SREE SANKARACHARYA UNIVERSITY OF SANSKRIT & ORS. versus DR. MANU & ANR. on 16 May 2023

366

SUPREME COURT REPORTS

[2023] 7 S.C.R.

ASREE SANKARACHARYA UNIVERSITY OF SANSKRIT &ORS.

v.

DR. MANU & ANR.

B(Civil Appeal No. 3752 of 2023)

MAY 16, 2023

[K. M. JOSEPH AND B. V. NAGARATHNA, JJ.]

Service Law – Respondent No.1 joined the service of theAppellant-University in July 1999 as a Lecturer – He was placed inCthe senior scale and granted four advance increments by virtue ofCl 6.16 of the UGC Scheme dtd.21.12.1999 which provided thatcandidates who had Ph.D. degree at the time of recruitment aslecturers would be eligible for four advance increments – Later,Respondent No.1 was placed as a Selection Grade Lecturer however,Dwhile fixing the pay, two advance increments payable on placementof a Lecturer holding a Ph.D. degree as a Selection Grade Lecturer,as per Clause 6.18 of the aforesaid UGC Scheme were not grantedin view of Government Order (G.O.) dtd. 29.03.2001 – Writ petitionfiled – Appellant was directed to pay Respondent No.1, two advanceincrements in terms of Cl 6.18 of the G.O. dtd.21.12.1999 – Held: AELecturer who had a Ph.D. degree at the time of recruitment wasentitled to six advance increments on being placed in the selectiongrade, as stipulated u/cl 6.16 and 6.18 of the G.O dtd. 21.12.1999– The number of advance increments that accrued to such a Lectureron being placed in the selection grade was reduced to four videFG.O dtd.29.03.2001 by providing that a teacher who had got thebenefit of advance increments by virtue of having a Ph.D. degreeat the time of recruitment, would not be eligible for advanceincrements on being placed in the selection grade – The benefit ofincrements on being placed in the selection grade was restricted tothose lecturers who obtained a Ph.D. degree subsequent to theirGrecruitment – Thus, the subsequent G.O dtd.29.03.2001 substantivelymodified the G.O dtd.21.12.1999 and therefore, cannot be declaredas a clarification and be made applicable retrospectively – Merelybecause it was described as a clarification/explanation, the Courtis not bound to accept that the said order is only clarificatory inHnature – The benefit withdrawn was not anticipated under the SREE SANKARACHARYA UNIVERSITY OF SANSKRIT &ORS. v. DR. MANU & ANR.

previously existing scheme – Therefore, such an amendment cannotbe given retrospective effect – Respondent No. 1 who was placed inthe selection grade before 29.03.2001 entitled to all the incentivesstipulated in the G.O dtd.21.12.1999 – Judgments of Single Judgeand Division Bench affirmed – Interpretation of Statutes.

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Interpretation of Statutes – Clarificatory/declaratory/explanatory provision vis-à-vis a substantive amendment – Operationof, if retrospective – Principles of interpretation – Discussed – ServiceLaw.

B

Commissioner of Income Tax, Bombay vs. Podar CementPvt. Ltd. (1997) 226 ITR 625 (SC); Allied Motors Pvt.Ltd. vs. Commissioner of Income Tax, Delhi (1997) 224ITR 677 (SC); Bihta Cooperative Development CaneMarketing Union Ltd. vs. Bank of Bihar A.I.R. 1967SC 389 : [1967] SCR 848; Virtual Soft Systems Ltd. vs.Commissioner of Income Tax, Delhi (2007) 289 ITR 83(SC); Union of India vs. Martin Lottery Agencies Ltd.(2009) 12 SCC 209 : [2009] 7 SCR 946 – relied on.

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Ex-Capt. K.C. Arora vs. State of Haryana 1984 (3) SCC281 : [1984] 3 SCR 623; Zile Singh vs. State of Haryana(2004) 8 SCC 1 : [2004] 5 Suppl. SCR 272;Commissioner of Income Tax, Ahmedabad vs. Gold CoinHealth Food Pvt. Ltd. (2008) 9 SCC 622 : [2008] 12SCR 179; State of Bihar vs. Ramesh Prasad Verma(Dead) through LRs (2017) 5 SCC 665 : [2017] 2 SCR342; S. Sundaram Pillai vs. V.R. Pattabiraman A.I.R.1985 SC 582 : [1985] 2 SCR 643 – referred to.

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ACIVIL APPELLATE JURISDICTION: Civil Appeal No. 3752of 2023.

From the Judgment and Order dated 10.08.2016 of the High Courtof Kerala at Ernakulam in WA No. 254 of 2016.

P. V. Surendranath, Sr. Adv., Biju P Raman, Sawan Kumar Shukla,BMs. Lekha Sudhakaran, Advs. for the Appellants.

Raghenth Basant, P. V. Dinesh, Bineesh K., Ms. Nida K., Ms.Roopali Lakhotia, Ajay Krishna, C. K. Sasi, Abdulla Naseeh V T, Ms.Meena K Poulose, Advs. for the Respondents.

