Ram Deen Maurya vs State Of U.P.& Ors

Dr. Ram Deen Maurya ..........Appellant

Versus

State of U.P. & Ors. ........Respondents

WITH C.A. No........../2009 @ S.L.P.(C) No.11423/2008 & Cont. Pet. No.90/2008 in S.L.P.(C) No.22330/2007

JUDGMENT

H.L. DATTU, J.

Leave granted in these special leave petitions.

1) In these appeals, the appellants question the correctness or otherwise

of the judgment and order passed by the High Court in Civil Misc.

Writ Petition No.5014 of 2006 dated 04.10.2007. By the impugned

order, the Court, while allowing the writ petition, has quashed the

order passed by the State Government dated 09.01.2006, wherein and

whereunder the State Government had granted permission for transfer

1 of petitioner - Dr. Ram Deen Maurya from A.P.N. College, Basti to

D.A.V. Post Graduate College, Lucknow, to the post which had

fallen vacant due to the retirement of Dr. Ram Autar Singh.

2) Case of the petitioner - Dr. Ram Deen Maurya :- Petitioner is

working as a Lecturer in A.P.N. Post Graduate College, Basti in the

Department of Economics. On 30.06.2002, a post of a Reader fell

vacant in the Department of Economics due to the retirement of Dr.

Ram Autar Singh in D.A.V. Post Graduate College, Lucknow. The

petitioner wanted to be transferred from A.P.N. Post Graduate

College, Basti to D.A.V. Post Graduate College, Lucknow to the

aforesaid vacant post. Therefore, petitioner on 12.03.2005 applied

for No Objection Certificate ( `N.O.C.' for short) before the

management of D.A.V. Post Graduate College for the transfer to the

said vacant post. By a Resolution dated 04.04.2005, the management

of D.A.V. College unanimously decided in favour of the petitioner for

the issuance of NOC and accordingly issued the NOC in favour of the

petitioner on 03.05.2005 for the said transfer. Petitioner on

05.05.2005 applied for the issuance of NOC in his parent College viz.

A.P.N. College for transfer to D.A.V. Post Graduate College. The

authorized Controller of the A.P.N. College considered the

2 application of the petitioner and issued NOC for the said transfer on

30.05.2005. The Principal of A.P.N. College on 31.05.2005, sent the

application of the petitioner to the Director of Education, (Higher

Education), Uttar Pradesh for its consideration and recommendation

as provided in the Uttar Pradesh Aided College Transfer of Teachers

Rules, 2005.

3) Case of Dr. Madhu Tandon - Respondent No.5 : - On 24.10.2004, she

had made an application for issuance of NOC with regard to her

transfer to D.A.V. Post Graduate College before the management of

her parent institution, viz. Prayag Mahila Vidyapeeth College,

Allahabad. In this regard, NOC was issued by the management of

P.M.V. College in her favour for the said transfer on 21.12.2004. Dr.

Madhu Tandan, then made an application before the Management of

D.A.V. Post Graduate College, for grant of NOC for her transfer to

their institution. The said application was considered and a resolution

was passed by the Committee of Management of D.A.V. Post

Graduate College in the meeting held on 04.04.2005. Based on the

aforesaid resolution, the manager of D.A.V. Post Graduate College

issued NOC on 28.04.2005. After getting NOC from both the

Colleges, Dr. Madhu Tandon submitted her application to the

3 Director of Education, seeking her transfer from her Parent College to

D.A.V. Post Graduate College.

4) The Director of Education (Higher Education), duly processed the

said application and forwarded his recommendation to the Secretary,

Allahabad Education Department, Government of U.P. on 17.06.2005

for transfer of Dr. Madhu Tandon from Prayag Mahila Vidyapeeth

Degree College, Allahabad to DAV Post Graduate College, Lucknow,

though the transfer application of Dr. Ram Deen Maurya was also

available in his office.

5) It is stated that the petitioner had approached the Director of

Education on 23.06.2005 to enquire about his transfer application and

it appears that he was informed that his transfer application is not

available in their records. It is further stated, that, the petitioner gave

an application to the Joint Secretary, Education Department along

with the Photostat copy of the application submitted before the

Director of Education (Higher Education). It is further stated, that,

on 24.06.2005, the petitioner filed a representation to the Secretary

Higher Education, Government of U.P. and also before the Director

of Education, inter alia stating that he had also made an application

for the transfer to D.A.V. Post Graduate College and, however,

4 without considering his application, only the application filled by Dr.

