SREE SANKARACHARYA UNIVERSITY OF SANSKRIT & ORS. versus DR. MANU & ANR.
[2023] 7 S.C.R. 366, Supreme Court of India, 2023
Outcome: Dismissed (Dismissed)
Segment: Ratio
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SUPREME COURT REPORTS
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SREE SANKARACHARYA UNIVERSITY OF SANSKRIT &
ORS.
v.
DR. MANU & ANR.
(Civil Appeal No. 3752 of 2023)
MAY 16, 2023
[K. M. JOSEPH AND B. V. NAGARATHNA, JJ.]
Service Law – Respondent No.1 joined the service of the
Appellant-University in July 1999 as a Lecturer – He was placed in
the senior scale and granted four advance increments by virtue of
Cl 6.16 of the UGC Scheme dtd.21.12.1999 which provided that
candidates who had Ph.D. degree at the time of recruitment as
lecturers would be eligible for four advance increments – Later,
Respondent No.1 was placed as a Selection Grade Lecturer however,
while fixing the pay, two advance increments payable on placement
of a Lecturer holding a Ph.D. degree as a Selection Grade Lecturer,
as per Clause 6.18 of the aforesaid UGC Scheme were not granted
in view of Government Order (G.O.) dtd. 29.03.2001 – Writ petition
filed – Appellant was directed to pay Respondent No.1, two advance
increments in terms of Cl 6.18 of the G.O. dtd.21.12.1999 – Held: A
Lecturer who had a Ph.D. degree at the time of recruitment was
entitled to six advance increments on being placed in the selection
grade, as stipulated u/cl 6.16 and 6.18 of the G.O dtd. 21.12.1999
– The number of advance increments that accrued to such a Lecturer
on being placed in the selection grade was reduced to four vide
G.O dtd.29.03.2001 by providing that a teacher who had got the
benefit of advance increments by virtue of having a
Ph.D. degree
at the time of recruitment, would not be eligible for advance
increments on being placed in the selection grade – The benefit of
increments on being placed in the selection grade was restricted to
those lecturers who obtained a Ph.D. degree subsequent to their
recruitment – Thus, the subsequent G.O dtd.29.03.2001 substantively
modified the G.O dtd.21.12.1999 and therefore, cannot be declared
as a clarification and be made applicable retrospectively – Merely
because it was described as a clarification/explanation, the Court
is not bound to accept that the said order is only clarificatory in
nature – The benefit withdrawn was not anticipated under the
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previously existing scheme – Therefore, such an amendment cannot
be given retrospective effect – Respondent No. 1 who was placed in
the selection grade before 29.03.2001 entitled to all the incentives
stipulated in the G.O dtd.21.12.1999 – Judgments of Single Judge
and Division Bench affirmed – Interpretation of Statutes.
Interpretation of Statutes – Clarificatory/declaratory/
explanatory provision vis-à-vis a substantive amendment – Operation
of, if retrospective – Principles of interpretation – Discussed – Service
Law.
Commissioner of Income Tax, Bombay vs. Podar Cement
Pvt. Ltd. (1997) 226 ITR 625 (SC); Allied Motors Pvt.
Ltd. vs. Commissioner of Income Tax, Delhi (1997) 224
ITR 677 (SC); Bihta Cooperative Development Cane
Marketing Union Ltd. vs. Bank of Bihar A.I.R. 1967
SC 389 : [1967] SCR 848; Virtual Soft Systems Ltd. vs.
Commissioner of Income Tax, Delhi (2007) 289 ITR 83
(SC); Union of India vs. Martin Lottery Agencies Ltd.
(2009) 12 SCC 209 : [2009] 7 SCR 946 – relied on.
Ex-Capt. K.C. Arora vs. State of Haryana 1984 (3) SCC
281 : [1984] 3 SCR 623; Zile Singh vs. State of Haryana
(2004) 8 SCC 1 : [2004] 5 Suppl. SCR 272;
Commissioner of Income Tax, Ahmedabad vs. Gold Coin
Health Food Pvt. Ltd. (2008) 9 SCC 622 : [2008] 12
SCR 179; State of Bihar vs. Ramesh Prasad Verma
(Dead) through LRs (2017) 5 SCC 665 : [2017] 2 SCR
342; S. Sundaram Pillai vs. V.R. Pattabiraman A.I.R.
1985 SC 582 : [1985] 2 SCR 643 – referred to.
Case Law Reference
[1984] 3
SCR 623
referred to
Para 3.7
[2004] 5 Suppl. SCR 272
referred to
Para 4.7
[2008] 12 SCR 179
referred to
Para 4.7
[2017] 2 SCR 342
referred to
Para 4.7
[1985] 2 SCR 643
referred to
Para 4.8
[1967] SCR 848
relied on
Para 9.1
[2009] 7 SCR 946
relied on
Para 9.1
SREE SANKARACHARYA UNIVERSITY OF SANSKRIT &
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3752
of 2023.
From the Judgment and Order dated 10.08.2016 of the High Court
of Kerala at Ernakulam in WA No. 254 of 2016.
P. V. Surendranath, Sr. Adv., Biju P Raman, Sawan Kumar Shukla,
Ms. Lekha Sudhakaran, Advs. for the Appellants.