CThe Judgment of the Court was delivered by NAGARATHNA, J.

Leave granted.

2. The present appeal has been filed by the Appellant-Universityassailing the final judgment and order dated 10[th] August, 2016, passedDby the High Court of Kerala at Ernakulam in Writ Appeal No. 254 of2016. By the impugned judgment, the Division Bench of the High Courtdismissed the Writ Appeal filed by the Appellant-University and confirmedthe judgment of the learned Single Judge of the High Court, dated 13[th]October, 2015 whereby the appellant-University was directed to grantEtwo advance increments to Respondent No. 1 in terms of Clause 6.18 ofthe revised University Grants Commission (“UGC”) Scheme, 1998andGovernment Order dated 21[st]December, 1999, on his placement as aSelection Grade Lecturer.

3. Succinctly stated, the facts giving rise to the present appeal areFas under:

3.1. Respondent No.1, namely, Dr.Manu joined the service of theAppellant-University on 14[th] July, 1999, as a Lecturer in the Hindilanguage department. At the time, he had previously rendered over elevenyears of service as a Lecturer of Hindi in Mahatma Gandhi GovernmentGArts College, Mahe, Pondicherry for the period between 23[rd] December,1988 and 13[th] July, 1999.

3.2. By an order dated 25[th] November, 2004, Respondent No. 1was placed in the senior scale w.e.f. 14[th] July, 1999. Further, he wasgranted four advance increments by virtue of Clause 6.16 of the UGCHScheme dated 21[st] December, 1999 which provides that candidates who hold Ph.D. degree at the time of recruitment as lecturers would be eligiblefor four advance increments.

3.3. Thereafter, by an order dated 20[th] October, 2011, RespondentNo. 1 was placed as a Selection Grade Lecturer w.e.f.14[th] July, 2000,with the notional date of placement as 22[nd] December, 1999 andconsequently, his pay was fixed by order dated 12[th] January, 2012 at Rs.46,440-9000-55,440/-. In fixing the pay, two advance increments, payableon placement of a Lecturer holding a Ph.D. degree as a Selection GradeLecturer, as per Clause 6.18 of the UGC Scheme dated 21[st]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 ofthe Appellant-University dated 20[th] October, 2011 and 12[th] January, 2012,on the ground that two advance increments, payable to him on placementas 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 certiorariquashing the order dated 12[th] January, 2012 to the extent ofdenial of placement benefits from 22[nd] December, 1999 to14[th] July, 2000.

ii)To issue a writ of mandamus commanding the Appellant-University to grant two advance increments to RespondentNo. 1, in accordance with Clause 6.18 of the UGC Schemedated 22[nd] December, 1999, at the time of his placement inthe selection grade and accordingly refix his pay with effectfrom 22[nd ]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 inthe selection grade to 14[th] July, 2000.

3.5. The Appellant-University filed a counter affidavit in the saidwrit petition taking the stand that Respondent No. 1 was not eligible toclaim any further increments based on his Ph.D. degree, on his placementin the selection grade in light of the Government Order, G.O. (P) No. 44/2001/H.Edn. dated 29[th] March,2001 which had clarified that teacherswho had already got the benefit of advance increments for having aPh.D. degree, would not be eligible for advance increments at the time A

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Aof their placement in the selection grade. That since Respondent No. 1had already been granted four advance increments by virtue of holdinga Ph.D. degree, he would not be eligible to claim two more advanceincrements based on his Ph.D. degree, at the time of being placed in theselection grade.B3.6. The learned Single Judge of the High Court partly allowedW.P. (C) No. 28567 of 2012 and directed the Appellant-University topay Respondent No.2 two advance increments in terms of Clause 6.18of the Government Order dated 21[st ]December, 1999. The other reliefssought for by Respondent No.1 were left open to be decided in appropriateproceedings.C3.7. The findings and reasoning of the learned Single Judge of theHigh Court in partly allowing the writ petition filed by Respondent No.1,have been encapsulated as under:

i)That there was no requirement to consider the validity ofDthe orders of the Appellant-University dated 20[th] October,2011 and 12[th] January, 2012. That the only question thatwould require consideration is as to the entitlement ofRespondent No. 1 to two advance increments which hadbeen denied to him only on account of the fact that asubsequent Government Order had been passed stipulatingEthat teachers who had already got the benefit of advanceincrements for having a Ph.D. degree, would not be eligiblefor advance increments at the time of their placement inthe selection grade.

ii)That the subsequent Government Order dated 29[th] March,F2001 had modified the Government Order dated 21[st]December, 1999 to the extent of stating that teachers whohad already got the benefit of advance increments for havinga Ph.D. degree, would not be eligible for advanceincrements at the time of their placement in the selectionGgrade. That an amendment cannot be stated to haveretrospective effect unless it is expressly provided that itshall operate retrospectively, vide Ex-Capt. K.C. Aroravs. State of Haryana, 1984 (3) SCC 281 (K.C. Arora).That a perusal of the Government Order dated 29[th] March,2001 would not indicate that it was meant to operateHretrospectively.

iii)That since Respondent No.1 was notionally placed in theselection grade from 22nd December, 1999, i.e., before thesubsequent Government Order dated 29[th] March, 2001 waspassed, he would be entitled to the benefit of Clause 6.18of the Government Order dated 21[st] December, 1999.

