Allahabad High Court

Nirmala Devi vs U.O.I.Thru.Secy.Consumer ... on 8 December, 2021

Bench: Rakesh Srivastava, Saurabh Lavania




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 

 
Court No. - 2
 

 
Case :- MISC. BENCH No. - 28453 of 2021
 

 
Petitioner :- Nirmala Devi
 
Respondent :- U.O.I.Thru.Secy.Consumer Affairs Food &Public Distr.& Ors.
 
Counsel for Petitioner :- Zubair Hasan
 
Counsel for Respondent :- C.S.C.,A.S.G.
 

 
Hon'ble Rakesh Srivastava,J.

Hon'ble Saurabh Lavania,J.

(Per-Saurabh Lavania,J.)

Heard Sri Zubair Hasan, learned counsel for the petitioner and Sri H.P. Srivastava, learned Additional C.S.C. appearing on behalf of opposite party Nos. 2 and 4.

This writ petition has been filed praying inter alia the following main relief:-

"(i) Issue a writ, direction or order in the nature of Mandamus commanding the respondents to issue a call letter and permit her to appear in the interview which is going for selection of post of Woman Member of District Consumer Commission, Hardoi."

Learned counsel for the petitioner, based upon the pleadings and documents on record, submitted that State Government for making appointment on the post(s) of President(s) and Member(s) of District Consumer Commission established in different districts of State of U.P. published a notification/ advertisement dated 27.10.2020 and the last date, as mentioned therein, for submission of application form, was 30.11.2020. Vide application dated 25.11.2020 (annexed as Annexure No. 2 to the petition), petitioner being eligible applied for the post of Women Member of District Consumer Commission, Hardoi. This application was sent through registered post on 27.11.2020. Thereafter, another notification/ advertisement dated 12.05.2021 was issued by the State Government by which last date for submission of application form was extended from 30.11.2020 to 11.06.2021, which was further extended to 25.06.2021 by a notification/ advertisement dated 10.06.2021.

He further submitted that when call letters were issued to all the candidates except the petitioner then she represented her cause and in turn, her request for permitting her to appear in the interview was not acceded, despite the fact that the Demand Draft of Rs. 1000/- was encashed, on the ground that the application form of the petitioner was received in the concerned Office on 01.12.2020 i.e. after the last date of submission of application form, which, as per notification/advertisement dated 27.10.2020 was 30.11.2020, though, the same was extended till 25.06.2021 and being so the application form of the petitioner was valid and she should have been called for facing interview. He also stated that the petitioner was not informed about this aspect of the case else she would have resubmitted her application form in pursuance to the notification/advertisement dated 12.05.2021. Now for the post(s) in issue, interview is going on and would be completed very soon and if the petitioner is not permitted to appear in the interview process she would suffer irreparable loss and injury for no fault. In fact opposite parties are at fault as they have not informed the petitioner about the delay in submission of application form and in this way, the petitioner has to made suffer for the fault of opposite parties.

Learned Additional C.S.C., on the basis of instructions, submitted that in the notification/advertisement dated 27.10.2020 issued by the State Government, last date of submission of application form was 30.11.2020. This last date, in fact, was not extended vide notification/advertisement dated 12.05.2021. The notification/advertisement dated 12.05.2021 is fresh notification inviting the applications for the post(s) mentioned therein i.e. President(s) and Member(s) of District Consumer Commission. As per this notification, last date of submission of application(s) was 11.06.2021, which was extended to 25.06.2021 vide notification/advertisement dated 10.06.2021. The notification/ advertisement dated 12.05.2021 only saves the candidature of those applicants who had submitted proper applications within time. Meaning thereby, a candidate whose application form, pursuant to the notification/ advertisement dated 12.05.2021 was valid, was not required to apply afresh pursuant to the notification/advertisement dated 12.05.2021 and his/her candidature would be considered otherwise not. In this case, application form of the petitioner was not valid as the same was received in the Office concerned on 01.12.2020 i.e. after last date of submission of application form i.e. 30.11.2020. As such, she is not entitled to prayer sought in the writ petition.

