UNIVERSITY OF KERALA AND ORS. ETC. versus MERLIN J. N. AND ANR. ETC. ETC. on 17 August 2022

[2022] 13 S.C.R. 323

UNIVERSITY OF KERALA AND ORS. ETC.

v.

MERLIN J. N. AND ANR. ETC. ETC.

(Civil Appeal Nos. 5309-5314 of 2022)

AUGUST 17, 2022

[UDAY UMESH LALIT, S. RAVINDRA BHAT ANDSUDHANSHU DHULIA, JJ.]

Service Law – Exemption of NET for Ph.D Holders –Prospective Operation of 2018 UGCR – UGC (MinimumQualifications for Appointment and Career Advancement of Teachersin Universities and Institutions Affiliated to It) Regulations – In 2009,amendment was made to the UGC Regulations, 2000 (UGCR) – Bythis amendment, for the first time, the minimum stipulation for theappointment of lecturer was introduced i.e. NET – However,candidates who had acquired their Ph.D. were exempted fromqualifying in the NET – On 13.06.2011, the University invitedapplications for filling up the post of Lecturer in various subjects –The minimum qualification was NET, however, the advertisementexempted candidates who had a Ph.D. in the concerned subjectfrom qualifying the NET – One ‘J’ who applied for the post wasranked in the first position and the respondent was placed at secondrank – Respondent challenged the appointment of ‘J’ before theHigh Court on the ground that it contravened the 2009/10 UGCR,i.e., as ‘J’ had not obtained his Ph.D.(on 23.08.2006) in accordancewith the 2009 Ph.D. Regulations – High Court held that the ‘J’ wasnot qualified to hold the post of Lecturer – Division Bench affirmedthe order passed by the Single Judge by holding that the 2016 UGCRamendment which enable those awarded Ph.D. degrees prior thecut-off date of 11.07.2009 to also be considered for appointmentas Lecturers was applicable only prospectively, and hence deniedthe benefit to ‘J’ - On appeal, Held: There are perhaps hundreds ofother Ph.D. candidates who had secured their degrees prior to the2009 Ph.D. Regulations and who were, till the 2009/10 UGCR werebrought into force, entitled to claim exemption from NET in everyselection for any teaching vacancy in any university in India – The2018 UGCR, bifurcated the pre- and post-2009 Ph.D. holders intotwo groups, and allowed both exemption from taking the NET – To

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324SUPREME COURT REPORTS

Aconstrue them as applying only prospectively, would give rise toan absurdity, and defeat the purpose for which the amendment waspromulgated – It is the duty of the courts, whether trying originalproceedings or hearing an appeal, to take notice of the change inlaw affecting pending actions and to give effect to the same - Tointerpret the 2018 UGCR prospectively would imply that a pre-2009BPh.D. holder’s appointment would be rendered illegal, and afterhaving taught for several years, he/she would lose his/her seniorityand all accrued benefits and would now have to take the NET inorder to teach – which is clearly unwarranted.

Allowing the appeals, the CourtC

HELD: 1.1 The facts of this case would reveal that theselection process was completed in 2012. There is no doubt thatat that stage, the 2009 Ph.D. Regulations and 2009/10 UGCRwere in force. Yet the University appointed ‘ J’(Dr.) by applyingthe existing standards as understood by it. According to theDUniversity, the 2009/10 UGCR was incorporated in its statuteonly in 2013. In the opinion of this court, that detail is irrelevant.What is undeniable is that like ‘J’, there are perhaps hundredsof other Ph.D. candidates who had secured their degrees prior tothe 2009 Ph.D. Regulations and who were, till the 2009/10 UGCREwere brought into force, entitled to claim exemption from NETin every selection for any teaching vacancy in any university inIndia. This state of affairs led the UGC to issue clarifications,which the Central Government did not agree to. The appellant‘J’ fell within that category of Ph.D. holders for whom the UGCintended to soften the rigors of the 2009/10 UGCR. However,Flack of approval by the Central Government led to litigation whichculminated in P. Suseela. [Para 16][335-C-E]

1.2 P. Suseela appears facially, to adversely clinch the issuewith respect to pre-2009 Ph.D. holders. The UGC perhapsrealized the hardship which they had to endure (with many ofGthem even appointed in various universities on account of theresolution adopted in UGC’s 471st meeting on 12.08.2010), andtherefore amended the regulations once more (2016 UGCR).[Para 17][335-F-G]

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1.3 The intention of the UGC to protect the pre-2009 Ph.D.holders, who may have been appointed in various universitiesand taught for many years, is evidently clear in the languageadopted. To make the intention even clearer, the 2018 UGCR,published on 18.07.2018, bifurcated the pre- and post-2009 Ph.D.holders into two groups, and allowed both exemption from takingthe NET. [Para 18][336-D]

