REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.….. …... OF 2009 (Arising out of SLP(C) No. 22330 of 2007)

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

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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

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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

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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,

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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.  

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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,

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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

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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

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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

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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

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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

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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

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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

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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.  

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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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