REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1667 OF 2020 [Arising out of Special Leave Petition(C)No. 32417 OF 2016]

Gelus Ram Sahu and others ..... Appellants(s)

                 VERSUS

Dr. Surendra Kumar Singh and others  .....Respondents(s)

WITH

CIVIL APPEAL NO.1668 OF 2020 [Arising out of Special Leave Petition(C)No. 10647 OF 2017]

JUDGMENT

Leave Granted.

2. The appellants are aggrieved by the order dated 28.09.2016 of

the High Court of Chhattisgarh through which the writ petition filed

by Surendra Kumar Singh (Respondent No. 1) seeking declaration of

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Ph.D. being an essential qualification for the post of Principal at the

Polytechnic colleges was allowed and consequently appointment of the

appellants were quashed for want of the said qualification.  

FACTS

3. Respondent  No.  1 started teaching  as  a lecturer of electrical

engineering at the Govt Polytechnic College, Ambikapur on 10.11.1993

and was promoted as the Head of Department (hereinafter, “HOD”) of

electrical engineering at the Govt Polytechnic, Durg from 03.03.2009.

He is presently working at Govt. Polytechnic, Kabirdham with

additional responsibility of Principal­in­charge. Having completed

three years of service as HOD on 01.01.2012, Respondent No. 1

applied for the post of Principal in response to the process of

promotion initiated by the State of Chhattisgarh (Respondent No. 2) in

2014. Along with Respondent No. 1, numerous other serving HODs

(including the seven appellants herein) too participated in the selection

process.  Whereas  Appellants  No.  1   to  7  were  declared  successful

through notification dated 25.06.2014, the 1st  respondent did not

figure in the selection list.  

4. Respondent No. 1 being aggrieved approached the High Court,

complaining that his fundamental rights stood violated as the

promotion process was  in contravention of the  ‘Pay  Scales,  Service

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conditions and Qualifications for the  Teachers  and other Academic

Staff in Technical Institutions (Diploma) Regulations, 2010’

(hereinafter, “2010 AICTE Regulations”). These regulations were

framed by All India Council for Technical Education (Respondent No.

3, hereinafter “AICTE”) in exercise of its powers conferred under the

AICTE Act, 1987 which has been enacted by Parliament with

reference to Entry 66 of the Union List contained in Schedule VII of

the Constitution; and  is  thus binding on the State of  Chhattisgarh

(Respondent No. 2). The ‘Chhattisgarh Technical Education (Teaching

cadre­Polytechnic) (Gazetted) Service Recruitment Rules, 2014’

(hereinafter, “2014 Chhattisgarh Rules”), in so far as they allow

candidates without Ph.D to be appointed as Principals, were

contended to be illegal for being in contravention of the 2010 AICTE

Regulations whereunder, according to respondent No. 1, Ph.D degree

was a mandatory qualification for the post of Principal.  

5. Respondent No. 1 butressed his superior claim highlighting that

he  had  the  requisite three­year  HOD experience  and there  was  no

complaint or disciplinary enquiry pending against him. On the other

hand, he urged that the appellants had been promoted though none of

them was having Ph.D qualification. He further alleged several other

irregularities in the selection process, including the below­

specification ACR gradings possessed by certain candidates.

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Accordingly, Respondent No. 1 sought quashing of the 2014

Chhattisgarh Rules and the promotion order dated 25.06.2014; review

of the proceedings conducted by the Departmental Promotion

Committee and the grading awarded to him in his Annual Confidential

Reports of 2012 and 2013, and further sought resultant

reconsideration of his case for promotion from HOD to Principal.

6. The High Court viewed that the 2010 AICTE Regulations were

binding, and relying upon a decision of the High Court of Kerala in B

Ajith Kumar v. State of Kerala1, it held that the State Government

could not lower the qualification threshold.  Further, the High Court

interpreted the AICTE criteria to imply that Ph.D was mandatory for

appointment/promotion as ‘Principal’ and any ambiguity which could

plausibly have existed in the initial formulation of 2010 AICTE

Regulations, had been clarified through the ‘All India Council for

Technical Education (clarifications on certain issues/anomalies

pertaining to  Qualifications,  Pay Scales,  Service  Conditions,  Career

Advancement Schemes  (CAS)  etc. for  Teachers  and other Academic

Staff of Technical Institutions Degree/Diploma), 2016’ (hereinafter,

“2016 AICTE Notification”) which although published on 04.01.2016

would operate retrospectively being clarificatory in nature.