2. This court is unpersuaded by such contentions. Insituations such as these, a retrospective restoration of rights whichhad earlier been taken away, will certainly affect pendingproceedings - however, it is the duty of the courts, whether tryingoriginal proceedings or hearing an appeal, to take notice of thechange in law affecting pending actions and to give effect to thesame. If on such consideration, it is held by the court that anamendment speaks a language which expressly or by clearintendment takes in even pending matters, the court of firstinstance as well as the court of appeal must have regard to theintention so expressed, and the court of appeal may give effectto such a law even after the judgment of the court of first instance.[Para 22][338-G-H; 339-A-B]

3. When an enactment or an amendment is declaratory,curative or clarificatory, impelled by a felt need to make clearwhat was always intended, such amendment is usually meant tooperate from an antecedent date, or to cover antecedent events.This position was clarified in Commissioner of Income Tax, Bhopalvs. Shelly Products & Ors. [Para 23][339-B-C]

4. The logic pervading all the versions of the UGCR from1993-2018 (as discussed above) to exempt M. Phil./Ph.D. holdersfrom qualifying in the NET was perhaps premised on theunderstanding that such a doctorate in one’s chosen subject,involving years of study, would render a greater understandingof the subject compared to most other candidates taking the NETwho have only obtained a Master’s degree. Such qualification(M. Phil. or Ph. D.) is undoubtedly awarded for a provenproficiency of the candidate in the concerned subject or discipline.This is apparent from the minimum qualification requirements ofdifferent positions as well – for e.g., while a Master’s degree is AB

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Asufficient for application to the post of Assistant Professor, a Ph.D.is required for applying to the post of Associate Professoronwards. To interpret the 2018 UGCR prospectively would implythat a pre-2009 Ph.D. holder’s appointment would be renderedillegal, and after having taught for several years, he/she wouldlose his/her seniority and all accrued benefits and would now haveBto take the NET in order to teach – which is clearly unwarranted.This court therefore, holds that ‘J’ appointment is protected bythe 2016 UGCR, which is applicable retrospectively. [Para26][340-D-G; 341-A]

Shyam Sunder v. Ram Kumar (2001) 8 SCC 24 : [2001]C1 Suppl. SCR 115 – followed.

Dr. Merlin J.N. v University of Kerala W.P.(C) No.20055 of 2012 and W.P.(C) No. 2951 of 2013;P. Suseela v. University Grants Commission (2015) 8SCC 129 : [2015] 5 SCR 643; Dr. D. RadhakrishnanDPillai v The Travancore Devaswom Board 2016 (2) KLT245; State of Madhya Pradesh. v. Manoj Sharma (2018)3 SCC 329 : [2018] 1 SCR 779; Rafiquennessa v. LalBahadur Chetri (Dead) Through His Representativesand Ors. [1964] 6 SCR 876; Darshan Singh v. RamEPal Singh & Ors. [1990] 3 Suppl. SCR 212; NoorunissaBegum v. Brij Kishore Sanghi (2015) 17 SCC 128 :[2015] 4 SCR 246; Commissioner of Income Tax,Bhopal v. Shelly Products & Ors. (2003) 5 SCC 461 :[2003] 1 Suppl. SCR 79; Zile Singh v. State of Haryana(2004) 8 SCC 1 : [2004] 5 Suppl. SCR 272; ManojFSharma v. State of Madhya Pradesh W.P. (C) No. 3290of 2012 – referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5309-5314 of 2022.

B

From the Judgment and Order dated 16.03.2020 and 30.09.2020of the High Court of Kerala at Ernakulam in W.A. Nos.1713, 1744,1792 of 2018 and R.P. Nos. 688, 689, 690 of 2020.

With

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Civil Appeal Nos. 5315-5332 of 2022.

V. Giri, Sr. Adv., Mohammed Sadique T.A., Mrs. Anu K. Joy,Alim Anvar, Abraham C. Mathews, Lakshmeesh S. Kamath, Ms. SamritiAhuja, Advs. for the Appellants.

Raj Panjwani, Sr. Adv., Ms. Purnima Bhat, Kaleeswaram Raj, A.Lakshminarayanan, Ms. Thulasi K. Raj, Advs. for the Respondents.

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The Judgment of the Court was delivered by

S. RAVINDRA BHAT, J.

1. Leave granted. With consent of the learned counsels, theappeals were heard finally. The appellants (in the first appeal, Dr. M.S.Jayakumar, and in the second appeal, the University of Kerala(hereinafter, “University”) challenge a common judgment of the DivisionBench of the Kerala High Court.[1] The issue involved is the legality ofDr. Jayakumar’s appointment as Lecturer in Sociology by the University.The High Court concurrently set aside that appointment.

