GELUS RAM SAHU AND OTHERS versus DR. SURENDRA KUMAR SINGH AND OTHERS on 18 February 2020

SUPREME COURT REPORTS

[2020] 4 S.C.R.

AGELUS RAM SAHU AND OTHERS

v.

DR. SURENDRA KUMAR SINGH AND OTHERS

(Civil Appeal No. 1667 of 2020)

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FEBRUARY 18, 2020

[S. A. BOBDE, CJI, B. R. GAVAI AND SURYA KANT, JJ.]

Service Law:

Appointment – Post of Principal – On facts, respondent no. 1Capplied for the post of principal along with appellant nos. 1 to 7 –However, only appellants declared successful – Writ petition byrespondent no. 1 seeking declaration that Ph.D. is an essentialqualification for post of principal at the Polytechnic colleges; soughtquashing of the promotion order since none of the appellantspossessed Ph.D. qualifications as also quashing of 2014 Rules –DAllowed by the High Court – On appeal, held: As regards the Ph.D.qualifications, there is no inclination to read down the rules to omitthe ‘in Engineering’ part and only selectively insist upon a ‘Ph.D’ –Hence, the only permissible way to read the AICTE criteria wouldbe to lay emphasis on the phrase “or” and thus, interpret ‘Ph.D inEEngineering’ as being discretionary upon the adopting institution/State Government to specify either of the two criteria – Conclusionby the High Court that as 2016 AICTE Notification was clarificatory,it was applicable restrospectively which would remove any ambiguitycreated by the AICTE Regulations is erroneous – Except for thetitle, nothing contained therein indicates that the 2016 AICTEFNotification was clarificatory in nature – Hence, in the absence ofany omission in the 2010 AICTE Regulations, the 2016 AICTENotification despite being generally clarificatory must be held tohave reiterated the existing position of law – There is no retrospectivealteration in the qualification prescribed for the post of Principal –GAppellants do not possess Ph.D., however, they satisfied therequirement of having fifteen years’ experience (of which at leastthree years was as HOD) under the 2014 Chhattisgarh Rules andwere found suitable for promotion – They were also in possessionof one of the eligibility criteria prescribed under the 2010 AICTERegulations – Thus, the appellants’ appointments ought to remainH

undisturbed – Judgment of the High Court is set aside – Pay Scales,Service conditions and Qualifications for the Teachers and otherAcademic Staff in Technical Institutions (Diploma) Regulations, 2010– ‘Chhattisgarh Technical Education (Teaching cadre Polytechnic)(Gazetted) Service Recruitment Rules, 2014.

Appointment – Illegal appointment from inception – Effect of– Held: An appointment which is erroneous or illegal from the veryinception does not clothe the appointee with any indefeasible rightand such appointment is always subject to correctional decisions –Appointment of a candidate who has erroneously secured publicemployment without fulfillment of minimum qualifications can alwaysbe annulled upon discovery of mistake.

Legislation: Clarificatory’ legislations – Connotation of –Held: Clarificatory’ legislations are an exception to the generalrule of presuming prospective application of laws, unless givenretrospective effect either expressly or by necessary implication –In order to attract this exception, mere mention in the title or in anyprovision that the legislation is ‘clarificatory’ would not suffice –Instead, it must substantively be proved that the law was in fact‘clarificatory’ – If there exists no ambiguity, there arises no questionof making use of a clarificatory notification.

Allowing the appeals, the Court

HELD: Is Ph.D mandatory for appointment to the post of‘Principal’ under the 2010 AICTE Regulations?

1.1 Prerequisite criteria for appointment to the post ofPrincipal in a Polytechnic College has been provided under the2010 AICTE. [Para 13][840-E-F]

Conclusion

1.2 A perusal of the qualification table makes it obviousthat there can be multiple HODs for different departments (likeEngineering, Architecture, Hotel Management, Pharmacy etc).In order to be HOD of any such Department, a prospectivecandidate needs to have both Master’s and Bachelor’s degreesin the relevant field. Whereas candidates with a Ph.D must havehad 5 years of experience in the allied field, others without itmust have worked for 10 years. Phrased differently, Ph.D is notmandatory for HOD, and instead results in a 5-year relaxation in A

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Arequisite work experience. In other words, Ph.D has been treatedequivalent to 5 years teaching experience. [Para 15][805-E-G]

