TMI Blog2023 (5) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 21st December, 1999. However, the incentives specified in paragraphs 6.16 to 6.18 of the aforesaid Government 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. In the State Government Order dated 29th March, 2001 also, paragraph 3 reiterates that teachers holding both M.Phil. degree and Ph.D. degrees at the time of their entry in service are entitled to four advance increments which is on par with paragraph 6.16 of the Government Order dated 21st December, 1999. Paragraphs 4 and 6 of the said Order categorically state that the incentive specified in paragraphs 6.16 to 6.18 and paragraphs 6.18 and 6.19 of the earlier Government Order would not be simultaneously applicable. Even paragraph 7 of the said Order states that the teacher is not eligible for the benefits specified both in paragraphs 6.17 and 6.19 simultaneously. Whether such a modification could be made ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1st December, 1999 - appeal dismissed. - K.M. JOSEPH AND B.V. NAGARATHNA For the Petitioner : Mr. Surendranath P V, Sr. Adv. Mr. Biju P Raman, AOR Mr. Sawan Kumar Shukla, Adv. Mrs. Lekha Sudhakar, Adv. For the Respondent : Mr. Raghenth Basant, Adv. Mr. P. V. Dinesh, AOR Ms. Roopali Lakhotia, Adv. Mr. Ajay Krishna, Adv. Ms. Nida K, Adv. Mr. Akhil K M, Adv. Mr. C. K. Sasi, AOR Mr. Abdulla Naseeh V T, Adv. Ms. Meena K Poulose, Adv. JUDGMENT NAGARATHNA, J. Leave granted. 2. The present appeal has been filed by the Appellant-University assailing the final judgment and order dated 10th August, 2016, passed by the High Court of Kerala at Ernakulam in Writ Appeal No. 254 of 2016. By the impugned judgment, the Division Bench of the High Court dismissed the Writ Appeal filed by the Appellant-University and confirmed the judgment of the learned Single Judge of the High Court, dated 13th October, 2015 whereby the appellant-University was directed to 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 Sele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary and arrears payable to Respondent No. 1 from 22nd December, 1999, i.e., the date on which he was placed in the selection grade to 14th July, 2000. 3.5. The Appellant-University filed a counter affidavit in the said writ petition taking the stand that Respondent No. 1 was not eligible to claim any further increments based on his Ph.D. degree, on his placement in the selection grade in light of the Government Order, G.O. (P) No. 44/2001/H.Edn. dated 29th March, 2001 which had clarified 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. That since Respondent No. 1 had already been granted four advance increments by virtue of holding 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. 3.6. The learned Single Judge of the High Court partly allowed 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o advance increments to Respondent No.1 in terms of Clause 6.18 of the Government Order dated 21st December, 1999. The pertinent findings of the Division Bench of the High Court in the impugned judgment dated 10th August, 2016 have been culled out as under: i) That admittedly, the Government, by way of the order dated 29th March, 2001 had modified the Government Order dated 21st December, 1999 by specifying certain conditions for eligibility for grant of advance increments on being placed in the selection grade. Simply because the order dated 29th March, 2001 had been passed when a clarification was sought as to whether teachers who had already got the benefit of advance increments for having a Ph.D. degree, would be eligible for advance increments at the time of their placement in the selection grade, the said order cannot be termed as a clarificatory order and be made effective retrospectively. ii) Reliance was placed on the decision of a co-ordinate Bench of the High Court in Writ Appeal (C) No.749 of 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 furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... got the benefit of advance increments for having a Ph.D. qualification, would not be eligible for advance increments at the time of their placement in the selection grade. That the Government Order dated 29th March, 2001 was a clarificatory order and not one that would vest or withdraw any substantive rights. That the Government Order dated 29th March, 2001 clearly records that the same was being issued pursuant to a clarification sought with respect to the incentives for persons possessing/acquiring Ph.D. and M.Phil. qualifications. Therefore, the said clarification would relate back to the date on which the previous Government Order dated 21st December, 1999 came into effect. 4.5. It was further contended that the clarificatory order dated 29th March, 2001 was issued only for the purpose of removal of ambiguities in the implementation of the earlier Government Order dated 21st December, 1999. Therefore, it is to be read as a part and parcel of the Government Order dated 21st December, 1999 and must not be construed as a separate order 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned judgment of the High Court is based on an unimpeachable understanding of the law and facts of the present case and therefore, does not call for interference by this Court. 5.1. It was further submitted that a conjoint reading of Clauses 6.16, 6.18 and 6.19 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. Further, a Lecturer who does not possess a Ph.D. degree at the time of his recruitment, but subsequently obtains one while serving as a Lecturer before placement in the selection grade, would be eligible for four advance increments, i.e., two advance increments on obtaining a Ph.D. degree and two more increments on being placed in the selection grade. 