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2018 DIGILAW 771 (ALL)

DOMESH RAJPOOT v. STATE OF U. P.

2018-04-02

VIVEK KUMAR BIRLA

body2018
JUDGMENT Hon’ble Vivek Kumar Birla, J.— Heard Sri V.K. Singh, learned counsel for the petitioner and Ms. Shivi Mishra, learned counsel appearing for the respondents and perused the record. 2. Counter and rejoinder-affidavits have been exchanged and with consent of learned counsel for the parties, present petition is being decided at the admission stage itself. 3. Present petition has been filed challenging the order dated 26.10.2012 passed by the Director General, Medical and Health Services, U.P., Lucknow. A further prayer in the nature of mandamus has been made to direct the respondents to forthwith accord consideration to the petitioner for appointment as Pharmacist while undertaking proceedings for appointment of persons having obtained Diploma in Pharmacy in the 2000 and to grant appointment to the petitioner within a period to be specified by this Hon’ble Court. 4. Brief facts of the present case are that pursuant to advertisement dated 12.11.2007 the petitioner applied for appointment on the post of Pharmacist and sent his application form by registered post on 30.11.2007, however, on the basis of the information provided on the website the opposite parties informed that the application form of the petitioner is not available. Thus, the stand is that it was not received by the respondents department. Under such circumstances, the petitioner approached this Court by way of filing Service Single No. 5030 of 2012 (Domesh Rajpoot v. State of U.P. and others), which was disposed of vide order dated 20.9.2012 with a direction to the opposite party No. 2 therein to decide the representation of the petitioner which was rejected by the respondent No. 2, the Director General, Medical and Health Services, U.P. Lucknow on the ground that his application was not received in the department and therefore, he cannot be considered for appointment on the post. 5. Submission of the learned counsel for the petitioner is that the petitioner has sent a duly filled up form by registered post, which was despatched on 30.11.2007 whereas the last date for submission of application form was 5.12.2007. The aforesaid registered letter was not returned undelivered to the petitioner, therefore, the same is to be treated as having been delivered to the authority concerned within time. It is submitted that the impugned order has been passed on the basis of non-receipt of the application form without verification of records. The aforesaid registered letter was not returned undelivered to the petitioner, therefore, the same is to be treated as having been delivered to the authority concerned within time. It is submitted that the impugned order has been passed on the basis of non-receipt of the application form without verification of records. Citing the example of one Arvind Kumar Singh, whose claim was also rejected on the identical ground that no application form was received but he has been granted appointment on 10.1.2013, submission is that this itself proves that the ground taken in the impugned order is incorrect and false. It was further submitted that only one method i.e. submission of form by registered post/speed post/courier was provided and therefore, once the form was despatched within time, the petitioner cannot be held responsible for the delay or non-receipt of the same and his application form is liable to be considered and he is entitled for grant of appointment pursuant thereto. 6. Per contra, learned Standing Counsel appearing for the respondents submits the form submitted by the petitioner was not received by the respondents and therefore, the respondent authorities are not responsible and the petitioner is not entitled for any relief. Insofar as the case of Arvind Kumar Singh is concerned, it is submitted that his case was duly considered and it was found that his application was received by the department and his form number was 01517 and it is only for this reason he was selected and he was issued appointment letter whereas the petitioner’s form was never received. It was further pointed out that apart from Arvind Kumar Singh, no appointment letter has been issued in favour of any other candidates as referred in paragraph 25 of the writ petition. Submission, therefore, is that present petition is devoid of merit and is liable to be dismissed. 7. I have considered the rival submissions and perused the record. 8. In the impugned order, it has been categorically mentioned that the application form of the petitioner was not received in the office and therefore, since the application form was not received within time, therefore, the applicants cannot be considered for grant of appointment as per Rules. 9. 7. I have considered the rival submissions and perused the record. 