IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.229 of 2010 1. KAUSER AYESHA D/O MD. ABDUS SATTAR R/O MOH HOSSAINPUR, P.O.BHAGALPUR CITY, P.S. MOJAHIDPUR, DISTT-BHAGALPUR Versus 1. THE BIHAR COMBINED ENTRANCE COMPETITIVE EXAMINATION BOARD THROUGH THE CONTROLLER OF EXAMINATION I.A.S. ASSOCIATION BUILDING, NEAR PATNA AIRPORT, P.O.VETERINARY COLLEGE, PATNA 2. THE CONTROLLER OF EXAMINATION, BIHAR COMBINED ENTRANCE COMPETITIVE EXAMINATION BOARD I.A.S. ASSOCIATION BUILDING, NEAR PATNA AIRPORT, P.O.VETERINARY COLLEGE, PATNA ----------- 2/ 11/01/2010 Heard learned counsel for the petitioner and learned counsel for Respondents no. 1 & 2. The petitioner is aggrieved by the refusal of the Respondents to accept her application form and to appear for the examination conducted for admission in the Ist year degree course M.B.B.S./B.D.S. in Government Colleges/Government recognized Colleges. The reason is receipt of the same beyond the time specified in the prospectus. A copy of the prospectus has been placed during submissions. Clause 8.21 provides that the last date for receipt of application was 15.12.2009 at 5 P.M. Application received after that date and time shall not be accepted. Any irregularity by the Postal Department in delivery after the stipulated time shall not be the answerability of the Board. Clause 8.19 provides that the applications were to be sent only by registered or speed post and not in any other manner. The petitioner states to have purchased the 2 application form on 23.11.2009. The last date for submission of the application form was 15.12.2009. . The petitioner admits having despatched it as late as on 12.12.2009. Learned counsel for the petitioner submits that on account of delay by certain Government authorities in issuance of necessary certificates, it could not be despatched earlier. The application is stated to have been returned to her more speedily by the Postal authorities than the time taken by them for delivery. Lastly, sympathy is invoked to urge that the Board may consider accepting the petitioner’s application as she is not responsible for the delay in delivery. Reliance is placed on paragraph 6 of a Division Bench order of the Central Administrative Tribunal, Patna Bench reported in 1995(1) PLJR 70 (A.T.)(Santosh Kumar v. Union Public Service Commission & ors.) relying upon certain orders of the Supreme Court. The Respondent-Board has opposed the application to urge that if the conditions stipulated in the prospectus are diluted, it shall create an anomalous position as the stipulation itself shall be rendered nugatory and no distinction could be drawn between an application received a day or two after the last date and 3 an application received much belatedly as both would form one category of acceptance of a delayed application beyond time. The petitioner has only herself to blame. It is apparent that the application form was purchased by her on 23.11.2009. It was for her to have been more vigilant in having despatched her application well within reasonable time so as to reach the Respondents within the prescribed time. The facts reveal that the petitioner herself is to be blamed for belated despatch. Receipt of certificates etc. from certain authorities in time was the responsibility of the petitioner herself. If the petitioner opted for delayed despatch barely three days prior to the stipulated date being fully aware of the condition contained in the prospectus, she was fully aware of the consequences that the delayed receipt may occasion non-acceptance of the application form. The stipulation in the prospectus being specific and clear, there is no occasion for this Court to dilute the same. Sympathy shall not empower this Court to negate the contents of the prospectus and lay down a new prospectus to espouse an individual cause. Such individual relaxation shall make justice personalize which is contrary to the mandate of Article 226 of the Constitution of India. 4 In A.I.R. 2004 Supreme Court 4839 (Executive Engineer, Z.P. Engineering Division v. Digambara Rao & ors.), it has been held in paragraph 22 of the judgment as follows : “22. In Teri Oat Estates (P) Ltd. v. U.T. Chandigarh and Others [(2004) 2 SCC 130], it is stated: "We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extra-ordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court ordinarily would not pass an order, which would be in contravention of a statutory provision." As early as in 1911, Farewell L.J. in Latham v. Richard Johnson and Nephew Ltd. [1911-13 AER Reprint p. 117] observed: "We must be careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous Will O' the Wisp to take as a guide in the search for legal principles." In the case of Santosh Kumar (supra) relied upon by the petitioner, the Supreme Court was considering the presumption of delivery of letters in 5 context of a contractual matter, an entirely different issue. In (2006) 12 SCC 561 (State of Bihar & ors. V. Amrendra Kumar Mishra) dealing with a claim for issuance of appointment letter which the High Court had directed on basis of sympathy, the Supreme Court in paragraph 14 of the judgment has held as follows : “14. It may be true that the appointment letter was sent by ordinary post but even in relation thereto a statutory presumption arises. It is also well known that postal delay by itself may not be a ground to take a sympathetic view.” There is no merit in the writ application. It is, accordingly, dismissed. AKS/ ( Navin Sinha, J.)