In view of above, this Court feels that the issues(s), under consideration, are that (i) as to whether the application form, pursuant to the notification/advertisement dated 27.10.2020, submitted by the petitioner through registered post on 27.11.2020 was valid on the date of notification/advertisement dated 12.05.2021 or not; (ii) as to whether the Department was under obligation to inform the candidate about the defect in application form or not; and (iii) as to whether vide notification/ advertisement dated 12.05.2021 the last date i.e. 30.11.2020 mentioned in the notification/advertisement dated 27.10.2020, was extended or not;

For adjudication of aforesaid issue(s), it would be appropriate to refer relevant condition(s) mentioned in the notification(s)/advertisement(s) dated 27.10.2020, 12.05.2021 as also 10.06.2021.

(a) Relevant portion of Condition No. 2 of the notification/advertisement dated 27.10.2020, reads as under:-

"blds vuqlkj fuEufyf[kr vgZrk j[kus okys vH;fFkZ;ksa ls vkosnu& i= vkeaf+=r fd;s tkrs gSaA vkosnu&i= dh vafre frfFk 30-11-2020 gksxhA"

(b) Condition No. 9 and 10 of notification/advertisement dated 27.10.2020, are as under:-

"9. vH;fFkZ;ksa }kjk vkosnu&i= fucU/kd] jkT; miHkksDrk fookn izfrrks"k vk;ksx] m0iz0] lh&1] fodzkUr [k.M&1 ¼'kghn iFk ds cxy esa½sa xkserh uxj] y[kuÅ m-iz- fiu dksM&226010 dks jftLVMZ i= }kjk lh/kss izsf"kr fd;k tk;sxkA

10- vkosnu&i= fu/kkZfjr izk:i ij u gksus] viw.kZ gksus ;k bl foKkiu dh frfFk ds iwoZ vFkok foKkiu esa vkosnu&i= izkIr gksus gsrq fu/kkZfjr dh xbZ vafre frfFk ds i'pkr vkosnu izkIr gksus ij vkosnu&i= Lor% fujLr le>s tk;sxsaA inksa dh la[;k rFkk LFkku esa ifjorZu fcuk fdlh iwoZ lwpuk ds fd;k tk ldrk gSA vH;FkhZ }kjk vkosfnr tuin ds vfrfjDr fdlh vU; tuin esa Hkh fu;qfDr fd;s tkus ij fopkj fd;k tk ldrk gSA "

(c) Relevant portion of Condition No. 2 as also Condition No. 4, 9 and 10 of notification/advertisement dated 12.05.2021, are as under:-

"blds vuqlkj fuEufyf[kr vgZrk j[kus okys vH;fFkZ;ksa ls vkosnu&i= vkeaf=r fd;s tkrs gSaA vkosnu&i= dh vafre frfFk 11 twu] 2021 gksxhA

4- ftu vkosndksa }kjk lnL;] ftyk miHkksDrk vk;ksx ds in gsrq foKkfir foKkiu la[;k lhih [email protected]&2&2020&lhih [email protected] Vhlh] fnukad 27 vDVwcj] 2020 ds dze esa vkosnu fd;k x;k gS % dks iqu% vkosnu dh vko';drk ugha gSA

9- vH;fFkZ;ksa }kjk vkosnu&i= fucU/kd] jkT; miHkksDrk fookn izfrrks"k vk;ksx] m0iz0] lh&1] fodzkUr [k.M&1 ¼'kghn iFk ds cxy esa½sa xkserh uxj] y[kuÅ m-iz- fiu dksM&226010 dks jftLVMZ i= }kjk lh/kss izsf"kr fd;k tk;sxkA

