Holding

A Ph.D. is not a mandatory qualification for the post of Principal; the 2016 AICTE Notification is merely clarificatory and does not retrospectively alter the 2010 AICTE Regulations, so the appointments of the appellants remain valid.

Summary

The case concerned the promotion of seven teachers to the post of Principal in Chhattisgarh polytechnic colleges. Respondent No.1, a senior HOD, claimed that a Ph.D. was an essential qualification for the post under the 2010 AICTE Regulations and sought to quash the promotions, relying on a 2016 AICTE Notification that he argued was retrospectively clarificatory. The High Court accepted his view and set aside the appointments. The Supreme Court examined the wording of the 2010 AICTE Regulations, held that the phrase “or” indicates that a Ph.D. is optional and merely provides a relaxation in experience, and that the 2016 Notification merely restated existing rules without retrospective effect. Consequently, the Court ruled that the appointments were lawful, the High Court judgment was set aside, and the writ petition dismissed.

Issues considered

Is a Ph.D. mandatory for appointment to the post of Principal under the 2010 AICTE Regulations?
Does the 2016 AICTE Notification retrospectively clarify eligibility conditions for the post of Principal?
Can retrospective changes in qualification requirements affect existing appointments and vested rights?
Are the 2014 Chhattisgarh Service Recruitment Rules ultra vires the AICTE Regulations?

Legislation cited

All India Council for Technical Education Act, 1987

Subjects

service lawappointmentprincipalAICTE regulationsPh.D. qualificationclarificatory legislationvested rightsretrospective effectservice recruitment rulesconstitutional lawArticle 16

Judgment

794 [2020]REPORTS
SUPREME COURT 4 S.C.R. 794 [2020] 4 S.C.R.

A GELUS RAM SAHU AND OTHERS
v.
DR. SURENDRA KUMAR SINGH AND OTHERS
(Civil Appeal No. 1667 of 2020)
B FEBRUARY 18, 2020
[S. A. BOBDE, CJI, B. R. GAVAI AND SURYA KANT, JJ.]
Service Law:
Appointment – Post of Principal – On facts, respondent no. 1
C applied for the post of principal along with appellant nos. 1 to 7 –
However, only appellants declared successful – Writ petition by
respondent no. 1 seeking declaration that Ph.D. is an essential
qualification for post of principal at the Polytechnic colleges; sought
quashing of the promotion order since none of the appellants
possessed Ph.D. qualifications as also quashing of 2014 Rules –
D
Allowed by the High Court – On appeal, held: As regards the Ph.D.
qualifications, there is no inclination to read down the rules to omit
the ‘in Engineering’ part and only selectively insist upon a ‘Ph.D’ –
Hence, the only permissible way to read the AICTE criteria would
be to lay emphasis on the phrase “or” and thus, interpret ‘Ph.D in
E Engineering’ as being discretionary upon the adopting institution/
State Government to specify either of the two criteria – Conclusion
by the High Court that as 2016 AICTE Notification was clarificatory,
it was applicable restrospectively which would remove any ambiguity
created by the AICTE Regulations is erroneous – Except for the
title, nothing contained therein indicates that the 2016 AICTE
F
Notification was clarificatory in nature – 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 – There is no retrospective
alteration in the qualification prescribed for the post of Principal –
G 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 – They were also in possession
of one of the eligibility criteria prescribed under the 2010 AICTE
Regulations – Thus, the appellants’ appointments ought to remain
H
794
GELUS RAM SAHU AND OTHERS v. DR. SURENDRA 795
KUMAR SINGH AND OTHERS

undisturbed – Judgment of the High Court is set aside – Pay Scales, A
Service conditions and Qualifications for the Teachers and other
Academic Staff in Technical Institutions (Diploma) Regulations, 2010
– ‘Chhattisgarh Technical Education (Teaching cadre Polytechnic)
(Gazetted) Service Recruitment Rules, 2014.
Appointment – Illegal appointment from inception – Effect of B
– 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. C

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 D
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 E

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 F
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
G
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
H
796 SUPREME COURT REPORTS [2020] 4 S.C.R.

A 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
B 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
C 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
D 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]
E 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
F 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
G 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
H
GELUS RAM SAHU AND OTHERS v. DR. SURENDRA 797
KUMAR SINGH AND OTHERS

equivalent position. Thus, a candidate without Ph.D would A
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,
B
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 C
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
D
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-D-
H; 808-F-H]
Does the 2016 AICTE Notification retrospectively ‘clarify’ E
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 F
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 G
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

H
798 SUPREME COURT REPORTS [2020] 4 S.C.R.

