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TMI Blog2009 (4) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. 6) The Joint Secretary, Higher Education, after considering the No Objection Certificates issued, one in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NOC to the applicants. It is further stated, that the Committee took a unanimous 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 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 Transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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