8. In the impugned order, it has been categorically mentioned that the application form of the petitioner was not received in the office and therefore, since the application form was not received within time, therefore, the applicants cannot be considered for grant of appointment as per Rules. 9. The question the application form sent by the petitioner as alleged by registered post on 30.11.2007 before the last date for submission of form by post is to be treated to be a valid submission of application form within time or not, has already been considered by the Hon’ble Full Bench of this Court in Neena Chaturvedi v. Public Service Commission, U.P. Allahabad, 2010(9) ADJ 152 (FB), relevant paragraphs 5, 33 and 39 whereof are quoted as under: “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. “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. 39. 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. 39. If applications are invited by addressee for an interview or recruitment from eligible members from the general public, by advertisement either expressly by one mode or more, one of which is post office, when an applicant chooses to send his application through post, though the letter is posted in time but delivered late after last date of receipt, the question that arises for consideration is : “On an offer being made by advertisement, and an acceptance is sent by post, when does the acceptance become complete, on the date of receipt of the acceptance in the post office or its receipt by the addressee.” On an advertisement being issued by the offeror inviting applications through post and the sender (applicant) sends application through post (acceptance) but the same does not reach by the date mentioned in the advertisement, will the postal rule apply? The offeror in such cases, apart from inviting applications also lays down as one of its terms, that applications have to be received by a particular date. The offer therefore made if any, is receipt of the application through the post by a particular date. The postal rule however applies, the moment an acceptance is posted through post, then the post office becomes the agent of the addressee (offeror). An advertisement inviting applications for examination or recruitment is merely an invitation to offer and not an offer itself. The person who sends his application by post or by any other mode assuming it is based on an offer, must send the acceptance by the particular date, in terms of offer. If it does not reach by that date, there can be no acceptance and the postal rule would not apply.” 10. The person who sends his application by post or by any other mode assuming it is based on an offer, must send the acceptance by the particular date, in terms of offer. If it does not reach by that date, there can be no acceptance and the postal rule would not apply.” 10. This question was again considered by Hon’ble Division Bench of this Court in Smt. Sushmita Pandey v. State of U.P. and another, 2014(1) ADJ 382 (DB), of which I was one of the Member, and after placing reliance on judgement of Hon’ble Full Bench in Neena Chaturvedi (supra), it was held as under: “In view of the aforesaid, the postal authority cannot be treated as an agent of the Commission so as to treat the dispatch of the application before the last date by post, as having been submitted before the last date. This apart, it was clearly provided in the advertisement that the print out of the online application with the other relevant documents could also be submitted personally which facility could have been availed of by the petitioner but admittedly was not availed of. The reliefs prayed for cannot, therefore, be granted to the petitioner. The petition is, accordingly, dismissed.” 11. A reference may also be made to a judgment of Hon’ble Full Bench of this Court in the case of Rajendra Patel v. State of U.P. and others, 2015(8) ADJ 219 , paragraphs 18, 19 and 22 whereof are quoted as under : “18. The issue which we have considered has to a certain extent been dwelt upon in the judgment of a Full Bench in Neena Chaturvedi (supra). The Full Bench in Neena Chaturvedi (supra), inter alia, considered as to whether the post office through which the applications are submitted by a candidate who seeks to appear at an examination conducted by the Commission becomes an agent of the addressee. The Full Bench held that if the post office was treated to be an agent of the addressee, the very process of recruitment would be frustrated. The Full Bench observed as follows: “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. The Full Bench observed as follows: “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.” 