JUDGMENT By the Court.—D.A.V. Post Graduate College, Lucknow (hereinafter called as the D.A.V. College) is affiliated to Lucknow University, Lucknow. The provisions of the State Universities Act, 1973 as well as those of U.P. Higher Education Services Commission Act, 1980 (hereinafter called as Act, 1980) are fully applicable to the teachers of the said college. 2. A vacancy on the post of Lecturer Economics was caused on substantive basis in the college due to retirement of one Dr. Ram Autar Singh on 30th June, 2002. 3. Under U.P. Ordinance No. 14 of 2004, Section 12 of the Act, 1980 was amended and a provision for transfer of the teachers from one aided degree college to another aided degree college, on fulfilment of the conditions mentioned, was provided for. For the purposes of regulating the said transfer, the Governor of the State was pleased to notify the Uttar Pradesh Aided Colleges Transfer of Teachers Rules, 2005 (hereinafter called as the Transfer Rules, 2005) published in the Gazette on 9th April, 2005. Rules 4 and 5 provide for conditions and procedure to be adopted qua transfer of a Lecturer from one college to another, be it a single transfer or mutual transfer. 4. The dispute in the present writ petition is between two teachers namely the petitioner and respondent No. 5, both claiming a right of transfer against the vacancy of Lecturer Economics in the College. The parties are at variance qua no objection certificate granted by the Manager of the College in favour of both of them. The order issued by State Government approving the transfer of respondent No. 5 is under challenge. The facts relevant for adjudicating upon the said dispute are as follows : 5. The petitioner, who is working as Lecturer in Prayag Mahila Vidyapeeth Degree College, Allahabad (hereinafter called as the Prayag Mahila Vidyapeeth), made an application in terms of Ordinance No. 14 of 2004 before the management of Prayag Mahila Vidyapeeth on 24.11.2004 for a no objection being granted to her transfer to D.A.V. College. A resolution in that regard was passed by the Committee of Management of the Prayag Mahila Vidyapeeth on 26.11.2004. A similar application was made by the petitioner before the management of D.A.V. College. A resolution in that regard was passed by the Committee of Management of the Prayag Mahila Vidyapeeth on 26.11.2004. A similar application was made by the petitioner before the management of D.A.V. College. According to the petitioner resolution dated 4.4.2005 was passed by the Committee of Management of the D.A.V. College expressing its no objection to the transfer of the petitioner to the College. As a consequent thereto a no objection certificate was issued by the Manager of the College in favour of the petitioner on 28.4.2005. After obtaining the no objection certificate, the petitioner submitted an application through her parent institution namely Prayag Mahila Vidyapeeth in accordance with the provisions of the Transfer Rules, 2005 to the Director of Education (Higher Education). 6. While the papers qua the petitioner were pending before the Director, respondent No. 5, who was working in A.P.N. Post Graduate College Basti (hereinafter called as the A.P.N. College), made an application for being transferred against the same vacancy in D.A.V. College. This application of respondent No. 5 was also supported by two no objection certificates issued by the Manager of A.P.N. College dated 30.5.2005 as well as that issued by the Manager of D.A.V. College dated 3.5.2005. 7. It is apparent from the records that this application was received in the office of the Director of Education subsequent to the application of the petitioner. The Director by means of his recommendation dated 11.7.2005 addressed to the State Government, refused to recommend the transfer of respondent No. 5 on the post of Lecturer Economics in D.A.V. College on a specific note recorded therein that since recommendation for transfer of the petitioner has already been made by the Directorate on 17.6.2005 against the vacancy in D.A.V. College, there was no occasion for any second recommendation being made against the same vacancy in favour of respondent No. 5. 8. While the recommendation qua petitioner was pending consideration before the State Government, it appears that the State Government required the Director of Education to seek clarification with regards to the person in whose favour the Committee of Management of D.A.V. College has given its no objection. The Director of Education by means of his letter dated 20.9.2005 required the Committee of Management to explain its stand in the matter. The Director of Education by means of his letter dated 20.9.2005 required the Committee of Management to explain its stand in the matter. The Director of Education specifically provided that the minutes of the meeting dated 4.4.2005, duly certified by the President of the Committee of Management to be the true copy of the original minutes be forwarded by post immediately. The aforesaid direction was issued in the background that there was a difference in the language between the copies of the resolution dated 4.4.2005 of the Committee of Management of D.A.V. College, as enclosed with the papers submitted by the petitioner vis-a-vis the minutes of the same meeting enclosed by respondent No. 5 along with his application. 