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TMI Blog2023 (5) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... o grant two advance increments to Respondent No. 1 in terms of Clause 6.18 of the revised University Grants Commission ("UGC") Scheme, 1998 and Government Order dated 21st December, 1999, on his placement as a Selection Grade Lecturer. 3. Succinctly stated, the facts giving rise to the present appeal are as under: 3.1. Respondent No.1, namely, Dr. Manu joined the service of the Appellant-University on 14th July, 1999, as a Lecturer in the Hindi language department. At the time, he had previously rendered over eleven years of service as a Lecturer of Hindi in Mahatma Gandhi Government Arts College, Mahe, Pondicherry for the period between 23rd December, 1988 and 13th July, 1999. 3.2. By an order dated 25th November, 2004, Respondent No. 1 was placed in the senior scale w.e.f. 14th July, 1999. Further, he was granted four advance increments by virtue of Clause 6.16 of the UGC Scheme dated 21st December, 1999 which provides that candidates who hold Ph.D. degree at the time of recruitment as lecturers would be eligible for four advance increments. 3.3. Thereafter, by an order dated 20th October, 2011, Respondent No. 1 was placed as a Selection Grade Lecturer w.e.f. 14th July, 2000, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed W.P. (C) No. 28567 of 2012 and directed the Appellant-University to pay Respondent No.2 two advance increments in terms of Clause 6.18 of the Government Order dated 21st December, 1999. The other reliefs sought for by Respondent No.1 were left open to be decided in appropriate proceedings. 3.7. The findings and reasoning of the learned Single Judge of the High Court in partly allowing the writ petition filed by Respondent No.1, have been encapsulated as under: i) That there was no requirement to consider the validity of the orders of the Appellant-University dated 20th October, 2011 and 12th January, 2012. That the only question that would require consideration is as to the entitlement of Respondent No. 1 to two advance increments which had been denied to him only on account of the fact that a subsequent Government Order had been passed stipulating that teachers who had already got the benefit of advance increments for having a Ph.D. degree, would not be eligible for advance increments at the time of their placement in the selection grade. ii) That the subsequent Government Order dated 29th March, 2001 had modified the Government Order dated 21st December, 1999 to the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2013 wherein the contention of the Government that a Lecturer who was already granted advance increments at the time of her recruitment, would not be eligible for further increments on moving to the selection grade in light of the order dated 29th March, 2001, was repelled. iii) That the Government Order dated 29th March, 2001 could not be made applicable to Respondent No.1 who had been placed in the selection grade notionally from 22nd December, 1999 with actual benefits accruing from 14th July, 2000. Aggrieved by the said judgment, the present appeal has been filed by the Appellant-University. Submissions: 4. We have heard learned Senior Counsel Sri P.V. Surendranath for the Appellant-University and Sri Raghenth Basant, learned counsel for Respondent No. 1 and perused the material on record. 4.1. Sri P.V. Surendranath, learned Senior Counsel appearing on behalf of the Appellant-University at the outset submitted that the judgments of the learned Single Judge and the Division Bench of the High Court of Kerala dated 13th October, 2015 and 10th August, 2016 respectively, were based on an incorrect appreciation of the law and facts of the case and, therefore, deserve to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der which seeks to modify or alter the rights conferred by way of the order dated 21st December, 1999. 4.6. It was submitted that when an order itself records in no unclear terms that it has been issued as a clarification of a previous order, it must be construed as a clarification and not as an amendment/modification. Accordingly, such an order must be made applicable retrospectively from the date on which the order sought to be clarified came into effect. 