HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Chief Justice's Court Case :- WRIT - A No. - 7401 of 2015 Petitioner :- Rajendra Patel Respondent :- State Of U.P. And Anr. Counsel for Petitioner :- Siddharth Khare, Ashok Khare Counsel for Respondent :- C.S.C., Nisheeth Yadav, G.K. Singh Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice Hon'ble Dilip Gupta,J.
Hon'ble Yashwant Varma,J.
(Per Dr D Y Chandrachud, CJ) This reference to the Full Bench has been occasioned by a referring order dated 2 April 2015.
The Uttar Pradesh Public Service Commission1 issued an advertisement on 24 April 2014 notifying the Combined State/Upper Subordinate Services Examination 2014. The petitioner participated in the preliminary written examination on 3 August 2014. Candidates who had qualified in the preliminary written examination were required to submit an online application for appearing at the main written examination. An advertisement was issued on 4 October 2014 by the Commission notifying that the candidates who had been declared successful in the preliminary examination should visit the website of the Commission for obtaining information in regard to the process to be followed for appearing at the main examination. The four stages with a time schedule indicated in the advertisement were as follows:
(i) Date for the filling up of applications online on the website of the Commission for appearing at the main examination and selection of the examination centre and the two optional subjects.
From 1 October 2014 to 11 October 2014
(ii) The last date for submitting the examination fee through the process of E - Challan/I - Collect (through SBI/PNB).
Upto 17 October 2014
(iii) The last date for the submission of online applications after submission of the examination fee and obtaining its print out.
Upto 20 October 2014
(iv) Submission of the applications in the conventional hard copy together with all the accompanying documents in the office of the Commission either through registered post or through personal delivery.
Upto 27 October 2014 by 5 pm On 27 October 2014, the Commission issued a further advertisement stating that the main examination would be conducted between 5 November 2014 and 21 November 2014 in the districts of Allahabad and Lucknow. All the candidates were informed that they were being granted provisional permission to appear at the main examination subject to the condition that they had completed the process for fulfilling all the aforesaid four stages within the stipulated time and if it was found upon scrutiny that any candidate had failed to complete any of the four stages in time, his candidature was liable to be rejected. We are extracting hereinbelow the relevant part of the advertisement dated 27 October 2014:
"mDr ijh{kk ls lEcfU/kr vH;fFkZ;ksa dks ,rn~}kjk lwfpr fd;k tkrk gS fd mUgsa eq[; ijh{kk esa bl 'krZ ds lkFk vkSicfU/kd :i ls lfEefyr gksus dh vuqefr iznku dh tk jgh gS fd muds }kjk fu/kkZfjr frfFk rd vkosnu i= tek djus dh pkjks pj.k dh izfdz;k iw.kZ dj yh x;h gS ;fn lfUujh{kksijkUr ;g ik;k tkrk gS fd mUgksaus fu/kkZfjr frfFk rd vkosnu i= tek fd;s tkus fo"k;d pkjks pj.kksa dh izfdz;k iw.kZ ugha dh gS rks mudk vH;FkZu fujLr dj fn;k tk;sxkA"
The brochure which was issued by the Commission to the candidates similarly provided as follows:
"vko';d uksV%& vH;fFkZ;ksa dks ,rn~}kjk lwfpr fd;k tkrk gS fd mUgsa eq[; ijh{kk esa bl 'krZ ds lkFk vkSicfU/kd :i ls lfEefyr gksus dh vuqefr iznku dh tk jgh gS fd muds }kjk fu/kkZfjr frfFk rd vkosnu i= tek djus dh pkjks pj.k dh izfdz;k iw.kZ dj yh xbZ gS ;fn lfUujh{kksijkUr ;g ik;k tkrk gS fd mUgksaus fu/kkZfjr frfFk rd vkosnu i= tek fd;s tkus fo"k;d pkjks pj.kksa dh izfdz;k iw.kZ ugha dh gS rks mudk vH;FkZu fujLr dj fn;k tk;sxkA"
Under the notice dated 27 October 2014 and the conditions stipulated in the brochure all the candidates were placed on notice that they were being permitted to appear at the main written examination subject to the condition that the candidate should have completed all the four stages of the process failing which the candidature of the candidate would be cancelled.