9. The President of the Committee of Management of D.A.V. College by means of his letter dated 17.11.2005 informed the Director of Education that in the meeting dated 4.4.2005 a resolution granting no objection certificate to the transfer of Dr. Madhu Tandon alone was passed. The Officiating Principal of D.A.V. College namely Anil Kumar is also stated to have forwarded a letter recording that in the meeting dated 4.4.2005 the Committee of Management decided to provide no objection certificate in favour of the petitioner alone and it was her application alone which was considered in the said meeting. 10. It appears that on 9th September, 2005 the office of the Chief Minister of the State of U.P. intervened in the matter and called for an explanation from the Manager of the D.A.V. College as to out of two no objection certificates granted by the Committee of Management which candidate be taken to be the choice of the Committee of Management. The Manager of the institution by means of his letter dated 12.9.2005 informed the office of the Chief Minister that out of two no objection certificate granted by the Manager, the no objection certificate granted in favour of respondent No. 5 may be accepted as the choice of management. Thereafter another letter was written by the Manager of the D.A.V. College requesting for approval of transfer of respondent No. 5 to D.A.V. College. The State Government acting on the aforesaid two letters, by means of its order dated 9.1.2006 approved the transfer of respondent No. 5 from A.P.N. College, Basti to D.A.V. College, Lucknow. It is against this action of the State Government that the present writ petition arises. 11. The State Government acting on the aforesaid two letters, by means of its order dated 9.1.2006 approved the transfer of respondent No. 5 from A.P.N. College, Basti to D.A.V. College, Lucknow. It is against this action of the State Government that the present writ petition arises. 11. Sri Ashok Khare learned Senior Advocate assisted by Sri A.K. Singh Advocate contends before this Court that the Manager of the D.A.V. College has fabricated documents for suggesting a resolution of the Committee of Management dated 4.4.2005 qua grant of no objection certificate in favour of respondent No. 5, when as a matter of fact from the records it is established that under the resolution passed by the Committee of Management on 4.4.2005 grant of no objection certificate in favour of the petitioner alone was resolved. He further points out that the office of the Chief Minister of the State has intervened in the matter, resulting in a letter from the Manager of the D.A.V. College behind the back of the petitioner, wherein it was suggested that the Committee of Management has decided to accept the transfer of respondent No. 5 in the institution and the no objection certificate granted in his favour be taken the choice of the Committee of Management. Sri Ashok Khare, with reference to the minutes of the meeting dated 4.4.2005, submits that the no objection certificate granted by the Manager of the D.A.V. College dated 28.4.2005 in favour of the petitioner is not disputed (Annexures-5 and 6 to the writ petition). The letters of the Director of Education dated 11.7.2005 and dated 20.9.2005 as well as the letter of the President of the Committee of Management dated 17.11.2005 lead to only one possible conclusion in the facts of the present case i.e. no objection certificate was granted by the Committee of Management in favour of the petitioner against the substantive vacancy. The subsequent application of respondent No. 5 is only an afterthought, and for confusing the matter Manager of the College has fabricated the minutes of the meeting dated 4.4.2005 for suggesting transfer of respondent No. 5 against the substantively vacant post. The subsequent application of respondent No. 5 is only an afterthought, and for confusing the matter Manager of the College has fabricated the minutes of the meeting dated 4.4.2005 for suggesting transfer of respondent No. 5 against the substantively vacant post. Even otherwise it is submitted that the office of the Chief Minister could not have intervened in the matter and in any view of the matter any letter of the Manager behind the back of the petitioner could not have been the basis for upsetting the recommendation of the Director of Education dated 17.6.2005, referred to in his letter dated 11.7.2005. 12. The contention raised on behalf of the petitioner is opposed on behalf of the respondents by Sri Umesh Chandra learned Senior Advocate, assisted by Sri H. L. Srivastava Advocate, Sri Udai Karan Saxena Advocate and the learned Standing Counsel. It is stated that no doubt a resolution was passed on 4.4.2005 for no objection certificate being issued qua transfer of the petitioner, but under the same resolution a no objection qua transfer of respondent No. 5 was also approved. The resolution, according to respondents, specifically records that no objection in favour of the petitioner was in respect of an anticipated new post of Lecturer in the Department of Economics, having regard to the increase in the students, papers whereof pending consideration before the Director of Education, while the no objection certificate in favour of respondent No. 5 was against the substantively vacant post of Lecturer Economics caused due to retirement of Dr. Ram Autar Singh on 30.6.2002. It is, therefore, contended that the Manager of D.A.V. College has rightly clarified the position to the State Government qua the decision of the Committee of Management of the institution as per his letter dated 9.9.2005 and dated 12.9.2005. Under Transfer Rules, 2005 it is the State Government which has to take the decision either on the recommendation of the Director of Education or on its own and since the State Government was apprised of the opinion of the Committee of Management under letter of the Manager, it has rightly approved the transfer of respondent No. 5 to D.A.V. College. On behalf of the respondent No. 5 and the Director of Education similar stand has been taken. 