4.7. It was next contended that since it was specifically stated in the order dated 29th March, 2001 that the same was a clarificatory order, it was needless to specify expressly that the said order would operate retrospectively. Hence, the learned Single Judge had erred in recording a finding that since the order dated 29th March, 2001 did not specifically state that it would operate retrospectively, the same could not be held to have retrospective operation. In order to buttress this contention, Sri Surendranath has placed reliance on the decisions of this Court in Zile Singh vs. State of Haryana, (2004) 8 SCC 1; Commissioner of Income Tax, Ahmedabad vs. Gold Coin Health Food Pvt. Ltd., (2008) 9 SCC 622 and State of Bihar v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction grade, were all based on the Ph.D. qualification, the former tranche of increments was not to be granted to the exclusion of the latter. That though granted on the basis of a Ph.D. qualification, the increments were made effective at different phases of a Lecturer's career. Hence, Clauses 6.16, 6.18 and 6.19 could not be construed to imply that a Lecturer who had already got the benefit of four advance increments at the time of recruitment, would not be eligible for two more advance increments on being placed in the selection grade. 5.3. It was contended that a reading of Clauses 6.16, 6.18 and 6.19 would not suggest that a Lecturer who had already got the benefit of four advance increments at the time of recruitment, would not be eligible for two more advance increments on being placed in the selection grade. Therefore, the Government Order dated 29th March, 2001 which significantly modified/amended the meaning of Clauses 6.16, 6.18 and 6.19, could not be stated to be a clarification and therefore made applicable retrospectively. 5.4. Reliance was placed on the decision of this Court in K.C. Arora to contend that an amendment cannot be stated to have retrospective effect u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pective application thereof would result in withdrawal of vested rights which is impermissible in law and the same may also entail recoveries to be made. 7.1. For a ready reference, the relevant clauses of the Government Order bearing number G.O. (P) No. 171/99/H.Edn. dated 21st December, 1999 have been extracted hereinunder: "Incentives for Ph.D./M.Phil. 6.16. Four and two advance increments will be admissible to those who hold Ph.D. and M. Phil. degrees, respectively at the time of recruitment as Lecturers. Candidates with D.Litt./D.Sc. should be given benefit on par with Ph.D. and M.Litt. on par with M.Phil. 6.17. One increment will be admissible to those teachers with M.Phil. who acquire Ph.D. within two years of recruitment. 6.18. A Lecturer with Ph.D. will be eligible for two advance increments when she/he moves into Selection Grade/Reader. 6.19. A teacher will be eligible for two advance increments as and when she/he acquires a Ph.D. degree in her/his service career." 7.2. On a conjoint reading of the aforesaid Clauses of the Government Order dated 21st December, 1999, the following aspects would emerge: i) A Lecturer, who at the time of recruitment has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o possessed neither an M.Phil. degree nor a Ph.D. degree at the time of recruitment No advance increments would accrue at the time of recruitment Two advance increments Two advance increments Four advance increments 7.3. Having discussed the import of the aforesaid Clauses of the Government Order dated 21st December, 1999, it is necessary to examine the extent to which it was modified by way of the subsequent Government Order dated 29th March, 2001 numbered as G.O. (P) No. 44/2001 H. Edn. which reads as under: "GOVERNMENT OF KERALA ABSTRACT UNIVERSITIES AND COLLEGES - UGC SCHEME - REVISION OF PAY SCALES - CLARIFICATIONS - MODIFIED - ORDERS ISSUED. HIGHER EDUCATION (C) DEPARTMENT G.O.(P) No.44/2001/H.Edn. Dated:29.03.2001. Read: 1. G.O.(P) No.171/99/H.Edn. dated 21.12.1999. 2. G.O.(P) No.110/2000/H.Edn. dated 04.07.2000 3. Letter Nos.GE/10/390/2316 dated 14.08.2000 4. G.E. 10/E/Genl/486/2097 dated 21.09.2000 5. GE-10/E/Genl/518/3493 dated 24.10.2000 from the Accountant General, Thiruvananthapuram. 6. Govt. Letter No.24292/C3/2000/H.Edn. dt. 13.10.2000. ORDER The Accountant General, Thiruvananthapuram in his letters read above infor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et advance increments will not be eligible for fixation as per Rule 28-A part I K.S.Rs. 9. The government orders read as first and second papers stand modified to this extent. By Order of the Governor Sd/- N. Chandrasekharan Nair, Principal Secretary (Higher Education)" (Underlining by us) 7.4. The following aspects emerge on studying the Government Order dated 29th March, 2001: i) That the said order was issued pursuant to clarifications being sought by the Accountant General, Thiruvananthapuram, regarding the incentives under Clauses 6.16 to 6.19 of the Government Order dated 21st December, 1999. ii) According to the order dated 29th March, 2001, lecturers who had got the benefit of four advance increments at the time of their recruitment, by virtue of holding a Ph.D. degree, would not be eligible for two more increments on being placed in the selection grade. Those lecturers who obtained a Ph.D. degree subsequent to their recruitment would be eligible for two increments on moving to the selection grade. iii) A Lecturer would not be simultaneously eligible for the incentives under Clause 6.16 and 6.19. 