Judgment:
ORDER
Srinivasan, J.
1. The petitioner has passed Plus Two Examination in March, 1994. One of the subjects taken by her is 'Siddha' (medicine) as a vocational subject. She has secured third rank in the State. In that subject she has secured 164 out of 200 marks. She is entitled to get admitted for B.S. M.S. course under the Special Category of reservation in which five seats are reserved for students who have obtained prescribed marks in 'Siddha' medical subjects including science subjects in their Higher Secondary Course. The seats were reserved by virtue of G.O.Ms. No. 885, Health and Family Welfare Department, dated 12.6.1991. The petitioner having secured 3rd rank in the 'Siddha' subject, applied for admission to B.S. M.S. course. She belongs to a backward community. She wrote the Entrance Examination for admission to the course under Register No. 622554. She secured 33.3. in Biology and 28.8. in Physics and Chemistry.
2. Applications were called for by the second respondent for B.S.M.S. course. Initially the last date for submitting applications was fixed as 6.6.1994. In the application form, there is a column requiring the candidate to enter the Register Number of the candidate given to the said candidate for the Entrance Examination. The Hall Ticket for the Entrance Examination reached the petitioner only on 20.6.1994. It was only from the Hall Ticket, the petitioner could ascertain the register number for the Entrance Examination. Taking into account that Hall Tickets were issued only at that time, the second respondent extended the last date for receipt of the applications for admission into the course till 27.6.1994, 5p.m.
3. In the prospectus issued by the second respondent, Clause 7 is in the following terms:
7. Completed application with enclosures (securely stitched to it) should be sent by registered post or delivered in person duly superscribed and addressed as follows and reach Directorate on or before 5.00 p.m. on 6th June, 1994.
'APPLICATION FOR ADMISSION B.S. M.S./B.H.M.S./B.A.M.S. COURSES'
(As the case may be)
To
The Director of Indian Medicine and Homoeopathy,
Arignar Anna Government Hospital of Indian Medicine Campus,
Arumbakkam, Madras-106.
Candidates who are employed should send their application through proper channel. (We have already mentioned that the date was extended to 27.6.1994).
Clause 8 reads thus:
8. Incomplete applications and applications received after the due date and time will be rejected summarily.
4. The petitioner sent her application by Registered post. She posted the application in the Neyoor S.O. on 22.6.1994 and obtained a receipt, bearing registration No. 1022. The application reached the second respondent on 29.6.1994. When the results were announced, the petitioner found that she was not selected for admission. She made enquiries and ascertained that she was not considered for selection as her application reached the second respondent beyond the prescribed last date.
5. She has filed the present writ petition for issue of a mandamus directing respondents 1 to3 to consider and select the petitioner for First Year B.S. M.S. course under the Special Category No. 15 as per Annexure -I of the prospectus for the academic year 1994-95 on the basis of her application sent by registered post with acknowledgement due on 22.6.1994. The petitioner has impleaded the Post-Master General of Tamil Nadu, the Post-Master Neyoor Post Office and the Post-Master, Arumbakkam Post-Office as respondents 4 to 6.
6. A counter-affidavit has been filed on behalf of respondents 4 to 6. It is stated that the registered letter bearing No. 1022 was handed into the Neyyoor S.O. in Kanyakumari Division addressed to the Director of Indian Medicine & Homeopathy, Arignar Anna Government Hospital of Indian Medicine Campus, Arumbakkam, Madras-600106 and it was received at Arumbakkam S.O. only on 29.6.1994. It was delivered to the addressee on the same day.
7. In the counter filed on behalf of the respondents 1 to 3, reference is made to Clause 8 of the prospectus, which stipulates that applications received after the due date and time will be rejected summarily. The counter-affidavit has also made a reference to a notification issued on 11.5.1994 calling for applications. A clause in the said notification reads that delay on the part of postal department will not be considered. Relying on the aforesaid clauses in the prospectus and notification respectively, it is contended in the counter-affidavit that the petitioner's application is not entitled to be considered as it has reached the second respondent after the prescribed due date. It is, therefore, contended that the prayer in the writ petition cannot be granted to the petitioner.
