# Pramod Kumar Singh v. State of U.P. and another

- **Citation:** (2005) 3 ILRA 982
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-10-04
- **Case number:** Civil Misc. Writ Petition No. 57310 of 2005
- **Bench:** Amitava Lala, Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pramod-kumar-singh-v-state-of-u-p-and-another-40528
- **Pages:** 5

## Headnote

Constitution of India, Art. 226-Mode of
Service-Application invited by U.P. Public
Service Commission-with stipulation-it
should be reached at Commission office
by Registered Post or by hand upto 5
p.m. on before 22.07.02-application send
from 100 km. Away from office of
Commission through Regd. Post on
14.07.05-reached on 28.07.2005-refusal
by Commission-held-proper when-only
one mode given one has no alternate,
but to fallow the same-at the same time
if there are more than one mode and
failed
to
exercise
other
mode-the
responsibility
lies
with
sender-No
equitable justice can be rendered.

Held: Para 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
3 All] Pramod Kumar Singh V. State of U.P. and another
983
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.
Case law discussed:
2000 (4) E.SC-2483
1987 UPLBEC-316
AIR 1980 SC-431
Appeal No. 1619-05 decided 19.09.05
AIR 1966 SC-1466
AIR 1954 SC-429

Present:
(Hon'ble Mr. Justice Amitava Lala and
Hon'ble Mr. Justice Prakash Krishna)

Appearance:

For the Petitioner : Sri R.C. Yadav.

For the Respondent No. 1 : Chief
Standing Counsel.

For the Respondent No. 2 : Sri M.A.
Qadeer.

Amitava Lala, J.--

## Text

982 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
5. The present Contempt Petition
has been filed on 23rd August, 2005.
Therefore, the Contempt Petition is
clearly not maintainable in view of the
provisions of Section 20 of the Contempt
of Courts Act, 1971 which lays down as
under:
"20. Limitation for actions for
contempt.-No court shall initiate any
proceedings for contempt, either on its
own motion or otherwise, after the expiry
of a period of one year from the date on
which the contempt is alleged to have
been committed."

6. It is submitted by the learned
counsel for the petitioner applicant that
the petitioner-applicant has been making
representations from time to time to the
authorities concerned, but the authorities
concerned did not comply with the said
order dated 11th March, 1999.

7. I have considered the submission
made by the learned counsel for the
petitioner-applicant.

8. In my opinion, the period of one
year contemplated under Section 20 of the
Contempt of Court Act, 1971, having
expired
some
time
in
May,
2000,subsequent representations made by
the petitioner-applicant from time to time,
as alleged by the petitioner applicant, will
not enlarge the period mentioned in
Section 20 of the Contempt of Court Act,
1971.

9. In view of the aforesaid
discussion, the Contempt Petition is liable
to be dismissed, and the same is
accordingly dismissed.
Application rejected.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.10.2005

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 57310 of 2005

Pramod Kumar Singh

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri R.C. Yadav

Counsel for the Respondents:
Sri M.A. Qadeer
C.S.C.

Constitution of India, Art. 226-Mode of
Service-Application invited by U.P. Public
Service Commission-with stipulation-it
should be reached at Commission office
by Registered Post or by hand upto 5
p.m. on before 22.07.02-application send
from 100 km. Away from office of
Commission through Regd. Post on
14.07.05-reached on 28.07.2005-refusal
by Commission-held-proper when-only
one mode given one has no alternate,
but to fallow the same-at the same time
if there are more than one mode and
failed
to
exercise
other
mode-the
responsibility
lies
with
sender-No
equitable justice can be rendered.

Held: Para 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
3 All] Pramod Kumar Singh V. State of U.P. and another
983
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.
Case law discussed:
2000 (4) E.SC-2483
1987 UPLBEC-316
AIR 1980 SC-431
Appeal No. 1619-05 decided 19.09.05
AIR 1966 SC-1466
AIR 1954 SC-429

Present:
(Hon'ble Mr. Justice Amitava Lala and
Hon'ble Mr. Justice Prakash Krishna)

Appearance:

For the Petitioner : Sri R.C. Yadav.

For the Respondent No. 1 : Chief
Standing Counsel.

For the Respondent No. 2 : Sri M.A.
Qadeer.

