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Ajit Singh v. State Of U.P. Thru' Secretary, Secondary Education And Other - WRIT - A No. 23150 of 2007  RD-AH 9987 (24 May 2007)
Court No. 39
Civil Misc. Writ Petition No. 23150 of 2007
State of U.P. and others
Hon'ble V.K. Shukla, J.
U.P. Public Service Commission published an advertisement in Employment News 9th to 15th September, 2006 for recruitment of Lecturers in Hindi at Government Intermediate Colleges. Petitioner submits that he filled up his application form and sent the same by way of speed post from Hrjinmder Nagar Post Office, Kanpur to Secretary, U.P. Public Service Commission, 10, Kasturba Gandhi Marg, Allahabad on 27.09.2006. The last date for receipt of application was 30.09.2006. Due to mistake of post office, application form of petitioner reached U.P. Subordinate Selection Commission, Lucknow instead of U.P. Public Service Commission, Allahabad. Thereafter, U.P. Public Service Commission, Allahabad sent an envelope as time barred along with application form to the petitioner on 18.04.2007. Petitioner has contended that he has received acknowledgement No.30166786 on 24.04.2007. Petitioner has contended that he received two different informations from Lucknow and Allahabad. Thereafter, petitioner made representation to the U.P. Public Service Commission, Allahabad, but could not receive any positive reply till date. Petitioner has contended that he is not at fault, and on account of this his legitimate right to participate in the process of recruitment has been taken away, as such a writ in the nature of mandamus be issued for entertaining petitioner's application form for the post of Lecturer in Hindi in the Government Colleges and admit card be issued.
On presentation of writ petition, Sri Gaurav Singh, holding brief of Sri P.S. Baghel, learned counsel appearing for the U.P. Public Service Commission and Sri S.S. Tiwatri, Advocate, appearing on behalf of the Post Master, were directed to obtain necessary instructions.
On the matter being taken up today, Sri Gaurav Singh produced copy of the Employment News dated 9-15.09.2006, wherein, in clear and categorical term it was mentioned that applications were to be sent either by registered post or by hand up to 5.00 P.M. on or before 30.09.2006, and it was also mentioned that applications through fax shall not be accepted. Relevant extract of the Employment News is being excerpted below:
"HOW TO APPLY
Application should be submitted on the prescribed format only on the thick foolscape paper in Devnagri Script. It may be typed/hand written of photostat Format is printed at the end of the advertisement (Appendix-VI) for the convenience of the candidates. Application complete in all respect must reach the "Secretary (Deptt. No........) Public Service Commission, U.P. 10, Kasturba Gandhi Marg, Allahabad-211018 at Commission's office by registered post or by hand upto 5.00 P.M. on or before 30 September, 2006. Applications through fax shall not be accepted."
Sri Vinod Kumar Sahu, learned counsel for petitioner, contended with vehemence that in the present case, petitioner is not at all at fault, as such in the facts and circumstances of the case, his client should not be penalized and equitable view should be taken in the matter, and directives be issued to accept his application form and provide him opportunity.
Sri S.S. Tiwari and Gaurav Singh, on the other hand, contended that there were two modes prescribed, and once petitioner had chosen totally incorrect mode, which was not prescribed for, and the right mode has not at all been exercised, petitioner is to blame himself and this Court cannot come to his rescue.
After respective arguments have been advanced, the factual position which emerges is to the effect that applications complete in all respect were to reach the "Secretary, Public Service Commission, U.P. 10, Kasturba Gandhi Marg, Allahabad" at Commission's office by registered post or by hand upto 5.00 P.M. on or before 30 September, 2006. Applications through fax were forbidden to be accepted. It is true that last date for submitting application was 30.09.2006 and the advertisement had been published in Employment News of 9-15.09.2006. Petitioner waited till 26.09.2006 and on 27.09.2006, he sent his application form on 27.09.2009 by speed post. Any incumbent, who immediately after advertisement does not fill up the application form, always is in danger zone as to whether said application would reach its destination or not up to the date prescribed in the advertisement.
Here, in the present case merely three days were left when petitioner chose to sent his application and that too by adopting a wrong mode other than the one prescribed in the advertisement. Though the application was addressed to the Secretary, Public Service Commission, U.P. 10, Kasturba Gandhi Marg, Allahabad, but it reached the U.P. Subordinate Service Selection Commission, Lucknow, and thereafter it was returned back to "Secretary, Public Service Commission, U.P. 10, Kasturba Gandhi Marg, Allahabad, and by the time it reached the correct destination, the date had already gone, as such petitioner's application was returned as time barred.