(e) The notification/advertisement dated 10.06.2021, reads as under:-

"i=kad lh0ih0 [email protected]&2&2021 fnukad 10 twu] 2021

foKfIr

loZlk/kkj.k dks lwfpr fd;k tkrk gS fd dksfoM&19 egkekjh ds n`f"Vxr ftyk miHkksDrk vk;ksx ds v/;{k ,oa lnL;ksa ds [email protected] gksus okys inksa ij p;u gsrq izdkf'kr foKkiu i=kad% [email protected]&2&2021] fnukad 12 ebZ] 2021 esa vkosnu djus dh fu/kkZfjr vafre frfFk fnukad 11 twu] 2021 ls c<+kdj 25 twu] 2021 fu/kkZfjr dh tkrh gSA mDr in ij fu;qfDRk gsrq foKkiu i=kad% lh0ih0 [email protected]&2&2021] fnukad 12 ebZ] 2021 ,oa vkosnu izk:i] jkT; miHkksDrk vk;ksx dh foHkkxh; osclkbV http://scdrc.up.nic.in/ ij viyksM gSA bPNqd vH;FkhZ mDRk osclkbV ls lsok 'krsZa ,oa vkosnu i= dk izk:i izkIr dj] okafNr vkSipkfjdrkvksa dks iw.kZ djrs gq, jkT; vk;ksx dk;kZy; esa Mkd ds ek/;e ls vFkok lh/ks fu/kkZfjr frfFk fnukad 25 twu] 2021 rd vkosnu fucU/kd] jkT; miHkksDrk fookn izfrrks"k vk;ksx] m0iz0] lh&1] fodzkUr [k.M&1 ¼'kghn iFk ds cxy esa½ xkserh uxj] y[kuÅ m0iz0 fiu dksM&226010 ds irs ij dj ldrs gSaA vkosnu i= viw.kZ gksus vFkok fu/kkZfjr frfFk ds i'pkr izkIr gksus ij vkosnu i= Lor% fujLr le>s tk,axsA"

At this juncture, it would also be appropriate to refer relevant pronouncements of this Court on the issue as to whether the application form sent through registered post before last date of submission of application form is to be treated to be valid submission of application form or not?

Relevant paragraphs 5, 33 and 39 of the judgment passed by Full Bench of this Court in Neena Chaturvedi vs. Public Service Commission, U.P. Allahabad, 2011 (2) AWC 1114 (FB); are quoted as under:-

"5. The question that can be formulated for consideration would be "when applications are invited, one through post office and the other by any other means or only through post, does the post office become the agent of the addressee, because there is express or implied authorisation by the addressee to send the articles by post.

"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.

39. If applications are invited by addressee for an interview or recruitment from eligible members from the general public, by advertisement either expressly by one mode or more, one of which is post office, when an applicant chooses to send his application through post, though the letter is posted in time but delivered late after last date of receipt, the question that arises for consideration is:-

"On an offer being made by advertisement, and an acceptance is sent by post, when does the acceptance become complete, on the date of receipt of the acceptance in the post office or its receipt by the addressee."

On an advertisement being issued by the offeror inviting applications through post and the sender (applicant) sends application through post (acceptance) but the same does not reach by the date mentioned in the advertisement, will the postal rule apply? The offeror in such cases, apart from inviting applications also lays down as one of its terms, that applications have to be received by a particular date. The offer therefore made if any, is receipt of the application through the post by a particular date.

The postal rule however applies, the moment an acceptance is posted through post, then the post office becomes the agent of the addressee (offeror). An advertisement inviting applications for examination or recruitment is merely an invitation to offer and not an offer itself. The person who sends his application by post or by any other mode assuming it is based on an offer, must send the acceptance by the particular date, in terms of offer. If it does not reach by that date, there can be no acceptance and the postal rule would not apply."

This question was again considered by Hon'ble Division Bench of this Court in Smt. Sushmita Pandey vs. State of U.P. and another, 2014 (1) ADJ 382 (DB), and after placing reliance on judgment of Hon'ble Full Bench in Neena Chaturvedi (supra), it was held as under:-

"In view of the aforesaid, the postal authority cannot be treated as an agent of the Commission so as to treat the dispatch of the application before the last date by post, as having been submitted before the last date. This apart, it was clearly provided in the advertisement that the print out of the online application with the other relevant documents could also be submitted personally which facility could have been availed of by the petitioner but admittedly was not availed of.

The reliefs prayed for cannot, therefore, be granted to the petitioner.

The petition is, accordingly, dismissed."

As per law settled by this Court, in the above mentioned judgments, it is crystal clear that an application form received after the last date of submission can not be treated as valid application form and no right, based upon the same, can be claimed by such candidate/ applicant.

Relevant part of Condition No. 2 of the notification/advertisement dated 27.10.2020, quoted above, specifically says that last date of submission of application form is 30.11.2020. The advertisement/ notification dated 12.05.2021 also says in the same terms, according to which, the application form should be submitted by the applicant on or before 11.06.2021.

Condition No. 10 of both the notification(s)/ advertisement(s) dated 27.10.2020 and 12.05.2021, respectively, in clear terms provide that an application form received after the last date prescribed for submission of form would be deemed to be rejected.