Amitava Lala, J.--
1. An interesting
point is involved in the writ petition. The
writ petitioner is a candidate of an
examination to be held under the
supervision
of
Public
Service
Commission, Uttar Pradesh, Allahabad.
One of the conditions about the modes of
making application "how to apply" speaks
as under:

"...Application
complete
in
all
respects must reach the "Secretary,
(Deptt
No.........)
Public
Service
Commission, U.P., 10 Kasturba Gandhi
Marg,
Allahabad-211018"
at
the
Commission's office either by registered
post or by hand upto 5.00 p.m. on or
before 22nd July, 2005."

Therefore, there are two modes of making
application as aforesaid.

2. The petitioner contended that he
sent his application through registered
post on 14th July, 2005 from a place 100
Kms. From the Commission's office at
Allahabad but the Commission refused to
accept the same since it was reached to
the office on 28th July, 2005 after expiry
of the last date. According to the
petitioner, there is no fault on the part of
the petitioner in making the application.
Therefore, such application should have
been accepted by the Commission. Since
the same has not been done, the writ
jurisdiction has been invoked for the
purpose of giving direction upon the
Commission to accept the application and
to permit the petitioner to sit for the
interview. In the alternative for a direction
upon such authority to decide the
petitioner's representation dated 22nd
August, 2005.

3. A question arose before this Court
whether the Post Office is an agent of the
Public Service Commission in this case or
not. If so, as soon as the application is
posted with the local post office the duty
of
the
applicant
is
discharged.
Responsibility lies with the Commission,
984 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
if not received within the time prescribed
in the advertisement inviting applications.

4. We have come across several
important judgements either passed by
this High Court or the Supreme Court to
come to a definite conclusion in respect of
the subject matter herein. In 2000 (4)
E.S.C. 2483 (All.) (Shashi Bhushan
Kumar Vs. U.P. Higher Education
Services Commission and another) a
Division Bench of this Court directed the
Higher Education Services Commission
to entertain the application although it
was received to it after expiry of the last
date. There the condition was that it will
be sent by Parcel/Speed Post. In the same
judgement the Division Bench of our
High Court distinguished the ratio of
another judgement reported in 1987
UPLBEC 316 (Ram Autar Vs. Public
Service Commission and others). In
distinguishing part it has held that so far
as the decision of the Division Bench in
Ram Autar (supra) is concerned it was
no doubt held therein that the application
sent by registered post if received after
expiry of the last date, it will be liable to
be rejected. But the relevant portion of the
advertisement as quoted by the Division
Bench in its judgement do not expressly
or by necessary implication establish an
agreement
inviting
the
applications
through post office and as such the
Division Bench decision on facts is not
applicable. As we have understood from
the prescriptions in both the judgements
that when in the earlier case no mode of
making application was prescribed, in the
later case only one mode of making
application by parcel/speed post was
prescribed. Therefore, according to us
both the Division Bench judgements are
justified on their own stand. Neither of the
cases prescribed having two modes when
one mode is availed and other mode is not
availed, Commission can be held liable or
not. Having so, matter should have been
sent to the Larger Bench.

5. It is to be remembered that we can
deal
with
the
cause
against
the
Commission but not against the Postal
authorities, unless of course, it is proved
beyond doubt that such authorities are the
exclusively agent of their principal i.e.
Commission. It can only be done when
addressee i.e. Commission expressly or
impliedly made such arrangement. Here
both the avenues i.e. principal to principal
and principal to agent are open. The
question is that whether right of making
application
is
otherwise
preserved/protected by the Commission or
not. If it is protected otherwise and if not
availed, the Commission can not be held
responsible.