19. The judgment of the Full Bench was followed in a judgment of the Division Bench in Ravindra Kumar (supra) which was delivered on 28 April 2014. The judgment in Ravindra Kumar (supra) was in fact cited before the Division Bench when the writ petition in Nirbhay Kumar (supra) came up for hearing. If the Division Bench in Nirbhay Kumar (supra) was inclined to take a view at variance with what was laid down in Ravindra Kumar (supra), the appropriate course of action would have been to refer the case to a Full Bench for reconsideration. Instead, the Division Bench has charted out a course of action which, with respect, is inconsistent with the law which was laid down in the earlier judgment in Ravindra Kumar (supra). This, in our view, with greater respect, is impermissible. 22. For these reasons, we hold that where the Commission requires the submission of a hard copy of the online application together with all accompanying documents by a prescribed last date and has clearly placed the candidates on notice of the fact that an application which is submitted beyond the last date together with the prescribed documents would result in the invalidation of the candidature, the condition which has been imposed by the Commission would have to be scrupulously observed. It would not be open to the Court to hold that notwithstanding such a clear condition, an application which has not been received by the last date should be entertained. The Commission has given an option to candidates of submitting their applications in the hard copy by either of the two modes, namely by registered post or by personal delivery. A candidate who has opted for one of the two modes, is required to comply with the condition that all the requisite four stages are completed within the time stipulated. The reference is answered accordingly. The petition shall now be placed before the regular bench for disposal in the light of the reference answered.” 12. A reference may also be made to a judgement of Hon’ble Apex Court rendered in the case of Secretary, U.P.S.C and another v. S. Krishna Chaitanya, (2011) 14 SCC 227 , paragraph 29 whereof is quoted as under : “29. For the aforesaid reasons, we are of the view that the appellants cannot be directed to declare the final result of the respondent, especially when his application form had not been received by the appellants within the period prescribed. We ignore the second application form which was submitted by him in pursuance of the direction given by the tribunal.” 13. It is also pertinent to note paragraph 15 of the directions mentioned in the advertisement under the heading of ‘General Directions’, which is quoted as under : ^^Mkd@rkj foHkkx@dksfj;j }kjk vkosnu i= izs"k.k fd;s x;s foyEc gsrq foHkkx mRrjnk;h ugha gksxk rFkk bl lEcUèk esa dksbZ i=kpkj ugha fd;k tk;sxkA** 14. Therefore, there is no difficulty in holding that application form, which was allegedly sent by the petitioner by registered post on 30.11.2007 much before the last date i.e. 5.12.2007 was not received in the office within the time frame. The same cannot be directed to be considered by the respondent authorities in view of the law laid down as noted above. Further, a reference may also be made to paragraph 45 of the counter-affidavit, relevant extract whereof is quoted as under: “45. That the contents of paragraph Nos. 6 to 24 of the writ petition are matters of record. The same cannot be directed to be considered by the respondent authorities in view of the law laid down as noted above. Further, a reference may also be made to paragraph 45 of the counter-affidavit, relevant extract whereof is quoted as under: “45. That the contents of paragraph Nos. 6 to 24 of the writ petition are matters of record. In view of the fact that the matter has been finally adjudicated by the Hon’ble Supreme Court and the outcome of the proceeding are that the judgement of the Hon’ble Supreme Court dated 3.8.2010 as to be followed in spirit, while disposing of the Contempt Petition. The Hon’ble Supreme Court has categorically observed that the recruitment process has to be completed in accordance with the final judgement dated 3.8.2010, the answering respondent is the above referred direction of the Hon’ble Supreme Court. It may be further clarified that in the year 2007 the department has published an advertisement for filling up the vacancies of the pharmacists and in response to the said all the applications received by the department, a list has been prepared having details of the applications received in response to the aforesaid advertisement and in the said list due care has been given with regard to the reservation, and their respective category has also been indicated. The said list was duly submitted before the Hon’ble Supreme Court in Contempt Petition No. 347 of 2010 arising out of SLP No. 20558 of 2009, the said list was submitted alongwith the affidavit dated 11.3.2013 and the Hon’ble Supreme Court has taken note of the same and vide order dated 15.4.2013 directed to comply the judgement of the Hon’ble Supreme Court dated 3.8.2010. The petitioner has also referred some of the writ petitions preferred