13. We have heard Counsel for the parties and have gone through the records of the writ petition. 14. On behalf of the respondent No. 5 and the Director of Education similar stand has been taken. 13. We have heard Counsel for the parties and have gone through the records of the writ petition. 14. This Court, while entertaining the present writ petition, on 25.1.2006 granted an interim order, whereby the operation of the order of the State Government dated 9.1.2006 was stayed. 15. After affidavits were exchanged between the parties, the Court noticed that there was a serious dispute with regards to correctness of the minutes of the meeting dated 4.4.2005 as per the case pleaded by the parties. Therefore by means of an order dated 24.8.2006 the Court required the Manager of the institution namely respondent No. 4 to remain present before the Court with original register wherein the minutes of the meeting dated 4.4.2005 have been recorded. 16. From the records of the present writ petition it is apparently clear that it required the Court to pass an order requiring the Manager to show cause as to why he may not be sent to civil prison for non-compliance of the orders passed and it was only thereafter the Manager appeared and produced the records asked for by the Court. 17. The original records, which contain the minutes of the meeting dated 4.4.2005 of the Committee of Management, have been examined by us. At the very outset the Court may record that the original records produced before this Court do not inspire confidence for the following reasons : (A) The minutes do not contain signatures of all the persons who had attended the meeting nor it has been recorded as to how many members in fact attended the meeting. (B) The minutes have been signed by the Manager alone and no more else whatsoever against him there is a serious allegation of manipulations in the present writ petition. (C) The register apparently appears to be written on one and same day with the same pen and in same handwriting. (D) The minutes of the meeting dated 4.4.2005 are alleged to have been confirmed in the meeting dated 6.5.2005 which in turn was an emergent meeting and was earlier scheduled for 29.4.2005 but was postponed to 6.5.2005 and thereafter the register is said to have been deposited before this Court. Confirmation of minutes of an ordinary meeting cannot be considered in an extraordinary meeting. Confirmation of minutes of an ordinary meeting cannot be considered in an extraordinary meeting. We may record that in an emergent meeting of the Committee of Management only specific agenda for the purpose requires consideration. (E) These are affidavits of President and other members of the Committee of Management on record of this petition wherein they have disputed the correctness of the minutes register produced. (F) None of the minutes record in this register, which records minutes of 3 meetings only, the attendance of the persons who participated in the said meeting. 18. The explanation furnished by the learned senior Counsel for the Committee of Management is that the persons, who had signed the agenda notice circulated earlier, had participated in the meeting and therefore their signatures qua attendance in the meeting have not been recorded. 19. The Court is sorry to record that such a stand on behalf of the Committee of Management cannot be accepted by any reasonable man, inasmuch as signing of the agenda is only an acceptance of the notice of the meeting. It cannot be taken to be the basis for arriving at a conclusion that the persons, who had signed the agenda, did attend the meeting. We may further record that in respect of all the previous meeting prior to 30.3.2003 as well as in all subsequent meetings after 29.4.2006 (which are recorded in different register), the attendance of the members, who have participated in the meetings, have specifically been recorded on the relevant place which records the minutes of the meeting. The facts in that regard are on record before us and correctness whereof has not been disputed by the Counsel for the respondents. 