8. Learned Counsel for the petitioner contends that the clause in the Notification dated 11.5.1994 calling for applications, on which reliance is placed in the counter-affidavit, does not find a place in the prospectus. It is also submitted that the relevant clause does not apply to applications being sent by the candidates for admission to the concerned course. The relevant clause appears in column 3 of the Notification. That reads as follows:
3. Application form and prospectus for B.S.M.S./ B.A.M.S. and B.H.M.S. Courses will be available from
1. The Principal, Government Siddha Medical College, Palayamkottai, Thirunelveli Kattabomman District.
2. The Principal, Government Homoeopathy Medical College, Thirumangalam., Madurai District.
3. The Superintendent, Arignar Anna Government Hospital of Indian Medicine, Madras-106. Applications and prospectus will be issued either in person or by post on written application with a crossed Demand Draft for Rs. 100 (Rupees One Hundred only) drawn in favour of Director of Indian Medicine and Homoeopathy payable at Madras obtained from anyone of the Nationalised Banks on or after 2.5.1994 if the application is required to be sent by post a self addressed envelope of 33 cm x 12.5. cm stamped to the value of Rs. 4 (Rupees Four only) should be enclosed along with the requisition. Delay on the part of Postal Department will not be considered.
Note: The candidates should clearly mention in his/her requisition, the course for which he/she intended to apply. Requisition for application forms should be sent separately for each course viz., B.S.M.S.B.A.M.S. and B.H.M.S.).
Our attention is drawn also to the remaining clauses in the notification which relate to applications for admission being forwarded by the candidates. Clause 7 reads thus:
7. The last date for receipt of filled-in application to the course is 5.00 p.m. on 6.6.1994. Application received after the stipulated time and date will not be entertained under any circumstances.
A perusal of Clauses 3 and 7 show that when a candidate wants the application forms to be sent to him by post, a self addressed envelope shall be enclosed along with the requisition. That self addressed envelope will be sent by the authority to the candidate. If there is any delay on the part of the postal department in the delivery of that envelope to the candidate, such delay will not be considered by the authority viz., respondents 1 to 3. In the context, the stipulation that 'postal delay will not be considered' can refer only to that. The reason is quite obvious. The candidate having made the choice to get the application form by post, the authority will not be responsible if there is any delay on the part of the post office in delivering the form to the candidate. But, in the case of applications being sent by the candidate to the authority after they are filled up, the choice is that of the authority as evident from Clause 7 of the prospectus. In such cases, the authority cannot disown responsibility, if there is any delay on the part of the post office. That is the reason for the absence of a provision relating to postal delay in Clause 7 of the notification.
9. Learned Special Government Pleader argues that application forms could be obtained from the Principal, Government Siddha Medical College, Palayamkottai, Government Siddha Medical College, Palayamkkottai, Principal, Government Homoeopathy Medical College, Tirumangalam and the Superintendent Arignar Anna Government Hospital of Indian Medicine, Madras and, therefore, there is no necessity to refer to the delay in the postal department in Clause 3. According to him, that provision in Clause 3 will apply only for applications sent by candidates for admission. We are unable to accept this argument. Even though application forms could be obtained from the three persons mentioned in Clause 3, whenever the application forms are sent by the said persons by post to the candidates concerned and if there is any delay in the application forms reaching the candidates, the respondents will not be responsible for such delay and they will not consider the same as an extenuating circumstances. That clause cannot, therefore, apply to the later part of the notification which relates to candidates sending applications for admission after filling up the forms.
