Aloke Chakrabarti, J.
1. Therelevant facts stated in the writpetition are that Higher EducationService Commission by itsadvertisement No. 26/98 dated15.8.1998 advertised twenty two postsof Lecturer in Commerce mentioningthat all applicants should possessthe qualification as prescribed by theUniversity Grants Commission and asper the qualification as prescribed bythe State Universities Act. 1973 andthe Statutes and Ordinances framedthereunder. Regulation 3 of the U. P.Higher Education ServiceCommission (Procedure for Selectionof Teachers) Regulations, 1983,provides that the minimum qualifications for appointment as a teacher shall be as given in the Statute, referred to in Section 50 of the U. P. State Universities Act. 1973 (hereinafter referred to as said Act).
2. University GrantsCommission by its notification dated5.10.1991 framed Regulations layingdown minimum qualifications for thepost of Lecturer in variousUniversities and their affiliatedcolleges. According to the saidnotification, the minimum requisiteacademic qualifications for the postof Lecturer is good academic recordwith atleast 55% marks at theMaster's Degree level in the relevantsubject from an Indian University orequivalent degree from a foreignUniversity. However, in the saidnotification, the expression 'goodacademic record' was not defined.
3. When the petitioner approached the Commission for making application against the said advertisement, along with application form a Brochure had also been issued wherein instructions and minimum requisite qualifications were mentioned. Item No. 4 of the said Brochure laid down the minimum requisite qualification for the post of Lecturer as 55% marks at the Post Graduate level along with good academic record. The expression 'good academic record' was defined in para 4 (5) of the said Brochure as 55% marks at the graduation level along with IInd division Intermediate degree or 50% marks separately at the graduation and Intermediate level. Thus, the Commission was requiring some thing more than what was required by the University Grants Commission.
4. According to the definition in the first Statute of Allahabad University and according to the definition given under the University Grants Commission, the petitioner has a good academic record. But, according to the definition given in the Brochure issued by the Commission, the petitioner is ineligible. Therefore, relying on the law as referred to in the writ petition as also the law as explained by theApex Court in the case of University of Delhi v. Raj Singh, AIR 1995 SC 336, the petitioner has contended that such alteration of minimum qualification is not permissible and the petitioner is entitled to said post in view of her qualification. Making appropriate prayer, the writ petition was filed seeking petitioner's consideration as a candidate in the said post of Lecturer in Commerce.
5. U. P. Higher Education Service Commission filed counter-affidavit as also a supplementary affidavit.
6. Heard Mr. R.N. Singh, learned counsel for petitioner and Mr. A.S. Diwekar as also Mr. Nripendra Misra, learned counsel for respondents.
7. Learned counsel for the petitioner contended that the advertisement against which the petitioner offered herself as a candidate required 'good academic record' and not 'consistently good academic record'. Notification issued under the University Grants Commission which was prevailing on the date of issue also required good academic record with atleast 55% marks at the Master's Degree level. Law required the qualification prescribed by the University Grants Commission or by the U. P. State Universities Act, 1973 or the Statutes or Regulations framed thereunder to be applicable. The Higher Education Service Commission has no power to fix qualifications or to alter the minimum qualifications required by the University Grants Commission or U. P. State Universities Act.
8. It has also been contended on behalf of the petitioner that in such circumstances though short listing is permissible but minimum qualifications can not be altered and in support of such contention, reference was made to the case of Raj Singh (supra). Further reference was made to Annexure-1 to the counter-affidavit. It was a letter dated 7.11.1997 by the Secretary, Higher Education, Government of Uttar Pradesh to the Vice Chancellors of all the State Universities relating to qualifications required forappointment in the post of Lecturer in Universities and in Degree Colleges, in the said letter for the purpose of consistency, request was made to incorporate in all the Regulations the minimum qualification for the posts of Lecturer to be good academic record with atleast 55% marks in Master's Degree level. Reference was also made to para 13 of the counter-affidavit stating that 'good academic record' is same as 'consistently good academic record'. Learned counsel for petitioner has referred to Statute 11.01 of first Statutes of University of Allahabad showing prescription of qualifications as 55% marks in M.A. and good academic record. Therefore, it has been contended on behalf of the petitioner that when advertisement itself stated the qualifications prescribed by the Universities and University Grants Commission and in both the cases qualification is same and the petitioner is having such qualification, her candidature could not be refused to be considered.
9. Learned counsel for Higher Education Service Commission contended that the University Grants Commission Act provides the power to the Commission. It has been contended that First Statutes of all the Universities of Uttar Pradesh are having two separate parts for teachers in University and for teachers in affiliated colleges. By way of example, reference was made to the first Statute of Agra University and particularly Statute 11.01 and 11.13 thereof. Moreover, it was contended that the Executive Council effected the alteration and as Executive Council is to deal with University teachers, it can be reasonably concluded that the Executive Council was not dealing with the provision relating to affiliated college teachers. It has thus been contended that though they form parts of the same subordinate legislation but when amendments are by Executive Council or Chancellor and the original provisions are by the Government, law decided in the case of Gauri Shankar Gaur v. State of U. P., AIR 1994 SC 169, will apply andamendment of Statute 11.01 in the first Statutes of Agra University will not affect the present case as the appointment is for affiliated colleges and governed by Statute 11.13.
