Holding

The 2016 (and by extension 2018) UGC Regulations operate retrospectively, granting NET exemption to pre‑2009 Ph.D. holders, thereby validating Dr. Jayakumar’s appointment.

Summary

The case concerned the appointment of Dr. M.S. Jayakumar as Lecturer in Sociology at the University of Kerala in 2012. Dr. Jayakumar held a Ph.D. awarded in 2006, i.e., before the 2009 Ph.D. Regulations that introduced a NET exemption only for Ph.D. degrees obtained under those regulations. The Kerala High Court and its Division Bench held that he was not entitled to the exemption and set aside his appointment, treating the 2016 amendment to the UGC regulations as prospective. On appeal, the Supreme Court examined the legislative intent behind the 2016 and 2018 UGC (Minimum Qualifications) Regulations and held that such amendments, being declaratory/clarificatory, operate retrospectively to protect pre‑2009 Ph.D. holders. Consequently, Dr. Jayakumar’s appointment was deemed valid and the lower court’s order was set aside. The Court emphasized that courts must give effect to subsequent statutory changes even in pending matters.

Issues considered

The exemption from NET for Ph.D. holders under the 2009/10 UGCR applies to Ph.D. degrees awarded before the 2009 Ph.D. Regulations.
Whether the 2016 UGCR amendment is prospective or retrospective in operation.
Whether the 2018 UGCR amendment is prospective or retrospective.
Whether courts must apply subsequent statutory amendments to pending appointments.
The validity of Dr. Jayakumar’s appointment as Lecturer.

Legislation cited

University Grants Commission Act, 1956s. 26(3)

Subjects

NET exemptionPh.D. qualificationUGC Regulationsretrospective effectappointment of lecturerhigher educationstatutory interpretationdeclaratory amendmentUniversity Grants Commission Actservice law

Judgment

[2022] 13 S.C.R. 323 323

UNIVERSITY OF KERALA AND ORS. ETC. A
v.
MERLIN J. N. AND ANR. ETC. ETC.
(Civil Appeal Nos. 5309-5314 of 2022)
AUGUST 17, 2022 B
[UDAY UMESH LALIT, S. RAVINDRA BHAT AND
SUDHANSHU DHULIA, JJ.]
Service Law – Exemption of NET for Ph.D Holders –
Prospective Operation of 2018 UGCR – UGC (Minimum
C
Qualifications for Appointment and Career Advancement of Teachers
in Universities and Institutions Affiliated to It) Regulations – In 2009,
amendment was made to the UGC Regulations, 2000 (UGCR) – By
this amendment, for the first time, the minimum stipulation for the
appointment of lecturer was introduced i.e. NET – However,
candidates who had acquired their Ph.D. were exempted from D
qualifying in the NET – On 13.06.2011, the University invited
applications for filling up the post of Lecturer in various subjects –
The minimum qualification was NET, however, the advertisement
exempted candidates who had a Ph.D. in the concerned subject
from qualifying the NET – One ‘J’ who applied for the post was
E
ranked in the first position and the respondent was placed at second
rank – Respondent challenged the appointment of ‘J’ before the
High Court on the ground that it contravened the 2009/10 UGCR,
i.e., as ‘J’ had not obtained his Ph.D.(on 23.08.2006) in accordance
with the 2009 Ph.D. Regulations – High Court held that the ‘J’ was
not qualified to hold the post of Lecturer – Division Bench affirmed F
the order passed by the Single Judge by holding that the 2016 UGCR
amendment which enable those awarded Ph.D. degrees prior the
cut-off date of 11.07.2009 to also be considered for appointment
as Lecturers was applicable only prospectively, and hence denied
the benefit to ‘J’ - On appeal, Held: There are perhaps hundreds of
G
other Ph.D. candidates who had secured their degrees prior to the
2009 Ph.D. Regulations and who were, till the 2009/10 UGCR were
brought into force, entitled to claim exemption from NET in every
selection for any teaching vacancy in any university in India – The
2018 UGCR, bifurcated the pre- and post-2009 Ph.D. holders into
two groups, and allowed both exemption from taking the NET – To H
323
324 SUPREME COURT REPORTS [2022] 13 S.C.R.

