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2014 DIGILAW 484 (ORI)

Aurobinda Das v. State of Orissa

2014-08-12

B.K.DASH, S.N.DASH

body2014
ORDER : B.K. DASH, J. The applicant who is serving as Assistant Surgeon in District Headquarters, Hospital, Nayagarh has approached this Tribunal for a direction to respondent NO.3 for giving him appointment as Tutor/Senior Resident in Orthopaedic Surgery in M.K.C.G. Medical College and Hospital, Berhampur. 2. In brief, the case of the applicant is that pursuant to the advertisement in Oriya Daily "The Samaj" dtd.09.07.2013 for engagement of Senior Resident/Tutor in Government Medical College, Berhampur, the applicant submitted his application through Speed Post on 29.7.2013. Though the applicant was declared to have passed M.Sc. Degree and applied for registration before the Orissa Council of Medical Registration, the registration number was not made available to him till' 27 .4.2013. The registration before the Orissa Council of Medical Registration being one of the criteria, he could not submit his application prior to receipt on 27.4.2013. Immediately after receipt of the registration number, he rushed to Berhampur and submitted the application to be dispatched through Regd. Post in the Head Post Office, Berhampur on 29.4.2013. On query, he ascertained that the application was received by respondent NO.3 on 30.4.2013 and was rejected due to late receipt. Thereafter, he met respondent NO.3 and on his advice he submitted a representation to consider his candidature, but without considering such representation, respondent NO.3 prepared a provisional list on 21.8.2013, overlooking his merit. On an assessment, the career marking of the applicant comes to 66.75 which is much higher than the career mark secured by respondent NO.5 who has secured 64.01 marks. Had the application of the applicant been considered, he would have been selected for appointment in the Orthopedic Surgery. As the applicant was not allowed to appear in the counseling on 21.8.2013, he participated in the counseling on 22.8.2013 in V.S.S. Medical College and Hospital, Burla and was selected in Orthopedic Surgery and appointment letter was issued in his favour. It is further averred that the applicant came to know about the filing of O.A No. 3055/(C)/2013 by one Dr. Prakash Chandra Malia, where by an interim order, the Tribunal directed that the counseling of Senior Resident/ Tutor in Orthopedic Surgery shall be subject to outcome of the O.A. with a further direction to keep the result in sealed cover and shall not be published without leave of the Tribunal. However, pursuant to direction of the Tribunal, counselling was held on 6.9.2013. However, pursuant to direction of the Tribunal, counselling was held on 6.9.2013. It is also averred that one Dr. Sambit Kumar Panda and Dr. Tushar Ranjan Dalei whose name appeared in the merit list did not turn-up for admission for which two vacancies are available. Taking into consideration the career marking, the applicant is expected to get appointment as Senior Resident/Tutor in M.K.C.G. Medical College and Hospital, Berhampur. It is further stated that Sri Gopabandhu Patra who was selected to appear for counseling, has also attended the counselling in V.S.S. Medical College on 22.8.2013 and his name is reflected in Serial No.1 of the waiting list. As Sri Gopabandhu Patra is interested for the post of Senior Resident in Orthopedic Surgery in V.S.S. Medical College and Hospital, Burla there appears no difficulty for his appointment in Orthopedic Surgery in M.K.C.G. Medical College and Hospital, Berhampur, if his candidature/application is considered for the said post. As the applicant has submitted his application on 29.7.2013 in the Head Post Office, Berhampur which is well in time and the post office acted as the agent of respondent No.3, the application of the applicant shall be treated to have been received in time and is to be accepted for consideration. Since the respondent did not accept the application, the applicant having no other alternative approached this Tribunal claiming the relief as noted above. 3. Respondent NO.3 in his counter denied the allegation that the selection was made without following the guidelines as atAnnexure-3 and ineligible candidates have been selected. It is pleaded that the applicant completed his P.G. cours•e on 10.7.2013 and the result was published on 12.7.2013, who registered his additional qualification under Orissa Counselling for Medical Registration, Bhubaneswar on 23.7:2013 and not on 27.4.2013, as stated by him. The application submitted by the applicant was received on 31.7.2013 i.e. beyond the stipulated date, for which the same was not accepted and might have been returned to the applicant. The applicant again submitted a written application, but the Selection Committee rejected the same on 21.8.2013 due to late receipt. So far as the selection of Dr. Gopabandhu Patra, respondent NO.5 is concerned, it is submitted that his name appeared in the merit list as per the marks secured by him. The applicant again submitted a written application, but the Selection Committee rejected the same on 21.8.2013 due to late receipt. So far as the selection of Dr. Gopabandhu Patra, respondent NO.5 is concerned, it is submitted that his name appeared in the merit list as per the marks secured by him. The applicant has been selected and appointed as Senior Resident in Orthopedic in V.S.S. Medical College and Hospital, Burla with a further direction to join within ten days from 22.7.2013 and as per the guidelines as atAnnexure3, he is ineligible for consideration for appointment as Senior Resident in M.K.C.G. Medical College and Hospital, Berhampur. It is admitted that Dr. Prakash Chandra Malia has approached this Tribunal in O.A. No. 3035(C)/ 2013 and as per the interim order of the Tribunal, the result have been kept in sealed cover. The averments that Dr. Sam bit Kumar Panda and Dr. Tushal Ranjan Dalei did not turn up to take admission as they were doing senior resident ship in other institutions was not denied. However, it is alleged that as the application of the applicant was received beyond the stipulated date, there is no scope for consideration and accordingly, the O.A. is liable to be dismissed. 