Raghenth Basant, P. V. Dinesh, Bineesh K., Ms. Nida K., Ms.
Roopali Lakhotia, Ajay Krishna, C. K. Sasi, Abdulla Naseeh V T, Ms.
Meena K Poulose, Advs. for the Respondents.
The Judgment of the Court was delivered by
NAGARATHNA, J.
Leave granted.
2. The present appeal has been filed by the Appellant-University
assailing the final judgment and order dated 10th August, 2016, passed
by the High Court of Kerala at Ernakulam in Writ Appeal No. 254 of
2016. By the impugned judgment, the Division Bench of the High Court
dismissed the Writ Appeal filed by the Appellant-University and confirmed
the judgment of the learned Single Judge of the High Court, dated 13th
October, 2015 whereby the appellant-University was directed to grant
two advance increments to Respondent No. 1 in terms of Clause 6.18 of
the revised University Grants Commission (“UGC”) Scheme, 1998and
Government Order dated 21stDecember, 1999, on his placement as a
Selection Grade Lecturer.
3. Succinctly stated, the facts giving rise to the present appeal are
as under:
3.1. Respondent No.1, namely, Dr.Manu joined the service of the
Appellant-University on 14th July, 1999, as a Lecturer in
the Hindi
language department. At the time, he had previously rendered over eleven
years of service as a Lecturer of Hindi in Mahatma Gandhi Government
Arts College, Mahe, Pondicherry for the period between 23rd December,
1988 and 13th July, 1999.
3.2. By an order dated 25th November, 2004, Respondent No. 1
was placed in the senior scale w.e.f. 14th July, 1999. Further, he was
granted four advance increments by virtue of Clause 6.16 of the UGC
Scheme dated 21st December, 1999 which provides that candidates who
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hold Ph.D. degree at the time of recruitment as lecturers would be eligible
for four advance increments.
3.3. Thereafter, by an order dated 20th October, 2011, Respondent
No. 1 was placed as a Selection Grade Lecturer w.e.f.14th July, 2000,
with the notional date of placement as 22nd December, 1999 and
consequently, his pay was fixed by order dated 12th January, 2012 at Rs.
46,440-9000-55,440/-. In fixing the pay, two advance increments, payable
on placement of a Lecturer holding a Ph.D. degree as a Selection Grade
Lecturer, as per Clause 6.18 of the UGC Scheme dated 21stDecember,
1999, were not granted.
3.4. Respondent No. 1 filed a writ petition, being W.P. (C) No.
28567 of 2012 before the High Court of Kerala challenging the orders of
the Appellant-University dated 20th October, 2011 and 12th January, 2012,
on the ground that two advance increments, payable to him on placement
as a Selection Grade Lecturer were erroneously withheld. The reliefs,
inter alia, prayed for in the said writ petition are as under:
i)
To issue a direction in the nature of a writ of certiorari
quashing the order dated 12th January, 2012 to the extent of
denial of placement benefits from 22nd December, 1999 to
14th July, 2000.
ii)
To issue a writ of mandamus commanding the Appellant-
University to grant two advance increments to Respondent
No. 1, in accordance with Clause 6.18 of the UGC Scheme
dated 22nd December, 1999, at the time of his placement in
the selection grade and
accordingly refix his pay with effect
from 22nd December, 1999.
iii)
To issue a writ of mandamus commanding the Appellant-
University to disburse the salary and arrears payable to Respondent No.
1 from 22nd December, 1999, i.e., the date on which he was placed in
the selection grade to 14th July, 2000.
3.5. The Appellant-University filed a counter affidavit in the said
writ petition taking the stand that Respondent No. 1 was not eligible to
claim any further increments based on his Ph.D. degree, on his placement
in the selection grade in light of the Government Order, G.O. (P) No. 44/
2001/H.Edn. dated 29th March,2001 which had clarified that teachers
who had already got the benefit of advance increments for having a
Ph.D. degree, would not be eligible for advance increments at the time
SREE SANKARACHARYA UNIVERSITY OF SANSKRIT &
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of their placement in the selection grade. That since Respondent No. 1
had already been granted four advance increments by virtue of holding
a Ph.D. degree, he would not be eligible to claim two more advance
increments based on his Ph.D. degree, at the time of being placed in the
selection grade.
3.6. The learned Single Judge of the High Court partly allowed
W.P. (C) No. 28567 of 2012 and directed the Appellant-University to
pay Respondent No.2 two advance increments in terms of Clause 6.18
of the Government Order dated 21st December, 1999. The other reliefs
sought for by Respondent No.1 were left open to be decided in appropriate
proceedings.
3.7. The findings and reasoning of the learned Single Judge of the
High Court in partly allowing the writ petition filed by Respondent No.1,
have been encapsulated as under:
i)
That there was no requirement to consider the validity of
the orders of the Appellant-University dated 20th October,
2011 and 12th January, 2012. That the only question that
would require consideration is as to the entitlement of
Respondent No. 1 to two advance increments which had
been denied to him only on account of the fact that a
subsequent Government Order had been passed stipulating
that teachers who had already got the benefit of advance
increments for having a Ph.D. degree, would not be eligible
for advance increments at the time of their placement in
the selection grade.
ii)
That the subsequent
Government Order dated 29th March,
2001 had modified the Government Order dated 21st
December, 1999 to the extent of stating that teachers who
had already got the benefit of advance increments for having
a Ph.D. degree, would not be eligible for advance
increments at the time of their placement in the selection
grade. That an amendment cannot be stated to have
retrospective effect unless it is expressly provided that it
shall operate retrospectively, vide Ex-Capt. K.C. Arora
vs. State of Haryana, 1984 (3) SCC 281 (K.C. Arora).