1.3 The interpretation as propounded by Respondent No.1 would necessarily mean that there is no power with a StateGovernment to make Ph.D optional, and that the higher of theBtwo alternate criteria specified under the 2010 AICTERegulations would be binding on all. Such a plea is problematicon two counts. Firstly, it implies that Ph.D, specifically in‘Engineering’ only, would be compulsory for all principals. Thiscreates an inconsistency as such a restriction would be in conflictwith the nature of ‘experience’ specified by the AICTE, likeCrecognition of Experience Certificate granted by the Council forArchitecture, which undoubtedly shows that there can becandidates other than from the field of ‘Engineering’ eligible forappointment as Principal. Secondly, such a contention would beiniquitous in so far as it disenfranchises HODs from multipleDrecognised departments from applying to the posts of Principal,and arbitrarily restricts the zone of consideration to EngineeringHODs only. Such seems to be neither the intent of the 2010AICTE Regulations nor is it supported by any cogent reasoning.[Para 16][805-G-H; 806-A-C]

E1.4 There is no inclination to read down the rules to omitthe ‘in Engineering’ part and only selectively insist upon a ‘Ph.D’,for in the instant facts it would amount to crossing the fine linebetween interpretation and legislation. Hence, the onlypermissible way to read the AICTE criteria would be to layemphasis on the phrase “or” and hence interpret ‘Ph.D inFEngineering’ as being optional and it being discretionary uponthe adopting institution/State Government to specify either of thetwo criteria. [Para 17][806-C-E]

1.5 It cannot be said that due weightage is not given toPh.D degree while interpreting the 2010 AICTE Regulations. AGcandidate with Ph.D degree can become HOD with merely 5 yearsof work experience, whereas candidates without Ph.D need towork for 10 years. Although, requirement of experience forbecoming Principal is 10 years uniformly, it comes with astipulation that 3 years must have been spent as HOD or in an H

equivalent position. Thus, a candidate without Ph.D wouldcompulsorily need 10 years’ experience for HOD and would needto work further 3 years in that capacity, i.e. for minimum of 13years’ experience to become Principal. Those with a Ph.D on theother hand, can apply for principal-ship within 10 years, as theywould have become eligible for HOD with 5 years experience,and could have completed the further 3 years term as HOD inthe interregnum. Hence, hypothetically, there is a 5-year eligibilityrelaxation granted under AICTE Regulations to those with a Ph.D.The afore-stated advantage is only further exacerbated underthe 2014 Chhattisgarh Rules, where those without a Ph.D need15 years’ experience and those with such higher degree, can beappointed within 10 years. Additionally, construction of 2010AICTE Regulations this way, avoids conflict with the 2014Chhattisgarh Rules. Even otherwise, given a choice between twointerpretations, one which restricts the pool of applicants for publicemployment and another which enfranchises many, it would befitthe spirit of Article 16 that the expansive interpretation is adopted.Such a recourse would both provide opportunities to a widermeritorious class, will increase competition and concomitantlyensure meritorious selections. [Para 20] [Paras 18-20][806-D-H; 808-F-H]

Does the 2016 AICTE Notification retrospectively ‘clarify’eligibility conditions for appointment as ‘Principal’?

2.1 The 2016 AICTE Notification has made a significantimpact upon the High Court’s determination of the instant dispute.The High Court held that the said Notification, clearly specifiedthat Ph.D was compulsory for all Principals. As the notificationwas ‘clarificatory’, it was held applicable retrospectively whichwould remove any ambiguity created by the 2010 AICTERegulations and consequently the appellants were ineligible tohold the posts of ‘Principal’. After going through the contents ofthe 2016 AICTE Notification in its entirety, it is held that theconclusion drawn by the High Court is erroneous for a variety ofreasons. At the very outset, no attempt appears to have beenmade to determine the nature of the 2016 AICTE Notification,as to whether it supplements an obvious omission in the 2010

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AAICTE Regulations and most importantly its effect on those whohave meanwhile acquired vested rights. [Paras 22, 24][809-A-G]

2.2 Clarificatory’ legislations are an exception to the generalrule of presuming prospective application of laws, unless givenretrospective effect either expressly or by necessary implication.BIn order to attract this exception, mere mention in the title or inany provision that the legislation is ‘clarificatory’ would not suffice.Instead, it must substantively be proved that the law was in fact‘clarificatory’. [Para 25][809-G-H; 810-A]

