# Neena Chaturvedi v. Public Service Commission, Uttar Pradesh

- **Citation:** (2010) 3 ILRA 1120
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-13
- **Case number:** Civil Misc. Writ Petition No. 20841 of 2009
- **Bench:** Ferdino I. Rebello, C.J. Dilip Gupta, Sanjay Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/neena-chaturvedi-v-public-service-commission-uttar-pradesh-41732
- **Pages:** 23

## Headnote

Indian Post Office Act 1898-letter-send
through registered post-in the post office
being public service having wide impacttouching
Fundamental
Rights
of
Candidates-considering
this
aspectreference
made
before
Full
Bench-if
application send through Registered post
on
17.02.20009
record
in
office
of
commission one day later-whether is the
commission bound to process the same if
the Post Office is agent of candidate who
send
this
article
or
the
agent
of
commission?-held-reference
itself
misconceived-considering
various
legal
aspects there is no role of commission-if
ofter not accepted by candidate-Post
Office being the agent of sender-the
candidate is self responsible-reference
itself not maintainable.

Held Para 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.
Case Law Discussed:
[2009 (3) ESC 2082 (All)], 1974 A.L.J.470 (FB),
AIR 1954 SC 429, 1987 U.P.L.B.E.C.,316, A.C.J.
1995 page 200, (2001) 4 S.C.C. 448, (2002) 1
S.C.C. 1, AIR 2005 Supreme Court 752, (2008)
10 SCC 1, 1974 A.L.J. 470 (FB), AIR 1954 SC
429, AIR 1959 SC 1070, (1979) 3 S.C.C. 745,
(2003) 2 S.C.C. 111, AIR 1990 SC 1782, (1990) 3
S.C.C. 682, AIR 1988 SC 1531, (2008) 10 SCC 1,
1987 U.P.L.B.E.C. 316, [(2006) 1 UPLBEC 152],
AIR 1966 S.C. 1466, (1879) 4 Ex D 216, [1974] 1
All ER 161.

## Text

_Characters 0–39,919 of 77,839. This is a partial read: ask again with offset=39919 for what follows._

1120 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
vacancy were not started by the landlord but
by one Vasudeo and only when notices
were issued by the Rent Controller to the
petitioner that the release application was
filed and therefore applying the ratio laid
down by the Division Bench in Ajay Pal's
case (Supra) the right of the landlord to get
it released, was unfettered.

11. Thus examined from any angle,
none of the arguments advanced merits
acceptance.

12. No other point has been urged.

13. For the reasons above, this is not a
fit case for interference under Article 226 of
the Constitution of India. Rejected.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.08.2010

BEFORE
THE HON'BLE FERDINO I. REBELLO, C.J.
THE HON'BLE DILIP GUPTA, J.
THE HON'BLE SANJAY MISRA, J.

Civil Misc. Writ Petition No. 20841 of 2009

Neena Chaturvedi

 ...Petitioner
Versus
Public Service Commission, Uttar Pradesh

 ...Respondent

Counsel for the petitioner:
Sri N.L. Pandey,
Sri Yatindra Dubey

Counsel for the respondent:
Sri. M.A. Qadeer,
Sri. Iqbal Ahmad Siddiqui,
Sri Pushpendra Singh
C.S.C.

Indian Post Office Act 1898-letter-send
through registered post-in the post office
being public service having wide impacttouching
Fundamental
Rights
of
Candidates-considering
this
aspectreference
made
before
Full
Bench-if
application send through Registered post
on
17.02.20009
record
in
office
of
commission one day later-whether is the
commission bound to process the same if
the Post Office is agent of candidate who
send
this
article
or
the
agent
of
commission?-held-reference
itself
misconceived-considering
various
legal
aspects there is no role of commission-if
ofter not accepted by candidate-Post
Office being the agent of sender-the
candidate is self responsible-reference
itself not maintainable.

