# Ramendra Srivastava v. State of U.P. and another

- **Citation:** (2009) 2 ILRA 462
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-05-15
- **Case number:** Civil Misc. Writ Petition No. 23662 of 2009
- **Bench:** Janardan Sahai, Y.K. Sangal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramendra-srivastava-v-state-of-u-p-and-another-41543
- **Pages:** 5

## Headnote

Constitution
of
India
Art.
226-Post
Office-whether Agent of addressee or
sender?-petitioner qualified preliminary
examination
Combined
State
Lower
Subordinate
Examination
2007petitioner send complete form for main
examination through speed post on
28.3.2007, reached on 1.4.2007 returned
by commission on ground according
terms of advertisement -form should be
reached upto 5 P.M. on 31.2.2007
Registered post or by hand to handwhere two options are open post office
can not be agent of addressee -but on
equity-petitioner
passed
pre-
2 All] Ramendra Srivastava V. State of U.P. and another
463
examination out of one lac only two
thousand candidates-No date for main
examination
yet
fixed-general
mandamus issued to accept the Form of
petitioner as well as others who had
send
through
registered
post
upto
30.5.2007-even
not
have
filed
writ
petition-Commission
to
accept
such
forms upto 30.5.2007.

Held: Para 4

Learned
counsel
for
the
petitioner,
however, submitted that great injustice
would be done to the petitioner in the
facts of the case, and that the petitioner
should not be penalized for the fault of
the postal department, which is meant to
render public service. We find some
merit in this contention. The peculiar
equitable circumstances in this case are
firstly that the petitioner has already
qualified in the preliminary examination.
It is stated at the Bar that more than one
lac candidates had appeared in this
examination, out of which only about
two thousand candidates have cleared
the preliminary examination and very
meritorious students would thus lose the
chance
of
appearing
in
the
main
examination. Secondly the registered
letter was sent by the petitioner on
28.3.2009 by registered speed post, and
it can be inferred that the petitioner was
having a bona fide belief that in the
normal course the letter would reach its
destination within 48 hours. Shri P.S.
Baghel,
leaned
counsel
for
the
Commission in all fairness stated that
Commission has informed him that the
postal department gives some assurance
that letter sent by speed post is expected
to be delivered at its destination within
48 hours. Thirdly in this case it also
appears that the letter had in fact
reached
the
U.P.
Public
Service
Commission on 1st April, 2009. Fourthly,
the Commission has yet not fixed any
date for the main examination and there
does not appear to be any practical
difficulty
for
the
Commission
in
accepting and processing the form at
this stage.
Case law discussed:
(2006) 1 UPLBEC 152, W.P. No.57508 of 2005,
1995 (1) Madras Law Weekly 351

## Text

462 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
squad to protect them become criminals
and start looting the passengers, they will
not be left with any safety at all.

12. The reasons given in the order
that it will be difficult to secure the
presence of the poor people, or victims of
the crime committed on them, to be called
from far away States and that they would
not have faith in an enquiry conducted by
the police against one of their constables,
that petitioner will use his influence and
that the conduct of the petitioner in
leaving the barracks after the incident
without information, were sufficient to
dispense with the departmental enquiry.
The petitioner has not denied that he had
fired from government weapon and that
the
passengers
did
not
resort
to
demonstration on which the train traffic
was stopped for three hours at the next
Railway Station. His explanation, that he
was searching for suspicious activities of
the passengers, is not only vague but
appears to be a story set up to cover the
crime committed by him. He does not say
that he had reported such activity to his
superior
officers.
The
demonstration
made by the angry passengers and the
intervention of the District Magistrate and
the Superintendent of Police, Auraiya
were sufficient proof of the incident. The
nature of the incident and the gravity of
the situation on the spot were taken into
consideration
by
the
disciplinary
authority. The tests laid down in Tulsi
Ram Patel's case to dispense with the
departmental enquiry, to record the
finding
that
it
is
not
reasonably
practicable to hold the enquiry, are fully
satisfied.