3.8. The Appellant-University challenged the judgment passed bythe 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 theHigh Court.

3.9. By the impugned judgment dated 10[th] August, 2016, theDivision Bench of the High Court of Kerala dismissed the said writappeal filed by the Appellant-University and confirmed the judgment ofthe learned Single Judge of the High Court, dated 13[th] October, 2015whereby the Appellant-University was directed to grant two advanceincrements to Respondent No.1 in terms of Clause 6.18 of the GovernmentOrder dated 21[st] December, 1999.

The pertinent findings of the Division Bench of the High Court inthe impugned judgment dated 10[th] August, 2016 have been culled out asunder:

i)That admittedly, the Government, by way of the order dated29[th] March, 2001 had modified the Government Order dated21[st] December, 1999 by specifying certain conditions foreligibility for grant of advance increments on being placedin the selection grade. Simply because the order dated 29[th]March, 2001 had been passed when a clarification wassought as to whether teachers who had already got thebenefit of advance increments for having a Ph.D. degree,would be eligible for advance increments at the time oftheir placement in the selection grade, the said order cannotbe termed as a clarificatory order and be made effectiveretrospectively.

ii)Reliance was placed on the decision of a co-ordinate Benchof the High Court in Writ Appeal (C) No.749 of 2013wherein the contention of the Government that a Lecturerwho was already granted advance increments at the timeof her recruitment, would not be eligible for furtherincrements on moving to the selection grade in light of theorder dated 29[th] March, 2001, was repelled.

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Aiii)That the Government Order dated 29[th] March, 2001 couldnot be made applicable to Respondent No.1 who had beenplaced in the selection grade notionally from 22[nd] December,1999 with actual benefits accruing from 14[th] July, 2000.

Aggrieved by the said judgment, the present appeal has been filedBby the Appellant-University.

Submissions:

4. We have heard learned Senior Counsel Sri P.V. Surendranathfor the Appellant-University and Sri Raghenth Basant, learned counselfor Respondent No. 1 and perused the material on record.C

4.1. Sri P.V. Surendranath, learned Senior Counsel appearingon behalf of the Appellant-University at the outset submitted thatthe judgments of the learned Single Judge and the Division Benchof the High Court of Kerala dated 13[th] October, 2015 and 10[th]August, 2016 respectively, were based on an incorrect appreciationDof 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 Clauses6.16 to 6.19 of the Government Order dated 21[st]December, 1999would indicate that the maximum number of advance increments thatEa teacher having a Ph.D. degree could avail is limited to four, underall circumstances. That is to say that a teacher who had a Ph.D.degree at the time of recruitment as a Lecturer and had thereforebeen granted four advance increments, would not be eligible foradvance increments on the basis of the Ph.D. degree on being placedFin the selection grade.

4.3. Referring to the text of Clauses 6.16 to 6.19 of the saidGovernment Order, it was contended that the said provisions do notcontemplate a double benefit by virtue of a Ph.D. qualification. That theprovisions do not seek to confer the benefit of advance increments basedGon a Ph.D. qualification, at the time of recruitment and also at the timeof being placed in the selection grade. That having availed the benefit ofadvance increments at the time of recruitment by virtue of holding aPh.D. qualification, a Lecturer cannot once again claim increments basedon his/her Ph.D. qualification at the time of being placed in the selectiongrade.H

4.4. It was contended that the subsequent Government Orderdated 29[th] March, 2001 clarified that teachers who had already got thebenefit of advance increments for having a Ph.D. qualification, wouldnot be eligible for advance increments at the time of their placement inthe selection grade. That the Government Order dated 29[th] March, 2001was a clarificatory order and not one that would vest or withdraw anysubstantive rights. That the Government Order dated 29[th] March, 2001clearly records that the same was being issued pursuant to a clarificationsought with respect to the incentives for persons possessing/acquiringPh.D. and M.Phil. qualifications. Therefore, the said clarification wouldrelate back to the date on which the previous Government Order dated21[st] December, 1999 came into effect.

4.5. It was further contended that the clarificatory order dated29[th] March, 2001 was issued only for the purpose of removal ofambiguities in the implementation of the earlier Government Order dated21[st] December, 1999. Therefore, it is to be read as a part and parcel ofthe Government Order dated 21[st] December, 1999 and must not beconstrued as a separate order which seeks to modify or alter the rightsconferred by way of the order dated 21[st] December, 1999.

4.6. It was submitted that when an order itself records in nounclear terms that it has been issued as a clarification of a previousorder, it must be construed as a clarification and not as an amendment/modification. Accordingly, such an order must be made applicableretrospectively from the date on which the order sought to be clarifiedcame into effect.