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2. Dr. Jayakumar completed his graduation in Sociology in theyear 1999, acquired his M.Phil. in the year 2000, and Ph.D. on 23.08.2006.The regulations prescribing qualifications for appointment promulgatedby the University Grants Commission (hereinafter, “UGC”) were theUGC (Minimum Qualifications for Appointment and CareerAdvancement of Teachers in Universities and Institutions Affiliated toIt) Regulations, introduced in March 2000 (hereinafter, “2000 UGCR”).They prescribed passing the National Eligibility Test (hereinafter, “NET”)

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1 In W.A. No. 1713, 1744 & 1792 of 2018 and the common orders passed in R.P. No.688-90 of 2020 by Kerala High Court.

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Aas an essential condition for appointment as Lecturer in any university.The 2000 UGCR exempted candidates who had acquired M. Phil orsubmitted their Ph.D. thesis by 31.12.1993 from taking the NET.[2]

3. The 2000 UGCR were amended on July 2002 (hereinafter,“2002 UGCR/first amendment”). As a consequence, those who hadBacquired M.Phil. by 31.03.1993 or had submitted their Ph.D. thesis by31.12.2002 were exempted from taking the NET.[3] In June 2006, theregulations were further amended (hereinafter, “2006 UGCR/secondamendment”).[4]

4. The next round of amendments was made to the regulations onC11.07.2009 (hereinafter, “2009 UGCR/third amendment”). By thisamendment, for the first time, the minimum stipulation for appointmentof Lecturer was NET. However, candidates who had acquired theirPh.D. in compliance with the UGC (Minimum Standards and Procedurefor Award of M. Phil/Ph.D. Degree) Regulations 2009 (hereinafter, “2009Ph.D. Regulations”), introduced on 01.06.2009, were exempt fromDqualifying in the NET. The substituted provision in the 2009 UGCR readas follows:

“NET/SLET shall remain the minimum eligibility condition forrecruitment and appointment of Lecturers in Universities/Colleges/Institutions. Provided, however, that candidates, whoEare or have been awarded Ph.D. Degree in compliance of theUniversity Grants Commission (minimum standards andprocedure for award of Ph.D. Degree), Regulation 2009, shallbe exempted from the requirement of the minimum eligibility 2 “NET shall remain the compulsory requirement for appointment as Lecturer even forFcandidates having Ph.D. degree. However, the candidate who have completed M.Phil.degree or have submitted Ph.D. thesis in the concerned subject up to 31[st ]December,1993, are exempted from appearing in the NET examination.”

3 “NET shall remain the compulsory requirement for appointment as Lecturer even forcandidates having Ph.D. degree. However, the candidates who have completed M.Phil.degree by 31[st] December, 1993 or have submitted Ph.D. thesis to the university in theGconcerned subject on or before 31[st] December, 2002 are exempted from appearing inthe NET examination. In case such candidates fail to obtain Ph.D. degree, they shallhave to pass the NET examination.”

4 “NET shall remain the compulsory requirement for appointment as Lecturer for thosewith post-graduate degree. However, the candidates having Ph.D. degree in the concernedsubject are exempted from NET for PG level and UG level teaching. The candidateshaving M.Phil. degree in the concerned subject are exempted from NET for UG levelHteaching only.”

condition of NET/SLET for recruitment and appointment ofAssistant Professor or equivalent positions in Universities/Colleges/Institutions.”[5]

5. The 2009 Ph.D. Regulations prescribed uniform standards foradmission to Ph.D. and dealt with other issues, such as allocation ofsupervisors, course work, standards of evaluation and assessment,depository of thesis with the UGC, presentation by Ph.D. aspirants inthe University departments which had to be open to faculty membersand research students for comments, the mandatory requirement of thepublication of research papers, etc.

6. On 30.06.2010, the UGC amended the regulations (hereinafter,“2010 UGCR”). The relevant provision continued the NET exemptionfor candidates who had acquired their Ph.D. degrees in accordancewith the 2009 Ph.D. Regulations:

“NET/SLET/SET shall remain the minimum eligibility conditionfor recruitment and appointment of Assistant Professors inUniversities/Colleges/Institutions. Provided however, thatcandidates, who are or have been awarded as Ph.D. Degreein accordance with the University Grants Commission(Minimum Standards and Procedure for Award of Ph.D.Degree) Regulations, 2009, shall be exempted from therequirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professoror equivalent positions in Universities/Colleges/Institutions.”[6]

7. On 13.06.2011, the University through a notification invitedapplications for filling up the post of Lecturer in various subjects, includingSociology. The advertisement spelt out the minimum qualificationsrequired. One mandatory condition was that the candidates should fulfillthe eligibility requirement for Lectureship, i.e., the NET. At the sametime, the advertisement exempted candidates who had a Ph.D. in theconcerned subject from qualifying the NET. The relevant extracts ofthe advertisement are as follows:

“Qualifications

Good Academic record with at least 55% marks or anequivalent grade at Masters Degree level in the relevant 5 Reg. 4, 2009 UGCR.

6 Reg. 3.3.1, 2010 UGCR.

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Asubject from an Indian University or an equivalent Degreefrom a Foreign University.