1  (2009) 3 KLJ 563.

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Consequently, the High Court quashed the incongruous parts of 2014

Chhattisgarh Rules.  

7. The High Court   further observed how Appellant No. 1 was

Chairman of the very Committee which drafted the 2014 Chhattisgarh

Rules,  making  him  an interested party. Noting yet other infirmity

regarding the date of publication of 2014 Chhattisgarh Rules in the

official gazette, the High Court quashed the order promoting Appellant

Nos. 1 to 7 to the posts of Principal of the Polytechnic Colleges.  

CONTENTIONS

8. The distressed appellants contend before us that there existed

no ambiguity in the 2010 AICTE Regulations. These regulations clearly

mention “or” between two sets of qualifications, one in which Ph.D was

specified and the other without such prescription. It is submitted that

the  High  Court could  hence  not  have read it in a  manner  which

converted “or”  into “and”. It was further submitted that even if any

ambiguity  existed, it  was not open  for  the AICTE to retrospectively

introduce an eligibility condition in a manner which would expropriate

the appellants of their vested rights.  

9. Highlighting how seven out of nine positions would remain

vacant in case a Ph.D degree was mandated as an essential

qualification for the posts of Principal in polytechnic colleges in

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Chhattisgarh, the appellants vociferously sought intervention of this

Court. They further urged that having participated in the process of

promotion, Respondent No. 1 had acquiesced to the interpretation and

understanding of the Rules made by Respondent No. 2, and the former

was now estopped from challenging the validity of the selection­

process or of the 2014 Chhattisgarh Rules.  

10. Respondent No. 1, on the other hand, reiterated that the AICTE

is a statutory body established by the Parliament through the All India

Council for Technical Education Act, 1987, and thus enjoys complete

supremacy and superintendence over determination of standards for

technical education. All technical institutions across the country are

obliged to  adhere to the minimum standards laid  down by AICTE.

Supporting the High Court’s interpretation, he maintains that since

the 2010 AICTE Regulations mandated ‘Ph.D in Engineering’ as one of

the essential qualification for the post of Principal, the 2014

Chhattisgarh Rules were ultra vires for having impermissibly relaxed

mandatory qualifications. The 1st Respondent adverts to certain other

procedural irregularities in framing and publication of the 2014

Chhattisgarh Rules,  and additionally alleges that Respondent No. 2

not  only  violated the  Chhattisgarh Public  Service  Promotion Rules,

2003 but also arbitrarily altered the minimum grading requirement to

favour certain candidates.

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11. Respondent No. 3 (AICTE) has submitted that it was not their

case that candidates who had already been promoted to the posts of

Principal despite not possessing Ph.D, should be removed. Drawing

attention to various relevant provisions of the 2010 AICTE Regulations

read  with the  2016  AICTE  Notification, learned counsel for  AICTE

urged that any interpretation by this Court holding Ph.D mandatory

ought only be prospective in application, and not retrospective.

ANALYSIS

12. The AICTE Act, 1987 has been enacted, as explained briefly in

para 4 of this order with an explicit power to  set up an Expert Body to

regulate the standards and norms in technical education and for

establishment  of institutions imparting  such education. It is  not  a

matter of dispute that AICTE is a creation of the said statute and the

Regulations framed by it in exercise of the powers under the AICTE

Act,  1987  carry the force  of law. Indeed, it  has  been  accepted  by

learned counsel for the parties that the 2010 AICTE Regulations would

be the governing  law, holding the field, and would bind all  parties,

including the State of Chhattisgarh. The foremost question which thus

arises for our consideration is whether the 2010 AICTE Regulations, in

fact, make it mandatory for candidates vying for the post of Principal

to possess a Ph.D degree?

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(i) Is Ph.D mandatory for appointment to the post of

‘Principal’ under the 2010 AICTE Regulations?

13. The cause of the present controversy is not difficult to fathom.

Prerequisite criteria for appointment to the post of Principal in a

Polytechnic College has been provided under the 2010 AICTE

Regulations in a tabulated form, relevant parts of which are extracted

below:  

Post Qualifications Experience PRINCIPAL

Qualification as above for the  post of  Head  of Department and Ph.D in Engineering

OR Qualification as above for the  post of  Head  of Department

Minimum of 10 years relevant experience in teaching/research/industry out of which at least 3 years shall be at the level of head of department or equivalent.