4.7. It was next contended that since it was specifically stated inthe order dated 29[th] March, 2001 that the same was a clarificatory order,it was needless to specify expressly that the said order would operateretrospectively. Hence, the learned Single Judge had erred in recordinga finding that since the order dated 29[th] March, 2001 did not specificallystate that it would operate retrospectively, the same could not be held tohave retrospective operation.

In order to buttress this contention, Sri Surendranath has placedreliance on the decisions of this Court in Zile Singh vs. State of Haryana,(2004) 8 SCC 1; Commissioner of Income Tax, Ahmedabad vs. GoldCoin Health Food Pvt. Ltd., (2008) 9 SCC 622 and State of Biharvs. Ramesh Prasad Verma (Dead) through LRs, (2017) 5 SCC 665

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A(Ramesh Prasad Verma) regarding the retrospective application of aclarificatory amendment to a statute.

4.8. Reliance was placed on the decision of this Court inS.Sundaram Pillai vs. V.R. Pattabiraman, A.I.R. 1985 SC 582wherein this Court observed that an explanation added to a statutoryBprovision is not a substantive provision, but as the plain meaning of theword itself suggests, it is merely meant to explain or clarify certainambiguities which may have crept into interpreting the statutory provision.In this context, it was contended that a perusal of the order dated 29[th]March, 2001 would make it abundantly clear that it was meant to clearambiguity in the application of Clauses 6.16 to 6.19 of the order datedC21[st] December, 1999 and not to withdraw any substantive rights.Therefore, there would be no bar to allow the said clarification to operateretrospectively.

With the aforesaid contentions, it was prayed that the presentappeal be allowed and the judgments of the learned Single Judge and theDDivision Bench of the High Court of Kerala dated 13[th] October, 2015and 10[th] 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 impugnedjudgment of the High Court is based on an unimpeachable understandingEof the law and facts of the present case and therefore, does not call forinterference by this Court.

5.1. It was further submitted that a conjoint reading of Clauses6.16, 6.18 and 6.19 would reveal that a Lecturer with a Ph.D. degree atthe time of recruitment as a Lecturer would be eligible for six advanceFincrements, i.e., four advance increments at the time of recruitment andtwo additional increments at the time of being placed in the selectiongrade. Further, a Lecturer who does not possess a Ph.D. degree at thetime of his recruitment, but subsequently obtains one while serving as aLecturer before placement in the selection grade, would be eligible forGfour advance increments, i.e., two advance increments on obtaining aPh.D. degree and two more increments on being placed in the selectiongrade.

5.2. It was further submitted that merely because incrementsgranted at the time of recruitment as well as those that could be availedat the time of placement in the selection grade, were all based on theH

Ph.D. qualification, the former tranche of increments was not to begranted to the exclusion of the latter. That though granted on the basis ofa Ph.D. qualification, the increments were made effective at differentphases of a Lecturer’s career. Hence, Clauses 6.16, 6.18 and 6.19 couldnot be construed to imply that a Lecturer who had already got the benefitof four advance increments at the time of recruitment, would not beeligible for two more advance increments on being placed in the selectiongrade.

5.3. It was contended that a reading of Clauses 6.16, 6.18 and6.19 would not suggest that a Lecturer who had already got the benefitof four advance increments at the time of recruitment, would not beeligible for two more advance increments on being placed in the selectiongrade. Therefore, the Government Order dated 29[th] March, 2001 whichsignificantly modified/amended the meaning of Clauses 6.16, 6.18 and6.19, could not be stated to be a clarification and therefore made applicableretrospectively.

5.4. Reliance was placed on the decision of this Court in K.C.Arora to contend that an amendment cannot be stated to haveretrospective effect unless it is expressly provided that it shall operateretrospectively (or by necessary implication). That the Government Orderdated 29[th] March, 2001 did not indicate that the same was to operateretrospectively and hence, cannot be stated to have retrospective effect.

5.5. It was submitted that the High Court rightly held that simplybecause the order dated 29[th] March, 2001 had been passed when aclarification was sought as to whether teachers who had already got thebenefit of advance increments for having a Ph.D. degree, would beeligible for advance increments at the time of their placement in theselection grade, the said order cannot be termed as a clarificatory orderand be made effective retrospectively. If the order dated 29[th] March,2001 is made applicable retrospectively, it would have the effect ofwithdrawing vested rights of Lecturers such as Respondent No. 1 andwould hence be in contravention of settled principles of law that anamendment could not be made applicable retrospectively, if suchapplication would have the effect of nullifying vested rights.

With the aforesaid submissions, it was prayed that the presentappeal be dismissed as being devoid of merit and the judgments of thelearned Single Judge and the Division Bench of the High Court of Keraladated 13[th] October, 2015 and 10[th] August, 2016 respectively be affirmed.

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APoints for consideration:

6. Having heard learned Senior Counsel and learned counsel forthe respective parties and on perusal of the material on record, we findthat the following points would arise for our consideration:

Bi)Whether the High Court was right and justified in directinggrant of two advance increments to Respondent No. 1 interms of Clause 6.18 of the Government Order dated 21[st]December, 1999, on his placement as a Selection GradeLecturer?

