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Synopsis

The Supreme Court has held that a clarification or explanation of a law can be issued with retrospective operation but it must not have the effect of saddling any party with an unanticipated burden or withdrawing from any party an anticipated benefit. 

A bench of Justices K M Joseph and B V Nagarathna explained that if a statute is curative or merely clarificatory of the previous law, the retrospective operation may be permitted. 

However, the court further stated that 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," the bench said.

The court also said 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," it said.

The apex court culled out the principles while dismissing an appeal filed by Sree Sankaracharya University of Sanskrit and others against the Kerala High Court's division bench order which had upheld the direction to pay two advance increments to Dr Manu in terms of the revised University Grants Commission Scheme, 1998 and the government order of 1999 on his placement as selection grade lecturer.

In the case, the bench noted that a subsequent government order issued in 2001 cannot be declared as a clarification and be made applicable retrospectively as the said order substantively modified the 1999 order to the extent of stating that teachers who had already got the benefit of advance increments for having a PhD degree, would not be eligible for advance increments at the time of their placement in the selection grade.

"The law provides that 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 PhD degree at the time of recruitment and subsequently acquire the same," the bench said.

By the 2001 order, the number of advance increments that would accrue in favour of a lecturer who had a PhD degree to his/her credit at the time of recruitment was reduced from six to four, the court noted. 

"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," the bench said.

The court further said that the 2001 order was not merely clarificatory, but was a substantial amendment that sought to withdraw the benefit of two advance increments in favour of a certain category of lecturers. 

"The benefit withdrawn was not anticipated under the previously existing scheme. Therefore, such an amendment cannot be given retrospective effect," the bench declared.

The court affirmed the orders passed by the Kerala HC's single judge and division bench and directed that lecturers, who were placed in the selection grade before March 29, 2001, would be entitled to all the incentives stipulated in the government order of December 21, 1999. 

Case Title: Sree Sankaracharya University vs. Dr Manu & Anr.