4. Considering the pleadings of the applicant and the counter filed by respondent No.3, the following issues emerges for consideration: 1. whether the application of the applicant needs consideration when he has submitted the same through Speed Post on 29.7.2013 and was not delivered to respondent within the stipulated date 2. whether the applicant is entitled to the benefit of postal delay; 3. whether the selection was made to the post of Tutor/Senior Resident in violation of the stipulation as at Annexure-1. 5. Learned Senior Counsel, Mr. B. Routray appearing for the applicant strenuously argued that as per the stipulation in the advertisement, application was to be submitted by Regd. Post/Speed Post only which should have reached the office of the Principal, Dean and Principal-cum-Convenor of Counselling Committee, M.K.C.G. Medical College, Berhampur by 30.7.2013. When the applicant has submitted his application on 29.7.2013, it is deemed to have been submitted in time and the applicant is not responsible for its delayed delivery and his application is to be entertained for consideration. Relying on the decision reported in AIR 1989 Orissa 130 : 1989 (1) OLR 38 (Dr. When the applicant has submitted his application on 29.7.2013, it is deemed to have been submitted in time and the applicant is not responsible for its delayed delivery and his application is to be entertained for consideration. Relying on the decision reported in AIR 1989 Orissa 130 : 1989 (1) OLR 38 (Dr. Annanda Prasad Pattnaik v. State of Orissa and others) and AIR 1997 Andhra Pradesh 79 (V. Ramesh v. Convenor, EAMCET, 1995, Jawaharlal Nehru Technological University, Hyderabad), it is contended that when the respondent authority have invited application to be submitted only through the Regd. Post/Speed Post, they have chosen the postal authority as their agent and application submitted to the postal authority, means delivery/presentation of the application before the appropriate authority and the applicant is not responsible for any delay in delivery of the application. The candidature of the applicant is not liable to be rejected on this ground only. Learned counsel for the applicant further contended that the Selection Committee have not adopted due procedure of selection as laid down in the Government guidelines at Annexue-3 and have selected ineligible candidate like respondent NO.5 and thereby deprived the eligible and meritorious candidates like the applicant. The entire process of selection and the merit list prepared vide Annexure-7 therefore is liable to be quashed. 6. Learned Government Advocate on the other hand basing on the averments made in the counter submitted that as per the stipulation made in the advertisement the last date of receipt of application form was on or before 5.00 P.M. of 30.7.2013 but the application of the applicant was not received by the stipulated time and was received on 31.7.2013 for which it was rightly not accepted. No advantage should be given to the applicant for postal delay, as it was his duty to despatch the application well in time, so as to reach on or before the time fixed in the advertisement. So far as the selection of Dr. Gopabandhu Patra, he has been selected on the basis of career marking. Since the application of the applicant was not received in time, his candidature was not considered nor can be considered and his grievance is not maintainable and is liable to be rejected. 7. It is not disputed that the applicant applied for the post of Tutor/Senior Residents in Orthopedic Surgery, pursuant to the advertisement as at Annexure-1. Since the application of the applicant was not received in time, his candidature was not considered nor can be considered and his grievance is not maintainable and is liable to be rejected. 7. It is not disputed that the applicant applied for the post of Tutor/Senior Residents in Orthopedic Surgery, pursuant to the advertisement as at Annexure-1. It is also not disputed that the application was not delivered to respondent NO.2 in time i.e. by 5.00 P.M. of 30.7.2013, though he has submitted the same in the post office on 29.7.2013 to be sent through Speed Post, as the mode of submission of the application was by Regd. Post/Speed Post only. The applicant had no other option than to send it by Speed Post which was in time. The applicant thus has submitted his application in time and is not at fault for delayed delivery of the letter. Respondent NO.2 denied consideration of the application of the applicant on the ground that it was received after the due date i.e. on 31.7.2013. 8. Leaned Government Advocate vehemently argued that in the advertisement it was stipulated that application received after due date will not be accepted. Accordingly, the applicant ought to have submitted the application well in advance so that it could have reached respondent NO.3 in time. . 