In the present case, the facts are that the petitioner submitted an online application form for appearing at the main examination before the last date prescribed. A hard copy of the application form was sent to the Commission by speed post on 16 October 2014. The speed post cover was tendered at the office of the Commission by the postal authorities on 31 October 2014. The postal cover was not accepted on the ground that it was submitted beyond the last date. A provisional admit card had, in the meantime, been issued to the petitioner for appearing in the main examination and the petitioner appeared at the examination which was held between 5 and 10 November 2014. The result of the petitioner was not declared. A writ petition was, accordingly, filed commanding the Commission to accept the hard copy of the application form and not to reject the candidature of the petitioner on the ground that the hard copy had been tendered after 27 October 2014. A direction was also sought for the declaration of the result of the petitioner.
When the writ petition came up before the Division Bench, the Court noted a conflict between the views taken by two coordinate Division Benches these being in (i) Nirbhay Kumar Vs U P Public Service Commission2; and (ii) Raj Narayan Singh Vs U P Public Service Commission3.
In the judgment in Raj Narayan Singh (supra), a Division Bench of this Court while construing the provisions of the same advertisement has held, following a judgment of the Full Bench of this Court in Neena Chaturvedi Vs Public Service Commission4 that the petitioner had an option to submit the application form by registered post or by hand delivery. The Division Bench held that as the candidates were clearly placed on notice that in the event the application form was not received in time, it would stand rejected, it was for the petitioner to have ensured that the application form was received in the office of the Commission by the stipulated date. The view of the Division Bench was that since the print out of the application form together with the requisite documents was not submitted in time and in view of the clear stipulation contained in the advertisement that the application form would stand rejected, mere appearance at the main examination would not confer any benefit upon the petitioner.
This view of the Division Bench in Raj Narayan Singh (supra) was also consistent with an earlier judgment of the Division Bench in Ravindra Kumar Vs Public Service Commission5. The judgment in Ravindra Kumar (supra) also relied upon the judgment of the Full Bench in Neena Chaturvedi (supra).
Another Division Bench of this Court which considered the issue in Nirbhay Kumar (supra) took a different view and held that the submission of a hard copy of the application together with the prescribed documents was only an act of confirmation of the application and the delay in receiving the hard copy cannot be a ground to reject the application. The Division Bench observed as follows:
"In the present case we are faced with entirely different facts. With large number of applicants applying for the vacancies, the method of inviting applications online has received acceptance in almost all the departments of the Central and State Governments. The High Court is also now inviting applications online both to avoid delay, and the collection of data in a digital form, which makes it easy for compiling and cataloging the applications. Once the applications are received online complete in all aspects along with details of payments of examination fees, the registration of the application becomes complete, unless there is some difficulty in the online application, or that the examination fees paid is not sufficient. Ordinarily in all such cases online applications are rejected and are not accepted on the server of the examining body.
However, as soon as the application is accepted online, the requirement of making application and the registration of the application is complete. The forwarding of the downloaded hardcopy of the online application form and the testimonials including the certificates, which makes the applicant eligible for the job for claiming reservation is an act of confirmation of the application. The delay in receiving the hard copy cannot be a ground to reject the application of the applicant. In such case if the hard copy is sent by registered post before the last date of receipt of the application, the envelope by the registered post cannot be refused to be accepted.
There may be exceptions in which either the envelope by registered post dispatched prior to the last date is either lost or is received after the examinations have begun. In the present case, however, we are not concerned with any such facts."
In the view of the Division Bench, once an application had been submitted online and hard copies and testimonials were sent by registered post, the Commission could not refuse to accept the envelope containing the hard copy, if it was dispatched prior to the last date fixed for receiving the hard copy and testimonials in the envelope. The Division Bench observed as follows:
"In view of the aforesaid discussion, we hold that where the applications are invited online and the hard copies and testimonials are provided to be sent by registered post/ speed post and date of its receipt is fixed, once the online registration is complete with the proof of examination fees paid, the Commission cannot refuse to accept the envelopes containing hard copy of the application and the testimonials, if it has been dispatched prior to the last date fixed for receiving hard copy and testimonials in the envelope."
Finding a conflict between the judgments of the Division Benches, a reference has been made to the Full Bench. For convenience of exposition, the question which arises before the Full Bench is formulated as follows:
"Where the Commission requires the submission of an online application as well as the submission of a hard copy of the application together with all the requisite documents by a prescribed last date and candidates are placed on notice that the candidature of an applicant who has failed to complete all the prescribed stages by the last date would be rejected, would it be a correct position in law to hold that the Commission is bound to entertain the application though the hard copy together with the documents was received after the last date prescribed merely on the ground that the documents had been dispatched before the last date of the receipt of the application."