2.3 The instant case is one where except for the title, nothingCcontained therein indicates that the 2016 AICTE Notification wasclarificatory in nature. The said Notification is framed in a question-answer style and merely restates what has already been madeexplicit in the 2010 AICTE Regulations. There seems to be nointent to alter the position of law but instead only to simplify whatthe AICTE had resolved through its original regulation. The 2016DAICTE Notification is a response to the doubts put forth to AICTEby the public. This is evident from the stand put forth by AICTEin its reply as well as during the course of hearing, namely, thatthere is no retrospective alteration in the qualification prescribedfor the post of Principal. [Para 26][810-F-H]

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2.4 Even if the 2016 AICTE Notification was clarificatory,it must be demonstrated that there was an ambiguity in the criteriafor appointment to the posts of Principal, which needed to beremedied. Clarificatory notifications are distinct from amendatorynotifications, and the former ought not to be a surreptitious toolFof achieving the ends of the latter. If there exists no ambiguity,there arises no question of making use of a clarificatorynotification. Hence, in the absence of any omission in the 2010AICTE Regulations, the 2016 AICTE Notification despite beinggenerally clarificatory must be held to have reiterated the existingposition of law. [Para 27][811-A-C]G

2.5 There were no two interpretations possible, and henceIssue Nos. 48 and 64 of 2016 AICTE Notification have, in nouncertain terms, reprised the substance of 2010 AICTERegulations. [Para 28][811-C-D]

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Whether retrospective changes in qualificatoryrequirements can affect the existing appointments?

3.1 Having held that the 2016 AICTE Notification is onlycomplementary to what the AICTE had laid down in 2010, evenin a situation where eligibility conditions are clarified from ananterior date, it may not be prudent to affect the appointmentswhich had been made on the basis of a possible understanding ofthe eligibility conditions. [Para 29][811-D-E]

3.2 Vested rights cannot be impaired by enacting law withretrospective effect and that such statutory rules ought not toresult in any discrimination or violation of constitutional rights.The said principle would apply with equal force on the outcomeof judicial review also and any new meaning given to a set ofRules/Regulations by the court of law would not ordinarily unsettlethe settled appointments or conferment of other service benefits.Nevertheless, this Court is fully conscious of the legal positionthat appointment of a candidate who has erroneously securedpublic employment without fulfillment of minimum qualificationscan always be annulled upon discovery of mistake. Anappointment which is erroneous or illegal from the very inceptiondoes not clothe the appointee with any indefeasible right and suchappointment is always subject to correctional decisions. [Paras30, 32][811-E-F; 812-D-F]

3.3 There is no quarrel that the appellants do not possessPh.D. However, they satisfied the requirement of having fifteenyears’ experience (of which at least three years was as HOD)under the 2014 Chhattisgarh Rules and were found suitable forpromotion by the Departmental Promotion Committee on thebasis of various other material. They have also been found inpossession of one of the eligibility criteria prescribed under the2010 AICTE Regulations. Thus, the appellants’ appointmentsought to remain undisturbed in any eventuality. [Para 33][812-F-H]

3.4 It is not in dispute that the State Government hadinducted appellant No. 1 in a Committee which submitted thedraft service rules. It is, however, difficult to accept (nor has itbeen alleged) that the said appellant held a position through which AB

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Ahe could influence the rule-making authority to exercise itspowers under Proviso to Article 309 of the Constitution as perhis wishes. He was holding too small a position that no inferenceof his dominance in the decision making process can be drawn.[Para 34][813-A-B]

B3.5 The judgment of the High Court is set aside and thewrit petition filed by Respondent No. 1 challenging the promotionof appellants is dismissed. [Para 35][813-C]

Ajith Kumar v. State of Kerala (2009) 3 KLJ 563 ;Virtual Soft Systems v. CIT (2007) 9 SCC 665 : [2007]C2 SCR 289 ; TR Kapur v. State of Haryana (1986) SuppSCC 584 : [1987] 1 SCR 584; K Ravindranath Pai v.State of Karnataka (1995) Supp 2 SCC 246 ;K Narayanan v. State of Karnataka (1994) Supp 1 SCC44 ; Railway Board v. Rangadhamiah (1997) 6 SCC623 : [1997] 3 Suppl. SCR 63 – referred to.D

Case Law Reference

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FCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1667of 2020.

