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 Lecturer 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 31st 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, i.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 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.
3. Heard Sri N.L. Pandey, learned Counsel for the petitioner and Sri M.A. Qadeer, learned senior counsel for the Commission.
4. 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 under Article 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 Ors. 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.
5. 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 Ram Autar Singh v. Public Service Commission, U.P. Allahabad and Ors. 1987 UPLBEC 316 : 1987 (2) AWC 1242; Anupam v. Public Service Commission, U.P., Allahabad and Anr. in W. P. No. 57508 of 2005, decided on 4.10.2005; Smt. Pooja Singh v. Public Service Commission, Allahabad and Ors. in W.P. No. 67808 of 2006, decided on 13.12.2006; Adil Khan v. State of U.P. and Ors. in W. P. No. 23152 of 2006, decided on 5.5.2006 and a decision of Hon'ble Apex Court in Union of India v. Mohd. Nazim : AIR 1980 SC 431.
6. 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.
7. Now the questions which arise for consideration before this Court are that as to 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?
8. A Full Bench of this Court in Bhikha Lal and Ors. v. Munna Lal (supra) had come across with somewhat similar issue. The question for consideration of the Full Bench was that as to whether on facts and in the circumstances of the case the tenant could be said to have committed a default under Section 3(1)(a) of the U.P. Temporary Control of Rent and Eviction Act in respect of payment of Rs. 35 which he had sent to the landlord by Money Order well within time but which had reached the landlord after expiry of 30 days?
9. After examining several decisions of Courts in England and Supreme Court of India, Full Bench of this Court in paras 22 and 23 has observed 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....
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 in 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 authorised 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 Henthorri v. Fraser.
10. Thereafter the reference was answered in para 27 of the decision as under:
27. My answer to the question referred to this Bench consequently is that, 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 Rs. 35 which he sent to the plaintiff-landlords by a money order well within time but which had reached the landlords after the expiry of thirty days.
11. Now coming to the decision of Hon'ble Apex Court rendered in Commissioner of Income-tax, Bombay v. Ogale Glass Works Ltd. : AIR 1954 SC 429, upon which the reliance was placed by Full Bench of this Court in Bhtkha Lal's case (supra). The material facts of the case before the Supreme Court were that the assessee was a non-resident company incorporated and carrying on business in the former Audh State outside British India. In the relevant accounting years the assessee secured some contracts for the supply of goods manufactured by it to the Government of India. Under Clause 15 of the agreement payments for the delivery of the goods were to be made on submission of the bills in the prescribed form, by cheques on a branch of the Reserve Bank or Imperial Bank of India transacting Government business. The assessee used to submit the bills in the prescribed form and on the form used to write 'kindly remit the amount by cheque in our favour on any Bank in Bombay.' All payments for the goods supplied were made by cheques drawn by the Government department at Delhi on the Reserve Bank of India at Bombay and posted from there to the assessee. The question before the Supreme Court was as to whether, on the facts and circumstances of the case the income profits or gains in respect of the sales made to the Government of India were received by the assessee at Delhi in British India within the meaning of Section 4(1)(a) of the Income-tax Act, 1922? The Supreme Court held on the facts before it that the posting of the cheque in Delhi in law amounted to payment to the assessee in Delhi. It was a case in which according to the Supreme Court there was an express request by the assessee to the Government of India to remit the cheques through the post office and consequently the post office became an agent of the assessee.
12. The pertinent observation made by Hon'ble Apex Court in paras 15 and 17 of the said decision are as under:
15. ...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. 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.
Apart from this principle of agency there is another principle which makes the delivery of the cheque to the post office at the request of the addressee a delivery to him and that is that by posting the cheque in pursuance of the request of the creditor the debtor performs his obligation in the manner prescribed and sanctioned by the creditor and thereby discharges the contract by such performance (see Section 50 of the Indian Contract Act and illustration (d) thereto).
17. Applying the above principles to the facts found by the Tribunal the position appears to be this. The engagement of the Government was to make payment by cheques. The cheques were drawn in Delhi and received by the assessee in Aundh by post. According to the course of business usage in general to which, as part of the surrounding circumstances, attention has to be paid under the authorities cited above, the parties must have intended that the cheques should be sent by post which is the usual and normal agency for transmission of such articles and according to the Tribunal's findings they were in fact received by the assessee by post.
Apart from the implication of an agreement arising from such business usage the assessee expressly requested the Government to 'remit' the amounts of the bills by cheques. This, on the authorities cited above, clearly amounted in effect to an express request by the assessee to send the cheques by post. The Government did act according to such request and posted the cheques in Delhi. It can scarcely be suggested with any semblance of reasonable plausibility that cheques drawn in Delhi and actually received by post in Aundh would in the normal course of business be posted in some place outside British India.
This posting in Delhi, in law, amounted to payment in Delhi. In this view of the matter the referred question should, with respect, have been answered by the High Court in the affirmative.
13. The view taken in the aforesaid case has been reiterated by Hon'ble Apex Court in subsequent decisions rendered in Sri Jagdish Mills Ltd. by its successor Sri Arribica Mills Ltd. v. Commissioner of Income Tax, Bombay North, Kutch and Saurashtra AIR 1959 SC 1160 and Indore Malwa United Mills Ltd. v. Commissioner of Income Tax (Central) Bombay AIR 1966 SC 1466. However, in Commissioner of Income Tax, Bihar and Orissa v. Patney and Co. : AIR 1959 SC 1070, the Hon'ble Apex Court had held that in facts of the aforesaid case the principle of Ogale Glass Works' case cannot be made applicable.