Sri Gaurav Singh, Advocate, made categorical statement that U.P. Public Service Commission had taken policy decision not to accept any application by speed post, thus only those applications had been accepted which were sent by registered post or by hand. Sri V.K. Sahu, Advocate has contended that receipt which has been issued to his client clearly showed that it was registered receipt. Receipt has been produced, it does mention as registered, but there is difference in between speed post and registered post, as different fees has been prescribed for both the modes, as such fees itself has distinguished the speed post from registered post. Accepting that registered post can be equated with speed post, Division Bench of this Court in the case of Promod Kumar Singh v. State of U.P. and another, 2005 (4) ESC 2820, has taken the view that if there is more than one mode and one chooses to apply adopting one mode and failed to exercise other mode, responsibility lies with the sender, not with the addressee, because post office is the agent only in respect of one mode. Fault might have been committed by the post office be it agent of either of the parties or be it a public service mechanism, but so far as Commission is concerned, it is not at all at fault whenever more than one mode is prescribed in the advertisement. The Division Bench expressed its sympathy to the candidate, who lost the opportunity, but refused to extend any relief in the name of equitable justice. Relevant extract of the said judgment (paragraphs 6 and 9) are quoted below:
"6. As per the ratio of AIR 1980 SC 431 (Union of India Vs. Mohd. Nazim) a post office accepts responsibility of the sender when it accepts postal articles to send to the addressee. It is a public service. It can neither be treated as agent like common carrier nor it enter upon any contract by the acceptance of postal article either with the sender or addressee. However, in a recent judgement dated 19th September, 2005 in Appeal (Civil) No. 1619 of 2005 (Unit Trust of India Vs. Ravinder Kumar Shukla, etc. etc.) the Supreme Court held that in the absence of any contract or request from the payee, mere posting would not amount to payment. In cases where there is no contract or request, either expressly or impliedly, the post office would continue to act as an agent of the drawer. In that case the loss is of the drawer. If two situations are seen side by side, the question of responsibility will be understandable. In the instant case, request is there on the part of the addressee. Therefore, the addressee is responsible provided post office alone has been made agent for the purpose of receiving application as per the request. There the shoe pinches. When two modes are prescribed by the Commission and one mode is availed, the same is the risk and responsibility of the sender himself. Writ Court can not evaluate amount of risk and responsibility to compensate the petitioner. If the petitioner is entitled for any compensation in accordance with law from the post office, he can seek advise for the same but Commission can not be held responsible by extending time for availing the postal mode only. It has argued that if someone is stationed in a far away place and is not able to come to file such application personally, second mode can not help such candidate. We can understand the agony but in such case we can not compel the Commission for accepting application because post office is agent only in respect of the service through it. Moreover, according to us, question is not the distance, but non-availability of other mode. Commission is to discharge public duty to all. It can not find out individual difficulty to meet the same. Otherwise it will become never ending process. Two very important Supreme Court judgements have been referred herein. First one is reported in AIR 1966 SC 1466 (V 56 C 288) (The Indore Malwa United Mills Ltd. Vs. The Comissioner of Income-tax (Central) Bombay). This is in respect of Income Tax Act but even therein the Supreme Court categorically held as follows:
"If by an agreement, express or implied, by the creditor, the debtor is authorised to pay the debt by a cheque and to send the cheque to the creditor by post, the post office is the agent of the creditor to receive the cheque and the creditor receives payment as soon as the cheque is posted to him."
Therefore, the mode of sending the cheque was only by post.
9. Therefore, what we get from the above analysis? We get the answer that either in the law or in the contract or in the advertisement or in the necessary document if mode is prescribed, such mode will be the guiding principle in determining the issue as regards service. If the mode is one, one has no other alternative but to follow the same. If the mode is more than one then the alternative mode can be exercised. If one chooses to apply adopting one mode and failed to exercise other mode, the responsibility lies with the sender not with the addressee because the post office is the agent only in respect of one mode. In the instant case, fault might have been committed by the post office be it agent of either of the parties or be it a public service mechanism. But so far as the Commission is concerned, it is not at fault whenever more than one mode is prescribed in the advertisement. Frankly speaking we are very much sympathetic to the candidate, who lost the opportunity of making application, but we are sorry to say that we can not render any equitable justice in favour of the petitioner against the Commission in such circumstances."
On the touchstone of ratio laid down in the aforesaid case, though equity may be in favour of the petitioner, but as the petitioner failed to avail any of the two modes prescribed and chose a different mode, the Public Service Commission, was not at fault.
Consequently, writ petition fails and is dismissed.
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