.14. This meant that a large group of Ph.D. holders (such as Dr. Jayakumar in this case) who had been awarded their doctoral degrees prior to 11.07.2009, i.e., the cut-off date under the 2009 UGCR, suddenly became disentitled to claim exemption and were per force made to appear and qualify in the NET. The UGC become aware of this situation and by two resolutions dated 12.08.2010 and 27.09.2010, opined that since the regulations are prospective in nature, all candidates having M. Phil. degree on or before 10.07.2009 and all persons who obtained the Ph.D. degree on or before 31.12.2009 and had registered themselves for the Ph.D. before this date, but would be awarded such degree subsequently, shall remain exempted from the requirement of NET for the purpose of appointment as Lecturer/Assistant Professor. However, as the facts discussed in P. Suseela (supra) reveal – the Central Government did not agree with the opinion of the UGC. Some correspondence took place between the two authorities i.e., the UGC and the Central Government. It was in the background of these facts that the petitioner in P. Suseela (supra) had approached the Allahabad High Court (as did some other candidates in other High Courts). The differing decisions of the various High Courts led to appeals before this court by Special Leave. In the batch of decided by P. Suseela (supra), the question of application of exemption from NET for candidates who obtained Ph.D. under the old regime (i.e., prior to the coming into the force of the 2009 Ph.D. Regulations) was considered – specially whether the distinction between pre and post 2009/10 UGCR Ph.D. holders amounted to an impermissible classification, whereby one set (pre-2009) was denied exemption which the other set (post 2009) was entitled to.15. This court in P. Suseela (supra) ruled that since the Central Government was the final authority under the UGC Act, it had the final say with regard to how the 2009/10 UGCR were going to operate. It was held that the regulations had to be construed in such a manner that only those acquiring their Ph.D. degree or after 11.07.2009 in terms of the 2009 Ph.D. Regulations were entitled to the exemption.16. The facts of this case would reveal that the selection process was completed in 2012. There is no doubt that at that stage, the 2009 Ph.D. Regulations and 2009/10 UGCR were in force. Yet the University appointed Dr. Jayakumar by applying the existing standards as understood by it. According to the University, the 2009/10 UGCR was incorporated in its statute only in 2013. In the opinion of this court, that detail is irrelevant. What is undeniable is that like Dr. Jayakumar, there are perhaps hundreds of other Ph.D. candidates who had secured their degrees prior to the 2009 Ph.D. Regulations and who were, till the 2009/10 UGCR were brought into force, entitled to claim exemption from NET in every selection for any teaching vacancy in any university in India. This state of affairs led the UGC to issue clarifications, which the Central Government did not agree to. The appellant Dr. Jayakumar fell within that category of Ph.D. holders for whom the UGC intended to soften the rigors of the 2009/10 UGCR. However, lack of approval by the Central Government led to litigation which culminated in P. Suseela (supra).17. P. Suseela (supra) appears facially, to adversely clinch the issue with respect to pre-2009 Ph.D. holders. The UGC perhaps realized the hardship which they had to endure (with many of them even appointed in various universities on account of the resolution adopted in UGCs 471st meeting on 12.08.2010), and therefore amended the regulations once more (2016 UGCR), which read as follows:The proviso prescribed under Regulation 3.3. J, 4.4. J, 4.4.2, 4.4.2.2, 4.4.2.3, 4.5.3 and 4.6.3 in the University Grants Commission (Minimum qualifications for appointment of teachers and other academic staff in Universities and Colleges and other measures for the maintenance of standards in higher education) (3th Amendment) Regulations, 2016 regarding exemption to the candidates registered for Ph.D. programme prior to July 11, 2009 shall stand amended and be read as under:-Provided further, the award of degree to candidates registered for the M.Phil. / Ph.D. programme prior to July 11, 2009, shall be governed by the provisions of the then existing Ordinances/Bylaws/Regulations of the Institutions awarding the degree and the Ph.D. candidates shall be exempted from the requirement of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities / Colleges / institutions subject to the fulfilment of the following conditions… (Reg. 3, 2016 UGCR)18. The intention of the UGC to protect the pre-2009 Ph.D. holders, who may have been