14. In Sri Jagdish Mills Ltd. by its successor Sri Ambica Mills Ltd. v. Commissioner of Income Tax, Bombay North, Kutch and Saurashtra Ahmadabad AIR 1959 SC 1160, the assessee at Baroda entered into an agreement with the Government of India in 1942 to supply goods manufactured by the assessee. In pursuant to the said agreement the orders were accepted by the assessee at Baroda and delivered the goods manufactured by it to the Government of India. The payment for goods supplied by the assessee to the Government was to be made by cheques but there was no request either express or implied emanating from the assessee for the dispatch of these cheques by post. The question which arose for consideration before Hon'ble Apex Court was that where no such express words were used and the matter rested merely in the stipulation that the payment would be made by cheques, would the mere posting of cheques in Delhi be enough to constitute the post office the agent of the appellant so that the income, profits and gains may be said to have been received by the appellant within a taxable territories?
15. By placing reliance upon earlier decision rendered by Hon'ble Apex Court in Commissioner of Income Tax v. Ogale Glass Works Ltd. Hon'ble Apex Court has held that according to the course of business usage in general which appears to have been followed in this case, the parties must have intended that the cheques should be sent by post which is the usual and normal agency for transmission of such articles. The pertinent observation made by Hon'ble Apex Court in para 18 of the decision are extracted as under:
18. The stipulation in the contract between the appellant and the Government was that the payment would be made by cheques. The Government of India was located in Delhi and the cheques would be necessarily drawn by it from Delhi. Could it be imagined that in the normal course of affairs the cheques thus drawn in Delhi would be sent by a messenger in Baroda so that they may be delivered to the appellant in Baroda? Or that the officer concerned would come to Baroda himself and hand the same over to the appellant in Baroda? The only reasonable and proper way of dealing with the situation was that the payment would be made by cheques which the Government would sent to the appellant at Baroda by post. According to the course of business usage in general which appears to have been followed in this case, the parties must have intended that the cheques should be sent by post which is the usual and normal agency for transmission of such particles. If that were so, there was imported by necessary implication an implied request by the appellant to send the cheques by post from Delhi thus constituting the Post Office its agent for the purposes of receiving those payments.
16. In Indore Malwa United Mills Ltd. v. Commissioner of Income Tax (Central) Bombay AIR 1966 SC 1466, similar questions as to whether the post office was agent of assessee to receive the cheques representing the sale proceeds and whether the assessee received the sale proceeds in British India where the cheques were posted were again under consideration before Hon'ble Apex Court. By placing reliance upon the abovenoted decisions, the Hon'ble Apex Court in paras 8 and 10 of the decision has held as under:
8. The next question is whether the post office was the agent of the assessee to receive the cheques representing the sale proceeds and whether the assessee received the sale proceeds in British India where the cheques were posted. Now, if by an agreement, express or implied, between the creditor and the debtor or by a request, 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. (See : (1955) 1 SCR 185 : AIR 1954 SC 429, Jagdish Mais Ltd. v. Commissioner of Income-tax : (1960) 1 SCR 236 : AIR 1959 SC 1160, approving Norman v. Ricketts (1886) 3 TLR 182, Thairlwall v. Great Northern Rly. Co. (1910) 2 KB 509. In Messrs. Ogale Glass Works' case : 1955-1 SCR 185 : AIR 1954 SC 429, there was an express request by the assessee at Aundh to its debtor in Delhi to remit the amount of the bills by cheques. In Jagdish Mills' case : (1960) 1 SCR 236 : AIR 1959 SC 1160, there was a stipulation between the assessee and its debtor that the debtor in Delhi should pay the assessee in Baroda the amount due to the assessee by cheques, and this Court held that there was by necessary implication a request by the assessee to the debtor to send the cheques by post from Delhi, thus, constituting the post office its agent for the purpose of receiving the payments. In the instant case, Clause 9 of the terms and conditions of the contract read with the prescribed form of the bills and the instructions regarding payment show that the parties had agreed that the assessee would submit to the Government of India, Department of Supply, New Delhi, bills in the prescribed form requesting payment of the price of the supplies by cheques together with signed receipts and the Government of India would pay the price by crossed cheques drawn in favour of the assessee. Having regard to the fact that the assessee was at Indore and the Supply Department of the Government of India was at New Delhi, the parties must have intended that the Government would send the cheques to the assessee by post from New Delhi, and this inference is supported by the fact that the cheques used to be sent to the assessee by post. In the circumstances, there was an implied agreement between the parties that the Government of India would send the cheques to the assessee by post.
10. Mr. Pathak contended that the assessee and the Government of India had agreed that the sale proceeds would be paid to the assessee in Indore outside British India, and, therefore, the rule in Ogale Glass Works' case : (1955) 1 SCR 185 : AIR 1954 SC 429, did not apply, having regard to the decision in Commissioner of Income-tax v. Patney and Co. : (1959) 36 ITR 488 : AIR 1959 SC 1070. We are not inclined to accept this contention. There is nothing on the record to show that there was any express agreement between the parties that the sale proceeds would be paid to the assessee at Indore. We are satisfied that the post office was the agent of the assessee for the purpose of receiving the cheques representing the sale proceeds and the assessee received the sale proceeds in British India where the cheques were posted, and consequently, the profits In respect of the sales were taxable under Section 4(1)(a). The High Court, therefore, rightly answered the question In the affirmative.