Besides above, the petitioner herself filled the application form, as appears from the copy of application form annexed as Annexure No. 2 to the petition, and a perusal whereof particularly Clause No. 17 of the same shows that this Clause in specific terms provide that the application if received after the last date would not be considered.

Considering the aforesaid including the law propounded by this Court as also relevant part of Condition No. 2 and Condition No. 10, referred above, this Court is of the firm view that the application form of the petitioner was not valid on the date of publication of notification/ advertisement dated 12.05.2021. Issue No. (i) framed above is accordingly decided against the petitioner.

Now coming to Issue No. (ii). A perusal of condition(s), above quoted, shows that the same does not provide that an application, if received after delay, the applicant would be informed by the concerned Office. The conditions also does not provide that the concerned would be informed about the defect in application form. Moreover, no other condition or statutory provision has been placed before this Court according to which the State Government was under obligation to inform the candidate about the defect or delay in submission of application form. Thus, submission of the learned counsel for the petitioner on this aspect is rejected. Issue No. (ii) decided accordingly.

Adverting to Issue No. (iii). Condition No. 04 of notification/advertisement dated 12.05.2021, quoted above, provides that a candidate who has submitted his/her application form pursuant to the notification/advertisement dated 27.10.2020, need not to apply again. This condition, to the view of this Court, says that a candidate whose application form was accepted by the Recruitment Agency need not to apply afresh, however, a candidate whose application form was not accepted was required to apply afresh pursuant to the notification/ advertisement dated 12.05.2021. Condition, under consideration, does not say that the last date mentioned for submission of application in the notification/advertisement dated 27.10.2020 has been extended.

It goes without saying that a candidate should be vigilant in relation to the filling of application form as also on the issue as to whether the application form has been duly received, in time, by the Office concerned or not, more so, when a candidate is applying for the post(s) on which if he/ she is appointed has to decide a 'lis' between the parties. In the instant case, to the view of this Court, the petitioner/ applicant was negligent as the petitioner send her application form through registered post on 27.10.2020 despite of having knowledge of last date i.e. 30.11.2020, mentioned in the notification/advertisement dated 27.10.2020.

Thus for the reasons aforesaid, the interpretation, as suggested by the learned counsel for the petitioner, that the application form was within time as subsequent notification/advertisement dated 12.05.2021 provides last date of submission of application form as 11.06.2021, which was subsequently extended to 25.06.2021 vide notification/advertisement dated 10.06.2021 would be absurd interpretation of Condition No. 4 of notification/advertisement dated 12.05.2021 as this condition does not provide that the candidature of those candidates whose application forms were not found valid/incomplete or received after last date of submission of applications in the notification/advertisement dated 27.10.2020, would be considered and they need not apply afresh nor it says that the last date for submission of application form in the notification/ advertisement dated 27.10.2020, has been extended. Moreover, if the submission of the learned counsel for the petitioner is taken on its face value, then in that event, the Condition No. 10 of the notification(s)/ advertisement(s) in issue, quoted above, would become redundant and this would provide what has not been provided under the notification(s)/ advertisement(s) in issue. Moreover, this interpretation would also open a Pandora's Box and if it happens then in that event the entire process of recruitment would be held up. In catena of cases, it has been held by this Court as also by the Hon'ble Supreme Court that recruitment process should not be interfered with unless gross illegality or arbitrariness is shown on the part of the recruitment agency.

For the reasons aforesaid, Issue No. (iii) is also decided against the petitioner.

As already held that in entire notification/advertisement dated 27.10.2020, pursuant to which, the application form was submitted by the petitioner through registered post on 27.10.2020, there is no such condition which says that a candidate would be apprised about the defect in the application form or about the fact that the application form has not been received within time by the Office concerned and the application form of the petitioner was not valid on the date of publication of notification/ advertisement dated 12.05.2021, rather as per legal fiction, the same was rejected as was received by the Office concerned after the last date of submission of application form as also that the last date for submission of application form i.e. 30.11.2020 in the notification/advertisement dated 27.10.2020 was not extended in subsequent notification/advertisement, the candidature of the petitioner can not be considered in ongoing interview process.

Thus, for the reasons aforesaid, this Court is of the view that the petitioner is not entitled to the relief sought in the present writ petition. The writ petition is dismissed with no order as to costs.

Order Date :- 8.12.2021

Vinay/-