JUDGMENT Amitava Lala, J.
1. An interesting point is involved in the writ petition. The writ petitioner is a candidate of an examination to be held under the supervision of Public Service Commission, Uttar Pradesh, Allahabad. One of the conditions about the modes of making application "how to apply" speaks as under:
"...Application complete in all respects must reach the "Secretary, (Deptt No...) Public Service Commission, U.P., 10 Kasturba Gandhi Marg, Allahabad-211018" at the Commission's office either by registered post or by hand upto 5.00 p.m. on or before 22nd July, 2005."
2. Therefore, there are two modes of making application as aforesaid.
3. The petitioner contended that he sent his application through registered post on 14th July, 2005 from a place 100 Kms. from the Commission's office at Allahabad but the Commission refused to accept the same since it was reached to the office on 28th July, 2005 after expiry of the last date. According to the petitioner, there is no fault on the part of the petitioner in making the application. Therefore, such application should have been accepted by the Commission. Since the same has not been done, the writ jurisdiction has been invoked for the purpose of giving direction upon the Commission to accept the application and to permit the petitioner to sit for the interview. In the alternative for a direction upon such authority to decide the petitioner's representation dated 22nd August, 2005.
4. A question arose before this Court whether the Post Office is an agent of the Public Service Commission in this case or not. If so, as soon as the application is posted with the local post office the duty of the applicant is discharged. Responsibility lies with the Commission, if not received within the time prescribed in the advertisement inviting applications.
5. We have come across several important judgments either passed by this High Court or the Supreme Court to come to a definite conclusion in respect of the subject matter herein. In 2000 (4) E.S.C. 2483 (All.) (Shashi Bhushan Kumar v. U.P. Higher Education Services Commission and Anr.) a Division Bench of this Court directed the Higher Education Services Commission to entertain the application although it was received to it after expiry of the last date. There the condition was that it will be sent by Parcel/Speed Post. In the same judgment the Division Bench of our High Court distinguished the ratio of another judgment reported in 1987 UPLBEC 316 (Ram Autar v. Public Service Commission and Ors.) In distinguishing part it has held that so far as the decision of the Division Bench in Ram Autar (supra) is concerned it was no doubt held therein that the application sent by registered post if received after expiry of the last date, it will be liable to be rejected. But the relevant portion of the advertisement as quoted by the Division Bench in its judgment do not expressly or by necessary implication establish an agreement inviting the applications through post office and as such the Division Bench decision on facts is not applicable. As we have understood from the prescriptions in both the judgments that when in the earlier case no mode of making application was prescribed, in the later case only one mode of making application by parcel/speed post was prescribed. Therefore, according to us both the Division Bench judgments are justified on their own stand. Neither of the cases prescribed having two modes when one mode is availed and other mode is not availed, Commission can be held liable or not. Having so, matter should have been sent to the Larger Bench.
6. It is to be remembered that we can deal with the cause against the Commission but not against the Postal authorities, unless of course, it is proved beyond doubt that such authorities are the exclusively agent of their principal i.e. Commission. It can only be done when addressee i.e. Commission expressly or impliedly made such arrangement. Here both the avenues i.e. principal to principal and principal to agent are open. The question is that whether right of making application is otherwise preserved/protected by the Commission or not. If it is protected otherwise and if not availed, the Commission can not be held responsible.
7. As per the ratio of (Union of India v. 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 judgment dated 19th September, 2005 in Appeal (Civil) No. 1619 of 2005 (Unit Trust of India v. 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 judgments have been referred herein. First one is reported in AIR 1966 SC 1466 (V 56 C 288) (The Indore Malwa United Mills Ltd. v. 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. "(Emphasis supplied)
8. Therefore, the mode of sending the cheque was only by post.
9. In (Vol.41, C.N.104) (Commr. of Income tax, Bombay South, Bombay v. Messrs Ogale Glass Works Ltd., Ogale Wadi) the Supreme Court held again in a case of Income Tax Act and Contract Act about sending cheques by post, as under:
"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. 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 on the specious plea that the sender having the very limited right to reclaim the cheque under the Post Office Act, 1898, the Post Office was his agent, when in fact there was no such reclamation."(Emphasis Supplied)
10. Again in this case we find that a request was made by the addressee to the sender to send the cheque by post and for the same he could not avoid the responsibility. Sometimes in the cases between landlord and tenant we find notice is required to be served by post in accordance with law and if not served following such prescription, such notice can not be construed as a valid notice.
11. 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.
12. Hence, the writ petition stands dismissed.
13. However, no order is passed as to costs.
14. However, this petitioner is not prevented from taking action against the postal authority in connection with wrongful discharge of public duty, if so advised.