17. However, in Commissioner of Income-tax, Bihar and Orissa v. Patney and Co. : AIR 1959 SC 1070, in the year of assessment 1945-46 the amount of commission paid to the assessee by cheques were drawn respectively on banks at Madras and Bombay respectively posted from Madura and Bombay. All the cheques whether from Madura or Bombay were sent by two respective firms from Madura or Bombay and were received by the assessee (creditor) at Secunderabad and were treated as payment. In this case there was an express agreement that payment was to be made at Secunderabad. In such circumstances it was held by Hon'ble Apex Court that the income of assessee was not received in British India. The pertinent observation made by Hon'ble Apex Court In paras 4 and 5 of the decision are extracted as under:
4. ... In the case of payment by cheques sent by post the determination of the place of payment would depend upon the agreement between the parties or the course of conduct of the parties. If it is shown that the creditor authorised 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. Therefore, the post office is an agent of the person to whom the cheque is posted if there be an express or implied authority to send it by post. : 1955-1 SCR 185 : AIR 1954 SC 429 (supra). In that case there was an express request of the assessee to remit the amount of the bills outstanding against the debtor, that is, Government of India by means of cheques. But it was observed by this Court that according to the course of business usage in general which has to be considered as a part of the surrounding circumstances the parties must have intended that the cheques should be sent by post which is the usual and normal mode of transmission and therefore the posting of cheques in Delhi amounted to payment in Delhi to the post office which was constituted the agent of the assessee. But it was argued for the respondents that in the absence of such a request the post office could not be constituted as the agent of the creditor and relied on a passage in Ogale's case : 1955-1 SCR 185 at 204 : AIR 1954 SC 429 at 436, where it was observed:
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.It was further contended that in this case there was an express agreement that the payment was to be made at Secunderabad and therefore the matter does not fall within the rule in Ogale Glass Works' case : 1955-1 SCR 185 : AIR 1954 SC 429 (supra) and the following principle laid down in judgment by Das, J. (as he then was) is inapplicable:
Applying the above principles to the facts found by the Tribunal the position appears to be this. The engagement of the Government was to make payment by cheques. The cheques were drawn In Delhi received by the assessee in Aundh by post. According to the course of business usage to which, as part of the surrounding circumstances, attention has to be paid under the authorities cited above, the parties must have intended that the cheques should be sent by post which is the usual and normal agency for transmission of such articles and according to the Tribunal's finding they were in fact received by the assessee by post.
5. In our opinion this contention is well-founded. Whatever may be the position when there is an express or implied request for the cheque for the amount being sent by post or when it can be inferred from the course of conduct of the parties, the appellant in this case expressly required the amount of the commission to be paid at Secunderabad and the rule of Ogale Works' case : 1995 1 SCR 185 : AIR 1954 SC 429, would be inapplicable.
18. Now, before analysing the aforesaid decisions, it would be useful to look into law relating to the doctrine of precedent. In Dalbir Singh and Ors. v. State of Punjab AIR 1979 SC 1384, it was held that the only thing which is binding in a decision, is 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. The pertinent observations made in this regard in para 22 of the decision are as under:
22. ... 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 No. (iii) is the material element is the decision for it determines finally their rights and liabilities in relation to the subject-matter of the action. It is the judgment that stops the parties from reopening the dispute. However, for the purposes of the doctrine of precedents, ingredient No. (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. Haynes 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.
19. In State of Orissa v. Sudhansu Shekhar Misra : AIR 1968 SC 647, Hon'ble Apex Court in para 13 of the decision has held that what is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made. Para 13 of the decision is as under:
A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it.
20. In Ambica Quarry Works v. State of Gujarat and Ors. : (1987) 1 SCC 213 (vide para 18), Hon'ble Apex Court observed:
The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.
21. In Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd. : (2003) 2 SCC 111 (vide para 59), Hon'ble Apex Court observed:
It is well-settled that a little difference in facts or additional facts may make a lot of difference in the presidential value of a decision.
22. How can ratio decidendi be ascertained from a decision has been very clearly dealt with in Krishna Kumar v. Union of India : AIR 1990 SC 1782. The observations made by Hon'ble Apex Court in paras 18 and 19 of the decision are as under:
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. Leathern (1901) AC 495 (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 judgment 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.
23. A decision given per-incuriam has no binding force. When a decision can be said to be given 'per tncuriam' has been dealt with by seven Judges Constitution Bench of Hon'ble Apex Court in A.R. Antuley v. R.S. Nayak and Anr. : AIR 1988 SC 1531, in para 44 of the decision Hon'ble Apex Court held as under:
44. It appears that when this Court gave the aforesaid directions on 16th February, 1984 for the disposal of the case against the appellant by the High Court, the directions were given oblivious of the relevant provisions of law and the decision in Anwar Ali Sarkar's case : AIR 1952 SC 75 (supra). (See Halsbury's Laws of England, 4th Edn. Vol. 26 page 297, para 578 and page 300), the relevant notes 8, 11 and 15 : Dias on Jurisprudence, 5th Edn. Pages 128 and 130 : Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All ER 203 at 300. Also see the observations of Lord Goddard in Moore v. Hewitt (1947) 2 All ER 270 at 272A and Penny v. Nicholas (1950) 2 All ER 89, 92A 'Per incuriam' are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account to be demonstrably wrong. (See Morelle v. Wakeling (1955) 1 All ER 708, 718F). Also see State of Orissa v. Titaghur Paper Mills Co. Ltd. : (1985) 3 SCR 26 : AIR 1985 SC 1293. We are of the opinion that in view of the clear provisions of Section 7(2) of the Criminal Law Amendment Act, 1952 and Articles 14 and 21 of the Constitution, these directions were legally wrong.
24. In Municipal Corporation Delhi v. Gurman Kaur : AIR 1989 SC 38, Hon'ble Apex Court has held that a decision should be treated as given per incuriam, when it is given in ignorance in terms of a statute or a rule having force of a statute. In Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court : (1990) 3 SCC 682, Hon'ble Apex Court has held that a decision be said generally to be given per Incuriam, when Court has acted in ignorance of a previous decision of its own or when High Court has acted in ignorance of a decision of Supreme Court. In Arnit Das v. State of Bihar : JT 2000 (6) SC 320 : 2000 (3) AWC 2420 (SC), Hon'ble Apex Court held that a decision not expressed, not accompanied by reasons and not proceeding on conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not ratio decidendi This is the Rule of sub-silentio in the technical sense, when a particular point of law was not consciously determined. (See State of U.P. v. Synthetics and Chemicals Ltd. : JT 1991 (3) SC 268 : 1991 (4) SCC 138, Para 41).
