# Shashi Bhushan Kumar v. U.P. H.E.S.C. through its Secretary and another - **Citation:** (2000) 3 ILRA 309 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2000-07-05 - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shashi-bhushan-kumar-v-u-p-h-e-s-c-through-its-secretary-and-another-39519 - **Pages:** 3 ## Text 309 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 7. The case in hand, however, stands on a different footing. Besides there is specific provision in the Regulation referred to earlier which provides that full pay and allowances would be admissible if the employee is acquitted of all the blame. 8. In view of the discussions made above, I am inclined to allow the present writ petition. Resultantly, the writ petition is allowed. The respondents are directed to treat the whole period of suspension of the petitioner as duty and pay him salary and other allowances for the said period within two months hence. In the circumstances, there will be no orders as to costs. 25,*,1$/ -85,6',&7,21 25,*,1$/ -85,6',&7,21 &,9,/ 6,'( &,9,/ 6,'( '$7(' $//$+$%$' 7+( '$7(' $//$+$%$' 7+( %()25( %()25( 7+( +21 %/( 65 6,1*+ - 7+( +21 %/( 65 6,1*+ - 7+( +21 %/( '5 &+$8'+$5< - 7+( +21 %/( '5 &+$8'+$5< - &LYLO 0LVF :ULW 1R RI 6KDVKL %KXVKDQ .XPDU «3HWLWLRQHU 9HUVXV 83 +LJKHU (GXFDWLRQ 6HUYLFHV &RPPLVVLRQ WKURXJK LWV 6HFUHWDU\ DQG DQRWKHU «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y the Court 1. Heard Sri W.H. Khan for the petitioner and Sri B.K. Bist for the U.P. Higher Education Services Commission and the learned Standing Counsel representing the State. 2. Pursuant to the advertisement no. 27,28,29 issued by U.P. Higher Education Services Commission, Allahabad in National Daily including 'Times of India' dated 5.7.2000 the petitioner applied for the post of Lecturer in Political Science. The application was sent through Speed Post on 31.7.2000 from Lohiya Nagar Post Office, Patna. According to the advertisement aforestated the last date for receipt of application was 5.8.2000 as would be evident from Clause III of the advertisement which reads as under:- " ¡[ Y ž ¡…L ‹ »Q[ ^ M ^ ±K ž ‡Ë^ »K ‘‹ F‘L ¡o ¡^ · 1⁄4 ^ ¡…L % (… ‘ ¡6 ‹ _ 66 L … ¡ ) ‘ »‹ ‚ »0 $ [‚ ‚ · 0 ž o F } Q % ( » ¡[ Y ž ¡…L  ¡L · ¡L ¡O L % ( ^ 9 ©% ¶(L ^ ‘ žo / ‘^ ©E ^ »‘@ ‘ » ¡[ ‹ ‚ žL 3All] Shashi Bhushan Kumar V. U.P. H.E.S.C. through its Secretary and another 310 _ ^L F » 9 [ 6 ¡F$ [‚ ¡% (‘ © · Y‚ · ‘ » ‹ »Q[ ^ M ‘‹ ©% ( … [ F a F »0 ¡[ Y ž ¡…L ‹ »Q[ ^ M ‘ » L … O ‹ ^ ±K ž O ‹  ¡L · ¡L ¡O % (» ^ … [L _ ^L ‹ »Q[ ^ M ‘‹ ©% ( ‚ ž [ F a F 1⁄40 » " 3. The application it appears reached its destination on 14.8.2000 i.e. after expiry of the last date. The Commission refused to accept the application on the ground that it was tendered in the Office of the Commission after 5.8.2000. 4. The question that arises for consideration is whether the Post Office was the agent of the respondentCommission. It has been submitted by Sri W.H. Khan, counsel appearing for the petitioner that in view of the language used in para 3 of the advertisement, the Post Office became the agent of the Commission. 5. Sri B.K. Bist representing the Commission submits, on the basis of a Division Bench decision of this Court in Ram Autar Vs,. Public Service Commission and others, 1987 U.P.L.B.E.C. 316 that the Commission was justified in not accepting the application which was tendered after expiry of the last date. 6. We have given our anxious consideration to the submission of the learned counsel. In Commissioner of Income Tax, Bombay South, Bombay Vs. M/s Ogale Glass Works Ltd. A.I.R. 1954 S.C. 429 (Vol.41, C.N.104) a question arose as to whether the Post Office would be the agent of the addressee in a case where the cheque was sent by post on the request of the creditor. The Supreme Court held 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." And further:- "After such request the addressee cannot be heard to say that the post office was not his agent...........Of course, if there be no such request, express or implied, then the delivery of the letter or the cheque to the Post Office is delivery to the agent of the sender himself." 7. The decision aforestated has been referred and followed by Supreme Court in The Indore Malwa United Mills Ltd. Vs. THE Commissioner of Income Tax (Central) Bombay A.I.R. 1966 S.C. 1466 (V 53 C 288) wherein it has been reiterated that:- "If by an agreement, express or implied, by the creditor, the debtor is authorised 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." 8. Relying upon the aforesaid decision of the Supreme Court, a Full Bench of this Court in B. Lal and others Vs. M. Lal. 1970 A.L.J. 470 has held as under:- "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, form the very fact that the creditor makes a demand through the post, an authority to 311 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 the debtor to meet his obligation through the post is implied." 9. So far 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 would be liable to be rejected. But the relevant portion of the advertisement as quoted by Division Bench in its judgment do not expressly or by necessary implication establish an agreement inviting applications through post office and as such the Division Bench decision on facts is not applicable. 10. In the result the petition succeeds and is allowed. The respondentU.P. Higher Education Services Commission is directed to entertain the application if the same is presented personally before the Secretary within 10 days from today who shall acknowledge the receipt of the application. 25,*,1$/ -85,6',&7,21 25,*,1$/ -85,6',&7,21 &,9,/ 6,'( &,9,/ 6,'( '$7(' $//$+$%$' 6(37 '$7(' $//$+$%$' 6(37 %()25( %()25( 7+( +21 % 7+( +21 %/( 6+<$0$/ .80$5 6(1 &- /( 6+<$0$/ .80$5 6(1 &- 7+( +21 %/( *30$7+85 - 7+( +21 %/( *30$7+85 - &LYLO 0LVF :ULW 3HWLWLRQ 1R RI 1LW\D 1DQG 3DQGH\ «3HWLWLRQHU 9HUVXV $GGLWLRQDO &KLHI -XGLFLDO 0DJLVWUDWH 9 &LYLO -XGJH 6HQLRU 'LYLVLRQ *RUDNKSXU DQG RWKHUV «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y the Court 1. In the instant writ petition the petitioner has prayed for issuance of a writ of mandamus commanding the Additional Chief Judicial Magistrate V/ Civil Judge (Senior Division), Gorakhpur to adjudicate and decide Original Suit No. 1990 of 1988, Nitya Nand Pande Vs. Sharda Prasad Pande and others within a specified time. 2. The facts alleged by the writ petitioner is that the petitioner filed a suit for permanent injunction restraining the respondents from cutting down the trees standing over the suit land as well as from raising any construction over the same. A relief for mandatory injunction for removal of boundary wall and door raised over the suit land has also been claimed. The aforesaid suit filed on 9.8.1988 was