Held Para 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.
Case Law Discussed:
[2009 (3) ESC 2082 (All)], 1974 A.L.J.470 (FB),
AIR 1954 SC 429, 1987 U.P.L.B.E.C.,316, A.C.J.
1995 page 200, (2001) 4 S.C.C. 448, (2002) 1
S.C.C. 1, AIR 2005 Supreme Court 752, (2008)
10 SCC 1, 1974 A.L.J. 470 (FB), AIR 1954 SC
429, AIR 1959 SC 1070, (1979) 3 S.C.C. 745,
(2003) 2 S.C.C. 111, AIR 1990 SC 1782, (1990) 3
S.C.C. 682, AIR 1988 SC 1531, (2008) 10 SCC 1,
1987 U.P.L.B.E.C. 316, [(2006) 1 UPLBEC 152],
AIR 1966 S.C. 1466, (1879) 4 Ex D 216, [1974] 1
All ER 161.

(Delivered by Hon'ble F.I. Rebello, C.J.)

1. The Petitioner pursuant to an
advertisement,
which
had
invited
applications for the post of Lecturer in
Government Intermediate College, which
3 All] Neena Chaturvedi V. Public Service Commission, Uttar Pradesh
1121
were to be received in the office of the
Commission till 20th February, 2009 either
by speed post or by hand, sent his
application by speed post on 17th February,
2009, which was received in the office of
the Commission on 21th February, 2009.
The petitioner had prayed for a mandamus
to direct the Commission to accept the
application form and allow the petitioner to
participate in the process of selection. In
that petition, by order dated 28.05.2009, the
present reference.

2. learned Single Judge of this Court,
in this case, reported as Neena Chaturvedi
vs. U.P. Public Service Commission,
Allahabad [2009 (3) ESC 2082 (All)] has
been pleased to refer the matter for
consideration by a larger Bench. Some of
the relevant paragraphs read as under:-

"49. Although I am conscious about
the legal proposition that a little difference
in the facts or additional facts may make a
lot
of
difference
in
presidential
(precedental) value of a decision but having
regard to the facts and circumstances of the
case, I am of the considered opinion, that in
such cases the moving factor or decessive
factor is not prescription of one mode or
several modes by the addressee to send
the articles to him rather it is express or
implied authorisation by the addressee to
send the articles to him by post,
ultimately decides the issue and makes
the post office an agent of the addressee.
It is immaterial that the addressee has
provided any other or more alternative
modes to the sender including through postoffice to send the articles to the addressee.
In my opinion, prescription of such other
alternative mode for sending the articles to
addressee would not change the legal
position stated herein before. However, in
cases where addressee does not prescribe
any modes for sending the articles to him
and merely time for receipt of the articles
is fixed/prescribed and sender chooses by
his own to send the articles to the
addressee through registered post, in that
eventuality alone the post office would
continue to act as agent of the sender and
not of addressee and for any delay in
transit the addressee would not be
responsible for simple reason that in such
situation it can not be held that addressee
has expressly or impliedly authorised or
requested the senders to send the articles
through registered post.

50. In view of aforesaid discussion, in
my opinion, the decisions rendered by
Division Benches of this Court in Ram
Autar Singh v. Public Service Commission,
U.P., Allahabad and others, 1987 UPLBEC
316 (by Hon'ble Mr. Justice B.N. Misra and
Hon'ble Mr. Justice A.P. Misra), in Anupam
v.
Public
Service
Commission,
U.P.
Allahabad and another, W.P. No. 57508 of
2005 decided on 4.10.2005 (by Hon'ble Mr.
Justice Amitava Lala and Hon'ble Mr.
Justice Prakash Krishna), in Adil Khan v.
State of U.P. and others, W.P. No. 23152 of
2006 decided on 5.5.2006 (by Hon'ble Mr.
Justice S.R. Alam and Hon'ble Mr. Justice
Sudhir Agarwal) require re-consideration by
Larger Bench/Full Bench comprising of at
least three or more than three judges of this
Court in the light of decisions rendered by
Hon'ble Apex Court in M/s. Ogale Glass
Works Ltd. case (supra), Jagdish Mill's case
(supra), Indore Malwa United Mill's case
(supra), Unit Trust of India v. Ravinder
Kumar Shukla's case (supra) and in Bhikha
Lal's case (supra) decided by Full Bench of
this
Court
in
context
of
questions
formulated by me in preceding part of this
Judgment.
1122 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

51. Since the postal service constituted
under the provisions of Indian Post Office
Act 1898 is entrusted public service and
stood test of time, therefore, having regard
to the facts that the questions involved in
the case have wide impact upon the large
public interest touching the fundamental
rights of the candidates under Articles 16
and 21 of the Constitution of India, an
authoritative decision is required to be
rendered by Full Bench of this Court
comprising of at least three or more than
three judges so that the matter may be set at
rest for all the times to come in future. The
Hon'ble the Chief Justice is requested to
constitute a Full Bench of this Court
comprising of at least three or more than
three judges for deciding the questions
formulated by me in preceding part of this
judgment as early as possible."

