Gelus Ram Sahu and Others vs Dr. Surendra Kumar Singh and Others

Appointment – Illegal appointment from inception – Effect of – Held: An appointment which is erroneous or illegal from the very inception does not clothe the appointee with any indefeasible right and such appointment is always subject to correctional decisions – Appointment of a candidate who has erroneously secured public employment without fulfillment of minimum qualifications can always be annulled upon discovery of mistake.

Legislation: Clarificatory’ legislations – Connotation of – Held: Clarificatory’ legislations are an exception to the general rule of presuming prospective application of laws, unless given retrospective effect either expressly or by necessary implication – In order to attract this exception, mere mention in the title or in any provision that the legislation is ‘clarificatory’ would not suffice – Instead, it must substantively be proved that the law was in fact ‘clarificatory’ – If there exists no ambiguity, there arises no question of making use of a clarificatory notification. Allowing the appeals, the Court

HELD: Is Ph.D mandatory for appointment to the post of ‘Principal’ under the 2010 AICTE Regulations?

1.1 Prerequisite criteria for appointment to the post of Principal in a Polytechnic College has been provided under the 2010 AICTE. [Para 13][840-E-F]

1.2 A perusal of the qualification table makes it obvious that there can be multiple HODs for different departments (like Engineering, Architecture, Hotel Management, Pharmacy etc). In order to be HOD of any such Department, a prospective candidate needs to have both Master’s and Bachelor’s degrees in the relevant field. Whereas candidates with a Ph.D must have had 5 years of experience in the allied field, others without it must have worked for 10 years. Phrased differently, Ph.D is not mandatory for HOD, and instead results in a 5-year relaxation in requisite work experience. In other words, Ph.D has been treated equivalent to 5 years teaching experience. [Para 15][805-E-G]

1.3 The interpretation as propounded by Respondent No.

1 would necessarily mean that there is no power with a State Government to make Ph.D optional, and that the higher of the two alternate criteria specified under the 2010 AICTE Regulations would be binding on all. Such a plea is problematic on two counts. Firstly, it implies that Ph.D, specifically in ‘Engineering’ only, would be compulsory for all principals. This creates an inconsistency as such a restriction would be in conflict with the nature of ‘experience’ specified by the AICTE, like recognition of Experience Certificate granted by the Council for Architecture, which undoubtedly shows that there can be candidates other than from the field of ‘Engineering’ eligible for appointment as Principal. Secondly, such a contention would be iniquitous in so far as it disenfranchises HODs from multiple recognised departments from applying to the posts of Principal, and arbitrarily restricts the zone of consideration to Engineering HODs only. Such seems to be neither the intent of the 2010 AICTE Regulations nor is it supported by any cogent reasoning. [Para 16][805-G-H; 806-A-C]

1.4 There is no inclination to read down the rules to omit the ‘in Engineering’ part and only selectively insist upon a ‘Ph.D’, for in the instant facts it would amount to crossing the fine line between interpretation and legislation. Hence, the only permissible way to read the AICTE criteria would be to lay emphasis on the phrase “or” and hence interpret ‘Ph.D in Engineering’ as being optional and it being discretionary upon the adopting institution/State Government to specify either of the two criteria. [Para 17][806-C-E]

1.5 It cannot be said that due weightage is not given to Ph.D degree while interpreting the 2010 AICTE Regulations. A candidate with Ph.D degree can become HOD with merely 5 years of work experience, whereas candidates without Ph.D need to work for 10 years. Although, requirement of experience for becoming Principal is 10 years uniformly, it comes with a stipulation that 3 years must have been spent as HOD or in an equivalent position. Thus, a candidate without Ph.D would compulsorily need 10 years’ experience for HOD and would need to work further 3 years in that capacity, i.e. for minimum of 13 years’ experience to become Principal. Those with a Ph.D on the other hand, can apply for principal-ship within 10 years, as they would have become eligible for HOD with 5 years experience, and could have completed the further 3 years term as HOD in the interregnum. Hence, hypothetically, there is a 5-year eligibility relaxation granted under AICTE Regulations to those with a Ph.D. The afore-stated advantage is only further exacerbated under the 2014 Chhattisgarh Rules, where those without a Ph.D need

15 years’ experience and those with such higher degree, can be appointed within 10 years. Additionally, construction of 2010 AICTE Regulations this way, avoids conflict with the 2014 Chhattisgarh Rules. Even otherwise, given a choice between two interpretations, one which restricts the pool of applicants for public employment and another which enfranchises many, it would befit the spirit of Article 16 that the expansive interpretation is adopted. Such a recourse would both provide opportunities to a wider meritorious class, will increase competition and concomitantly ensure meritorious selections. [Para 20] [Paras 18-20][806-DH; 808-F-H]

Does the 2016 AICTE Notification retrospectively ‘clarify’ eligibility conditions for appointment as ‘Principal’?