5.2. It was further submitted that merely because increments granted at the time of recruitment as well as those that could be availed at the time of placement in the selection grade, were all based on the Ph.D. qualification, the former tranche of increments was not to be granted to the exclusion o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10th August, 2016 respectively be affirmed. Points for consideration: 6. Having heard learned Senior Counsel and learned counsel for the respective parties and on perusal of the material on record, we find that the following points would arise for our consideration: i) Whether the High Court was right and justified in directing 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? ii) What order? Discussion and analysis: 7. This matter calls for a determination as to whether the 29th March, 2001 was a clarification of Clauses 6.16 to 6.19 of the Government Order dated 21st December, 1999, or whether, it amended or modified the same. If the subsequent Government Order is declared to be in the nature of a clarification of the earlier order, it may be made applicable retrospectively. Conversely, if the subsequent Government Order is held to be a modification/amendment of the earlier order, its application would be prospective as retrospective application thereof would result in withdrawal of vested rights which is impermissible in law a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional advance increments. Therefore, a Lecturer who possessed neither an M.Phil. degree nor a Ph.D. degree at the time of recruitment, but acquires a Ph.D. degree during his/her career and is placed in the selection grade would be eligible for a total four advance increments. The entitlements of different categories of lecturers, as defined under the Government Order dated 21st December, 1999 has been presented in a tabular form as under: Qualification of the Lecturer at the time of recruitment Advance increments accrued at the time of recruitment Advance increments accrued on acquiring Ph.D.degree Advance increments accrued on being placed in the Selection Grade Total number of advance increments A Lecturer,B who has a Ph.D. degree to his/her credit at the time of recruitment Four advance increments Not applicable Two advance increments Six advance increments A Lecturer, who possesses an M.Phil. degree at the time of recruitment Two advance increments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is approved by government and is appended to this Order. 2. Teachers drawing pay at 10th stage in the prerevised scale of Rs.3700-5700 i.e. from Rs.4825/- onwards will get their increments after one year and not on the normal dates of their increments. 3. Teachers holding both M.Phil and Ph.D at the time of their entry in service are entitled to 4 advance increments. 4. The incentives specified in para 6.16 to 6.18 of the government order dated 21.12.99 are not eligible simultaneously. 5. Teachers who have got the benefit of advance increments for having Ph.D will not be eligible for advance increments at the time of their placement in the selection grade. But the teachers who got Ph.D. subsequently and who had not got the benefit earlier will be eligible for 2 advance increments when he/she moves into selection Grade Reader. The date of effect of this benefit will be from 1.1.96. Those who have acquired/will acquire Ph.D. on or after 1.1.96 will become eligible for advance increment from the date of award of Ph.D degree. The period spent for Ph.D. on deputation will also be reckoned as qualifying service for placement in senior scale/selection grade. The ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Four advance increments Four advance increments 7.6. As noted from the table above, a Lecturer who has a Ph.D. degree to his/her credit at the time of recruitment was entitled to six advance increments on being placed in the selection grade, as stipulated under Clauses 6.16 and 6.18 of the Government Order dated 21st December, 1999. However, the number of advance increments that would accrue to such a Lecturer on being placed in the selection grade was reduced to four, vide Government Order dated 29th March, 2001. The Government Order dated 29th March, 2001 restricted the eligibility of lecturers to the advance increments which would accrue on being placed in the selection grade by providing that a teacher who had got the benefit of advance increments by virtue of having a Ph.D. degree at the time of recruitment, would not be eligible for advance increments on being placed in the selection grade. The benefit of increments on being placed in the selection grade was restricted to those lecturers who obtained a Ph.D. degree subsequent to their recruitment. As noted above, the Government Order dated 29th March, 2001 modifies the Government Order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs 6.16 to 6.18 and paragraphs 6.18 and 6.19 of the earlier Government Order would not be simultaneously applicable. Even paragraph 7 of the said Order states that the teacher is not eligible for the benefits specified both in paragraphs 6.17 and 6.19 simultaneously. 8. The next aspect that requires consideration is whether such a modification could be made applicable retrospectively., i.e., whether the Government Order dated 29th March, 2001 to the extent that it modifies the Government Order dated 21st December, 1999 would be applicable to those lecturers who had acquired a Ph.D. degree at the time of their recruitment, such as, Respondent No. 1, who were placed in the selection grade before 29th March, 2001. 8.1. It is trite 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, vide Ramesh Prasad Verma. Therefore, in order to determine whether the Government Order dated 29th March, 2001 may be made applicable retrospectively, it is necessary to consider whether the said order was a clar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to be introduced through an amendment. The Court held that literal construction was liable to be avoided if it defeated the manifest object and purpose of the Act. This Court held that if the amendment was not read into the relevant provision retrospectively, it would be impossible to reasonably interpret the said provision. That since there was an obvious omission in the provision, an amendment was necessitated which would clarify/declare the law retrospectively. 9. The proposition of law that a clarificatory provision may be made applicable retrospectively is so well established that we do not wish to burden this judgment by referring to rulings in the same vein. However, it is necessary to dilate on the role of a clarification/explanation to a statute and how the same may be identified and distinguished from a substantive amendment. 9.1. An explanation/clarification may not expand or alter the scope of the original provision, vide Bihta Cooperative Development Cane Marketing Union Ltd. vs. Bank of Bihar, A.I.R. 1967 SC 389. Merely describing a provision as an Explanation or a clarification is not decisive of its true meaning and import. On this aspect, this Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to change the law and which would apply prospectively. 10. Applying the law as discussed hereinabove to the facts of the present case, we are of the view 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. 10.1. The purpose of the incentives in question seems to be twofold: First, to incentivize persons with advanced educati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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