appointed in various universities and taught for many years, is evidently clear in the language adopted. To make the intention even clearer, the 2018 UGCR, published on 18.07.2018, bifurcated the pre- and post-2009 Ph.D. holders into two groups, and allowed both exemption from taking the NET, as follows:The National Eligibility Test (NET) or an accredited test (State Level Eligibility Test SLET /SET) shall remain the minimum eligibility for appointment of Assistant Professor and equivalent positions wherever provided in these Regulations. Further, SLET/ SET shall be valid as the minimum eligibility for direct recruitment to Universities /Colleges /Institutions in the respective state only:Provided that candidates who have been awarded a Ph.D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of M.Phil./Ph.D. Degree) Regulation, 2009, or the University Grants Commission (Minimum Standards and Procedure for Award of M.Phil. / Ph.D. Degree) Regulation,2016, and their subsequent amendments from time to time, as the case may be, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or any equivalent position in any University, College or Institution.Provided further that the award of degree to candidates registered for the M.Phil. / Ph.D. programme prior to July 11, 2009, shall be governed by the provisions of the then existing Ordinances / Bye-laws / Regulations of the Institutions awarding the degree. All such Ph.D. candidates shall be exempted from the requirement of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions subject to the fulfillment of the following conditions… (Reg. 3.3(I), 2018 UGCR)19. This court did not have the benefit of examining these amendments to the regulations in P. Suseela (supra) or Manoj Sharma (supra). To construe them as applying only prospectively, would give rise to an absurdity, and defeat the purpose for which the amendment was promulgated. The manner of interpretation of amendments, where the language adopted gives clear inference of retrospective application, was determined by this court in Rafiquennessa v. Lal Bahadur Chetri (Dead) Through His Representatives and Ors., which pertained to the bar on eviction of tenants brought about retrospectively by an amendment:In order to make the statement of the law relating to the relevant rule of construction which has to be adopted in dealing with the effect of statutory provisions in this connection, we ought to add that retrospective operation of a statutory provision can be inferred even in cases where such retroactive operation appears to be clearly implicit in the provision construed in the context where it occurs. In other words, a statutory provision is held to be retroactive either when it is so declared by express terms, or the intention to make it retroactive clearly follows from the relevant words and the context in which they occur [Rafiquennessa v. Lal Bahadur Chetri (Dead) Through His Representatives and Ors., (1964) 6 SCR 876 , para 9].This interpretation has withstood the test of time, and was upheld in the decision of Darshan Singh vs. Ram Pal Singh & Ors., 1990 (Supp) 3 SCR 212, para 12 which succinctly stated:Courts will construe a provision as conferring power to act retroactively when clear words are used.20. Further, in Shyam Sunder v. Ram Kumar (2001) 8 SCC 24,  para 39, a Constitution Bench of this court discussed the scope and ambit of a declaratory law and observed:Lastly, it was contended on behalf of the Appellants that the amending Act whereby new Section 15 of the Act has been substituted is declaratory and, therefore, has retroactive operation. Ordinarily when an enactment declares the previous law, it requires to be given retroactive effect. The function of a declaratory statute is to supply an omission or to explain a previous statute and when such an Act is passed, it comes into effect when the previous enactment was passed. The legislative power to enact law includes the power to declare what was the previous law and when such a declaratory Act is passed, invariably it has been held to be retrospective. Mere absence of use of the word declaration in an Act explaining what was the law before may not appear to be a declaratory Act but if the court finds an Act as declaratory or explanatory, it has to be construed as retrospective. Conversely where a statute uses the word declaratory, the words so used may not be sufficient to hold that the statute is a declaratory Act as words may be used in order to bring into effect new law.22. This court is unpersuaded by such contentions. In situations such as these, a retrospective restoration of rights which had earlier been taken away, will certainly affect pending proceedings - however, it is the duty of the