A construe them as applying only prospectively, would give rise to
an absurdity, and defeat the purpose for which the amendment was
promulgated – 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 - To
interpret the 2018 UGCR prospectively would imply that a pre-2009
B
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.
Allowing the appeals, the Court
C
HELD: 1.1 The facts of this case would reveal that the
selection process was completed in 2012. There is no doubt that
at that stage, the 2009 Ph.D. Regulations and 2009/10 UGCR
were in force. Yet the University appointed ‘ J’(Dr.) by applying
the existing standards as understood by it. According to the
D University, the 2009/10 UGCR was incorporated in its statute
only in 2013. In the opinion of this court, that detail is irrelevant.
What is undeniable is that like ‘J’, there are perhaps hundreds
of other Ph.D. candidates who had secured their degrees prior to
the 2009 Ph.D. Regulations and who were, till the 2009/10 UGCR
E were brought into force, entitled to claim exemption from NET
in every selection for any teaching vacancy in any university in
India. This state of affairs led the UGC to issue clarifications,
which the Central Government did not agree to. The appellant
‘J’ fell within that category of Ph.D. holders for whom the UGC
intended to soften the rigors of the 2009/10 UGCR. However,
F lack of approval by the Central Government led to litigation which
culminated in P. Suseela. [Para 16][335-C-E]
1.2 P. Suseela appears facially, to adversely clinch the issue
with respect to pre-2009 Ph.D. holders. The UGC perhaps
realized the hardship which they had to endure (with many of
G them even appointed in various universities on account of the
resolution adopted in UGC’s 471st meeting on 12.08.2010), and
therefore amended the regulations once more (2016 UGCR).
[Para 17][335-F-G]

H
UNIVERSITY OF KERALA AND ORS. ETC. v. MERLIN J. N. 325
AND ANR. ETC. ETC.

1.3 The intention of the UGC to protect the pre-2009 Ph.D. A
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, the 2018 UGCR,
published on 18.07.2018, bifurcated the pre- and post-2009 Ph.D.
holders into two groups, and allowed both exemption from taking
B
the NET. [Para 18][336-D]
2. This court is unpersuaded by such contentions. 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 C
change in law affecting pending actions and to give effect to the
same. If on such consideration, it is held by the court that an
amendment speaks a language which expressly or by clear
intendment takes in even pending matters, the court of first
instance as well as the court of appeal must have regard to the D
intention so expressed, and the court of appeal may give effect
to such a law even after the judgment of the court of first instance.
[Para 22][338-G-H; 339-A-B]
3. When an enactment or an amendment is declaratory,
curative or clarificatory, impelled by a felt need to make clear E
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. [Para 23][339-B-C]
4. The logic pervading all the versions of the UGCR from F
1993-2018 (as discussed above) to exempt M. Phil./Ph.D. holders
from qualifying in the NET was perhaps premised on the
understanding that such a doctorate in one’s chosen subject,
involving years of study, would render a greater understanding
of the subject compared to most other candidates taking the NET
who have only obtained a Master’s degree. Such qualification G
(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
H
326 SUPREME COURT REPORTS [2022] 13 S.C.R.

A sufficient for application to the post of Assistant Professor, a Ph.D.
is required for applying to the post of Associate Professor
onwards. 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
B
to take the NET in order to teach – which is clearly unwarranted.
This court therefore, holds that ‘J’ appointment is protected by
the 2016 UGCR, which is applicable retrospectively. [Para
26][340-D-G; 341-A]
Shyam Sunder v. Ram Kumar (2001) 8 SCC 24 : [2001]
C 1 Suppl. SCR 115 – followed.
Dr. Merlin J.N. v University of Kerala W.P.(C) No.
20055 of 2012 and W.P.(C) No. 2951 of 2013;
P. Suseela v. University Grants Commission (2015) 8
SCC 129 : [2015] 5 SCR 643; Dr. D. Radhakrishnan
D Pillai v The Travancore Devaswom Board 2016 (2) KLT
245; State of Madhya Pradesh. v. Manoj Sharma (2018)
3 SCC 329 : [2018] 1 SCR 779; Rafiquennessa v. Lal
Bahadur Chetri (Dead) Through His Representatives
and Ors. [1964] 6 SCR 876; Darshan Singh v. Ram
E Pal Singh & Ors. [1990] 3 Suppl. SCR 212; Noorunissa
Begum v. Brij Kishore Sanghi (2015) 17 SCC 128 :
[2015] 4 SCR 246; Commissioner of Income Tax,
Bhopal v. Shelly Products & Ors. (2003) 5 SCC 461 :
[2003] 1 Suppl. SCR 79; Zile Singh v. State of Haryana
(2004) 8 SCC 1 : [2004] 5 Suppl. SCR 272; Manoj
F Sharma v. State of Madhya Pradesh W.P. (C) No. 3290
of 2012 – referred to.
Case Law Reference
[2015] 5 SCR 643 referred to Para 8
G [2018] 1 SCR 779 referred to Para 8
[1964] 6 SCR 876 referred to Para 19
[1990] 3 Suppl. SCR 212 referred to Para 19
[2001] 1 Suppl. SCR 115 followed Para 20
H
UNIVERSITY OF KERALA AND ORS. ETC. v. MERLIN J. N. 327
AND ANR. ETC. ETC.