2.1 The 2016 AICTE Notification has made a significant impact upon the High Court’s determination of the instant dispute. The High Court held that the said Notification, clearly specified that Ph.D was compulsory for all Principals. As the notification was ‘clarificatory’, it was held applicable retrospectively which would remove any ambiguity created by the 2010 AICTE Regulations and consequently the appellants were ineligible to hold the posts of ‘Principal’. After going through the contents of the 2016 AICTE Notification in its entirety, it is held that the conclusion drawn by the High Court is erroneous for a variety of reasons. At the very outset, no attempt appears to have been made to determine the nature of the 2016 AICTE Notification, as to whether it supplements an obvious omission in the 2010 AICTE Regulations and most importantly its effect on those who have meanwhile acquired vested rights. [Paras 22, 24][809-A-G]

2.2 Clarificatory’ legislations are an exception to the general rule of presuming prospective application of laws, unless given retrospective effect either expressly or by necessary implication. In order to attract this exception, mere mention in the title or in any provision that the legislation is ‘clarificatory’ would not suffice. Instead, it must substantively be proved that the law was in fact ‘clarificatory’. [Para 25][809-G-H; 810-A]

2.3 The instant case is one where except for the title, nothing contained therein indicates that the 2016 AICTE Notification was clarificatory in nature. The said Notification is framed in a questionanswer style and merely restates what has already been made explicit in the 2010 AICTE Regulations. There seems to be no intent to alter the position of law but instead only to simplify what the AICTE had resolved through its original regulation. The 2016 AICTE Notification is a response to the doubts put forth to AICTE by the public. This is evident from the stand put forth by AICTE in its reply as well as during the course of hearing, namely, that there is no retrospective alteration in the qualification prescribed for the post of Principal. [Para 26][810-F-H]

2.4 Even if the 2016 AICTE Notification was clarificatory, it must be demonstrated that there was an ambiguity in the criteria for appointment to the posts of Principal, which needed to be remedied. Clarificatory notifications are distinct from amendatory notifications, and the former ought not to be a surreptitious tool of achieving the ends of the latter. If there exists no ambiguity, there arises no question of making use of a clarificatory notification. Hence, in the absence of any omission in the 2010 AICTE Regulations, the 2016 AICTE Notification despite being generally clarificatory must be held to have reiterated the existing position of law. [Para 27][811-A-C]

2.5 There were no two interpretations possible, and hence Issue Nos. 48 and 64 of 2016 AICTE Notification have, in no uncertain terms, reprised the substance of 2010 AICTE Regulations. [Para 28][811-C-D]

Whether retrospective changes in qualificatory requirements can affect the existing appointments?

3.1 Having held that the 2016 AICTE Notification is only complementary to what the AICTE had laid down in 2010, even in a situation where eligibility conditions are clarified from an anterior date, it may not be prudent to affect the appointments which had been made on the basis of a possible understanding of the eligibility conditions. [Para 29][811-D-E]

3.2 Vested rights cannot be impaired by enacting law with retrospective effect and that such statutory rules ought not to result in any discrimination or violation of constitutional rights. The said principle would apply with equal force on the outcome of judicial review also and any new meaning given to a set of Rules/Regulations by the court of law would not ordinarily unsettle the settled appointments or conferment of other service benefits. Nevertheless, this Court is fully conscious of the legal position that appointment of a candidate who has erroneously secured public employment without fulfillment of minimum qualifications can always be annulled upon discovery of mistake. An appointment which is erroneous or illegal from the very inception does not clothe the appointee with any indefeasible right and such appointment is always subject to correctional decisions. [Paras 30, 32][811-E-F; 812-D-F]

3.3 There is no quarrel that the appellants do not possess Ph.D. However, they satisfied the requirement of having fifteen years’ experience (of which at least three years was as HOD) under the 2014 Chhattisgarh Rules and were found suitable for promotion by the Departmental Promotion Committee on the basis of various other material. They have also been found in possession of one of the eligibility criteria prescribed under the 2010 AICTE Regulations. Thus, the appellants’ appointments ought to remain undisturbed in any eventuality. [Para 33] [812-F-H]

3.4 It is not in dispute that the State Government had inducted appellant No. 1 in a Committee which submitted the draft service rules. It is, however, difficult to accept (nor has it been alleged) that the said appellant held a position through which he could influence the rule-making authority to exercise its powers under Proviso to Article 309 of the Constitution as per his wishes. He was holding too small a position that no inference of his dominance in the decision making process can be drawn. [Para 34][813-A-B]

3.5 The judgment of the High Court is set aside and the writ petition filed by Respondent No. 1 challenging the promotion of appellants is dismissed. [Para 35][813-C]

Ajith Kumar v. State of Kerala (2009) 3 KLJ 563 ; Virtual Soft Systems v. CIT (2007) 9 SCC 665 : [2007]

2 SCR 289 ; TR Kapur v. State of Haryana (1986) Supp SCC 584 : [1987] 1 SCR 584; K Ravindranath Pai v. State of Karnataka (1995) Supp 2 SCC 246 ;

K Narayanan v. State of Karnataka (1994) Supp 1 SCC

44 ; Railway Board v. Rangadhamiah (1997) 6 SCC

623 : [1997] 3 Suppl. SCR 63 – referred to.