Shubham Kumar V. Bihar Public Service Commission and Ors

CWJC/21904/2012

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Shubham Kumar filed a petition under Article 226 of the Constitution challenging the rejection of his application for the post of Assistant Engineer (Civil) by the BPSC. The application was sent by Speed Post on June 21, 2011, but was not received by the Commission by the deadline of June 23, 2011, leading to its rejection. The petitioner argued that the Postal Department, being the agent of the Commission, was responsible for the delay. The court, however, found that the Commission had explicitly disclaimed responsibility for postal delays in the advertisement and that the principle of agency did not apply as argued by the petitioner. The court dismissed the petition, citing binding precedents that supported the Commission's decision to reject late applications.

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 726326 (HC-PATNA)
• Appeal Type: Others
• Pronouncement Date: 13-11-2013
• Assessment Year: misc
• Other Referred Cases: Manas Kumar Sinha Vs. Bihar Public Service Commission, Commr. of Income Tax, Bombay South, Bombay Vs. Messrs Ogale Glass Works Ltd., Ogale Wadi, Dr. Annada Prasad Pattnaik Vs. State of Orissa & Ors., T. Jayakumar Vs. A. Gopu & Anr., Sec. U.P.S.C. & Anr. Vs. S. Krishna Chaitanya, Azamjahi Mills Ltd., Hyderabad Vs. The Commissioner of Income-Tax, Hyderabad, Md. Arif Khan Vs. The Bihar Public Service Commission & Ors., Sri Krishna Nandan Sah Vs. Union of India & Ors., Mohan Jee Yadav Vs. The State of Bihar & Ors.
• Laws Referred To: Article 226 of the Constitution
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: D K SINHA; ANIL SI NGH
• Assessee Lawyers: S D SANJAY; SANJAY PANDEY; SHASHWAT AGRAWAL
• Keywords: Assistant Engineer (Civil); Bihar Public Service Commission; Application Deadline; Postal Department; Agency Principle