Note:1 Candidates besides fulfilling the above qualificationsshould have cleared the eligibility test for Lectureshipconducted by the UGC, CSIR or similar tests accredited byBthe UGC.

However, the candidates who have Ph.D. Degree in theconcerned subject are exempted from NET qualifications.

Note:2 A relaxation of 5% marks at Masters level is allowedto the following categories:- C

1. SC/ST Candidates

2. Ph.D. Degree holders who have passed their MastersDegree prior to 19.09.1991.”[7]

8. Dr. Jayakumar applied for the post. The application wasDprocessed, and pursuant to his interview by the Selection Committee, hewas assessed and ranked in the first position on 04.08.2012. Therespondent Dr. Merlin J.N. was placed at the second position. Feelingaggrieved, she preferred a writ petition before the Kerala High Court.[8]The grounds urged by Dr. Merlin were that inter alia she had beenunjustly denied four marks (concerning requisite teaching experienceEand publication in a recognized journal) which ought to have been awardedto her. Additionally, she challenged the appointment of Dr. Jayakumar,alleging that it contravened the 2009/10 UGCR, i.e., as Dr. Jayakumarhad not obtained his Ph.D. in accordance with the 2009 Ph.D. Regulations,he was not qualified to hold the post of Lecturer under the 2009/10FUGCR. A learned Single Judge of the Kerala High Court, by judgmentdated 01.02.2017,[9] held that Dr. Jayakumar was not qualified to hold thepost of Lecturer. The learned Single Judge relied upon the judgment ofthis Court in P. Suseela v. University Grants Commission[10] as well asa Kerala High Court Full Bench decision in Dr. D. RadhakrishnanPillai v The Travancore Devaswom Board[11]. The University and Dr.G7 University of Kerala, Notification No. Ad. H/5091/2011, dated 11.06.2011.8 Dr. Merlin J.N. v University of Kerala, W.P.(C) No. 20055 of 2012 and W.P.(C) No.2951 of 2013.9 Common judgment in W.P.(C) No. 20055 & 21902 of 2012 and W.P.(C) No. 2951 of2013, dated 01.02.2017.

10 P. Suseela v. University Grants Commission, 2015 (8) SCC 129.H11 Dr. D. Radhakrishnan Pillai v The Travancore Devaswom Board, 2016 (2) KLT 245

Jayakumar appealed to the Division Bench which affirmed the ruling ofthe learned Single Judge. The Division Bench noticed a subsequentjudgment of this Court in State of Madhya Pradesh. v. Manoj Sharma[12]and the (then) latest amendment to the regulations (hereinafter, “2016UGCR/fourth amendment”) which sought to somewhat relieve the rigorsof the 2009/10 UGCR and enable those awarded Ph.D. degrees prior tothe cut-off date of 11.07.2009 to also be considered for appointment asLecturers. The Division Bench held that the 2016 UGCR was applicableonly prospectively, and hence denied the benefit to Dr Jayakumar.

9. Before this court, it was argued on behalf of Dr. Jayakumar aswell as the University that the former’s appointment was in accordancewith the extant law and regulations. It was emphasized that the Universityadopted the 2009/10 UGCR only with effect from 23.11.2013. In thesecircumstances, when the advertisement was published, as also whenDr. Jayakumar was appointed in August 2012, he was fully qualified andentitled to be appointed as Lecturer. It was further contended that priorto Dr. Jayakumar’s appointment, the UGC had, through its resolutiondated 12.08.2010 passed in its 471[st] meeting, clarified that 2009 Ph.D.Regulations and 2009 UGCR were prospective in nature, and notretrospective:

“[A]ll candidates who had either obtained Ph.D. on or before31.12.2009 and such candidates who had registeredthemselves for Ph.D. degree on or before 31.12.2009 wereexempt from the requirement of NET”.[13]

10. It was argued on behalf of the appellant that the fourthamendment placed the matter beyond any doubt because it renderedeligible candidates who had acquired their Ph.D. degree before11.07.2009. In this regard, great emphasis was placed on the following:

“The proviso prescribed under Regulation 3.3.1, 4.4.1, 4.4.2,4.4.2.2, 4.4.2.3, 4.5.3 and 4.6.3 in the University GrantsCommission (Minimum qualifications for appointment ofteachers and other academic staff in Universities and Collegesand other measures for the maintenance of standards in highereducation) (3th Amendment) Regulations, 2016 regarding 12 State of Madhya Pradesh. v. Manoj Sharma, 2018 (3) SCC 329.

