‘Clarification can’t rewrite law’: HC quashes PSPCL order altering assistant engineers’ seniority

Nearly a decade after the seniority of Punjab State Power Corporation Limited (PSPCL) employees in the cadre of Assistant Engineers was recast retrospectively, the Punjab and Haryana High Court has quashed the order. The Bench made it clear that PSPCL could not retrospectively alter the seniority of its Assistant Engineers by terming a substantive change in promotion eligibility as a mere “clarification.”

Allowing a bunch of petitions, Justice Harpreet Singh Brar categorically held that “the so-called clarification” was in substance “a substantive amendment and cannot be applied retrospectively to recast seniority of the petitioners.”

‘Clarification’ cannot impose unanticipated burden

The matter was placed before Justice Brar after the petitioners — Assistant Engineers (Electrical) — contended that the PSPCL, vide office order dated February 9, 2016, inserted a “clarificatory note” in Regulation 10.7 of the Punjab State Electricity Board Services of Engineers (Electrical) Regulations, 1965. The note stated that the mandatory three-year service requirement for promotion from Junior Engineer to Assistant Engineer must be counted “from the date of declaration of AMIE results” rather than the date of initial appointment.

Justice Brar observed that PSPCL, prior to the insertion of the note, had consistently interpreted the regulation to mean that service before or after acquiring the AMIE degree was to be counted alike. The framers of Regulation 10.7 deliberately employed the word ‘and’ who completed three years of service” rather than ‘with’ while linking the two qualifications of degree and experience. “The language of the regulation does not indicate that the requisite three years of service must necessarily be completed after obtaining the AMIE/Degree,” the Bench observed.

Holding that the new note altered the settled interpretation, Justice Brar added: “The so-called clarification has, in effect, substantively altered the scope of the original regulation by mandating that the requisite three years of service for promotion be reckoned only from the date of declaration of AMIE result, rather than from the date of initial appointment. The Supreme Court has categorically held that a clarification cannot impose an unanticipated burden or deprive any party of an anticipated benefit.”

Background of the dispute

The petitioners were appointed as Junior Engineers (Electrical) in May 2010 and subsequently acquired their AMIE qualification between March 2013 and March 2014. Relying on the then prevailing interpretation of Regulation 10.7, they were promoted to the post of Assistant Engineer (Electrical) on June 30, 2014, after completing three years of service and obtaining the requisite qualification.

They were also assigned seniority numbers and confirmed after probation. However, the February 9, 2016, office order and a subsequent circular dated March 3, 2016, as well as office order dated July 5, 2016, retrospectively recast the seniority list, pushing them down on the ground that the service period should be counted only after the AMIE result.

This prompted the petitioners to move the high court under Article 226 of the Constitution, seeking quashing of the impugned orders and a direction to restore their seniority as it stood prior to the 2016 circular. The petitioners were represented by senior counsel Amit Jhanji and advocates Kapil Kakkar, Mayank Mathur, Eliza Gupta and Shivam Kapila

‘Not a clarification but an amendment’

Justice Brar asserted that PSPCL itself, in its written statement, admitted that the regulations had been “amended” through the February 2016 order. Rejecting PSPCL’s contention, Justice Brar asserted: “The mere description of a provision as a ‘clarification’ does not bind the court. It is incumbent upon the court to examine the true nature of the amendment and determine whether it is genuinely clarificatory or declaratory, or whether it is, in fact, a substantive amendment altering the law, which can only operate prospectively.”

Justice Brar added there was neither ambiguity nor vagueness in the pre-amended Regulation 10.7. The provision was “consistently understood and applied” by the corporation in a uniform manner. “The subsequent ‘clarificatory’ insertion effectively withdrew vested rights that had already accrued to the petitioners.

Conclusion

Declaring the 2016 amendment to be substantive in nature, Justice Brar ruled that it could not operate retrospectively. The court consequently quashed the office order dated July 5, 2016, and the circular dated March 3, 2016, to the extent they sought to retrospectively recast the petitioners’ seniority.

“While the respondent-corporation has the competence to amend its service regulations, the amendment to Regulation 10.7 by way of inserted clarificatory note shall operate only prospectively. The respondents are directed to determine seniority of the petitioners accordingly.”