courts, whether trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same (G.P. Singh, Principles of Statutory Interpretation (14th Edn.), Pg. 631). If on such consideration, it is held by the court that an amendment speaks a language which expressly or by clear intendment takes in even pending matters, the court of first instance as well as the court of appeal must have regard to the intention so expressed, and the court of appeal may give effect to such a law even after the judgment of the court of first instance Noorunissa Begum v. Brij Kishore Sanghi, (2015) 17 SCC 128,  para 28.23. When an enactment or an amendment is declaratory, curative or clarificatory, impelled by a felt need to make clear what was always intended, such amendment is usually meant to operate from an antecedent date, or to cover antecedent events. This position was clarified in Commissioner of Income Tax, Bhopal vs. Shelly Products & Ors., (2003) 5 SCC 461,  para 38 where this court, while interpreting an amendment, held that:It seeks to clarify the law so as to remove doubts leading to the courts giving conflicting decisions, and in several cases directing the revenue to refund the entire amount of income-tax paid by the assessee where the revenue was not in a position to frame a fresh assessment. Being clarificatory in nature it must be held to be retrospective, in the facts and circumstances of the case. It is well settled that the legislature may pass a declaratory Act to set aside what the legislature deems to have been a judicial error in the interpretation of statute. It only seeks to clear a meaning of a provision of the principal Act and make explicit that which was already implicit.24. Likewise, in Zile Singh v State of Haryana Zile Singh v State of Haryana, 2004 (8) SCC 1,  para 14, this court, quoted from G.P. Singhs Principles of Statutory Interpretation (9th Edn.), and applied the relevant rule of construction:If a new Act is to explain an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended...An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect.25. Another argument raised by the respondent was that this courts decision in Manoj Sharma (supra) squarely held against the appellants. We disagree. In Manoj Sharma (supra), the respondents had obtained M.Phil. degrees under distance education programs, which was de-recognized by the 2009 Ph.D. Regulations. The Madhya Pradesh High Court held [Manoj Sharma v State of Madhya Pradesh, W.P. (C) No. 3290 of 2012, dated 29.08.2012 [MP HC]] that such de-recognition was prospective in nature, and their M.Phil. degrees were not rendered ineffective, which was upheld by this court State of Madhya Pradesh v. Manoj Sharma, 2018 (3) SCC 329,  para 12. As far as the issue of application of 2009 UGCR was concerned, the same was restricted to only MPhil degree holders, wherein the 2009 UGCR removed the NET exemption granted for M.Phil. degree holders, and retained it only for Ph.D. holders in accordance with 2009 Ph.D. Regulations. Again, this court was not afforded the opportunity to analyse the 2016 or 2018 UGCR, as those were not raised before it (the respondents were unrepresented before this court). Thus, we find limited applicability of Manoj Sharma (supra) to the present case.26. The logic pervading all the versions of the UGCR from 1993-2018 (as discussed above) to exempt M. Phil. / Ph.D. holders from qualifying in the NET was perhaps premised on the understanding that such a doctorate in ones chosen subject, involving years of study, would render a greater understanding of the subject compared to most other candidates taking the NET who have only obtained a Masters degree. Such qualification (M. Phil. or Ph. D.) is undoubtedly awarded for a proven proficiency of the candidate in the concerned subject or discipline. This is apparent from the minimum qualification requirements of different positions as well – for e.g., while a Masters degree is sufficient for application to the post of Assistant Professor, a Ph.D. is required for applying to the post of Associate Professor onwards [See Reg. 4.1, 2018 UGCR, applicable to all disciplines of Arts, Commerce, Humanities, Education, Law, Social Sciences, Sciences, Languages, Library Science, Physical Education, and Journalism & Mass Communication]. To interpret the 2018 UGCR prospectively would imply that a pre-2009 Ph.D. holders appointment would be rendered illegal, and after having taught for several years, he/she would lose his/her seniority and all accrued benefits and would now have to take the NET in order to teach – which is clearly unwarranted. This court therefore, holds that Dr. Jayakumars appointment is protected by the 2016 UGCR, which is applicable retrospectively.