That a perusal of the Government Order dated 29th March,
2001 would not indicate that it was meant to operate
retrospectively.
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iii)
That since Respondent No.1 was notionally placed in the
selection grade from 22nd December, 1999, i.e., before the
subsequent Government Order dated 29th March, 2001 was
passed, he would be entitled to the benefit of Clause 6.18
of the Government Order dated 21st December, 1999.
3.8. The Appellant-University challenged the judgment passed by
the learned Single Judge of the High Court by filing a writ appeal,
numbered as W.A. No. 254 of 2016, before the Division Bench of the
High Court.
3.9. By the impugned judgment dated 10th August, 2016, the
Division Bench of the High Court of Kerala dismissed the said writ
appeal filed by the Appellant-University and confirmed the judgment of
the learned Single Judge of the High Court, dated 13th October, 2015
whereby the Appellant-University was directed to grant two advance
increments to Respondent No.1 in terms of Clause 6.18 of the Government
Order dated 21st December, 1999.
The pertinent findings of the Division Bench of the High Court in
the impugned judgment dated 10th August, 2016 have been culled out as
under:
i)
That admittedly, the Government, by way of the order dated
29th March, 2001 had modified the Government Order dated
21st December, 1999 by specifying certain conditions for
eligibility for grant of advance increments on being placed
in the selection grade. Simply because the order dated 29th
March, 2001 had been passed when a clarification was
sought as to whether teachers who had already got the
benefit of advance increments for having a Ph.D. degree,
would be eligible for advance increments at the time of
their placement in the selection grade, the said order cannot
be termed as a clarificatory order and be made effective
retrospectively.
ii)
Reliance was placed on the decision of a co-ordinate Bench
of the High Court in Writ Appeal (C) No.749 of 2013
wherein the contention of the Government that a Lecturer
who was already granted advance increments at the time
of her recruitment, would not be eligible for further
increments on moving to the selection grade in light of the
order dated 29th March, 2001, was repelled.
SREE SANKARACHARYA UNIVERSITY OF SANSKRIT &
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iii)
That the Government Order dated 29th March, 2001 could
not be made applicable to Respondent No.1 who had been
placed in the selection grade notionally from 22nd December,
1999 with actual benefits accruing from 14th July, 2000.
Aggrieved by the said judgment, the present appeal has been filed
by the Appellant-University.
Submissions:
4. We have heard learned Senior Counsel Sri P.V. Surendranath
for the Appellant-University and Sri Raghenth Basant, learned counsel
for Respondent No. 1 and perused the material on record.
4.1. Sri P.V. Surendranath, learned Senior Counsel appearing
on behalf of the Appellant-University at the outset submitted that
the judgments of the learned Single Judge and the Division Bench
of the High Court of Kerala dated 13th October, 2015 and 10th
August, 2016 respectively, were based on an incorrect appreciation
of the law and facts of the case and, therefore, deserve to be set-
aside by this Court.
4.2. It was further contended that a close reading of Clauses
6.16 to 6.19 of the Government Order dated 21stDecember, 1999
would indicate that the maximum number of advance increments that
a teacher having a Ph.D. degree could avail is limited to four, under
all circumstances. That is to say that a teacher who had a Ph.D.
degree at the time of recruitment as a Lecturer and had therefore
been granted four advance increments, would not be eligible for
advance increments on the basis of the Ph.D.
degree on being placed
in the selection grade.
4.3. Referring to the text of Clauses 6.16 to 6.19 of the said
Government Order, it was contended that the said provisions do not
contemplate a double benefit by virtue of a Ph.D. qualification. That the
provisions do not seek to confer the benefit of advance increments based
on a Ph.D. qualification, at the time of recruitment and also at the time
of being placed in the selection grade. That having availed the benefit of
advance increments at the time of recruitment by virtue of holding a
Ph.D. qualification, a Lecturer cannot once again claim increments based
on his/her Ph.D. qualification at the time of being placed in the selection
grade.
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4.4. It was contended that the subsequent Government Order
dated 29th March, 2001 clarified that teachers who had already got the
benefit of advance increments for having a Ph.D. qualification, would
not be eligible for advance increments at the time of their placement in
the selection grade. That the Government Order dated 29th March, 2001
was a clarificatory order and not one that would vest or withdraw any
substantive rights. That the Government Order dated 29th March, 2001
clearly records that the same was being issued pursuant to a clarification
sought with respect to the incentives for persons possessing/acquiring
Ph.D. and M.Phil. qualifications. Therefore, the said clarification would
relate back to the date on which the previous Government Order dated
21st December, 1999 came into effect.
4.5. It was further contended that the clarificatory order dated
29th March, 2001 was issued only for the purpose of removal of
ambiguities in the implementation of the earlier Government Order dated
21st December, 1999. Therefore, it is to be read as a part and parcel of
the Government Order dated 21st December, 1999 and must not be
construed as a separate order which seeks to modify or alter the rights
conferred by way of the order dated 21st December, 1999.