25. From a careful reading and close analysis of the aforesaid decisions of Hon'ble Apex Court, it is clear that in Ogale Glass Works' case : AIR 1954 SC 429, there was an express request by assessee at Aundh to its debtor in Delhi to remit/send the amount of bills by cheque. In Jagdish Mills case, AIR 1959 SC 1160, there was a stipulation between assessee and its debtor that the debtor in Delhi should pay the assessee at Baroda the amount due to the assessee by cheques and Hon'ble Apex Court has held that there was by necessary implication a request by the assessee to the debtor to send the cheques by post from Delhi, thus, constituting the post office its agent for the purpose of receiving the payments. In Indore Malwa United Mills Ltd. case (supra) Hon'ble Apex Court has held that the terms and conditions of contract read with prescribed form of the bills and instructions regarding payment show that the parties had agreed that assessee would submit to the Government of India, Department of Supply, New Delhi, bills in prescribed form requesting payment of price by cheques and the Government of India would pay the price by crossed cheques drawn in favour of assessee. Having regard to the fact that the assessee was at Indore and supply department of Government of India was at New Delhi the parties must have intended that Government would send the cheques to assessee by post from New Delhi and this inference is supported by the fact that cheques used to be sent to assessee by post. In circumstances there was an implied agreement between the parties that the Government of India would send the cheques to the assessee by post. In this case Hon'ble Apex Court has further held that there is nothing on record to show that there was an express agreement between the parties that the sale proceeds would be paid to the assessee at Indore. In this view of the matter, the Hon'ble Apex Court has held that the post office was the agent of assessee for the purpose of receiving the cheques representing the sale proceeds and the assessee received sale proceeds in British India where cheques were posted and consequently the profits in respect of sale were taxable under Section 4(1)(a) of the Income-tax Act. However, in Commissioner of Income-tax, Bihar and Orissa v. Patney and Co. (supra) there was an express agreement between the Government and respondent-company that the payment was to be made at Secunderabad through cheques by post, therefore, Hon'ble Apex Court has held that the matter does not fall within the rule in Ogale Glass Works case and law laid down therein would not be applicable in this case.
26. Thus, from the aforesaid legal position enunciated by the Apex Court, it is clear that where by an agreement express or implied between the creditor and debtor or by a request expressed or implied by the creditor the debtor is authorised to pay the debt by cheque and to send the cheque to the creditor by post, the post office would be the agent of creditor to receive the cheque and the creditor would receive payment as soon as the cheque is posted to him at a place from where the cheque is posted. Extending the aforesaid proposition of law laid down by Hon'ble Apex Court, in Bhikha Lal's case (supra) a Full Bench of this Court has held that on facts and circumstances of the case, the defendant had an implied authority from the plaintiff to pay the amount to them by means of money order and as soon as the defendant handed over the amount to the post office to be remitted by money order, he was discharged of his obligation in that respect. The defendant had no control over the post office and if there was any delay caused in transit, the defendant cannot be held responsible for it (Para 25). Accordingly, the reference was answered in the terms that the tenant-respondent could not be said to have committed a default under Section 3(1)(a) of U.P. Temporary Control of Rent and Eviction Act in respect of payment of Rs. 35 which he had sent to landlord by money order well within time but which had reached the landlord after expiry of 30 days.
27. In view of aforesaid discussion, there can be no scope for doubt to hold that vide advertisement in question the Commission has provided two alternative modes to the candidates for submission of application forms to the Commission, thus, the Commission has expressly authorised the candidates to send their application forms either through registered post or by hand within prescribed time to the office of the Commission. Therefore, once the desirous candidates have sent their application forms to the Commission through registered post within time prescribed by the Commission, in view of law laid down by Hon'ble Apex Court in Ogale Glass Works case (supra), Jagdish Mills case (supra), Indore Malwa United Mill case (supra) and Full Bench of this Court in Bhikha Lal's case (supra), the post office would become an agent of the Commission (addressee) to receive application forms of the candidates (senders) and the Commission would receive the application form as soon as the applications are posted by the candidates at a place from where the application forms are posted to the Commission and at the time when they are posted and since the candidates have no control over the post office, therefore, any delay caused in the transit by the post office working as agent of the addressee (Commission), the candidates cannot be held to be responsible for it and as such they cannot be made to suffer on a default of post office. It implies that if the candidates have posted their application form through registered post prior to the last date of receipt of the application form so that it could reasonably reach to the Commission within prescribed time, the candidates cannot be made to suffer on account of delayed delivery of their application forms by the post office to the Commission. It is immaterial that in the said advertisement the Commission has also provided another alternative mode of transmission/submission of application form to the candidates by hand to the office of the Commission for the simple reason that once a candidate opts or elects to send his application form through registered post, simultaneously he is not expected to submit it by hand also to the office of the Commission and if a candidate would have submitted his application form by hand, there would have been no need for sending through registered post. Two alternative modes provided to the candidates in the advertisement for submitting the application form to the Commission does not mean that the candidates are expected to adopt both the modes for submitting their application form simultaneously to the Commission, instead thereof, in my considered opinion, they are expected to exercise their option in sending the application form by electing one of the either modes of submission of application form : the Commission.