A 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.
B 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
C 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
D 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]
E 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
F 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]
G
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]

H
GELUS RAM SAHU AND OTHERS v. DR. SURENDRA 799
KUMAR SINGH AND OTHERS

Whether retrospective changes in qualificatory A
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 B
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. C
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 D
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 E
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 F
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] G
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
H
800 SUPREME COURT REPORTS [2020] 4 S.C.R.

A 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]
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]
C 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.
D
Case Law Reference
(2009) 3 KLJ 563 referred to Para 6
[2007] 2 SCR 289 referred to Para 25
[1987] 1 SCR 584 referred to Para 30
E
(1995) 2 Suppl. SCC 246 referred to Para 30
(1994) 1 Suppl. SCC 44 referred to Para 30
[1997] 3 Suppl. SCR 63 referred to Para 32

F CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1667
of 2020.
From the Judgment and Order dated 28.09.2016 of the High Court
of Chhattisgarh, Bilaspur in Writ Petition (S) No. 5617 of 2014.
With
G
Civil Appeal No. 1668 of 2020.
Ajit Kumar Sinha, J.C. Gupta, S.P. Singh, Sr. Advs., Pranav
Sachdeva, Ms. Neha Rathi, Sudesh Kumar Singh, Jatin Bhardwaj,
Ashwarya Sinha, Ivan, Alok K Singh, Mrs. Priyanka Sinha, Ms. Shubhi
H
GELUS RAM SAHU AND OTHERS v. DR. SURENDRA 801
KUMAR SINGH AND OTHERS

Sharma, Vikrant Singh Bais, Tahul Parekah, Raunak Parekh, B.K. Pal, A
Harish Pandey, Dr. Harsh Pathak, Farrukh Rasheed, Siddharth Shukla,
Mohit Choubey, Advs. for the appearing parties.
The following Judgment of the Court was delivered:
JUDGMENT
B
1. 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 Ph.D.
being an essential qualification for the post of Principal at the Polytechnic C
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 D
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 Principal-in-charge. Having completed three years of
service as HOD on 01.01.2012, Respondent No. 1 applied for the post
E
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. F
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 conditions and
Qualifications for the Teachers and other Academic Staff in Technical
Institutions (Diploma) Regulations, 2010’ (hereinafter, “2010 AICTE G
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 H
802 SUPREME COURT REPORTS [2020] 4 S.C.R.

A Technical Education (Teaching cadre-Polytechnic) (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.
B
5. Respondent No. 1 butressed his superior claim highlighting that
he had the requisite three-year 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
C irregularities in the selection process, including the below-specification
ACR gradings possessed by certain candidates. 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
D 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
E 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
F 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. Consequently, the High Court
G 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,
1
H (2009) 3 KLJ 563
GELUS RAM SAHU AND OTHERS v. DR. SURENDRA 803
KUMAR SINGH AND OTHERS

the High Court quashed the order promoting Appellant Nos. 1 to 7 to the A
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 B
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 C
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 Chhattisgarh, the
appellants vociferously sought intervention of this Court. They further D
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.
E
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 F
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 G
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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804 SUPREME COURT REPORTS [2020] 4 S.C.R.

A 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
B
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
C 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,
D 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?
E (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
F in a tabulated form, relevant parts of which are extracted below:
Post Qualifications Experience
PRINCIPAL
Qualification as above for the Minimum of 10 years relevant
post of Head of Department experience in
and Ph.D in Engineering teaching/research/industry out of
OR which at least 3 years shall be at
G Qualification as above for the the level of head of department or
post of Head of Department equivalent.

In case of Architecture,
professiona l practice of 10 years
as certified by the Council of
Architecture shall also be
H considered valid.”
GELUS RAM SAHU AND OTHERS v. DR. SURENDRA 805
KUMAR SINGH AND OTHERS

14. Since the above reproduced clause enables a ‘Head of A
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:
Post Qualifications Experience B
Head of De partme nt
Enginee ring / Technology Bachelor’s and Masters degree of Minimum of 10 years relevant
appropriate branch in experience in teaching /
Engineering / Technology with research / industry.
First Class or equivalent either
Bachelor’s or Master’s level

OR C

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
Minimum of 5 years relevant D
Ph. D or equivalent, in experience in teaching /
appropriate discipline in research / industry
Engineering / Technology
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
E
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 F
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. G
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 H
806 SUPREME COURT REPORTS [2020] 4 S.C.R.

