Narayana Pai, C.J.
1. The petitioner, who is a Second Division Clerk in the University of Mysore, complains that he had been unlawfully denied promotion to the position of First Division Clerk, which, according to him. should have been extended to him in normal course in the month of April 1966.
2. According to the counter-affidavit filed on behalf of the University, there were only four persons eligible for promotion at that time. -- three by having passed the required departmental test and one by having completed 45 years of age. These four persons were seniors to the petitioner.
3. There were three vacancies. If these three vacancies were filled by promotion of the persons mentioned above, lawfully and without contravening any of the rules of the University, the petitioner could have no grievance. Mr. Rama Jois states that the petitioner is in a position to demonstrate that at least two promotions are illegal -- those of respondent 3 K. S. Narayana Rao and of respondent 4 L. Aswathanarayana Setty. His reasons therefor are the following: According to the rules made by the Chancellor under Section 26(1) of the Mysore University Act. the cadre of First Division Clerks is to be filled by promotion to the extent of 66 2/3 per cent of persons who have passed the University Departmental test -- Advanced Grade, and the Cadre of Second Division Clerks is to be filled to the extent of 66 2/3 per cent by direct recruitment and 33 1/3 per cent by promotion from the cadre of Attenders. Much is etc. The result is that for promotion into the cadre of First Division Clerks, passing of the departmental test is essential, and for entry into Second Division Clerks typing is not a qualification. The 3rd respondent Narayana Rao, mentioned above, was born in December 1920 and is said to have been exempted from taking the departmental test by a resolution of the Syndicate of the University. Aswathanarayana Setty, 4th respondent, was originally recruited as a Typist but transferred to the cadre of Second Division Clerks by virtue of a resolution of the Syndicate.
4. If the rules promulgated by the Chancellor are alone looked into and enforced, neither the third respondent nor the fourth respondent could have reached the position of First Division Clerks, -- the former because he had not passed the departmental test, and the latter because he could not have been regularly recruited as a Second Division Clerk at all, and if he is to be treated as a direct recruit on the date of change of cadre, bis would be junior to the petitioner.
5. The question, therefore, is whether the resolutions of the Syndicate have' legal effect or could be given the legal effect of altering or amending the rules framed by the Chancellor under Section 26 (1) of the Act.
6. Section 26 (1) reads as follows :--
'Appointment to the staff of the University shall be made in accordance with rules made by the Chancellor in consultation with the Syndicate.' The clear effect of the sub-section is that the rule-making authority is the Chancellor and that the function of the Syndicate in that regard is only of a consultative body which the Chancellor should consult before making the rules. Ordinarily or normally, the power of amendment is part of the power of legislation and it is the original legislative body which made the rules that should be regarded as itself having or being vested with the power of amendment or alteration.
7. It is, however, contended that the Syndicate also may deal with the question of qualifications under Clause (j) (iii) of Section 20 of the Act. according to which one of the powers of the Syndicate is-
'to prescribe the number, qualifications and emoluments of all other employees of the University, and to define their duties and conditions of service.' 'Prescribe' is defined in Section 2 (e) to mean 'prescribed under this Act. statutes, Ordinances. Regulations or Rules'.
8. The first argument of Mr. Rama Jois is that there is no power in the Syndicate to make rules when there are rules already made by the Chancellor under Section 26 (1) or to amend or alter or otherwise modify the operation of the rules, if already made by the Chancellor. Secondly, he says that even if some such power is to be read in Clause (i) (iii) of Section 20 of the Act, that power can be exercised only by the process of prescribing which, having regard to the definition, does not comprehend or comprise or refer to a resolution.
9. As already indicated by us, the language of Sub-section (1) of Section 26 of the Act is conclusive on the question of power. It may be that if there are no rules made under the sub-section by the Chancellor, the Syndicate may provide for any contingency or situation by acting under Clause (i) (iii) of Section 20. But if the rules are actually made by the Chancellor, the power of the Syndicate under Clause (i) (iii) of Section 20 is no longer available for being exercised in respect of matters covered by the rules made by the Chancellor. A harmonious construction of the two provisions is possible and is obvious, if one bears in mind the fact that the Chancellor is required to make rules only in consultation with the Syndicate, Hence the statutory necessity of. arming the Syndicate with some effective power under Clause (i) (iii) of Section 20 until the regular legislative power of the Chancellor is exercised under Sub-section (1) of Section 26 in consultation with the Syndicate.
10. In this view, the second argument need not be discussed.
11. We hold therefore that the resolutions of the Syndicate depended upon in support of the validity of the promotions of respondents 3 and 4 cannot be given such legal operation as to do away with the necessity of obeying or complying with the strict terms of the rules made by the Chancellor under Section 26 (1) of the Act. These promotions therefore become illegal and we hold accordingly.
12. We therefore direct that the case of the petitioner for promotion to the position of first Division Clerk be considered as on the date when respondents 3 and 4 were promoted and that if he is found fit and promoted, he be given all benefits consequential thereon.