Cii)What order?

Discussion and analysis:

7. This matter calls for a determination as to whether the 29[th]March, 2001 was a clarification of Clauses 6.16 to 6.19 of theDGovernment Order dated 21[st] December, 1999, or whether, it amendedor modified the same. If the subsequent Government Order is declaredto be in the nature of a clarification of the earlier order, it may be madeapplicable retrospectively. Conversely, if the subsequent GovernmentOrder is held to be a modification/amendment of the earlier order, itsEapplication would be prospective as retrospective application thereofwould result in withdrawal of vested rights which is impermissible in lawand the same may also entail recoveries to be made.

7.1. For a ready reference, the relevant clauses of the GovernmentOrder bearing number G.O. (P) No. 171/99/H.Edn. dated 21[st] December,F1999 have been extracted hereinunder:

“Incentives for Ph.D./M.Phil.

6.16. Four and two advance increments will be admissible tothose who hold Ph.D. and M. Phil. degrees, respectively at thetime of recruitment as Lecturers. Candidates with D.Litt./D.Sc.Gshould be given benefit on par with Ph.D. and M.Litt. on parwith M.Phil.

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6.17. One increment will be admissible to those teachers withM.Phil. who acquire Ph.D. within two years of recruitment.

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6.18. A Lecturer with Ph.D. will be eligible for two advanceincrements when she/he moves into Selection Grade/Reader.

6.19. A teacher will be eligible for two advance increments asand when she/he acquires a Ph.D. degree in her/his servicecareer.”

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7.2. On a conjoint reading of the aforesaid Clauses of theGovernment Order dated 21[st] December, 1999, the following aspectswould 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 oras a Reader, would be eligible to two additional advanceincrements. Therefore, a Lecturer with a Ph.D. degree atthe time of recruitment as a Lecturerand is later placed inthe selection grade would be eligible for a total six advanceincrements.

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ii)A Lecturer, who possesses an M.Phil. degree at the timeof recruitment, would be eligible for two increments. If sucha Lecturer acquires a Ph.D. degree within two years ofrecruitment, he/she would be eligible for one additionalincrement. On being placed in the selection grade such aELecturer would be eligible for two additional advanceincrements. Therefore, a Lecturer who possessed anM.Phil. degree at the time of recruitment, but later acquireda Ph.D. degree and is placed in the selection grade wouldbe eligible for a total five advance increments.

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iii)A Lecturer who possessed neither an M.Phil.degree nor aPh.D. degree at the time of recruitment, but acquires aPh.D. degree during his/her career, would be eligible fortwo advance increments on acquiring a Ph.D. degree.Further, on being placed in the selection grade, such aLecturer would be eligible for two additional advanceincrements. Therefore, a Lecturer who possessed neitheran M.Phil. degree nor a Ph.D. degree at the time ofrecruitment, but acquires a Ph.D. degree during his/hercareer and is placed in the selection grade would be eligiblefor a total four advance increments.

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378SUPREME COURT REPORTS

AThe entitlements of different categories of lecturers, as definedunder the Government Order dated 21[st] December, 1999 has beenpresented in a tabular form as under:

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7.3. Having discussed the import of the aforesaid Clauses of theFGovernment Order dated 21[st] December, 1999, it is necessary to examinethe extent to which it was modified by way of the subsequent GovernmentOrder dated 29[th] March, 2001 numbered as G.O. (P) No. 44/2001 H.Edn. which reads as under:

“GOVERNMENT OF KERALA

GABSTRACT

UNIVERSITIES AND COLLEGES – UGC SCHEME –REVISION OF PAY SCALES – CLARIFICATIONS –MODIFIED – ORDERS ISSUED.

HIGHER EDUCATION (C) DEPARTMENTH

G.O.(P) No.44/2001/H.Edn.Dated:29.03.2001.A

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

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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 AccountantGeneral, Thiruvananthapuram.

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6. Govt. LetterNo.24292/C3/2000/H.Edn. dt. 13.10.2000.

ORDER

The Accountant General, Thiruvananthapuram in his lettersread above informed government that since second I.R. is reckonedfor fixation notionally, reckoning of first interim relief alone isnecessary for calculating the arears from 1-1-96 to 31-1-97 andhence he has prepared a ready reckoner taking first interim reliefonly and forwarded to government for approval. He also pointedout an error occurred in the reckoner for the pre-revised scale ofpay Rs.3700-5700 in the G.O. read as second paper above. Hehas also sought some clarifications in the incentive for Ph.D/M.Phillaid down in Cl.6.16 to 6.19 in the G.O. read as first paper above.Government have examined the matter in detail and are pleasedto order the following:

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1. The ready reckoner furnished by the Accountant General,Thiruvananthapuram along with his letter read above, forcalculating the arrears of pay from 1-1-96 to 31-1-97, reckoningthe first interim relief alone, is approved by government and isappended to this Order.

