Present:
(Hon. Mr. Justice Amitava Lala & Hon. Mr. Justice Ashok Srivastava) Appearance:
For the Petitioner : Mr. Abhishek Tandon.
For the Respondents : Mr. Prakash Padia.
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Amitava Lala, J.-- In this writ petition the petitioner has prayed for quashing of the order/letter dated 18th March, 2011 issued by the respondent-Indian Oil Corporation Limited (hereinafter in short called as the ''Corporation'), whereby petitioner's representation/ complaint dated 18th December, 2010 for taking her interview has been rejected, and has also prayed for a direction upon the respondents to take the interview of the petitioner within a stipulated period.
The petitioner's case is that on 26th August, 2009 an advertisement was published in a newspaper by the Corporation inviting applications for selection of Dealership of Petrol/Diesel Rural Retail Outlet (Kisan Seva Kendra) at the location Akbarpur, District Aligarh. Pursuant to such advertisement the petitioner made her application on 29th September, 2009, with regard to which the receipt dated 05th October, 2009 was issued by the respondents. Call letter was issued by the respondents on 22nd October, 2010 inviting the petitioner for interview on 11th November, 2010 at 10.00 A.M. at Agra. Admittedly, the aforesaid call letter was issued by the Corporation by speed post, an urgent delivery scheme of the Indian Postal Department. However, the aforesaid call letter reached to the petitioner on the date of interview i.e. on 11th November, 2010 at 3.00 P.M. Therefore, the petitioner could not attend the interview on the relevant date and time. In such selection process, one Smt. Pushpa Singh has been selected. The petitioner wrote a letter dated 12th November, 2010 to the respondent-Corporation for taking her interview in view of non-receipt of the call letter within time to make her available in the interview. Thereafter, the petitioner again made a complaint/ representation dated 23rd November, 2010 to the respondent-Corporation raising her grievance. However, when no heed was paid by the respondents towards the same, the petitioner filed Civil Misc. Writ Petition No. 69835 of 2010 (Gunjan Bharadwaj Vs. Indian Oil Corporation Ltd. and another). Such writ petition was disposed of by a Division Bench of this Court by order dated 09th December, 2010 directing the respondents-Corporation to consider the grievance of the petitioner, particularly on the submission of learned Counsel appearing for the Corporation that if the petitioner submits a copy of the complaint, which was already filed, the same will be considered. Again the representation was filed by the petitioner on 18th December, 2010, which has been rejected by order dated 18th March, 2011 holding that there was no fault on the part of the Corporation in delay delivery of the call letter dated 22nd October, 2010 to the petitioner. In such circumstances, the petitioner has filed the present writ petition.
Upon going through the order impugned dated 18th March, 2011 we find that the stand of the Corporation is that as per the policy of the Corporation, a notice of minimum 15 days is to be given to the candidates called for interview, whereas in the case of the petitioner the call letter was issued 20 days before the date of interview.
Against this background, a question arose before this Court whose fault is this, by which the petitioner was prevented from attending the interview on the relevant date and time. Is it fault of the Corporation, which has sent the call letter prior to 20 days of the interview i.e. more than the period of minimum 15 days prescribed in the norms, or the postal department? According to the Corporation, it had dispatched the call letter 20 days before from the date of interview by ''speed post', an urgent delivery scheme of the Indian Postal Department, therefore, it is fault of the postal department itself in not delivering such call letter to the petitioner within time in spite of urgent delivery scheme of the Indian Postal Department having been adopted by the Corporation i.e. delivery by ''speed post'.
As per Clause 10 (i) of the Brochure on Selection of Petrol/ Diesel Rural Retail Outlet (Kisan Seva Kendra) Dealers of the Corporation being dated 01st July, 2010 (hereinafter in short called as the ''Brochure'), the applications received after the cut-off date for any reason including postal delay, and those without accompanying valid documents like affidavits, certificates etc., application fee or incomplete in any respect will not be considered and no correspondence will be entertained by the Corporation in such cases whatsoever.