4.6. It was submitted that when an order itself records in no
unclear terms that it has been issued as a clarification of a previous
order, it must be construed as a clarification and not as an amendment/
modification. Accordingly, such an order must be made applicable
retrospectively from the date on which the order sought to be clarified
came into effect.
4.7. It was next contended that since it was specifically stated in
the order dated 29th March, 2001 that the same was a clarificatory order,
it was needless to specify expressly that the said order would operate
retrospectively. Hence, the learned Single Judge had erred in recording
a finding that since the order dated 29th March, 2001 did not specifically
state that it would operate retrospectively, the same could not be held to
have retrospective operation.
In order to buttress this contention, Sri Surendranath has placed
reliance on the decisions of this Court in Zile Singh vs. State of Haryana,
(2004) 8 SCC 1; Commissioner of Income Tax, Ahmedabad vs. Gold
Coin Health Food Pvt. Ltd., (2008) 9 SCC 622 and State of Bihar
vs. Ramesh Prasad Verma (Dead) through LRs, (2017) 5 SCC 665
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(Ramesh Prasad Verma) regarding the retrospective application of a
clarificatory amendment to a statute.
4.8. Reliance was placed on the decision of this Court in
S.Sundaram Pillai vs. V.R. Pattabiraman, A.I.R. 1985 SC 582
wherein this Court observed that an explanation added to a statutory
provision is not a substantive provision, but as the plain meaning of the
word itself suggests, it is merely meant to explain or clarify certain
ambiguities which may have crept into interpreting the statutory provision.
In this context, it was contended that a perusal of the order dated 29th
March, 2001 would make it abundantly clear that it was meant to clear
ambiguity in the application of Clauses 6.16 to 6.19 of the order dated
21st December, 1999 and not to withdraw any substantive rights.
Therefore, there would be no bar to allow the said clarification to operate
retrospectively.
With the aforesaid contentions, it was prayed that the present
appeal be allowed and the judgments of the learned Single Judge and the
Division Bench of the High Court of Kerala dated 13th October, 2015
and 10th August, 2016 respectively be quashed and set aside.
5. Per contra, learned Senior Counsel, Sri Raghenth Basant,
appearing on behalf of Respondent No. 1 submitted that the impugned
judgment of the High Court is based on an unimpeachable understanding
of the law and facts of the present case and therefore, does not call for
interference by this
Court.
5.1. It was further submitted that a conjoint reading of Clauses
6.16, 6.18 and 6.19 would reveal that a Lecturer with a Ph.D. degree at
the time of recruitment as a Lecturer would be eligible for six advance
increments, i.e., four advance increments at the time of recruitment and
two additional increments at the time of being placed in the selection
grade. Further, a Lecturer who does not possess a Ph.D. degree at the
time of his recruitment, but subsequently obtains one while serving as a
Lecturer before placement in the selection grade, would be eligible for
four advance increments, i.e., two advance increments on obtaining a
Ph.D. degree and two more increments on being placed in the selection
grade.
5.2. It was further submitted that merely because increments
granted at the time of recruitment as well as those that could be availed
at the time of placement in the selection grade, were all based on the
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Ph.D. qualification, the former tranche of increments was not to be
granted to the exclusion of the latter. That though granted on the basis of
a Ph.D. qualification, the increments were made effective at different
phases of a Lecturer’s career. Hence, Clauses 6.16, 6.18 and 6.19 could
not be construed to imply that a Lecturer who had already got the benefit
of four advance increments at the time of recruitment, would not be
eligible for two more advance increments on being placed in the selection
grade.
5.3. It was contended that a reading of Clauses 6.16, 6.18 and
6.19 would not suggest that a Lecturer who had already got the benefit
of four advance increments at the time of recruitment, would not be
eligible for two more advance increments on being placed in the selection
grade. Therefore, the Government Order dated 29th March, 2001 which
significantly modified/amended the meaning of Clauses 6.16, 6.18 and
6.19, could not be stated to be a clarification and therefore made applicable
retrospectively.
5.4. Reliance was placed on the decision of this Court in K.C.
Arora to contend that an amendment cannot be stated to have
retrospective effect unless it is expressly provided that it shall operate
retrospectively (or by necessary implication). That the Government Order
dated 29th March, 2001 did not indicate that the same was to operate
retrospectively and hence, cannot be stated to have retrospective effect.
5.5. It was submitted that the High Court
rightly held that simply
because the order dated 29th March, 2001 had been passed when a
clarification was sought as to whether teachers who had already got the
benefit of advance increments for having a Ph.D. degree, would be
eligible for advance increments at the time of their placement in the
selection grade, the said order cannot be termed as a clarificatory order
and be made effective retrospectively. If the order dated 29th March,
2001 is made applicable retrospectively, it would have the effect of
withdrawing vested rights of Lecturers such as Respondent No. 1 and
would hence be in contravention of settled principles of law that an
amendment could not be made applicable retrospectively, if such
application would have the effect of nullifying vested rights.
With the aforesaid submissions, it was prayed that the present
appeal be dismissed as being devoid of merit and the judgments of the
learned Single Judge and the Division Bench of the High Court of Kerala
dated 13th October, 2015 and 10th August, 2016 respectively be affirmed.
