Civil Writ Petition No. 9905 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 9905 of 2011 (O&M) Date of Decision: 19.8.2011 Ramanjit Kaur and others ..Petitioners Versus State of Haryana and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. R.K.Saini, Advocate for the petitioners. Ms. Shruti Jain, Assistant Advocate General, Haryana for respondent no.1. Mr. Ramesh Hooda, Advocate for respondent no.2. Mr. Namit Kumar, Advocate for respondents no. 3 and 4. RAJIVE BHALLA, J. (ORAL) By way of this order, I propose to dispose of Civil Writ Petition nos. 9905, 9950, 10043. 10101, 10289, 10544, 10642, 10661, 10720, 10836, 10921, 10961, 10963, 10973, 10974, 11036 and 11106 of 2011 as they involve adjudication of common questions of fact and law. For the sake of convenience, facts have been taken from Civil Writ Petition No. 9905 of 2011 and if necessary, facts of other petitions shall be referred to. Pt. B.D. Sharma University of Health Sciences, Rohtak, respondent no.2, issued a prospectus on 28.4.2011 inviting applications for admission to MBBS/BDS/BAMS courses. The last date for receipt of application forms was 18.5.2011. Chapter-X of the prospectus titled "General Instructions", of the Haryana PMT Prospectus MBBS/BDS/BAMS Entrance Examination 2011", provides, by way of, Notes 2 and 3 that Civil Writ Petition No. 9905 of 2011 2 admission forms may be submitted in person or through registered/speed post and also forewarns applicants that the University shall not be responsible for any delay or loss of a form or correspondence, while in transit. Note 16 to Chapter-X, of the prospectus, provides that application forms received after due date and time, shall be rejected without intimation to the candidates. irrespective of any reason, including postal delay. Admittedly, the petitioners posted their application forms by registered/speed post, as prescribed, on different dates, but well before due date, i.e., 18.5.2011. In normal course, these applications/letters should have reached the University before 5.00 P.M. on 18.5.2011. However, as admitted by postal authorities, these application forms/letters were delivered, to the University, after 18.5.2011. The University refused to accept the application forms/letters and treated the same as rejected. In all, about 1500 letters/applications were delivered after 18.5.2011. A large number of candidates filed writ petitions, alleging that as they are not at fault, they should be allowed to sit for the examination. As an interim measure, the petitioners were allowed to sit for the examination. The only writ petitions that survive are where candidates have passed the examination. Counsel for the petitioners submit that the petitioners despatched their entrance examination forms, by registered or speed post, well before the last date and in normal course, these letters ought to have been delivered to the University, well before 5.00 P.M. on 18.5.2011. The petitioners cannot be held responsible for the gross negligence of the postal department, in delivering the application forms after the last date, so as to deprive them of their right to appear in the MBBS/BDS/BAMS examinations. It is further argued that as about 1500 application forms were delivered after the cut off date, for no fault on the part of candidates, the University should have taken a sympathetic view and Civil Writ Petition No. 9905 of 2011 3 allowed these candidates to sit for the examination. It is further submitted that though Notes 2, 3 and 16 of Chapter-X of the prospectus empower the University to treat application forms received after 5.00 P.M. on 18.5.2011, as rejected, but as the petitioners, admittedly, posted their application forms well before 18.5.2011 the negligence of the postal department should not jeopardise their careers. It is further submitted that the petitioners who have qualified, have appeared for the counselling and one of them, namely, Renu Bala ( CWP No. 10921 of 2011) has been admitted to the MBBS course. Counsel for the petitioners further submit that there are a large number of precedents, though they have not been pleaded, where the University has accepted application forms after the cut off date or has extended the last date for entrance examination. It is prayed that as the petitioners are not at fault, the writ petitions may be allowed. Counsel for the respondent-University places reliance upon Notes 2,3 and 16 of Chapter-X, of the prospectus, to contend that the University is bound by the conditions set out in the prospectus and cannot make an exception even if there is delay on the part of postal authorities. The University has no power to condone delay for any reason whether occasioned by postal authorities or by the petitioners. Note 16, read with Note 3, is abundantly clear and was to the knowledge of the petitioners. The petitioners cannot turn around and pray that as they despatched their application forms within time, the delay should be condoned or ignored. Reliance for these argument is placed upon a Full Bench judgment of this Court reported as Rahul Prabhakar Versus Punjab Technical University, Jalandhar, 1997(3) S.C.T. 526. It is further argued that in case application forms, posted by the petitioners are held to be valid, it would open the floodgates of litigation as a large number of applications were received after the cut off date. It is prayed that though