Madhu Tandon has been recommended to the Secretary Higher

Education for transfer. It is also stated in the representation that only

his name had been approved by the Management Committee of DAV

Post Graduate College for the said post but the Director of Education

has failed to recommend his case for transfer. It is also stated that in

response to the query made by the Secretary, Education Department,

the Director of Education by his letter dated 11.07.2005 had informed

the Secretary for Higher Education, that the name of Dr. Madhu

Tandon has already been recommended by the Directorate on

17.06.2005 for the transfer to the vacant post due to retirement of Dr.

Ram Avatar Singh. It is also clarified that the management of DAV

Post Graduate College, Lucknow has given No Objection Certificate

to both Dr. Madhu Tandon and Dr. Ram Deen Maurya, but the

transfer application of Dr. Madhu Tandon was received earlier than

Dr. Ram Deen Maurya and, therefore, the recommendation for

transfer of Dr. Madhu Tandon has been sent to the State Government

and due to non-availability of the post, the application of Dr. Ram

Deen Maurya is not considered and recommended.

5

6) The Joint Secretary, Higher Education, after considering the No

Objection Certificates issued, one in favour of Dr. Madhu Tandon

and another in favour of Dr. Ram Deen Maurya for the transfer on the

same post which fell vacant on the retirement of Dr. Ram Autar

Singh on 30.06.2002 sought clarification from Manager D.A.V. Post

Graduate College, Lucknow, vide letter dated 09.09.2005, to clarify

whose application should be considered for the transfer to the vacant

post, which has fallen vacant on the retirement of Dr. Ram Autar

Singh. In response to the clarification so sought, the Manager of

DAV Post Graduate College, Lucknow, has informed the Secretary,

Education Department that the NOC given in favour of Dr. Ram Deen

Maurya should be treated as valid NOC for the purpose of transfer to

the vacant post and the transfer order may be issued to Dr. Ram Deen

Maurya to join the vacant post in the Department of Economics in

D.A.V. Post Graduate College.

7) The Director of Education by his letter dated 20.09.2005 sought

clarification from the President of the Committee of Management of

DAV Post Graduate College, as to out of two No objection

certificates issued by them to two applicants, which No Objection

Certificate should be accepted by him to make his recommendation to

6 the State Government for transfer of the applicants to their institution.

In response to this letter, the President of the Committee of

Management, vide his letter dated 20.09.2005 has informed the

Director of Education that the No Objection Certificate issued to Dr.

Madhu Tandon is one which is issued at the earliest point of time and,

therefore, the same should be accepted for the purpose of transfer.

8) To add to this confusion, the Manager of DAV Post Graduate

College, vide his letter dated 27.10.2005 has informed the Secretary

to the Education Department that sanction has been granted by

Regional Higher Education Officer on 25.10.2005 for the post which

has fallen vacant due to retirement of Dr. Ram Autar Singh and

requested him to transfer Dr. Ram Deen Maurya to that post.

9) Case of DAV Post Graduate College, Lucknow:- Dr. Madhu Tandon

on 26.02.2005 submitted an application for issuance of NOC for her

transfer to the said College to the vacant post in view of the

retirement of Dr. Ram Autar Singh. Dr. Ram Deen Maurya also

submitted an application on 12.03.2005 for the very same purpose.