7.5. It is necessary to contrast the en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Order are not to be given simultaneously. In other words, a teacher is not simultaneously eligible for the incentives as stated in paragraphs 6.18 and 6.19. Similarly, a teacher is not eligible for benefits specified in paragraphs 6.17 and 6.19 simultaneously. This would mean that this is the only modification made to the Order dated 21st December, 1999. It is also to be noted that the object of providing four advance increments to a Lecturer holding Ph.D. degree and two advance increments to a Lecturer holding M.Phil. degree at the time of recruitment as Lecturer is in recognition of the higher qualification that they possess, as ordinarily a Lecturer must possess a post-graduation degree to be recruited as a Lecturer. Therefore, if a person has an M.Phil. degree at the time of recruitment as a Lecturer, he or she would be entitled to two advance increments and if any Lecturer possesses a Ph.D. degree at the time of appointment as a Lecturer, four advance increments are admissible. This, is in contrast to, being eligible for two advance increments when a Lecturer acquires a Ph.D. degree during the course of service/career. On the other hand, if a Lecturer with an M.Phil. degre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any Statute. Such acts are usually held to be retrospective. [...] An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law, retrospective operation is generally intended. The language 'shall be deemed always to have meant' or 'shall be deemed never to have included' is declaratory and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law when the constitution came into force, the amending Act also will be part of the existing law." [Emphasis by us] 8.3. This Court in Commissioner of Income Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applies to future periods." This position of the law has also been subscribed to in Union of India vs. Martin Lottery Agencies Ltd., (2009) 12 SCC 209 wherein it was stated that when a new concept of tax is introduced so as to widen the net, the same cannot be said to be only clarificatory or declaratory and therefore be made applicable retrospectively, even though such a tax was introduced by way of an explanation to an existing provision. It was further held that even though an explanation begins with the expression "for removal of doubts," so long as there was no vagueness or ambiguity in the law prior to introduction of the explanation, the explanation could not be applied retrospectively by stating that it was only clarificatory. 9.2. From the aforesaid authorities, the following principles could be culled out: i) If a statute is curative or merely clarificatory of the previous law, retrospective operation thereof may be permitted. ii) In order for a subsequent order/provision/amendment to be considered as clarificatory of the previous law, the pre-amended law ought to have been vague or ambiguous. It is only when it would be impossible to reasonably interpret a provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order dated 21st December, 1999 was that a Lecturer would not be simultaneously eligible for the incentives under Clause 6.16 and 6.19. 10.2. Further, as evident from the tabular comparison presented hereinabove, the number of advance increments that would accrue in favour of a Lecturer who has a Ph.D. degree to his/her credit at the time of recruitment, was reduced by way of the Government Order dated 29th March, 2001 from six to four. Therefore, permitting retrospective application of the said order would result in withdrawing vested rights of lecturers who had a PhD. at the time of their recruitment and who were placed in the selection grade before 29th March, 2001 with four plus two advance increments. 10.3. Further, merely because the subsequent Government Order has been described as a clarification/explanation or is said to have been issued following a clarification that was sought in that regard, the Court is not bound to accept that the said order is only clarificatory in nature. On an analysis of the true nature and purport of the subsequent Government Order dated 29th March, 2001, we are of the view that it is not merely clarificatory, but is a substantial amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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