6. As per the ratio of AIR 1980 SC
431 (Union of India Vs. 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 judgement dated 19th
September, 2005 in Appeal (Civil) No.
1619 of 2005 (Unit Trust of India Vs.
Ravinder Kumar Shukla, etc. etc.) the
Supreme Court held that in the absence of
any contract or request from the payee,
mere posting would not amount to
payment. In cases where there is no
contract or request, either expressly or
impliedly, the post office would continue
to act as an agent of the drawer. In that
case the loss is of the drawer. If two
situations are seen side by side, the
3 All] Pramod Kumar Singh V. State of U.P. and another
985
question
of
responsibility
will
be
understandable. In the instant case,
request is there on the part of the
addressee. Therefore, the addressee is
responsible provided post office alone has
been made agent for the purpose of
receiving application as per the request.
There the shoe pinches. When two modes
are prescribed by the Commission and
one mode is availed, the same is the risk
and responsibility of the sender himself.
Writ Court can not evaluate amount of
risk and responsibility to compensate the
petitioner. If the petitioner is entitled for
any compensation in accordance with law
from the post office, he can seek advise
for the same but Commission can not be
held responsible by extending time for
availing the postal mode only. It has
argued that if someone is stationed in a far
away place and is not able to come to file
such application personally, second mode
can not help such candidate. We can
understand the agony but in such case we
can not compel the Commission for
accepting application because post office
is agent only in respect of the service
through it. Moreover, according to us,
question is not the distance, but nonavailability of other mode. Commission is
to discharge public duty to all. It can not
find out individual difficulty to meet the
same. Otherwise it will become never
ending process. Two very important
Supreme Court judgements have been
referred herein. First one is reported in
AIR 1966 SC 1466 (V 56 C 288) (The
Indore Malwa United Mills Ltd. Vs.
The
Comissioner
of
Income-tax
(Central) Bombay). This is in respect of
Income Tax Act but even therein the
Supreme Court categorically held as
follows:

"If by an agreement, express or
implied, by the creditor, the debtor is ٛ
uthorized to pay the debt by a cheque
and to send the cheque to the creditor by
post, the post office is the agent of the
creditor to receive the cheque and the
creditor receives payment as soon as the
cheque is posted to him." (Emphasis
supplied)

Therefore, the mode of sending the
cheque was only by post.

7. In AIR 1954 SC 429 (Vol.41,
C.N.104) (Commr. Of Income tax,
Bombay South, Bombay Vs. Messrs
Ogale Glass Works Ltd., Ogale Wadi)
the Supreme Court held again in a case of
Income Tax Act and Contract Act about
sending cheques by post, as under:

"There can be no doubt that as
between the sender and the addressee it is
the request of the addressee that the
cheque be sent by post that makes the post
office the agent of the addressee. After
such request the addressee cannot be
heard to say that the post office was not
his agent and, therefore, the loss of the
cheque in transit must fall on the sender
on the specious plea that the sender
having the very limited right to reclaim
the cheque under the Post Office Act,
1898, the Post Office was his agent, when
in fact there was no such reclamation."
(Emphasis Supplied)

8. Again in this case we find that a
request was made by the addressee to the
sender to send the cheque by post and for
the same he could not avoid the
responsibility. Sometimes in the cases
between landlord and tenant we find
notice is required to be served by post in
accordance with law and if not served
986 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
following such prescription, such notice
can not be construed as a valid notice.

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.

Hence, the writ petition stands
dismissed.

However, no order is passed as to
costs.

However, this petitioner is not
prevented from taking action against the
postal authority in connection with
wrongful discharge of public duty, if so
advised.

 Petition dismissed.
---------
ORIGINAL JURISDICATION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2005

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 31041 of 1991

Prem Chand Jaiswal and others

...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri P.N. Saxena
Sri S.C. Budhwar
Sri R.M. Saggi

Counsel for the Respondents:
C.S.C.

Uttar Pradesh Regularization of Ad hoe
appointments (on the post within the
preview of Public Service Commission)
Rule 1979 Rule 4 (c)-Regularizationpetitioner initially appointed as junior
clerk-in the year 1974-stood confirmed
on 1.9.79-considering the administrate
exigencies-by order date 5.2.75 the
petitioner alongwith so many others
appointed as Khandsari Inspector on Ad
hoe basis-all those person as well as
juniors to the petitioner regularsiedeven whose integrity were-downfallheld-action of the authorities illegal-in
rejecting the claim of petitioner on the
basis
of
adverse
entries-either
communicated after four, five years-or
time
of
four
yrs
consumed
inconsideration of representation heldentitled to be regularized from the date
on which juniors to the petitioner were
regularized
with
all
consessential
benefits.

Held-Para-15 and 16

It
is
also
not
disputed
by
the
respondents that he persons having bad
service record and whose integrity were