before the Lucknow Bench of this Hon’ble Court, the leading writ petition number was 6307 (SS) of 2014 (Akhilesh Bhargava and others v. State of U.P. and others), wherein similar kind of allegations were made in the said case a detailed counter-affidavit have been filed and all the allegations have been duly replied by the department. In one of the paragraph the petitioner has referred the list prepared by the Law Department. In one of the paragraph the petitioner has referred the list prepared by the Law Department. Suffice to point out that there are certain inaccuracies in the list submitted by the Law Department and there were certain persons whose names were included in the list submitted by the Law Department but they have never applied in response to the advertisement of 2007. As such they were ineligible for being considered, this fact was brought to the notice of the Hon’ble Supreme Court, by means of an affidavit in the Contempt Petition No. 115 of 2014. Para-26 of the affidavit filed in contempt petition on 8.7.2014 is relevant the same was duly considered by the Hon’ble Supreme Court and thereafter, a contempt petition moved by some of the candidates were rejected.” 15. Paragraph 45 of the counter-affidavit has been replied in paragraph 9 of the rejoinder-affidavit, which is quoted as under : “9. That the contents of paragraph No. 45 of the counter-affidavit are matter of record, and pertain to the previous round of litigation in the Hon’ble Apex Court and needs no reply.” 16. A perusal of the assertions made in the counter-affidavit and reply as contained in paragraph 9 of the rejoinder-affidavit clearly indicates that no specific denial has come forward regarding non-receipt and non-consideration of the application form of the petitioner on this ground. 17. Insofar as the claim of parity on the basis of the claim of Arvind Kumar Singh is concerned, it would be relevant to extract paragraph 46 of the counter-affidavit, which is quoted as under : “46. That the contents of paragraph Nos. 26, 27, 28 and 29 of the writ petition are denied. The petitioner has given an impression, as if there are certain persons in whose matter, the answering respondents have initially said that they have not applied, as such they are ineligible. The matter was also dealt with by the answering respondents in the counter-affidavit filed against the writ petition moved by Akhilesh Bhargava and others. In fact during verification it was noticed that Arvind Kumar Singh case has been duly considered and it was found that his application was received by the department and his form number was 01517 that is why he was finally selected, whereas the petitioner’s application form was not received. In fact during verification it was noticed that Arvind Kumar Singh case has been duly considered and it was found that his application was received by the department and his form number was 01517 that is why he was finally selected, whereas the petitioner’s application form was not received. It may be further added that apart from Arvind Kumar Singh, this appointment letter has been annexed, no appointment letter has been issued in favour of other persons who have been referred in para-25 of this writ petition.” 18. Paragraph 46 of the counter-affidavit has been replied in paragraph 10 of the rejoinder-affidavit, which is quoted as under: “10. That the contents of paragraph No. 46 of the counter-affidavit are not admitted as stated hence are denied. In reply it is submitted that the self contrary nature of the Director General is portrays by the fact that on 26.10.2012 the Director General passed an order pertaining to one Sri Arvind Kumar Singh, rejecting his claim on the identical ground that no application of Sri Arvind Kumar Singh had been received in the office of the Director General. However, the said Arvind Kumar Singh has been granted appointment on 10.1.2013. It is further stated that the action of the Director General in granting appointment to Sri Arvind Kumar Singh inspite of passing of the order dated 26.10.2012, stating that his application was not received in the office, clearly portrays the arbitrary and the discriminatory nature of the respondents.” 19. A perusal of paragraph 46 of the counter-affidavit and paragraph 10 of the rejoinder-affidavit clearly indicates that nothing has come forward to dislodge the assertions of the respondent authorities that from the record respondent authorities have found that application form of Arvind Kumar Singh was duly received by the department and was thus, considered. 20. In such view of the matter, when the application form of the petitioner was not received in the office of the respondent authorities within time, it cannot be said that the petitioner has been discriminated in any manner. 21. For the discussions as made hereinabove, present petition lacks merit and is accordingly dismissed. No order as to costs.