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Points for consideration:
6. Having heard learned Senior Counsel and learned counsel for
the respective parties and on perusal of the material on record, we find
that the following points would arise for our consideration:
i)
Whether the High Court was right and justified in directing
grant of two advance increments to Respondent No. 1 in
terms of Clause 6.18 of the Government Order dated 21st
December, 1999, on his placement as a Selection Grade
Lecturer?
ii)
What order?
Discussion and analysis:
7. This matter calls for a determination as to whether the 29th
March, 2001 was a clarification of Clauses 6.16 to 6.19 of the
Government Order dated 21st December, 1999, or whether, it amended
or modified the same. If the subsequent Government Order is declared
to be in the nature of a clarification of the earlier order, it may be made
applicable retrospectively. Conversely, if the subsequent Government
Order is held to be a modification/amendment of the earlier order, its
application would be prospective as retrospective application thereof
would result in withdrawal of vested rights which is impermissible in law
and the same may also entail recoveries to be made.
7.1. For a ready reference, the relevant clauses of the Government
Order bearing number G.O. (P) No. 171/99/H.Edn. dated 21st December,
1999 have been extracted hereinunder:
“Incentives for Ph.D./M.Phil.
6.16. Four and two advance increments will be admissible to
those who hold Ph.D. and M. Phil. degrees, respectively at the
time of recruitment as Lecturers. Candidates with D.Litt./D.Sc.
should be given benefit on par with Ph.D. and M.Litt. on par
with M.Phil.
6.17. One increment will be admissible to those teachers with
M.Phil. who acquire Ph.D. within two years of recruitment.
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6.18. A Lecturer with Ph.D. will be eligible for two advance
increments when she/he moves into Selection Grade/Reader.
6.19. A teacher will be eligible for two advance increments as
and when she/he acquires a Ph.D. degree in her/his service
career.”
7.2. On a conjoint reading of the aforesaid Clauses of the
Government Order dated 21st December, 1999, the following aspects
would emerge:
i)
A Lecturer, who at the time of recruitment has a Ph.D.
degree to his/her credit, would be eligible to four increments.
Such a candidate, on being placed in the Selection Grade or
as a Reader, would be eligible to two additional advance
increments. Therefore, a Lecturer with a Ph.D. degree at
the time of recruitment as a Lecturerand is later placed in
the selection grade would be eligible for a total six advance
increments.
ii)
A Lecturer, who possesses an M.Phil. degree at the time
of recruitment, would be eligible for two increments. If such
a Lecturer acquires a Ph.D. degree within two years of
recruitment, he/she would be eligible for one additional
increment. On being placed in the selection grade such a
Lecturer would be eligible for two additional advance
increments. Therefore, a Lecturer who possessed an
M.Phil. degree at the time of recruitment, but later acquired
a Ph.D. degree and is placed in the selection grade would
be eligible for a total five advance increments.
iii)
A Lecturer who possessed neither an M.Phil.degree nor a
Ph.D. degree at the time of
recruitment, but acquires a
Ph.D. degree during his/her career, would be eligible for
two advance increments on acquiring a Ph.D. degree.
Further, on being placed in the selection grade, such a
Lecturer would be eligible for two additional advance
increments. Therefore, a Lecturer who possessed neither
an M.Phil. degree nor a Ph.D. degree at the time of
recruitment, but acquires a Ph.D. degree during his/her
career and is placed in the selection grade would be eligible
for a total four advance increments.
SREE SANKARACHARYA UNIVERSITY OF SANSKRIT &
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The entitlements of different categories of lecturers, as defined
under the Government Order dated 21st December, 1999 has been
presented in a tabular form as under:
7.3. Having discussed the import of the aforesaid Clauses of the
Government Order dated 21st December, 1999, it is necessary to examine
the extent to which it was modified by way of the subsequent Government
Order dated 29th March, 2001 numbered as G.O. (P) No. 44/2001 H.
Edn. which reads as under:
“GOVERNMENT OF KERALA
ABSTRACT
UNIVERSITIES AND COLLEGES – UGC SCHEME –
REVISION OF PAY SCALES – CLARIFICATIONS –
MODIFIED – ORDERS ISSUED.
HIGHER EDUCATION (C) DEPARTMENT
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G.O.(P) No.44/2001/H.Edn.
Dated:29.03.2001.
Read:
1. G.O.(P) No.171/99/H.Edn. dated 21.12.1999.
2. G.O.(P) No.110/2000/H.Edn. dated 04.07.2000
3. Letter Nos.GE/10/390/2316 dated 14.08.2000
4. G.E. 10/E/Genl/486/2097 dated 21.09.2000
5. GE-10/E/Genl/518/3493 dated 24.10.2000 from the Accountant
General, Thiruvananthapuram.
6. Govt. LetterNo.24292/C3/2000/H.Edn. dt. 13.10.2000.
ORDER
The Accountant General, Thiruvananthapuram in his letters
read above informed government that since second I.R. is reckoned
for fixation notionally, reckoning of first interim relief alone is
necessary for calculating the arears from 1-1-96 to 31-1-97 and
hence he has prepared a ready reckoner taking first interim relief
only and forwarded to government for approval. He also pointed
out an error occurred in the reckoner for the pre-revised scale of
pay Rs.3700-5700 in the G.O. read as second paper above. He
has also sought some clarifications in the incentive for Ph.D/M.Phil
laid down in Cl.6.16 to 6.19 in the G.O. read as first paper above.