3. Though the precise question has not
been formulated, considering paragraphs
49, 50 and 51 and the reliance placed on the
Full Bench judgment of Bhikha Lal and
others v. Munna Lal, 1974 A.L.J.470 (FB)
and Commissioner of Income Tax,
Bombay v. M/s Ogale Glass Works Ltd.
AIR 1954 SC 429, and the question referred
for consideration by the learned Judge in
answering the issue before him and which
reads as under:-

"Whether
in
given
facts
and
circumstances of the case, the post office is
agent of the addressee (Commission) or
sender and as to whether the petitioner can
be made to suffer on account of default of
the post office in delivering the application
form of the petitioner to the Commission
after last date of receipt of application form
which was sent by the petitioner within
prescribed time?"

4. The learned Judge whilst answering
the issue apart from other reasons was
pleased to observe as under:-

(i) I am of the considered opinion, that
in such cases the moving factor or
decessive factor is not prescription of one
mode or several modes by the addressee
to send the articles to him rather it is
express or implied authorisation by the
addressee to send the articles to him by
post, ultimately decides the issue and
makes the post office an agent of the
addressee. It is immaterial that the
addressee has provided any other or more
alternative modes to the sender including
through post-office to send the articles to
the addressee. In my opinion, prescription
of such other alternative mode for sending
the articles to addressee would not change
the legal position stated herein before.

(ii). In cases where addressee does
not prescribe any modes for sending the
articles to him and merely time for
receipt of the articles is fixed/prescribed
and sender chooses by his own to send
the articles to the addressee through
registered post, in that eventuality alone
the post office would continue to act as
agent of the sender and not of addressee
and for any delay in transit the addressee
would not be responsible for simple
reason that in such situation it can not be
held that addressee has expressly or
impliedly authorised or requested the
senders to send the articles through
registered post."

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
3 All] Neena Chaturvedi V. Public Service Commission, Uttar Pradesh
1123
there is express or implied authorisation by
the addressee to send the articles by post."

6. Sri M.A. Qadeer, learned Senior
Counsel, appearing for the U.P. Public
Service
Commission
has
raised
a
preliminary objection that considering the
judgment in Ram Autar Singh v. Public
Service Commission, U.P., Allahabad
and others, 1987 U.P.L.B.E.C., 316,
unreported judgments in Anupam v.
Public Service Commission, U.P. passed
in Writ Petition No. 57508 of 2005
decided on 4.10.2005, in Smt. Pooja
Singh v. Public Service Commission &
others passed in Writ Petition No. 67808
of 2006 decided on 13.12.2006, in Adil
Khan v. State of U.P. & others passed in
Writ Petition No. 23152 of 2006 decided
on 5.5.2006, the issue which has been
referred by the learned Single Judge for
consideration to a Larger Bench stands
concluded and, therefore, he submits that
considering the law declared by the
judgement of a Bench of five Judges of this
Court in Rama Pratap Singh and others
v. State of U.P. and others, A.C.J. 1995
page 200 and the Supreme Court in Bharat
Petroleum Corpn. Ltd. v. Mumbai
Shramik Sangha and others (2001) 4
S.C.C. 448, Pradip Chandra Parija and
others v. Pramod Chandra Patnaik and
others (2002) 1 S.C.C. 1 and Central
Board of Dawoodi Bohra Community
and another v. State of Maharashtra and
another AIR 2005 Supreme Court 752, and
Official Liquidator v. Dayanand and
others (2008) 10 SCC 1, the learned Single
Judge could not have directly referred the
matter to the Full Bench even if he held a
different view. Only if the learned Single
Judge had come to a conclusion that there
were two conflicting views of learned
Single Judges, then only a reference could
have been made for referring the matter to a
Bench of two Judges or at the highest, if
there had been two conflicting judgments of
two Division Benches, the matter could
have been referred to the learned Chief
Justice for constitution of a larger Bench.
Judicial discipline requires that a learned
Single Judge is bound by the judgment of a
Larger Bench.