Accordingly, a resolution was passed on 04.04.2005 by the

Committee of Management with regard to issue of NOC to the

applicants. It is further stated, that the Committee took a unanimous

7 decision that it would have no objection if Dr. Ram Deen Maurya is

transferred to the vacant post of teacher in the Economics Department

by the State Government and, whereas, in respect of Dr. Madhu

Tandon, the Committee took the decision that the Committee would

have no objection, if Dr. Tandon is transferred by the State

Government in the absence of sanction of post as per Rules. It is also

stated that on 28.04.2005, the Committee of Management of the

College issued a NOC in favour of Dr. Madhu Tandon and, on

03.05.2005 another NOC was issued in favour of Dr. Ram Deen

Maurya. It is also their case, that the President, and the Deputy

Manager of Committee of Management, issued a false certificate that

no resolution recommending the name of Dr. Ram Deen Maurya for

transfer was passed on 23.07.2005. It is also stated, that, the Joint

Secretary, Education Department had sought clarification from the

Manager, D.A.V. Post Graduate College, to clarify as to which of the

two No Objection Certificates issued for the purpose of transfer to the

vacant post should be considered. It is their further stand, that, the

Manager in his reply dated 12.09.2005, had stated that the NOC

issued in favour of Dr. Ram Deen Maurya be considered for the

transfer to the vacant post. It is also stated that the President of the

8 Management Committee by his letter dated 17.11.2005 to the Director

of Education had falsely informed that by resolution dated

04.04.2005, Dr. Madhu Tandon's application was only considered in

respect of issuance of NOC.

10) Order Passed by the State Government :- The Secretary, Government

of Uttar Pradesh, vide its order dated 9.1.2006 accorded permission

for transfer of Dr. Ram Deen Maurya from A.P.N College, Basti to

D.A.V. Post Graduate College.

11) Reliefs sought in the Writ Petition :- Dr Madhu Tandon, being

aggrieved by the order passed by the State Government dated

09.01.2006, filed a writ petition before Allahabad High Court in WP

No.5014 of 2006, inter alia requesting the Court to issue a writ in the

nature of certiorari to quash the order passed by the State Government

and further to direct the State Government to issue necessary orders

transferring her to the post of Lecturer in Economics to the

substantive vacancy caused due to the retirement of Dr. Ram Autar

Singh.

12) Order passed by the High Court :- The High Court has allowed the

writ petition and has granted the reliefs sought for by the petitioner in

the writ petition and while doing so, the Court has looked into

original records produced by the Management of D.A.V. Post

9 Graduate College. In the course of its order, the Court has observed,

that, the original register produced by the Manager in respect of the

meeting held on 04.04.2005, does not inspire confidence and,

therefore, the same cannot be relied on. Secondly, the Manager of the

College could not have issued a second No Objection Certificate

against the same vacancy in favour of Dr. Ram Deen Maurya and,

consequently, the order of the State Government cannot be sustained,

since it is based on considerations of irrelevant documents. The

Court has also observed, that the State Government having regard to

the provisions of the Act and the rules framed thereunder, can accept

the recommendation of the Director of Education or take its own

decision in the matter having regard to the relevant prayers and

documents received, and it is highly inappropriate on the part of the

State Government to enter into private correspondence with the

Manager of DAV Post Graduate College and to make a decision on

the basis of the document received behind the back of the incumbent.

The Court by way of finding of fact has also observed that the

Committee of Management of DAV Post Graduate College in fact

had granted NOC in favour of Dr. Madhu Tandon and that the NOC

10 issued in her favour was prior in point of time to the grant of NOC in

favour of Dr. Ram Deen Maurya.

13) Submissions :- The learned senior counsel Sri S.R. Singh, appearing

for the petitioner, would contend that the Committee of Management

of D.A.V. Post Graduate College had passed the first resolution in

favour of petitioner on 04.04.2005 and in pursuance thereof, No

Objection Certificate was issued to the petitioner on 03.05.2005 for

his transfer to DAV College and, therefore, the State Govt. was

justified in passing the order dated 09.01.2006. It is further

submitted, that, the application said to have been filed by the

respondent No.5 was invalid and nonest in law, since the same was

sent directly to the Director of Education. While elaborating this

submission, the learned senior counsel would submit, that, under the

Uttar Pradesh Aided College Transfer of Teachers Rules, 2005, the

transfer application for single transfer from one College to the other

requires to be submitted to the Director of Education, (Higher

Education) through the Management constituted and approved by the

University along with the written consent of both the Management

and since the application submitted by the contesting respondent was

contrary to the statutory rules, the same is invalid and contrary to the

rules. The learned senior counsel would also contend, that, when the

11 Rules prescribe a particular procedure to be followed for submitting

the application for single transfer, the same requires to be followed

and any deviation would disentitle the applicant to claim relief under

the Rules. In aid of this submission, the reliance is placed on the

decision of the Privy Council in the case of Nazir Ahmad Vs.

