RAMENDRA SRIVASTAVA Vs. STATE OF U P

JUDGEMENT

(1.) THE petitioner passed the Preliminary Examination (Combined State/Lower Subordinate Services), 2007 held by Uttar Pradesh Public Service Commission, Allahabad. THE petitioner was given intimation by the Uttar Pradesh Public Service Commission, Allahabad that he has cleared the preliminary examination. THE letter of intimation to the petitioner and other candidates who had cleared the preliminary examination contains a recital that the Application Form for the Main Examination along with all the requisite annexures be submitted to the Commission by 5.00 P.M. 31st March 2009 by registered post or in person at the Counter of the Dak Section of the Commission, at Gate No.3. THE petitioner sent the form for the Main Examination by registered post on 28th March, 2009. It appears that the postal cover was tendered by the post office at the address of the Commission on 1st April, 2009, and the Commission treating the form to have been submitted beyond the last date returned the same to the petitioner. THE copy of the postal cover has been annexed along with this petition as Annexure No.4. It contains the seal of the post office bearing the date 1st April, 2009. As the commission has rejected the candidature of the petitioner, the petitioner has come to this Court. THE case of the petitioner is that the form was submitted by him in due time, and it was bona fide expected that it would reach the Commission by the last date fixed. It is also contended that the post office was the agent of the Commission, and not that of the petitioner, and therefore, it ought to be taken that the papers were received by the Commission within time when they were handed over to the post office and in any case the petitioner cannot be made to suffer on account of delay on the part of the agent of the Commission. THE apex court in the case of Income tax Commissioner, Bombay Vs. M/s. Ogale Glass Works Ltd. A.I.R. 1954, SC 429 held that there can be no doubt that as between the sender and the addressee it is the request of the addressee that the cheque be sent by post that makes the post office the agent of the addressee and that after such request the addressee cannot be heard to say that the post office was not his agent and therefore the loss of the cheque in transit must fall on the sender. THE mere fact that the sender could reclaim the letter before it was delivered to the addressee it was held was a qualified right and would not have the effect of making the post office the agent of the sender. THE decision of the apex court was followed in other decisions including Shri Jagadish Mills Ltd. Vs. THE Commissioner of Income Tax, Bombay North, Kutch and Saurashtra, Ahmedabad, A.I.R. 1959 SC 1160. It appears from the case law that where the only mode provided for sending a letter to the addressee is by registered post the consistent view of the apex court and of the High Court is that the post office is the agent of the addressee. It also appears to be settled that where the addressee does not specify any mode for sending the letter and it is the sender who uses the postal services for sending the letter the post office would be an agent of the sender. Some difficulty arises however in the third situation where, as in the present one two alternative modes for sending the letter to it are given by the addressee. In such a case the counsel for the petitioner submits the post office would be the agent of the addressee because the choice of the sender is limited to use one of the modes prescribed by the addressee. THE case law however has taken a different direction. Three Division Benches of this Court have been brought to our notice in which it has been held that the post office would be the agent of the sender because the sender was not bound to send the letter through the post office and it was the sender who had exercised that choice. THEse three Division Benches are; Civil Misc. Writ Petition No. 23152 of 2006 Adil Khan Vs. State of U.P. and others decided on 5.5.2006; (2006) 1 UPLBEC 152 Pramod Kumar Singh Vs. State of U.P. and another and Civil Misc. Writ Petition No. 57508 of 2005, Anupam Vs. Public Service Commission and another, decided on 4.10.2005. All the three Division Benches and the Full Bench of the Madras High Court relied upon in Vinod Kumar Vs. Secretary, 1995 (1) Madras Law Weekly 351 have considered and interpreted the decision of the apex court in M/s. Ogale Glass Works Ltd. (supra). As a Bench of Coordinate jurisdiction we are bound by these decisions. Learned counsel for the petitioner, however, relied upon a decision of the apex court in the case of Commissioner of Income Tax Bihar and Orissa Vs. M/s. Patney and Co. A.I.R. 1959 SC 1070 and submitted that even where two alternative modes of sending the letter one mode being by post office are provided the post office would be the agent of the addressee. It was held by the apex court that where there is an express request by the creditor (assessee) that the amount be paid to him by cheques to be sent by post and they are so sent there is no doubt that the payment will be taken to be at the place where the cheque or cheques are posted. In the case of payment by cheques sent by post the determination of the place of payment will depend upon the agreement between the parties or the course or conduct of the parties and that if it is shown that the creditor authorized the debtor either expressly or impliedly to send a cheque by post the property in the cheque passes to the creditor as soon as it is posted. In order to determine whether the post office was the agent of the Commission the condition in the letter of intimation sent to the candidates that the form should reach