TaxTMI 
TaxTMI 
2022 (8) TMI 1581
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....t as Lecturer in Sociology by the University. The High Court concurrently set aside that appointment. 2. Dr. Jayakumar completed his graduation in Sociology in the year 1999, acquired his M.Phil. in the year 2000, and Ph.D. on 23.08.2006. The regulations prescribing qualifications for appointment promulgated by the University Grants Commission (hereinafter, "UGC") were the UGC (Minimum Qualifications for Appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to It) Regulations, introduced in March 2000 (hereinafter, "2000 UGCR"). They prescribed passing the National Eligibility Test (hereinafter, "NET") as an essential condition for appointment as Lecturer in any university. The 2000 UGCR exempted candidates who had acquired M. Phil or submitted their Ph.D. thesis by 31.12.1993 from taking the NET[2]. 3. The 2000 UGCR were amended on July 2002 (hereinafter, "2002 UGCR / first amendment"). As a consequence, those who had acquired M.Phil. by 31.03.1993 or had submitted their Ph.D. thesis by 31.12.2002 were exempted from taking the NET[3]. In June 2006, the regulations were further amended (hereinafter, "2006 UGCR / second amendment")[4]. 4. The ....
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....n 13.06.2011, the University through a notification invited applications for filling up the post of Lecturer in various subjects, including Sociology. The advertisement spelt out the minimum qualifications required. One mandatory condition was that the candidates should fulfill the eligibility requirement for Lectureship, i.e., the NET. At the same time, the advertisement exempted candidates who had a Ph.D. in the concerned subject from qualifying the NET. The relevant extracts of the advertisement are as follows: "Qualifications Good Academic record with at least 55% marks or an equivalent grade at Masters Degree level in the relevant subject from an Indian University or an equivalent Degree from a Foreign University. Note: 1 Candidates besides fulfilling the above qualifications should have cleared the eligibility test for Lectureship conducted by the UGC, CSIR or similar tests accredited by the UGC. However, the candidates who have Ph.D. Degree in the concerned subject are exempted from NET qualifications. Note: 2 A relaxation of 5% marks at Masters level is allowed to the following categories:- 1. SC/ST Candidates 2. Ph.D. Degree holders who have passed thei....
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....Before this court, it was argued on behalf of Dr. Jayakumar as well as the University that the former's appointment was in accordance with the extant law and regulations. It was emphasized that the University adopted the 2009/10 UGCR only with effect from 23.11.2013. In these circumstances, when the advertisement was published, as also when Dr. Jayakumar was appointed in August 2012, he was fully qualified and entitled to be appointed as Lecturer. It was further contended that prior to Dr. Jayakumar's appointment, the UGC had, through its resolution dated 12.08.2010 passed in its 471st meeting, clarified that 2009 Ph.D. Regulations and 2009 UGCR were prospective in nature, and not retrospective: "[A]ll candidates who had either obtained Ph.D. on or before 31.12.2009 and such candidates who had registered themselves for Ph.D. degree on or before 31.12.2009 were exempt from the requirement of NET" [Minutes of the 471st Meeting of the University Grants Commission, Item 2.08 (iii), dated 12.08.2010.] 10. It was argued on behalf of the appellant that the fourth amendment placed the matter beyond any doubt because it rendered eligible candidates who had acquired their Ph.D. degr....
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....ll in that class, but had obtained his Ph.D. much earlier, the exemption did not apply to him. To be eligible, he had to have taken the NET. It was submitted that Dr. Merlin on the other hand, was better qualified because she had passed the NET in 1998 and had later obtained a Ph.D. Further, she was working in the University of Kerala as a contractual teacher since 2001. Despite these factors, the University proceeded to appoint Dr. Jayakumar and ignored her candidature. As between the two of them, she alone was qualified, whereas Dr. Jayakumar was not. It was submitted that the appellant Dr. Jayakumar could not rely upon the resolution of UGC taken in its 471st meeting. 12. Learned senior counsel for Dr. Merlin urged that the UGC's resolution was contrary to the express terms of the 2010 UGCR. This became the subject matter of controversy since the Central Government had expressed its disagreement with the resolution, in a letter dated 23.11.2010. This controversy was discussed in the decision of this court in P. Suseela (supra). Learned counsel relied upon that judgment to urge that this court had categorically ruled that UGC's resolution take in its 471st meeting could not prov....