13 Minutes of the 471st Meeting of the University Grants Commission, Item 2.08 (iii),dated 12.08.2010.

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Aexemption to the candidates registered for Ph.D. programmeprior to July 11, 2009 shall stand amended and be read asunder:- Provided further, the award of degree to candidates registeredfor the M.Phil/Ph.D. programme prior to July 11, 2009, shallBbe governed by the provisions of the then existing Ordinances/Bylaws/Regulations of the Institutions awarding the degreeand the Ph.D. candidates shall be exempted from therequirement of NET/SLET/SET for recruitment andappointment of Assistant Professor or equivalent positions inUniversities/Colleges/Institutions subject to the fulfilment ofCthe following conditions:-

a) Ph.D. degree of the candidate awarded in regular modeonly;

b) Evaluation of the Ph.D. thesis by at least two externalDexaminers;

c) Open Ph.D. viva voce of the candidate had been conducted;

d) Candidate has published two research papers from his/herPh.D. work out of which at least one must be in a refereedjournal; Ee) Candidate has made at least two presentations inconferences/seminars, based on his/her Ph.D. work.

(a) to (e) as above are to be certified by the Vice-Chancellor/Pro-Vice-Chancellor/Dean (Academic Affairs)/Dean(University instructions).”[14]F

11. It was argued on behalf of Dr. Merlin that Dr. Jayakumar wasineligible and could not have been granted exemption from the NETqualification which was essential under the prevalent 2009/10 UGCR. Itwas highlighted that the 2009 Ph.D. Regulations ushered a new rigorousacademic framework for the award of Ph.D. degrees. If one kept this inGmind, the stipulation that only those candidates who acquired their Ph.D.in terms of the 2009/10 UGCR were eligible for exemption from takingthe NET – such a stipulation was absolute. In other words, candidateswho had acquired their Ph.D. in terms of the 2009/10 UGCR were the only class of candidates who were exempt from having to qualify theNET. Since Dr. Jayakumar did not fall in that class, but had obtained hisPh.D. much earlier, the exemption did not apply to him. To be eligible, hehad to have taken the NET. It was submitted that Dr. Merlin on theother hand, was better qualified because she had passed the NET in1998 and had later obtained a Ph.D. Further, she was working in theUniversity of Kerala as a contractual teacher since 2001. Despite thesefactors, the University proceeded to appoint Dr. Jayakumar and ignoredher candidature. As between the two of them, she alone was qualified,whereas Dr. Jayakumar was not. It was submitted that the appellant Dr.Jayakumar could not rely upon the resolution of UGC taken in its 471[st]meeting.

12. Learned senior counsel for Dr. Merlin urged that the UGC’sresolution was contrary to the express terms of the 2010 UGCR. Thisbecame the subject matter of controversy since the Central Governmenthad expressed its disagreement with the resolution, in a letter dated23.11.2010. This controversy was discussed in the decision of this courtin P. Suseela (supra). Learned counsel relied upon that judgment tourge that this court had categorically ruled that UGC’s resolution take inits 471[st] meeting could not provide any relief to candidates similarly situatedas Dr. Jayakumar as it was at odds with the Central Government’sdirectives which had to prevail in terms of the parent enactment.[15]Learned senior counsel also relied upon the subsequent judgment inManoj Sharma (supra). It was further argued the 2016 UGCR wereexpressly prospective in nature - those possessing Ph.D. qualificationsprior to the cut-off date of 11.07.2009 but seeking to benefit from the2016 UGCR had to fulfil specific conditions (as mentioned above) whichwere absent hitherto. In the same vein, it was highlighted that thoughUGC has the power to frame regulations with retrospective effect (bySection 26 (3) of the UGC Act) the 2016 UGCR is expressly prospectiveand that this court should not, by interpretation, give it retrospective effect,as is being sought by the appellants. In these circumstances, there couldbe no question of Dr. Jayakumar seeking to benefit from the 2016 UGCRwhich came into force after his appointment. Having regard to thesefacts, it was urged that this court should desist from interfering with theconcurrent findings of the High Court.

15 University Grants Commission Act, 1956 (hereinafter, “UGC Act”).

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13. From the narration of facts, it is evident that for long, wheneverthe UGC introduced regulations pertaining to qualifications for universityteaching staff, exemptions were provided for Ph. D and M. Phil. holdersfrom the requirement of qualifying in the NET. This is evident from theBsuccessive changes which UGC introduced in the relevant regulationsdealing with eligibility and qualifications for appointment as AssistantProfessors, Associate Professors, etc. in 1993, 2000, 2002 and 2006.The 2009 Ph.D. Regulations were the first time that the pedagogic contentof curriculum and manner in which evaluation of thesis/viva voce, etc.were spelt out. Building on this, the 2009/10 UGCR dealt with theCqualifications for appointment of teaching staff in universities, and madea break with the past inasmuch as only those who had earned theirPh.D. in terms of the 2009 Ph.D. Regulations or were to earn themunder that regime were entitled to the exemption from taking the NET.