9. In order to support his contention that the applicant is not responsible for the delayed delivery of the application, learned counsel for the applicant placed reliance on the decision reported in AIR 1989 Orissa 130 (Dr. Annanda Prasad Patnaik v. State of Orissa and others). The fact of the present case is similar to the case of Dr. Annanda Prasad Pattnaik v. State of Orissa and others. The applicant in the said case applied to take up entrance examination for undergoing second year P.G. course in Government Medical Colleges. As per the stipulation in the advertisement, application in the prescribed form was to reach the Convenor Principal, M.K.C.G. Medical College, Berhampur by 30.5.1988 during office hours by Regd. Post only. He posted the application on 27.5.1988 in the post office located in the campus of M.K.C.G. Medical College, Berhampur. Though the post office is located at a distance of 100 yards from the office of the Convenor, the application was received on 1.6.1988. Post only. He posted the application on 27.5.1988 in the post office located in the campus of M.K.C.G. Medical College, Berhampur. Though the post office is located at a distance of 100 yards from the office of the Convenor, the application was received on 1.6.1988. Similar question was raised whether application received beyond the date fixed is to be accepted or not, when the only mode of delivery of the application was through Regd/Speed Post. When submission of the application was by Regd. Post only and not by any other mode, the post-office acted as the agent of the addressee and delivery of the application in the post office amounts to delivery of the application to the Convenor. After examining the position, the Hon'ble Court held as follows: "Para-6.3 of the prospectus as well as the admission notice stipulated that the application could only be sent "by Registered post only and not by any other manner". Hence, the petitioner could not have been delivered his application in the office of the Convenor even if he wanted to. He had to post and. did post in the post office located inside the campus of the college barely 100 yards away from where the office of the Convenor is located. By requiring the applicant to send his application through post, the Convenor nominated the post office as his agent. Therefore, if the application was received in the office of the Convenor on 1.6.1988, the petitioner cannot suffer. It should be deemed to have been delivered on 27.5.1988. Having regard to the distance that the letter was to travel, posting three days before cannot be considered to be unreasonable. The petitioner, therefore, should not suffer for the same time the letter took in its journey of 100 yards from the post office to the office of the Convenor." 10. Similar question has also been examined by the Hon'ble Apex Court in the case of Commissioner of Income Tax, Bombay South v. Mrs. Ogale Glass Works Ltd. reported in AIR 1954 Page 429 where it was observed that: "xx 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. Ogale Glass Works Ltd. reported in AIR 1954 Page 429 where it was observed that: "xx 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. xx 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 way 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. xx Apart from this principle of agency there is another principle which makes the delivery of the cheque to the post office at the request of the addressee a delivery to him and that is that by posting the cheque in pursuance of the request of the creditor the debtor performs his obligation in the manner prescribed and sanctioned by the creditor and thereby discharges the contract by such performances (see Sec. 50 of the Contract Act and illustration (d) thereto). 11. This principle has been reiterated by the Supreme Court in the case of Jagdish Mills Ltd. v. Commissioner of Income Tax AIR 1959 SC 1166 and Kirloskar Pvt. Ltd. v. Commissioner of Income Tax, Bombay, reported in AIR 1952 Bombay 306 where it was observed that "it was only in those cases where the receiver nominated the post office as his agent that the posting of letter constituted the receipt of it by the receiver at the time and at the place where the letter was posted. When the post office was not nominated as an agent of the receiver, then by posting the letter the sender constituted the post office his agent and when the letter was delivered to the receiver, it was delivered by the agent of the sender and not of the receiver." 12. When the post office was not nominated as an agent of the receiver, then by posting the letter the sender constituted the post office his agent and when the letter was delivered to the receiver, it was delivered by the agent of the sender and not of the receiver." 12. Following the above principle laid down by the Supreme Court and Hon'ble High Court of Orissa in the decision referred to above, we are unable to accept the argument of learned Government Advocate that the application of the applicant merits no consideration for its delayed delivery. As held in the decision the applicant shall not suffer for such delay. In view of the stipulation in the advertisement that the application is to be sent by Regd. Post/Speed Post only, there was no scope for the applicant to deliver the same in any other mode and delivery of the application in the post office on 29.7.2013 amounts to delivery of the application to respondent No.2 as the post office acted as the agent for respondent No.2. Accordingly we hold that there was no delay in receipt of the application and the application of the applicant has to be considered for admission to the post of Tutor/Senior resident. So far as respondent No.5 is concerned, his case was considered on merit and he being found suitable on the basis of career marking he was selected for counselling. Now his candidature is to be considered vis-a-vis the candidature of the applicant. 13. Be that as it may, in view of the above discussion, we hold that the applicant has submitted his application for the post of Tutor/ Senior Resident in Orthopaedic Surgery, in time and consequently quash the merit list as per Annexure-7 so far as it relates to respondent No.5 in Orthopaedic Surgery and direct Respondent NO.3 to prepare fresh merit list considering the application/candidature of the applicant along with other eligible candidates, including respondent NO.5 and in the event the applicant is found otherwise suitable as per the Government guidelines and criteria/stipulation in the advertisement and secure position in the merit list, take appropriate action for his appointment after maintaining all necessary formalities. 14. The entire exercise be completed within a period of one month from the date of receipt of a copy of this order. Ordered accordingly.