Judgement Text

" IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No. 21904 of 2012 ======================================================== Shubham Kumar, son of Sri Ashok Kumar, Vill. – Bhormawa, P.S. – Kawakol, Distt. – Nawada, At present – House No. 112 Subham Sadan Road No. 1, Basant Bihar, Harmu Housing, Ranchi. .... .... Petitioner Versus 1. Bihar Public Service Commission, through Chairman at 15, Jawaharlal Nehru Marg (Baily Road), Patna 2. The Examination Controller, BPSC, Baily Road, Patna 3. Sectional Officer, BPSC, Baily Road, Patna .... .... Respondents ====================================================== Appearance: For the Petitioner/s : Mr. S.D. Sanjay, Mr. Sanjay Kumar Pandey and Mr. Shashwat Agrawal, Advocates. For the Respondent/s : Mr. D.K. Sinha, Sr. Advocate (AAG 2) & Mr. Anil Kumar Singh No. 1, Advocate. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH CAV ORDER The 13th November 2013. (Per: HONOURABLE THE CHIEF JUSTICE) This petition under Article 226 of the Constitution is filed by one Shubham Kumar, an applicant for appointment to the post of Assistant Engineer (Civil) in the Road Construction Department or the Public Health Engineering Department of the State of Bihar pursuant to Advertisement No. 02/2011. The learned single Judge has, under order dated 27th August 2013, referred the matter to the Division Bench. The matter at issue appears to be covered by the judgment of a Patna High Court CWJC No.21904 of 2012 (12) dt. 13-11-2013 2/9 Division Bench of this Court in the matter of Manas Kumar Sinha Vs. Bihar Public Service Commission [2010 (2) PLJR 1008]. However, the learned single Judge was of the opinion that in the matter of Manas Kumar Sinha (Supra), the Bench had not considered the judgment of the Hon’ble Supreme Court in the matter of Commr. of Income Tax, Bombay South, Bombay Vs. Messrs Ogale Glass Works Ltd., Ogale Wadi (AIR 1954 SC 429) and the judgment of the Orissa High Court in the matter of Dr. Annada Prasad Pattnaik Vs. State of Orissa & Ors. (AIR 1989 Orissa 130). The learned single Judge has, therefore, referred the matter to the Division Bench. The petition has thus been notified before us. The matter at issue lies in a very narrow compass. Pursuant to the Advertisement No. 02/2011 published by the Bihar Public Service Commission (hereinafter referred to as ‘the Commission’), the petitioner applied for the post of Assistant Engineer (Civil) under the State of Bihar. The last date for receipt of the applications was 23rd June 2011. Applications were required to be sent either by Speed Post or by Registered Post. The petitioner has been non-suited on the ground that the application was not received by 23rd June 2011, the last date for the receipt of the application. The petitioner was accordingly informed under the letter dated 26th June 2012. Feeling aggrieved, the petitioner has approached this Court under Article 226 of the Constitution. We may note here that pending this petition, under orders made by this Court, the petitioner was allowed to take the competitive written examination and also to appear for interview. It is now the question of declaring the result of the writ petitioner. Patna High Court CWJC No.21904 of 2012 (12) dt. 13-11-2013 3/9 Learned counsel Mr. S.D. Sanjay has appeared for the petitioner. Mr. S.D. Sanjay has submitted that the petitioner had sent his application by Speed Post on 21st June 2011. The said application ought to have been delivered to the Commission latest by 23rd June 2011. If the Postal Department, the chosen agency of the Commission, failed to deliver the application made by the petitioner by 23rd June 2011, the petitioner cannot be non-suited for late delivery of the application. He has submitted that the Postal Department being the agent and the Commission being the employer, the employer is responsible for the failure of the agent in performing its duty. He has next submitted that there is no machinery to verify the date of delivery to the Commission. He has submitted that had the Commission informed the petitioner about the late delivery soon after such delivery, the petitioner could have collected information from the Postal Department. However, in the present case, although the Commission had received the application made by the petitioner and had also acknowledged the receipt of the said application on 14th December 2011, it did not communicate the rejection of his application until 26th June 2012, more than a year after the petitioner sent the application to the Commission. After more than a year, the Postal Department did not have the relevant records. Thus, the petitioner is deprived of the opportunity to controvert the statement made by the Commission. In the submission of Mr. S.D. Sanjay, in any view of the matter, the petitioner has now taken the competitive written examination and has also appeared for the viva voce. The question is that of declaring the result. He has also submitted that against 145 vacancies advertised for the unreserved categories, only 122 appointments have been made. If Patna High Court CWJC No.21904 of 2012 (12) dt. 13-11-2013 4/9 the petitioner were declared to be successful, he can be accommodated in the unfilled vacancy without disturbing any person recruited and appointed pursuant to the aforesaid Advertisement No. 02/2011. Mr. S.D. Sanjay has tried to distinguish the judgment of this Court in the matter of Manas Kumar Sinha (Supra). He has submitted that in that case, the Bench did not grant relief to an aspirant Judicial Officer only on the ground that he had approached the Court late, i.e. after the preliminary examination had already been conducted. He has submitted that in the present case, the petitioner having approached this Court in good time and the petitioner having taken the competitive written examination with other candidates and he has also been allowed to appear at the oral interview, there is no impediment in the way for declaring the result of the petitioner, and if successful, in appointing him as an Assistant Engineer (Civil). In support of his submission, Mr. S.D. Sanjay has relied upon the judgments of the Hon’ble Supreme Court in the matters of Commr. of Income Tax, Bombay South, Bombay (Supra), Azamjahi Mills Ltd., Hyderabad Vs. The Commissioner of Income-Tax, Hyderabad (AIR 1976 SC 1172) and of the Orissa High Court in the matter of Dr. Annada Prasad Pattnaik (Supra) and the interim order made by this Court in the matter of Md. Arif Khan Vs. The Bihar Public Service Commission & Ors. [1998 (3) PLJR 901]. The petition is contested by the Commission. Learned Additional Advocate General Mr. D.K. Sinha has appeared for the Commission. Mr. Sinha has submitted that the matter at dispute is