28. Now coming to the cases cited by the counsel for the Commission, the first case upon which reliance was placed was Ram Autar Singh v. Public Service Commission (supra) decided by Division Bench of this Court. The facts of the aforesaid case were that the Commission had advertised the vacancies of Munsif, the closing date for receipt of the application in the office of the Commission was 14.7.1986. The advertisement inter alia provided that the application received after that date will not be entertained. The advertisement further provided that applications complete in all respect must reach the Secretary, Public Service Commission, U.P., Allahabad on or before 14th July, 1986. No application received after this date will be accepted. Incomplete application and applications not on prescribed form even if received within time may be summarily rejected. The petitioner, who was an advocate, dispatched his application form by registered post from Bijnor on 4.7.1986 to the Secretary of the Commission at Allahabad. The petitioner's application form was received beyond the closing date on 30.7.1986. He received the form back from the Commission's office with the remark that the application had not been accepted as it was received beyond the closing date. According to the petitioner as he had dispatched the application form ten days before the closing date, the Commission was obliged to accept it. The petitioner has also submitted that the postal authorities being the agent of respondent No. 1 he should not be made to suffer on account of negligence of postal authorities. In support of his submission the reliance was placed on a Full Bench decision of this Court in Bhikha Lal's case (supra).
29. However, while rejecting the' contention of petitioner this Court has dismissed the writ petition on the following reasons given in paras 7 and 8 of the decision:
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 application 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 completed on mere despatch. It would have been completed only if it had reached the offer or before the offer had lapsed on expiry of the time prescribed.
8. Learned Counsel appearing for the Commission has filed the photostat copy of the judgment of this Court in Writ Petition No. 11224 of 1981, wherein the very same points urged in this case had been advanced before the Court. The question as to the agency of the postal authorities and the legal implications following receipt of an application after expiry of the closing date have been discussed in great detail. The Court finally held that an application received by the Commission after expiry of the closing date was liable to be rejected. With great respect, we agree with the principles enunciated in the said decision which have full application to the facts of this case.
30. In Ram Autar Singh's case, it is to be noted that from the advertisement as disclosed in the judgment, there is nothing to indicate as to whether Commission had authorized the candidates to send their application form to the Commission through registered post or not. It appears that no particular mode of submission of application form was provided, instead thereof it was clearly stipulated therein that applications received beyond the closing date will not be accepted. Therefore, on the facts and circumstances of the aforesaid case, it appears that this Court has taken aforesaid view in the matter, thus the case in hand can be distinguished on facts. However, in the aforesaid decision, nothing has been disclosed as to why the principle of law enunciated by the Full Bench in Bhikha Lal's case, which was based on decisions of Supreme Court as referred therein has no application. In my opinion, Division Bench of this Court was bound by the decision of Full Bench of this Court in Bhikha Lal's case and decisions of Hon'ble Apex Court referred therein, as indicated hereinbefore. With due respect to the Division Bench in Ram Autar Singh's case, I am of the considered opinion that this Court did not decide the issue as to whether post office is agent of the sender or addressee, consciously after analysing the aforesaid decisions of Supreme Court and Full Bench of this Court. Therefore, it require re-consideration by a larger Bench of this Court.
31. The next decision upon which reliance was placed by learned Counsel appearing for the Commission was rendered by Division Bench of this Court in Civil Misc. Writ Petition No. 67808 of 2006, Smt. Pooja Singh v. Public Service Commission, Allahabad, decided on 13.12.2006. The facts of the aforesaid case were that an advertisement was issued on 7th October, 2006 by U.P. Public Service Commission inviting applications for the post of U.P. Judicial Service/Civil Judge (Junior Division) and it required that the application form should be received by the Commission before 5.00 p.m. till 3rd November, 2006 by registered post or by hand. It was further provided that after the last date applications shall not be received at any cost. The application through Fax shall not be accepted. The petitioner of the aforesaid case claimed that she had sent the application to the Commission by courier service to respondent No. 2 and when its agent approached the Commission on 1st November, 2006 to deliver the said application form, the clerk sitting thereon in the office of the Commission refused to accept the same on the ground that it could only be received either by hand or by registered post and no other mode was permissible. The petitioner on not receiving the said application form on 1.11.2006 has filed aforesaid writ petition. A Division Bench of this Court while dismissing the writ petition in concluding part of its judgment held as under:
So far as the merit of the case is concerned, admittedly the mode for submitting the application form had been either by the Registered Post or by hand. In such cases, application is to be submitted only by the modes prescribed by the Department/Commission/Authority to receive the same, and the applicant cannot choose any other mode. If he does so he does it at his own risk and exposes himself to the peril of rejection of the application form. In case the application is sent by any mode other than prescribed by the Commission, there is no obligation on its part to receive the same. In case the other modes are enforced, then some applicant may send the application form by E Mail, another by Fax, and there will be no sanctity of the system.
32. In Smt. Pooja Singh's case (supra) the application form of the candidate was rejected not because of the reason that it was received after closing date but because of the reason that it was not submitted to the Commission according to the prescribed mode instead thereof it was sent through different mode, i.e., through courier service, therefore, the facts of the aforesaid case is quite distinguishable from the facts of the instant case.
33. Another decision upon which learned Counsel for the Commission has placed reliance was in Civil Misc. Writ Petition No. 57508 of 2005, Anupam v. Public Service Commission, U.P. Allahabad and Anr. decided by a Division Bench of this Court on 4.10.2005. In the aforesaid case as quoted in the judgment, the advertisement provided that the application complete in all respect must reach the Secretary, Public Service Commission, U.P., Allahabad at the Commission's officer either by registered post or by hand upto 5.00 p.m. on or before 22nd July, 2005. Admittedly the petitioner of the aforesaid case had sent his application form through registered post on 14th July but the Commission refused to accept the same due to the reason that it reached to the bffice on 28th July, 2005 after expiry of last date. The question for consideration before Division Bench was that as to whether the post office is an agent of the Public Service Commission, and if application not received within time prescribed in the advertisement the responsibility lies with the Commission?