13. The reasons recorded by the
Superintendent of Police, Railway, Agra
as disciplinary authority, in the prevailing
situation,
finding
that
it
was
not
reasonably practicable to hold disciplinary
enquiry, do not suffer from any error of
law. He has applied his mind to the
relevant facts and has recorded good and
sufficient reasons to exercise the authority
vested in him to dismiss the petitioner
from service under Rule 8 (2) (b) of the
Rules of 1991.

14. The writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2009

BEFORE
THE HON'BLE JANARDAN SAHAI, J.
THE HON'BLE Y.K. SANGAL, J.

Civil Misc. Writ Petition No. 23662 of 2009

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

Counsel for the Petitioner:
Sri Santosh Kumar Singh
Sri Ashwani K. Misra

Counsel for the Respondents:
Sri Pushpendra Singh
S.C.

Constitution
of
India
Art.
226-Post
Office-whether Agent of addressee or
sender?-petitioner qualified preliminary
examination
Combined
State
Lower
Subordinate
Examination
2007petitioner send complete form for main
examination through speed post on
28.3.2007, reached on 1.4.2007 returned
by commission on ground according
terms of advertisement -form should be
reached upto 5 P.M. on 31.2.2007
Registered post or by hand to handwhere two options are open post office
can not be agent of addressee -but on
equity-petitioner
passed
pre-
2 All] Ramendra Srivastava V. State of U.P. and another
463
examination out of one lac only two
thousand candidates-No date for main
examination
yet
fixed-general
mandamus issued to accept the Form of
petitioner as well as others who had
send
through
registered
post
upto
30.5.2007-even
not
have
filed
writ
petition-Commission
to
accept
such
forms upto 30.5.2007.

Held: Para 4

Learned
counsel
for
the
petitioner,
however, submitted that great injustice
would be done to the petitioner in the
facts of the case, and that the petitioner
should not be penalized for the fault of
the postal department, which is meant to
render public service. We find some
merit in this contention. The peculiar
equitable circumstances in this case are
firstly that the petitioner has already
qualified in the preliminary examination.
It is stated at the Bar that more than one
lac candidates had appeared in this
examination, out of which only about
two thousand candidates have cleared
the preliminary examination and very
meritorious students would thus lose the
chance
of
appearing
in
the
main
examination. Secondly the registered
letter was sent by the petitioner on
28.3.2009 by registered speed post, and
it can be inferred that the petitioner was
having a bona fide belief that in the
normal course the letter would reach its
destination within 48 hours. Shri P.S.
Baghel,
leaned
counsel
for
the
Commission in all fairness stated that
Commission has informed him that the
postal department gives some assurance
that letter sent by speed post is expected
to be delivered at its destination within
48 hours. Thirdly in this case it also
appears that the letter had in fact
reached
the
U.P.
Public
Service
Commission on 1st April, 2009. Fourthly,
the Commission has yet not fixed any
date for the main examination and there
does not appear to be any practical
difficulty
for
the
Commission
in
accepting and processing the form at
this stage.
Case law discussed:
(2006) 1 UPLBEC 152, W.P. No.57508 of 2005,
1995 (1) Madras Law Weekly 351

(Delivered by Hon'ble Janardan Sahai, J.)

1. The petitioner passed the
Preliminary
Examination
(Combined
State/Lower Subordinate Services), 2007
held by Uttar Pradesh Public Service
Commission, Allahabad. The petitioner
was given intimation by the Uttar Pradesh
Public Service Commission, Allahabad
that he has cleared the preliminary
examination. The letter of intimation to
the petitioner and other candidates who
had cleared the preliminary examination
contains a recital that the Application
Form for the Main Examination along
with all the requisite annexures be
submitted to the Commission by 5.00
P.M. 31st March 2009 by registered post
or in person at the Counter of the Dak
Section of the Commission, at Gate No.3.
The petitioner sent the form for the Main
Examination by registered post on 28th
March, 2009. It appears that the postal
cover was tendered by the post office at
the address of the Commission on 1st
April, 2009, and the Commission treating
the form to have been submitted beyond
the last date returned the same to the
petitioner. The copy of the postal cover
has been annexed along with this petition
as Annexure No.4. It contains the seal of
the post office bearing the date 1st April,
2009. As the commission has rejected the
candidature
of
the
petitioner,
the
petitioner has come to this Court.