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2. Teachers drawing pay at 10[th] stage in the pre-revised scale ofRs.3700-5700 i.e. from Rs.4825/- onwards will get theirGincrements after one year and not on the normal dates of theirincrements.

3. Teachers holding both M.Phil and Ph.D at the time of theirentry in service are entitled to 4 advance increments.

A4.The incentives specified in para 6.16 to 6.18 of the governmentorder dated 21.12.99 are not eligible simultaneously.

5. Teachers who have got the benefit of advance increments forhaving Ph.D will not be eligible for advance increments at thetime of their placement in the selection grade. But the teachersBwho got Ph.D. subsequently and who had not got the benefitearlier will be eligible for 2 advance increments when he/shemoves into selection Grade Reader. The date of effect of thisbenefit will be from 1.1.96. Those who have acquired/willacquire Ph.D. on or after 1.1.96 will become eligible foradvance increment from the date of award of Ph.D degree.CThe period spent for Ph.D. on deputation will also be reckonedas qualifying service for placement in senior scale/selectiongrade. The advance increment will be sanctioned in the lowerscale for fixing the pay in the higher scale.

6. A teacher is not simultaneously eligible for the incentives asDstated in para 6.18 and 6.19.

7. A teacher is not eligible for benefits specified both in paras6.17 and 5.19 (should read as 6.19) simultaneously.

8. Teachers who get advance increments will not be eligible forEfixation as per Rule 28-A part I K.S.Rs.

9. The government orders read as first and second papers standmodified to this extent.

By Order of the GovernorSd/-

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N. Chandrasekharan Nair,Principal Secretary(Higher Education)”

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(Underlining by us)

7.4. The following aspects emerge on studying the GovernmentOrder dated 29[th] March, 2001:

i)That the said order was issued pursuant to clarifications beingsought by the Accountant General, Thiruvananthapuram,H

regarding the incentives under Clauses 6.16 to 6.19 of theAGovernment Order dated 21[st] December, 1999.

ii)According to the order dated 29[th] March, 2001, lecturerswho had got the benefit of four advance increments at thetime of their recruitment, by virtue of holding a Ph.D. degree,would not be eligible for two more increments on beingBplaced in the selection grade. Those lecturers who obtaineda Ph.D. degree subsequent to their recruitment would beeligible for two increments on moving to the selection grade.

iii)A Lecturer would not be simultaneously eligible for theincentives under Clause 6.16 and 6.19.

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7.5. It is necessary to contrast the entitlements of differentcategories of lecturers on being placed in the selection grade, under theGovernment Order dated 21[st] December, 1999, vis-à-vis, the subsequentGovernment Order dated 29[th] March, 2001. The same is presented in atabular form as under:

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7.6. As noted from the table above, a Lecturerwho has a Ph.D.degree to his/her credit at the time of recruitment wasentitled to sixadvance increments on being placed in the selection grade, as stipulatedunder Clauses 6.16 and 6.18 of the Government Order dated 21[st]December, 1999. However, the number of advance increments that wouldaccrue to such a Lecturer on being placed in the selection grade wasreduced to four, vide Government Order dated 29[th] March, 2001. TheGovernment Order dated 29[th] March, 2001 restricted the eligibility oflecturers to the advance increments which would accrue on being placedin the selection grade by providing that a teacher who had got the benefit G

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Aof advance increments by virtue of having a Ph.D. degree at the time ofrecruitment, would not be eligible for advance increments on being placedin the selection grade. The benefit of increments on being placed in theselection grade was restricted to those lecturers who obtained a Ph.D.degree subsequent to their recruitment. As noted above, the GovernmentOrder dated 29[th] March, 2001 modifies the Government Order datedB21[st] December, 1999 by providing, inter-alia, that Lecturer would notbe simultaneously eligible for the incentives under Clause 6.16 and 6.19thereof. On a reading of the Government of Kerala’s Order dated 29[th]March, 2001, it is evident that teachers holding both M.Phil. degree andPh.D. degree at the time of their entry in service are entitled to fourCadvance increments which is as per the Government Order dated 21[st]December, 1999 extracted above. However, the incentives specified inparagraphs 6.16 to 6.18 of the aforesaid Government Order are not tobe given simultaneously. In other words, a teacher is not simultaneouslyeligible 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 andD6.19 simultaneously. This would mean that this is the only modificationmade to the Order dated 21[st] December, 1999.

It is also to be noted that the object of providing four advanceincrements to a Lecturer holding Ph.D. degree and two advanceincrements to a Lecturer holding M.Phil. degree at the time of recruitmentEas Lecturer is in recognition of the higher qualification that they possess,as ordinarily a Lecturer must possess a post-graduation degree to berecruited as a Lecturer. Therefore, if a person has an M.Phil. degree atthe time of recruitment as a Lecturer, he or she would be entitled to twoadvance increments and if any Lecturer possesses a Ph.D. degree at Fthe time of appointment as a Lecturer, four advance increments areadmissible. This, is in contrast to, being eligible for two advanceincrements when a Lecturer acquires a Ph.D. degree during the courseof service/career. On the other hand, if a Lecturer with an M.Phil. degreeacquires a Ph.D. degree within two years of recruitment would beadmissible to one increment. Also, a Lecturer with Ph.D. degree wouldGbe eligible for two advance increments when promoted as a SelectionGrade Lecturer/Reader.