Government have examined the matter in detail and are pleased
to order the following:
1. The ready reckoner furnished by the Accountant General,
Thiruvananthapuram along with his letter read above, for
calculating the arrears of pay from 1-1-96 to 31-1-97, reckoning
the first interim relief alone, is approved by government and is
appended to this Order.
2. Teachers drawing pay at 10th stage in the pre-revised scale of
Rs.3700-5700 i.e. from
Rs.4825/- onwards will get their
increments after one year and not on the normal dates of their
increments.
3. Teachers holding both M.Phil and Ph.D at the time of their
entry in service are entitled to 4 advance increments.
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4.
The incentives specified in para 6.16 to 6.18 of the government
order dated 21.12.99 are not eligible simultaneously.
5.
Teachers who have got the benefit of advance increments for
having Ph.D will not be eligible for advance increments at the
time of their placement in the selection grade. But the teachers
who got Ph.D. subsequently and who had not got the benefit
earlier will be eligible for 2 advance increments when he/she
moves into selection Grade Reader. The date of effect of this
benefit will be from 1.1.96. Those who have acquired/will
acquire Ph.D. on or after 1.1.96 will become eligible for
advance increment from the date of award of Ph.D degree.
The period spent for Ph.D. on deputation will also be reckoned
as qualifying service for placement in senior scale/selection
grade. The advance increment will be sanctioned in the lower
scale for fixing the pay in the higher scale.
6.
A teacher is not simultaneously eligible for the incentives as
stated in para 6.18 and 6.19.
7.
A teacher is not eligible for benefits specified both in paras
6.17 and 5.19 (should read as 6.19) simultaneously.
8.
Teachers who get advance increments will not be eligible for
fixation as per Rule 28-A part I K.S.Rs.
9.
The government orders read as first and second papers stand
modified to this extent.
By Order of the Governor
Sd/-
N. Chandrasekharan Nair,
Principal Secretary
(Higher Education)”
(Underlining by us)
7.4. The following
aspects emerge on studying the Government
Order dated 29th March, 2001:
i)
That the said order was issued pursuant to clarifications being
sought by the Accountant General, Thiruvananthapuram,
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regarding the incentives under Clauses 6.16 to 6.19 of the
Government Order dated 21st December, 1999.
ii)
According to the order dated 29th March, 2001, lecturers
who had got the benefit of four advance increments at the
time of their recruitment, by virtue of holding a Ph.D. degree,
would not be eligible for two more increments on being
placed in the selection grade. Those lecturers who obtained
a Ph.D. degree subsequent to their recruitment would be
eligible for two increments on moving to the selection grade.
iii)
A Lecturer would not be simultaneously eligible for the
incentives under Clause 6.16 and 6.19.
7.5. It is necessary to contrast the entitlements of different
categories of lecturers on being placed in the selection grade, under the
Government Order dated 21st December, 1999, vis-à-vis, the subsequent
Government Order dated 29th March, 2001. The same is presented in a
tabular form as under:
Qualification of the 
Lecturer at the time of 
recruitment  
Total 
number 
of 
advance 
increments 
under the Government 
Order 
dated 
21st
December, 1999 
Total number of advance 
increments 
under 
the 
Government Order dated 
29th March, 2001 
A Lecturer, who has a 
Ph.D. degree to his/her 
credit at the time of 
recruitment  
Six advance increments 
Four advance increments 
A 
Lecturer 
who 
acquired 
a 
Ph.D. 
degree during service  
Four 
advance 
increments 
Four advance increments 
7.6. As noted from the table above, a Lecturerwho has a Ph.D.
degree to his/her credit at the time of recruitment wasentitled to six
advance increments on being placed in the selection grade, as stipulated
under Clauses 6.16 and 6.18 of the Government Order dated 21st
December, 1999. However, the number of advance increments that would
accrue to such a Lecturer on being placed in the selection grade was
reduced to four, vide Government Order dated 29th March, 2001. The
Government Order dated 29th March, 2001 restricted the eligibility of
lecturers to the advance increments which would accrue on being placed
in the selection grade by providing that a teacher who had got the benefit
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of advance increments by virtue of having a Ph.D. degree at the time of
recruitment, would not be eligible for advance increments on being placed
in the selection grade. The benefit of increments on being placed in the
selection grade was restricted to those lecturers who obtained a Ph.D.
degree subsequent to their recruitment. As noted above, the Government
Order dated 29th March, 2001 modifies the Government Order dated
21st December, 1999 by providing, inter-alia, that Lecturer would not
be simultaneously eligible for the incentives under Clause 6.16 and 6.19
thereof. On a reading of the Government of Kerala’s Order dated 29th
March, 2001, it is evident that teachers holding both M.Phil. degree and
Ph.D. degree at the time of their entry in service are entitled to four
advance increments which is as per the Government Order dated 21st
December, 1999 extracted above. However, the incentives specified in
paragraphs 6.16 to 6.18 of the aforesaid Government Order are not to
be given simultaneously. In other words, a teacher is not simultaneously
eligible for the incentives as stated in paragraphs 6.18 and 6.19. Similarly,
a teacher is not eligible for benefits specified in paragraphs 6.17 and
6.19 simultaneously. This would mean that this is the only modification
made to the Order dated 21st December, 1999.