[2015] 4 SCR 246 referred to Para 22 A
[2003] 1 Suppl. SCR 79 referred to Para 23
[2004] 5 Suppl. SCR 272 referred to Para 24
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5309-
5314 of 2022. B
From the Judgment and Order dated 16.03.2020 and 30.09.2020
of the High Court of Kerala at Ernakulam in W.A. Nos.1713, 1744,
1792 of 2018 and R.P. Nos. 688, 689, 690 of 2020.
With
C
Civil Appeal Nos. 5315-5332 of 2022.
V. Giri, Sr. Adv., Mohammed Sadique T.A., Mrs. Anu K. Joy,
Alim Anvar, Abraham C. Mathews, Lakshmeesh S. Kamath, Ms. Samriti
Ahuja, Advs. for the Appellants.
Raj Panjwani, Sr. Adv., Ms. Purnima Bhat, Kaleeswaram Raj, A. D
Lakshminarayanan, Ms. Thulasi K. Raj, Advs. for the Respondents.
The Judgment of the Court was delivered by
S. RAVINDRA BHAT, J.
1. Leave granted. With consent of the learned counsels, the E
appeals were heard finally. The appellants (in the first appeal, Dr. M.S.
Jayakumar, and in the second appeal, the University of Kerala
(hereinafter, “University”) challenge a common judgment of the Division
Bench of the Kerala High Court.1 The issue involved is the legality of
Dr. Jayakumar’s appointment as Lecturer in Sociology by the University.
The High Court concurrently set aside that appointment. F
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 G
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”)
1
In W.A. No. 1713, 1744 & 1792 of 2018 and the common orders passed in R.P. No.
688-90 of 2020 by Kerala High Court. H
328 SUPREME COURT REPORTS [2022] 13 S.C.R.

A 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
B 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 next round of amendments was made to the regulations on
C 11.07.2009 (hereinafter, “2009 UGCR/third amendment”). By this
amendment, for the first time, the minimum stipulation for appointment
of Lecturer was NET. However, 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 (hereinafter, “2009
Ph.D. Regulations”), introduced on 01.06.2009, were exempt from
D qualifying in the NET. The substituted provision in the 2009 UGCR read
as follows:
“NET/SLET shall remain the minimum eligibility condition for
recruitment and appointment of Lecturers in Universities/
Colleges/Institutions. Provided, however, that candidates, who
E are or have been awarded Ph.D. Degree in compliance of the
University Grants Commission (minimum standards and
procedure for award of Ph.D. Degree), Regulation 2009, shall
be exempted from the requirement of the minimum eligibility
2
“NET shall remain the compulsory requirement for appointment as Lecturer even for
F candidates having Ph.D. degree. However, the candidate who have completed M.Phil.
degree or have submitted Ph.D. thesis in the concerned subject up to 31 st December,
1993, are exempted from appearing in the NET examination.”
3
“NET shall remain the compulsory requirement for appointment as Lecturer even for
candidates having Ph.D. degree. However, the candidates who have completed M.Phil.
degree by 31 st December, 1993 or have submitted Ph.D. thesis to the university in the
G concerned subject on or before 31 st December, 2002 are exempted from appearing in
the NET examination. In case such candidates fail to obtain Ph.D. degree, they shall
have to pass the NET examination.”
4
“NET shall remain the compulsory requirement for appointment as Lecturer for those
with post-graduate degree. However, the candidates having Ph.D. degree in the concerned
subject are exempted from NET for PG level and UG level teaching. The candidates
having M.Phil. degree in the concerned subject are exempted from NET for UG level
H teaching only.”
UNIVERSITY OF KERALA AND ORS. ETC. v. MERLIN J. N. 329
AND ANR. ETC. ETC. [S. RAVINDRA BHAT, J.]