In fact, in the subsequent State Government Order dated 29[th]March, 2001 also, paragraph 3 reiterates that teachers holding bothM.Phil.degree and Ph.D. degrees at the time of their entry in serviceH

are entitled to four advance increments which is on par with paragraph6.16 of the Government Order dated 21[st] December, 1999. Paragraphs4 and 6 of the said Order categorically state that the incentive specifiedin paragraphs 6.16 to 6.18 and paragraphs 6.18 and 6.19 of the earlierGovernment Order would not be simultaneously applicable. Evenparagraph 7 of the said Order states that the teacher is not eligible forthe benefits specified both in paragraphs 6.17 and 6.19 simultaneously.

8. The next aspect that requires consideration is whether such amodification could be made applicable retrospectively., i.e., whether theGovernment Order dated 29[th] March, 2001 to the extent that it modifiesthe Government Order dated 21[st] December, 1999 would be applicableto those lecturers who had acquired a Ph.D. degree at the time of theirrecruitment, such as, Respondent No. 1, who were placed in the selectiongrade before 29[th] March, 2001.

8.1. It is trite that any legislation or instrument having the force oflaw, which is clarificatory or explanatory in nature and purport and whichseeks to clear doubts or correct an obvious omission in a statute, wouldgenerally be retrospective in operation, vide Ramesh Prasad Verma.Therefore, in order to determine whether the Government Order dated29[th] March, 2001 may be made applicable retrospectively, it is necessaryto consider whether the said order was a clarification or a substantiveamendment.

8.2. In order to effectively deal with the aspect as to retrospectiveoperation of the Government Order dated 29[th] March, 2001 it may beuseful to refer to the following extract from the treatise, Principles ofStatutory Interpretation, 11th Edition (2008) by Justice G.P. Singh onthe sweep of a clarificatory/declaratory/explanatory provision:

“The presumption against retrospective operation is notapplicable to declaratory statutes. As stated in Craies and approvedby the Supreme Court: For modern purposes a declaratory Actmay be defined as an Act to remove doubts existing as to thecommon law, or the meaning or effect of any Statute. Such actsare usually held to be retrospective.

[…]An explanatory Act is generally passed to supply an obviousomission or to clear up doubts as to the meaning of the previousAct. It is well settled that if a statute is curative or merelydeclaratory of the previous law, retrospective operation is generally AB

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Aintended. The language ‘shall be deemed always to have meant’or ‘shall be deemed never to have included’ is declaratory and isin plain terms retrospective. In the absence of clear wordsindicating that the amending Act is declaratory, it would not be soconstrued when the amended provision was clear andunambiguous. An amending Act may be purely clarificatory toBclear a meaning of a provision of the principal Act which wasalready implicit.A clarificatory amendment of this nature will haveretrospective effect and, therefore, if the principal Act was existinglaw when the constitution came into force, the amending Act alsowill be part of the existing law.”

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8.3. This Court in Commissioner of Income Tax, Bombay vs.Podar Cement Pvt. Ltd., (1997) 226 ITR 625 (SC) noted thatcircumstances under which an amendment or modification was introducedand the consequences thereof would have to be borne in mind whileDdeciding the issue as to whether the amendment was clarificatory orsubstantive in its nature and whether it would have retrospective effector not.

8.4. In Allied Motors Pvt. Ltd. vs. Commissioner of IncomeTax, Delhi, (1997) 224 ITR 677 (SC), this Court found that certainEunintended consequences flowed from a provision enacted by theParliament. There was an obvious omission. In order to cure thedefect, a proviso was sought to be introduced through an amendment.The Court held that literal construction was liable to be avoided if itdefeated the manifest object and purpose of the Act. This Court heldFthat if the amendment was not read into the relevant provisionretrospectively, it would be impossible to reasonably interpret thesaid provision. That since there was an obvious omission in theprovision, an amendment was necessitated which would clarify/declare the law retrospectively.

G9. The proposition of law that a clarificatory provision may bemade applicable retrospectively is so well established that we do notwish to burden this judgment by referring to rulings in the same vein.However, it is necessary to dilate on the role of a clarification/explanationto a statute and how the same may be identified and distinguished froma substantive amendment.H

9.1. An explanation/clarification may not expand or alter the scopeof the original provision, vide Bihta Cooperative Development CaneMarketing Union Ltd. vs. Bank of Bihar, A.I.R. 1967 SC 389. Merelydescribing a provision as an “Explanation” or a “clarification” is notdecisive of its true meaning and import. On this aspect, this Court inVirtual Soft Systems Ltd. vs. Commissioner of Income Tax, Delhi,(2007) 289 ITR 83 (SC) observed as under:

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“Even if the statute does contain a statement to the effect that theamendment is declaratory or clarificatory, that is not the end ofthe matter. The Court will not regard itself as being bound by thesaid statement in the statute itself, but will proceed to analyse thenature of the amendment and then conclude whether it is in reality C

a clarificatory or declaratory provision or whether it is anamendment which is intended to change the law and which appliesto future periods.”

