AFR a1 9% HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) N0. 4231 of 2006 PETITIONER Om Prakash Pandey. VERSUS RESPONDENTS Union 0f India and Others. Post for order on zomarch, 2008. / Sd/- @ HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 4231 of 2006 PETITIONER Om Prakash Pandey (R011 No’ 1615118653), aged about 19 years, son of Shri Narendra Kumar Pandey, resident of — Quarter No. 370, Chakradhar Nagar, Bangla Para, Raigarh, (Chhattisgarh) through — Father Narendra Kumar Pandey, aged about 5O years, son of Kamla Prasad Pandey. VERSUS RESPONDENTS z 1. Union of India, through Ministry of Railway, ‘ ,/'\\ New Delhi. 2. The DivisiOnal Railway Manager, S.E.C.R. Bilaspur (C.G.) 3. Assistant Personnel Manager (Recruitment), S.E.C.R. Bilaspur (Chhattisgarh) WRIT PETITON UNDER ARTICLE 226 / 227 OF THE CONSTITUTION OF INDIA Present: Shri A.N.Bhakta, Advocate for the petitioner. Shri Amit Choudhary, Standing Counsel for the respondents. SB: Hon’ble Shri Satish K. Agnihotri, J. - i ORDER (Passed on ..2.o‘.’.‘day ofMarch, 2008) By this petition under Article 226/227 of the Constitution of India, the petitioner seeks a writ in the nature of mandamus directing the respondents to arrange re-examination ofthe petitioner for taking him in Group ‘D ’ services. Further to make enquiry to ascertain responsibility ofthe authority and to pay compensation for not sending the call letter to the petitioner. 2. The indisputable facts, in nutshell, are that the respondent authorities invited applications for filling up Group ‘D’ posts in South East Central Railway (for short ‘ S.E.C.R.’) (Annexure R/1). According to the petitioner, he is duly qualified. The written examination for the same was to be held on 21.05.2006. The petitioner did not receive the call letter by post before the date of examination. Thus, the petitioner could not appear in the examination and lost important'opportunity of being appointed as Group ‘D’ employee in S.E.C.R. Thus, this petition. Shri A.N.Bhakta, learned counsel appearing for the petitioner would submit that it was the obligation of the respondent authorities to ensure that the call letter reaches to the candidate before time. Non receipt of the call letter due to negligence of the respondent authorities has deprived the petitioner hom participating in the written examination and further from being appointed on the post. \/ /"’w\ Shri Bhakta would further submit that the call letter was sent Under Postal Certificate (for short ‘UPC’) and in the eyes of law, service through UPC is not a service. Shri Bhakta would mrther contend that the petitioner had given his mobile and landline numbers, despite that, the petitioner was not informed/communicated with regard to the issue of call letter. Per contra, Shri Amit Choudhary, learned counsel appearing for the ~ respondents would submit that the call letter was duly dispatched to the petitioner. Apart horn that, the respondents have published notice in the newspaper (Navbharat) dated 14m April, 2006 (Annexure R/2) stating that in the event, any candidate has not received the call letter, he could obtain duplicate call letter horn the office before a particular date. A website of the department was also published,in order to obtain necessary information. Wide publicity was given to it. Despite that, when the petitioner did not a receive the call letter, the petitioner ought to have contacted the office before the prescribed date and could have obtained duplicate call letter. Shri Choudhary, would, further submit that in total, 6,35,000 call letters were issued, pursuant to the advertisement. Some ofthe candidates might not have received due to postal delay and for that, the respondents may not be held ® responsible. The petitioner is not entitled to any relief as prayed for by him as the petitioner has failed to obtain duplicate call letter and to appear in the examination. 7. I have heard rival contentions of the learned counsel appearing for the parties, perused the pleadings and documents appended thereto. It is evident that pursuant to the advertisement dated 19.11.2005 (Annexure R/l), more than 6,35,000 candidates applied. The respondent authorities sent the call letters to 6,35,000 candidates including the petitioner. The counsel has produced the original dispatch register and it was found that the call letter was issued to the petitioner in time. In the event, call letter was not received by the petitioner, a publication of notice in the newspaper for collecting duplicate call letters and to enquire the status, a website of the respondents was also published. The petitioner failed to appear in the examination and as such, the petitioner cannOt claim any relief sought in this petition. 8. Reliance of Shri Bhakta on provision of section 27 of the General Clauses Act, 1897 and section 114(f) of the Indian Evidence Act, 1872 would be -of no help to the petitioner as the candidates were required to send even application by ordinary post, in the advertisement. a 9. Section 27 of the General Clauses Act, 1897 reads as under: “27. Meaning of service by post .