It is also to be noted that the object of providing four advance
increments to a Lecturer holding Ph.D. degree
and two advance
increments to a Lecturer holding M.Phil. degree at the time of recruitment
as Lecturer is in recognition of the higher qualification that they possess,
as ordinarily a Lecturer must possess a post-graduation degree to be
recruited as a Lecturer. Therefore, if a person has an M.Phil. degree at
the time of recruitment as a Lecturer, he or she would be entitled to two
advance increments and if any Lecturer possesses a Ph.D. degree at
the time of appointment as a Lecturer, four advance increments are
admissible. This, is in contrast to, being eligible for two advance
increments when a Lecturer acquires a Ph.D. degree during the course
of service/career. On the other hand, if a Lecturer with an M.Phil. degree
acquires a Ph.D. degree within two years of recruitment would be
admissible to one increment. Also, a Lecturer with Ph.D. degree would
be eligible for two advance increments when promoted as a Selection
Grade Lecturer/Reader.
In fact, in the subsequent State Government Order dated 29th
March, 2001 also, paragraph 3 reiterates that teachers holding both
M.Phil.degree and Ph.D. degrees at the time of their entry in service
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are entitled to four advance increments which is on par with paragraph
6.16 of the Government Order dated 21st December, 1999. Paragraphs
4 and 6 of the said Order categorically state that the incentive specified
in paragraphs 6.16 to 6.18 and paragraphs 6.18 and 6.19 of the earlier
Government Order would not be simultaneously applicable. Even
paragraph 7 of the said Order states that the teacher is not eligible for
the benefits specified both in paragraphs 6.17 and 6.19 simultaneously.
8. The next aspect that requires consideration is whether such a
modification could be made applicable retrospectively., i.e., whether the
Government Order dated 29th March, 2001 to the extent that it modifies
the Government Order dated 21st December, 1999 would be applicable
to those lecturers who had acquired a Ph.D. degree at the time of their
recruitment, such as, Respondent No. 1, who were placed in the selection
grade before 29th March, 2001.
8.1. It is trite that any legislation or instrument having the force of
law, which is clarificatory or explanatory in nature and purport and which
seeks to clear doubts or correct an obvious omission in a statute, would
generally be retrospective in operation, vide Ramesh Prasad Verma.
Therefore, in order to determine whether the Government Order dated
29th March, 2001 may be made applicable retrospectively, it is necessary
to consider whether the said order was a clarification or a substantive
amendment.
8.2. In order to
effectively deal with the aspect as to retrospective
operation of the Government Order dated 29th March, 2001 it may be
useful to refer to the following extract from the treatise, Principles of
Statutory Interpretation, 11th Edition (2008) by Justice G.P. Singh on
the sweep of a clarificatory/declaratory/explanatory provision:
“The presumption against retrospective operation is not
applicable to declaratory statutes. As stated in Craies and approved
by the Supreme Court: For modern purposes a declaratory Act
may be defined as an Act to remove doubts existing as to the
common law, or the meaning or effect of any Statute. Such acts
are usually held to be 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
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intended. The language ‘shall be deemed always to have meant’
or ‘shall be deemed never to have included’ is declaratory and is
in plain terms retrospective. In the absence of clear words
indicating that the amending Act is declaratory, it would not be so
construed when the amended provision was clear and
unambiguous. An amending Act may be purely clarificatory 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 and, therefore, if the principal Act was existing
law when the constitution came into force, the amending Act also
will be part of the existing law.”
[Emphasis by us]
8.3. This Court in Commissioner of Income Tax, Bombay vs.
Podar Cement Pvt. Ltd., (1997) 226 ITR 625 (SC) noted that
circumstances under which an amendment or modification was introduced
and the consequences thereof would have to be borne in mind while
deciding the issue as to whether the amendment was clarificatory or
substantive in its nature and whether it would have retrospective effect
or not.
8.4. In Allied Motors Pvt. Ltd. vs. Commissioner of Income
Tax, Delhi, (1997) 224 ITR 677 (SC), this Court found that certain
unintended consequences flowed from a provision enacted by the
Parliament. There was an obvious omission. In order to cure the
defect, a proviso was sought to be introduced through an amendment.
The Court held that literal
construction was liable to be avoided if it
defeated the manifest object and purpose of the Act. This Court held
that if the amendment was not read into the relevant provision
retrospectively, it would be impossible to reasonably interpret the
said provision. That since there was an obvious omission in the
provision, an amendment was necessitated which would clarify/
declare the law retrospectively.
9. The proposition of law that a clarificatory provision may be
made applicable retrospectively is so well established that we do not
wish to burden this judgment by referring to rulings in the same vein.
However, it is necessary to dilate on the role of a clarification/explanation
to a statute and how the same may be identified and distinguished from
a substantive amendment.