no more res integra. The petitioner having Patna High Court CWJC No.21904 of 2012 (12) dt. 13-11-2013 5/9 failed to deliver his application within the time specified, his application could not be accepted. Although he has been allowed to take the competitive written examination and has been allowed to appear for the interview, his result has rightly been withheld as he had no right to take the examination at the foremost. In support of his submissions, Mr. D.K. Sinha has relied upon the judgment of this Court in the matter of Manas Kumar Sinha (Supra); of the Hon’ble Supreme Court in the matters of T. Jayakumar Vs. A. Gopu & Anr. [(2008) 9 SCC 403] and of Sec. U.P.S.C. & Anr. Vs. S. Krishna Chaitanya [2011 (4) PLJR 196 (SC)]. The submissions made by Mr. S.D. Sanjay centeres around the judgment of the Hon’ble Supreme Court in the matter of Commr. of Income Tax, Bombay South, Bombay (Supra). We will, therefore, first consider the said judgment. The above matter before the Hon’ble Supreme Court arose from a matter arising under the Indian Income-tax Act, 1922. The assessee M/s Ogale Glass Works Ltd. was a non- resident Company and was carrying on business in the State of Aundh outside British India. The assessee had a contract for supply of goods to the Government of India. The Government of India at Delhi paid the bill amount by cheques drawn on the Reserve Bank of India, Bombay Branch. The cheques were received by the assessee at its office in Aundh and were honoured in due course by the Reserve Bank at Bombay. The question was whether the assessee received income or profit or gain in respect of the said sales in British India. In other words, the question was whether the assessee Company had received the sale proceeds at Bombay within British India or had received the money in Aundh Patna High Court CWJC No.21904 of 2012 (12) dt. 13-11-2013 6/9 outside the British India. The Hon’ble Supreme Court applying the principles under the Negotiable Instruments Act, 1881 and considering the terms of the contract held that the delivery of the cheque to the Post Office at the request of the addressee was the delivery to the addressee. The debtor had performed its part of contract. The Hon’ble Court held, “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. Of course if there be no such request, express or implied, then the delivery of the letter or the cheque to the post office is delivery to the agent of the sender himself.” The aforesaid judgment has been followed by the Orissa High Court in the matter of Dr. Annada Prasad Pattnaik (Supra). The Court held that the applicant was not responsible if the Postal Department failed to deliver the application to the Commission within the time specified. Mr. S.D. Sanjay has vehemently submitted that in the present case, the aforesaid principle of ‘Agency’ would apply. The Commission having Patna High Court CWJC No.21904 of 2012 (12) dt. 13-11-2013 7/9 insisted that the application be sent by Speed Post or by Registered Post, the Postal Department is the agent of the Commission and is obliged to deliver the application within time. The delivery to the Postal Department was, therefore, the delivery to the Commission. Admittedly, the petitioner had delivered his application on 21st June 2011. The application is, therefore, deemed to have been received by the Commission on 21st June 2011, well before the last date for receipt of the applications. We are afraid, we are unable to agree with Mr. S.D. Sanjay. The advertisement in question expressly provided that the applications should be sent either by Speed Post or by Registered Post and that the applications shall be received at the office of the Commission at Patna latest by 5 O’clock in the afternoon on 23rd June 2011. It also specified that in case, on account of delay by the Postal Department, the applications were received by the Commission after the specified date, such applications would not be accepted by the Commission. In view of these specific instructions to the candidates, the Commission is not obliged to receive / accept the applications received after the specified date and time, irrespective of the date it was delivered to the Postal Department. We are also of the opinion that the principle of ‘Agency’ invoked by the Hon’ble Supreme Court cannot be invoked in the cases like the present one. Had the Postal Department been the agent of the Commission, the Commission would be required to accept the delivery to the Postal Department as the delivery to itself. On the contrary, in the advertisement itself the Commission disowned any liability for the delay by the Postal Department. In our view, the above referred judgment of Patna High Court CWJC No.21904 of 2012 (12) dt. 13-11-2013 8/9 the Hon’ble Supreme Court is not applicable to the facts of the present case; nor the view taken by the Orissa High Court is a correct proposition. We are of the opinion that the Orissa High Court has failed to appreciate that the Hon’ble Supreme Court had decided the matter in an entirely different context. The principle is, therefore, not applicable in the matter before us. In the matter of T. Jayakumar (Supra), the dispute related to the appointment of Extra Departmental Branch Post Master in the Postal Department. The Hon’ble Supreme Court upheld the action of the Postal Department in rejecting the application made by the respondent no. 1 on the ground that the first application made by the respondent no. 1 was defective and the second application made by him was received after the last date for receipt of the applications mentioned in the advertisement. Same is the view expressed by the Hon’ble Supreme Court in the matter of S. Krishna Chaitanya (Supra) and by the Division Bench of this Court in the matter of Manas Kumar Sinha (Supra) and is followed in the matters of Sri Krishna Nandan Sah Vs. Union of India & Ors. [2012 (3) PLJR 173] and in Mohan Jee Yadav Vs. The State of Bihar & Ors. [2012 (4) PLJR 995]. Now that we have held that the decision of the Hon’ble Supreme Court is not applicable to the facts of the present case; the judgment of the Orissa High Court is not a binding precedent; the only binding precedents are the judgment of the Hon’ble Supreme Court in S. Krishna Chaitanya (Supra) and of this Court in the matter of Manas Kumar Sinha (Supra). In view of the aforesaid binding precedents, the petition should Patna High Court CWJC No.21904 of 2012 (12) dt. 13-11-2013 9/9 fail. The petitioner having failed to deliver the application by the specified date, his candidature has rightly been rejected by the Commission. For the aforesaid reasons, the petition is dismissed. NAFR Dilip. (R.M. Doshit, CJ) Ashwani Kumar Singh, J.- I agree. (Ashwani Kumar Singh, J) "