A 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
B
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
C 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
interpretation and legislation. Hence, the only permissible way to read
D 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
E 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
F 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
G 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.
19. The afore-stated advantage is only further exacerbated under
the 2014 Chhattisgarh Rules, where those without a Ph.D need 15 years’
H 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:-
GELUS RAM SAHU AND OTHERS v. DR. SURENDRA 807
KUMAR SINGH AND OTHERS

Sl. Name of posts Minimum age Maximum age Prescribed educational Remarks A
No. included in limit limit education
service
1 2 3 4 5 6
1 Principal - 58 years (1) Bachelor and Master
degree of appropriate B
branch in Engineering/
Technology from a
recognized
University/Institute with
First Class or equivalent at
either Bachelor’s or C
Master’s level.

(2) Minimum of 15 years
relevant experience in
teaching/research/ industry
out of which at least 03 D
years shall be at the level of
head of department.
OR
(1) Bachelor and Master
degree of appropriate
branch of Engineering/ E
Technology from a
recognized University
/Institute with First Class or
equivalent at either
Bachelor’s or Master’s level
and Ph.D or equivalent in F
appropriate discipline in
Engineering/ Technology
from a recognized
University/Institute.
(2) Minimum of 10 years
relevant experience in G
teaching/research/ industry
out of which at least 03
years shall be at the level of
head of department or
equivalent.
H
808 SUPREME COURT REPORTS [2020] 4 S.C.R.

A HEAD OF DEPARTMENT
1 Civil/Mechanical/Electrical/Electronics/ Information - 58 Bachelor’s and Minimum
Technology/ years Master’s degree of of 10
Instrumentation/Metallurgy/Mining/Chemical/Computer appropriate branch years
Science and Engineering in Engineering/ relevant
Technology from a experience
recognized in
B University/Institute teaching/
with First Class or research/
equivalent at either industry.
Bachelor’s or
Master’s level.

OR
C Bachelor’s and
Master’s degree of Minimum
appropriate branch of 05
in Engineering/ years
Technology from a relevant
recognized experience
University /Institute in
D with First Class or teaching/
equivalent at either
Bachelor’s or research/
Master’s level and industry.
Ph.D or equivalent
in appropriate
disc ipline in
Engineering/
E Technology from a
recognized
University/Institute.

xxx xxx xxx

F 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
G
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’?

H
GELUS RAM SAHU AND OTHERS v. DR. SURENDRA 809
KUMAR SINGH AND OTHERS

21. The next question which logically arises is whether the A
notification issued by the AICTE in 2016 changes the eligibility conditions
which are explicit in the 2010 AICTE Regulations, as discussed above.
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 B
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 relied-upon Issue No. 64 reads as under:
C
SI. Issue Clarification
No.
64. Whether Ph.D is an essential qualification for the Post of Yes
Principal in Diploma Level Technical Institutions.

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, D
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. Issue Clarification
No.
48. Whether a faculty of Engineering & Technology with Yes, provided the person also E
minimum 10 years relevant experience in has an administrative experience
teaching/research out of which 3 years is in the same of at least 3 years.
grade Pay (i.e. Rs.9000) at par with HOD is eligible for
the post of Principa l in Polytechnic.

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 F
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. G
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
H
810 SUPREME COURT REPORTS [2020] 4 S.C.R.

A 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 1-4-2003.
B 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 1-4-2003
and therefore, would apply only to future periods and not to
any period prior to 1-4-2003 or to any assessment year prior
to Assessment Year 2004-2005. It is the well-settled legal
C 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 declaratory and
clarificatory provision. If there is no such clear statement in
the statute itself, the amendment will not be considered to be
D 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
E 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
F 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
G 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.
2
H (2007) 9 SCC 665.
GELUS RAM SAHU AND OTHERS v. DR. SURENDRA 811
KUMAR SINGH AND OTHERS

27. Even if the 2016 AICTE Notification was clarificatory, it must A
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
B
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 C
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 D
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.
30. This Court in a range of decisions including TR Kapur v. E
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.
F
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 G
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
3
1986 Supp SCC 584.
4
1995 Supp (2) SCC 246.
5
H
1994 Supp (1) SCC 44.
6
(1997) 6 SCC 623
812 SUPREME COURT REPORTS [2020] 4 S.C.R.

A 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
B 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
C to be altered with effect from an anterior date and thereby
taking 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
D 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,
E 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
F 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
G
material. They have also been found in possession of one of the eligibility
criteria prescribed under the 2010 AICTE Regulations. We are, thus, of
the considered opinion that the appellants’ appointments ought to remain
undisturbed in any eventuality.

H
GELUS RAM SAHU AND OTHERS v. DR. SURENDRA 813
KUMAR SINGH AND OTHERS

34. This takes us to the last objection taken by the High Court A
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 rule-making authority to exercise its powers under
B
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. C
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.

Nidhi Jain Appeals allowed
D

E

F

G

H