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....der the 2009 UGCR, suddenly became disentitled to claim exemption and were per force made to appear and qualify in the NET. The UGC become aware of this situation and by two resolutions dated 12.08.2010 and 27.09.2010, opined that since the regulations are prospective in nature, all candidates having M. Phil. degree on or before 10.07.2009 and all persons who obtained the Ph.D. degree on or before 31.12.2009 and had registered themselves for the Ph.D. before this date, but would be awarded such degree subsequently, shall remain exempted from the requirement of NET for the purpose of appointment as Lecturer/Assistant Professor. However, as the facts discussed in P. Suseela (supra) reveal - the Central Government did not agree with the opinion of the UGC. Some correspondence took place between the two authorities i.e., the UGC and the Central Government. It was in the background of these facts that the petitioner in P. Suseela (supra) had approached the Allahabad High Court (as did some other candidates in other High Courts). The differing decisions of the various High Courts led to appeals before this court by Special Leave. In the batch of decided by P. Suseela (supra), the questio....
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.... 4.4.2.2, 4.4.2.3, 4.5.3 and 4.6.3 in the University Grants Commission (Minimum qualifications for appointment of teachers and other academic staff in Universities and Colleges and other measures for the maintenance of standards in higher education) (3th Amendment) Regulations, 2016 regarding exemption to the candidates registered for Ph.D. programme prior to July 11, 2009 shall stand amended and be read as under:- Provided further, the award of degree to candidates registered for the M.Phil. / Ph.D. programme prior to July 11, 2009, shall be governed by the provisions of the then existing Ordinances/Bylaws/Regulations of the Institutions awarding the degree and the Ph.D. candidates shall be exempted from the requirement of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities / Colleges / institutions subject to the fulfilment of the following conditions..." [Reg. 3, 2016 UGCR] (emphasis supplied) 18. The intention of the UGC to protect the pre-2009 Ph.D. holders, who may have been appointed in various universities and taught for many years, is evidently clear in the language adopted. To make the intention even clearer, th....
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....ng to the relevant rule of construction which has to be adopted in dealing with the effect of statutory provisions in this connection, we ought to add that retrospective operation of a statutory provision can be inferred even in cases where such retroactive operation appears to be clearly implicit in the provision construed in the context where it occurs. In other words, a statutory provision is held to be retroactive either when it is so declared by express terms, or the intention to make it retroactive clearly follows from the relevant words and the context in which they occur." [Rafiquennessa v. Lal Bahadur Chetri (Dead) Through His Representatives and Ors., (1964) 6 SCR 876, para 9] This interpretation has withstood the test of time, and was upheld in the decision of Darshan Singh vs. Ram Pal Singh [Darshan Singh vs. Ram Pal Singh & Ors., 1990 (Supp) 3 SCR 212, para 12] which succinctly stated: "Courts will construe a provision as conferring power to act retroactively when clear words are used." 20. Further, in Shyam Sunder v. Ram Kumar [Shyam Sunder v. Ram Kumar (2001) 8 SCC 24, para 39], a Constitution Bench of this court discussed the scope and ambit of a declaratory la....
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....17 SCC 128, para 28]. 23. When an enactment or an amendment is declaratory, curative or clarificatory, impelled by a felt need to make clear what was always intended, such amendment is usually meant to operate from an antecedent date, or to cover antecedent events. This position was clarified in Commissioner of Income Tax, Bhopal vs. Shelly Products & Ors. [Commissioner of Income Tax, Bhopal vs. Shelly Products, (2003) 5 SCC 461, para 38] where this court, while interpreting an amendment, held that: "It seeks to clarify the law so as to remove doubts leading to the courts giving conflicting decisions, and in several cases directing the revenue to refund the entire amount of income-tax paid by the assessee where the revenue was not in a position to frame a fresh assessment. Being clarificatory in nature it must be held to be retrospective, in the facts and circumstances of the case. It is well settled that the legislature may pass a declaratory Act to set aside what the legislature deems to have been a judicial error in the interpretation of statute. It only seeks to clear a meaning of a provision of the principal Act and make explicit that which was already implicit." 24. Like....
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....a Master's degree. Such qualification (M. Phil. or Ph. D.) is undoubtedly awarded for a proven proficiency of the candidate in the concerned subject or discipline. This is apparent from the minimum qualification requirements of different positions as well - for e.g., while a Master's degree is sufficient for application to the post of Assistant Professor, a Ph.D. is required for applying to the post of Associate Professor onwards [See Reg. 4.1, 2018 UGCR, applicable to all disciplines of Arts, Commerce, Humanities, Education, Law, Social Sciences, Sciences, Languages, Library Science, Physical Education, and Journalism & Mass Communication]. To interpret the 2018 UGCR prospectively would imply that a pre-2009 Ph.D. holder's appointment would be rendered illegal, and after having taught for several years, he/she would lose his/her seniority and all accrued benefits and would now have to take the NET in order to teach - which is clearly unwarranted. This court therefore, holds that Dr. Jayakumar's appointment is protected by the 2016 UGCR, which is applicable retrospectively. 27. Thus, the appeals are allowed. The impugned judgment is set aside, and all applications are disposed of ....