14. This meant that a large group of Ph.D. holders (such as Dr.DJayakumar in this case) who had been awarded their doctoral degreesprior to 11.07.2009, i.e., the cut-off date under the 2009 UGCR, suddenlybecame disentitled to claim exemption and were per force made to appearand qualify in the NET. The UGC become aware of this situation and bytwo resolutions dated 12.08.2010 and 27.09.2010, opined that since theEregulations are prospective in nature, all candidates having M. Phil. degreeon or before 10.07.2009 and all persons who obtained the Ph.D. degreeon or before 31.12.2009 and had registered themselves for the Ph.D.before this date, but would be awarded such degree subsequently, shallremain exempted from the requirement of NET for the purpose ofappointment as Lecturer/Assistant Professor. However, as the factsFdiscussed in P. Suseela (supra) reveal – the Central Government didnot agree with the opinion of the UGC. Some correspondence took placebetween the two authorities i.e., the UGC and the Central Government.It was in the background of these facts that the petitioner in P. Suseela(supra) had approached the Allahabad High Court (as did some otherGcandidates in other High Courts). The differing decisions of the variousHigh Courts led to appeals before this court by Special Leave. In thebatch of decided by P. Suseela (supra), the question of application ofexemption from NET for candidates who obtained Ph.D. under the oldregime (i.e., prior to the coming into the force of the 2009 Ph.D.Regulations) was considered – specially whether the distinction betweenH

pre and post 2009/10 UGCR Ph.D. holders amounted to an impermissibleclassification, whereby one set (pre-2009) was denied exemption whichthe other set (post 2009) was entitled to.

15. This court in P. Suseela (supra) ruled that since the CentralGovernment was the final authority under the UGC Act, it had the finalsay with regard to how the 2009/10 UGCR were going to operate. Itwas held that the regulations had to be construed in such a manner thatonly those acquiring their Ph.D. degree or after 11.07.2009 in terms ofthe 2009 Ph.D. Regulations were entitled to the exemption.

16. The facts of this case would reveal that the selection processwas completed in 2012. There is no doubt that at that stage, the 2009Ph.D. Regulations and 2009/10 UGCR were in force. Yet the Universityappointed Dr. Jayakumar by applying the existing standards as understoodby it. According to the University, the 2009/10 UGCR was incorporatedin its statute only in 2013. In the opinion of this court, that detail is irrelevant.What is undeniable is that like Dr. Jayakumar, there are perhaps hundredsof other Ph.D. candidates who had secured their degrees prior to the2009 Ph.D. Regulations and who were, till the 2009/10 UGCR werebrought into force, entitled to claim exemption from NET in everyselection for any teaching vacancy in any university in India. This stateof affairs led the UGC to issue clarifications, which the CentralGovernment did not agree to. The appellant Dr. Jayakumar fell withinthat category of Ph.D. holders for whom the UGC intended to softenthe rigors of the 2009/10 UGCR. However, lack of approval by theCentral Government led to litigation which culminated in P. Suseela(supra).

17. P. Suseela (supra) appears facially, to adversely clinch theissue with respect to pre-2009 Ph.D. holders. The UGC perhaps realizedthe hardship which they had to endure (with many of them even appointedin various universities on account of the resolution adopted in UGC’s471[st] meeting on 12.08.2010), and therefore amended the regulationsonce more (2016 UGCR), which read as follows:

“The proviso prescribed under Regulation 3.3. J, 4.4. J, 4.4.2,4.4.2.2, 4.4.2.3, 4.5.3 and 4.6.3 in the University GrantsCommission (Minimum qualifications for appointment ofteachers and other academic staff in Universities and Collegesand other measures for the maintenance of standards in highereducation) (3th Amendment) Regulations, 2016 regarding AB

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Aexemption to the candidates registered for Ph.D. programmeprior to July 11, 2009 shall stand amended and be read asunder:- Provided further, the award of degree to candidates registeredfor the M.Phil. / Ph.D. programme prior to July 11, 2009,Bshall be governed by the provisions of the then existingOrdinances/Bylaws/Regulations of the Institutions awarding the degreeand the Ph.D. candidates shall be exemptedfromthe requirement of NET/SLET/SET for recruitment andappointment of Assistant Professor or equivalent positions inUniversities / Colleges / institutions subject to the fulfilmentCof the following conditions…”[16] (emphasis supplied)

18. The intention of the UGC to protect the pre-2009 Ph.D. holders,who may have been appointed in various universities and taught formany years, is evidently clear in the language adopted. To make theintention even clearer, the 2018 UGCR, published on 18.07.2018,Dbifurcated the pre- and post-2009 Ph.D. holders into two groups, andallowed both exemption from taking the NET, as follows:

“The National Eligibility Test (NET) or an accredited test (StateLevel Eligibility Test SLET/SET) shall remain the minimumeligibility for appointment of Assistant Professor andEequivalent positions wherever provided in these Regulations.Further, SLET/SET shall be valid as the minimum eligibilityfor direct recruitment to Universities/Colleges/Institutions inthe respective state only:

Provided that candidates who have been awarded a Ph.D.FDegree in accordance with the University Grants Commission(Minimum Standards and Procedure for Award of M.Phil./Ph.D. Degree) Regulation, 2009, or the University GrantsCommission (Minimum Standards and Procedure for Awardof M.Phil./Ph.D. Degree) Regulation,2016, and theirGsubsequent amendments from time to time, as the case maybe, shall be exempted from the requirement of the minimumeligibility condition of NET/SLET/SET for recruitment andappointment of Assistant Professor or any equivalent positionin any University, College or Institution.