condition of NET/SLET for recruitment and appointment of A
Assistant Professor or equivalent positions in Universities/
Colleges/Institutions.”5
5. The 2009 Ph.D. Regulations prescribed uniform standards for
admission to Ph.D. and dealt with other issues, such as allocation of
supervisors, course work, standards of evaluation and assessment, B
depository of thesis with the UGC, presentation by Ph.D. aspirants in
the University departments which had to be open to faculty members
and research students for comments, the mandatory requirement of the
publication of research papers, etc.
6. On 30.06.2010, the UGC amended the regulations (hereinafter, C
“2010 UGCR”). The relevant provision continued the NET exemption
for candidates who had acquired their Ph.D. degrees in accordance
with the 2009 Ph.D. Regulations:
“NET/SLET/SET shall remain the minimum eligibility condition
for recruitment and appointment of Assistant Professors in D
Universities/Colleges/Institutions. Provided however, that
candidates, who are or have been awarded as Ph.D. Degree
in accordance with the University Grants Commission
(Minimum Standards and Procedure for Award of Ph.D.
Degree) Regulations, 2009, shall be exempted from the
requirement of the minimum eligibility condition of NET/SLET/ E
SET for recruitment and appointment of Assistant Professor
or equivalent positions in Universities/Colleges/Institutions.” 6
7. On 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 F
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: G
“Qualifications
Good Academic record with at least 55% marks or an
equivalent grade at Masters Degree level in the relevant
5
Reg. 4, 2009 UGCR.
6
Reg. 3.3.1, 2010 UGCR. H
330 SUPREME COURT REPORTS [2022] 13 S.C.R.

A 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
B 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:-
C
1. SC/ST Candidates
2. Ph.D. Degree holders who have passed their Masters
Degree prior to 19.09.1991.” 7
8. Dr. Jayakumar applied for the post. The application was
D processed, and pursuant to his interview by the Selection Committee, he
was assessed and ranked in the first position on 04.08.2012. The
respondent Dr. Merlin J.N. was placed at the second position. Feeling
aggrieved, she preferred a writ petition before the Kerala High Court.8
The grounds urged by Dr. Merlin were that inter alia she had been
unjustly denied four marks (concerning requisite teaching experience
E
and publication in a recognized journal) which ought to have been awarded
to her. Additionally, she challenged the appointment of Dr. Jayakumar,
alleging that it contravened the 2009/10 UGCR, i.e., as Dr. Jayakumar
had not obtained his Ph.D. in accordance with the 2009 Ph.D. Regulations,
he was not qualified to hold the post of Lecturer under the 2009/10
F UGCR. A learned Single Judge of the Kerala High Court, by judgment
dated 01.02.2017,9 held that Dr. Jayakumar was not qualified to hold the
post of Lecturer. The learned Single Judge relied upon the judgment of
this Court in P. Suseela v. University Grants Commission10 as well as
a Kerala High Court Full Bench decision in Dr. D. Radhakrishnan
Pillai v The Travancore Devaswom Board11. The University and Dr.
G 7
University of Kerala, Notification No. Ad. H/5091/2011, dated 11.06.2011.
8
Dr. Merlin J.N. v University of Kerala, W.P.(C) No. 20055 of 2012 and W.P.(C) No.
2951 of 2013.
9
Common judgment in W.P.(C) No. 20055 & 21902 of 2012 and W.P.(C) No. 2951 of
2013, dated 01.02.2017.
10
P. Suseela v. University Grants Commission, 2015 (8) SCC 129.
11
H Dr. D. Radhakrishnan Pillai v The Travancore Devaswom Board, 2016 (2) KLT 245
UNIVERSITY OF KERALA AND ORS. ETC. v. MERLIN J. N. 331
AND ANR. ETC. ETC. [S. RAVINDRA BHAT, J.]