From the Judgment and Order dated 28.09.2016 of the High Courtof Chhattisgarh, Bilaspur in Writ Petition (S) No. 5617 of 2014.

WithG

Civil Appeal No. 1668 of 2020.

Ajit Kumar Sinha, J.C. Gupta, S.P. Singh, Sr. Advs., PranavSachdeva, Ms. Neha Rathi, Sudesh Kumar Singh, Jatin Bhardwaj,Ashwarya Sinha, Ivan, Alok K Singh, Mrs. Priyanka Sinha, Ms. Shubhi H

Sharma, Vikrant Singh Bais, Tahul Parekah, Raunak Parekh, B.K. Pal,Harish Pandey, Dr. Harsh Pathak, Farrukh Rasheed, Siddharth Shukla,Mohit Choubey, Advs. for the appearing parties.

The following Judgment of the Court was delivered:

JUDGMENT

1. Leave Granted.

2. The appellants are aggrieved by the order dated 28.09.2016 ofthe High Court of Chhattisgarh through which the writ petition filed bySurendra Kumar Singh (Respondent No. 1) seeking declaration of Ph.D.being an essential qualification for the post of Principal at the Polytechniccolleges was allowed and consequently appointment of the appellantswere quashed for want of the said qualification.

Facts

3. Respondent No. 1 started teaching as a lecturer of electricalengineering at the Govt Polytechnic College, Ambikapur on 10.11.1993and was promoted as the Head of Department (hereinafter, “HOD”) ofelectrical engineering at the Govt Polytechnic, Durg from 03.03.2009.He is presently working at Govt. Polytechnic, Kabirdham with additionalresponsibility of Principal-in-charge. Having completed three years ofservice as HOD on 01.01.2012, Respondent No. 1 applied for the postof Principal in response to the process of promotion initiated by the Stateof Chhattisgarh (Respondent No. 2) in 2014. Along with RespondentNo. 1, numerous other serving HODs (including the seven appellantsherein) too participated in the selection process. Whereas AppellantsNo. 1 to 7 were declared successful through notification dated 25.06.2014,the 1[st] respondent did not figure in the selection list.

4. Respondent No. 1 being aggrieved approached the High Court,complaining that his fundamental rights stood violated as the promotionprocess was in contravention of the ‘Pay Scales, Service conditions andQualifications for the Teachers and other Academic Staff in TechnicalInstitutions (Diploma) Regulations, 2010’ (hereinafter, “2010 AICTERegulations”). These regulations were framed by All India Council forTechnical Education (Respondent No. 3, hereinafter “AICTE”) inexercise of its powers conferred under the AICTE Act, 1987 which hasbeen enacted by Parliament with reference to Entry 66 of the UnionList contained in Schedule VII of the Constitution; and is thus binding onthe State of Chhattisgarh (Respondent No. 2). The ‘Chhattisgarh A

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ATechnical Education (Teaching cadre-Polytechnic) (Gazetted) ServiceRecruitment Rules, 2014’ (hereinafter, “2014 Chhattisgarh Rules”), inso far as they allow candidates without Ph.D to be appointed as Principals,were contended to be illegal for being in contravention of the 2010 AICTERegulations whereunder, according to respondent No. 1, Ph.D degreewas a mandatory qualification for the post of Principal.B

5. Respondent No. 1 butressed his superior claim highlighting thathe had the requisite three-year HOD experience and there was nocomplaint or disciplinary enquiry pending against him. On the other hand,he urged that the appellants had been promoted though none of themwas having Ph.D qualification. He further alleged several otherCirregularities in the selection process, including the below-specificationACR gradings possessed by certain candidates. Accordingly, RespondentNo. 1 sought quashing of the 2014 Chhattisgarh Rules and the promotionorder dated 25.06.2014; review of the proceedings conducted by theDepartmental Promotion Committee and the grading awarded to him inDhis Annual Confidential Reports of 2012 and 2013, and further soughtresultant reconsideration of his case for promotion from HOD to Principal.

