IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1605 of 2010 1. MANAS KUMAR SINHA, S/O LATE ARJUN PRASAD R/O 169, AJC BOSE ROAD, 7TH FLOOR, BAMBOOVILA, P.S.- PARKSTREET, KOLKATA-14. ----------------- Petitioner Versus 1. BIHAR PUBLIC SERVICE COMMISSION, 15, JAWAHARLAL NEHRU MARG (BAILEY ROAD), PATNA-800001 THROUGH ITS CHAIRMAN. 2. THE CHAIRMAN, BIHAR PUBLIC SERVICE COMMISSION 15, JAWAHAR LAL NEHRU MARG, (BAILEY ROAD), PATNA-800001. 3. THE SECRETARY, BIHAR PUBLIC SERVICE COMMISSION 15, JAWAHAR LAL NEHRU MARG, (BAILEY ROAD), PATNA-800001. 4. THE DEPUTY SECRETARY CUM EXAMINATION CONTROLLER BIHAR PUBLIC SERVICE COMMISSION, 15, JAWAHAR LAL NEHRU MARG, (BAILEY ROAD), PATNA-800001. 5. THE JOINT SECRETARY CUM OFFICER ON SPECIAL DUTY, BIHAR PUBLIC SERVICE COMMISSION, 15, JAWAHAR LAL NEHRU MARG, (BAILEY ROAD), PATNA-800001. 6. THE HIGH COURT OF JUDICATURE AT PATNA THROUGH THE REGISTRAR GENERAL PATNA HIGH COURT. --------------- Respondents ----------- For the Petitioner :- Mr. Mrigank Mauli, Adv. Mr. Vinay Mistry, Adv. Mr. Kundan Mishra, Adv. For the BPSC :- Mr. Sanjay Pandey, Adv. For the Respondents No.6 :- Mr. Chitranjan Sinha, Sr. Adv. Mr. Sanjeet Kumar, Adv. Mr. Amish Kumar, Adv. ------------ PRESENT: Hon’ble the Chief Justice Hon’ble Mr. Justice Mihir Kumar Jha As per Mihir Kumar Jha, J. 1. Heard learned counsel for the parties. 2. The writ petitioner, an aspirant, for the post of Civil Judge, Junior Division under Bihar Judicial Service has filed this writ application for quashing of an order dated 15.12.2009 (Annexure-3), a 2 communication of the Bihar Public Service Commission (in short ‘BPSC’), intimating the rejection of the application for the said post on the ground that it was received after the prescribed last date of receiving of such applications with a consequential prayer that since the preliminary examination had already been conducted by the BPSC on 30.12.2009, the BPSC be directed to conduct a special preliminary examination exclusively for the writ petitioner for considering his case for the appointment on the said post along with other candidates. 3. The necessary facts to be noticed, as has been projected in this writ application, lie in a narrow compass. The BPSC by an advertisement no. 45 of 2009 had invited application for 217 posts of Civil Judge, Junior Division under Bihar Judicial Service on 3rd July, 2009 which was in continuation to the earlier advertisement no. 3 of 2008. In the said advertisement, the BPSC had fixed the date and time as 5PM on 3.8.2009 to be the last date for receiving of applications through registered or speed post from intending eligible candidates. It is the case of the petitioner who was working as Court Master in Custom, Excise and Service Tax Appellate Tribunal, Kolkata that he had sent his application on 29.7.2009 from Entally Post Office, Kolkata by speed post to the office of B.P.S.C. at Patna and in support of this fact, he has also enclosed the postal receipt showing the submission of application under the speed post at 14.26 Hrs. on 29.7.2009. It is the case of the writ petitioner that the Commission, 3 thereafter, by a letter no. 2241 dated 15.12.2009 had communicated that since his application was received after the last date, the same was rejected in terms of the advertisement. 4. The petitioner, thereafter, is said to have made enquiry from the Postmaster of Entally Post Office, Kolkata on 24.12.2009 as with regard to delivery of his application which had merely acknowledged that the speed post article was booked and distributed on 29.7.2009 as would appear from the endorsement by the Sub-Postmaster of Entally Sub-Post Office, Kolkata on the application itself filed by the writ petitioner. The petitioner claims that thereafter he had approached the Chief Postmaster of General Post Office, Patna making enquiry as to how his application sent from Kolkata on 29.7.2009 could not be received and delivered to addressee B.P.S.C. at Patna on or before 3.8.2009 especially when the speed post is usually expected to be delivered within three days. It is claimed by the petitioner that he had however received no reply from the GPO, Patna/ The petitioner claims that he had also filed an application before the Secretary of the BPSC on 29.12.2009 requesting him to issue the admit card for the preliminary test to be held on 30.12.2009 as he was not to be blamed for the delayed receipt of the application sent by him through the speed post. The petitioner, however, was not allowed to sit in the examination conducted on 30.12.2009, whereafter, he has filed the present writ application on 28.1.2010. 4 5. Mr. Mrigank Mauli, learned counsel for the petitioner has submitted that the moment the BPSC had fixed the mode of receipt of application only through registered post or speed post through an official agency governed by Post Office Act, 1898, such post office became the agent of the BPSC and if therefore there was any laches on the part of the post office agent in performing its duty, the BPSC, being the principal, could not have disowned the liability and as such, was under compulsion to not only accept the application of the petitioner but would also to hold special examination for the petitioner. In this context, he has also placed reliance on the judgment of the Apex Court in the case of Unit Trust of India Vs. Ravinder Kumar Shukla & Ors. reported in 2005(7)SCC 428 as also the judgment of division bench of this Court in the case of Md. Arif Khan Vs. The Bihar Public Service Commission & Ors. reported in 1998(3) PLJR 901 and another judgment of this Court in the case of Lallan Kumar Sinha Vs. Union of India reported in 1998(3) PLJR 770. He has summed up his submissions by invoking not only the plea of equity but also sympathy, inasmuch as, the writ petitioner has been put to great prejudice and loss on account of wrongful action on the part of the postal department or one of its servant. 