Supreme Court on Retrospective Application of Prospective Amendments

 

INTRODUCTION

 

On today’s show, we will discuss the case of Puneet Sharma and Others v. Himachal Pradesh State Electricity Board Ltd. and Another, 2021 SCC OnLine SC 291. In this case, the Hon’ble Supreme Court discussed whether clarificatory amendments can operate retrospectively or not. It is pertinent to note that we had discussed this case yesterday as well to understand the difference between a Degree and a Diploma.

 

FACTS

 

The brief facts of the case are that certain posts of Junior Engineer (Electrical) were advertised by HP State Electricity Board in the year 2018, for which minimum essential qualification was prescribed under the relevant recruitment rules. Basically, earlier the minimum essential qualification was holding a Diploma in the relevant discipline. Thereafter during the pendency of the recruitment process, on 03.06.2020, an amendment was brought by HPSEB in the recruitment rules inserting a provision enabling candidates with certain other qualification to participate in the recruitment process. The other qualification holders that were also made eligible to participate were persons who had completed an AMIE course that is equivalent to B.Tech Degree. Thus, in essence, the amendment expanded the number of candidates who could apply for the post of Junior Engineer. It was contended that such retrospective change in the qualifications is arbitrary and impermissible. In order to understand this conundrum further, let us know the observations of the Court in the present case.

 

OBSERVATIONS

 

Firstly, according to the Court, despite their enforcement prospectively, clarificatory amendments operative retroactively. This legal position has been enunciated in plethora of cases. In the case of Zile Singh v. State of Haryana, (2004) 8 SCC 1, it was observed that “it is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the Rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations.”

 

Secondly, the Court perused the Latin Maxim, “nova constitutio futuris formam imponere debet, non praeteritis” which means that a new law does not regulate what was in the past but regulates what is to follow. It observed that usually the words of a statute have prospective application only and there is a presumption against retrospective operation, but such principle is not applicable to declaratory statutes where a law is made to explain an earlier law. Such explanatory acts or laws are passed to fill gaps, clear doubts as to meaning of the earlier law etc.

 

Thirdly, the Court opined that “if a statute is curative or merely declaratory of the previous law, retrospective operation is generally intended” and it cited the case of Vijay v. State of Maharashtra, (2006) 6 SCC 289, wherein it was held that: -

 

“It is now well settled that when a literal reading of the provision giving retrospective effect does not produce absurdity or anomaly, the same would not be construed to be only prospective. The negation is not a rigid rule and varies with the intention and purport of the legislature, but to apply it in such a case is a doctrine of fairness. When a law is enacted for the benefit of the community as a whole, even in the absence of a provision, the statute may be held to be retrospective in nature.”

 

Fourthly, another case of Manish Kumar v. Union of India, (2019) 8 SCC 416 to buttress the concept of retrospective operation in declaratory statutes or laws. It stated that: -

 

“Declaratory, clarificatory or curative Statutes are allowed to hold sway in the past. The very nature of the said laws involve the aspect of public interest which requires sovereign Legislature to remove defects, clarify aspects which create doubt. The declaratory law again has the effect of the legislative intention being made clear. It may not be apposite in the case of these Statutes to paint them with the taint of retrospectivity.”

 

Therefore, it was held by the Court that though the Amending Rules were brought into force prospectively, nevertheless, being clarificatory, they apply to the recruitment in a retrospective manner.

 

Those were the observations of the Court. So, what are my concluding remarks?

 

CONCLUSION

 

Retrospective operation of laws is a tricky issue wherein the Courts often look at the substance of the law rather than its form. If the substance of the law suggests that the law is merely clarificatory or declaratory, then Courts often take a view in favour of retrospective applicability. In the present case, the rules were amended to incorporate a wider range of qualifications. Such additional qualifications were not in derogation of the earlier qualifications but were merely meant to supplement them. Such an approach enables the rule-makers to incorporate a broader candidature in respect of the advertised posts, without adversely affecting the candidature of the existing candidates who had applied.