34. This Court in Anupam's case has noticed the decision of Hon'ble Apex Court rendered in Union of India v. Mohd. Nazim : AIR 1980 SC 431 and Anr. decision rendered in Civil Appeal No. 1619 of 2005, Unit Trust of India v. Ravinder Kumar Shukla : JT 2005 (12) SC 345 : 2005 (4) AWC 3451 (SC) etc., decided on 19th September 2005 and after referring two other decisions of Supreme Court rendered in Indore Malwa Mills case AIR 1966 SC 1466 and Ogale Glass Works Ltd. case : AIR 1954 SC 429, indicated hereinbefore has finally concluded as under:
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 modes 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 cannot render any equitable justice in favour of the petitioner against the Commission in such circumstances.
Hence, the writ petition stands dismissed.
35. In Anupam's case, this Court has also noticed the decision of a Division Bench of this Court in Shashi Bhushan Kumar v. U.P. Higher Education Service Commission and Anr. : 2000 (4) ESC 2483 (All) : 2000 (4) AWC 2947, wherein this Court has distinguished the case of Ram Autar Singh (supra) and directed the Higher Education Service Commission to entertain the application which was dispatched by the candidate through registered post within time but had reached to Higher Education Commission after expiry of closing date. But the Division Bench in Anupam's case has distinguished the aforesaid case by holding that in Shashi Bhushan Kumar's case only one mode for submission of application form through registered post was prescribed, therefore, the candidates have had no other option to submit their application forms, as such, no default can be found in the view taken by Division Bench in the aforesaid case. It was further held that the position would be different where options are more, and in such eventually the post office would not be an agent of the addressee. It would be an agent of sender where other option is open to the candidates to submit their application form, and if they opt or choose to send it through post office, in that event, the post office would be an agent of senders and not of addressee.
36. Another case upon which the reliance was placed by learned Counsel for respondent was Union of India v. Mohd. Nazim : AIR 1980 SC 431. The Division Bench of this Court in Anupam's case (supra) has also referred the aforesaid case. The facts leading to the aforesaid case were that respondent of the aforesaid case had instituted a suit for recovery of a sum of Rs. 1,606-8-0 from Union of India (Postal and Telegraph Department) alleging that during the period from August 31, 1949 to September 17, 1949 the plaintiff dispatched from the Moradabad City Post Office thirty value-payable parcels to addressees in Lahore and Rawalpindi in Pakistan, and they received the articles and paid the entire amount payable, but the defendant Union of India failed to pay the sum to the plaintiff. The Union of India in their written statement admitted that the aforesaid articles were dispatched by the plaintiff as claimed and that their value was recovered in Pakistan, but the Union of India did not receive the sum from the Pakistan Government as the money order service between India and Pakistan remained suspended from September 19, 1949 and this was the reason why the sum could not be paid to the plaintiff. Reference was made to Section 34 of the Indian Post Office Act, 1898 and it was claimed that said provision absolved the Union of India from liability. In wake of aforesaid facts, the questions for consideration before Apex Court were that does the Post Office when it accepts a postal article for transmission act as an agent of the sender of the article? And where the postal article is sent from India to an addressee in foreign country, does the Government of that country act as a sub-agent for transmission of the article?
37. Although in para 8 of the said decision while interpreting certain provisions of Indian Post Office Act, the Apex Court observed that the post office is not a common carrier, it is not an agent of the sender of the postal article for reaching it to the addressee. It is really a branch of the public service, providing postal services subject to the provisions of Indian Post Office Act and Rules made thereunder, but in para 10 of the said judgment it was further observed that 'it is, however, not necessary to examine the circumstances and the sense in which the Post Office or the Railway, in the two aforesaid decisions was held to be an agent or a bailee, because the case before us can be disposed of on a short point.' Thereafter, it was observed that admittedly the Government of Pakistan did not make over the money realised from the addressees in Pakistan to the Union of India. The provisions of Indian Post Office Act did not apply beyond the territorial limits of India except to citizens of India outside India. Postal communication between different countries is established by postal treaties concluded among them. In para 11 of the said decision it was further observed that when two sovereign powers enter into an agreement as above, neither of them can be described as an agent of the other. And that if the Pakistan Administration decided to suspend the V.P. Service temporarily and did not make over the money realised from the addressees, it cannot be said that Union of India had received the money but failed to pay. Had the Pakistan Government been really a sub-agent, payment to them would have been as good as payment to the Union of India, but that is not the case here. Under the arrangement entered into between the two sovereign powers, Union of India and Pakistan, neither could be said to be employed by or acting under the control of the other. That being so, the proviso to Section 34 of the Indian Post Office Act is attracted which absolves the Central Government from any liability in respect of the sum specified for recovery unless and until that sum has been received from the addressee.
38. Thus, from careful reading and close analysing of the aforesaid decision of Hon'ble Apex Court, it is clear that the questions formulated were not answered by the Hon'ble Apex Court for the simple reason that case before the Supreme Court could be decided on another point, therefore, with due respect to the Division Bench of -this Court in Anupam's case (supra) the reliance could not be placed upon the aforesaid decision of Supreme Court for taking the view as taken by Division Bench of this Court.
39. Now coming to another decision of Hon'ble Apex Court rendered in Unit Trust of India v. Ravinder Kumar Shukla, etc. etc. in Civil Appeal No. 1619 of 2005, connected with other cases decided on 19.9.2005 in : JT 2005 (12) SC 345 : 2005 (4) AWC 3451 (SC), upon which Divisfon Bench of this Court in Anupam's case has placed reliance. The facts leading to the aforesaid case were that under various schemes from time to time, the appellant issued cheques towards maturity amount of the units purchased and/or towards repurchase value. It appears that the appellant normally draw account payee, non-transferable and not negotiable cheques and send them to the payee by registered post. The appellant started receiving a large number of complaints from unit holders alleging non-receipt of the cheques. In all 1600 unit holders had not received cheques of the value of approximately Rs. 3 crores 35 lacs. All these cheques were intercepted, new accounts opened in banks/post offices in the names of payees of the cheques and thereafter the monies were withdrawn leaving a minimum balance in the accounts. In respect of this colossal fraud, F.I.Rs. have been lodged, investigations and prosecution were started. As the unit holders had not received the money, they filed complaints in various District Forums. The District Forum have held that the appellants are bound to pay the amounts to the unit holders. Most of the appeals and/or revision petitions have been dismissed. Against the dismissal of the appeals/revisions by the National Consumer Disputes Redressal Commission, the aforesaid appeals were filed before Hon'ble Apex Court.