6. The High Court viewed that the 2010 AICTE Regulations werebinding, and relying upon a decision of the High Court of Kerala inB Ajith Kumar v. State of Kerala[1], it held that the State GovernmentEcould not lower the qualification threshold. Further, the High Courtinterpreted the AICTE criteria to imply that Ph.D was mandatory forappointment/promotion as ‘Principal’ and any ambiguity which couldplausibly have existed in the initial formulation of 2010 AICTERegulations, had been clarified through the ‘All India Council for TechnicalEducation (clarifications on certain issues/anomalies pertaining toFQualifications, Pay Scales, Service Conditions, Career AdvancementSchemes (CAS) etc. for Teachers and other Academic Staff of TechnicalInstitutions Degree/Diploma), 2016’ (hereinafter, “2016 AICTENotification”) which although published on 04.01.2016 would operateretrospectively being clarificatory in nature. Consequently, the High CourtGquashed the incongruous parts of 2014 Chhattisgarh Rules.

7. The High Court further observed how Appellant No. 1 wasChairman of the very Committee which drafted the 2014 ChhattisgarhRules, making him an interested party. Noting yet other infirmity regardingthe date of publication of 2014 Chhattisgarh Rules in the official gazette,H1 (2009) 3 KLJ 563

the High Court quashed the order promoting Appellant Nos. 1 to 7 to theposts of Principal of the Polytechnic Colleges.

Contentions

8. The distressed appellants contend before us that there existedno ambiguity in the 2010 AICTE Regulations. These regulations clearlymention “or” between two sets of qualifications, one in which Ph.D wasspecified and the other without such prescription. It is submitted that theHigh Court could hence not have read it in a manner which converted“or” into “and”. It was further submitted that even if any ambiguityexisted, it was not open for the AICTE to retrospectively introduce aneligibility condition in a manner which would expropriate the appellantsof their vested rights.

9. Highlighting how seven out of nine positions would remainvacant in case a Ph.D degree was mandated as an essential qualificationfor the posts of Principal in polytechnic colleges in Chhattisgarh, theappellants vociferously sought intervention of this Court. They furtherurged that having participated in the process of promotion, RespondentNo. 1 had acquiesced to the interpretation and understanding of theRules made by Respondent No. 2, and the former was now estoppedfrom challenging the validity of the selection-process or of the 2014Chhattisgarh Rules.

10. Respondent No. 1, on the other hand, reiterated that the AICTEis a statutory body established by the Parliament through the All IndiaCouncil for Technical Education Act, 1987, and thus enjoys completesupremacy and superintendence over determination of standards fortechnical education. All technical institutions across the country are obligedto adhere to the minimum standards laid down by AICTE. Supportingthe High Court’s interpretation, he maintains that since the 2010 AICTERegulations mandated ‘Ph.D in Engineering’ as one of the essentialqualification for the post of Principal, the 2014 Chhattisgarh Rules wereultra vires for having impermissibly relaxed mandatory qualifications.The 1[st] Respondent adverts to certain other procedural irregularities inframing and publication of the 2014 Chhattisgarh Rules, and additionallyalleges that Respondent No. 2 not only violated the Chhattisgarh PublicService Promotion Rules, 2003 but also arbitrarily altered the minimumgrading requirement to favour certain candidates.

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A11. Respondent No. 3 (AICTE) has submitted that it was nottheir case that candidates who had already been promoted to the postsof Principal despite not possessing Ph.D, should be removed. Drawingattention to various relevant provisions of the 2010 AICTE Regulationsread with the 2016 AICTE Notification, learned counsel for AICTE urgedthat any interpretation by this Court holding Ph.D mandatory ought onlyBbe prospective in application, and not retrospective.

Analysis

12. The AICTE Act, 1987 has been enacted, as explained brieflyin para 4 of this order with an explicit power to set up an Expert BodyCto regulate the standards and norms in technical education and forestablishment of institutions imparting such education. It is not a matterof dispute that AICTE is a creation of the said statute and the Regulationsframed by it in exercise of the powers under the AICTE Act, 1987 carrythe force of law. Indeed, it has been accepted by learned counsel for theparties that the 2010 AICTE Regulations would be the governing law,Dholding the field, and would bind all parties, including the State ofChhattisgarh. The foremost question which thus arises for ourconsideration is whether the 2010 AICTE Regulations, in fact, make itmandatory for candidates vying for the post of Principal to possess aPh.D degree?

E(i) Is Ph.D mandatory for appointment to the post of‘Principal’ under the 2010 AICTE Regulations?