2. The case of the petitioner is that
the form was submitted by him in due
time, and it was bona fide expected that it
would reach the Commission by the last
date fixed. It is also contended that the
464 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
post office was the agent of the
Commission,
and
not
that
of
the
petitioner, and therefore, it ought to be
taken that the papers were received by the
Commission within time when they were
handed over to the post office and in any
case the petitioner cannot be made to
suffer on account of delay on the part of
the agent of the Commission. The apex
court in the case of Income tax
Commissioner, Bombay Vs. M/s. Ogale
Glass Works Ltd. A.I.R. 1954, SC 429
held that 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 and that
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.
The mere fact that the sender could
reclaim the letter before it was delivered
to the addressee it was held was a
qualified right and would not have the
effect of making the post office the agent
of the sender. The decision of the apex
court was followed in other decisions
including Shri Jagadish Mills Ltd. Vs.
The Commissioner of Income Tax,
Bombay North, Kutch and Saurashtra,
Ahmedabad, A.I.R. 1959 SC 1160. It
appears from the case law that where the
only mode provided for sending a letter to
the addressee is by registered post the
consistent view of the apex court and of
the High Court is that the post office is
the agent of the addressee. It also appears
to be settled that where the addressee does
not specify any mode for sending the
letter and it is the sender who uses the
postal services for sending the letter the
post office would be an agent of the
sender. Some difficulty arises however in
the third situation where, as in the present
one two alternative modes for sending the
letter to it are given by the addressee. In
such a case the counsel for the petitioner
submits the post office would be the agent
of the addressee because the choice of the
sender is limited to use one of the modes
prescribed by the addressee. The case law
however has taken a different direction.
Three Division Benches of this Court
have been brought to our notice in which
it has been held that the post office would
be the agent of the sender because the
sender was not bound to send the letter
through the post office and it was the
sender who had exercised that choice.
These three Division Benches are; Civil
Misc. Writ Petition No. 23152 of 2006
Adil Khan Vs. State of U.P. and others
decided on 5.5.2006; (2006) 1 UPLBEC
152 Pramod Kumar Singh Vs. State of
U.P. and another and Civil Misc. Writ
Petition No. 57508 of 2005, Anupam Vs.
Public
Service
Commission
and
another, decided on 4.10.2005. All the
three Division Benches and the Full
Bench of the Madras High Court relied
upon in Vinod Kumar Vs. Secretary,
1995 (1) Madras Law Weekly 351 have
considered and interpreted the decision of
the apex court in M/s. Ogale Glass Works
Ltd. (supra). As a Bench of Coordinate
jurisdiction we are bound by these
decisions.

