Petitioner has approached this court for following relief, which is being quoted below:-
(a) Issue a writ, order or direction in the nature of Mandamus directing the respondent no.1 to permit the petitioner to appear provisionally in the examination of clerk of Grade-III and IV which is likely to be conducted in near future and the result of the examination may be declared.
(b) Issue any other writ, order or direction, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
c) Award costs of the petition to the petitioner.
Brief background of the present case is that advertisement was published on 23.7.2010 by the District Judge, Mathura for making appointment of Class III and Class IV post at the Judgeship of Mathura. Petitioner claims that she filled up her application form for consideration of her candidature as Clerk Grade-III on 20.8.2010. Petitioner has stated that her application form has been returned back on 7.10.2010 with the endorsement of word 'Refused' on the envelop in which petitioner has sent her application form. Petitioner has thereafter approached this court contending therein that once she has sent her application form well before the prescribed date i.e. prior to 21.8.2010, then in such a situation and in this background her candidature could not have been non suited as has been done in the present case.
Counter affidavit has been filed on behalf of the Judgeship of Mathura mentioning therein that application form of the petitioner was not received at the Judgeship well within time provided for and further it has been stated that petitioner had posted her application form on 20.8.2010 and in such a situation and in this background once application had not been received well within time provided for then this court cannot come to the rescue of the petitioner. Coupled with this it has also been mentioned that in the format of the application, clear cut note was appended that application can also be submitted in hand and in such a situation post office is not sole agency through which application form can be sent or submitted, in this background request has been made to dismiss the writ petition.
Rejoinder affidavit has been filed disputing the averments mentioned therein and contending that petitioner posted her application form by speed post on 20.8.2010 and respondents have not given exact date of receipt as such writ petition deserves to be allowed.
After pleadings mentioned above, have been exchanged, and thereafter, present writ petition has been taken up for final hearing/disposal with the consent of the parties.
Ms. Vatsala, Advocate, learned counsel for the petitioner contended with vehemence that in the present case single mode of sending application form by post was provided for in the advertisement and once before expiry of aforementioned date i.e. 20.8.2010 application form was sent as such in all eventuality request of the petitioner was liable to be considered for permitting her to appear and undertake examination as such return of application is perse bad and said action cannot be subscribed.
Countering the said submission, learned counsel holding brief of Pradeep Kumar, Advocate on the other hand contended that in the present case no relief can be accorded to the petitioner as she has sent her application form on 20.8.2010 and by 5.00 p.m. on 21.8.2010 application form of petitioner had not been received, as such no relief whatsoever can be accorded to the petitioner and specially when there has been dual mode provided for submitting application form.
After respective arguments have been advanced, undisputed factual position, which is emerging in the present case that petitioner filled up her application form pursuant to the advertisement dated 23.7.2010. Petitioner sent her application form on 20.8.2010 and said form was required to reach the office of District Judge, Mathura by 5.00 p.m. on 21.8.2010. Said form has not at all reached to the office of the District Judge, Mathura by 5.00 p.m. on 21.8.2010. Counter affidavit proceeds to mention that all such application form which had not been received by fixed time and qua the same directives were given to postal authority not to send any envelop after 21.8.2010. Categorical stand has been taken that all the application which were received either through registered post or received in person by 5.00 p.m. of 21.8.2010 have been accepted and as petitioner's form has not at all been handed over by the post office concern and as such application form could not have been entertained and accepted as per terms and conditions of advertisement. Once this is factual situation that application form had not been received by 5.00 p.m. on 21.8.2010 then in such a situation this Court can be ask respondents to entertain and accept the application form of the petitioner.
Full Bench of this court in the case of Neena Chaturvedi Vs. Public Service Commission, Uttar Pradesh and others 2010(9) ADJ 152 (FB) has already considered the issue and has clearly answered that once application form is not received well within closing time as prescribed then even though post office may be agency, respondents cannot be forced to accept the candidature as it would create manifest inconvenience and absurdity. Said view has been expressed in the case wherein single mode of service has been provided for sending application form. Relevant para 5,32,33,43,45 are being extracted below:-
5. The question that can be formulated for consideration would be when applications are invited, one through post office and the other by any other means or only through post, does the post office become the agent of the addressee, because there is express or implied authorisation by the addressee to send the articles by post."
32. Having said so, to re-state the law, we may revisit the issue. In the instant case, the applicant applied to a body which has invited applications by a cut-of-date. Even if the post office was an agent, all that the agent agrees to do is to deliver the letter or parcel within the reasonable period of time as noted by the Division Bench in the case of Pramod Kumar Singh (supra).
33. Apart from that insofar as the entire process of recruitment is concerned, may be in the office of respondent or any other body, which invites applications, if view is accepted that the post office becomes the agent of the addressee, the very process of recruitment itself would be frustrated. A contract between the sender and the post office cannot bind the addressee. Even otherwise accepting a proposition that the post office becomes the agent of the body which invited the applications would lead to manifest inconvenience and absurdity. For how long would such body have to wait for receipt of applications sent by post to conduct the interview, or hold the examination and what happens in cases where the application is lost through transit. Therefore when applications are to be received by a particular cut off date assuming that there is an offer and acceptance, receipt of the application by that cut off date only would make the acceptance complete.
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.
45. Even in respect of an agency the same is based on the principle, that the Principal is bound by the acts of the agent. Rule of agency in a case of merely inviting offers normally would not apply if a date for receipt of the acceptance is set out. Therefore, in such cases, if at all the law of agency applies it would be between the sender and the post office by virtue of the fact that the sender delivers the letters or articles to the post office. The post office is bound as an agent of the sender to deliver it to the addressee.
Law thus has been clarified that even when applications are to be received by a particular cut of date assuming that there is an offer and acceptance, receipt of the application by that cut-off -date only would make the acceptance complete.
In such a situation and in this background once petitioner has sent her application form on 20.8.2010 and said application has not been received by closing time of 5.00 p.m. on 21.8.2010 then it will not make the acceptance complete, inasmuch as even if post office is an agent, at no point of time, it had ever assured the petitioner that in all eventuality said application would reach before the cut of date as fixed in the advertisement in question, as such no interference is being made with the action impugned.
Consequently, present writ petition is dismissed.
Dt. 14.12.2010 T.S.