Jayakumar appealed to the Division Bench which affirmed the ruling of A
the learned Single Judge. The Division Bench noticed a subsequent
judgment of this Court in State of Madhya Pradesh. v. Manoj Sharma12
and the (then) latest amendment to the regulations (hereinafter, “2016
UGCR/fourth amendment”) which sought to somewhat relieve the rigors
of the 2009/10 UGCR and enable those awarded Ph.D. degrees prior to
B
the cut-off date of 11.07.2009 to also be considered for appointment as
Lecturers. The Division Bench held that the 2016 UGCR was applicable
only prospectively, and hence denied the benefit to Dr Jayakumar.
9. 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 C
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 D
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 E
themselves for Ph.D. degree on or before 31.12.2009 were
exempt from the requirement of NET”.13
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. degree before F
11.07.2009. In this regard, great emphasis was placed on the following:
“The proviso prescribed under Regulation 3.3.1, 4.4.1, 4.4.2,
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 G
and other measures for the maintenance of standards in higher
education) (3th Amendment) Regulations, 2016 regarding

12
State of Madhya Pradesh. v. Manoj Sharma, 2018 (3) SCC 329.
13
Minutes of the 471 st Meeting of the University Grants Commission, Item 2.08 (iii),
dated 12.08.2010. H
332 SUPREME COURT REPORTS [2022] 13 S.C.R.

A 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
B 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
C the following conditions:-
a) Ph.D. degree of the candidate awarded in regular mode
only;
b) Evaluation of the Ph.D. thesis by at least two external
D examiners;
c) Open Ph.D. viva voce of the candidate had been conducted;
d) Candidate has published two research papers from his/her
Ph.D. work out of which at least one must be in a refereed
journal;
E
e) Candidate has made at least two presentations in
conferences/seminars, based on his/her Ph.D. work.
(a) to (e) as above are to be certified by the Vice-Chancellor/
Pro-Vice-Chancellor/Dean (Academic Affairs)/Dean
(University instructions).” 14
F
11. It was argued on behalf of Dr. Merlin that Dr. Jayakumar was
ineligible and could not have been granted exemption from the NET
qualification which was essential under the prevalent 2009/10 UGCR. It
was highlighted that the 2009 Ph.D. Regulations ushered a new rigorous
academic framework for the award of Ph.D. degrees. If one kept this in
G mind, the stipulation that only those candidates who acquired their Ph.D.
in terms of the 2009/10 UGCR were eligible for exemption from taking
the NET – such a stipulation was absolute. In other words, candidates
who had acquired their Ph.D. in terms of the 2009/10 UGCR were the

H 14
Reg. 3, 2016 UGCR.
UNIVERSITY OF KERALA AND ORS. ETC. v. MERLIN J. N. 333
AND ANR. ETC. ETC. [S. RAVINDRA BHAT, J.]

only class of candidates who were exempt from having to qualify the A
NET. Since Dr. Jayakumar did not fall 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
B
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. C
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 D
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 provide any relief to candidates similarly situated
as Dr. Jayakumar as it was at odds with the Central Government’s
directives which had to prevail in terms of the parent enactment.15
Learned senior counsel also relied upon the subsequent judgment in E
Manoj Sharma (supra). It was further argued the 2016 UGCR were
expressly prospective in nature - those possessing Ph.D. qualifications
prior to the cut-off date of 11.07.2009 but seeking to benefit from the
2016 UGCR had to fulfil specific conditions (as mentioned above) which
were absent hitherto. In the same vein, it was highlighted that though F
UGC has the power to frame regulations with retrospective effect (by
Section 26 (3) of the UGC Act) the 2016 UGCR is expressly prospective
and that this court should not, by interpretation, give it retrospective effect,
as is being sought by the appellants. In these circumstances, there could
be no question of Dr. Jayakumar seeking to benefit from the 2016 UGCR
which came into force after his appointment. Having regard to these G
facts, it was urged that this court should desist from interfering with the
concurrent findings of the High Court.

