The Supreme Court recently, in a case titled “Sree Sankaracharya University of Sanskrit and others v. Dr. Manu and another”,1 has explained when an amendment can be held to be a clarificatory which has a retrospective effect. It is a settled law that a clarificatory amendment or an explanation that clears any ambiguity or corrects any glaring omissions in a statute would be applicable retrospectively, but, in the said case, the Supreme Court has now settled the position as to how such a clarification/ explanation to a statute could be identified and distinguished from a substantive amendment to a statute.
The Supreme Court was considering an appeal filed by the Sree Sankaracharya University of Sanskrit against the Order of the Division Bench of the High Court of Kerala by way of which the University was directed to grant two advance increments to the Respondent No. 1, on his placement as Selection Grade Lecturer, in terms of clause 6.18 of the revised University Grants Commission (UGC) Scheme of 1998 and Government Order dated 21.12.1999. Respondent No. 1 was recruited by the University in 1999 and he was granted four advance increments by virtue of clause 6.16 of UGC Scheme 1999 which provides that candidates who hold a PhD degree at the time of recruitment as lecturers are eligible for four advance increments. In 2000, Respondent No. 1 was placed as a Selection Grade Lecturer, but two advance increments, payable on placement of a Lecturer holding a PhD degree as a Selection Grade Lecturer as per clause 6.18 of the UGC Scheme 1999, were denied to him. Respondent No. 1, being aggrieved by non-payment of the increments as per UGC Scheme 1999, approached the High Court of Kerala, which ruled in his favour. The Division Bench of the High Court affirmed the decision of the Single Bench.
The University contended before the Supreme Court that Respondent No. 1 was not eligible to claim further increments based on his PhD degree, on his placement in the selection grade in light of a 2001 Government Order which clarified that lecturers who had received advance increments for having PhD degree, will not be eligible for further increments on being placed as Selection Grade Lecturer. The University was of the view that since Respondent No. 1 had already received four advance increments for having a Ph.D. degree, he would not be eligible to claim two more advance increments based on his Ph.D. degree, at the time of being placed in the selection grade. It was argued by the University before the Supreme Court that clauses 6.16 to 6.19 of the 1999 Government Order stipulates that the maximum number of advance increments that a teacher having a PhD degree could avail is limited to four, under all circumstances. They contended that the 2001 Government Order issued by the Government was only clarificatory and was thus part and parcel of the 1999 Order and will have retrospective effect.
Per contra, Respondent No. 1 contended that the 2001 Government Order could not be said to be a clarification and be made applicable retrospectively. He also contended that a conjoint reading of clauses 6.16, 6.18 and 6.19 of the 1999 Government Order would reveal that a lecturer with a Ph.D. degree at the time of recruitment as a lecturer would be eligible for six advance increments i.e., four advance increments at the time of recruitment and two additional increments at the time of being placed in the selection grade. Thus, as per Respondent No. 1, the 2001 Government Order, which restricted the number of advance increments to a lecturer having a PhD degree, significantly modified/ amended the meaning of clauses 6.16, 6.18 and 6.19 and cannot be stated to be a clarification.
The Supreme Court considered whether the 2001 Government Order was a clarification of the 1999 Government Order (in which case it will have a retrospective effect) or whether it amended/ modified the 1999 Government Order (in which case it will have a prospective effect).
The Court held that the 2001 Government Order substantively modified the 1999 Government Order as it restricted the eligibility of lecturers for advance increments by providing that a teacher who had got the benefit of advance increments by virtue of having a PhD degree at the time of recruitment, would not be eligible for advance increments on being placed in the selection grade. Thus, as per the 2001 Government Order, the benefit of advance increments on being placed in the selection grade was restricted to those lecturers who obtained a PhD degree after their recruitment. The Supreme Court also referred to the plethora of previous judgments on the issue in hand and culled out the following legal principles to ascertain when a provision can be held to be merely clarificatory/ declaratory/ explanatory having a retrospective effect:
- If a statute is curative or merely clarificatory of the previous law, retrospective operation thereof may be permitted.
- For a subsequent Order/ provision/ amendment to be considered as clarificatory of the previous law, the pre-amended law ought to have been vague or ambiguous. It is only when it would be impossible to reasonably interpret a provision unless an amendment is read into it, that the amendment is considered to be a clarification or a declaration of the previous law and therefore applied retrospectively.
- An explanation/ clarification may not expand or alter the scope of the original provision.
- Merely because a provision is described as a clarification/ explanation, the Court is not bound by the said statement in the statute itself but must proceed to analyse the nature of the amendment and then conclude whether it is in reality a clarificatory or declaratory provision or whether it is a substantive amendment which is intended to change the law and which would apply prospectively.
Conclusion
A subsequent order/ provision that results in a substantive amendment in the original rule cannot be termed to be merely a clarificatory/ declaratory/ explanatory amendment. It is because such an amendment carries with it, a force to considerably alter the original rule. On the other hand, only amendments that, in nature and purpose, seek to clear doubts or correct an obvious omission in a statute would generally be clarificatory amendments being retrospective in operation.
Footnote
1. Civil Appeal No. 3752 of 2023 decided on 16.05.2023