6. Learned counsel for the BPSC on the other hand opposing the prayer of the writ petitioner has submitted that not only the application filed by the writ petitioner having been received after the 5 prescribed date was rejected in terms of the advertisement but its action was also protected under Section 6 of the Post Office Act, 1898. It has also been highlighted by him that there were large number of similar rejection of applications, received after prescribed date and the B.P.S.C. could not have conducted special examination only for petitioner at a point of time the process of selection had already been completed by declaration of result of preliminary test. 7. Learned counsel for the High Court has maintained his neutral stand that the matter was exclusively between the petitioner and the BPSC and at this stage, the High Court had little to do, inasmuch as, the job of making selection and recommendation for the post was in the hands of the BPSC. 8. We have considered the matter from all possible angles especially when the career of a young aspirant law graduate is in question. We find that the writ petitioner has not been able to discharge the onus as with regard to the laches on the part of the BPSC. To top it all, the writ petitioner has not even impleaded Union of India or the postal authorities as party respondent to this writ application who alone could have explained the reasons for the delay in delivery of the application of the petitioner sent by speed post from Kolkata to Patna. Non-joinder of the necessary party in this case becomes assumes importance specially when the petitioner has failed to disclose the outcome of his application filed by him before the 6 Postmaster General of the General Post Office at Patna. 9. Apart from the non-joinder of necessary party which by itself is fatal, the delay in filing of this writ application has also left us with little option but to reject the prayer of the petitioner. It is the case of the writ petitioner that he came to know of the rejection of his application by a communication of B.P.S.C. being the impugned order dated 15.12.2009 by which time the Commission had already announced the date of 30.12.2009 for holding the examination. Had the petitioner approached this Court before holding the competitive examination, we could have looked into the reasons and probably could have also allowed him to sit provisionally in the examination but then at this stage, when the examination has already been held and results have been declared, it would be impossible to now direct the Commission to hold a special examination only for the petitioner. Such examinations are not qualifying examination rather is a competitive examination where the result of the fixed number of candidates have to be declared on the basis of the vacancies. The standard which is adopted for such competition has to be uniform for all the candidates and therefore, once the main examination has already been conducted, it would be impossible to maintain the same level by holding another examination. The delay in filing of the writ application by the petitioner in the facts and circumstances of this case is equally fatal. 7 10. Though, on the basis of our aforesaid occlusions, we were not required to go into the merits and other submissions made by the learned counsel for the petitioner but having regard to the importance of the matter in issue, we have also delved on the issue of the liability of the Government/Commission on account of laches of post office which had made its agent for receipt of the application. Section 182 of the Contract Act lays down that an agent is a person employed to do any act for other or to represent another in dealings with third persons. The person for whom such act is done, or who is so represented, is called the principal. There would be thus no difficulty in holding that when the BPSC has prescribed the condition of receipt of application only through the registered or speed post, the post office was agent and the BPSC was a principal. However, in this case, principal was the Government and under Section 6 of the Post Office Act, it stands exempted from any liability for loss, missdelivery, delay or damage of any postal article. Section 6 of the Post Office Act reads as follows:- “6. Exemption from liability for loss, misdelivery, delay or damage – The [Government] shall not incur any liability by reason of the loss, mis-delivery or delay of, or damage to, any postal article in course of transmission by post, except insofar as such liability may in express terms be undertaken by the [Central Government] as hereinafter provided; and no officer of the Post Office shall incur any liability by reason of any such loss, misdelivery, delay or damage, unless he has caused the same fraudulently or by his willful act or default.” 