10. After considering the aforesaid contentions, it appears that advertisement prescribed that qualifications for the post of Lecturer is to be same as prescribed by the University Grants Commission or under the State Universities Act or Statutes and Regulations framed thereunder. Statutes have been framed for different Universities in the State. Learned counsel for both sides agreed that similar provisions are there in ali such Statutes, providing for qualification of Lecturers. By way of example provision of Statutes of Agra University have been referred by both sides for clarifying their respective contentions. There Statute 11.01 in Part I and Statute 11.13 in Part II of Chapter XI contains relevant provisions. Sub-clause (1) of Statute 11.01, dealing with qualification for teachers in the University, originally required minimum qualification as 55% in Master's degree and consistently good academic record. Sub-clause (5) of Statute 11.01 clarified 'consistently good academic record'. Statute 11.13, dealing with qualification for teachers in affiliated colleges, also required 55% in Master's degree and consistently good academic record and in sub-clause (5) thereof explained 'consistently good academic record' by reference to sub-clauses (5) of Statute 11.01.
11. Admittedly Statute 11.01 has been amended on 24.11.1994. By such amendment, qualification for post of Lecturer has been prescribed as 55% marks in Master's degree level and good academic record. In clause (2) of amended Statute 11.01 'good academic record' has been explained as candidates not having Ph.D. but having high second class in Master's degree and second class in graduation or second class in Master's degree and first class in graduation. The Higher Education Service Commission is not empowered to fix or alter minimum qualification for Lecturer and.therefore, the prescription byBrochure supplied along withapplication form could not alter theposition already existing. Thepetitioner when was having requisitequalification as required byadvertisement and law, hercandidature could not be refused tobe considered. The contention of theHigher Education ServiceCommission in this respect, as madein the counter-affidavit, is that the'good academic record' is same as'consistently good academic record'.Moreover, in paragraph 13 of thecounter-affidavit, the Commission hasstated that Universities are solelyauthorised to define good academicrecords. Therefore, there is no reasonto treat the qualification prescribedby the U. P. Higher Education ServiceCommission as required one in thepresent case.
12. With regard to contention that clause (5) of Statute 11.13 adopted provision in Statute 11.01 (5) only by reference and, therefore, amendment on 24.11.1994 in Statute 11,01 will not affect Statute 11.13, we have considered the law. This aspect has been decided in various cases. Most of such cases considered such incorporation of a provision of one Statute into another Statute and taw has been discussed in the said background. While considering Legislation by incorporation, it was held that incorporated provisions would become part and parcel of the later fresh Statute as if it is written by pen in ink or printed bodily therein as part of the later Statute and became an integral scheme of that Act. The underlined principle for such purpose has been considered by the Apex Court in the case of Bolani Ores Ltd. v. State of Orissa, AIR 1975 SC 17. In the said case, consideration was Bihar and Orissa Motor Vehicles Taxation Act and Mysore Motor Vehicles Taxation Act, 1957, adopted the definition of 'Motor Vehicles' contained in Motor Vehicles Act. 1914 and subsequently amended in the year 1939. It was held that the intention of the Parliament for modifying the Motor Vehicles Act has no relevance in determining the intention of the said State Legislaturein a Taxation Act. With regard to case of legislation by reference, law has been considered by the Apex Court in various cases and in the case of Gauri Shankar Gaur (supra) it has been held as follows :
'If a later Act merely makes a reference to the earlier Act or existing law, it is only by way of reference and all amendments, repeals, new law subsequently made will have effect unless its operation is saved by Section 8(1) of the General Clauses Act or void under Article 254 of the Constitution.'
13. In the present, facts, the consideration is in respect of two provisions of the same subordinate Legislation relating to prescription as regards qualifications of Lecturer in University and its affiliated colleges. Qualification has been mentioned in the part dealing with Lecturers in Universities and in the subsequent part dealing with the Lecturers in affiliated colleges. The earlier provision has been adopted by reference. Admittedly, there is a change in the original provision prescribing qualifications as contained in the provision dealing with Lecturers in University. In such background, in view of law as discussed herein above, we are of the opinion that amendment in provision dealing with Lecturers in University will also apply in respect of provision dealing with Lecturers in affiliated colleges. Our this view is fortified as admittedly the concerned authorities were expressing requirement of consistency in respect of qualifications of Lecturer and in this connection reference may be made to the letter of Secretary of State of Uttar Pradesh dated 7.11.1997 at Annexure-1 to the counter-affidavit.
14. We are also of the opinion that when advertisement referred to good academic record and not consistently good academic record, the indication therefrom is clear.
15. In view of aforesaid position, we hold that the petitioner is entitled to be considered as a candidate for the post of Lecturer in response toadvertisement at Annexure-1 to the writ petition and, therefore, the writ petition is allowed to the aforesaid extent.