40. The question for consideration before Hon'ble Apex Court was whether the loss is to be borne by the unit holder payee and/or by the appellant? It was held that the answer to the aforesaid question depends on the fact whether the post office was acting as an agent of the unit holder and/or the appellant? After referring the decision of Ogale Glass Works Ltd. (supra). In H.P. Gupta v. Htralal : (1970) 1 SCC 437, and by placing reliance upon Ogale Glass Works case in para 4 of the decision it was observed that as the assessee had requested that the amounts be sent by post, the post-office became agent of the assessee and in para 6 of the decision it was held that in cases where there is no contract or request, either express or implied, the post office would continue to act as the agent of the drawer, i.e., sender of the cheques.
41. From a careful reading and close analysis of decision in Unit Trust v. Ravinder Kumar Shukla (supra), it is clear that Hon'ble Apex Court has not detracted from the view earlier taken in Ogale Glass Works Ltd. case (supra) wherein it was held that as between the sender and addressee it is request of addressee that the cheque be sent by post, that makes the post-office the agent of the addressee. In my considered opinion, the view taken in the aforesaid case has been reiterated by Hon'ble Apex Court in Ravinder Kumar, Shukla's case with further clarification to the effect that in cases where there is no contract or request, either express or implied by the addressee/payee/creditor authorising the sender or debtor to send the cheque by post the post office would continue to act as an agent of the drawer/sender/debtor and not of payee/addressee, therefore, in my opinion, the facts of the instant case clearly fits in the facts of Ogale Glass Works case and are distinguishable from the facts of Unit Trust v. Ravinder Kumar Shukla's case. Here in instant case, the Commissioner/addressee has expressly authorized the candidates to send their application form through registered post, which makes the post office an agent of addressee (Commission). With profound respect to the Division Bench of this Court in Anupam's case (supra) no such principle or proposition of law could be derived as derived by this Court from the aforesaid decision of Supreme Court, as it is well-settled that a decision is only an authority for what it actually decides and not what logically follows from it. Therefore, in my opinion, merely because of another alternative mode for submission of application form was also provided to the candidates to submit their application forms to the Commission by hand, does not mean that Commission or addressee has not expressly or impliedly authorised the candidates to submit their application form through registered post as a result of which the post-office could become agent of senders or candidates instead of addressee/Commission.
42. Next case upon which reliance was placed by learned Counsel for respondent was Writ Petition No. 23152 of 2006, Adil Khan v. State of U.P. and 2 Ors. decided on 5.5.2006. The facts of the aforesaid case were that vide office order dated 14.2.2006 issued by the Commission, the last date for submission of application forms was notified as 10.3.2006 till 5 p.m. in the office of U.P. Public Service Commission, Allahabad. Two alternative modes for submission of forms were prescribed, either by registered post or by hand. Admittedly, the petitioner got the aforesaid form collected through one of his friend on 2.3.2006 and sent duly filled form by Speed Post on 8.3.2006 from Delhi. It is said that Commission sent back his application form with remark that it could not be entertained having received in the office of Commission beyond the prescribed time, i.e., 10.3.2006. In this case, this Court has placed reliance upon Ram Autar Singh's case (supra) and recent decision of another Division Bench rendered in Anupam's case (supra). The decision rendered by earlier Division Bench in Shashi Bhushan Kumar's case has been distinguished on facts as indicated earlier and the decision rendered by another Division Bench of this Court in Akhilesh Chandra Maurya's case has been held to be per incuriam. Division Bench of this Court has held that where advertisement published by Commission provides two modes for submission of application form before the Commission, i.e., personally or by registered post, in that situation it cannot be held that post office is an agent of the Commission. In such case where the candidates opts to send the application form through agency of post office, the post office would be an agent of the candidate and not the Commission.
43. Besides this, a Division Bench in Adil Khan's case has also referred a Division Bench decision of Orissa High Court rendered in Dr. Annada Prasad Pattnaik v. State of Orissa and Ors. : AIR 1989 Ori 130, wherein the Division Bench of Orissa High Court after placing reliance upon the decision of Hon'ble Apex Court in Ogale Glass Works Ltd. (supra), Jagdish Mills case (supra) and Indore Malwa Mills case (supra) has stated the law in para 3 as under:
3. ...The principle that can be culled from the decisions may be stated in the following manner. Where delivery can be made in a mode at the option of the sender, the agency through which delivery is made acts as the agent of the sender whereas if delivery is made by way of despatch in the mode stipulated or prescribed by the addressee, the agency through which the article is despatched acts as the agent of the addressee.
44. By applying the aforesaid principle in para 5 of the decision the Orissa High Court has held as under:
5. Para 6.3 of the prospectus as well as the admission notice stipulated that the application could only be sent 'by registered post only and not by any other manner'. Hence, the petitioner could not have delivered his application in the office of the Convenor even if he wanted to. He had to post and did post in the post office located inside the campus of the College barely 100 yards away from where the office of the Convenor is located. By requiring the applicant to send his application through post, the Convenor nominated the post office as his agent. Therefore, if the application was received in the office of the Convenor on 1.6.88, the petitioner cannot suffer. It should be deemed to have been delivered on 27,5.88.