UNIVERSITY OF KERALA AND ORS. ETC. v. MERLIN J. N.AND ANR. ETC. ETC. [S. RAVINDRA BHAT, J.]

Provided further that the award of degree to candidatesregistered for the M.Phil. / Ph.D. programme prior to July11, 2009, shall be governed by the provisions of the then-existing Ordinances / Byelaws / Regulations of the Institutionsawarding the degree. All such Ph.D. candidates shall beexempted from the requirement of NET/SLET/SET forrecruitment and appointment of Assistant Professor orequivalent positions in Universities/Colleges/Institutions”[17]subject to the fulfillment of the following conditions…

(emphasis supplied)

19. This court did not have the benefit of examining theseamendments to the regulations in P. Suseela (supra) or Manoj Sharma(supra). To construe them as applying only prospectively, would giverise to an absurdity, and defeat the purpose for which the amendmentwas promulgated. The manner of interpretation of amendments, wherethe language adopted gives clear inference of retrospective application,was determined by this court in Rafiquennessa v. Lal Bahadur Chetri(Dead) Through His Representatives and Ors., which pertained tothe bar on eviction of tenants brought about retrospectively by anamendment:

“In order to make the statement of the law relating to therelevant rule of construction which has to be adopted indealing with the effect of statutory provisions in thisconnection, we ought to add that retrospective operation of astatutory provision can be inferred even in cases where suchretroactive operation appears to be clearly implicit in theprovision construed in the context where it occurs. In otherwords, a statutory provision is held to be retroactive eitherwhen it is so declared by express terms, or the intention tomake it retroactive clearly follows from the relevant wordsand the context in which they occur.”[18]

This interpretation has withstood the test of time, and was upheldin the decision of Darshan Singh vs. Ram Pal Singh[19]which succinctlystated:

17 Reg. 3.3(I), 2018 UGCR.18 Rafiquennessa v. Lal Bahadur Chetri (Dead) Through His Representatives and Ors.,

(1964) 6 SCR 876, para 9.

19 Darshan Singh vs. Ram Pal Singh & Ors., 1990 (Supp) 3 SCR 212, para 12.

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A“Courts will construe a provision as conferring power to actretroactively when clear words are used.”

20. Further, in Shyam Sunder v. Ram Kumar[20], a ConstitutionBench of this court discussed the scope and ambit of a declaratory lawand observed:B

“Lastly, it was contended on behalf of the Appellants that theamending Act whereby new Section 15 of the Act has beensubstituted is declaratory and, therefore, has retroactiveoperation. Ordinarily when an enactment declares theprevious law, it requires to be given retroactive effect. TheCfunction of a declaratory statute is to supply an omission orto explain a previous statute and when such an Act is passed,it comes into effect when the previous enactment was passed.The legislative power to enact law includes the power todeclare what was the previous law and when such adeclaratory Act is passed, invariably it has been held to beDretrospective. Mere absence of use of the word ‘declaration’in an Act explaining what was the law before may not appearto be a declaratory Act but if the court finds an Act asdeclaratory or explanatory, it has to be construed asretrospective. Conversely where a statute uses the wordE‘declaratory’, the words so used may not be sufficient to holdthat the statute is a declaratory Act as words may be used inorder to bring into effect new law.”

21. The respondents herein had submitted that it was not the UGC’sintention to give retrospective effect to the 2016 UGCR, even thoughFthe UGC had the power to do so under Section 26(3) of the UGC Act. Itwas additionally urged that in such circumstances, the court should notinterpret the amendments so as to confer such benefits retrospectively,especially to pending proceedings.

22. This court is unpersuaded by such contentions. In situationsGsuch as these, a retrospective restoration of rights which had earlierbeen taken away, will certainly affect pending proceedings - however, itis the duty of the courts, whether trying original proceedings or hearingan appeal, to take notice of the change in law affecting pending actionsand to give effect to the same.[21] If on such consideration, it is held by20 Shyam Sunder v. Ram Kumar (2001) 8 SCC 24, para 39.H21 G.P. Singh, Principles of Statutory Interpretation (14th Edn.), Pg. 631.

the court that an amendment speaks a language which expressly or byclear intendment takes in even pending matters, the court of first instanceas well as the court of appeal must have regard to the intention soexpressed, and the court of appeal may give effect to such a law evenafter the judgment of the court of first instance.[22]