7. On the other hand, Mr. N.L.
Pandey, learned counsel appearing on
behalf of the petitioner submits that the
learned Single Judge was right in referring
the matter to a Larger Bench considering
the Full Bench judgment in the case of
Bhikha Lal and others v. Munna Lal
1974 A.L.J. 470 (FB) and the judgment of
the Supreme Court in Commissioner of
Income Tax, Bombay v. M/s Ogale Glass
Works Ltd. AIR 1954 SC 429 and other
judgments referred to.

It is further submitted that what is
binding on a learned Judge is the ratio
decidendi of the judgment. Considering the
Full Bench judgment in Bhikha Lal
(supra), M/s. Ogala Glass Works Ltd.
(supra), and Commissioner of Income
Tax, Bihar & Orissa v. M/s Patney and
Company, AIR 1959 SC 1070, the learned
Single
Judge
was
well
within
his
jurisdiction to have referred the matter to
the learned Chief Justice for constituting a
Larger Bench.

8. Learned Counsel has placed
reliance on the judgments in the case of
Dalbir Singh and others v. State of
Punjab, (1979) 3 S.C.C. 745. Our attention
has been drawn to Paragraph 22 of the said
judgement, which reads as under:-

"22.
With
greatest
respect,
the
majority decision in Rajendra Prasad case
(supra) does not lay down any legal
1124 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
principle
of
general
applicability.
A
decision on a question of sentence
depending upon the facts and circumstances
of a particular case, can never be regarded
as a binding precedent, much less 'law
declared' within the meaning of Article 141
of the Constitution so as to bind all courts
within the territory of India. According to
the well-settled theory of precedents every
decision contains three basic ingredients:

(i) findings of material facts, direct and
inferential. An inferential finding of facts is
the inference which the Judge draws from
the direct, or perceptible facts;

(ii) statements of the principles of law
applicable to the legal problems disclosed
by the facts; and

(iii) judgment based on the combined
effect of (i) and (ii) above.

For the purposes of the parties
themselves and their privies, ingredient (iii)
is the material element in the decision for it
determines finally their rights and liabilities
in relation to the subject-matter of the
action. It is the judgment that estops the
parties
from
reopening
the
dispute.
However, for the purpose of the doctrine of
precedents, ingredient (ii) is the vital
element in the decision. This indeed is the
ratio decidendi. It is not every thing said by
a Judge when giving judgment that
constitutes a precedent. The only thing in a
Judge's decision binding a party is the
principle upon which the case is decided
and for this reason it is important to analyse
a decision and isolate from it the ratio
decidendi. In the leading case of Qualcast
(Wolverhampton) Ltd. v. Havnes LR
1959 AC 743 it was laid down that the ratio
decidendi may be defined as a statement of
law applied to the legal problems raised by
the facts as found, upon which the decision
is based. The other two elements in the
decision are not precedents. The judgment
is not binding (except directly on the parties
themselves), nor are the findings of facts.
This means that even where the direct facts
on an earlier case appear to be identical to
those of the case before the Court, the Judge
is not bound to draw the same inference as
drawn in the earlier case."

Learned counsel further draws our
attention to paragarph 59 of the judgment in
Bhavnagar University v. Palitana Sugar
Mill (P) Ltd. and others, (2003) 2 S.C.C.
111, which is as under:-

"59. A decision, as is well known, is
an authority for which it is decided and not
what can logically be deduced therefrom. It
is also well settled that a little difference in
facts or additional facts may make a lot of
difference in the precedential value of a
decision. [See Ram Rakhi v. Union of India,
AIR 2002 Del 458 (FB), Delhi Admn. (NCT
of Delhi) v. Manohar Lal, (2002) 7 SCC
222,
Haryana
Financial
Corpn.
v.
Jagdamba Oil Mills, (2002) 3 SCC 496 and
Nalini Mahajan (Dr) v. Director of Income
Tax (Investigation), (2002) 257 ITR 123
(Del)].