13. The cause of the present controversy is not difficult to fathom.Prerequisite criteria for appointment to the post of Principal in aPolytechnic College has been provided under the 2010 AICTE RegulationsFin a tabulated form, relevant parts of which are extracted below:

14. Since the above reproduced clause enables a ‘Head ofDepartment’ to occupy the next higher post of Principal `with’ or `without’Ph.D qualification, it is necessary to find out the eligibility conditions laiddown for appointment of different Heads of Department. The relevantextracts of HOD criteria are thus illustratively reproduced hereunder:

15. A perusal of the qualification table makes it obvious that therecan be multiple HODs for different departments (like Engineering,Architecture, Hotel Management, Pharmacy etc). In order to be HODof any such Department, a prospective candidate needs to have bothMaster’s and Bachelor’s degrees in the relevant field. Whereascandidates with a Ph.D must have had 5 years of experience in theallied field, others without it must have worked for 10 years. Phraseddifferently, Ph.D is not mandatory for HOD, and instead results in a 5-year relaxation in requisite work experience. In other words, Ph.D hasbeen treated equivalent to 5 years teaching experience.

16. The interpretation as propounded by Respondent No. 1 wouldnecessarily mean that there is no power with a State Government tomake Ph.D optional, and that the higher of the two alternate criteriaspecified under the 2010 AICTE Regulations would be binding on all.We find such a plea is problematic on two counts. Firstly, it implies that A

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APh.D, specifically in ‘Engineering’ only, would be compulsory for allprincipals. This creates an inconsistency as such a restriction would bein conflict with the nature of ‘experience’ specified by the AICTE, likerecognition of Experience Certificate granted by the Council forArchitecture, which undoubtedly shows that there can be candidatesother than from the field of ‘Engineering’ eligible for appointment asBPrincipal. Secondly, such a contention would be iniquitous in so far as itdisenfranchises HODs from multiple recognised departments fromapplying to the posts of Principal, and arbitrarily restricts the zone ofconsideration to Engineering HODs only. Such seems to be neither theintent of the 2010 AICTE Regulations nor is it supported by any cogentCreasoning.

17. We are also not inclined to read down the rules to omit the ‘inEngineering’ part and only selectively insist upon a ‘Ph.D’, for in thepresent facts it would amount to crossing the fine line betweeninterpretation and legislation. Hence, the only permissible way to readDthe AICTE criteria would be to lay emphasis on the phrase “or” andhence interpret ‘Ph.D in Engineering’ as being optional and it beingdiscretionary upon the adopting institution/State Government to specifyeither of the two criteria.

18. This does not mean that we have not given due weightage toEPh.D degree while interpreting the 2010 AICTE Regulations. A candidatewith Ph.D degree can become HOD with merely 5 years of workexperience, whereas candidates without Ph.D need to work for 10 years.Although, requirement of experience for becoming Principal is 10 yearsuniformly, it comes with a stipulation that 3 years must have been spentas HOD or in an equivalent position. Thus, a candidate without Ph.DFwould compulsorily need 10 years’ experience for HOD and would needto work further 3 years in that capacity, i.e. for minimum of 13 years’experience to become Principal. Those with a Ph.D on the other hand,can apply for principal-ship within 10 years, as they would have becomeeligible for HOD with 5 years experience, and could have completed theGfurther 3 years term as HOD in the interregnum. Hence, hypothetically,there is a 5-year eligibility relaxation granted under AICTE Regulationsto those with a Ph.D.

19. The afore-stated advantage is only further exacerbated underthe 2014 Chhattisgarh Rules, where those without a Ph.D need 15 years’Hexperience and those with such higher degree, can be appointed within10 years. This can be well demonstrated from the following extracts of2014 Chhattisgarh Rules:-

[2020] 4 S.C.R.

AHEAD OF DEPARTMENT1 Civil/Mechanical/Electrical/Electronics/ Information - 58 Bachelor’s and Minimum Technology/ yearsMaster’s degree of of 10 Instrumentation/Metallurgy/Mining/Chemical/Computer appropriate branch years Science and Engineering in Engineering/ relevant Technology from a experience recognized in BUniversity/Institute teaching/ with First Class or research/ equivalent at either industry. Bachelor’s or Master’s level. OR CBachelor’s and Master’s degree of Minimum appropriate branch of 05 in Engineering/ years Technology from a relevant recognized experience University /Institute in Dwith First Class or teaching/ equivalent at either research/ Bachelor’s or Master’s level and industry. Ph.D or equivalent in appropriate discipline in EEngineering/ Technology from a recognized University/Institute.xxx xxx xxx

F20. Additionally, construction of 2010 AICTE Regulations this way,avoids conflict with the 2014 Chhattisgarh Rules, as extracted above.Even otherwise, given a choice between two interpretations, one whichrestricts the pool of applicants for public employment and another whichenfranchises many, it would befit the spirit of Article 16 that the expansiveinterpretation is adopted. Such a recourse would both provideGopportunities to a wider meritorious class, will increase competition andconcomitantly ensure meritorious selections.