In case of Architecture, professional  practice  of  10 years as certified by the Council of Architecture shall also be considered valid.”  

14. Since the above reproduced clause enables a ‘Head of

Department’ to occupy the next higher post of Principal `with’ or

`without’ Ph.D qualification, it is necessary to find out the eligibility

conditions laid down for appointment of different Heads of

Department. The relevant extracts of HOD criteria are thus

illustratively reproduced hereunder:  

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Post Qualifications Experience Head of Department Engineering /  Technology

Bachelor’s and Masters degree of appropriate branch in Engineering / Technology with First Class or equivalent either Bachelor’s or Master’s level

OR

Bachelor’s degree and Master’s degree of appropriate branch in Engineering / Technology with First Class or equivalent either Bachelor’s or Master’s level and  

Ph. D or equivalent, in appropriate discipline in Engineering / Technology

Minimum of 10 years relevant experience in teaching / research / industry.

Minimum of 5 years relevant experience in teaching / research / industry

NOTE: Since the qualifications and experience for the post of Heads of Pharmacy,

Hotel Management & Catering Technology and Architecture Departments are also

identical except that the qualification and experience must be only in the relevant

subjects, the same have not been reproduced to avoid multiplicity.  

15. 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

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year relaxation in requisite work experience. In other words, Ph.D has

been treated equivalent to 5 years teaching experience.

16. 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.

We find 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.

17. We are also not inclined to read down the rules to omit the ‘in

Engineering’ part and only selectively insist upon a ‘Ph.D’, for in the

present facts it would amount to crossing the fine line between

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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.  

18. This does not mean that we have not given due weightage 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 principal­ship 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 5­year eligibility

relaxation granted under AICTE Regulations to those with a Ph.D.  

19. The afore­stated advantage is only further exacerbated under the

2014 Chhattisgarh Rules, where those without a Ph.D need 15 years’

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experience and those with such higher degree, can be appointed

within 10 years.  This  can be well  demonstrated  from the  following

extracts of 2014 Chhattisgarh Rules:­

Sl. No.

Name of posts

included in service

Minimum age limit

Maximum age limit

Prescribed educational education

Remarks

1 2 3 4 5 6

1 Principal ­ 58 years (1) Bachelor and  Master degree of  appropriate branch in  Engineering/  Technology from a  recognized  University/Institute  with First Class or  equivalent at either  Bachelor’s or Master’s  level.

(2) Minimum of 15  years relevant  experience in  teaching/research/  industry out of which  at least 03 years shall  be at the level of head  of department.

OR

(1) Bachelor and Master degree of appropriate branch of Engineering/ Technology from a recognized

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University /Institute with First Class or equivalent at either Bachelor’s or  Master’s level and Ph.D or equivalent in appropriate discipline in Engineering/ Technology from a recognized University/Institute.

(2) Minimum of 10 years relevant experience in teaching/research/ industry  out  of  which at least 03 years shall be at the level of head of department or equivalent.  

HEAD OF DEPARTMENT

1 Civil/Mechanic al/Electrical/El ectronics/  Information  Technology/  Instrumentatio n/Metallurgy/ Mining/Chemic al/Computer  Science and  Engineering  

­ 58 years Bachelor’s and  Master’s degree of  appropriate branch  in Engineering/  Technology from a  recognized  University/Institute  with First Class or  equivalent at either  Bachelor’s or  Master’s level.

OR

Bachelor’s and Master’s degree of appropriate branch in Engineering/ Technology from a recognized University /Institute with First Class or equivalent

Minimum of 10 years relevant experience in teaching/ research/ industry.

Minimum of 05 years relevant experience in teaching/

research/ industry.

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at either Bachelor’s or Master’s level and Ph.D or equivalent in appropriate discipline in Engineering/ Technology from a recognized University/Institute.

xxx                                              xxx                                            xxx

20. Additionally, construction of 2010 AICTE Regulations this way,

avoids conflict with the 2014 Chhattisgarh Rules, as extracted above.

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.

(ii) Does the 2016 AICTE Notification retrospectively ‘clarify’

eligibility conditions for appointment as ‘Principal’?