9. We have heard learned counsel. Let
us first address to the issue of ratio
decidendi and per incuriam.

10. How can the ratio decidendi be
ascertained from a decision has been very
clearly dealt with in Krishna Kumar Vs.
Union of India, AIR 1990 SC 1782. The
observations made by Hon'ble Apex Court
in para 18 and 19 of the decision are as
under:-
3 All] Neena Chaturvedi V. Public Service Commission, Uttar Pradesh
1125

"18. The doctrine of precedent, that is
being bound by a previous decision, is
limited to the decision itself and as to what
is necessarily involved in it. It does not
mean that this Court is bound by the
various reasons given in support of it,
especially when they contain "propositions
wider than the case itself required." This
was what Lord Selborne said in Caledonian
Railway Co. v. Walker's Trustees (1882 (7)
AC 259) and Lord Halsbury in Quinn v.
Leathem (1901) AC495 (502). Sir Frederick
Pollock has also said: "Judicial authority
belongs not to the exact words used in this
or that judgment, nor even to all the reasons
given, but only to the principles accepted
and applied as necessary grounds of the
decision.

19. In other words, the enunciation of
the reason or principle upon which a
question before a Court has been decided
is alone as a precedent. The ratio
decidendi is the underlying principle,
namely, the general reasons or the general
grounds upon which the decision is based
on the test or abstract from the specific
peculiarities of the particular case which
gives rise to the decision. The ratio
decidendi has to be ascertained by an
analysis of the facts of the case and the
process of reasoning involving the major
premise consisting of a pre-existing rule of
law, either statutory or judge - made, and a
minor premise consisting of the material
facts of the case under immediate
consideration. If it is not clear, it is not the
duty of the Court to spell it out with
difficulty in order to be bound by it. In the
words of Halsbury, 4th Edn., Vol. 26, para
573:

"The concrete decision alone is
binding between the parties to it but it is the
abstract ratio decidendi, as ascertained on
a consideration of the judgment in relation
to the subject-matter of the decision, which
alone has the force of law and which when
it is clear it is not part of a tribunal's duty to
spell out with difficulty a ratio decidendi in
order to be bound by it, and it is always
dangerous to take one or two observations
out of a long judgement and treat them as if
they gave the ratio decidendi of the case. If
more reason than one are given by a
tribunal for its judgment, all are taken as
forming the ratio decidendi."

11. On the issue of per incuriam, we
may refer to the judgment of the Supreme
Court in Punjab Land Development and
Reclamation
Corporation
Ltd.
v.
Presiding Officer, Labour Court (1990) 3
S.C.C. 682. More specially paragraph 40, to
point out as to when a judgment can be said
to be per incuriam, which is as under:-

"40. We now deal with the question of
per incuriam by reason of allegedly not
following the Constitution Bench decisions.
The Latin expression per incuriam means
through inadvertence. A decision can be
said generally to be given per incuriam
when this Court has acted in ignorance of a
previous decision of its own or when a High
Court has acted in ignorance of a decision
of this Court. It cannot be doubted that
Article 141 embodies, as a rule of law, the
doctrine of precedents on which our judicial
system is based. In Bengal Immunity
Company Ltd. v. State of Bihar, AIR 1955
SC 66, it was held that the words of Article
141, "binding on all courts within the
territory of India", though wide enough to
include the Supreme Court, do not include
the Supreme Court itself, and it is not bound
by its own judgments but is free to
reconsider them in appropriate cases. This is
necessary for proper development of law
and justice. May be for the same reasons
1126 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
before judgments were given in the House
of Lords and Re Dawson's Settlement
Lloyds Bank Ltd. v. Dawson, (1966) 1 WLR
1456, on July 26, 1966 Lord Gardiner, L.C.
Made the following statement on behalf of
himself and the Lords of Appeal in
Ordinary:

"Their Lordships regard the use of
precedent as an indispensable foundation
upon which to decide what is the law and its
application to individual cases. It provides
at least some degree of certainty upon
which individuals can rely in the conduct of
their affairs, as well as a basis for orderly
development of legal rules. Their Lordships
nevertheless recognise that too rigid
adherence to precedent may lead to injustice
in a particular case and also unduly restrict
the proper development of the law. They
propose, therefore, to modify their present
practice and, while treating former decisions
of this House as normally binding, to depart
from a previous decision when it appears
right to do so.

In this connection they will bear in
mind
the
danger
of
disturbing
retrospectively the basis on which contracts,
settlements
of
property
and
fiscal
arrangements have been entered into and
also the especial need for certainty as to the
criminal law."