(ii) Does the 2016 AICTE Notification retrospectively ‘clarify’eligibility conditions for appointment as ‘Principal’?

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21. The next question which logically arises is whether thenotification issued by the AICTE in 2016 changes the eligibility conditionswhich are explicit in the 2010 AICTE Regulations, as discussed above.

22. The 2016 AICTE Notification has made a significant impactupon the High Court’s determination of the present dispute. The HighCourt has held that the said Notification, clearly specified through IssueNo. 64 that Ph.D was compulsory for all Principals. As the notificationwas ‘clarificatory’, it was held applicable retrospectively which wouldremove any ambiguity created by the 2010 AICTE Regulations andconsequently the appellants were ineligible to hold the posts of ‘Principal’.The relied-upon Issue No. 64 reads as under:

23. The appellants as well as the AICTE have drawn our attentionto Issue No. 48 in the same table of 2016 AICTE Notification which,they contend, depicts a contrary picture. The relevant part of the 2016Notification which has not been noticed by the High Court reads asunder:

24. After going through the contents of the 2016 AICTE Notificationin its entirety, we are of the opinion that the conclusion drawn by theHigh Court is erroneous for a variety of reasons. At the very outset, noattempt appears to have been made to determine the nature of the 2016AICTE Notification, as to whether it supplements an obvious omissionin the 2010 AICTE Regulations and most importantly its effect on thosewho have meanwhile acquired vested rights.

25. ‘Clarificatory’ legislations are an exception to the general ruleof presuming prospective application of laws, unless given retrospectiveeffect either expressly or by necessary implication.In order to attractthis exception, mere mention in the title or in any provision that thelegislation is ‘clarificatory’ would not suffice. Instead, it must substantively A

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Abe proved that the law was in fact ‘clarificatory’, as noted by this Courtin Virtual Soft Systems v. CIT[2]:

“50. It may be noted that the amendment made to Section 271by the Finance Act, 2002 only stated that the amendedprovision would come into force with effect from 1-4-2003.The statute nowhere stated that the said amendment was eitherBclarificatory or declaratory. On the contrary, the statute statedthat the said amendment would come into effect on 1-4-2003and therefore, would apply only to future periods and not toany period prior to 1-4-2003 or to any assessment year priorto Assessment Year 2004-2005. It is the well-settled legalCposition that an amendment can be considered to bedeclaratory and clarificatory only if the statute itself expresslyand unequivocally states that it is a declaratory andclarificatory provision. If there is no such clear statement inthe statute itself, the amendment will not be considered to beDmerely declaratory or clarificatory.

51. Even if the statute does contain a statement to the effectthat the amendment is declaratory or clarificatory, that is notthe end of the matter. The Court will not regard itself as beingbound by the said statement made in the statute but willproceed to analyse the nature of the amendment and thenEconclude whether it is in reality a clarificatory or declaratoryprovision or whether it is an amendment which is intended tochange the law and which applies to future periods.”

(emphasis supplied)

26. The present case is one where except for the title, nothingFcontained therein indicates that the 2016 AICTE Notification wasclarificatory in nature. The said Notification is framed in a question-answer style and merely restates what has already been made explicitin the 2010 AICTE Regulations. There seems to be no intent to alter theposition of law but instead only to simplify what the AICTE had resolvedGthrough its original regulation. The 2016 AICTE Notification is a responseto the doubts put forth to AICTE by the public. This is evident from thestand put forth by AICTE before us in its reply as well as during thecourse of hearing, namely, that there is no retrospective alteration in thequalification prescribed for the post of Principal.

H2 (2007) 9 SCC 665.

27. Even if the 2016 AICTE Notification was clarificatory, it mustbe demonstrated that there was an ambiguity in the criteria for appointmentto the posts of Principal, which needed to be remedied. Clarificatorynotifications are distinct from amendatory notifications, and the formerought not to be a surreptitious tool of achieving the ends of the latter. Ifthere exists no ambiguity, there arises no question of making use of aclarificatory notification. Hence, in the absence of any omission in the2010 AICTE Regulations, the 2016 AICTE Notification despite beinggenerally clarificatory must be held to have reiterated the existing positionof law.