8 11. Interpreting the scope of Section 6 of the Post Office Act, 1898, the Kerala High Court in almost identical case of T.K. Raghavan Vs. Union of India reported in AIR 1988 Kerala 218 had held that in case of delayed delivery, the immunity granted under Section 6 would save the Government and that such immunity as against the Government would be complete though the position may be different as far as an officer of post office is concerned, if such delay was caused fraudulently or by willful act or default. 12. In the present case, as we have noted above, the postal authorities at Patna or Kolkata have neither been made party nor there is any allegation in the writ application against a particular officer of the postal department. Thus, we have no difficulty in holding that the BPSC and the State of Bihar are immune for any delay in receipt of the application sent by the petitioner. It is in this regard that we have also taken note of the terms of the advertisement which in no uncertain terms had indicated that the Commission will not be responsible for the delayed receipt of such application and the application so received after prescribed date will be automatically rejected. The relevant part of Clause-10 of the advertisement which is in Hindi on its English rendering would reads as “------the application with full details should be sent by the candidate by registered post or speed post on the address of Deputy Secretary, Public Service Commission, 15, Jawaharlal Nehru Marg, Patna - 800001 should be sent in such a manner that 9 the same is received by 5 PM on 03.08.2009. Incomplete, unsigned and delayed application shall be rejected and the examination fee would also not be refunded in the event of rejection of such application.-------” 13. Thus both on account of the terms of advertisement as also in view of Section 6 of Post Office Act 1898, the B.P.S.C. cannot be held liable for the delayed receipt of the application of the writ petitioner. 14. The reliance placed by the learned counsel for the petitioner on the judgment of Unit Trust of India (supra) case is also not apt and appropriate in the facts and circumstances of this case. In that case, the issue in question was with regard to the financial liability without any prescription of time. As a matter of fact, under the scheme, the Unit Trust of India (U.T.I.) had issued cheques towards maturity amount of the units purchased and/or towards repurchase value through post on its own without there being any demand and/or stipulation in policy of the unit holders. Such cheques being account payee non-transferable and not negotiable cheques were sent by the registered post by U.T.I. but the same were not received by a large number of unit holders which in fact were intercepted by some persons who had opened new account in the bank/post office in the name of the payees of the cheque and money was withdrawn which lead to colossal fraud for which criminal cases were lodged. The concerned unit holders thereafter had approached the Consumer 10 Forum by filing their complaint and the District Forum had held that the UTI was bound to pay the amount to the unit holders. Such order being maintained by State Consumer Forum and National Consumer Forum, the UTI went in appeal before the Apex Court and there, the sole question emerged for consideration was as to whether such loss was to be borne by the unit holder payee or the UTI. The Apex Court in this context had held that in absence of any contract or request from the payee sending of the cheque by the UTI by post would not amount to payment and in case where there is no contract or request either express or implied, the post office would continue to act as an agent of the UTI and the loss is to be borne by the UTI. We have failed to appreciate as to how the ratio of the said case can be applied in the facts and circumstance of the present case. Let it be known that the UTI is statutory Corporation and has no similar immunity as is available to the Government under Section 6 of the Act. As a matter of fact, the Apex Court had held the UTI liable because the UTI on its own volition had chosen to send such maturity amount to the unit holders on its own by registered post through post office without there being any contract between the unit holders and the UTI that the amount would be sent by post or any proof that any request had been made by the payee that the amount be sent by post. Therefore, the distinguishing feature which would make the case of Unit Trust of India (supra) non-applicable to the facts of the present case and is 11 quite clear both on account of the immunity under Section 6 of the Post Office Act as also in terms of Section 50 of the Contract Act which lays down that the performance of any promise may be made in any manner at any time which the promisee prescribes or sanctions. Here in this case, the BPSC has made it clear that the application received after prescribed date will be automatically rejected and therefore, the candidate should ensure that they should sent in such a manner that they are received by the last date fixed in the advertisement. In that view of the matter, the judgment of the Apex Court in the case of Unit Trust of India (supra) cannot be made applicable to the present case. 15. The reliance placed by the learned counsel for the petitioner on a Division Bench of this Court in the case