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9.1. An explanation/clarification may not expand or alter the scope
of the original provision, vide Bihta Cooperative Development Cane
Marketing Union Ltd. vs. Bank of Bihar, A.I.R. 1967 SC 389. Merely
describing a provision as an “Explanation” or a “clarification” is not
decisive of its true meaning and import. On this aspect, this Court in
Virtual Soft Systems Ltd. vs. Commissioner of Income Tax, Delhi,
(2007) 289 ITR 83 (SC) observed as under:
“Even if the statute does contain a statement to the effect that the
amendment is declaratory or clarificatory, that is not the end of
the matter. The Court will not regard itself as being bound by the
said statement in the statute itself, but will proceed to analyse the
nature of the amendment and then conclude whether it is in reality
a clarificatory or declaratory provision or whether it is an
amendment which is intended to change the law and which applies
to future periods.”
This position of the law has also been subscribed to in Union of
India vs. Martin Lottery Agencies Ltd., (2009) 12 SCC 209 wherein
it was stated that when a new concept of tax is introduced so as to
widen the net, the same cannot be said to be only clarificatory or
declaratory and therefore be made applicable retrospectively, even though
such a tax was introduced by way of an explanation to an existing
provision. It was further held that even though an explanation begins
with the expression “for removal of doubts,” so long as there was no
vagueness or ambiguity in the law prior to introduction of the explanation,
the explanation could not be applied retrospectively by stating that it was
only clarificatory.
9.2. From the aforesaid authorities, the following principles could
be culled out:
i)
If a statute is curative or merely clarificatory of the previous
law, retrospective operation thereof may be permitted.
ii)
In order for a subsequent order/provision/amendment to be
considered as clarificatory of the previous law, the pre-
amended law oughtto have been vague or ambiguous. It is
only when it would be impossible to reasonably interpret a
provision unless an amendment is read into it, that the
amendment is considered to be a clarification or a declaration
of the previous law and therefore applied retrospectively.
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iii)
An explanation/clarification may not expand or alter the
scope of the original provision.
iv)
Merely because a provision is described as a clarification/
explanation, the Court is not bound by the said statement in
the statute itself, but must proceed to analyse the nature of
the amendment and then conclude whether it is in reality a
clarificatory or declaratory provision or whether it is a
substantive amendment which is intended to change the
law and which would apply prospectively.
10. Applying the law as discussed hereinabove to the facts of the
present case, we are of the view that the subsequent Government Order
dated 29th March, 2001 cannot be declared as a clarification and therefore
be made applicable retrospectively. The said order has substantively
modified the Government Order dated 21st December, 1999 to the extent
of stating that teachers who had already got the benefit of advance
increments for having a Ph.D. degree, would not be eligible for advance
increments at the time of their placement in the selection grade. As
noted above, the law provides that a clarification must not have the
effect of saddling any party with an unanticipated burden or withdrawing
from any party an anticipated benefit. However, the Government Order
dated 29th March, 2001 has restricted the eligibility of lecturers for
advance increments at the time of placement in the selection grade, only
to those who do not have a Ph.D.
degree at the time of recruitment and
subsequently acquire the same.
10.1. The purpose of the incentives in question seems to be twofold:
First, to incentivize persons with advanced educational qualifications to
apply for the post of lecturers. Second, in order to retain in the teaching
profession, persons with advanced qualifications. In order to secure the
first of the aforestated objectives, Clause 6.16 of the Government Order
dated 21st December, 1999 provided for increments that would accrue
on recruitment. In order to secure the second of the aforesaid purposes,
Clause 6.19 thereof provided for incentives that would accrue at the
time of placement in the selection grade. Therefore, it could not be said
that the original intention of the Government while issuing the order dated
21st December, 1999 was that a Lecturer would not be simultaneously
eligible for the incentives under Clause 6.16 and 6.19.
10.2. Further, as evident from the tabular comparison presented
hereinabove, the number of advance increments that would accrue in
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favour of a Lecturerwho has a Ph.D. degree to his/her credit at the time
of recruitment, was reduced by way of the Government Order dated
29th March, 2001 from six to four. Therefore, permitting retrospective
application of the said order would result in withdrawing vested rights of
lecturers who had a PhD. at the time of their recruitment and who were
placed in the selection grade before 29th March, 2001 with four plus two
advance increments.
10.3. Further, merely because the subsequent Government Order
has been described as a clarification/explanation or is said to have been
issued following a clarification that was sought in that regard, the Court
is not bound to accept that the said order is only clarificatory in nature.
On an analysis of the true nature and purport of the subsequent
Government Order dated 29th March, 2001, we are of the view that it is
not merely clarificatory, but is a substantial amendment which seeks to
withdraw the benefit of two advance increments in favour of a certain
category of lecturers. The benefit withdrawn was not anticipated under
the previously existing scheme. Therefore, such an amendment cannot
be given retrospective effect.
11. For the reasons set out above, lecturers such as Respondent
No. 1 who were placed in the selection grade before 29th March, 2001
would be entitled to all the incentives stipulated in the Government Order
dated 21st December, 1999.
12. The present appeal is dismissed. The judgments of the
learned
Single Judge and Division Bench of the High Court of Kerala, dated 13th
October, 2015 and 10th August, 2016 respectively are affirmed.
Parties to bear their respective costs.
Divya Pandey
Appeal dismissed.
(Assisted by : Roopanshi Virang, LCRA)
SREE SANKARACHARYA UNIVERSITY OF SANSKRIT &
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