Sree Sankaracharya University of Sanskrit & Ors. vs Dr. Manu & Anr.

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3752 OF 2023 (@Special Leave Petition (C) No.22633 of 2017)

SREE SANKARACHARYA UNIVERSITY OF SANSKRIT & ORS. APPELLANT(S)

VS.

DR. MANU & ANR. RESPONDENT(S)

JUDGMENT

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 Signature Not Verified

to grant two advance increments to Respondent No. 1 in terms of Clause Digitally signed by Nidhi Ahuja Date: 2023.05.16 18:26:34 IST Reason:

6.18 of the revised University Grants Commission (“UGC”) Scheme, 2

1998 and Government Order dated 21st December, 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 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, 3

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 21st

December, 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. 4

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 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:

5

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.

iii) That since Respondent No.1 was notionally placed in the selection

grade from 22nd December, 1999, i.e., before the subsequent 6

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 7

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.

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 8

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 21st December, 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.

9

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 10

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 (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 11

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 12

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 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, 13

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. 14

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.

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 15

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.

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 16

Lecturer and 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.

17

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:

Qualification Advance Advance Advance Total of the increments increments increments number of Lecturer at accrued at accrued on accrued on advance the time of the time of acquiring being increments recruitment recruitment Ph.D. placed in degree the Selection Grade

A Lecturer, Four advance Not Two advance Six advance who has a increments applicable increments increments Ph.D. degree to his/her credit at the time of recruitment A Lecturer, Two advance One advance Two advance Five advance who increments increment increments increments possesses an on acquiring M.Phil. a Ph.D. degree at the within two time of years of recruitment recruitment A Lecturer No advance Two advance Two advance Four who increments increments increments advance possessed would accrue increments neither an at the time of M.Phil. recruitment degree nor a Ph.D. degree at the time of recruitment 18

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 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. Letter No.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 19

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.

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.

20

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,

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 21

subsequent Government Order dated 29th March, 2001. The same is

presented in a tabular form as under:

Qualification of Total number of Total number of the Lecturer at the advance increments advance time of under the Government increments under recruitment Order dated 21st the Government December, 1999 Order dated 29th March, 2001 A Lecturer, who Six advance increments Four advance has a Ph.D. degree increments to his/her credit at the time of recruitment A Lecturer who Four advance Four advance acquired a Ph.D. increments increments degree during service

7.6. As noted from the table above, a Lecturer who has a Ph.D. degree

to his/her credit at the time of recruitment was entitled 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 22

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. 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 23

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 29 th

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 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. 24

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 25

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 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 26

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.

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:

27

“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 28

ought to 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.

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 29

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

favour of a Lecturer who has a Ph.D. degree to his/her credit at the time 30

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.

31

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.

……………..………………….J. [K.M. JOSEPH]

………..………..…………….J. [B.V. NAGARATHNA]

New Delhi;

16th May, 2023.