Emperor, (1936 PC 253) and the decision of this Court in the case of

Dhanajaya Reddy Vs. State of Karnataka, (2001) 4 SCC 9.

14) The learned Senior counsel appearing for DAV College, would

contend, that, the reasoning and the conclusion reached by the High

Court, is manifestly erroneous, for the reason, that, the Court could

not have come to the conclusion that the resolution dated 04.04.2005

in which the decision to grant NOC in favour of Dr. Ram Deen

Maurya was taken, cannot be believed due to the reason that it does

not contain the signature of all the members, whereas the agenda

notice had been signed by all the members and the minutes of that

meeting were ratified in the next meeting held on 06.05.2005. It is

further contended that the High Court was not justified in holding that

in an emergent meeting no decision with regard to ratification of an

earlier meeting can be taken, when there is no prohibition in law for

arriving at such a decision in an emergent meeting. The learned

12 senior counsel would submit, that, the court may not justified in

holding that No Objection Certificate issued in favour of Dr. Madhu

Tandon is in respect of vacant post of Lecturer in the DAV College

and, whereas a perusal of the NOC, it only says that the College has

no objection if Dr. Madhu Tandon is transferred on an unsanctioned

post and, therefore, the Court could not have substituted its own

decision while interpreting the NOC granted in favour of Dr. Madhu

Tandon. It is further submitted by the learned counsel, that, the State

Government cannot enter into private correspondence with the

Manager of the institution when the Rules authorize the State

Government to arrive at a decision either on the basis of the

recommendation made by the Director or on its own and, therefore, in

view of Rule 4(6) of the Rules 2005, the Court could not have taken

any exception to the procedure adopted by the State Government in

corresponding with the Management of D.A.V. College. It is further

submitted that since the NOC issued in favour of Dr. Madhu Tandon

was issued before the NOC issued in favour of Dr. Ram Deen Maurya

and, therefore, another NOC should not have been issued in favour of

Dr. Ram Deen Maurya whereas a perusal of the two NOC would

reveal that they are different and, thus, no conflict existed between

13 the two NOC's and therefore, the Management of DAV could not

have issued NOC in favour of Dr. Ram Deen Maurya is an erroneous

conclusion reached by the court.

15) The learned counsel appearing for contesting respondent, however,

supported the impugned judgment.

16) Our conclusion :- The undisputed facts are, D.A.V. Post Graduate

College, Lucknow is affiliated to Lucknow University, Lucknow.

The provisions of the State Universities Act, 1973, and the provisions

of U.P. Higher Education Services Commission Act, 1980 are made

applicable to the teachers of the said College. By U.P. Ordinance

No.14 of 2004, Section 2 of the Act, 1980 is amended and a

provision for the transfer of the teachers/lecturers from one aided

degree College to another aided degree College, on fulfillment of

certain conditions is provided therein. The rules are framed to give

effect to the amended provisions and they are known as the Uttar

Pradesh Aided College Transfer of Teachers Rules, 2005 (`Rules' for

short). The rules are published in the Government Gazette on 9th of

April, 2005 and they are made applicable with immediate effect. The

rules provide for the meaning of the expressions, apart from others,

the "Management", "Teacher" etc., Rule 4 speaks of conditions of

14 transfer of teachers appointed on regular basis and holding lien as

permanent teacher, shall be entitled to transfer after 10 years of

service only once in the whole service period. Rule 6 speaks of

manner and the method for making an application for the purpose of

transfer. In order to appreciate the submissions of learned senior

counsel Mr. S.R. Singh, the Rule 6 of the Rules requires to be

extracted. The same is as under:-

"The transfer application for single/mutual transfer from one College to the other should be submitted to the Director, Higher Education through the Management legally constituted and approved by the University along with the written consent of both the managements. The Director, Higher Education shall submit his recommendation to the Government within one month from the date of receipt of the application. The Govt. shall take decision either on the basis of the recommendation of the Director or on its own."