In the present case, the facts which are not in dispute, are as follows:
(i) All the candidates were duly notified by the Commission of the four stages that were required to be completed for submission of the application for appearing at the main examination. The stages which were indicated included the submission of an online application by a stipulated date as well as the submission of a hard copy together with all documents at the office of the Commission by 27 October 2014;
(ii) The candidates were given an option of submitting the documents either by registered post or of delivering the hard copy of the application together with all requisite documents by personal delivery at the office of the Commission by the prescribed date; and
(iii) The candidates were placed on notice that all the four stages that were contemplated would have to be completed by the prescribed last date, failing which, the candidature would stand rejected.
The issue before the Court is whether there is any substance in the contention which has been urged on behalf of the petitioner by learned senior counsel that (i) the submission of a hard copy together with all documents was merely an act of confirmation of the online application; and (ii) the requirement of submitting a hard copy by the prescribed date can be regarded as directory in nature.
On the other hand learned senior counsel appearing on behalf of the Commission has submitted that (i) the documents are submitted by a candidate for the first time with the office of the Commission together with a hard copy; (ii) the submission of the hard copy of the application together with prescribed documents is not just a confirmation of the online application but it is only on the basis of the documents which the candidate submits together with his application that the Commission is in a position to determine whether the candidate fulfils the required conditions of eligibility; (iii) all the candidates were specifically placed on notice that should they fail to fulfil all the prescribed four steps by the last date which had been prescribed, the candidature would stand rejected; and (iv) the Commission which conducts the examination is required to fix some cut off date and once a cut off date has been fixed, it would necessarily have to be regarded as mandatory, failing which, the conduct of public examinations on such a large scale would become impossible of compliance.
The Commission while conducting the Combined Services Examination had clearly placed all the candidates on notice of the fact that the process of submitting applications for appearing at the main examination involves four stages. The advertisement which was issued by the Commission on 4 October 2014 delineated each one of the four stages and prescribed a last date for compliance. The question of compliance at a subsequent stage arises only when the prior stage has been completed by the prescribed last date. In the first stage, the candidate is required to visit the website for the purpose of selecting the examination centre and the optional subjects. In the second stage, the candidate has to submit the examination fee through the prescribed electronic mode. In the third stage, the candidate has to submit the application online after deposit of the examination fee and obtain a print out of the online format by the date prescribed. In the fourth stage, the candidate is required to submit a conventional hard copy complete with all documents in the office of the Commission either through registered post or by personal delivery by a stipulated last date. All the candidates were also placed on notice that in the event they do not comply with the stages as prescribed, the candidature would stand rejected.
Having regard to the clear stipulations which are contained in the advertisement which was issued by the Commission and the instructions to candidates in the brochure, all candidates were placed on an unambiguous notice in regard to the process of compliance and the consequences of a breach. Compliance was not made optional but was mandatory for all the candidates. When the Commission holds public examinations on such a large scale, candidates must be clearly aware of the fact that it is not open to a candidate to decide as to when an application should be submitted and compliance with the time schedule which has been indicated is mandatory. If this is not read to be mandatory, the entire process of holding an examination would stand dislocated. If no last date for the receipt of the hard copy of the application with the documents were to be provided for, the issue which would arise would be until when would the Commission be required to consider the application submitted. Should this be until the examination is held or should this continue until the date fixed for the holding of the interview? These aspects cannot be left in uncertainty more so at the individual discretion of candidates. The submission of the hard copy of the application together with the documents is not a mere ministerial act nor does it constitute a mere confirmation of the application which has been submitted online. Candidates who submit applications online are still required to submit full documentary evidence which evinces eligibility and satisfaction of the required conditions. For instance, a candidate who applies for a particular post may be required to hold a qualification with a specialisation in a particular subject. It is only on scrutinising the application and the documents that the Commission can determine whether the candidate does fulfil the required conditions. This process cannot be left in a perpetual state of indecision or uncertainty. Hence, we are of the view that as a matter of first principle, the time schedule which was prescribed by the Commission for submission of the print out copy of the application submitted online with the documents was of a mandatory nature. Non-compliance with the schedule would invite the consequence which was clearly specified, namely the rejection of the candidature of the applicant.