the Civil Writ Petition No. 9905 of 2011 4 University sympathises with the petitioners, but its administrative constraints, prohibit it from extending any benefit to the petitioners. Counsel for the postal authorities admits that application forms, sent by the petitioners, were delivered after the cut off date, but submits that this does not entitle the petitioners to claim that postal department is at fault and action be taken against postal authorities. Section 6 of the Indian Post Office Act, 1898 (hereinafter referred to as the “Act”) protects, postal authorities against any such action. It is further submitted that postal authorities receive 17.920 million letters for delivery on any given day and, therefore, there are bound to be delays. It is further submitted that a large number of application forms were posted on 16.5.2011. As 17.5.2011 was a holiday on account of “Budh Purnima”, application forms could be delivered only on 19.5.2011. It is prayed that as negligence can not be attributed to postal authorities, the writ petitions should be dismissed. I have heard counsel for the parties, perused the paper-book , and the replies filed by the respondents. Postal history, that traverses more than a centuary, may not reveal, an incident where 1500 letters, posted to one institution were delivered after the cut off date. Admittedly, the petitioners forwarded their application forms by speed/registered post well before the scheduled date and time, fixed for their receipt, i.e., by 5.00 P.M. on 18.5.2011. Surprisingly or should one say shockingly about 1500 letters, containing these application forms were, admittedly, delivered by the postal department, after 18.5.2011, i.e., on 19/ 20.5.2011. The petitioners naturally did not receive their admit cards, and upon being informed by the University, that their applications have been summarily rejected, filed writ petitions, complaining of negligence on the part of postal authorities. Taking note of the abnormally large number of applications delivered after Civil Writ Petition No. 9905 of 2011 5 the due date, the petitioners were allowed to sit for the competitive examination, by way of an interim order. The University relies upon the Notes 2, 3 and 16 of Chapter-X titled as "General Instructions", to contend that the cut off date set out in prospectus cannot be altered for any reason, including postal delay and as petitioners were cognizant of the rules, no relief, much less, on the plea of negligence of the postal department, can be granted to them. The University has washed its hands, of the controversy, by relying upon Notes 2,3, and 16 of Chapter X of the prospectus. The postal authorities have sought refuge behind Section 6 of the Act. It is true that cut off dates and last dates for receipt of applications are, by their very nature, sacrosanct, but the question that worries one is this monumental default at the end of the postal department and whether 1500 candidates should be allowed to suffer or should an exception be carved out in this case and if so, on what legal principles? Notes 2, 3, and 16 of Chapter-X of the prospectus read as follows: “2. Each candidate for the MBBS/BDS/BAMS Entrance Examination must fill up the Admission Form (in duplicate) in his/her own handwriting and OMR Application Form as per instructions attached with it mentioning the category and send it under registered cover super scribed ' ADMISSION FORM FOR THE MBBS/BDS/BAMS ENTRANCE EXAMINATION-2011' to the Controller of Examinations, Pt. B.D.Sharma University of Health Sciences, Rohtak or submit it personally and take a receipt thereof so as to reach Pt. B.D. Sharma University of Health Sciences, Rohtak on or before 18th May, 2011 upto 5.00 p.m. Civil Writ Petition No. 9905 of 2011 6 “3. The admission form in duplicate (original & photocopy) alongwith OMR application form duly complete in all respects must be sent through Registered/Speed Post. The authorities do not take any responsibilities for delay or loss of form or correspondence pertaining thereto in postal transit or through courier service. 4. XX XX XX 5. XX XX XX 6. XX XX XX 7. XX XX XX 8. XX XX XX 9. XX XX XX 10. XX XX XX 11. XX XX XX 12. XX XX XX 13. XX XX XX 14. XX XX XX 15. XX XX XX 16 Application forms received after the due date and time due to any reason including postal delay will be rejected without any intimation to the candidates.” The University also relies upon a Full Bench judgment of this Court in Rahul Prabhakar Versus Punjab Technical University, Jalandhar (supra) in support of its stands. A perusal of the judgment reveals that while considering a similar dispute, the learned Full Bench held that the date and time stipulated for receipt of applications, in an advertisement or a prospectus, is sacrosanct and must, therefore, be strictly adhered to without exception. It was also held that if this date is relaxed, it would lead to a never ending process of admission etc. It was Civil Writ Petition No. 9905 of 2011 7 also held that conditions contained in a brochure are binding on candidates as well as on authorities and neither of them can opt out of these conditions. The Full Bench, in essence, held that the last date for receipt of applications cannot be altered for any reason whatsoever. The present case appears to be prima facie covered by the judgment in Rahul Prabhakar Versus Punjab Technical