—Where any [Central Act] or Regulation made aiter the commencement of this Act authorizes or requires any document to be served by post, whether the expression “serve” or either of the expression “give” or “send” or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre—paying and posting by registered post, a letter containing the document, and unless the contrary, is proved, to have been effected at the time at which the letter would be delivered in the ordinary course ofpost.” Presumption under section 27 of the General Clauses Act, 1897 is that if the notice has been sent by ordinary post, the presumption is rebuttable and when Q 9 the notice has been sent under the registered post, no proof is necessary with regard to receipt ofthe notice/communication. The Hon’ble Supreme Court, in the matter of Union of India v. Dinanath Shantaram Karekarl, observed as under: “7. As would appear from the perusal of that decision, the law with regard to “communicatiOn” and not “actual service” was laid down in the context of the order by which services were terminated. It was based on a consideration of the earlier decisions in State of Punjab V. Khemi Ram, Bachhittar Singh v. State ofPunjab , State of Punjab V. Amar Singh Harika and S. Partap Singh V. State of Punjab . The following passage was quoted from S. Partap Singh judgment: “It will be seen that in all the decisions cited before us it was the communication of the impugned order which was held to be essential and not its actual receipt by the officer concerned and such communication was held to be necessary because till the order is issued and actually sent out to the person concemed the authority making such order would be in a position to change its mind and modify it if it thought fit. But once such an order is sent out, it goes out of the control of such an authority, and therefore, there would be no chance whatsoever of its changing its mind or modifying it. In our View, once an order is issued and it is sent out to the government servant concemed, it must be held to have been communicated to him, no matter when he actually received it.” 8. It was in this background that in cases where services are terminated or a person is dismissed nom service, communication of the order and not its actual service was held to be sufficient. . ...” The Supreme Court, in the matter of V.Raja Kumar v. P.Subbarama Naidu and another2, observed as under: “13. Here the notice is returned as addressee being not found and not as refused. Will there be any significant difference between the two so far as the presumption of service is concerned? In this connection a reference to Section 27 ofthe General Clauses Act, 1897 will be useful. The section reads thus: “27. Meaning ofservz'ce by post .—Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression ‘serve’ or either of the expression ‘give’ or ‘send’ or any other expression is used, then, unless a different intention appears, the service shall be deemed to be ‘ 1998 (7) scc 569 2 2004 (8) scc 774 effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.” 14. No doubt Section 138 of the Act does not require that the notice should be given only by “post”. Nonetheless the principle incorporated in Section 27 '(quoted above) can profitably be imported in a case where the sender has dispatched the notice by post With the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice.” 13. The Case of C.C.Alavi Haji v. Palapetty Muhammed & another3 relied by Shri Bhakta is ofno help as the Hon’ble Supreme Court has considered issue of notice by registered post in reference to issue of notice in terms of proviso of section (b) of section 138 of the Negotiable Instrument Act, 1881. The word “notice” in section 27 of the General Clauses Act, 1897 is, strictly speaking, not applicable to the facts of the present case, where more than 6,35,000 call letters were issued. Apart from issue of call letters, m e candidates were informed by a public notice in the widely published a newspaper ‘Navbharat’ stating specifically that in the event, candidates have not received the call letter, they may collect duplicate call letter from the .offlce by a particular date. Even the website of the respondent was supplied to know the status of the case. Postal delay cannot confer any beneflt to the petitioner. 3 2007(6) scc 555 15. The petitioner is not in a position to rebut the fact that the call letter was not issued at all. The petitioner has annexed the call letter (Annexure P/3) alongwith the envelope containing call letter. On perusal of the envelope, it @ appears that the call letter was dispatched on 12.04.2006 and the same was received on 24.05.2006 by the petitioner. The call letter was issued much in advance. 16. Applying well settled principles of law to the facts of the case, once a notice is issued and it is sent out to the candidate concemed, it must be held to have been communicated to him, no matter when he actually received it. The call letter was dispatched on 12.04.2006, for examination to be held on 21.05.2006. The call letter was received thereaiter by the petitioner does not make any difference as the respondents have no control over postal authorities. Even otherwise also, the petitioner was given notice through newspaper to receive duplicate call letter, in the event, the call letter sent by the respondent authorities was not received. The petitioner has not done the needful by approaching the authorities to obtain duplicate call letter. 17. In view of the reasons mentioned hereinabove, the petition is dismissed. No order asto costs. Sd/- Satish K. Agnihoiri Judge