The issue which we have considered has to a certain extent been dwelt upon in the judgment of a Full Bench in Neena Chaturvedi (supra). The Full Bench in Neena Chaturvedi (supra), inter alia, considered as to whether the post office through which the applications are submitted by a candidate who seeks to appear at an examination conducted by the Commission becomes an agent of the addressee. The Full Bench held that if the post office was treated to be an agent of the addressee, the very process of recruitment would be frustrated. The Full Bench observed as follows:
"33. Apart from that insofar as the entire process of recruitment is concerned, may be in the office of respondent or any other body, which invites applications, if view is accepted that the post office becomes the agent of the addressee, the very process of recruitment itself would be frustrated. A contract between the sender and the post office cannot bind the addressee. Even otherwise accepting a proposition that the post office becomes the agent of the body which invited the applications would lead to manifest inconvenience and absurdity. For how long would such body have to wait for receipt of applications sent by post to conduct the interview, or hold the examination and what happens in cases where the application is lost through transit. Therefore when applications are to be received by a particular cut off date assuming that there is an offer and acceptance, receipt of the application by that cut off date only would make the acceptance complete."
The judgment of the Full Bench was followed in a judgment of the Division Bench in Ravindra Kumar (supra) which was delivered on 28 April 2014. The judgment in Ravindra Kumar (supra) was in fact cited before the Division Bench when the writ petition in Nirbhay Kumar (supra) came up for hearing. If the Division Bench in Nirbhay Kumar (supra) was inclined to take a view at variance with what was laid down in Ravindra Kumar (supra), the appropriate course of action would have been to refer the case to a Full Bench for reconsideration. Instead, the Division Bench has charted out a course of action which, with respect, is inconsistent with the law which was laid down in the earlier judgment in Ravindra Kumar (supra). This, in our view, with greater respect, is impermissible.
Even on merits, we are not inclined to accept the correctness of the principle which has been laid down in Nirbhay Kumar (supra) that the submission of a hard copy of the application together with the accompanying documents is merely an act of confirmation of the application. The view which has found acceptance in Nirbhay Kumar (supra) would, in our view, dislocate the examination process and would render the process which is conducted by the Commission in a perpetual state of uncertainty. We are, with respect, in agreement with the view which was expressed by the Division Bench in Raj Narayan Singh (supra) decided on 18 February 2015.
Reliance was also sought to be placed on a judgment of the Supreme Court in Dolly Chhanda Vs Chairman, JEE6. In Dolly Chhanda (supra), the Supreme Court has observed that the general rule is that while applying for any course of study or post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in the application form, as the case may be, unless there is an express provision to the contrary. The Supreme Court held that there could be no relaxation in the matter of holding the requisite eligibility qualification by the date fixed. However, depending upon the facts of the case, there can be some relaxation in the matter of submitting proof and it may not be proper to apply a rigid principle which may pertain to the domain of procedure. Hence, every infraction of the rule relating to submission of proof need not necessarily result in the rejection of the candidature. These principles which have been laid down are not in dispute and they cannot be. However, the issue in the present case is whether the submission of a hard copy by the specified date together with all the documents was merely a matter of procedure. To accept the submission of the petitioner would, as we have held earlier, result in a situation where a candidate would be entitled to assert that despite the stipulated last date and a prescribed consequence of invalidation which has been drawn to the notice of the candidates, the Commission would be bound to scrutinise applications which are received together with the hard copies beyond the prescribed date. This, in our view, would not be permissible. We may also note that in a judgment in Secretary, UP Public Service Commission Vs S Krishna Chaitanya7, the Supreme Court has held that the Commission cannot be directed to declare the final results when the application form of a candidate had not been received within the prescribed period.
For these reasons, we hold that where the Commission requires the submission of a hard copy of the online application together with all accompanying documents by a prescribed last date and has clearly placed the candidates on notice of the fact that an application which is submitted beyond the last date together with the prescribed documents would result in the invalidation of the candidature, the condition which has been imposed by the Commission would have to be scrupulously observed. It would not be open to the Court to hold that notwithstanding such a clear condition, an application which has not been received by the last date should be entertained. The Commission has given an option to candidates of submitting their applications in the hard copy by either of the two modes, namely by registered post or by personal delivery. A candidate who has opted for one of the two modes, is required to comply with the condition that all the requisite four stages are completed within the time stipulated.
The reference is answered accordingly. The petition shall now be placed before the regular bench for disposal in the light of the reference answered.
Order Date :- 14.8.2015 VMA (Dr. D.Y. Chandrachud, C.J.) (Dilip Gupta, J.) (Yashwant Varma, J.)