the enquiry counter of the dak section of the Commission at Gate No.3 by 5 P.M. on 31.3.2009 and that the form would in no circumstances be accepted after the last date cannot be lost sight of. If the Commission had any intention of treating the post office as its agent the handing over of the letter by the sender to the post office would have been sufficient but the condition that it should reach the enquiry counter of the dak section at Gate No.3 indicates that the handing over of the letter to the post office was not being treated by the Commission as sufficient. THE other mode of sending the form given by the Commission is by hand. If the Commission had prescribed delivery of the form by hand as the only mode of sending the form it would have been a highly inconvenient mode of delivery for the candidates who are spread all over the State or the country. In the circumstances it appears that it was for the convenience of the sender of the form that an optional mode to send the form by registered post was provided. Non- specification of any mode of sending the form in which case the sender would have had the option of sending the form in the mode of his choice including the mode of ordinary post may not have been regarded by the Commission a satisfactory mode for it is well known that if a letter is sent by ordinary post the sender can never be certain whether it has reached the addressee. THE advantage to the sender of a letter by registered post is that its record is maintained by the post office and in case the letter is misplaced by the Commission after it has been delivered to it within time the sender can prove the delivery and the candidate would not be made responsible for the delay. THE sender knows that some risk in that a letter may not reach on time is involved in sending it even by registered post but taking the risk would save him from a lot of inconvenience in adopting the other mode of depositing it personally. It appears that the option of sending the letter by registered post was left to the sender so that if he is ready to take the risk he may be saved from delivering the form in person which in many cases would be a very cumbersome procedure at least for long distance out station candidates. THE post office renders public service for the sender and the addressee but if the addressee specifies a particular place where the letter must reach before a specified time indicating that it wold not accept the letter after the specified time an inference can be drawn that the addressee is not taking the consequences of the risk of non-delivery within the time specified, upon itself and that the post office in such a case is the agent of the sender. A Division Bench of this Court in Ram Autar Singh Vs. Public Service Commission, U.P., Allahabad and other, 1987 UPLBEC 316 has considered the effect of a similar term in the advertisement of the Commission that "closing date for the receipt of application in the Commission Office will be July 14, 1986. Applications received after this date will not be entertained" and has held that acceptance of the form would have been complete only if it had reached "before the offer had lapsed on the expiry of the time prescribed." THE Division Bench in Ram Autar Singh's case relied upon a previous decision of this court in Writ Petition No. 11224 of 1981 on the point of agency of the postal authority. For the reasons given above we are of the view that the post office in this case was the agent of the petitioner. Learned counsel for the petitioner, however, submitted that great injustice would be done to the petitioner in the facts of the case, and that the petitioner should not be penalized for the fault of the postal department, which is meant to render public service. We find some merit in this contention. THE peculiar equitable circumstances in this case are firstly that the petitioner has already qualified in the preliminary examination. It is stated at the Bar that more than one lac candidates had appeared in this examination, out of which only about two thousand candidates have cleared the preliminary examination and very meritorious students would thus lose the chance of appearing in the main examination. Secondly the registered letter was sent by the petitioner on 28.3.2009 by registered speed post, and it can be inferred that the petitioner was having a bona fide belief that in the normal course the letter would reach its destination within 48 hours. Shri P.S. Baghel, leaned counsel for the Commission in all fairness stated that Commission has informed him that the postal department gives some assurance that letter sent by speed post is expected to be delivered at its destination within 48 hours. Thirdly in this case it also appears that the letter had in fact reached the U.P. Public Service Commission on 1st April, 2009. Fourthly, the Commission has yet not fixed any date for the main examination and there does not appear to be any practical difficulty for the Commission in accepting and processing the form at this stage. In view of the above facts and circumstances we direct the Commission to accept the form of the petitioner if the same is submitted personally by the petitioner by 30th May 2009 at the office of the U.P. Public Service Commission, Allahabad. We also direct that the benefit of this order would also be available to all such candidates who may not have filed any writ petition but have qualified for the main examination and whose forms though sent by registered post latest by 29.3.2009 did not reach the Commission on time. Such candidates would also be given benefit of this order if they submit their forms personally by 30.6.2009. With the above directions the writ petition is disposed of.