"Clarificatory Provision May Be Made Applicable Retrospectively, May Not Expand Or Alter Scope Of Original Provision"- SC Clarifies

A Supreme Court Bench of Justice KM Joseph and Justice BV Nagarathna has observed that "any legislation or instrument having the force of law, which is clarificatory or explanatory in nature and purport and which seeks to clear doubts or correct an obvious omission in a statute, would generally be retrospective in operation" while stressing that an explanation/clarification may not expand or alter the scope of the original provision.

Senior Counsel PV Surendranath appeared for the appellant-university, while Counsel Raghenth Basant appeared for the respondent. 

In this case, an appeal was filed by the appellant-university, against the judgment passed by the High Court, through which the appellant-university was directed to grant two advance increments to the respondent 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. 

The issue before the Court was whether the High Court was right and justified in directing the grant of two advance increments to Respondent No. 1 in terms of Clause 6.18 of the Government Order dated 21st December 1999, on his placement as a Selection Grade Lecturer.

On hearing the parties, the Apex Court found that 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 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. 

(iii) An explanation/clarification may not expand or alter the scope of the original provision. 

(iv) 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. 

Subsequently, it was observed that "the subsequent Government Order dated 29th March, 2001 cannot be declared as a clarification and therefore be made applicable retrospectively. The said order has substantively modified the Government Order dated 21st December, 1999 to the extent of stating 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. As noted above, the law provides that a clarification must not have the effect of saddling any party with an unanticipated burden or withdrawing from any party an anticipated benefit. However, the Government Order dated 29th March, 2001 has restricted the eligibility of lecturers for advance increments at the time of placement in the selection grade, only to those who do not have a Ph.D. degree at the time of recruitment and subsequently acquire the same."

In a similar vein, it was observed that "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". 

In light of the same, the appeal was dismissed. Parties were directed to bear their respective costs.

Cause Title: Sree Sankaracharya University v. Dr. Manu & Anr.

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