Supreme Court: In an appeal filed by the Sree Sankaracharya University of Sanskrit (‘appellant-University’) against the Judgment and Order of the Division Bench of the Kerala High Court, wherein the appellant-University’s appeal was dismissed and Judgment of the Single Judge was confirmed, whereby the appellant was directed to grant two advance increments to respondents 1 and 2, the Division Bench of K.M. Joseph and B.V. Nagarathna* JJ., while affirming the impugned Judgments, also said that if a statute is curative or merely clarificatory of the previous law, retrospective operation thereof may be permitted and that an explanation/clarification may not expand or alter the scope of the original provision.
Factual Matrix
The respondent 1 had joined the service of the Appellant-University on 14-07-1999, as a Lecturer in the Hindi language department. Respondent 1 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 23-12-1988 and 13-07-1999. By an order dated 25-11-2004, the respondent 1 was placed on the senior scale. Further, he was granted four advance increments by virtue of Clause 6.16 of the University Grants Commission (‘UGC’) Scheme, 1998, which provides that candidates who hold Ph.D. degree at the time of recruitment as lecturers would be eligible for four advance increments. Thereafter, by an order dated 20-10-2011, the respondent 1 was placed as a Selection Grade Lecturer and consequently, his pay was fixed by order dated 12-01-2012. 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 21-12-1999, were not granted. The Government Order dated 29-03-2001 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.
The respondent 1 filed a writ petition before the High Court challenging the orders of the Appellant-University dated 20-10-2011 and 12-01-2012, on the ground that two advance increments, payable to him on placement as a Selection Grade Lecturer were erroneously withheld. The Single Judge of the High Court directed the Appellant-University to pay respondent 1 and 2 their advance increments in terms of Clause 6.18 of the Government Order dated 21-12-1999. While hearing the appeal against the decision of the Single Judge, the Division Bench of the High Court confirmed the decision of the Single Judge. Aggrieved by the Judgment of the Division Bench, the appellant-University had filed an appeal before the Court.
The question before the Court was to determine that whether the Government Order dated 29-03-2001 was a clarification of Clauses 6.16 to 6.19 of the Government Order dated 21-12-1999, or whether it amended or modified the same.
Analysis and Decision
The Court said that 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. However, if the subsequent Government Order is held to be a modification or an amendment of the earlier order, its application would be prospective as the 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. The Court perused the Government Order dated 29-03-2001 and said that it 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 21-12-1999. The Court also noted that according to the Order, the Lecturer would not be simultaneously eligible for the incentives under Clause 6.16 and 6.19.
The Court said that the Government Order dated 29-03-2001 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 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 after their recruitment. The Court also 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, the Court said that 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. Further, the Court explained that 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.
The Court also answered that whether the Government Order dated 29-03-2001 to the extent that it modifies the Government Order dated 21-12-1999, would be applicable to those lecturers who had acquired a Ph.D. degree at the time of their recruitment, such as, Respondent 1, who were placed in the selection grade before 29-03-2001?
Placing its reliance on State of Bihar v. Ramesh Prasad Verma, (2017) 5 SCC 665, the Court said that 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. Therefore, the Court considered it appropriate to determine whether the said order was a clarification or a substantive amendment in order to identify whether it would be applicable retrospectively or not. Referring to a trajectory of cases on the lines of the similar issue, the Court culled out the following principles:
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 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.
Therefore, on the basis of the said principles, the Court viewed that the subsequent Government Order dated 29-03-2001 cannot be declared as a clarification. Further, the Court said that the said order had substantively modified the Government Order dated 21-12-1999 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. On an analysis of the true nature and purport of the subsequent Government Order dated 29-03-2001, the Court said that 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, the Court said that such an amendment cannot be given retrospective effect.
Thus, the Court dismissed the appeal and affirmed the Judgments of the Single Judge and the Division Bench of the High Court. Further, the Court clarified that lecturers such as Respondent 1 who were placed in the selection grade before 29-03-2001 would be entitled to all the incentives stipulated in the Government Order dated 21-12-1999.
[Sree Sankaracharya University of Sanskrit v. Manu, 2023 SCC OnLine SC 640, Decided on 16-05-2023]
*Judgment Authored by: Justice B.V. Nagarathna
Justice BV Nagarathna: Igniting hope for the first ever woman Chief Justice of India
A typical instance of a bureaucratic organization not appreciating an obvious error of applying the rules, and persisting, as far as the SC
The ratio spelt out by the SC may have been indicated by the lower courts, and was within the capability if the Registrar.
Hence the load on courts, with the Govtvas the main litigant
A typical case of organisations finding it impossible to accept the error in an obvious ‘over-cautious’ and bureaucratic interpretation, and pursuing with appeals, right till the SC.
Which is why the government is the chief litigator and the load on the courts.
In this case, the ratio spelt out by the SC may have been indicated by the lower courts too, and was within the capability of university Registrar.