23. When an enactment or an amendment is declaratory, curativeor clarificatory, impelled by a felt need to make clear what was alwaysintended, such amendment is usually meant to operate from anantecedent date, or to cover antecedent events. This position wasclarified in Commissioner of Income Tax, Bhopal vs. Shelly Products& Ors.[23] where this court, while interpreting an amendment, held that:

“It seeks to clarify the law so as to remove doubts leading tothe courts giving conflicting decisions, and in several casesdirecting the revenue to refund the entire amount of income-tax paid by the assessee where the revenue was not in a positionto frame a fresh assessment. Being clarificatory in nature itmust be held to be retrospective, in the facts and circumstancesof the case. It is well settled that the legislature may pass adeclaratory Act to set aside what the legislature deems to havebeen a judicial error in the interpretation of statute. It onlyseeks to clear a meaning of a provision of the principal Actand make explicit that which was already implicit.”

24. Likewise, in Zile Singh v State of Haryana[24], this court,quoted from G.P. Singh’s Principles of Statutory Interpretation (9[th]Edn.), and applied the relevant rule of construction:

“If a new Act is “to explain’ an earlier Act, it would be withoutobject unless construed retrospective. An explanatory Act isgenerally passed to supply an obvious omission or to clearup doubts as to the meaning of the previous Act. It is wellsettled that if a statute is curative or merely declaratory ofthe previous law retrospective operation is generallyintended...An amending Act may be purely declaratory to cleara meaning of a provision of the principal Act which was 22 Noorunissa Begum v. Brij Kishore Sanghi, (2015) 17 SCC 128, para 28.

23 Commissioner of Income Tax, Bhopal vs. Shelly Products, (2003) 5 SCC 461, para38.

24 Zile Singh v State of Haryana, 2004 (8) SCC 1, para 14.

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[2022] 13 S.C.R.

Aalready implicit. A clarificatory amendment of this nature willhave retrospective effect.”

25. Another argument raised by the respondent was that this court’sdecision in Manoj Sharma (supra) squarely held against the appellants.We disagree. In Manoj Sharma (supra), the respondents had obtainedBM.Phil. degrees under distance education programs, which was de-recognized by the 2009 Ph.D. Regulations. The Madhya Pradesh HighCourt held[25] that such de-recognition was prospective in nature, andtheir M.Phil. degrees were not rendered ineffective, which was upheldby this court.[26] As far as the issue of application of 2009 UGCR wasconcerned, the same was restricted to only MPhil degree holders, whereinCthe 2009 UGCR removed the NET exemption granted for M.Phil. degreeholders, and retained it only for Ph.D. holders in accordance with 2009Ph.D. Regulations. Again, this court was not afforded the opportunity toanalyse the 2016 or 2018 UGCR, as those were not raised before it (therespondents were unrepresented before this court). Thus, we find limitedDapplicability of Manoj Sharma (supra) to the present case.

26. The logic pervading all the versions of the UGCR from 1993-2018 (as discussed above) to exempt M. Phil./Ph.D. holders fromqualifying in the NET was perhaps premised on the understanding thatsuch a doctorate in one’s chosen subject, involving years of study, wouldErender a greater understanding of the subject compared to most othercandidates taking the NET who have only obtained a Master’s degree.Such qualification (M. Phil. or Ph. D.) is undoubtedly awarded for aproven proficiency of the candidate in the concerned subject or discipline.This is apparent from the minimum qualification requirements of differentpositions as well – for e.g., while a Master’s degree is sufficient forFapplication to the post of Assistant Professor, a Ph.D. is required forapplying to the post of Associate Professor onwards.[27] To interpret the2018 UGCR prospectively would imply that a pre-2009 Ph.D. holder’sappointment would be rendered illegal, and after having taught for severalyears, he/she would lose his/her seniority and all accrued benefits andGwould now have to take the NET in order to teach – which is clearly 25 Manoj Sharma v State of Madhya Pradesh, W.P. (C) No. 3290 of 2012, dated29.08.2012 [MP HC].

26 State of Madhya Pradesh v. Manoj Sharma, 2018 (3) SCC 329, para 12.

27 See Reg. 4.1, 2018 UGCR, applicable to all disciplines of Arts, Commerce, Humanities,Education, Law, Social Sciences, Sciences, Languages, Library Science, PhysicalHEducation, and Journalism & Mass Communication.

UNIVERSITY OF KERALA AND ORS. ETC. v. MERLIN J. N.AND ANR. ETC. ETC. [S. RAVINDRA BHAT, J.]

unwarranted. This court therefore, holds that Dr. Jayakumar’sappointment is protected by the 2016 UGCR, which is applicableretrospectively.

27. Thus, the appeals are allowed. The impugned judgment is setaside, and all applications are disposed of accordingly. There will be noorder as to costs.

Ankit Gyan(Assisted by : Rahul Rathi, LCRA)

Appeals allowed.

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