Therefore, in view of the expressed terms and conditions of the brochure, the Corporation will not be held responsible for any postal delay. Postal delay can be considered as one of the cause, provided there is any fault on the part of the Corporation in issuing the call letter departing from the norms, which provides that at least 15 days before the interview call letter will be issued. There is no dispute that call letter was issued to the petitioner 20 days before the date of interview.
Against this background, now let us confine to the real question as to who is responsible for the delay either corporation or post office and how the petitioner can be compensated. If the call letter has been dispatched giving period less than 15 days ignoring the terms in the brochure, then obviously the Corporation can be held to be liable. But that is not the case herein. So far as liability on the part of the Corporation is concerned, it is over as soon as the Corporation sent or dispatched the call letters prior to the prescribed period. Under Section 182 of the Indian Contract Act, 1872, definitions of the ''agent' and ''principal' have been given, as under:
"182. ''Agent' and ''principal' defined.--An ''agent' is a person employed to do any act for another, or to represent another in dealings with third person. The person for whom such act is done, or who is so represented, is called the ''principal'."
Assuming for the sake of argument that postal department is agent of the principal i.e. Corporation, but it is by nomenclature not by contract, therefore, when the Corporation dispatched the call letter through a "public body" i.e. postal department by ''speed post', under an urgent delivery scheme, the Corporation has discharged its duty. In 2006 (1) UPLBEC 152 (Pramod Kumar Singh Vs. State of U.P. and another) a Division Bench of this Court, presided over by one of us (Amitava Lala, J.), has already held that 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. The aforesaid judgement, in which such discussion was made by the Division Bench of this Court, was the subject matter of the Full Bench and the Full Bench in its judgement reported in 2010 (9) ADJ 152 (Neena Chaturvedi Vs. Public Service Commission, Uttar Pradesh) has held that an advertisement inviting applications for examination or recruitment is merely an invitation to offer and not an offer itself. However, in coming to conclusion the Full Bench has held as follows:
"(43). If the postal rule is made applicable in matters of inviting applications to appear for an examination or for an interview, and applications are to be sent by post, even if one application does not reach in time on account of postal delay to scrap the examination or hold special examination in such cases would produce manifest inconvenience and absurdity."
Both the aforesaid judgements have considered the issue on a different perspective, but by and large with regard to right of the addressee. According to us, ratio of Mohd. Nazim (supra) squarely applies in this case because in creation of agency by a principal, there should be expressed or implied terms of contract between the principal and the agent. A public delivery agent is not made by the express or implied terms of the contract between it and the Corporation, another governmental authority.
Against this background, the Corporation can not be held liable for non-reaching of postal articles to the petitioner. Even if we accept that the principle of contract regarding offer and acceptance is applicable between the petitioner and the Corporation, then in that case as soon as an offerer dispatches its offer, his duty is over. We are only required to see whether such offer was made within the prescribed period or not. Factually, we find that it was dispatched within the prescribed period. We also find that in the brochure it has been categorically said that the Corporation is not responsible for any postal delay. The petitioner seeing such clause with open eyes wanted to make offer, pursuant to which the call letter was issued to her by the Corporation well within time. Thereafter, no responsibility lies on the part of the Corporation for such delay.
Thus, we are of the view that no relief, either mandatory or compensatory in nature, can be granted to the petitioner. However, if the petitioner feels aggrieved by the act of the postal department, it is open to her to approach the appropriate forum for any relief including compensatory in nature, if so advised.
With the above observations, the writ petition is dismissed, however, without imposing any cost.
(Justice Amitava Lala) I agree.
(Justice Ashok Srivastava) Dated:23rd May, 2011.
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Hon'ble Amitava Lala, J.
Hon'ble Ashok Srivastava, J.
Under the authority of the Hon'ble Chief Justice additional cause list has been printed for the purpose of delivery of judgement and the same has been delivered at 2.00 P.M. in the Court upon notice to the parties.
The writ petition is dismissed, however, without imposing any cost.
Dt./-23.05.2011.
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For judgement and order, see order of the date passed on the separate sheets (five pages).
Dt./-23.05.2011.
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