12. A judgment, therefore, can be said
to be per incuriam if through inadvertence a
Court has acted in ignorance of a previous
decision of its own or when a High Court
has acted in ignorance of a decision of the
Supreme Court or through inadvertence did
not consider a relevant statutory provision
or rule or was oblivious of the relevant
provisions of law, so that in such cases
some part of the decision or some step in
the reasoning on what it is based is found on
that account to be demonstratively wrong.
[see A.R. Antuley v. R.S. Nayak and
another, AIR 1988 SC 1531, Punjab
Land Development and Reclamation
Corporation Ltd. (supra)].

13. Once the ratio decidendi is
ascertained, the learned Judge is bound to
follow the judgments of larger Benches.
The issue of per incuriam would only arise
if from the ratio of judgments of larger
Benches it is found that those Benches did
not consider the principles as set out in
paragraphs 11and 12 of this judgment.

14. We may also refer to the following
paragraph in the judgment in the case of
Official Liquidator v. Dayanand and
others, (2008) 10 SCC 1, which is as
under:-

"78. There have been several instances
of different Benches of the High Courts not
following
the
judgments/orders
of
coordinate and even larger Benches. In
some cases, the High Courts have gone to
the extent of ignoring the law laid down by
this Court without any tangible reason.
Likewise, there have been instances in
which smaller Benches of this Court have
either ignored or bypassed the ratio of the
judgments of the larger Benches including
the Constitution Benches. These cases are
illustrative of non-adherence to the rule of
judicial discipline which is sine qua non for
sustaining the system. In Mahadeolal
Kanodia v. Administrator General of W.B.
AIR 1960 SC 936, this Court observed:
(AIR p. 941, para 19)

"19... If one thing is more necessary in
law than any other thing, it is the quality of
certainty. That quality
would
totally
disappear
if
Judges
of
coordinate
jurisdiction in a High Court start overruling
3 All] Neena Chaturvedi V. Public Service Commission, Uttar Pradesh
1127
one another's decisions. If one Division
Bench of a High Court is unable to
distinguish a previous decision of another
Division Bench, and holding the view that
the earlier decision is wrong, itself gives
effect to that view the result would be utter
confusion. The position would be equally
bad where a Judge sitting singly in the High
Court is of opinion that the previous
decision of another Single Judge on a
question of law is wrong and gives effect to
that view instead of referring the matter to a
larger Bench. In such a case lawyers would
not know how to advise their clients and all
courts subordinate to the High Court would
find themselves in an embarrassing position
of having to choose between dissentient
judgments of their own High Court."

15. Let us first find the ratio of the
judgment in Bhikha Lal (supra) applying
the test laid down in Dalbir Singh (supra)
and Krishna Kumar (supra).

16. The judgement in Bhikha Lal
(supra) had been considered by the learned
Division Bench of this Court in the case of
Ram Autar Singh v. Public Service
Commission. U.P., Allahabad and others,
1987 U.P.L.B.E.C. 316. We may gainfully
refer to paragraphs 6 & 7 of the said
judgment, which reads as follows:-

"6. Learned counsel appearing for the
petitioner has urged that as there was no
negligence or default on the part of the
petitioner, there can be no justification for
rejection of his application merely because
it reached the Commission after expiry of
the last date. As despatch of application
forms by post was recognised by the
Commission as one mode of delivery of
application forms from the candidates to the
Commission, the postal authorities became
the agents of the Commission and delivery
to the postal authorities would amount to
receipt by the Commission. In support of
this contention reliance is placed on a Full
Bench decision of this Court reported in
1974, Allahabad Law Journal, 470. The
facts of the case before the Full Bench are
clearly distinguishable from the facts of the
present case. That was a case of remission
of rent by the tenant to his landlords. The
amount of rent due to be paid by the tenant
to the landlords was a petty sum of Rs. 35/-
and after discussing several cases of the
Supreme Court and of the courts in England
and keeping in view the peculiar facts and
circumstances of the case, the Full Bench
finally came to the conclusion, on the facts
and in the circumstances of the case, the
tenant respondent could not be said to have
committed a default under Section 3 (1) (a)
of the Act in respect of the payment of Rs.
35/- which he sent to the plaintiffs-landlords
by a money order well within time but
which had reached the landlords after the
expiry of thirty days.