20. In these set of facts, this Court cannot rely upon the original register, which has been produced by the Manager in respect of the meeting dated 4.4.2005 and therefore the alleged resolution recorded therein cannot be the basis for resolving the dispute in the facts of the present case. We are, therefore, left with no other alternative but to examine other documents which are on record for deciding the dispute in hand. 21. We are, therefore, left with no other alternative but to examine other documents which are on record for deciding the dispute in hand. 21. The no objection certificate granted by the Manager of the D.A.V. College namely respondent No. 4 in favour of the petitioner (Annexure-6 to the writ petition), reads as follows : Þn;kuUn ,saXyks oSfnd LukrdksRrj egkfo|ky;] y[kuÅ ¼lg;qDr% y[kuÅ foofo|ky;] y[kuŽ eueksgu frokjh i=kad---------------------- ÁcU/kd y[kuÅ fnukad 28-4-2005 vukifRr Áek.k&i= Áekf.kr fd;k tkrk gS fd bl fo|ky; esa vFkZkkL= foHkkx esa nks fk{kdksa ds in iwoZ ls LohÑr gSaA ,d in Mk0 jke vkSrkj flag dh fnukad 30-6-2002 dks lsok fuo`fRr ls fjDr gS] ftldh vuqKk dh ekax dh xbZ Fkh fdUrq v|ru vÁkIr gSA mDr fjDr in ij ;fn fk{kk funskky; }kjk in dh vuqKk ds vkHkko eas Mk0 ¼Jherh½ e/kw V.Mu] jhMj vFkZkkL-] Á;kx efgyk fo|kihB fMxzh dkyst] bykgkckn dk ,dy LFkkukUrj.k Mh0,0oh0ih0th0 dkyst] y[kuÅ esa fd;k tkrk gS rks egkfo|ky; dks dksbZ vkifRr ugha gksxhA g0v0 28-4-2005 ¼eueksgu frokjh½ ÁcU/kd Mh0,0oh0 LukrdksRrj egkfo|ky;] y[kuÅAÞ 22. Veracity of this document has not been disputed by the Manager of the institution or by any other respondent. The letter is being sought to be explained with reference to the use of words therein namely ÞvuqKk dh ekax dh xbZ FkhÞ . Senior Counsel for the Committee of Management submits that the word ÞvuqKk dh ekaxÞ referred thereto has referred to the creation of a new post in the institution and therefore the no objection certificate, which was granted in favour of the petitioner, was qua the new post, creation whereof was still awaited from the competent authority. 23. The stand taken by the respondent is patently misconceived and is based on misreading of the word ÞvuqKkÞ it may be recorded that ÞvuqKkÞ means permission to fill the post. Aforesaid aspect of the matter stands clarified under the letters of the State Government dated 27.8.1994 (R.A.-2) and that the Principal of the Institution dated 28.4.2005, whereby permission for filling the vacancy caused due to retirement of Dr. Ram Autar Singh on 30.6.2002, was asked for. These documents are not in dispute. From the said document it is establish beyond doubt that ÞvuqKkÞ was asked for only for filling the substantive vacancy, which was caused due to retirement of the earlier incumbent, inasmuch as the post has remained vacant for more than three years. Ram Autar Singh on 30.6.2002, was asked for. These documents are not in dispute. From the said document it is establish beyond doubt that ÞvuqKkÞ was asked for only for filling the substantive vacancy, which was caused due to retirement of the earlier incumbent, inasmuch as the post has remained vacant for more than three years. Thus, the respondents have only tried to confuse this Court by suggesting that ÞvuqKkÞ means creation of a new post. The stand so taken is therefore rejected. 24. From the records it is further apparently clear that the Director of Education by means of his letter dated 11.7.2005 specifically recorded that since recommendations for transfer of the petitioner had already been made on 17.6.2005, the request of respondent No. 5 seeking transfer against the same vacancy cannot be accepted. 25. The Court fail to see as to how, there being a categorical stand of the Director of Education in his letter dated 11.7.2005, the office of the Chief Minister intervened and called for a reply from the Manager of D.A.V. College through a private letter (not through the office of the Director of Education). We may also record that the Director of Education, as a matter of fact, under his letter dated 20.9.2005, while requiring the Committee of Management of D.A.V. College to explain as to how, two no objection certificates have been issued in respect of the same vacancy, specifically insisted that the true copy of the minutes of the meeting dated 4.4.2005 duly countersigned by the President of the Committee of Management be submitted. The President of the Committee of Management of D.A.V. College has categorically replied vide his letter dated 17.11.2005 that in the meeting dated 4.4.2005 only the application of the petitioner for grant of no objection certificate was considered and it was resolved to grant no objection certificate in her favour only. The aforesaid letter of the President has been ignored and the State Government has not considered this letter of the President of the Committee of Management. 26. We may also refer to the letter of the Principal of the D.A.V. College wherein the resolution in favour of the petitioner alone being passed on 4.4.2005 had been affirmed with reference to the information supplied by the Ex-Officio Members namely the teachers of the college who attended the meeting. 26. We may also refer to the letter of the Principal of the D.A.V. College wherein the resolution in favour of the petitioner alone being passed on 4.4.2005 had been affirmed with reference to the information supplied by the Ex-Officio Members namely the teachers of the college who attended the meeting. This letter has been enclosed as Annexure-19 to the writ petition. The veracity of this document has also not been disputed by any of the respondents, the only explanation given is that the person, who had signed the letter, was only an Incharge Principal. 27. Reference may also be had to paragraph 12 and 16 of the affidavit filed by Sri Man Mohan Tiwari, wherein resolution qua grant of no objection certificate to the petitioner’s transfer has been admitted. However, it is sought to be explained that under the resolution the no objection certificate granted in favour of the petitioner was against a post which was still to be created and the no objection certificate granted in favour of the respondent No. 5 against the substantively vacant post. The stand so taken is with reference to the use of word ÞvuqKkÞ . As already explained above word ÞvuqKkÞ means permission to filling the vacancy. 