15
University Grants Commission Act, 1956 (hereinafter, “UGC Act”). H
334 SUPREME COURT REPORTS [2022] 13 S.C.R.

A Analysis and Findings
13. From the narration of facts, it is evident that for long, whenever
the UGC introduced regulations pertaining to qualifications for university
teaching staff, exemptions were provided for Ph. D and M. Phil. holders
from the requirement of qualifying in the NET. This is evident from the
B successive changes which UGC introduced in the relevant regulations
dealing with eligibility and qualifications for appointment as Assistant
Professors, Associate Professors, etc. in 1993, 2000, 2002 and 2006.
The 2009 Ph.D. Regulations were the first time that the pedagogic content
of curriculum and manner in which evaluation of thesis/viva voce, etc.
were spelt out. Building on this, the 2009/10 UGCR dealt with the
C qualifications for appointment of teaching staff in universities, and made
a break with the past inasmuch as only those who had earned their
Ph.D. in terms of the 2009 Ph.D. Regulations or were to earn them
under that regime were entitled to the exemption from taking the NET.
14. This meant that a large group of Ph.D. holders (such as Dr.
D Jayakumar in this case) who had been awarded their doctoral degrees
prior to 11.07.2009, i.e., the cut-off date under 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
E 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
F 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
G 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 question of application of
exemption from NET for candidates who obtained Ph.D. under the old
regime (i.e., prior to the coming into the force of the 2009 Ph.D.
Regulations) was considered – specially whether the distinction between
H
UNIVERSITY OF KERALA AND ORS. ETC. v. MERLIN J. N. 335
AND ANR. ETC. ETC. [S. RAVINDRA BHAT, J.]

pre and post 2009/10 UGCR Ph.D. holders amounted to an impermissible A
classification, whereby one set (pre-2009) was denied exemption which
the other set (post 2009) was entitled to.
15. This court in P. Suseela (supra) ruled that since the Central
Government was the final authority under the UGC Act, it had the final
say with regard to how the 2009/10 UGCR were going to operate. It B
was held that the regulations had to be construed in such a manner that
only those acquiring their Ph.D. degree or after 11.07.2009 in terms of
the 2009 Ph.D. Regulations were entitled to the exemption.
16. The facts of this case would reveal that the selection process
was completed in 2012. There is no doubt that at that stage, the 2009 C
Ph.D. Regulations and 2009/10 UGCR were in force. Yet the University
appointed Dr. Jayakumar by applying the existing standards as understood
by it. According to the University, the 2009/10 UGCR was incorporated
in its statute only in 2013. In the opinion of this court, that detail is irrelevant.
What is undeniable is that like Dr. Jayakumar, there are perhaps hundreds
of other Ph.D. candidates who had secured their degrees prior to the D
2009 Ph.D. Regulations and who were, till the 2009/10 UGCR were
brought into force, entitled to claim exemption from NET in every
selection for any teaching vacancy in any university in India. This state
of affairs led the UGC to issue clarifications, which the Central
Government did not agree to. The appellant Dr. Jayakumar fell within E
that category of Ph.D. holders for whom the UGC intended to soften
the rigors of the 2009/10 UGCR. However, lack of approval by the
Central Government led to litigation which culminated in P. Suseela
(supra).
17. P. Suseela (supra) appears facially, to adversely clinch the F
issue with respect to pre-2009 Ph.D. holders. The UGC perhaps realized
the hardship which they had to endure (with many of them even appointed
in various universities on account of the resolution adopted in UGC’s
471st meeting on 12.08.2010), and therefore amended the regulations
once more (2016 UGCR), which read as follows:
G
“The proviso prescribed under Regulation 3.3. J, 4.4. J, 4.4.2,
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 H
336 SUPREME COURT REPORTS [2022] 13 S.C.R.