45. Although aforesaid decision of the Orissa High Court rendered in case of Dr. Anand Prasad Pattanaik's case (supra) is not binding upon this Court, but even assuming for the sake of arguments, that it has persuasive value, even then the principle of law enunciated by the Orissa High Court in para 3 of its judgment, in my opinion, with due respect does not emanate from the decisions of Supreme Court rendered in Ogale Glass Works Ltd. case (supra), Jagdish Mill's case (supra) and Malwa Mill's case (supra). In my view, the answer to the question as to whether the post office would be agent of the sender or addressee would not depend upon the fact that the addressee has prescribed two or more alternative modes for sending the articles including one of the mode through post office, rather it would solely depend upon the facts as to whether addressee has expressly or impliedly authorised the senders to send their articles through post office or not, if the addressee authorised the senders expressly or impliedly to send their articles through post office, he nominates the post office to act as his agent. It is immaterial that the addressee has prescribed another mode or more modes for sending such articles to him because of simple reason that by providing another or more alternative mode for sending the articles or application, the addressee does not revoke or withdraw his express authorization for sending the articles through post office. Therefore, I am unable to agree with the view taken by the Orissa High Court being contrary to the view taken by Supreme Court referred in the judgment of Orissa High Court itself.
46. In Adil Khan's case this Court has also referred a decision of Division Bench of Andhra Pradesh High Court rendered in V. Ramesh v. Convenor EAMCET-1995; Jawaharlal Nehru Technological University, Hyderabad : AIR 1997 AP 79, wherein it was held that the telegram not delivered to the petitioner was due to lapse of telegraph department, which has to be construed as agent of Principal of the institution and he must take responsibility of lapse of agent. In the above noted case reliance was placed upon a decision of Full Bench of Madras High Court in case of Vinod Kumar R. v. Secretary, Selection Committee, Sabarmati Hostel K.M.C. 1995 (1) Mad LW 351. The observations made by Full Bench of Madras High Court upon which the reliance was placed are as under:
If conditions or stipulations are contained in the prospectus with an option being given to applicants to send the applications either in person or by registered post and if an applicant prefers to send the application by registered post, by handing over the same at a post office some days earlier to the last date of receipt of applications and once such an option is exercised, it goes without saying that as per the principle evolved in the Common Denominator decisions of the Apex Court of this country, as reflected in the decision of the Division Bench of Orissa High Court, such post office must have to be construed to have been constituted as the agent of the sender/applicant and not the agent of the addressee/Directorate. Only if the post office is being constituted as the agent of the addressee, the receipt of application by such agent, long prior to the last date of receipt of application by the Principal/addressee/Directorate. In such a situation, the decision arrived at by the latter Division Bench of this Court cannot at all be stated to be in tune with the principle, as evolved by the Supreme Court, as indicated earlier.
47. From careful reading and close analysis of the decision of V. Ramesh v. Convenor rendered by Andhra Pradesh High Court it appears that reliance was placed upon Full Bench decision of Madras High Court in Vinod Kumar v. Secretary Selection Committee (supra) in which the statement of law as quoted hereinbefore was made to the effect that 'if the conditions or stipulations are contained in the prospectus with, an option being given to the applicants to send the applications either in person or by registered post and if an applicant prefers to send the application by registered post by handing over the same at a post office some days earlier to the last date of receipt of the applications and once such an option is exercised, it goes without saying that as per principle evolved in the common denominator decisions of the Apex Court of this country as reflected in the decision of Orissa High Court, such post office must have to be construed to have been constituted as the agent of sender and not the agent of addressee.
48. In this connection it is to be noted that the decisions of Andhra Pradesh and Madras High Courts are not binding upon this Court. Such decisions have merely a persuasive value, despite thereof, for the reasons stated in preceding part of the judgment, these decisions in my opinion, do not state correct legal position. In my view in Ogale Glass Works case (supra) while deciding the question as to whether the post office is agent of the sender or addressee, it was help that as between the sender and addressee, it is request of addressee that cheque be sent by post, makes the post office an agent of the addressee and on that finding, law was stated that where by an agreement express or implied between the creditor and dentor or by a request, express or implied by the creditor, the debtor is authorised to pay the debt by cheque and to send the cheque to the creditor by post, the post office would be agent of the creditor to receive the cheque and creditor would receive the payment as soon as the cheques is posted to him at a place from where the cheque is posted. The same view has been reiterated by Hon'ble Apex Court in subsequent dicisions rendered in Jagdish Mill's case (supra) and Indore Malawa United United Mill's case (supra). However, in Unit Trust v. Ravinder Kumar Shukla's case (supra) the legal position stated in the aforesaid decisions has been further clarified that where there is no contract or request either express or implied by the addressee/payee/creditor to send the cheque by post, the post office would continue to act as an agent of the drawer/sender/debtor and not of the payee/addressee. There, to my mind it is implied or express request of the addressee to the sender to send the articles by post to the addressee that makes the post office agent of the addressee.
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 value of a decision but having regard to the facts and circumstances of the case. I am of considered opinion, that in such cases the moving factor or decissive 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 authorization 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 nay 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 hereinbefore. 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 eventually 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 cannot be held that addressee has expressly or impliedly authorised or requested that 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 Ors. 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 Anr. 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 Ors. W.P. No. 23152 of 2006. decided on 5.5.2006 (by Hon'ble Mr. Justice Section R. Alam and Hon'ble Mr. Justice Sudhir Agarwalj, require reconsideration by larger Bench/Full Bench comprising of atleast three or more than three Judge of this Court in the light of decisions rendered by Hon'ble Apex Court in 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 Bhtkha Lal's case (supra) decided by Full Bench of this Court in context of questions formulated by me in preceding part of this judgment.
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 atleast 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.
52. In given facts and circumstances of the case, as interim measure, the Commission is directed to accept the application form of the petitioner on provisional basis within 10 days from today and permit her to participate in the process of selection for the post in question but the result of such selection shall be subject to final decision to be taken in the instant writ petition.
Note.--Office is directed to place the record forthwith before Hon'ble The Chief Justice for constitution of larger/Full Bench.