21. The next question which logically arises is whether the

notification issued by the AICTE in 2016 changes the eligibility

conditions which are explicit in the 2010 AICTE Regulations, as

discussed above.

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22. The 2016 AICTE Notification has made a significant impact upon

the High Court’s determination of the present dispute. The High Court

has held that the said Notification, clearly specified through Issue No.

64 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’. The relied­upon Issue No. 64 reads as under:

SI. No.

Issue Clarification

64. Whether  Ph.D  is  an essential  qualification for the  Post  of  Principal in  Diploma Level Technical Institutions.  

Yes

23. The appellants as well as the AICTE have drawn our attention to

Issue No. 48 in the same table of 2016 AICTE Notification which, they

contend,  depicts  a contrary  picture.  The relevant  part  of the  2016

Notification which has not been noticed by the High Court reads as

under:

SI. No.

Issue Clarification

48. Whether a faculty of Engineering & Technology with minimum 10 years relevant experience in teaching/research out of which 3 years is in the same grade Pay (i.e. Rs.9000) at par with HOD is eligible for the post of Principal in Polytechnic.  

Yes, provided the person also has an administrative experience of  at  least 3 years.

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24. After going through the contents of the 2016 AICTE Notification

in its entirety, we are of the opinion 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.  

25. ‘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’, as noted

by this Court in Virtual Soft Systems v. CIT2:

“50. It may be noted that the amendment made to Section 271 by the Finance Act, 2002 only stated that the amended provision would come into force with effect from 1­4­2003. The statute nowhere stated that  the said amendment was either clarificatory or declaratory. On the contrary, the statute stated that the said amendment would come into effect on 1­4­2003 and therefore, would apply only to future periods and not to any period prior to 1­4­2003 or to any assessment year prior to Assessment Year 2004­2005.  It is the well­settled legal position that an amendment can be considered to be declaratory  and clarificatory  only if the statute itself expressly and unequivocally states that it is a

2  (2007) 9 SCC 665.

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declaratory  and clarificatory provision. If there is  no such clear statement in the statute itself, the amendment will not be considered to be merely declaratory or clarificatory.

51. Even if the statute does contain a statement to the effect that the amendment is declaratory or clarificatory, that is not the end of the matter. The Court will not regard itself as being bound by the said statement made in the statute but will 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 an amendment which is intended to change the law and which applies to future periods.”

(emphasis supplied)

26. The present 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 question­

answer 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 before us 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.

27. Even if the 2016 AICTE Notification was clarificatory, it must be

demonstrated that there was an ambiguity in the criteria for

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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.

28. As discussed earlier, 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.

(iii) Whether retrospective changes in qualificatory

requirements can affect the existing appointments?

29. Having held that the 2016 AICTE Notification is only

complementary to what the AICTE had laid down in 2010, we may

hasten to add that 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.

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30. This Court in a range of decisions including TR Kapur v. State

of Haryana3, K Ravindranath Pai v. State of Karnataka4 and K

Narayanan v. State of Karnataka5,  has  opined that 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.    

31. The law on vested rights in service  matters  has  exhaustively

been elaborated  in  Railway Board v. Rangadhamiah,6  wherein  it

has been stated:

“20. It  can, therefore,  be said  that  a rule  which operates  in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively.

xxx

24. In many of these decisions the expressions “vested rights” or “accrued rights”  have been used while  striking down the impugned provisions which had been given retrospective operation so  as to  have  an  adverse effect in the  matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking

3   1986 Supp SCC 584. 4   1995 Supp (2) SCC 246. 5  1994 Supp (1) SCC 44. 6  (1997) 6 SCC 623

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away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. ...”

32. The aforestated 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.   We

are, nevertheless, 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.

33. There is no quarrel that the appellants herein 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. We

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are, thus, of the considered opinion that the appellants’ appointments

ought to remain undisturbed in any eventuality.

34. This takes  us to the last objection taken  by the  High  Court

regarding ‘conflict of interest’.   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 rule­making 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.

CONCLUSION

35. In the light of the above discussion, the appeals are allowed. 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

but without any order as to costs.

………………………….CJI (S.A. BOBDE)

……..……………………..J. (B.R. GAVAI)

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…………………………… J. (SURYA KANT)

NEW DELHI

DATED : 18.02.2020

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