This position of the law has also been subscribed to in Union ofIndia vs. Martin Lottery Agencies Ltd., (2009) 12 SCC 209 whereinit was stated that when a new concept of tax is introduced so as towiden the net, the same cannot be said to be only clarificatory ordeclaratory and therefore be made applicable retrospectively, even thoughsuch a tax was introduced by way of an explanation to an existingprovision. It was further held that even though an explanation beginswith the expression “for removal of doubts,” so long as there was novagueness or ambiguity in the law prior to introduction of the explanation,the explanation could not be applied retrospectively by stating that it wasonly clarificatory.

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9.2. From the aforesaid authorities, the following principles couldbe culled out:

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i)If a statute is curative or merely clarificatory of the previouslaw, retrospective operation thereof may be permitted.

ii)In order for a subsequent order/provision/amendment to beconsidered as clarificatory of the previous law, the pre-Gamended law oughtto have been vague or ambiguous. It isonly when it would be impossible to reasonably interpret aprovision unless an amendment is read into it, that theamendment is considered to be a clarification or a declarationof the previous law and therefore applied retrospectively.

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Aiii)An explanation/clarification may not expand or alter thescope of the original provision.

iv)Merely because a provision is described as a clarification/explanation, the Court is not bound by the said statement inthe statute itself, but must proceed to analyse the nature ofBthe amendment and then conclude whether it is in reality aclarificatory or declaratory provision or whether it is asubstantive amendment which is intended to change thelaw and which would apply prospectively.

10. Applying the law as discussed hereinabove to the facts of theCpresent case, we are of the view that the subsequent Government Orderdated 29[th] March, 2001 cannot be declared as a clarification and thereforebe made applicable retrospectively. The said order has substantivelymodified the Government Order dated 21[st] December, 1999 to the extentof stating that teachers who had already got the benefit of advanceincrements for having a Ph.D. degree, would not be eligible for advanceDincrements at the time of their placement in the selection grade. Asnoted above, the law provides that a clarification must not have theeffect of saddling any party with an unanticipated burden or withdrawingfrom any party an anticipated benefit. However, the Government Orderdated 29[th] March, 2001 has restricted the eligibility of lecturers forEadvance increments at the time of placement in the selection grade, onlyto those who do not have a Ph.D. degree at the time of recruitment andsubsequently acquire the same.

10.1. The purpose of the incentives in question seems to be twofold:First, to incentivize persons with advanced educational qualifications toFapply for the post of lecturers. Second, in order to retain in the teachingprofession, persons with advanced qualifications. In order to secure thefirst of the aforestated objectives, Clause 6.16 of the Government Orderdated 21[st] December, 1999 provided for increments that would accrueon recruitment. In order to secure the second of the aforesaid purposes,Clause 6.19 thereof provided for incentives that would accrue at theGtime of placement in the selection grade. Therefore, it could not be saidthat the original intention of the Government while issuing the order dated21[st] December, 1999 was that a Lecturer would not be simultaneouslyeligible for the incentives under Clause 6.16 and 6.19.

10.2. Further, as evident from the tabular comparison presentedHhereinabove, the number of advance increments that would accrue in favour of a Lecturerwho has a Ph.D. degree to his/her credit at the timeof recruitment, was reduced by way of the Government Order dated29[th] March, 2001 from six to four. Therefore, permitting retrospectiveapplication of the said order would result in withdrawing vested rights oflecturers who had a PhD. at the time of their recruitment and who wereplaced in the selection grade before 29[th] March, 2001 with four plus twoadvance increments.

10.3. Further, merely because the subsequent Government Orderhas been described as a clarification/explanation or is said to have beenissued following a clarification that was sought in that regard, the Courtis not bound to accept that the said order is only clarificatory in nature.On an analysis of the true nature and purport of the subsequentGovernment Order dated 29[th] March, 2001, we are of the view that it isnot merely clarificatory, but is a substantial amendment which seeks towithdraw the benefit of two advance increments in favour of a certaincategory of lecturers. The benefit withdrawn was not anticipated underthe previously existing scheme. Therefore, such an amendment cannotbe given retrospective effect.

11. For the reasons set out above, lecturers such as RespondentNo. 1 who were placed in the selection grade before 29[th] March, 2001would be entitled to all the incentives stipulated in the Government Orderdated 21[st] December, 1999.

12. The present appeal is dismissed. The judgments of the learnedSingle Judge and Division Bench of the High Court of Kerala, dated 13[th]October, 2015 and 10[th] August, 2016 respectively are affirmed.

Parties to bear their respective costs.

Divya Pandey

Appeal dismissed.

(Assisted by : Roopanshi Virang, LCRA)

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