7. On careful consideration we are of
the opinion that the principles enunciated in
respect of landlord and tenant in the
aforesaid Full Bench decision do not have
any application to the facts of the present
case.
In
our
view
the
facts
and
circumstances of the present case do not
warrant application of the law of contract.
We have already stated that in the present
case the Commission had clearly notified
that the closing date for receipt of
applications completed in all respects was
14-7-1986 and that applications received
beyond that date were not to be accepted.
Therefore, even if we were to hold that the
advertisement was to be construed as an
offer, as the term is understood in the law of
contract, the said offer was clearly notified
to lapse owing to the passing of time.
Acceptance cannot be said to have been
1128 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
completed on mere despatch. It would have
been complete only if it had reached the
offer or before the offer had lapsed on
expiry of the time prescribed." (emphasis
supplied)

In Bhikha Lal (supra), the question
for consideration was whether the tenant,
who after having sent a money order for the
rent due to the landlord well within time but
which reached the landlord after expiry of
30 days, could be said to be a defaulter. The
learned Full Bench was in that context
considering the issue as to whether the
postal authorities can be said to be the agent
of the landlord.

After analysing various judgments
referred to therein, the principle deducible
which can be noted is that where a creditor
had authorized explicitly or impliedly
payment by money order, through the post
office and the debtor does dispatch the
money order, the post office becomes the
agent of the addressee (landlord). The Court
observed "As far as the question under
consideration before us is concerned, it
strikes me that there is no material
difference or distinction between a payment
by cheque and a transaction where payment
is made by a money order."

Thereafter, after considering the law,
the Court held "if there is an express or
implied request by the landlord for payment
of the amount claimed as arrears of rent,
through a money order, the payment to the
post office is payment to the payee unless
by subsequent action under Section 44 of
the Post Office Act the remitter cancels the
money order. Various judgements were
considered. As to what would be express or
implied request, the Court held that two
principles emerge, which we may further
reproduce as under:-

"22. From an analysis of these
decisions two principles emerge : The first
is that if the creditor and the debtor reside at
two different places served by postal
system, from the very fact that the creditor
makes a demand through the post, an
authority to the debtor to meet his
obligation through the post is implied. This
principle, to my mind is the foundation of
the decision in Norman v. Rickets which as
already stated above, has met the approval
of the Supreme Court. From the facts of the
case, as reported it does not appear that
there was any evidence showing that in any
earlier transaction the debtor had met her
obligations to her creditor by post. The only
two circumstances present before the Court
were : firstly that the creditor and the debtor
resided at two different places in England
and, secondly, that the creditor had made
the demand for payment by means of a
letter sent through the post. Thus, it appears
to me that the Court in this case inferred an
implied authority to the debtor to send the
cheque by post merely because a demand
had been made by post. This principle to
my mind is based on sound logic. If a trader
sends me a reminder of an outstanding bill
through a messenger, in the absence of any
intention expressed to the contrary, I believe
I would be justified in assuming that the
trader, by implication has authorised me to
send the amount outstanding through that
messenger. Extending this principle, if a
creditor who resides in a different town,
makes a demand from his debtor by means
of a letter despatched through the post he
impliedly invites the debtor to meet his
obligations through the post. In this
connection it may be borne in mind that
"the government exercises a governmental
power for the public benefit in the
establishment and operation of the postal
money order system and is not engaged in
commercial translations, notwithstanding it
3 All] Neena Chaturvedi V. Public Service Commission, Uttar Pradesh
1129
may have some aspects of commercial
banking". (Corpus Juris Secundum, Vol. 72,
page 298) and further that the State has a
monopoly in post offices as a consequence
of which the debtor has no choice as
between competing postal organizations.

23.Another principle that emerges
from the two Supreme Court decisions cited
above is that if the debtor and the creditor
reside in two different places, served by
post offices and payments have to be by
cheques, then in the absence of anything to
the contrary, an implied agreement can be
culled out authorising the debtor to despatch
the cheques through the post office which
will be treated as the creditor's agent. This
has come to be recognized as payment
"according to the course of business usage
in general". This principle can be extended
to the case of payments made through
money orders. If the creditor and the debtor
reside at two different places so that the
debtor cannot reasonably be expected to
make cash payments personally or through
a messenger, then in the absence of a
stipulation to the contrary it may be
assumed that the debtor is impliedly
authorized to pay his debt through money
orders. In such cases deposit of the cash at a
postal money order office will be treated as
payment to an agent of the creditor made in
accordance with "the ordinary usages of
man-kind" to borrow the words used by
Lord Herschell in Henthorn v. fraser,
(1892) 2 Ch. D. 27.