17) Rule 6 of the Rules provides the procedure for making an application

by a teacher desirous of transfer from one college to another college

against the available post for which salary is paid from the salary

Payment Account. Under the rule, the transfer application for single

or mutual transfer from one college to the other college requires to be

submitted through the legally constituted management, along with the

written consent of both the management to the Director of Higher

Education. It is the submission of learned counsel Shri S.R. Singh,

15 appearing for the appellant, that Dr. Madhu Tandon - Respondent

No. 5, has not submitted her application for transfer from her parent

college to D.A.V. Post Graduate College, but has directly submitted

the application to the Director of Higher Education. Therefore,

according to the learned Senior Counsel, there is breach of statutory

Rules and the Director of Higher Education ought not to have

entertained and recommended the case of Respondent No. 5 to the

State Government. In aid of this submission, the reliance is placed on

the observations made by this Court in Dhanajaya Reddy's case,

which is noticed and explained in the recent decision of this court in

the case of Meera Sahni vs. Governor of Delhi (2008) 9 SCC 177,

where in it is stated :-

31) "It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all.

The origin of this rule is traceable to the decision in Taylor vs. Taylor, which was followed by Lord Roche in Nazir Ahmad vs. King Emperor, who stated as under:

"Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."

32)This rule has since been approved by this Court in Rao Shiv Bahadur Singh vs. State of Vindhya Pradesh and again in Deep Chand vs. State of Rajasthan. These cases were considered by a three Judge Bench of this Court in the State of U.P. Vs. Singhara Singh and the

16 rule laid down in Nazir Ahmad case was again upheld.

This rule has since been applied to the exercise of jurisdiction by Courts and has also been recognized as a salutory principle of administrative law."

18) We cannot have any quarrel with the aforesaid principle of law.

19) Having examined the rules and the principles evolved by the

Courts, let us now examine whether non-compliance of one of the

facet of Rule 6 of the Rules would be fatal to the application filed

by Dr. Madhu Tandon. To answer this issue, it is necessary to find

out, whether the rule is directory or mandatory. If it is mandatory,

then it is settled rule of interpretation, it must be strictly construed

and followed and act done in breach thereof will be invalid. But if

it is directory, the act will be valid although the non-compliance

may give rise to some other penalty if provided by the Statute. It

is often said that a mandatory enactment must be obeyed or

fulfilled exactly, but, a directory provision non-compliance of it,

has been held in many cases as not affecting the validity of the act

done in breach thereof (See principles of Statutory Interpretation,

11th Edition 2008 by Justice G.P. Singh).

20) Rule 6 of the rules is in four parts. They are, (i) The transfer

application for single/mutual transfer shall be submitted to the

17 Director, Higher Education (ii) It shall be submitted through the

management along with the written consent of both the

management. (iii) The Director, Higher Education shall submit his

recommendation to the Government within one month. (iv) The

Government shall take decision either on the basis of

recommendation of the Director or on its own. Filing of the

application before the Director (Higher Education) is a must for

transfer, for the reason under the rules, it is he who is expected to

consider the application to find out, whether the applicant is

eligible for such transfer and whether the applicant has obtained

consent or no objection from both the managements, namely, from

the management where he or she is working and to the college

where he or she wants to be transferred and if the requirement in

this behalf is not complied with, the Director may reject the

application at the threshold itself. Further, the rule specifically

provides that the application for the purpose of Rule 4, must be

filed only before him or no other authority of the State

Government, this part of the rule requires to be considered

mandatory. We will come to the second limb of the rule a little

later. The third part of the rule says that the Director (Higher

18 Education) shall submit his recommendation within one month to

the State Government, if there is any delay in making the

recommendation, the rules do not provide that the

recommendations so made, will not be considered by the State

Government nor the rule says, if the recommendations are not

received within the stipulated time, the State Government would

ignore the recommendation and proceed to decide the request of

the applicant independently. Therefore, this requirement of this

part of rule is only directory and not mandatory, the non-

compliance thereof will not make the application invalid. The

fourth limb of the rule gives discretion to the State Government.

The State Government may accept the recommendation of the

Director (Higher Education) and then proceed to pass an order on

the application filed by the applicant/s for transfer. The discretion

is also given to the State Government, that, in spite of

recommendations made by the Director (Higher Education), it can

also take a decision on its own. That only means that under all

circumstances, the State Government need not accept the

recommendations of the Director of Higher Education and it can

take its own decision with the material available and also to take

19 such decision, collect material from the respective managements.