A 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,
B 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
C of the following conditions…”16 (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, the 2018 UGCR, published on 18.07.2018,
D bifurcated the pre- and post-2009 Ph.D. holders into two groups, and
allowed both exemption from taking the NET, as follows:
“The National Eligibility Test (NET) or an accredited test (State
Level Eligibility Test SLET/SET) shall remain the minimum
eligibility for appointment of Assistant Professor and
E equivalent positions wherever provided in these Regulations.
Further, SLET/SET shall be valid as the minimum eligibility
for direct recruitment to Universities/Colleges/Institutions in
the respective state only:
Provided that candidates who have been awarded a Ph.D.
F Degree in accordance with the University Grants Commission
(Minimum Standards and Procedure for Award of M.Phil./
Ph.D. Degree) Regulation, 2009, or the University Grants
Commission (Minimum Standards and Procedure for Award
of M.Phil./Ph.D. Degree) Regulation,2016, and their
G subsequent amendments from time to time, as the case may
be, shall be exempted from the requirement of the minimum
eligibility condition of NET/SLET/SET for recruitment and
appointment of Assistant Professor or any equivalent position
in any University, College or Institution.
16
H Reg. 3, 2016 UGCR.
UNIVERSITY OF KERALA AND ORS. ETC. v. MERLIN J. N. 337
AND ANR. ETC. ETC. [S. RAVINDRA BHAT, J.]

Provided further that the award of degree to candidates A
registered for the M.Phil. / Ph.D. programme prior to July
11, 2009, shall be governed by the provisions of the then
existing Ordinances / Bye-laws / Regulations of the Institutions
awarding the degree. All such Ph.D. candidates shall be
exempted from the requirement of NET/SLET/SET for
B
recruitment and appointment of Assistant Professor or
equivalent positions in Universities/Colleges/Institutions
subject to the fulfillment of the following conditions…”17
(emphasis supplied)
19. This court did not have the benefit of examining these C
amendments to the regulations in P. Suseela (supra) or Manoj Sharma
(supra). To construe them as applying only prospectively, would give
rise to an absurdity, and defeat the purpose for which the amendment
was promulgated. The manner of interpretation of amendments, where
the language adopted gives clear inference of retrospective application,
was determined by this court in Rafiquennessa v. Lal Bahadur Chetri D
(Dead) Through His Representatives and Ors., which pertained to
the bar on eviction of tenants brought about retrospectively by an
amendment:
“In order to make the statement of the law relating to the
relevant rule of construction which has to be adopted in E
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 F
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.”18
This interpretation has withstood the test of time, and was upheld G
in the decision of Darshan Singh vs. Ram Pal Singh19 which succinctly
stated:
17
Reg. 3.3(I), 2018 UGCR.
18
Rafiquennessa v. Lal Bahadur Chetri (Dead) Through His Representatives and Ors.,
(1964) 6 SCR 876, para 9.
19
Darshan Singh vs. Ram Pal Singh & Ors., 1990 (Supp) 3 SCR 212, para 12. H
338 SUPREME COURT REPORTS [2022] 13 S.C.R.

A “Courts will construe a provision as conferring power to act
retroactively when clear words are used.”
20. Further, in Shyam Sunder v. Ram Kumar20, a Constitution
Bench of this court discussed the scope and ambit of a declaratory law
and observed:
B “Lastly, it was contended on behalf of the Appellants that the
amending Act whereby new Section 15 of the Act has been
substituted is declaratory and, therefore, has retroactive
operation. Ordinarily when an enactment declares the
previous law, it requires to be given retroactive effect. The
C function of a declaratory statute is to supply an omission or
to explain a previous statute and when such an Act is passed,
it comes into effect when the previous enactment was passed.
The legislative power to enact law includes the power to
declare what was the previous law and when such a
declaratory Act is passed, invariably it has been held to be
D retrospective. Mere absence of use of the word ‘declaration’
in an Act explaining what was the law before may not appear
to be a declaratory Act but if the court finds an Act as
declaratory or explanatory, it has to be construed as
retrospective. Conversely where a statute uses the word
E ‘declaratory’, the words so used may not be sufficient to hold
that the statute is a declaratory Act as words may be used in
order to bring into effect new law.”
21. The respondents herein had submitted that it was not the UGC’s
intention to give retrospective effect to the 2016 UGCR, even though
F the UGC had the power to do so under Section 26(3) of the UGC Act. It
was additionally urged that in such circumstances, the court should not
interpret the amendments so as to confer such benefits retrospectively,
especially to pending proceedings.
22. This court is unpersuaded by such contentions. In situations
G 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.21 If on such consideration, it is held by
20
Shyam Sunder v. Ram Kumar (2001) 8 SCC 24, para 39.
21
H G.P. Singh, Principles of Statutory Interpretation (14 th Edn.), Pg. 631.
UNIVERSITY OF KERALA AND ORS. ETC. v. MERLIN J. N. 339
AND ANR. ETC. ETC. [S. RAVINDRA BHAT, J.]