of Md. Arif Khan (supra) is also miss-placed, inasmuch as, the same is only an interim order which by no means can be treated to be a precedent. As a matter of fact, in that case, examination was to be held on 11.11.1998 and Md. Arif Khan, the petitioner of that case, had approached this Court well in advance by impleading both the postal authorities and the BPSC wherein the Division Bench found that it was an arguable issue as to whether the postal department acting as agent of the BPSC could be held liable for the mistake committed by the postal department as is clear from the text of the order. It was however an interim order dated 9.11.1998 allowing the petitioner to 12 appear in the examination which was scheduled to be commenced from 11.11.1998. We are not informed as to what was decided finally by this Court, inasmuch as, by the interim order, the petitioner Md. Arif Khan was only allowed to sit in the examination provisionally on a condition that the result of such examination shall be subject to final decision of the writ application. 16. Similarly, in the case of Lalan Kumar Sinha (supra), the learned single Judge of this Court has laid no law and has only directed for issuance of provisional admit card with regard to the examination which was yet to be held by making an observation that in some cases, this Court had held that the delay for the postal delay, the applicant cannot suffer since he had taken all steps for sending of the application. In our considered view, no law has been laid down therein much less that in all cases where the applications were not received by the Commission in the prescribed time limit due to postal vagaries, it was under obligation to accept the candidature and allow the candidates to sit in the examination. 17. As a matter of fact, we are also not in a position to say with certainty as to whether it was on account of the postal vagaries that the application of the petitioner was not received within the prescribed time limit, inasmuch as, the applicant claims to have sent his application from Kolkata on 29.7.2009, which left only three working days 30 & 31 of July and 3 of August (1st and 2nd August 13 being holidays). There is also nothing on the record to show that a communication sent though the speed post had to be delivered within three working days, inasmuch as, neither the rules of speed post have been brought on record nor the postal authorities have been arrayed as parties to this writ application. 18. We, therefore, are not inclined to allow the prayer of the petitioner either of quashing of the impugned order passed by the BPSC rejecting the application of the petitioner or holding of the special examination only for the petitioner. 19. Before parting with, we, however, would take note of the fact that the petitioner appears to be put to great prejudice and loss on account of the alleged wrongful action of the postal department or one of its servant and in fact, we could have called upon the authority of the postal department to explain such delay had there been any specific allegation against its one or other officer. In absence thereof, while we restrain ourselves from condemning the alleged irregularities on the part of the postal authorities, inasmuch as, this is the region in which we cannot extend a relief to the writ petitioner. Judicial sentiment must stay within the limitation of judicial options, as was observed by Cardozo, J. in the following words:- “The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence.” 14 20. Nonetheless, we must observe that it is for the Commission to devise ways and means by which such unpleasant situations can be avoided in future. It is for the Commission which has to think whether it requires to change its policy of restricting the candidates to file their application only through registered post and/or speed post through the post offices manned and controlled by the Government and its authorities in the present times when application can be sent and received even by internet or private courier. Such rethinking by B.P.S.C. is necessary and infact a crying need of the present times inasmuch as, overburdened postal department probably cannot now even take care of billions of letters being carried by the post much less ensuring their prompt and timely delivery to the addressee. The Commission, therefore, by way of reconsideration of its policy with regard to mode and manner of receipt of applications may probably like to lay down a more transparent method matching with the recent advanced modes of communication. We would, however, like to say nothing more about it as it is a matter of policy and lies exclusively in the hands of executive. We must refrain to do so recalling what was said by the Apex Court in the case of Bandhua Mukti Morcha Vs. Union of India & Ors. reported in AIR 1984 SC 802 “Court cannot find itself involved in a policy making of a quality and to a degree characteristic of political authority and indeed run the risk of being mistaken by one.” 15 21. Thus, for all these reasons, though with a heavy heart, we are constrained to dismiss this writ application. There would be however, no order as to costs. 22. Let a copy of this order be sent to the Chairman, Bihar Public Service Commission. I agree. (Dipak Misra, CJ.) Patna High Court, Patna Dated, the 20th April, 2010 AFR/(Rishi) (Mihir Kumar Jha, J.)