28. So far as the procedure and powers of the State Government to take the final decision in terms of the Rules 4(5) and 4(6) of the Transfer Rules, 2005 is concerned, it is worthwhile to reproduce the same for true appreciation of the import thereto. Rules 4(5) and 4(6) of the Transfer Rules, 2005 read as follows : 4. (5) The teachers shall be transferred against such posts for which salary is paid from the salary payment account. The management of the college before giving its consent to any teacher shall ensure that no enquiry or any proceeding is pending against the teacher concerned and the post to which he has been considered to be appointed by transfer shall not be advertised by the Uttar Pradesh Higher Education Services Commission. 4.(6) The transfer application for single/mutual transfers from one college to the other shall be submitted to the Director, Higher Education through the Management legally constituted and approved by the University alone with the written consent of both the two Managements. The Director, Higher Education shall submit this recommendation to the Government within one month from the date of receipt of the application. The Director, Higher Education shall submit this recommendation to the Government within one month from the date of receipt of the application. The Government shall take decision either on the basis of recommendation of the Director or on its own.” 29. A bare reading of the rule could establish that procedure for transfer being asked for has necessarily to be complied with before any order can be passed by the State Government. The State Government has to act upon the papers, which are so received from the office of Director. The State Government can accept the recommendation of the Director of Education or take on its own decision in the matter having regard to the papers received. The words “on its own” necessarily mean that the State Government has to apply its mind to the documents which are received with reference to the earlier part of Clause (6) of Rule 4 of the Transfer Rules, 2005 and can take a decision contrary to the recommendation of the Director. The State Government is not required to enter into the private correspondence with the Manager and to take decision on the basis of the documents received behind the back of an incumbent, whose case has already been recommended at least four months prior by the Director of Education in respect of the same vacancy. 30. Further in the facts of the present case since a no objection certificate had already been granted by the Manager of D.A.V. College on a prior date in favour of the petitioner, there was no occasion for any other no objection certificate being granted by the same Manager on a subsequent date in favour of respondent No. 5 nor the State Government could have acted upon the letter so forwarded by the Manager on his own. As already noticed above, the decision to grant a no objection certificate has to be taken by the management in a meeting to be convened for the purpose. The individual letter of the Manager, without any resolution of the Committee of Management being enclosed, could not have been acted upon. 31. As already noticed above, the decision to grant a no objection certificate has to be taken by the management in a meeting to be convened for the purpose. The individual letter of the Manager, without any resolution of the Committee of Management being enclosed, could not have been acted upon. 31. Normally this Court would have insisted upon the State Government to take a fresh decision in the matter with reference to the resolution passed by the Committee of Management, however, such a course is not being followed in the peculiar circumstances wherein register recording the minutes of the meeting dated 4.4.2005 do not inspire confidence in this Court. Any subsequent resolution passed after 9.1.2006 are irrelevant for deciding the issue. 32. The Committee of Management of D.A.V. College in fact had granted no objection certificate in favour of the petitioner and that such no objection certificate issued in her favour was prior in point of time to the grant of no objection certificate in favour of respondent No. 5. The Committee of Management did not withdraw the no objection certificate granted in favour of the petitioner on any date prior to the issuance of the impugned order dated 9.1.2006. The Manager could not have issued a second no objection certificate against the same vacancy in favour of respondent No. 5 and consequently the order dated 9.1.2006 passed by the State Government being illegally based on irrelevant document, cannot be approved of. 33. Accordingly, the writ petition is allowed. The order dated 9.1.2006 is quashed. The State Government is directed to take appropriate decision on the recommendation of the Director of Education (Higher Education) dated 17.6.2005, as referred to in his letter No. Arth 1/Aayog-2/425/2005-06 dated 11.7.2005 (Annexure CA-2 to the affidavit of the Director of Education) within four weeks from the date a certified copy of this order is filed before the authority concerned. ———