28. As discussed earlier, there were no two interpretations possible,and hence Issue Nos. 48 and 64 of 2016 AICTE Notification have, in nouncertain terms, reprised the substance of 2010 AICTE Regulations.

(iii) Whether retrospective changes in qualificatory requirementscan affect the existing appointments?

29. Having held that the 2016 AICTE Notification is onlycomplementary to what the AICTE had laid down in 2010, we mayhasten to add that even in a situation where eligibility conditions areclarified from an anterior date, it may not be prudent to affect theappointments which had been made on the basis of a possibleunderstanding of the eligibility conditions.

30. This Court in a range of decisions including TR Kapur v.State of Haryana[3], K Ravindranath Pai v. State of Karnataka[4 ]andK Narayanan v. State of Karnataka[5], has opined that vested rightscannot be impaired by enacting law with retrospective effect and thatsuch statutory rules ought not to result in any discrimination or violationof constitutional rights.

31. The law on vested rights in service matters has exhaustivelybeen elaborated in Railway Board v. Rangadhamiah,[6 ]wherein it hasbeen stated:

“20. It can, therefore, be said that a rule which operates in futuroso as to govern future rights of those already in service cannot beassailed on the ground of retroactivity as being violative of Articles14 and 16 of the Constitution, but a rule which seeks to reversefrom an anterior date a benefit which has been granted or availedof, e.g., promotion or pay scale, can be assailed as being violative 3 1986 Supp SCC 584.4 1995 Supp (2) SCC 246.5 1994 Supp (1) SCC 44.6 (1997) 6 SCC 623

AB

C

D

E

F

G

H

Aof Articles 14 and 16 of the Constitution to the extent it operatesretrospectively.

xxx

24. In many of these decisions the expressions “vested rights”or “accrued rights” have been used while striking down theBimpugned provisions which had been given retrospectiveoperation so as to have an adverse effect in the matter ofpromotion, seniority, substantive appointment, etc., of theemployees. The said expressions have been used in the contextof a right flowing under the relevant rule which was soughtCto be altered with effect from an anterior date and therebytaking away the benefits available under the rule in force atthat time. It has been held that such an amendment havingretrospective operation which has the effect of taking away abenefit already available to the employee under the existingrule is arbitrary, discriminatory and violative of the rightsDguaranteed under Articles 14 and 16 of the Constitution. ...”

32. The aforestated principle would apply with equal force on theoutcome of judicial review also and any new meaning given to a set ofRules/Regulations by the court of law would not ordinarily unsettle thesettled appointments or conferment of other service benefits. We are,Enevertheless, fully conscious of the legal position that appointment of acandidate who has erroneously secured public employment withoutfulfillment of minimum qualifications can always be annulled upondiscovery of mistake. An appointment which is erroneous or illegal fromthe very inception does not clothe the appointee with any indefeasibleFright and such appointment is always subject to correctional decisions.

33. There is no quarrel that the appellants herein do not possessPh.D. However, they satisfied the requirement of having fifteen years’experience (of which at least three years was as HOD) under the 2014Chhattisgarh Rules and were found suitable for promotion by theDepartmental Promotion Committee on the basis of various otherGmaterial. They have also been found in possession of one of the eligibilitycriteria prescribed under the 2010 AICTE Regulations. We are, thus, ofthe considered opinion that the appellants’ appointments ought to remainundisturbed in any eventuality.

H

34. This takes us to the last objection taken by the High CourtAregarding ‘conflict of interest’. It is not in dispute that the StateGovernment had inducted Appellant No. 1 in a Committee whichsubmitted the draft service rules. It is, however, difficult to accept (norhas it been alleged) that the said appellant held a position through whichhe could influence the rule-making authority to exercise its powers underBProviso to Article 309 of the Constitution as per his wishes. He washolding too small a position that no inference of his dominance in thedecision making process can be drawn.

A

Conclusion

35. In the light of the above discussion, the appeals are allowed.The judgment of the High Court is set aside and the writ petition filed byRespondent No. 1 challenging the promotion of appellants is dismissedbut without any order as to costs.

C

Nidhi Jain

Appeals allowed

D

E

F

G

H