3. Learned counsel for the petitioner,
however, relied upon a decision of the
apex court in the case of Commissioner of
Income Tax Bihar and Orissa Vs. M/s.
Patney and Co. A.I.R. 1959 SC 1070 and
submitted that even where two alternative
modes of sending the letter one mode
being by post office are provided the post
office would be the agent of the
addressee. It was held by the apex court
that where there is an express request by
2 All] Ramendra Srivastava V. State of U.P. and another
465
the creditor (assessee) that the amount be
paid to him by cheques to be sent by post
and they are so sent there is no doubt that
the payment will be taken to be at the
place where the cheque or cheques are
posted. In the case of payment by cheques
sent by post the determination of the place
of payment will depend upon the
agreement between the parties or the
course or conduct of the parties and that if
it is shown that the creditor authorized the
debtor either expressly or impliedly to
send a cheque by post the property in the
cheque passes to the creditor as soon as it
is posted. In order to determine whether
the post office was the agent of the
Commission the condition in the letter of
intimation sent to the candidates that the
form should reach the enquiry counter of
the dak section of the Commission at Gate
No.3 by 5 P.M. on 31.3.2009 and that the
form would in no circumstances be
accepted after the last date cannot be lost
sight of. If the Commission had any
intention of treating the post office as its
agent the handing over of the letter by the
sender to the post office would have been
sufficient but the condition that it should
reach the enquiry counter of the dak
section at Gate No.3 indicates that the
handing over of the letter to the post
office was not being treated by the
Commission as sufficient. The other mode
of sending the form given by the
Commission
is
by
hand.
If
the
Commission had prescribed delivery of
the form by hand as the only mode of
sending the form it would have been a
highly inconvenient mode of delivery for
the candidates who are spread all over the
State or the country. In the circumstances
it appears that it was for the convenience
of the sender of the form that an optional
mode to send the form by registered post
was provided. Non-specification of any
mode of sending the form in which case
the sender would have had the option of
sending the form in the mode of his
choice including the mode of ordinary
post may not have been regarded by the
Commission a satisfactory mode for it is
well known that if a letter is sent by
ordinary post the sender can never be
certain whether it has reached the
addressee. The advantage to the sender of
a letter by registered post is that its record
is maintained by the post office and in
case the letter is misplaced by the
Commission after it has been delivered to
it within time the sender can prove the
delivery and the candidate would not be
made responsible for the delay. The
sender knows that some risk in that a
letter may not reach on time is involved in
sending it even by registered post but
taking the risk would save him from a lot
of inconvenience in adopting the other
mode of depositing it personally. It
appears that the option of sending the
letter by registered post was left to the
sender so that if he is ready to take the
risk he may be saved from delivering the
form in person which in many cases
would be a very cumbersome procedure at
least for long distance out station
candidates. The post office renders public
service for the sender and the addressee
but if the addressee specifies a particular
place where the letter must reach before a
specified time indicating that it wold not
accept the letter after the specified time an
inference can be drawn that the addressee
is not taking the consequences of the risk
of non-delivery within the time specified,
upon itself and that the post office in such
a case is the agent of the sender. A
Division Bench of this Court in Ram
Autar
Singh
Vs.
Public
Service
Commission, U.P., Allahabad and other,
1987 UPLBEC 316 has considered the
466 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
effect
of
a
similar
term
in
the
advertisement of the Commission that
"closing date for the receipt of application
in the Commission Office will be July 14,
1986. Applications received after this date
will not be entertained" and has held that
acceptance of the form would have been
complete only if it had reached "before
the offer had lapsed on the expiry of the
time prescribed." The Division Bench in
Ram Autar Singh's case relied upon a
previous decision of this court in Writ
Petition No. 11224 of 1981 on the point
of agency of the postal authority. For the
reasons given above we are of the view
that the post office in this case was the
agent of the petitioner.

4. Learned counsel for the petitioner,
however, submitted that great injustice
would be done to the petitioner in the
facts of the case, and that the petitioner
should not be penalized for the fault of the
postal department, which is meant to
render public service. We find some merit
in this contention. The peculiar equitable
circumstances in this case are firstly that
the petitioner has already qualified in the
preliminary examination. It is stated at the
Bar that more than one lac candidates had
appeared in this examination, out of
which
only
about
two
thousand
candidates have cleared the preliminary
examination
and
very
meritorious
students would thus lose the chance of
appearing in the main examination.
Secondly the registered letter was sent by
the petitioner on 28.3.2009 by registered
speed post, and it can be inferred that the
petitioner was having a bona fide belief
that in the normal course the letter would
reach its destination within 48 hours. Shri
P.S. Baghel, leaned counsel for the
Commission in all fairness stated that
Commission has informed him that the
postal department gives some assurance
that letter sent by speed post is expected
to be delivered at its destination within 48
hours. Thirdly in this case it also appears
that the letter had in fact reached the U.P.
Public Service Commission on 1st April,
2009. Fourthly, the Commission has yet
not fixed any date for the main
examination and there does not appear to
be any practical difficulty for the
Commission in accepting and processing
the form at this stage.

5. In view of the above facts and
circumstances we direct the Commission
to accept the form of the petitioner if the
same is submitted personally by the
petitioner by 30th May 2009 at the office
of the U.P. Public Service Commission,
Allahabad. We also direct that the benefit
of this order would also be available to all
such candidates who may not have filed
any writ petition but have qualified for the
main examination and whose forms
though sent by registered post latest by
29.3.2009 did not reach the Commission
on time. Such candidates would also be
given benefit of this order if they submit
their forms personally by 30.6.2009.

With the above directions the writ
petition is disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.05.2009

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 20342 of 2000

Sunita Kumari

...Petitioner
Versus
Assistant General Manager and another

 ...Respondents