Since absolute discretion is provided to the State Government to

take a decision either on the recommendation made by the

Director of Higher Education or on its own in regard to the request

of the applicant for a single time transfer from one college to

another, this portion of the rule by no stretch of imagination can be

construed as a mandatory. Now, we are left with second part of

the rule. As we have already noticed, the learned senior counsel

says, it is mandatory and non-compliance thereof would invalidate

the application filed and the Director of Higher Education could

not have recommended its consideration by the State Government.

The submission of the learned Senior Counsel looks attractive at

the first blush, but on a consideration of the submission, in our

view, it has no merit. At the first instance, we have to find out,

whether this part of the rule is mandatory and its non-compliance

is fatal, and assuming it is mandatory, whether the substantial

compliance of this rule would satisfy the requirement of this part

of the rule and its non-compliance would not be breach of the

rules. We are fully aware that in Service Law Jurisprudence, it is

mandatory that an employee is required to route through all his

20 applications to the higher ups through the head of the department;

where he or she is working. The object and the purpose appears to

be that the head of the department should know the grievance, if

any, of his employee which he is trying to project before a superior

forum and it could also be in cases where the employee desires to

apply for employment in a different organization. The object and

the purpose of this exercise appears to maintain discipline in the

institution or the organization.

21) In the instant case, on the request made by the applicant an NOC is

granted and thereafter, routing through the application through the

management is a requirement under the rules, and its non-

compliance thereof would not make her application invalid. In the

facts and circumstances of this case, since both managements

were fully aware that the applicant intends to shift herself to a

college which may be helpful to her either to achieve better

prospects in her profession or to suit her convenience. In our view,

since it does not involve any public interest nor it would effect the

interest of both the managements in any manner whatsoever, and

since there is substantial compliance with the requirements of the

rules, we cannot accept the submission of learned senior counsel

21 Shri S.R. Singh, appearing for the petitioner while considering the

non-compliance of procedural requirement, it has to be kept in

view, that, such a requirement is designed to facilitate justice and

furthers its ends and, therefore, if the consequence of non-

compliance is not provided, the requirement may be held to be

directory.

22) In Rule 6 of the Rules, the rule making authority has used the

expression `shall' and, therefore, it is mandatory and not directory

is the submission of the learned senior counsel. This submission

of the learned senior counsel need not detain us for long, since

similar issue had come up for consideration before this court in the

case of M/s Rubber House vs. M/s Excelsior Needle Industries

Pvt. Ltd., (1989) 2 SCC 813, wherein this court has observed,

that, the word "shall" in its ordinary import is obligatory.

Nevertheless, the word "shall" need not be given that connotation

in each and every case and the provisions can be interpreted as

directory instead of mandatory depending upon the purpose which

the legislature intended to achieve as disclosed by the object;

design, purpose and scope of the statute. While interpreting the

22 concerned provisions, regard must be had to the content, subject

matter and object of the statute in question.

23) Having examined the rules, let us now take note of the fact

situation as existing in the present case. Dr. Madhu Tandon has

obtained NOC from her parent college and also from the college

where she intends to be transferred. The NOC issued by both the

colleges was earlier in point of time than that of NOC granted to

Dr.Ram Deen Maurya. However, the case of management of

D.A.V. Post Graduate College authorities is that the NOC granted

to Dr. Madhu Tandon was not by the management of the

institution, but by the President and Assistant Secretary, who were

not authorized to issue such No Objection Certificate. The High

Court while considering this issue, has looked into the records

maintained by the college authorities and on facts has come to the

conclusion that the NOC issued to Dr. Madhu Tandon is in order

and, therefore, was not justified in contending contrary to their

own records. In our view, the finding on facts by the High Court,

by no stretch of imagination can be criticized as perverse findings.

We are in full agreement with the findings and conclusion reached

by the High Court on facts.

23

24) For the reasons herein before mentioned, the appeals are dismissed

with no order as to costs.

Cont..Pet. No.90 of 2008 In S.L.P.(C) No.22330/2007

In view of the orders passed in Civil Appeals arising out of S.L.P.

(C) No.22330 of 2007 and S.L.P.(C ) No.11423 of 2008, nothing further

survives in this contempt petition which is, accordingly, disposed of.

.......................................J. [ TARUN CHATTERJEE ]

.......................................J. [ H.L. DATTU ] New Delhi, April 17, 2009.

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