Sabhajeet Yadav, J. - (1.) BY this petition, the petitioner has sought relief of mandamus directing the Commission to accept the application form submitted by the petitioner and allow her to participate in process of selection as a candidate for the post of Lecturer in Government Intermediate College by treating her application within time.
(2.) THE relief sought for in this writ petition rests on the facts that the Commission has advertised certain vacancies of Lecturers in Government Intermediate Colleges. THE last date for receipt of the application form was 20th February, 2009. According to the conditions stipulated in the advertisement duly filled application form must reach to the office of the Commission till 5.00 p.m. by 20th February, 2009 or before it either through registered post or by hand. It was also stipulated in the said advertisement that the application shall not be received through 'FAX'. A photostat copy of the advertisement No. 5/2009- 09 dated 31 st January, 2009 is on record as Annexure-1 of the writ petition, it is stated that in pursuance of said advertisement the petitioner has sent her application form through Speed Post on 17.2.2009 from Chitrakoot (U.P.) as stated in the supplementary affidavit filed in the writ petition. In writ petition the last date of receipt of application form and date of sending application have been incorrectly mentioned by the petitioner, which are rectified by filing supplementary affidavit. It is stated that since the Commission was hardly at a distance of about 100-120 Km. from the aforesaid place of sending the application form, therefore, in all probabilities it was expected to reach the Commission within 24 hours ;.e. by 18th of February, 2009 but it appears that on account of some negligence or inadvertence on the part of post office personnel the envelope containing the application form was reached in the office of the Commission on 21.2.2009 i.e. next day after last date of receipt of the application form, as such it was returned back to the petitioner with an endorsement that it was received after last date of receipt of the application form. A photostat copy of envelope as well as application which are returned back is on record as Annexure-3 of the writ petition. Feeling aggrieved against the aforesaid action of the Commission the petitioner has filed instant writ petition. Heard Sri N.L. Pandey, learned counsel for the petitioner and Sri M.A. Qadeer, learned Senior Counsel for the Commission. It is submitted by learned counsel for the petitioner that since two alternative modes for submission of application form were provided in the advertisement by the Commission; one by registered post and another by hand and the petitioner has opted for submitting her application form to the Commission by sending it through registered post namely speed-post which is speedier mode of delivery system on 17.2.2009, and in all probabilities it was expected to reach the Commission on 18th or 19th February, 2009 before the last date of the receipt of the application form but on account of fault or negligent act of post office personnel which was acting as agent of the Commission, it was reached to the office of the Commission on the next day of last date of receipt of application form, therefore, on account of fault or negligence of post office, the petitioner cannot be made to suffer and she cannot be denied of opportunity to be considered for employment guaranteed underArticle-16 of the Constitution of India in respect of the vacancies advertised by the Commission. In support of his submission, learned counsel for the petitioner has placed strong reliance upon a Full Bench decision of this Court rendered in Bhikha Lal and others v. Munna Lal, 1974 ALJ 470 (FB), wherein this Court has held that on the facts and in circumstances of the case the tenant-respondent could not be said to have committed a default under Section 3 (1)(a) in respect of payment of Rs. 35/- which he sent to the plaintiff-landlords by a money order well within time but which had reached the landlords after expiry of thirty days.
(3.) CONTRARY to it, Sri M.A. Qadeer learned senior counsel appearing on behalf of the Commission has contended that since the Commission has provided two alternative modes for submission of application form to the desirous candidates; one through registered post and another by hand to the office of Commission and it was made necessary that only duly filled application form reached to the Commission within the prescribed time shall be accepted by the Commission and once the applicant has opted/chose to submit her application form through speed-post (speedier mode of registered post) which could not reach within stipulated time, consequent rejection of application form cannot be faulted with and the Commission cannot be blamed for the same. In justification of action taken by the Commission, Sri Qadeer has placed strong reliance upon several decisions of this Court rendered in RamAutar Singh v. Public Service Commission. U.P., Allahabad and others, 1987 UPLBEC 316; Anupam v. Public Service Commission, U.P. Allahabad and anotherm W.P. No. 57508 of 2005 decided on 4.10.2005, Smt. Pooja Singh v. Public Service Commission, Allahabad and others in W.P. No. 67808 of 2006 decided on 13.12.2006, Adil Khan v. State of U.P. and others in W.P. No. 23152 of 2006 decided on 5.5.2006 and a decision of Hon'ble Apex Court rendered in Union of India v. Mohd. Nazim, AIR 1980 SC 431. It is not in dispute that in the advertisement in question two alternative modes for submission of application form were provided to the candidates by the Commission; one through the registered post and another by hand. It implies that a desirous candidate for such selection were authorised by the Commission to submit their application form either through registered post or by hand to the office of the Commission within prescribed time. The petitioner has elected/opted/chose to send her application form through speed post on 17.2.2009 from Chitrakoot (U.P.), which is at a distance of about 110-120 Kms. from the Commission situated at Allahabad instead of submitting her application form by hand to the office of the Commission but her application form was returned back on account of fact that it was reached to the Commission on 21.2.2009 i.e. on next day after expiry of last date of receipt of application form. It was returned back not on account of fact that it was sent through any other and different mode of transmission, which was not authorised by the Commission but it was returned back on account of fact that it could reach the Commission after expiry of prescribed time. Virtually speed- post is speedier mode of transmission of such articles through registered post that is why no fault could be found by the Commission on that count.;