The Court also held that what was
material was that the Commission had
specified a date for receipt of applications
and as such acceptance could not be said to
have been completed on mere dispatch but
would be completed if it had reached by the
time specified. This is the ratio of that
judgment.

It is therefore clear that the Full Bench
was not considering an issue of an invitation
to apply but a case where a money order
was sent through post and in those
circumstances held that there was an
implied or express agreement to send the
money through post and in such cases, the
postal authorities can be said to be the agent
of the landlord (addressee). It is in that
context the Court held that in such
circumstances, the tenant cannot be said to
be a defaulter.

17. In Ram Autar Singh (supra), the
question for consideration before the Court
was rejection of the petitioner's application
to appear at the competitive examination for
recruitment to the post of Munsif on the
ground that the application was received
beyond the last date fixed by the
Commission. The judgment in Bhikha Lal
(supra) was considered and distinguished
on the ground that the principle enunciated
in respect of the landlord and tenant in the
Full Bench decision, does not have any
application to the facts of the case. The
learned
Bench
proceeded
to
hold
considering that closing date for the receipt
of application completed in all respects was
14.7.1986 and that the applications received
beyond that date were not to be accepted.
"Therefore, even if we were to hold that the
advertisement was to be construed as an
offer, as the term is understood in the law of
contract, the said offer was clearly notified
to lapse owing to the passing of time.
Acceptance cannot be said to have been
completed on mere despatch. It would have
been complete only if it had reached the
offer or before the offer had lapsed on
expiry of the time prescribed."

18. In the case of Pramod Kumar
Singh v. State of U.P. and another,
[(2006) 1 UPLBEC 152], the judgement
1130 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
considered Ogale Glass Works Ltd.,
(supra), Indore Malwa United Mills Ltd.
v. The Commissioner of Income-tax
(Central) Bombay, AIR 1966 S.C., 1466,
Unit Trust of India v. Ravinder Kumar
Shukla and others, (2005) 7 S.C.C. 428.

In Pramod Kumar Singh (supra), the
issue again was non receipt of the
application by the Commission sent through
post where post was one of the methods for
applying.
After
considering
various
judgments of this Court and the Supreme
Court, the Court observed as under:-

"9. 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."

19. Anupam (supra) was again a
case of non acceptance of the application by
the Public Service Commission as it had
reached beyond the prescribed period.
There were two modes for making
applications. The Court observed as under:-

"...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 C cannot evaluate
amount of risk and responsibility to
compensate the petitioner. If the petitioner
is entitled 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.

....Therefore, what we get from the
above analysis? We get the answer that
either in the law or in the contract 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."

20. The law thereafter was revisited in
the case of Adil Khan (supra).
3 All] Neena Chaturvedi V. Public Service Commission, Uttar Pradesh
1131

In Adil Khan (supra), the issue again
was similar, i.e. non receipt of application
sent through post. There was more than one
mode for submission of forms. The learned
Division Bench applied the ratio in Ram
Autar Singh (supra) and agreed with the
view taken in Anupam (supra). Reference
was made to the judgment in Akhilesh
Chandra Maurya vs. State of U.P.- Writ
Petition No. 7892 of 2005 decided on
10.4.2006, where it was held that postal
department is an agent of the Commission
and in case the form is received beyond
time due to postal delay, the same cannot be
rejected. The Bench also considered Shashi
Bhushan Kumar vs. Higher Education
Service- Writ Petition No. 40351 of 2000,
decided on 12.9.2000, where the view had
been taken that when the advertisement
prescribed no other mode except agency of
post office for entertaining application
forms of the prospective candidates, the
post office becomes the agent of the
addressee. This judgment was distinguished
on the basis of only one mode and not more
than one mode as in the present case.

Paragraphs 6 to 9 of the aforesaid
judgment are as under:-

"6. As per the ratio of AIR 1980 SC
431, 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. 1691 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 not 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.