University, Jalandhar (supra) against the petitioners, but a careful perusal of the judgment reveals that the conclusions recorded are based upon a significant fact, namely, that there was no contract between the co- ordinator and the postal department as the brochure did not prescribe any particular mode for sending applications to the co-ordinator. The only condition prescribed in the brochure was that applications should reach the co-ordinator before 5.00 P.M. on the relevant date. The learned Full Bench held that as the brochure did not prescribe a particular mode for posting of applications, there was no contract between the authorities and the postal department and, therefore, the co-ordinator rightly rejected applications received after the cut off date. The situation, however, in the present case is quite different. Notes 2, 3 and Clause 16 of Chapter-X of the prospectus have, in no uncertain terms, prescribed the mode and manner for despatch and receipt of application forms, namely, either personally or through registered/speed post. The only agency that can receive and deliver registered and speed post letters is the postal department established under the Indian Post Office Act, 1898. By prescribing the mode for delivery of applications, the University has, in essence, nominated the postal department as the authority through which applications shall be posted and received Admittedly, application forms were posted by registered/speed post, in accordance with the mode prescribed in the prospectus and well before the cut off date. Civil Writ Petition No. 9905 of 2011 8 The question, therefore, that arises is whether the University can invoke Notes 2, 3 and 16 of Chapter-X of the prospectus and the postal department can hide behind Section 6 of the Act to deprive the petitioners of their rights particularly in cases where candidates have succeeded in the entrance examination. In my considered opinion, the peculiar facts of this case would require that this question be answered in favour of the petitioners and against the respondents. It is true that if colleges and universities are permitted to entertain applications after the cut off date, it may lead to anarchy, an arbitrary exercise of discretion by authorities in condoning delay and situations where examinations would never end, but the enormity of the default by postal authorities cannot be legitimised by invoking Section 6 of the Act or referring to the sacrosanct nature of a cut off date. While recording its opinion, the Hon'ble Full Bench, could not have envisaged a situation where 1500 applications would be delivered/received after the cut off date, for no fault of the applicants. At this stage, it would be appropriate to refer to the defence set up by postal authorities. It is pleaded that postal authorites deliver 17.902 million letters every day necessarily leading to some delay in delivery of letters. It is further submitted that out of 33 articles posted by the petitioners, 11 were booked on 16.5.2011, another 11 on 14.5.2011 and 01 each on 12.5.2011 and on 13.5.2011. As 15.5.2011 was a holiday (being Sunday) and 17.5.2011 was a holiday (being "Budh Purnima"), the delivery of these articles was delayed and letters could only be delivered on 19.5.2011. The postal authorities, therefore, cannot be accused of or held liable for negligence. The defence, set up by postal authorities, is an admission that letters were posted within time, but were delivered after the cut off date on account of holidays. The defence that delay was occasioned by two Civil Writ Petition No. 9905 of 2011 9 intervening holidays, one Sunday and the other "Budh Purnima", absolves the petitioners of any fault in the late submission of forms. It would be necessary to once again point out that some of the petitioners have succeeded in the qualifying examination. The successful petitioners have appeared in the counselling and one of them has even been granted admission whereas others are awaiting the outcome of these petitions. After a due consideration of the totality of the circumstances, particularly the late delivery of a large number of applications, the fact that applications were despatched by registered/speed post, (as prescribed in the prospectus) , the fact that the petitioners are, admittedly, not at fault, and the fact that the academic careers of these young children would be irretrievably ruined, the writ petitions are allowed with respect to those petitioners, who have qualified the entrance examination. The writ petitions with respect to candidates/petitioners, who have not qualified the examination, have been rendered infructuous and are disposed of accordingly. The University is directed to declare/formalise the result, allocate educational Institutions, colleges, in accordance with the eligibility and entitlement of each of the successful petitioners. Before parting with the judgment, this court would like to place on record an observation that Universities and Colleges should draft brochures/prospectus with a greater degree of care. The prospectus should, as far as possible, be simple and clear and wherever necessary, Sub-paras, Notes, Sub-notes, Explanations and Provisos should be avoided. No order as to costs. A copy of this order be handed over to counsel for the parties under signatures of the Bench Secretary of this Bench. 19.8.2011 ( RAJIVE BHALLA ) VK JUDGE