UGC Regulations 2016 Exempting PhD Holders From NET Qualification Will Apply Retrospectively : Supreme Court

Relying on a catena of judgments, a Bench comprising Justices U.U. Lalit, S. Ravindra Bhat and Sudhanshu Dhulia reiterated that when an amendment is merely clarificatory in nature it ought to have retrospective application(University of Kerala And Ors. Etc. v. Merlin J.N. And Etc. Etc).

"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."

As per the UGC (Minimum Qualifications for Appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to It) Regulations, 2000 (UGCR 2000) to be appointed as Lecturer in an university passing National Eligibility Test (NET) was mandatory. However it exempted candidates who had acquired M.Phil or submitted PhD thesis by 31.12.1993 from taking NET. The UGCR 2000 was amended a couple of times, but retained such exemption. By way of the UGCR 2009, NET was made the minimum stipulation for appointment of Lecturer. The candidates who acquired PhD in compliance with UGC (Minimum Standards and Procedure for Award of M. Phil / Ph.D. Degree) Regulations 2009 (PhD Regulations, 2009) were exempted from qualifying NET. The UGCR 2009 was again amended in 2010, but the exemption with respect to the PhD Regulations, 2009 was still in place. This gave way to a lot of confusion, as it was being interpreted to mean that PhD holders who were awarded PhD prior to the coming into force of the UGCR 2009 were disentitled to claim exemption from qualifying NET. In this backdrop, UGCR was subsequently amended in 2016 and 2018 with the intention to clarify that both pre-2009 and post-2009 PhD holders would be exempted from qualifying NET.

Factual Background

On 13.06.2011, the University of Kerala notified vacancies for some posts. One mandatory condition was to qualify NET. But, the advertisement categorically exempted candidates having PhD in the concerned subject from qualifying NET. Pursuant to the advertisement the petitioner(Dr.Jayakumar) had applied; he was assessed and assigned first position. The candidate who came second filed a writ petition before the Kerala High Court challenging petitioner's appointment on the ground that he had not obtained his PhD prior to coming into force of the PhD Regulations, 2009. The Single Judge of the High Court set aside the appointment, which was later confirmed by the Division Bench.

Contentions raised by the parties

Both the petitioner and the University defended the appointment and argued that UGCR 2009 was adopted by the University in 2013 and when the petitioner was appointed in 2012, he was fully qualified as Lecturer. It was also contended that as clarified by UGC the PhD Regulations 2009 and UGCR 2009 were prospective in nature.

The respondent averred that the petitioner could not have been granted exemption from NET which was an essential criteria under the extant Rules. It was asserted that since the 2009 UGCR only exempts those who have obtained PhD in terms of the PhD Regulations 2009, petitioner would not be eligible for the same benefit as he had received his PhD much prior to coming into force of the PhD Regulations 2009.

Analysis by the Supreme Court

The Bench observed that, noting that a large group of PhD holders who were awarded doctoral degrees prior to the coming into force of the UGCR 2009 suddenly became disentitled to claim exemption and were forced to appear and qualify NET, UGC by resolution clarified that the regulations are prospective in nature, i.e. all candidates having 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. The Central Government did not agree with UGC on this issue and that paved the way for litigation. Subsequently, UGC amended the UGCR in 2016 to protect the pre-2009 PhD holders who were appointed in various institutions and were working as Lecturers for several years. To clarify its stand further, UGC amended UGCR 2016 in 2018 to bifurcate pre and post-2009 PhD holders and exempted both from qualifying the NET. The Bench was of the view that the language in the subsequent amendments made it evident that they were to have retrospective application. Reference was made to the judgment in Darshan Singh v. Ram Pal Singh wherein the Apex Court had held that Courts will construe a provision to act retroactively when clear words are used to indicate the same. Moreover, the Bench noted that the UGC had the power to give retrospective effect to the UGCR 2016 under Section 26(3) of the UGC Act. It observed -

"In situations such as these, a retrospective restoration of rights which had earlier been taken away, will certainly affect pending proceedings - however, it is the duty of the courts, whether trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same."

The Bench was of the opinion that if the UGCR 2018 is interpreted to be prospective in nature then pre-2009 PhD holder's appointment would be rendered illegal and after teaching for several years they would now be forced to take the NET in order to continue as a Lecturer, which, it reckoned, was 'clearly unwarranted'.

Holding so, the bench allowed the appels of the University of Kerala and set aside the judgments of the High Court.

Case Name: University of Kerala And Ors. Etc. v. Merlin J.N. And Etc. Etc.

Citation: 2022 LiveLaw (SC) 680

Case No. and Date: SLP(C) No. 12591-12596 of 2020 | 17 Aug 2022

Corum: Justices U.U. Lalit, S. Ravindra Bhat and Sudhanshu Dhulia

Counsel:  Sr. Adv V. Giri for appellant- Dr. MS Jayakumar, AOR Lakshmeesh S. Kamath appeared for the appellant - University of Kerala, Sr. Adv Raj Panjwani, AOR Purnima Bhat and Adv Kaleeswaram Raj for respondents

Headnotes

Summary - UGC Regulations 2016 exempting PhD holders from NET Qualification will apply retrospectively

UGC (Minimum Qualifications for Appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to It) Regulations, 2009 - National Eligibility Test (NET) as minimum stipulation for appointment as Lecturer in any university - candidates who had acquired their Ph.D. in compliance with the UGC (Minimum Standards and Procedure for Award of M. Phil / Ph.D. Degree) Regulations 2009 introduced on 01.06.2009, were exempt from qualifying in the NET. [Paragraph No. 4]

UGC (Minimum Qualifications for Appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to It) Regulations, 2010 - NET exemption for candidates who had acquired their Ph.D. degrees in accordance with the 2009 Ph.D. Regulations continued - batches of PhD holders who had been awarded their doctoral degrees prior to the cut-off date under the 2009 UGCR, suddenly became disentitled to claim exemption and were forced to appear and qualify in the NET to continue with employment - UGC decided to extend NET exemption to both pre-2019 and post 2009 PhD holders - Central Government did not agree - array of litigation followed - UGC amended Regulation in 2016 and 2018 to clarify both pre and post 2009 PhD holders are exempted from taking NET - intention to protect the pre-2009 Ph.D. holders, who may have been appointed in various universities and taught for many years, is abundantly clear from the language used in the amendments. [Paragraph Nos. 6, 14, 17, 18]

UGC (Minimum Qualifications for Appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to It) Regulations, 2016 - being a clarificatory amendment is retrospective in nature - language of the amended provisions also spells out retrospective application. [Paragraph Nos. 18, 19, 23, 24]

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