the court that an amendment speaks a language which expressly or by A
clear intendment takes in even pending matters, the court of first instance
as well as the court of appeal must have regard to the intention so
expressed, and the court of appeal may give effect to such a law even
after the judgment of the court of first instance.22
23. When an enactment or an amendment is declaratory, curative B
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.23 where this court, while interpreting an amendment, held that:
C
“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 D
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.” E
24. Likewise, in Zile Singh v State of Haryana24, this court,
quoted from G.P. Singh’s Principles of Statutory Interpretation (9th
Edn.), and applied the relevant rule of construction:
“If a new Act is “to explain’ an earlier Act, it would be without
object unless construed retrospective. An explanatory Act is F
generally passed to supply an obvious omission or to clear
up doubts as to the meaning of the previous Act. It is well
settled that if a statute is curative or merely declaratory of
the previous law retrospective operation is generally
intended...An amending Act may be purely declaratory to clear G
a meaning of a provision of the principal Act which was

22
Noorunissa Begum v. Brij Kishore Sanghi, (2015) 17 SCC 128, para 28.
23
Commissioner of Income Tax, Bhopal vs. Shelly Products, (2003) 5 SCC 461, para
38.
24
Zile Singh v State of Haryana, 2004 (8) SCC 1, para 14. H
340 SUPREME COURT REPORTS [2022] 13 S.C.R.

A already implicit. A clarificatory amendment of this nature will
have retrospective effect.”
25. Another argument raised by the respondent was that this court’s
decision in Manoj Sharma (supra) squarely held against the appellants.
We disagree. In Manoj Sharma (supra), the respondents had obtained
B M.Phil. degrees under distance education programs, which was de-
recognized by the 2009 Ph.D. Regulations. The Madhya Pradesh High
Court held25 that such de-recognition was prospective in nature, and
their M.Phil. degrees were not rendered ineffective, which was upheld
by this court.26 As far as the issue of application of 2009 UGCR was
concerned, the same was restricted to only MPhil degree holders, wherein
C the 2009 UGCR removed the NET exemption granted for M.Phil. degree
holders, and retained it only for Ph.D. holders in accordance with 2009
Ph.D. Regulations. Again, this court was not afforded the opportunity to
analyse the 2016 or 2018 UGCR, as those were not raised before it (the
respondents were unrepresented before this court). Thus, we find limited
D applicability of Manoj Sharma (supra) to the present case.
26. The logic pervading all the versions of the UGCR from 1993-
2018 (as discussed above) to exempt M. Phil./Ph.D. holders from
qualifying in the NET was perhaps premised on the understanding that
such a doctorate in one’s chosen subject, involving years of study, would
E render a greater understanding of the subject compared to most other
candidates taking the NET who have only obtained 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
F application to the post of Assistant Professor, a Ph.D. is required for
applying to the post of Associate Professor onwards. 27 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
G would now have to take the NET in order to teach – which is clearly
25
Manoj Sharma v State of Madhya Pradesh, W.P. (C) No. 3290 of 2012, dated
29.08.2012 [MP HC].
26
State of Madhya Pradesh v. Manoj Sharma, 2018 (3) SCC 329, para 12.
27
See Reg. 4.1, 2018 UGCR, applicable to all disciplines of Arts, Commerce, Humanities,
Education, Law, Social Sciences, Sciences, Languages, Library Science, Physical
H Education, and Journalism & Mass Communication.
UNIVERSITY OF KERALA AND ORS. ETC. v. MERLIN J. N. 341
AND ANR. ETC. ETC. [S. RAVINDRA BHAT, J.]

unwarranted. This court therefore, holds that Dr. Jayakumar’s A
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 accordingly. There will be no
order as to costs. B

Ankit Gyan Appeals allowed.
(Assisted by : Rahul Rathi, LCRA)

C

D

E

F

G

H