10. It is submitted by learned Counsel for the petitioner that the postal department has been nominated as an agent of respondents 1 to 3 when they provided in the prospectus that applications should be sent by registered post or delivered in person at the office of the Directorate. Reliance is placed on the judgments of the Supreme Court in Commissioner of Income-tax, Bombay South v. Messrs. Ogale Glass Works Limited : [1954]25ITR259(SC) . The question before the Supreme Court was whether the sale proceeds were received in British India at a particular time where the cheques were delivered. After referring to the provisions of the Indian Post Office Act, the Supreme Court said 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. Consequently, it was held that when the cheques were handed over to the post office in the envelope, they were received by the post office as the agent of the addressee. This principle has been reiterated by the Supreme Court in Jagdish Mills Limited v. Commissioner of Income-tax A.I.R. 1959 S.C. 1160, Commissioner of Income -tax, Delhi v. P.M. Rathod and Company : [1959]37ITR145(SC) and Indore Malwa United Mills Limited v. Commissioner of Income-tax (Central), Bombay A.I.R. 1966.S.C. 1466. In the last of the cases which related to a debtor and creditor, the court held that 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. The dictum of the Supreme Court was followed and applied by the Allahabad High Court in Union of India v. Firm Ram Gopal Hukum Chand : AIR1960All672 , by the Patna High Court in Union of India v. Lallan Prasad Singh : AIR1963Pat216 and by the Orissa High Court in Annada Prasad v. State : AIR1989Ori130 . In the last of the cases decided by the Orissa High Court, the facts are almost similar. In that case an application to take the Entrance Examination for selection of candidates for undergoing Two Year P.O. Course in one of the Government Medical Colleges in the State was sent by register post. The stipulation in the notice calling for applications was that they should be sent by registered post only and not by any other manner. The Division Bench, following the rulings of the Supreme Court, held that the post office was the agent of the addressee and delivery to the post office was delivery to the concerned authority.
11. We are bound to follow the principle laid down by the Supreme Court in such clear terms. It is, therefore, obvious that the post office acted as the agent of respondents 1 to 3 when it received the application sent by the petitioner by registered post on 22.6.1994. When the second respondent had included Clause 7 in the prospectus, that by itself would amount to a nomination by the second respondent of the post office as its agent. Consequently, the receipt of the application by the agent would amount to the receipt of the application by the Principal. In fact in Clause 7 of the prospectus, an option is given to the candidate to deliver the application either to the agent or to the Principal. In this case, the petitioner being the candidate, having chosen to deliver the application to the agent as mentioned in Clause 7 of the prospectus cannot be deprived of her right to be considered for selection, just because the agent of the second respondent chose to pass it on to the principal only on 29.6.1994 which was after the prescribed date. When the agent received the application on 22.6.1994, it was very much within the time prescribed by the prospectus and the principal viz., the second respondent is bound to consider that application.
12. Learned Special Government Pleader invites our attention to the judgment of the Mysore High Court in Government of India v. Jeevaraj Alva : AIR1970Kant13 . The question which was considered in that case was whether the postal department was functioning as a sovereign and the acts of the postal department were sovereign acts or otherwise. The court held that postal department was only a commercial-cum-public utility department of the Government of India and it by no means constitutes a sovereign function of the State. That ruling will have no bearing on the present case. Hence, the contentions raised by the Special Government Pleader have to be rejected. We hold that the application of the petitioner for B.S. M.S. Course had been received by the second respondent within the prescribed time through its agent, the post office. Consequently, the application of the petitioner deserves to be considered.
13. There is no doubt that the petitioner belongs to the reserved category set out in Clause 15 in Annexure I. She has obtained the prescribed marks in 'Siddha' Medical subjects including science subjects in the Higher Secondary Course as per G.O.Ms. No. 885, Health and Family Welfare Department, dated 12.6.1991. Five seats have been reserved for that category. Admittedly, one seat is still vacant. When the petition was filed, the petitioner has stated that two seats were vacant. It is now stated by the Special Government Pleader that one seat is still vacant. In those circumstances, there can be no difficulty whatever in allotting that seat to the petitioner herein.
14. Hence, the writ petition is allowed and a mandamus is issued to respondents 1 to 3 to select and admit the petitioner in First Year B.S.M.S. Course in Special category No. 15 as per Annexure I of the Prospectus for the Academic Year 1994-95 on the basis of her application sent on 22.6.1994 within ten days from today. It is represented by learned Counsel for the petitioner that the petitioner is in Madras now and she will herself go and collect the admission card from the office of the second respondent in person. The petitioner is directed to be present in the office of the second respondent on 8.12.1994, on which date admission card shall be handed over to her. There will be no order as to costs.